1998 P Cr (PLP)
Before Mrs. Fakhar-un-Nisa Khokhar, J THE STATE — Appellant Versus ZAKIR. ALI and others — Respondents
| Citation | 1998 P Cr (PLP) |
| Forum / Court | Lahore |
| Bench Members | N/A |
| Parties | Before Mrs. Fakhar-un-Nisa Khokhar, J THE STATE — Appellant Versus ZAKIR. ALI and others — Respondents |
Q1: What are the key laws and sections cited in 1998 P Cr (PLP)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 1998 P Cr (PLP)?
The case was heard and decided by the Lahore bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 1998 P Cr (PLP) (Before Mrs. Fakhar-un-Nisa Khokhar, J THE STATE — Appellant Versus ZAKIR. ALI and others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- A.H. Masood for the State. Sardar Sajid Dogar for Respondents Nos. l and 2.
- 2. According to the submission of the learned counsel for the appellant F.I.R. Exh.P.A. was lodged on 15-6-1986 in respect of the occurrence which took place on 17-5-1986. As per F.I.R. two occurrence took place at Urdu Bazar, Lahore where the shop of Abdus Samad complainant is situated adjacent to the shop of Arif. The latter shop belongs to Ghulam Muhammad, the father in-law of the complainant. A civil dispute was pending regarding the shop between the father-in-law of the complainant and Arif. The dispute arose in respect of arranging a shutter before the door of the shop. Najam-ul-Saqib forbade Arif Ali not to arrange shutter on the shop. Some hot words were exchanged. The complainant came out of the shop and saw that Zakir Ali armed with a hockey and Akhlaq Ahmad deceased armed with an iron bar, were beating Najam-ul-Saqib. They also gave beatings to the complainant and the people gathered there. On the arrival of the people Wajid Naseer, Talib Murtaza, Najam-ul-Saqib and Zakir Ali left the place. After sometime when the complainant was closing his shop Zakir Ali armed with an iron fist, Azhar Ali and Qamar Ali armed with Dandas, Sardar Javed, Maqsood Ali, Abid Ali and Arif Ali came there. Akhlaq armed with an iron rod also came there. Arif raised a Lalkara that the complainant be done to death. Zakir Ali gave a blow with "Ahni Mukka" on the mouth of the complainant which started bleeding. Akhlaq Ahmad hit him with iron rod on his head and the other accomplices also injured him with Dandas and hockey. The witnesses of the occurrence were Maulvi Nasir-ud-Din and his son Wajid Naseer. Upon their intervention the complainant was saved. The learned Trial Court vide judgment, dated 7-8-1988 convicted Zakir Ali and Akhlaq under section 325, P.P.C. and sentenced them to three years rigorous imprisonment whereas Azhar Ali was sentenced to one year rigorous imprisonment under sections 325, 148 and 149, P.P.C. The rest of the co-accused were acquitted. The learned Advocate-General was approached to file an appeal against the acquittal of the co-accused which was turned down by him. This judgment was assailed in appeal by the respondents/convictees and their appeal was accepted by Mr. Muhammad Munir, learned Additional Sessions Judge, who vide judgment, dated 13-12-1988 while accepting the appeal set aside the order of conviction and acquitted the respondents. Against the judgment of the learned Appellate Court the instant appeal has been filed by the State. According to the learned counsel for the State the learned Appellate Court has not applied his mind to the evidence on record and while acquitting the respondents has paused grave miscarriage of justice as all the witnesses had supported the prosecution case who were acquitted by the learned Trial Court while convicting the respondents and the learned Appellate Court without cogent reasons disbelieved the Trial Court and further submitted that two of the eye witnesses Abdus Samad and Najam-ul-Saqib sustained injuries during the occurrence but the learned Appellate Court disbelieved the witnesses without any plausible reason and order of the learned Appellate Court is not sustainable in law. He further submitted that the learned Trial Court could not acquit the accused on the basis that merely the charge was defective. Moreover, the delay in filing the F.I.R. was very well-explained in the evidence. It is further submitted that the.4itnesses have deposed against the respondents and no enmity is shown on their behalf. Delay cannot be a ground of acquittal. It is further submitted that the reading of the evidence shows that it is based on the first occurrence but the respondent was not charged for the first occurrence. They were charged for the second occurrence. Learned counsel for the respondent has submitted, that the charge is absolutely defective and no conviction can be sustained on a defective charge which has not been provided. The State has failed to give notice to the accused as to what case he was called to meet. Therefore, it has resulted in prejudice to the accused and no conviction can be sustained. He has relied on Dur Muhammad alias Duri and others v. The State 1994 MLD 1493, M.A. Motalib v. The State PLD 1960 Dacca 897, M.E.N. Rewail v. The State PLD 1957 SC 257, Ch. Khadim Hussain v. The State PLD 1985 SC (AJ&K) 125. He has further submitted that the judgment of the learned Appellate Court is well reasoned judgment and borne out from the record. The delay of one month is nowhere explained. Neither the injured witnesses nor the complainant anywhere stated that why the case was registered after a delay of one month and the prosecution has never explained as to what were the reasons for its delay and non-registration of the F.I.R. by the local Police. He further submitted that the same evidence was relied and the companions of the respondents were acquitted and the State refused to file an appeal against their acquittal. He further submitted that no recovery was effected in the present case. No medical certificate was produced about the injured witness. Only one medical certificate was produced about Abdus Samad complainant but even the Doctor was not produced and only a Dispenser was produced. The most material thing, which was necessary for the corroboration on medical evidence was the production of the Radiologist and he was not examined in the case and if a Radiologist is not examined then the charge under section 325, P.P.C. cannot be sustained. If the doctor is not available as apparent from the evidence of the prosecution then the Radiologist could be produced for examination. He further submitted that on the same day a counter-version was also recorded. Talib Murtaza, Abdus Samad, Ilyas, Fayyaz and Najam-ul-Saqib were challaned and were acquitted. He further submitted that both the parties were injured and injuries on the respondents were not explained. One of the witnesses is not supporting the prosecution case and his statement is owned by the prosecution. The learned State Counsel replied to the arguments advanced by the learned counsel for the respondent and submitted that if the charge is defective then according to Muhammad Shafiq and others v. The State 1991 MLD 2029 a defective charge vitiates the trial and the case is to be remanded.
Headnotes / Summary
5. 417
Penal Code (XLV of 1860), 5.325/148/149
F.I.R. was registered after a delay of one month from occurrence-- No recovery of offensive weapons allegedly used in occurrence was made by the Police
Injured witness had a medico-legal report, but doctor who conducted his medical examination was not produced and even Radiologist was not produced to testify X-Ray regarding his injuries
No medical evidence in respect of other injured witnesses was produced by prosecution
Counter-version was recorded against complainant and other prosecution witnesses, they faced trial, but were acquitted
One of the prosecution witnesses was a chance witness and other was injured witness and prosecution witness who had not supported prosecution case, was not declared hostile
Charges against accused persons were completely defective and prosecution which had failed to produce recovery of the weapons of offence had also failed to bring home guilt to accused persons beyond reasonable doubt
Judgment of Appellate Court according to which accused were acquitted being well-reasoned and borne out from record of the case,` could not be interfered with in circumstances.
Judgment & Decree
(2) If the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only. (3) If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged. (4) The law and section of the law against which the offence is said to have been committed shall be mentioned in the charge. (5) The fact that charge is made is equivalent to the statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case. (6) The charge shall be written either in English or in the language of the Court." The charge is framed on printed papers which is at pages 125, 127, 129, 131, 133, 135, 137 and 139 and 141 of the record. The offences are written in English only on one paper at page 125 and on its back on a stamp it is only written:-- The two printed forms in respect of Akhlaq Hussain and Mazhar Arif even do not state the name of the accused as well as the offences. All columns are empty. The printed form at page 131 states the only offences and State v. Zakar Ali and others, 4 Kus + 5 Kus total 9 Kus. The form is filled and on its back on a stamp it is again written: Printed form at page 133 is also like page
131. It is in respect of Qamar Ali accused and at page 135 against the printed form does not show the name of the F.I.R. The offences are completely blank and on its back on a stamp it is written:-- __ The printed form at page 137 is also completely blank. It is in respect of Arif Ali and on its back is the similar stamp. The printed form at page 139 is also blank. It is in respect of one Abid Ali son of Farzand Ali and also on its back there is a stamp. Similarly the last printed form at page 141 on the record is in respect of Sardar Javed. It is also completely blank.
5. I have carefully perused the judgments cited by the learned counsel for the parties. In Ch. Khadim Hussain v. The State PLD 1985 SC (AJ&K) 125 it is held that charge has to be clear, omission of specific charge makes it a defective charge. Prejudice caused to the accused, as the charge has not put the person on notice to meet the allegation against him regarding the elements of offence stipulated under section 3 of Penal Code. In M.E.N. Mewail v. The State PLD 1957 SC 157 it is held that the charge of cheating under section 420', P.P.C. was plainly defective inasmuch as it failed to allege the manner of the deception practised by the accused. The Honourable Supreme Court in this case gave a verdict of acquittal. In M.A. Motalib v. The State PLD 1960 Dacca 897 it is held that under sections 221 and 223, Cr.P.C. charge vague giving accused no notice as to what case he was called to meet. Accused prejudiced. Where the charges are so defective that they do not give any notice to the accused as to the nature of the case which the prosecution sought to make out against him, the accused is prejudiced and his conviction on such defective charges cannot be sustained. In Dur Muhammad alias Duri and others v. The State 1994 MLD 1493 it is held that under sections 221 and 222 of the Cr.P.C. when the charge does not give full notice to the accused of the allegations made against him, then it vitiates the whole trial. The appeal in this case was allowed and the appellants were acquitted. Even the judgment produced by the learned counsel for the appellants also supports that if the charge is defective then the accused's whole trial stands vitiated and the conviction on such defective charge cannot be sustained. The learned Trial Court was so negligent that it failed miserably to give notice of the F.I.R. as well as notice of the offences to the accused being charged as I have stated above that some of the printed forms are found completely blank. This has caused great prejudice to the accused who were facing trial at that time and they had no notice of the charges even the offences they were charged against. Such defective charge not only vitiates the whole proceedings of the criminal case but also conviction on such a defective charge is not sustainable. For the sake of safe administration of criminal justice I have carefully perused the evidence on record.
6. In this case the F.I.R. Exh.P.A. deposes the weapon of offence Danda, hockey and Sarya. The F.I.R. was registered after a delay of one month and the reason stated by the learned counsel for the appellants is that the local Police was not registering the case and then the investigation was transferred to the Police Station Lower Mall, and then the instant F.I.R. was registered. P.W.2 Abdus Saman Qureshi has shown the explanation of the delay in his statement and has stated that he went to the police station for the registration of the case and the Police was not registering the case. He wrote to the Police high ups and he went to the Police Station Lower Mall, Lahore and even there investigation was not done according to his satisfaction. No recovery of Danda, hockey and Sarya was made by the Police nor the recovery witnesses were produced by the prosecution. The injured witness Abdul Samad Qureshi had a medico-legal report. The doctor who conducted his medical examination, was also not produced. Even the Radiologist was not produced to testify X-ray regarding the' injuries. The learned counsel for the respondents has relied on Muhammad Hussain and 4 others v. The State and another 1991 PCr.LJ 1081 where it is held that Radiologist was not produced in proof of the X-Ray Report to connect the same with the injured person. The conviction of accused under section 325, P.P.C. could not, therefore, be sustained and the same was set aside. No medical evidence in respect of the other injured witnesses was produced by the prosecution. According to the learned counsel for the respondents the counter-version was recorded against the appellants but they also faced the trial and were acquitted. The learned Trial Court has also relied on the evidence in respect of three accused namely Zakir Ali, Azhar Ali and Akhlaq Hussain deceased and convicted them relying on the same prosecution evidence and acquitted the other accused disbelieving the evidence produced by the prosecution. Talib Murtaza P.W.1 is a chance witness. P.W.2 is Abdus Samad Qureshi the injured witness and P.W.3 is Wajid Naseer who is not supporting the prosecution case and he is not declared hostile, therefore, I am convinced that the judgment of the learned Appellate Court is well-reasoned and borne out from the record of the case. The charges are completely defective and also the prosecution has failed to produce the recovery of the weapon of offence, also failed to bring guilt to the accused beyond shadow of doubts and, therefore, I see no reason to interfere in the judgment passed by the learned Appellate Court. The present appeal is dismissed. H.B.T./S-186/L Appeal dismissed.