1997 PLP 632 (SCMR)

4. During the trial, eye‑witness account of the occurrence was furnished by Muhammad Shaft complainant, his wife Mst. Sairan Bibi, his brother‑in‑law Muhammad Iqbal and Muhammad Nawaz P.Ws., who supported the prosecution version. Dr. Shaheena Mubarak was examined as P.W.5 and she deposed that Mst. Sairan had suffered six injuries out of which four were simple and two were kept under observation and X‑Ray thereof was advised. She further stated that according to the X‑Ray report, there was fracture of right clavicle and fracture of second, fourth, seventh and eight ribs of right chest and, therefore, the two injuries were declared grievous in nature. Muhammad Latif Radiographer appeared as P.W.6 to state that on 28‑11‑1987, he had X‑rayed the right chest and right clavicle of Mst. Sairan and he proved the X‑Ray film Exh.PC which bore his signature. Muhammad Shafi complainant also tendered in evidence certified copy of an application dated 12‑6‑1988 written by Saif Ullah, Inspector Exh.PD and the order of the Magistrate recorded on that application Exh.PD/A, certified copy of the report under section 173, Cr.P,C. in case F.I.R. No.182 of 1987 of Police Station, Toba Tek Singh dated 12‑6‑1988 Exh. PE and certified copy of judgment of Illaqa Magistrate dated 21‑9‑1988 in case F. I. R. No.182/87 Exh.PF and closed his case.

5. The appellants when examined under section 342, Cr.P.C. denied the allegations levelled against them. Muhammad Iqbal Toor in his statement under section 342, Cr.P.C. gave the following version of the occurrence:‑‑ "The real facts are that on 27‑11‑1987 I received a secret information that Nawab son of Moosa, Bilawal son of Abdul, Suleman son of Wali Muhammad, Fazal son of Ashiq, Bashir son of Abdul Raheem, Mosa son of Noor Muhammad, Caste Odh, residents of Chak No.397/JB who were proclaimed offenders in case F.I.R. No.190/84, offence under section 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, No.VII of 1979 Police Station C‑Sukkur were present at their residence and could be arrested on raid so I alongwith Falak Sher, Constable No.260, Muhammad Iqbal, A.S.I. No.55, Bashir Ahmad, Constable No.515 and Noor Ahmad, Constable No.306 alongwith some persons from the public raided the Jhuggies of the proclaimed offenders where 25/30 women and 15/20 males were present. Muhammad Iqbal son of Nawab, Muhammad Shafi, Nawab, Nawaz P.Ws., and others resisted the apprehension of the proclaimed offenders and raised Lalkara for killing the Police party and snatched the official cap and belt of Falak Sher and the proclaimed offenders managed to run away on a wagon which hit Mst. Sairan and I sent a complaint for the registration of the case under sections 216, 186/279, 337/148, 149, P.P.C., and a case F.I.R. No.182 was registered at Police Station Toab Tek Singh which was later on investigated by Shafiq‑ur‑Rehman co‑accused and I have been implicated falsely in this case." Shafiq‑ur‑Rehman appellant took the stand that he had investigated the case F.I.R. No. 182/87 dated 27‑11‑1987 registered against the complainant, Muhammad Nawaz P.W., his brother Rab Nawaz, Nawab and Bilawal etc. and that he had also got re‑examined Mst. Sairan in the said case and it was for this reason that he was falsely involved by the complainant. Nazeer Ahmad S.I., Umar Hayat and Naseer Constables stated that the complaint was filed against them as a counterblast to the case F. I. R. No. 182 dated 27‑11‑1987, in which the complainant and other P.Ws. were the accused. Falak Sher and Noor Muhammad appellants stated that they had accompanied Muhammad Iqbal Toor, A.S.I. when he conducted raid upon the proclaimed offenders and for this reason they have been falsely implicated in this case. The accused declined to make statements on oath but produced two witnesses, Muhammad Iqbal, A.S.I. D.W.1 and Abdul Hayee D.W.2. D.W.I proved copy of Report No.7 dated 10‑2‑1985 Exh.DB, copy of Daily Diary Report No.13, dated 10‑2‑1985 Exh.DC, Report No.8 of Daily Diary Register dated 27‑11‑1987 Exh.DD, copy of Report No.13, of Daily Diary Register Exh.DE, copy of F.I.R. No. 182, dated 27‑11‑1987, under section 216/186/279/337/148/149, P.P.C. Exh.DF and copy of Report No. 15 dated 27‑11‑1987 of the Daily Diary Register Exh.DG. D. W.2 supported the statement of Muhammad Iqbal Toor.

6. Learned Sessions Judge after considering the prosecution case and the defence plea, putting the‑two versions in juxtaposition rejected the defence plea holding that "the accused have not only failed to prove their plea but have also failed to show that their plea is reasonable or probable". It was observed by the learned Sessions Judge that the defence did not place on record either the certified copy of the F.I.R. said to have been registered at P.S. C‑Section Sukkur City (Sindh Province) under section 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979 or copy of any order of any Court declaring Muhammad Shafi complainant, Nawab and Balawal etc. as proclaimed offenders in the said case. It was also noted that during the investigation of the case F.I.R. No.182/87 registered against Muhammad Shafi complainant and others including the alleged proclaimed offenders at the instance of Muhammad Iqbal Toor, A.S.I. regarding the occurrence alleged to have taken place on. 27‑11‑1987, the alleged proclaimed offenders were found innocent and were discharged by the Illaqa Magistrate vide order dated 12‑6‑1988 and challan was submitted only against Mst. Sairan and Mst. Nooran while Rab Nawaz and Muhammad Nawaz were placed in column No.2 of the challan and even the said accused were subsequently acquitted under section 249‑A, Cr.P.C. With respect to the injuries suffered by Mst. Sairan, learned trial Court observed "from the nature of injuries Nos.1 and 6, I am of the view that these injuries could not be the result of accident as alleged by the defence". The defence plea having thus been rejected, learned trial Court accepted the prosecution version holding that the complainant Muhammad Shafi P.W.1, Mst. Sairan P.W.3 and Iqbal P.W.4 were no doubt related inter se but this fact was no ground for discarding their testimony as there existed no enmity between them and the accused and in any case their testimony was fully corroborated by the testimony of Muhammad Nawaz P.W. "who is quite independent and disinterested witness". It was also noted by the learned trial Judge that the occurrence and the time of occurrence was not even denied by the defence. It was accordingly held that the prosecution successfully proved the charges under sections 148/149, 452/149 and 325/149, P.P.C. against all the appellants who were thus convicted and sentenced as aforestated.

7. All the convicts challenged their convictions and sentences in the High Court in two appeals, one filed by Nazir Ahmed, now appellant in Criminal Appeal No. 54 of 1993 and the other by Shafiqur Rehman and five others, now appellants in Criminal Appeal No. 53 of 1993. Both the appeals were dismissed by a learned Single Judge vide the impugned judgment. The learned Judge affirmed the findings recorded by the trial Court qua the prosecution case and the defence version and held that the prosecution witnesses were the natural and probable witnesses of the occurrence which took place in house of the complainant and that their evidence "stands fully corroborated by the medical evidence as well as by the evidence of P.W.2 Muhammad Nawaz who is an independent witness" and whose presence was admitted ever. by the defence as he was named as an accused in the case F.I.R. No. 182/87 lodged by Muhammad Iqbal Toor appellant at P.S. Toba Tek Singh. As regards the defence version, it was observed by ‑the learned Single Judge that it was not proved on record in so far as neither the certified copy of the F.I.R. said to have been registered at Sukkar City Police Station was placed on record nor any order declaring the accused of that case as proclaimed offenders learned Judge also disbelieved conducted with a view to arrest that the complainant and the Police Station Toba Tek Singh later on acquitted discharged by the order of Magistrate "fully exposes the falsehood of the defence version" .

8. Leave to appeal against the judgment of the High Court was granted by this Court to consider the contention raised on behalf of the appellants that "the Courts below have not appreciated the evidence in its true perspective and the defence version has been discarded for insufficient reasons".

9. We have heard the learned counsel appearing in support of these appeals and have also examined the relevant record. Learned counsel has contended that the complaint against the appellants was filed with inordinate delay which per se was fatal to the case of the prosecution. We find no merit in this contention which we notice was also raised before the Courts below and was repelled by the learned Sessions Judge with the following observations:‑‑ "The alleged occurrence took place on 27‑11‑1987 at about 2/2 30 p.m. in the area of Chak No. 297/JB. The record shows that Mst. Sairan injured P.W., got herself medically examined from D.H.Q. Hospital, Toba Tek Singh on the same day at about 4‑45 p.m. The complainant has explained the delay in the complaint Exh.PA as well as in his statement made during the trial as P.W.1. It is mentioned in the complaint that the complainant after obtaining the medical certificate of his wife Mst. Sairan P.W., went to the police station for registration of the case but the Moharrir of the police station turned him out and that thereafter he submitted an application to the S.P. Toba Tek Singh for registration of the case, who on the said application passed an order for legal necessary action and that the complainant alongwith the said application went to the police station for registration of the case but the police directed him to come to the police station on the following day of the election and that on 1‑12‑1987 he alongwith Rab Nawaz went to the police station where the police arrested him and Rab Nawaz in a false case. P.W.I Muhammad Shafi has also explained this delay in his statement as P.W.1. He while explaining the delay stated that he was arrested by the police on 1‑12‑1987 in a false case and was bailed out after one month and after his release from the jail he again tried for the registration of the case but the police did not register case against the accused. Mst. Sairan P.W.3 has also corroborated the complainant on this point to some extent by saying that the police had arrested her husband P.W.1 Muhammad Shafi after the occurrence and he was bailed out after about more than one month and that she tried for the registration of the case against the accused. In view of the aforementioned evidence I am satisfied that the complainant had explained the delay in lodging the complaint and the defendant has not been able to shake it. Moreover, in the circumstances of the case the persons sought to be prosecuted are police officials of the rank of S.I., A.S.‑1, etc., therefore, the explanation given by the complainant for delay appear to be much convincing and the conduct of the complainant in pursuing the matter does not run counter to the natural probabilities. The complainant did all what was possible for action against the accused and at last filed the complaint. In these state of affairs, I am fully convinced that the complainant does not suffer from unexplained delay and as such it is not a case of deliberate inordinate delay. In view of the factual position aforenoted which the learned counsel was unable to controvert, the delay of about 2/1‑2 months in lodging the complaint stands duly explained.

10. Learned counsel for the appellants next contended that the prosecution evidence was of partisan character and it was, therefore, not safe to base, conviction thereon. This contention, too, is devoid of any merit. It is true that Sairan and Muhammad lqbal P.Ws., are related to each other but as rightly observed by the learned Courts below, they were the natural witnesses of the occurrence which had taken place in their house. Out of them, Mst. Sairan P.W. herself the victim of violence perpetrated by the appellants as a result of which she had sustained as many as six injuries including the fractures of her right clavicle and a number of ribs. The evidence of these three witnesses also finds support from the medical evidence and is further corroborated by the testimony of Muhammad Nawaz P.W., who has been found by the Courts below to be an independent and disinterested witness and whose presence at the place of occurrence was admitted by the defence as his name was mentioned as an accused in F.I.R. No.182/87 lodged at Police Station Toba Tek Singh. In the circumstances, the learned Courts below were perfectly justified in relying upon the ocular testimony of the so‑called interested witnesses.

11. Learned counsel for the appellants also sought to assail the findings. of the Courts below regarding the defence plea taken by the appellants. Learned counsel contended that although the certified copy of the F.I.R., registered at Police Station, Sukkar City was not placed on the record nor was the copy of any order of the Magistrate declaring the accused of the said case as proclaimed offenders produced, yet there was enough material available on the record which proved that Nawab son of Moosa and Balawal son of Abdul etc., were proclaimed offenders in the case F.I.R. No. 190/84 registered at Police Station, Sukkar City under section 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, In support of his submission, learned counsel heavily relied upon the copies of the reports in Daily Diary Register of Police Station Toba Tek Singh Exhs.DB, DC, DD and DE. We have gone through these reports together with the evidence of Muhammad Iqbal, A.S.1. who appearing as DWA had produced the said reports. The reports Exhs.DB and DC no doubt show that there was a case registered at P.S. Sukkar City under section 10/11 of Ordinance VII of 1979 vide F.I.R. No. 190/84 and A.S.‑I. Fazal Hussain of the said Police Station had come to P.S. Toba Tek Singh on 10‑2‑1985 in connection with the investigation of that case but in none of these two reports, the names of the persons accused in the F.I.R. No. 190/84 were disclosed nor is it mentioned therein. that the accused in the said case were declared proclaimed offenders. The report Exh.DD recorded by Shafiqur Rehman, one of the appellants‑on the day of occurrence, of course, mentioned the names of Shaft (the complainant), Nawab son of Moosa, Balawal son of Abdul, Suleman son of Wali Muhammad, Fazal son of Ashiq, Bashir son of Abdul Raheem and Moosa son of Noor Muhammad as proclaimed offenders in the case F.I.R. No. 190/84 but it has not been relied upon by the learned Single Judge in the High Court for the reason that no corresponding order declaring the said persons as proclaimed offenders under section 87, Cr.P.C. was placed on record. The report Exh.DE which, too, was recorded on the day of occurrence viz. 27‑11‑1987 shows that the appellant Muhammad Iqbal, A.S.I. alongwith some constables left the Police Station in search of the proclaimed offenders aforementioned. It appears that the reports Exhs.DD and DE were fabricated and a case under sections 216, 186, 279, 337, 148 and 149, P.P.C. registered against Muhammad Shaft complainant and others vide F.I.R. No. 182/87 with a view to creating defence against any action that the complainant party might initiate against the appellants. This view of the matter finds support from the fact that most of the persons accused in F.I.R No.182/87, dated 27‑11‑1987 were not challaned and those who were challaned were either discharged or acquitted by the Magistrate and the appellants did not challenge the orders of the Magistrate in any appeal or revision. It may also pertinently be observed that although Muhammad Shaft was mentioned in the report Exh.DD as one of the accused/proclaimed offenders, it is admitted by D.W.1 that after his arrest on 6‑12‑1987 in the case F.I.R. No.182/87, he was not shown to have been arrested as proclaimed offender in F.I.R. No. 190/84 in any of the reports in the Daily Diary Registers of 1987 and 1988 nor was and report recorded regarding his transfer to Sukkar Police. This circumstances also supports the findings of the Courts below that the defence plea was fake and false.

12. Learned counsel sought to argue that according to the F. I. R. No.190/84 Nawab son of Moosa was one of the accused in the said case and that the said person was also shown present at the place of occurrence in the complaint filed by the complainant. This fact, in the submission of the learned counsel, supports the plea of the defence that the appellants had raided the house of Muhammad Shafi complainant after receiving the information that the proclaimed offenders were present there. We are not impressed by this submission because Nawab son of Moosa mentioned in the complaint had come to the scene of occurrence alongwith some other persons on hearing the alarm raised by Muhammad Shafi complainant and others. We also find that no suggestion was put to Muhammad Shaft complainant in cross‑examination that Nawab son of Moosa mentioned in his complaint was one of the accused in F.I.R. No. 190/84 and was a proclaimed offender. It may also be pointed out that the learned counsel on our query admitted that Nawab son of Moosa and other accused named in the F.I.R No. 190/84 were shown to be the residents of Multan while according to the tenor of the complaint, Nawab son of Moosa mentioned therein appeared to be the resident of Chak No. 397/JB where the occurrence took place. In the circumstances, we find no substance in the contention raised by the learned counsel.

13. Upshot of the above discussion is that the convictions of the appellants for offences under sections 148, 452 and 325/149, P.P.C. recorded by the trial Court and upheld by the High Court do not call for any interference by this Court. In the matter of sentence, however, we are inclined to take a lenient view as the appellants have also been dismissed from service in consequence of their convictions in this case. It is stated by the learned counsel that before the appellants were granted bail by this Court on 2‑3‑1993, they had already served out 7/8 months of their sentence of imprisonment. On our direction, the learned counsel pointed out that the appellants were on bail when they were convicted by the trial Court vide its judgment dated 18‑7‑1990. On preferring the appeals in the High Court, they were allowed bail on 15‑8‑1990. Their appeals were dismissed by the High Court on 25‑4‑1992 whereafter they filed petitions for leave to appeal when they surrendered before this Court and were arrested on 14‑6‑1992. They were allowed bail by this Court on 2‑3‑1993. This factual position is not controverted by the learned Assistant Advocate‑General. It is thus clear that the appellants had served the sentence of imprisonment for 7/8 months before they were bailed out by this Court. In the overall circumstances, we are satisfied that the sentence of imprisonment already served by the appellants shall meet the ends of justice. Their sentences are accordingly reduced to the period already undergone by them. The appellants are thus discharged of their bail bonds. With this modification/reduction in the sentences of the appellants, both the appeals are dismissed. N.H.Q./S‑1070/S Sentences reduced.