1994 P Cr (PLP)

Muhammad Din, Muhammad Anwar, Pehlwan, Allah Ditta, Riaz Ahmad, Dost Muhammad, Muhammad Hanif, Karam Din, Sher Ali, Sardar Ali, Muhammad Aslam and Sarwar alias Shaukat Ali appellants alongwith Rehmat, Muhammad Ishaque and Muhammad Sharif, were sent up by Police Station Chunian, for trial, for an offence under section 448/436/336/379/148/ 149, P.P.C. Rehmat, Muhammad Ishaque and Muhammad Sharif died before conclusion of the trial. The rest were tried by a Magistrate Section 30, Kasur, who vide his judgment, dated 28-1-1988, found them guilty under section 148/ 436/148/325/149, P.P.C. and convicted and sentenced Muhammad Din, Muhammad Anwat, Pehlwan, Allah Ditta, Dost Muhammad, Muhammad Hanif, Karam Din. Sher Ali, Riaz Ahmad, Muhammad Aslam and Sardar Ali except Muhammad Satwar to one year R.I. with a fine of Rs.1,000 or in default four months' S.I. each under section 148, P.P.C. Sarwar alias Shaukat Ali was however convicted and sentenced till rising of the Court with a fine of Rs. 1,000 or in default, four months' S.I. All of them were further convicted under section 436/149, P.P.C. to five years' R.1. each with a fine of Rs.2,000 or in default, six months' S.I. each. Sarwar was again convicted for the abovesaid offence till rising of the Court with a fine of Rs.5,000 or in default one year S.I.. All of them were further convicted under section 325/149, P.P.C. to two years' R.I. each with a fine of Rs.1,000 each or in default four months' S.I. each, except Sarwar, who was convicted till the rising of the Court with a fine of Rs.1,000 or in default four months' S.I. The convicts have appealed. Complainant Muhammad Sharif has also filed a revision petition, seeking enhancement of sentences of the convicts.

2. Prosecution story in brief as disclosed in the F.I.R. lodged by Muhammad Ismail, was to the effect that Muhammad Sharif had purchased 7 Marlas of land on the roadside from Muhammad Din, resident of Mauza Mai Rabo for a consideration of Rs.5,

000. The first informant's father Ghulam Muhammad in partnership with said Muhammad Sharif had constructed two rooms alongwith a Jhughi for doing business of Kerosine Oil and Diesel Oil. The first informant used to look after the business. With regard to the sale of land Muhammad Sharif P.W. had obtained receipt from Muhammad Din as well. Fifteen/Twenty days earlier Muhammad Din had asked the first informant's father to vacate the land whereupon Muhammad Sharif filed civil suit and obtained status quo. On 9-8-1985, at about 6 p.m. the first informant with Muhammad Sharif was present at their shop, when Muhammad Din, Shaukat Ali, Muhammad Anwar, Allah Ditta, Pehlwan, Riaz Ahmad, Dost Muhammad, Muhammad Hanif, Karam Din, Sher Ali, Sardar Ali, Muhammad Aslam and Sarwar appellants came there in a Wagon. Muhammad Din, who was armed with a gun fired in the air. It was followed by Pehlwan who also fired with his pistol whereupon all the accused persons set the Chhapper on fire. They threw down all the drums containing Diesel and Mobil Oil and chairs, tables, cots and beds lying in the Chhappar caught fire. Muhammad Sharif beseached the accused whereupon Shaukat, Anwar, Riaz, Karam Din and Dost Muhammad gave Soti blows to Muhammad Sharif. During scuffle Muhammad Aslam, Pehlwan and Muhammad Sharif forcibly took away Rs.6,540 from the pocket of the first informant. His wrist watch was taken away by Muhammad Ishaque. Injured Muhammad Sharif was taken to hospital by Ahmed Ali, brother of the first informant. While leaving the spot the accused persons took Kerosine Oil and Diesel with them. The first informant out of fear went to his Village Rabo Wal. The occurrence was witnessed by Basharat Ali,- Nazir Ahmed and Muhammad Tufail. Statement Exh.P.A. was lodged by Muhammad Ismail P.W.1. It was recorded by Abdul Karim, A.S.I., P.W.5. at Theeng Morre at 11 a.m. on 5-8-1985. F.I.R. Exh.P.A./1 was lodged the same day at 11-40 a.m. on the basis of the statement which was registered by Muhammad Masood, Muharrar Head Constable, Police Station Chunian, with regard to an occurrence which took place on 14-8-1985 at 6-00 p.m. in Adda Mai Rabo, 18 miles from Police Station Chunian. Abdul Karim, A.S.I., P.W.5 on 15-8-1985 at 11-00 a.m. at Theeng Morre after recording the statement Exh.P.A. of Muhammad Ismail went to the spot and prepared site plan Exh.P.D. He took into possession ash and one polythene bag from the spot vide memo. Exh.P.B. He got the photographs of the spot prepared from a Photographer. He recorded the statements of the witnesses on 16-8-1985. On 24-8-1985 he effected recovery of Sota from some of the accused. The case was investigated by Qurban Ali, S.I., who had died before making the statement. After usual investigation challan was submitted in Court.

3. Prosecution in support of its case produced 8 witnesses in all. Eye?witness account was furnished by Muhammad Ismail, Muhammad Sharif and Nazir Ahmed, P.Ws. 1, 4 and 8, respectively. Ghulam Muhammad, P.W.2 had witnessed the recovery of ash and Mobil Oil from the spot. He had signed the recovery memos. P.W.3, Dr. Muhammad Rafi, M.O. Civil Hospital, Pattoki, on 15-8-1985 at 11-00 p.m. examined Muhammad Sharif and found twelve injuries on his person. All of them were caused with blunt weapon. Injuries Nos. 3 and 12 were declared grievous. P.W.5 Abdul Karim, A.S.I., had recorded the complaint Exh.P.A. on the statement of Muhammad Ismail at Theeng Morre and investigated the case as well. P.W.6 Muhammad Aslam had taken photographs Exhs.P.E., P.F., P.G., P.H. and P.J. of the spot on the asking of the police. P.W.7 Allah Ditta had witnessed the recoveries of various articles at the instance of the appellants. At the conclusion of the prosecution evidence appellants were examined without oath wherein they pleaded innocence. They also appeared on oath in their defence and pleaded innocence. It was contended by learned counsel for the appellants that the prosecution could not prove its case against the appellants beyond doubt. Submitted that there was an unexplained delay in the registration of case which created serious doubt in the authenticity of the prosecution evidence. Argued that the police during investigation came to the conclusion that no offence under section 379, P.P.C. regarding theft was made out and the appellants were not even challaned for the said offence clearly indicates that the witnesses were not truthful especially under the circumstances when this action was not even challenged. Argued that no reliance on the eye-witness account could be placed because they had made material improvements. It was argued that if the eye? witnesses were present at the spot they would have taken the injured to the hospital which was not done nor their statements were recorded the same day. Contentions were opposed by learned counsel for the State as well as learned counsel for the complainant. According to the learned counsel for the complainant the witnesses were confidence inspiring and could be relied upon without corroboration.

4. I have heard the learned counsel and gone through the evidence with his assistance. Recovery of Sotas at the instance of the appellants would A not be of much help because none of them was stained with blood. No fire-arm from any of the convicts was secured nor any empty was recovered from the spot. The occurrence in the instant case took place on 14-8-1985 at 6-00 p.m. whereas complaint Exh.P.A. was got registered by Muhammad Ismail, PWA, on 15-8-1985, at 11 a.m. that also not at the police station but at Theeng Morre. Said Muhammad Ismail was not injured. There is no plausible explanation with regard to the delay in the registration of case. It is also borne out from the record that both the eye-witnesses, Muhammad Ismail and Nazir Ahmed, had not received any injuries nor they had taken Muhammad Sharif injured P.W. to the Hospital yet there is no explanation why either of them did not inform the g police. In these circumstances it is held that there is delay in the registration of case which is fatal. The ocular account has been furnished by Muhammad Ismail, Muhammad Sharif and Nazir Ahmed, P.Ws. 1, 4 and 8 respectively: Muhammad Sharif, PWA was injured as well. Muharhmad Ismail, P.W.1, had got the case registered on 15-8-1985, at 11 a.m. He had given detailed account of the occurrence. His explanation with regard to the delay is that while the occurrence was going on a bus came and he boarded the same and went to Rabo Wal, his village. Thereafter he came back and got the case registered. This witness was disbelieved as far as the theft is concerned because no charge under section 379, P.P.C. was framed. He was present at the spot as a business partner yet he neither bothered to take the injured to hospital nor informed the police about the incident. He has not given any details who set the Chhapper on fire nor specific injuries to Muhammad Sharif. Nazir Ahmad, P.W.8 supported the prosecution case by stating that he was present at the spot as he wanted to buy oil from the shop. In the meanwhile the appellants came and committed the occurrence. The witness did not state anything about the commission of theft. In cross-examination he was confronted with number of improvements for which he had no answer. He had not given any explanation why he did not take the injured to hospital or informed the police about the occurrence. According to his statement immediately after the occurrence he boarded, a bus and went to his village. His statement was recorded by the police after 3/4 days of the occurrence. As far as Muhammad Sharif is concerned he is injured. His presence at the spot cannot be doubted. He had stated that the appellants had committed the theft. In Court he had stated that Dost Muhammad, Muhammad Riaz, Anwar, Shaukat and Karam Din injured him whereas in his statement before the police he had not named Anwar, Shaukat and Karam Din. He was duly confronted with his earlier statement but could not give any explanation. According to him after the injury he fell unconscious and was taken to the hospital on the following day. He admitted that civil litigation between him and Muhammad Din appellant was going on. After going through the statement of the witnesses it is held that it does not inspire confidence. As far as Muhammad Ismail and Nazir Ahmed are concerned their presence at the spot is highly doubtful. If they were present at the spot they should have taken the injured to the hospital or informed the police about the occurrence. There was no reason why they should have boarded a bus and gone to their village leaving the injured unattended. They were not stranger to the injures because Muhammad Ismail P.W. was business partner of the injured. Secondly if they were present at the spot they should have received some injuries. As far as Muhammad Sharif is concerned his uncorroborated statement cannot be relied upon. He has been disbelieved as far the assertion that the appellants had committed the theft at the shop is concerned. He has not specifically named anyone responsible for setting the Chhapper on fire. He has made material improvements and tried to rope in so many people as possible. When confronted he could not give plausible explanation. Even otherwise he is interested witness because of litigation with Muhammad Din appellant. As far as corroboration is concerned, as already discussed none is available on the file. In these circumstances it is not safe to rely upon uncorroborated testimony of the witnesses. For what has been discussed above, it is held that prosecution evidence does not inspire confidence. Therefore appeal is accepted and the convictions and sentences of the appellants are set aside. They are on bail, their bail bonds shall stand discharged. N.H.Q./M-888/L???????????????????????????????????????????????????????????????????????????????? Appal accepted.