1968 P Cr (PLP)

This revisional application is directed against the order of conviction and sentence passed against the 13 petitioners under sections 447 and 147 of the Pakistan Penal Code. The prosecution case was that on 12th Agrahayan, 1372 B. S. P. W. 1 along with 15/16 labourers were reaping paddy of his pirpal lands when accused Mansur's two sons came and protested saying that there was Golmal about that land and that the paddy should be reaped after amicable settlement. The complainant stopped reaping and sent two men to the Chairman, Union Council by two cycles to bring the Chairman of the Union Council. When these two men were returning back, accused Falu (petitioner No. 6) and Fayez (petitioner No. 7) attacked them and assaulted them and took away the two cycles. Thereafter the complainant and others went there and the accused chased them up to complainant's house. The accused raided the house of the com plainant, broke doors and windows, took away articles of the room. Accused got up in the ceiling of the house and concealed himself. Accused then began to open the C. I. sheets of the roof to get into tile ceiling to kill P. W. 1, but by that time two police constables came there and the accused left. Two charges, one under section 147, and the other 447, P. P. C. were framed against all the 13 accused persons. The prosecution examined 13 witnesses and the defence examined one witness. The defence case is that the accused were going to reap paddy of Plot Nos. 118, 119, 120 and 121 of mouza Bongaon and that the complainant went near to reap paddy forcibly and the accused drove him and his men away and the complainant's men beat Ismail and Sari Sardar severely because the complainant had been trying to dispossess accused Mansur from these lands and they had therefore, brought this false case. The learned Magistrate convicted and sentences all the 13 accused persons under both, the respective sections with which they were charged. On appeal the order of conviction and sentence was maintained. Hence this revisional application. Mr. P. C. Bose appearing on behalf of the accused persons first urged that both the Courts below should have held that certain important witnesses had been deliberately withheld by the complainant party. Those witnesses were the two constable fit, who had arrived at the spot and the labourers. None of them were examined. It is claimed by Mr. Bose that the Court must draw the presumption that if these witnesses were brought for ward, they would have given evidence against the prosecution. The prosecution has examined 13 witnesses of which the appellate Court has found that witness No. 5 and witness No. 8 are independent witnesses. If the prosecution has been able to prove their case with these number of witnesses I do not see what prejudice has been caused to the accused persons for non‑examina tion of the witnesses mentioned by Mr. Bose. Mr. Bose has urged that of the witnesses P. Ws. 5 and 8, P. W. 8 is not an eye‑witness. Nevertheless he immediately heard of the occurrence but it does not matter as P. W. 8 in any event has not named any of the accused persons in his deposition. P. W. 5 on the other hand has identified petitioners Nos. 3, 7, 8, 9, 10, 11, 12 and 13 and sufficiently corroborated the evidence of P. W.

1. So far as the other witnesses are concerned they are natural witnesses and their being present at the time of occurrence or place of occurrence has not been challenged and as such mere relationship should not be held against the veracity `A of the witnesses. The next point Mr. Bose argued was relating to the hearing of the appeal. Mr. Bose has argued that it was the duty of the learned appellate Court to come to his own finding regarding the offences under sections 447 and 147 of the Penal Code. It appears from the judgment of the appellate Court that he has dealt with each of the points which was urged before him. The first point was regarding the proof of the common object, the second point was regarding 342 of the Code of Criminal Procedure, the third point which as urged was regarding the ownership of the disputed land, and the next point which was argued was regarding the relation ship of tile witnesses. The learned appellate Court has considered these points and given its decision. The last point which was argued before him was with regard to the argument that the trial Court had not considered the case of tile individual accused. The appellate Court has said that it is true that the case of' each of the accused was not separately considered by tile Learned Magistrate but he has met the point by saying that tile learned Magistrate has found that all the appellants formed unlawful assembly and entered the complainant's house to assault him. He has held that, that was sufficient finding to base tile conviction of the appellants. Mr. Bose has said that the appellate Court should not have rested there. He should have himself Analysed the evidence and come to his own finding with regard tit the offence committed by each of the accused. He wanted to maintain the conviction without sending the case back oil remand. There is force in this argument and I, therefore, would have sent the case back for re‑hearing of the appeal by the appellate Court if it would have served any other purpose than that it would afford the appellate Court an opportunity of writ ing a proper judgment. Considering that the occurrence took place in 1965 1 do not think that the ends of justice would necessitate the sending down of the case for re‑hearing of the appeal only for the purpose of writing a proper judgment. The next argument made by Mr. Bose is really a matter for serious consideration. It appears that P. W. 11 was not tendered fur cross‑examination. The learned Magistrate has said in this connection "P. W. 11 tried to depose falsely and he was not tendered for cross and as such his evidence was expunged". Mr. Bose has rightly argued that not having been subjected to cross‑examination, the evidence was not liable to be expunged but the Court could have considered the evidence as it was and then given whatever weight it thought fit to such evidence. In this case the evidence of P. W. 11 was as follows:‑ "My house is about th mile off P. W. I's house. Oil 12th Agrahayan last I went to P. O. and saw accused Ahmad (not the Ahmad present in dock) unscrewing the C. I. sheets and Fayez and Fulchand were supplying screw driver and many others were standing at a distance and they did not do anything. P. W. 1 narrated that he engaged some labourers for reaping paddy and that when they were reaping paddy they were chased and the labourers took shelter in his house and the aggressors raided his house. On arrival of police, persons left." It shows that so far as the offence under section 447 is concer ned only two accused Fayez and FulChand could be held to have been guilty. Mr. Bose urges that there is no other evidence of the house of the complainant being entered by any other accused. This evidence he says is in favour of the accused persons and it does not matter whether it was tested by cross- examination or not but it must be taken into consideration. I fully agree with him and hold that under section 256 of the Code of Criminal Procedure it is for the accused to cross‑examine the prosecution witness or not. The accused would have been at full liberty not to have cross‑examined at all. Therefore the position must be taken as if the accused had declined to cross‑examine this witness; his evidence cannot be expunged from the record. Thus in my opinion so far as the charge under section 447 is concerned only the two accused mentioned by P. W. 11 are liable. So far as the other accused persons are concerned they are entitled to acquittal of this charge. But so far charge under section 147' is concerned, all the accused persons have been identified by P. W. 1 and his evidence has been corroborated by other witnesses excepting in the case of petitioner Kanchu to whom also I given the benefit of doubt. In these circumstances the conviction under section 147 of the Pakistan Penal Code against petitioner Kanchu is set aside but against the other accused are maintained. So far as the conviction under section 447 of the Penal Code is concerned the conviction of petitioners Muzaffar Hussain, Kanchu, Nilchand, Ramzan Ali Molla, Shamsher. Ali, Gulan Mondal, Madhu Sk., Kandur Fakir, Mansur Ali Fakir, Jobbar Sk. and Tamir Chowkidar are set aside, but those against the petitioners FulChand Sardar and Foyezuddin Sardar are maintained. With this modification in the order of conviction the Rule is discharged. Petitioners Nos. 1 and 3 to 13 must surrender to their bail' bonds to serve out the remainder of the sentence passed upon them. Order accordingly.