1988 P Cr (PLP)

M. Iqbal Koukab for the Complainant. Date of hearing: 25th April, 1988. The facts leading to the filing of this revision are that the petitioners, namely, Khushi Masih son of Qadir Masih, Francis Masih and Ilyas Masih sons of Khushi Masih were tried by Magistrate 1st Class, Rawalpindi, for an offence under section 324/34, P.P.C., and sentenced to one year's R.I. each. Feeling aggrieved, the petitioners filed an appeal challenging their conviction and sentence, which came up for hearing before the Additional Sessions Judge, Rawalpindi, who vide his judgment, dated 25‑1‑1988, dismissed the appeal and upheld the sentence and conviction.

2. It is contended by learned counsel for the petitioners that the present case against the petitioners is highly doubtful. Submits that there are 3 eye‑witnesses of the occurrence and all of them have contradicted each other on material aspects of the case. Submits that the medical evidence is in direct conflict with the ocular account. The submissions have been controverted by the learned counsel for the State as well as for the complainant.

3. I have heard the learned counsel for the parties at length and perused the record. The instant case was lodged with Police Station City, Rawalpindi on 23‑3‑1985 at 2‑45 p.m. The occurrence is alleged to have taken place at 11 a. m. The case was got registered by Peter Masih with the allegation that on the said date he alongwith one Muhammad Hussain, a resident of Toba Tek Singh, who is an employee of the uncle of the first informant, was going to Bazar for making purchases. In the meanwhile, the petitioners Khushi Masih armed with Danda, Francis Masih and Ilyas Masih armed with daggers, came there while raising Lalkaras. Francis Masih is alleged to have given fist blow which landed on the front side of the forehead of Muhammad Hussain P.W. Second blow was dealt by Ilyas Masih which landed on the head of Muhammad Hussain, P.W. The first informant tried to intervene, whereupon Khushi Masih caught hold of him and the two co‑accused started hitting their heads against him causing him injuries. Peter Masih appeared as P. W.2, wherein he stated that on 23rd of March, 1987, he alongwith Muhammad Hussain P.W. was going to the market when the petitioners came there raising Lalkaras. He has alleged that Khushi Masih gave him a Danda blow, whereafter Francis Masih gave him a dagger blow. Thereafter, Ilyas Masih gave a blow to Muhammad Hussain. On the intervention of the people, they were rescued from the clutches of the petitioners. In cross-?examination, he stated that his statement was recorded by the police either on the first day of the occurrence or on the second or third day of the occurrence. He has also stated that he was given dagger blows with its blunt side; to which he has been duly confronted. Muhammad Hussain P.W.3 has stated that on the day of occurrence he alongwith Peter Masih, P.W. was going to the Bazar when they were surprised by the petitioners. Thereafter, he has corroborated the statement of Peter Masih, except for that both of them have contradicted each other with regard to the seat of injuries and the number of injuries to each other. He has also stated that after they had been injured one Riaz P.W., came to the spot who took them to the police station in his rickshaw. He has admitted that lot of people had gathered at the spot but nobody was prepared to become a witness. The last witness of the occurrence, namely, Riaz Masih has stated that he saw the occurrence and then took the injured to the police station. Dr. Ishtiaq Ali Shah who examined the injured, appeared as P.W.5. He has stated that on 23‑3‑1985 at about 11‑45 a.m. he examined Peter Masih P.W. and found 4 simple injuries. On the same day at 2‑30 p.m. he also examined Muhammad Hussain and found 3 injuries which were simple. The occurrence is alleged to have taken place at 11 a.m., whereas the report was lodged at 2‑45 p.m. No explanation with regard to the delay in the registration of the case is available on the file. It is in evidence that the police station was at a distance of 2 furlongs from the place of occurrence. It is also in evidence that the injured was taken to the police station in a rickshaw. In such circumstances, I hold that the F.I.R. has been registered with unexplained delay. The eye‑witness account has been furnished by Riaz Masih, Peter Masih and Muhammad Hussain P.Ws. Nos.1, 2 and 3 respectively. All of them have contradicted each other on material aspects. Their statements are also at variance with regard to the medical evidence and the role attributed to each petitioner. In such circumstances, it will be extremely unsafe to rely upon their statements which contradict each other. It is prosecution case that both the eye‑witnesses were injured at the same place and time. It is also in evidence that both of them got into a rickshaw of Riaz Masih, P.W. and went to the police station, from where both of them were taken to the hospital. Strangely enough, Peter Masih was examined by Dr. Ishtiaq Ali Shah. P.W.5, at 11‑45 a.m. whereas Muhammad Hussain P.W. was examined by the same doctor at 2‑30 p.m. There is no explanation with regard to this delay in the examination of Riaz Masih, P.W. This aspect creates a great doubt and strengthens the plea of the defence that this witness was not present at the spot at all, but was later on imported. Enmity between the parties is admitted, as civil litigation is going on between both the sides. For what has been discussed above, I hold that the eye‑witness account is not free from doubt, and cannot be relied upon unless corroborated. Corroboration in the instant case is not available. The medical evidence also contradicts the ocular account. Both the Courts below have overlooked these material aspects in their judgments. For the reasons discussed above, I accept the revision petition, set aside the judgments of the Courts below and direct that the petitioners be released from jail forthwith, if not required in any other case. S.A./K-98/ L?????????????????????????????????????????????????????????????????????????? Petition accepted