2017 P Cr (PLP)

MUHAMMAD GHAZANFER KHAN, J.

This judgment shall dispose of criminal appeal bearing Cr. A. No.16-D/2016, preferred by Muhammad Shakeel appellant-convict and criminal revision bearing Cr. R. No.06-D/2016, as both the appeal and revision are the outcome of one and the same judgment dated 28.01.2016 of learned Sessions Judge, D.I. Khan, delivered in case FIR No.241 dated 18.7.2014 under section 336, P.P.C. Police Station City, D.I. Khan.

2. Appellant Muhammad Shakeel has filed Cr. A. No.16-D/2016 for setting aside the above mentioned judgment vide which he was convicted under section 336, P.P.C. and sentenced to undergo three years rigorous imprisonment as Ta'zir. He was further sentenced under section 337-R, P.P.C. to pay one half of the diyat amount as arsh to the victim and in case of non-payment of arsh he shall be dealt with in accordance with the provisions contained in section 337-X(2), P.P.C. Complainant Mst. Seema Ahad has filed Cr. Rev. No.06-D/2016 for enhancement of the sentence awarded to the appellant.

3. Briefly stated facts of the case are that on 07.7.2014 at 09:15 hours, complainant Mst. Seema Ahad (PW-6) accompanied by her brother Abdul Waheed, while in injured condition, made report to the local police at Emergency Room of Civil Hospital, D.I. Khan to the effect that she was married to Muhammad Shakeel accused about ten months prior to the occurrence, who used to beat her. On the eventful day she was present in the house, when altercation took place between her and her mother-in-law, namely Noor Jehan; that about 06.00 a.m. she took her luggage and came out of the house. Her husband came, caught hold of her from her hairs and dragged her to the house and started beating her with fists and kicks due to which she sustained injuries on various parts of her body and was feeling pain. The luggage which she was taking was also snatched by the accused. She reported that the occurrence was witnessed by her in-laws and that her husband also threatened her of dire consequences. Motive behind the occurrence is stated to be strained relations between the parties. On the report of the complainant murasila Ex.PA/1 was drafted which was entered in daily diary No.15 dated 07.7.2014 and on receipt of discharge slip, ibid FIR Ex. PW 4/1was registered against the accused.

4. After completion of investigation, complete challan was submitted in the learned trial Court. Formal charge was framed against the accused to which he did not plead guilty and claimed trial. In order to substantiate charge against the accused, the prosecution produced and examined Shah Nawaz S.I as PW-1, Muhammad Iqbal Khan S.I as PW-2, Ghulam Muhammad ASI as PW-3, Gul Khan ASI as PW-4, Lady Dr. Aabgina WMO as PW-5, Mst. Seema Ahad (complainant) as PW-6, Abdul Waheed as PW-7, Sajid Hussain S.I as PW-8, and closed the evidence while statement of Yasir Amin MLC Clerk was recorded as CW-1. Thereafter, statement of the accused was recorded under section 342, Cr.P.C., wherein he professed innocence, however, he did not wish to be examined on Oath in terms of section 340(2), Cr.P.C., nor produced any evidence in his defence. After hearing the arguments of learned counsel for the parties, the learned Sessions Judge, D.I. Khan convicted and sentenced the appellant vide impugned judgment dated 28.01.2015 which has been assailed through Cr. A. No.16-D/2016, whereas the complainant has also filed Cr. R. No.6-D/2016 for enhancement of the sentence.

6. Arguments heard and record gone through.

7. In her report Ex.PA/1, the complainant stated that the accused caught hold of her from her hairs, dragged into the house and started beating her with fists and kicks due to which she sustained injuries on different parts of her body and was feeling pain. She has not specified the places of injuries in her report. While appearing as PW-6 she made improvement in her Court statement by stating that the accused beaten up her with fists and kicks due to which she was injured on various parts of her body and her ear was also damaged. In the cross-examination she stated that she had stated to the police at the time of lodging the report that her ear was damaged which confronted was omitted. PW-3 Ghulam Muhammad ASI, who drafted the murasila on the report of complainant, has stated in cross examination that he had not seen the wound on the right shoulder as well as on the right upper arm of the victim by removing her shirt and that he had seen the swelling of the injured which was on right side of the neck. He stated that he did not mention the location of wound on the neck in injury sheet. While according to PW-5 lady doctor Abgina she found swelling under the left ear. She admitted that she is not ENT specialist and that she issued discharge slip as per opinion of ENT specialist (perforation left tympanic membrane) and that the opinion mentioned in the discharge slip does not bear the signature of ENT specialist. Even no ENT specialist was produced as witness regarding confirmation of examination of victim by him and the nature of injuries. Hence, the MLC report along with discharge slip cannot be believed.

8. The date of occurrence is 07.7.2014 at 06.00 a.m. and the complainant lodged the report on the same day at 09.15 a.m. while lady doctor Abgina (PW-5) stated that on 09.7.2014 at 10.30 a.m. the patient was brought to the hospital by police and she examined her in Radiology Unit. Though one Yasir Amin, MLC Clerk was examined as CW-1 who brought the MLC register according to which MLC No.142 of patient Seema Ahad was examined on 07.7.2014 and discharged on 10.7.2014 but in his cross-examination he stated that the patient was not examined before him in the hospital and admitted that the concerned doctor who prepared the MLC has mentioned the date of arrival as 09.7.2014. PW-3 Ghulam Muhammad ASI stated that during preparation of injury sheet lady doctor was remained with him and that after preparation of injury sheet, he handed over the same to the lady doctor through a constable who was also present in the emergency room with him. Admittedly, the complainant is serving as staff nurse in the hospital and it cannot be ignored that she with the connivance of Health Department has maliciously obtained the medico-legal report.

9. According to the murasila/FIR the occurrence took place on 07.7.2014 at 06.00 a.m. while the complainant lodged the report on the same day at 09.15 a.m. The complainant explained that the delay in lodging of the report occurred because she informed her brother Abdul Waheed who came late. In her cross-examination the complainant (PW-6) has stated that the distance between the house of her parents and the house of her husband is about 01 or 02 furlongs. She stated that her brother Abdul Waheed was serving in Chashma Sugar Mills and he was on his way to the said mills when she informed him regarding the occurrence. While PW-7 Abdul Waheed has stated that when he was informed by her sister on telephone, at that time he was present in the tailoring shop of one Farooq Tailor Master in Basti Dirkhan Wali, because he was working with him as tailor master since thirteen years. He stated that after the receipt of telephonic message, he reached to the spot at about 07.30 a.m. and that the distance between the place of occurrence and the District Headquarter Teaching Hospital, D.I. Khan is covered within fifteen to twenty minutes. This explanation of the complainant cannot be acceptable to a prudent mind when admittedly the complainant is a government servant working as staff nurse in Mufti Mehmood Teaching Memorial Hospital, D.I. Khan, therefore, she could report the matter without waiting for anyone.

10. Complainant stated in her cross-examination that the house of her husband is situated in a thickly populated area surrounding by neighbours but no neighbourer came out from the house as it was early in the morning. She further stated that her husband usually goes to perform his duty at about 09.00/09.15 a.m. But at the same time she stated that there is a mosque near the house of her husband at a distance of almost one hundred paces and she admitted that people generally come to the said mosque for offering prayers at relevant time. Despite this no independent came forward to depose in favour of complainant.

11. Above all, PW-3 Ghulam Muhammad ASI stated that at the time of preparation of injury sheet, no case number (FIR number) was available with him. He admitted that he had not mentioned the FIR number etc on the injury sheet during its preparation on 07.7.2014. Perusal of injury sheet Ex.PW-3/1 reveals that the same bears FIR number, date as 18.7.2014 and section of law etc. with same handwriting and ink while its scribe stated that he is unable to explain as to who has mentioned the FIR number etc on the injury sheet.

12. For the foregoing reasons, it is held that the occurrence has not taken place in the mode and manner as reported and there are serious doubts in the case of prosecution, therefore, the evidence so produced could not be relied upon for conviction of an accused and I am of the view that the prosecution has failed to prove the guilt of the accused. Resultantly, this Cr. A. No.16-D/2016 is accepted, the impugned judgment of conviction and sentence dated 28.01.2015 rendered by learned Sessions Judge, D.I. Khan is set aside and the appellant Muhammad Shakeel is acquitted of the charges levelled against him in this case. He shall be set free forthwith from jail if not required in any other case. Consequently Cr. Rev. No.06-D/2016 stands dismissed.

13. These are the detailed reasons for my short order of even date. JK/29/P Appeal accepted.