1986 P Cr (PLP)

Aziz‑ur-Rehman for the State. Date of hearing: 17th February, 1986. This is a revision petition by Sher Muhammad petitioner, against the judgment of the learned Sessions Judge. Khushab, dated 1‑10 1985, dismissing his appeal. Earlier, a First Class Magistrate of Naushera, by his judgment, dated 29‑9‑1985 had convicted the petitioner under section 456, P.P.C. and sentenced him to one year's rigorous imprisonment.

2. The prosecution case in brief is that Mian Muhammad H.C., complainant P.W.1, was sleeping in his house in Village Dhadhar on the night between 28/29‑11‑1984. He heard noise a little after mid‑night and saw that Sher Muhammad, accused, was opening the lock of the room of his house. The complainant caught hold of the accused and kept him there till morning and then took him to the house of Shah Muhammad P.W.2, where Sher Afzal P.W.3 his relative was also there. They then want to register the case. The police refused to register the case. The complainant met Shaukat Mehmood Bajwa D.S.P. on 30‑11‑1984. The D.S.P. took Mian Muhammad P.W. to the police station and lodged the F.I.R. The case was investigated by A.S.I. Muhammad Jamil who arrested the accused.

3. Sher Muhammad, accused, was arrested on 1‑12‑1984. Since he had injuries on his person, he was sent to Dr. Sher Afzal D.W.1, who found fifteen blunt weapon injuries on his person, of which three were multiple. Both the trial Court and the appellate Court found the accused guilty and convicted and sentenced him, as stated in pare. 1 above.

5. I have heard the arguments of the learned counsel for the petitioner and the State. On behalf of the petitioner it is submitted that the petitioner was caught by Mian Muhammad H.C. P.W.1, who was then working in the office of the D.I.‑G., Headquarters, Lahore, that he was beaten by the said Police Officer and that to cover up the assault, a false case was registered against the petitioner. During the arguments it was not clearly stated whether the petitioner was apprehended or where he was beaten by Mian Muhammad H.C. P. W .1. To Mian Muhammad P.W. 1 it was put in cross‑examination that they had caught hold of the petitioner from some place outside, that they had beaten him and that with the assistance of the police he had got the case registered against the petitioner, due to enmity. All these suggestions were denied. No question was put to the said witness as regards what enmity he had with the petitioner. To Shah Muhammad P.W.2 it was put in cross‑Examination that a false case had been registered against the petitioner due to enmity: which he denied. No question was put to the said witness as to what enmity Mian Muhammad H.C. P.W.1 had with the petitioner. To Sher Afzal P.W.3 it was put in cross‑examination that they had caught hold of the petitioner and beaten him and that they had got a case registered against him through the connivance of the police, which suggestions were denied. From the cross‑examination it is apparent that no specific question was put at what place the petitioner was apprehended, assaulted and confined and by whom. The question put in cross‑examination were in the nature of a fishing inquiry. No enmity was shown or suggested. No witness was produced to support the defence version. Mian Muhammad H.C., P.W.1 went to the extent of meeting the D.S.P., in order to see that a case was lodged against the petitioner, after the local police refused to do so. The D.S.P. after recording the statement of Mian Muhammad H.C., P.W.1 investigated the case and thereafter, handed over the papers to the A.S.I. of the police station concerned. It is true that Dr. Sher Afzal D W.1 found a large number of blunt weapon injuries on the petitioner, when he medically examined him on 2‑12‑1984. The petitioner was arrested on 1‑12‑1984, two days after the occurrence. Whether he received all these injuries whilst he was apprehended or some of them and the balance he voluntarily suffered before being arrested, is not decipherable, but even assuming that all these injuries were caused by Mian Muhammad H.C., P.W.1, the case against the petitioner does not fall. The petitioner appears to be properly convicted.

6. The only question that remains is one relating to sentence. The petitioner has been convicted for simple lurking house trespass at night. He was also severely beaten. He has suffered detention as a convict from 1‑10‑1985 to 22‑1‑1986. Taking all circumstances into consideration, I would, therefore, reduce his sentence to that already undergone.

7. For the foregoing reasons, this petition is partly accepted in terms of the reduction in the sentence, as stated above. The petitioner is on bail. His bail bond shall stand discharged. S.G.D. Order accordingly