1992 P Cr (PLP)

5. On 28th of July, 1983, all the respondents/accused set, the eastern and southern hedge on fire, while the appellant and her daughters were resting in their room. The respondents/accused were seen while setting the hedge on fire by Mir Mumtaz and Faiz Muhammad. On the hue and cry raised by both the witnesses many other persons were attracted to the scene of occurrence, who 'also witnessed that the hedge was set on fire, and all the people gathered at the spot had extinguished the fire. The appellant stated that had the fire not been extinguished, she alongwith her daughters would have been completely burnt. The fire burnt two lime trees and two trees of Khatis. The plants of jasmine and rose were also burnt, and a Shisham tree was also burnt. Thus, as a result of the aforesaid fire, the appellant had suffered a loss of Rs. three thousand.

6. After the aforesaid incident, the respondents/accused were reprimanded by Mumtaz Hussain and Faiz Muhammad; and the Police was also informed of the occurrence. The respondents/accused were summoned by Police Station Jhang Saddar, and then they were let off by the Police, and no action was taken against them.

7. On 14th of August, 1983, the respondents/accused on their return from the police station, abused the appellant, and made themselves naked before her and threatened the appellant and her daughters to kill them, and further stated that the Police was in their pocket, and challenged the appellant to do whatever she like. But Nisar Ahmad and Muhammad Jamil pacified the matter.

8. The aforesaid grievance of the appellant was not redressed by the local police, and on account of the conduct of the Police, she was constrained to file a private complaint.

9. The preliminary evidence was recorded, and the complaint was sent for enquiry to the Tehsildar Bagh under section 202, Cr.P.C. who after careful perusal of all the facts of the case and after hearing both the parties reported, that prima facie, a case was made out against the respondents/accused. Accordingly, acting upon the statement of the appellant Mumtaz and Faiz coupled with the report of the Tehsildar Bagh, the process was issued against the respondents/accused, and they were summoned lo, face their trial under section 435/34, P.P.C.

10. At the trial, Faiz Muhammad appeared as P.W.2 while Mumtaz Ali Khan as P.W.1 and the appellant entered the witness‑box as P.W.3.

11. With the assistance of the learned counsel for the appellant, the complainant and the State, I have gone through the entire evidence on record, and I have heard all the learned counsel at length.

12. At the very outset, I have no hesitation to observe that the evidence of Faiz Muhammad P.W.2 is tainted, because he is inimical towards the respondents/accused side, inasmuch as, his son was involved in a Hadood case under section 10/11 which ended into his conviction, and in the said trial the maternal‑uncle of the respondents Muhammad Aslam and Muhammad Zaffar had appeared as a witness.'

13. On behalf of the respondents/accused, a suggestion was given to Mumtaz P.W.1, that there was a dispute and litigation over the issue of Lumberdari between the respondents/accused Muhammad Aslam and Muhammad Zaffar on the one side and the father of the witness on the other side, but the suggestion was denied. After careful perusal of the statement of the witness, I am convinced, that he had seen the occurrence, and I hold that he is a truthful witness, inasmuch as, he had no animus with the respondents/ accused. Although, the learned counsel for the respondents/accused vehemently contended that he was a chance witness, and had not seen the occurrence. As observed above, he had rendered satisfactory explanation about his being present at the scene of occurrence, therefore, no exception can be taken to the truthfulness of his testimony. Mumtaz Ali P.W.1 stated, that on the day of occurrence, he was proceeding to the shop of blacksmith for getting his plough. There is no material on the record to disbelieve him, thus, I hold that he was present at the scene of occurrence and had seen the same. Besides that his conduct is laudable, because he supported without fear a miserable widow and her two orphan daughters.

14. Adverting to the statement of the appellant herself, the same also inspires confidence, because she had no axe of her own to grind; she reported the matter to the Police in time, but it seems that the Police was least interested to render any help to her, as she being a destitute widow had no means to pursue her remedy with the Police, and thus, constrained by the attitude of the Police, she had resorted to the filing of the private complaint.

15. The learned counsel for the respondents/accused vehemently argued that the prosecution story was improbable, inasmuch as, none of the witnesses had stated, that they had seen the actual occurrence with their own eyes. The learned counsel further contended that the evidence was silent as to the manner of the occurrence, because no specific role had been ascribed to any respondent/accused. Nothing had been stated with exactitude as to which of the respondents/accused had set the hedge on fire.

16. I have considered the arguments advanced by the learned counsel for the respondents/accused, but I do not find any substance therein, because the appellant herself and Mumtaz Ali Khan P.W.1 categorically stated that they had seen the respondents/accused while setting the hedge on fire.

17. The learned counsel for the respondents/accused further drew the attention of this Court to the averments in the complaint, wherein, it was stated that the appellant and her daughters were sleeping in the room constructed in their orchard, when the hedge was put on fire; hence, it was contended by the learned counsel that it was a material contradiction, because, if at all, the appellant was taking rest alongwith her daughters in her room, then how could she see the respondents/accused while setting the hedge on fire. I am afraid that this material contradiction has no bearing upon the issue in view of the overwhelming evidence of Mumtaz Ali Khan P.W.1.

18. The learned counsel for the respondents/accused then argued that the certificate beneath the examination‑in‑chief under section 342, Cr.P.C., is not in the handwriting of the Presiding Officer, but instead a stamp has been affixed, which does not fulfil the requirement of law. In support of his contention, the learned counsel has placed reliance upon P L D 1986 FSC 242.

19. I have considered the argument of the learned counsel for the respondents/accused, and I have carefully gone through the statements of the accused/respondents under section 342, Cr.P.C. The statements were recorded by the Presiding Officer himself in his own hand, although, no certificate has been given at the end, and a stamp alone has been affixed at the close of the statement. In my view, the requirement of law has been fully complied with and fulfilled, because the entire statements were recorded by the Presiding Officer himself, therefore, this objection loses its significance.

20. The learned counsel further contended that the complaint was not at all maintainable in view of the violation of section 241‑A(2)(a) of the Cr.P.C., as it required, that the complainant should state in the complaint the names of the witnesses and the gist of the evidence to be adduced before the trial Court, which was absent, therefore, the learned Magistrate ought to have dismissed the complaint summarily.

21. I am afraid that this is not the proper time to raise such objection before this Court at this stage, as the respondents/accused fully participated in the trial, ample opportunity was given to them to cross‑examine the witnesses, and no such objections was ever raised by their counsel during the trial proceedings. Therefore, the objection is repelled. Furthermore, the provision of section 241‑A, Cr.P.C. is directory and not mandatory, because non- compliance thereof has not been provided by law.

22. It was further pointed out that on 29‑5‑1984, the complaint had been dismissed, but it was again restored by the learned Magistrate. According to the learned counsel, the learned Magistrate had reviewed his own order, for which, he was not at all competent.

23. The argument is fallacious; as I have gone through the order dated 29‑5‑1984, which clearly shows that since copies of the complaint had not been provided therefore, the same was dismissed, but in the same breath, on the request of the learned counsel for the complainant, the time was duly allowed to file the copies of the complaint. Since, it was not a separate order, and had not been signed, therefore, this objection is overruled.

24. Another aspect of the case is that soon after the occurrence, the respondents/accused. kept on standing naked before the complainant, a widow, and abused her and her two daughters, and the matter was hushed up through the intervention of Nisar Ahmad and Muhammad Jamil. In my view the prosecution has proved its case against the respondents/accused.

25. Adverting to the quantum of punishment, I have gone through section 435, P.P.C., wherein the minimum punishment provided for such type of offence is not less than two years. In this view of the matter, I set aside the acquittal of respondents Muhammad Aslant, Muhammad Zaffar and Muhammad Ramzan and convert it into their conviction; they are thus convicted under section 435/34, P.P.C. and are sentenced to undergo rigorous imprisonment for two years each, and to pay fine of Rs. five thousand each, or in default thereof, to suffer further rigorous imprisonment for three months each. Out of fine, if recovered, Rs. rive thousand shall be paid to appellant Mst. Jannat Bibi. The respondents shall be taken into custody forthwith to serve out their sentences. H.B.T./J‑119/L Appeal allowed.