1989 PLP 3239 (MLD)

(1) A contused swelling 6 c.m. x 2 c.m. on right eye brow. (2) A contused swelling 4 c.m. x 3 c.m. on front of nose. (3) A contused swelling 4 c.m. x 2 c.m. on lower margin of right side of cheek. In the opinion of the doctor, all the injuries were caused with a blunt weapon and on the receipt of the report of the Radiologist, injury No.2 was declared grievous while the other injuries were found simple. The grievous injury had caused a fracture on the tip of the nose of Muhammad Siddique, P.W.7.

7. On the same night, P.W.8 Muhammad Nazir was also examined by the said doctor and the following injury was found on his person:- "Contused swelling 4 c.m. x 3 c.m. on front of nose." The injury had been caused with blunt weapon and was kept under observation and on the receipt of the report of the Radiologist, this injury was declared grievous. It may be stated here that P.W.4, Dr. Muhammad Yaqoob Radiologist, had appeared to prove the X-ray reports.

8. On the same night (14-1-1987) at about 12.30 mid-night, Sardar Shah, A.S.I. P.W.5, who was then posted as Head constable at Police Station Sadar, Sargodha, alongwith Mukhtar Ahmed and Muhammad Nazir, FCs., were present in Chak No.33-NB, near Railway Crossing, when they saw two persons coming on a motorcycle from Bhalwal side. The police party stopped the motorcycle and conducted a search of the aforesaid two persons. On the search of Mazhar Iqbal, appellants, a Khanjar P.11, a revolver P.12, with ten cartridges P.12/1-10 (five live and five missed cartridges), a purse containing Rs.75, P.8/1-6 and National Identity Card P.9 of Muhammad Siddique, P.W.7, the complainant, were recovered. On the search of Muhammad Amir appellant, a carbine P.5, a live cartridge of .12 bore, P.6. a purse containing Rs.55 P.3/1-2 and National Identity Card P.4 of Muhammad Nazis, P.W.8, were recovered. The motorcycle on which, they were riding was without number plate and the same was also taken into possession by Sardar Shah, H.C., P.W.5. The appellant Mazhar Iqbal had produced a valid licence P.13 for keeping the revolver P.12 but he could not produce any licence for keeping Khanjar P.11. The appellant Muhammad Amir also could not produce any licence for keeping the carbine P.5 in his possession. In the meantime, Kalim Ahmed Sherazi, S.H.O., P.W.9 also reached there and the Head Constable Sardar Shah, P.W.5, produced all the articles seized from both the appellants. Motorcycle P.1 was taken into possession vide recovery memo. Exh. P.X. Purse P.2 containing Rs.55 P.3/1-2, Identity Card, P.4 recovered from the possession of Muhammad Amir, appellant, were taken into possession vide recovery memo. Exh. P.J. Carbine P.5 of .12 bore alongwith one live cartridge P.6 recovered from Amir, appellant was also taken into possession vide recovery memo. Exh. P.K. Purse P.7 containing Rs.75 currency notes P.8/1-6. Identity Card P.9 and a note book P.10 recovered from the possession of Mazhar Iqbal, appellant, were taken into possession vide recovery memo. Exh. P.L. Khanjar P.11, revolver P.12 alongwith ten live cartridges P.12/1-10 and the arm licence P.13 recovered from Mazhar Iqbal appellant were also taken into possession vide recovery memo. Exh. P.M. All these recoveries were supported by Sardar Shah, H.C. P.W.5 and the S.H.O., Kalim Ahmad Sherazi, P.W.9.

9. Muhammad Rafique P.W.6, who is the real brother of Muhammad Siddique, complainant P.W.7, produced a receipt P.14 in respect of the purchase of motorcycle P.1 which was also taken into possession by Kalim Ahmed Sherazi, S.H.O., P.W.9, vide recovery memo. Exh.P.N. According to the receipt, Muhammad Rafique, P.W.6, had purchased the said motor cycle by having made a payment of Rs.18,500 to the firm M/s. Irfan Traders, Sargodha.

10. On 18th of January, 1987, the Assistant Commissioner/S.D.M Sargodha, directed Abdul Qadir Jasra, Magistrate 1st Class, Sargodha, to conduct identification parade in respect of the appellants. The application Exh. P.D. in this regard was presented before the Magistrate on 19th of January, 1987 and the Magistrate directed the Superintendent Jail to arrange for the identification parade. The Magistrate also directed Police Station Sadar Sargodha to produce the witnesses on 20th of January, 1987 for identification parade. On 206 o1 January, 1987, the identification parade was held in District Jail, Sargodha. Both the appellants raised objection as against the identification parade and stated that they had been shown to the witnesses. During the identification parade. Muhammad Nazir P.W.8, failed to identify any of the appellants. Muhammad Siddique, complainant, correctly identified both the appellants. 11, To prove its case at the trial, the prosecution placed reliance upon the testimony of the complainant Muhammad Siddique P.W.7 and Muhammad Nazis P.W.8 coupled with the recovery of motorcycle and purses from the appellants soon after the occurrence when they were apprehended by Sardar Shah, P.W.5, Head constable during a Naka Bandi. The prosecution also placed reliance upon the medical evidence and to further corroborate its version, the evidence as to identification parade was also pressed into service.

12. When examined under section 342; Cr.P.C., the appellant Mazhar Iqbal denied the charges against him and stated that he had been falsely implicated in this case by one Riaz Hussain who was a Shia by sect and he belonged to his village with whom, he had an enmity being a Sunni by sect. The appellant Mazhar Iqbal further stated that the said Riaz Hussain got him arrested through Sardar Shah, H.C., P.W 5 and Kalim Ahmed Sherazi, S.H.O., P.W.9 on the night between 2-1-1987 and 3-1-1987 from his residential house from where his licensed revolver. P.12 alongwith its licence P.13 were taken into possession. It was also stated by the appellant that a false case vide F.I.R. No.727, dated 30-12-1986 under the provision of section 17 of Ordinance VI of 1979 was registered against him but he was got discharged on 29-1-1987. The appellant also volunteered to make a statement under section 340(2) Cr.P.C. In defence, the appellant Mazhar Iqbal also produced Muhammad Munawar D.W.1, who stated that he knew one Riaz Hussain of his Chak who was Shia by sect. The witness further stated that in the month of August, 1986, a fight took place between Shias and Sujaras of his Chak who were Sunnis and at the instance of Riaz Hussain, a criminal case was registered against Sujaras, which included real uncle and first cousin of the appellant Mazhar Iqbal. According to the defence witness, the appellant Mazhar Iqbal was arrested from his residential house in the early hours of morning of 3rd of January, 1987. The witness alongwith 7/8 other persons of the Chak went to Police Station Sadar Sargodha on 6-1-1987 to enquire about the appellant Mazhar Iqbal and he alongwith 7/8 other persons appeared in defence of the appellant with regard to this dacoity case. On the next day, they again visited the police station, when the S.H.O. informed them that the appellant was innocent and he would be released soon. According to the defence witness, the appellant was of good moral character and was not involved in a criminal case. In his statement recorded under section 342, Cr.P.C. the appellant stated that he has been falsely implicated in this case or. account of enmity of Shia sect headed by Ring Hussain.

13. The appellant Muhammad Amir, when examined under section 342, Cr.P.C. stated that his father was personal servant of one Mushtaq Hussain, a Councillor, and due to old age, his father left the service and Mushtaq Hussain then asked the appellant to become his servant but he refused because he was offered Rs.600 per month as salary whereas; he could earn Rs.35 per day as a labourer. According to the appellant, the refusal on his part to join the service of Mushtaq Hussain Councillor, made the Councillor his enemy who was thus responsible for his false involvement in this case. The appellant Amir further stated that he was arrested from his house on 10th of January, 1987 by Kalim Ahmed Sherazi, S.H.O. P.W.9 vide F.I.R. No.727, dated 30-12-1986 and was got discharged on 29-1-1987. The appellant, however, did not choose to make a statement under section 340(2), Cr.P.C., nor he led defence evidence. 13-A.With the assistance of the learned counsel for the appellants and the State, we have carefully perused the record, and we have also heard the various contentions raised by both the learned counsel.

14. The leaned counsel for the appellants contended that the occurrence did not take place at Isha time as alleged by the prosecution, inasmuch as, the time of the occurrence was belied by the medical evidence. The learned counsel drew our attention to the statement of the doctor, who had examined both Muhammad Sidique P.W.7 and Muhammad Nazir P.W.8, and had opined that the injuries had been received within a duration of seven hours. On this basis, it was vehemently argued, that the occurrence must have taken place at about 4.45 p.m. and not at Isha time. We are least impressed by this argument, because the learned counsel overlooked the fact that duration of injuries was seven hours, and therefore, difference of three to four hours on either side can take place. On the other hand, this fact corroborates the prosecution case, that the injuries were in fact caused at Isha time. Hence, we repel the arguments raised by the learned counsel for the appellants.

15. It was next contended that P.W.3 Abdul Qadir Jasra, a Magistrate conducted the identification parade when both the appellants raised objections to the effect that they had been shown to the witnesses. Learned counsel however, could not cite any law in support of this argument. We are afraid that this contention too has no merit. The only duty cast upon the Magistrate while holding the identification parade was to note down the objection if any by the accused. In this case, we have gone through the proceedings of the identification parade, the learned Magistrate had faithfully recorded the objections raised by the appellants that they had beers shown to the witnesses. Had it been so, P.W.B Muhammad Nazir would not have failed to identify. P.W.7 Muhammad Siddique Who had seen the faces of the appellants in the light of the motor-cycle had successfully identified the appellants. In this view of the matter, we further hold that the identification parade corroborates the prosecution version and lends strength to it.

16. The prosecution story rings true, inasmuch as soon after the occurrence both the appellants were apprehended alongwith the motor-cycle which they had snatched from the complainant by the police party during the Naka Bands, and also recovered the articles from the appellants belonging to Muhammad Siddique and Muhammad Nazir, P.Ws, and soon thereafter, the Incharge of the. Naka Bandi had produced the motor-cycle and the articles before the Investigating Officer, and these- articles were identified by the P.Ws. There is nothing on the C record to show that the proceedings of the seizure of these articles and the apprehension of the appellants was fictitious or had been fabricated with a view to involve the appellants falsely. There is hardly any enmity worth the name between the police officers and the appellants. We are, therefore, of the view that the prosecution version is free from all doubts.

17. We have carefully examined the defence plea raised by both the appellants. Appellant Mazhar Iqbal also produced Muhammad Munawar D.W.1 in support of his plea. In nutshell plea raised by Mazhar Iqbal was that he had been involved on account of sectarian enmity in the village at the instance of one Riaz Shah, who was a Shia, while the appellant was Sunni. Similarly, Muhammad, Amir appellant stated that he had been falsely involved at the instance of Mushtaq a councillor with whom he had refused to work. Both these defence pleas in our view are baseless, inasmuch as, there is nothing on the record to indicate any connection between P.W.7 Muhammad Siddique and P.W. 8 Muhammad Nazir and aforesaid Riaz and Mushtaq so as to infer a collusion between them for the false involvement of the appellants. We have therefore, no hesitation to reject the defence plea. We are impressed by the truthfulness of the testimony of both the witnesses subject of the crime. They had no animosity so as to go to the extent of involving the appellants falsely in this case. ,

18. Upshot of the above discussion is that the prosecution has established its case beyond any shadow of doubt, and therefore, we find no merits in this appeal and the same is hereby dismissed. Conviction and the sentences of the appellants are maintained. SA./M-1267/L Appeal dismissed.