1974 P Cr (PLP)

Date of hearing: 10th February 1972. The appellants have been convicted under sections 452/34 and 366/34, P. P. C. by Mr. M. R. Khalid, Magistrate Section 30, Kot Addu Camp at Leiah, and sentenced to four years' rigorous imprisonment and a fine of Its. 1,000 each on each count. In default of payment of fine they were directed to undergo rigorous imprisonment for a further period of six months for each conviction. Manzoor Hussain the fourth accused was acquitted by the learned Magistrate.

2. The evidence is that one Mst. Gamo wife of Khadim Hussain had been abducted by Ghulam Raza appellant and was left with Muhammad Bashir (P. W. 1) for some time. Mst. Gamo came to know that Ghulam Raza had the intention to sell her away and she, therefore, indicated an intention to marry Muhammad Bashir P. W. The latter on her assurance instituted a suit for dissolution of marriage on her behalf. When Ghulam Raza appellant came to feted back Mst. Gamo he was told that she was not willing to accompany him. He, therefore, demanded compensation for her hand and about three or four days before the occurrence Muhammad Bashir P. W. paid him Rs.

350. It was the claim of Bashir P. W. that a receipt was written at the time of the payment of this money but this receipt was not produced during the investigation.

3. On the night between 30th and 31st of July 1968, the appellants along with their co‑accused Manzoor Hussain made a criminal trespass into the house of Muhammad Bashir (P. W. 1) which is situated in the area of village Chah Shahwala within the estate of village Naushera, Police Station Leiah in the District of Muzaffargarh. Ghulam Raza appellant was armed with a hatchet, Baqir had a gun while Bashir had a dang. Manzoor Hussain was holding the reins of the mare which was probably brought by the miscreants to carry away Mst. Gamo. The accused forcibly lifted Mst. Gamo. When Muhammad Bashir P W. tried to intervene he was given a dang blow by Bashir Ahmad appellant who fell down Bashir appellant fired from his gun in the air. On hearing a report of the gun, Rab Nawaz (P.W. 2), Manzoor Hussain (P. W. 3) and Jumma (P. W. 4) were attracted to the spot. Out of these witnesses, Jumma is the collateral of Muhammad Bashir and Rab Nawaz s his partner in cultivation.

4. The case was initiated on the basis of the statement Exh. P. A. made by Muhammad Bashir (P. W. 1) to A. S. I. Shamas‑ud‑Din at 6 a.m. on 31st of July 1968, at Mauza Kotla Haji Shah where the A. S. I. was present in connection with some other case.

5. The learned Magistrate in the first instance signed the order of conviction of all the accused in the case but on 21st of September 1971, he corrected his own order and while relying on the order written in Urdu on 3rd of September 1971, he observed that he meant to acquit Manzoor Hussain, but by an oversight mentioned his name also in his judgment dated 3rd of September 1971, as one of the convicts.

6. Ch. Muhammad Sardar Khan, the learned counsel for the appellants has argued that no conviction could be based on the state of evidence in this case. He submits that in the first instance the first information was lodged with the police after a delay of about eighteen hours. It is also his case that actually the statement of Muhammad Bashir P. W. was drawn up at the spot after deliberation and it is his case that the possibility of false inculpation is very much there. As to the ocular testimony, he has submitted that it was a dark night and it is not explained as to how the culprits were identified by the first informant. According to Muhammad Bashir, Rab Nawaz resides at a distance of two furlongs from the place of occurrence and Manzoor Hussain's house is still farther off. Rab Nawaz saw the culprits running away. His case was that he saw the culprits when he was at a distance of three or four karams from the house of Bashir P. W. and came there. He did not go inside. He appeared before the police four or five days after the occurrence. The statement of Rab Nawaz P. W. coupled with his conduct does not carry conviction and cannot be taken into account. Manzoor Hussain P. W. claimed to have identified only Ghulam Raza appellant. He stated that there were in all four culprits. It is not possible that Ghulam Hussain and Manzoor Hussain; whose houses are quite a long away off from the place of occurrence, could have been able to reach in time to identify the culprits who run away after committing the offence. The vicinity is surrounded by 200 to 250 houses and no person except Juma P. W. who is a collateral of Bashir P. W. came to the spot. The complainant had only one blunt weapon simple injury on his head and if the appellants were so armed as deposed to by the prosecution witnesses, one would expect larger number of injuries on his person.

7. One important missing link in the case is the failure of the prosecution to examine Mst. Gamo, the alleged abductee. It was admitted by Muhammad Bashir P. W. that she was with him at the time he gave evidence but she was not produced. Nor was she examined for any injuries on her person. Under the circumstances of the case a legitimate inference can be drawn that if Mst. Gamo would have been produced, she would have deposed adversely to the prosecution. The Investigation Officer was not produced either and the accused were deprived of the opportunity to cross examine him with respect to the circumstances under which he recorded the first Information report and investigated the case.

8. There is no corroborative evidence in the case, an empty was found at the spot and a gun was recovered from Baqir accused but neither the empty nor the gun was sent to the Ballistic Expert. There are reasons to believe that the report in this case was lodged after deliberation an innocent people are involved. I, therefore, allow this appeal and set aside the conviction and the sentences passed on the appellants. I direct that they shall be released forthwith unless they are required to be lawfully detained in any other case.

9. I cannot help making comments on the procedure adopted by the learned Magistrate in this case. Apart from the fact that his appreciation of evidence is faulty and he made a mis‑statement of fact in so far as he said that the house of Rab Nawaz is at a distance of three to four karams from the place of occurrence, he also adopted very unusual procedure of passing an order of acquittal in case of Manzoor Hussain about eighteen days after announcement of his judgment. I have perused the judgment dated 3rd of September 1971, and I find that the tread of the judgment clearly was that Manzoor Hussain was equally guilty along with his co‑accused. In his judgment he has definitely replied the defence plea raised by Manzoor Hussain. There is nothing in this judgment which shows that the intention of the learned Magistrate was to acquit Manzoor Hussain. The Urdu order claimed to have been written by the Magistrate himself was not in accord with the basic and detailed order passed in English. The two judgments from the Indian jurisdiction relied upon by the learned Magistrate are not helpful to him. The Legislature has placed a positive prohibition on the powers of a criminal Court to review its own judgment when it has been signed and announced, except for the purposes of correction of clerical errors. Where, after the delivery of a judgment, a question of judicial determination arises before a Court, it is left for correction to the higher Courts. The judgment dated 3rd of September 1911, was clearly a judgment of conviction and, in my view, the learned Magistrate exceeded his powers in writing an unreasoned judgment of acquittal in favour of Manzoor Hussain simply because he had recorded the acquittal of Manzoor Hussain in the brief order written in Urdu on 3rd of September 1971. The attention of the learned Magistrate shall be invited to this part of my order and my dis‑approval of his action shall be conveyed to him;

10. The appeal is decided accordingly. Appeal allowed.