2002 P Cr (PLP)

This judgment will dispose of two connected criminal appeals (being Criminal Appeal No. 12 of 2000) filed by Fatima Bibi (P.W.4) and the heirs of the complainant and the other (being Criminal Appeal No.23 of 2000) filed by Ghulam Hussain, convict‑appellant. 2.Ghulam Hussain, appellant alongwith Saif Ali, Sardar Ali son of Saif Ali Muhammad Hussain, Ghulam Hussain, Tufail, Muhammad Bashir, Safri, Sardar Ali Son of Gull Muhammad and Gull Muhammad stood trial for launching an attack upon Allah Ditta, deceased? complainant, his wife Mst. Fatima Bibi and his daughters Mst. Naseem Bibi and Rasheed Bibi. The Criminal Court, by its judgment, dated 8th September, 2000, convicted and sentenced Sardar Ali and imposed a fine of Rs.5,000 (Rupees five thousand) as Hakumat‑e‑Adl, whereas Ghulam Hussain, accused, was convicted and sentenced to Rs.20,000 (Rupees twenty thousand) as Hakumat‑e‑Adl Bashir, accused, was also convicted and sentenced with a fine of Rs.8,000 (Rupees eight thousand) as Hakumat‑e‑Adl which after realizing from the convict was ordered to be paid to the injured Allah Ditta, deceased, Fatima Bibi and Rasheed Bibi under section 15 of the .Islamic Penal laws (Enforcement) Act, 1974. The impugned judgment was assailed in an appeal before the District Criminal Court, Bhimber, by the convicts who were acquitted of the charge except Ghulam Hussain but a fine of Rs.20,000 (Rupees twenty thousand) imposed upon Ghulam Husain, accused‑respondent as Hakumat‑e‑Adl, was reduced to. Rs.15,000 (Rupees fifteen thousand), vide its judgment, dated 26th November, 2000. Feeling aggrieved, the heirs of the complainant have presented the instant appeal for enhancement of the sentence. Whereas Ghulam Hussain, convict‑appellant has also preferred an appeal for setting aside the aforesaid judgment of the Court below to his extent.

3. An oral report was made by Allah Ditta, deceased‑complainant on 1st April, 1985, at 12‑30 a.m. at Police Station (Chowki), Bhimber. It was alleged that he alongwith his brothers was in possession of land under Survey No.3612 Min measuring 40 Kanals for the last about ten to fifteen years and they had also built a `Dahara' over there. On 31st of March, 1985 at 10‑00 a.m. the officials of Forest Department dismantled the `Dahara'. The accused Saif Ali, Sardar Ali son of Saif Ali, Muhammad Hussain, Ghulam Hussain, Tufail, Muhammad Bashir, Safri, Sardar Ali son of Gull Muhammad, Gul Muhammad, Khadim Hussain and Muhammad Mushtaq who were animus with him and his brothers because of the dispute of said land, armed with hatchets and sticks, launched an attack upon him, his wife, Fatima Bibi and his daughters Rasheed Bibi and Naseem Bibi. Tufail, Sardar Ali and Muhammad Hussain attacked upon him with sticks. Saii Alt, Sardar and Khadim Hussain gave beating to Mst. Fatima Bibi. Safri, Mushtaq and Sardar Ali gave beating to Mst. Rasheed Bibi. Similarly, Sardar Ali, Khadim Hussain and Gull Muhammad attacked Mst. Naseem Bibi with sticks. On their hue and cry, Abdul Hameed, Noor Hussain and Abdullah arrived at the scene of occurrence and witnessed the incident. His Camy watch had fallen down during the attack.

4. On this report, a case under sections 147, 148; 149 and 447, A.P.C. read with sections 14/15, I.P.L. was registered. After necessary investigation, the challan except Khadim Hussain and Muhammad Mushtaq was presented against the accused‑persons on 11‑6‑1985 whereas after the arrest of Muhammad Mushtaq secondary challan was presented on 18‑9‑1985. The accused except Muhammad Mushtaq during the statement under section 242, Cr.P.C. denied the guilt and claimed the trial. On 19‑3‑1986, accused, Khadim Hussain was proceeded under section 512, Cr.P.C. On 15‑2‑1986, the statement of Muhammad Mushtaq, accused under section 242, Cr.P.C. was recorded who also denied the guilt and claimed the trial. The prosecution in support of its case produced Allah Ditta (P.W.2), Abdul Majeed (P.W.3), Mst. Fatima Bibi (P.W.4) Mst. Naseem Bibi (P.W.5), Mst. Rasheed Bibi (P.W.6), Muhammad Abdullah (P.W.7), Noor Hussain (P.W.8), Abdul Hameed (P.W.9), Waheed Akhtar Patwari (P.W.10) and Muhammad Ashraf Khan A. S. I. (P.W.12) alongwith Syed Mansha Hussain Shah, Ghulam Husain and Ibrar Haider, S.‑I. Police mentioned as P.Ws. in the secondary Challan, dated 18th September, 1985. The incriminating evidence was put to the accused‑persons as required by section 342, Cr.P.C. but they claimed to be innocent and submitted that they were falsely implicated in the account of dispute of land. No evidence was led by the defence.

5. After completion of the case, the trial Court arrived at the conclusion that the prosecution has succeeded to bring guilt home to the accused Sardar Ali son of Saif Ali, Ghulam Hussain, Muhammad Bashir, Saif Ali and Tufail. Saif Ali and Tufail had died, therefore, no order of conviction and sentence was passed against them whereas Sardar Ali son of Saif Ali, Muhammad Bashir and Ghulam Hussain were convicted and sentenced in the manner mentioned above. While other accused‑persons were acquitted of the charge vide its judgment, dated 8‑9‑2000. The conviction and sentence was challenged through an appeal before the District Criminal Court, which was allowed to the extent of Sardar Ali and Muhammad Bashir who were acquitted of the charge, whereas the sentence of imposing of fine of Rs.20,000 as Hakumat‑e‑Adl was altered and reduced into Rs.15,000 vide judgment, dated 26‑11‑2000. It is the aforesaid order and judgment which has been assailed before me through the instant appeal.

6. Muhammad Ayub Sabir, Advocate, the learned counsel for the convict‑appellant, Ghulam Hussain, has vehemently argued that the trial Court as well as the Appellate Court has recorded the order of conviction against Ghulam Hussain, appellant on flimsy grounds. He has submitted that the disputed land is admittedly in the possession of Forest Department, therefore, the question of criminal trespass does not arise. The learned counsel has contended that the F.I.R. was lodged after delay of 26 hours which adversely affects the prosecution case. The learned counsel has pointed out that the prosecution witnesses are closely related to the deceased‑complainant. Mst. Fatima Bibi is wife of the complainant whereas Mst. Naseem Hibi and Mst. Rasheed Bibi are his daughters. Similarly, Abdul Majeed is his real brother, Abdullah is nephew and Noor Hussain is his uncle. On this account the evidence of closely related and interested witnesses could not be relied upon. The learned counsel has pressed into service the submissions that according to the F.I.R. Fatima Bibi (P.W.4) was injured by Saif Ali, Sardar Ali and Khadim Hussain and to this respect no injury was attributed to the accused? appellant, Ghulam Hussain, but the trial Court as well as the District Criminal Court fell in error while recording an order of conviction against Ghulam Hussain on the allegation of making an assault and causing injury upon the person of Mst. Fatima Bibi. The learned counsel has maintained that the charge as required by section 242, Cr.P.C. relating to the injuries on the person of Mst. Fatima Bibi, was not framed against Ghulam Hussain, accused, thus, the order of conviction cannot be sustained. He has also argued that during the statements recorded under section 342, Cr.P.C. while seeking explanation by Ghulam Hussain, appellant alongwith Sardar Ali and Muhammad Hussain, accused? respondents, the date of occurrence was put to them as 30th of March, 1985, whereas the alleged occurrence took place on 31st March, 1985, therefore, the order of conviction is liable to be set aside on this score only. The learned counsel has laid much stress upon the fact that Mst. Fatima Bibi in her statement under section 161, Cr.P.C. Exh. D.A., has categorically stated that she was injured by Sardar Ali, Saif. Ali and Khadim Hussain and did not disclose as to whether she was assaulted by Ghulam Hussain, accused. Therefore, her improvement during the statement before the Court, implicating Ghulam Hussain, accused? appellant makes the case of the prosecution suspicious and doubtful. The learned Counsel has further argued that Noor Hussain (P.W.8) has not attributed any overt act to Ghulam Husain, appellant. The learned counsel has vigorously contended that the statement of Parvaiz Akhtar (P. W .11) could not be recorded, therefore; the fact of alleged injury was not supported by medical evidence which adversely affects the prosecution tale. However, the learned counsel has defended the impugned judgment to the extent of Sardar Ali and Muhammad Bashir accused‑persons.

7. On the other hand, Ch. Munsif Dad, Advocate, the learned counsel for the complainant, has controverted the arguments addressed by the learned counsel for the appellant and the accused‑respondents, Sardar Ali and Muhammad Bashir. He has submitted that the trial Court has recorded the order of the conviction and sentence in a lawful manner which does not shack of any infirmity or illegality. The learned counsel has argued that the prosecution has proved its case through ample and cogent evidence but the District Criminal Court fell in error while passing an order of acquittal in favour of Sardar Ali and Muhammad Bashir, accused‑respondents and reducing the amount of Hakumat‑e‑Adl from Rs.20,000 to Rs.15,

000. The learned counsel has further maintained that during the occurrence Mst. Fatima Bibi was severely injured and her right wrist was fractured but she could not get any relief from the Court for the last sixteen years.

8. Sardar Muhammad Raziq Khan, the learned Additional Advocate‑General appearing on behalf of the State, has fully owned and supported the arguments advanced by the learned counsel for the complainant.

9. I have given my dispassionate thought to the arguments addressed at the Bar It is admitted on the record that P.Ws. are closely related to the complainant but except Muhammad Abdullah (P.W.7) no one has any animus with the accused‑persons. Therefore, their evidence cannot be brushed away. It is now well‑settled position of law that the evidence of related witnesses cannot be ignored simply on the ground of their relationship with the complainant‑party unless it is established that the witnesses were inimical and interested.

10. Coming to the present case, Allah Ditta, complainant, Mst. Fatima Bibi (P.W.4), Mst. Naseem Bibi (P:W.5) and Mst. Rasheed Bib, (P.W.6) have received injuries in the incident, thus, their presence at the scene of occurrence cannot. be doubted rather the presence of injuries on their persons support the prosecution story.

11. There is another aspect of the case which was not at all attended to by the Courts below. The perusal of the statements of Mst. Fatima Bibi, Mst. Rasheed Bibi and Mst. Naseem Bibi disclose that their testimony was not challenged in cross‑examination' on the material points of the prosecution story. Under Article 133, Qanun‑e‑Shahadat Order 10 of, 1984, it was the bounded duty of the defence to cross,‑examine the P.Ws. on the important and material particulars of the prosecution version. It is also well‑established rule of evidence that a party should put to each of witness appearing against him all the questions relevant to the particular witness and if such questions are not asked, the Court can presume that such deposition has been accepted. A simple suggestion in cross‑examination which is denied by the witness is no evidence at all.

12. Following the above‑stated principle, I have carefully perused the evidence of P.Ws. (i)???????? Fatima Bibi (P.W.4) has categorically stated that Sardar Ali son of Saif Ali inflicted injuries on the right shoulder of her husband, Allah Ditta, whereas Ghulam Hussain caused a blow of stick on his wrist, resultantly her arm was fractured. (ii)??????? Mst. Naseem Bibi (P.W.5) deposed before the Court that Sardar Ali alongwith Saif Ali attacked upon the right arm of her father. Ghulam Hussain accused, inflicted an injury on the right arm of her mother, Mst. Fatima Bibi, with a stick, consequently her arm was fractured whereas Bashir, accused, struck with stick upon her sister, Mst. Rasheed Bibi. (iii)?????? Mst. Rasheed Bibi (P.W.6) testified that her father, Allah Ditta, was attacked by Sardar Ali. She also stated that Ghulam Hussain inflicted an injury on the right arm of her mother, Mst. Fatima Bibi, whereas Muhammad Bashir struck with the stick upon her hands and head. She further stated that Gull Muhammad and Sardar Ali caused blows of stick upon her sister, Mst. Naseem Bibi. (iv)?????? Abdul Majeed (P.W.3) has also deposed that Sardar Ali, Ghulam Hussain and Bashir, accused‑persons have beaten Allah Ditta, complainant, his wife Fatima Bibi and his daughters Mst. Naseem Bibi and Rasheed Bibi.

13. Allah Ditta, complainant, has furnished the details of the occurrence and fully supported the prosecution story but all the above noted statements were not challenged and rebutted in the cross ?examination on the important points of prosecution evidence. The trend of cross‑examination by the learned counsel for the defence shows that he was interested to ask about the possession of disputed land and dismounting of `Dhara' and did not try to controvert the evidence relating to the material points of prosecution tale. In such state of affairs, when the evidence of P. Ws. particularly the injured P. Ws. was not challenged and rebutted in the cross‑examination it would be legally presumed to have been proved. (1997 MLD 2013). Although Noor Hussain (P.W.8) 'has not particularly mentioned the name of Ghulam Hussain, accused, in his statement but he has otherwise supported the prosecution story.

14. So far as the statements of Abdul Hameed, Ghulam Hussain and Mansha Hussain P.Ws. are concerned, are not relevant to the present parties before the Court, therefore, I do not want to discuss the same in detail.

15. I also do not find any substance in this argument of the learned counsel for the defence that the delay in F.I.R. has adversely affected the prosecution story because the place of occurrence is a far‑flung hilly area, therefore, delay in lodging F. I. R. cannot be taken to mean that prosecution wanted to fabricate viable prosecution case. It may be noted that delay cannot be itself be held to be a reasons for rejecting the evidence which is otherwise fully entitled to credit. It is only a circumstance which puts the Court on the guards. In the present case an oral F.I.R. was lodged by the complainant while he was injured alongwith his injured wife and daughters who had furnished full particulars of the occurrence, the names of accused and the witnesses, thus, it is a truthful account eliminating possibility of substitution or false implication.

16. As far as an objection regarding the statements recorded under section 342, Cr . P. C. is concerned, suffice to note that according to the prosecution case the date of occurrence is 31st March, 1985, and mentioning of March 30, 1985, is just a slip of pen. Furthermore, all the material fact and circumstances which were intended to be used against the accused‑persons were put to them, thus, they were provided with an opportunity to explain the same. In this view of the matter, no prejudice to the accused persons has occurred. It is a celebrated principle of criminal jurisprudence that an inadequate examination under section 342, Cr.P.C, cannot be made a ground for setting aside the conviction unless it is proved that it has resulted in miscarriage of justice. (PLD 1956 SC (India) 303).

17. I am also not impressed by this contention of the learned counsel for the defence that the role of inflicting injuries on the person of Mst. Fatima Bibi was not attributed to Ghulam Hussain, accused, neither in the F.I.R. nor in her statement recorded under section 161, Cr.P.C., thus, the testimony of Mst. Fatima Bibi is not worthy of any credence. It will be relevant to note that it will be wrong to treat the F.I.R. as a sacrosanct or a piece of substantive evidence. The primary purpose of the F.I.R. is to inform the Police about the commission of a cognizable offence. In the light of peculiar circumstances of the case, when 11 persons launched an. attack upon the complainant‑party, it was not possible for the complainant to give the details of the oecurrence while he was injured alongwith his wife and daughters, therefore, this fact alone is not sufficient to exonerate the accused‑person of the charge particularly when the prosecution case stands proved by ample, sufficient and. cogent evidence and above all their statement were not challenged in the cross?examination on the material particulars of the prosecution case.

18. After careful appraisal of the evidence stated above, I have arrived at the conclusion that District Criminal Court, Bhimber, fell in error while acquitting Sardar Ali and Muhammad Bashir, accused‑persons of the charge and reducing the amount of Hakumat‑e‑Adl from Rs.20,000 to Rs.15,

000. The learned First Appellate Court failed to appreciate the prosecution evidence in its true perspective and recorded the impugned judgment in a hasty manner contrary to the canons of justice without a proper and careful evaluation of the prosecution evidence. The learned Appellate Court has also failed to take note of the fact that the defence did not cross‑examination and rebut the prosecution evidence upon its main story and material points. In this view of the matter, the impugned judgment cannot be sustained. For the reasons listed above, I accept the appeal, (filed by the heirs of the complainant) set aside the impugned judgment of District Criminal Court, Bhimber, dated 26‑11‑2000. Consequently, the judgment of Tehsil Criminal Court, Bhimber, is maintained and appeal filed by Ghulam Hussain, convict, stands dismissed. N.H.Q./38/Sh.C.(A.J&K)??????????????????????????????????????????????????????????????????? Order accordingly