2003 PLP 905 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

These three Criminal Petitions bearing No.636-L of 2001 (Muhammad Irshad alias Shadu and 3 others v. The State). Jail Petition No. 147 of 2001 (Liaquat Ali alias Natti and Safdar Ali v. The State) barred by 4 days) and Jail Petition No. 153 of 2001 (Muhammad Ashraf v. The State) (barred by 10 days) are directed against the ,judgment, dated 24-R-2001 passed in Criminal Appeals Nos. 220 of 1999, 285 of 1999, 339 of 1999 and 23-J of 1999 by a learned Single Judge of the Lahore High Court. Lahore. These petitions arising from a common, judgment, are proposed to be disposed of through this single judgment. The petitioners namely Irshad alias Shadu son of Muhammad Yousaf, Liaqat Ali son of Muhammad Ramzan. Waris alias Bhutto son of Boota and Jammat Ali alias Jammatu son of Muhammad Abduliah in C.-iminal Petition No.636-L , of 2001, Liaqat Ali, Safdar Ali and Muhammad Ashraf in Jail Petitions Nos. 147 and 153 of 2001 respectively were tried for the charges firstly under section

458. P.P.C., secondly under section 397, P.P.C. thirdly under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and fourthly under section 337-L (ii), P.P.C. by the Special Court established under Anti-Terrorism Act, 1997 at Guiranwala. The learned trial Judge having found the petitioners guilty of the charges convicted and sentenced them as under: (a) Under section 458, P.P.C. 14 years' rigorous imprisonment with a fine of Rs.10,000 to each and in case of default in the payment of fine each one was directed to undergo R.I. for one year. (b) Under section 397, P.P.C. 10 years' R.I. to each. (c) Under 'section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 Liaqat alias Natti and Safdar Ali were sentenced to 25 years' R.I. each and.under section 337-L (ii). P.P.C. they were sentenced to 2 years' R.I. each. The relevant facts for disposal of these criminal petitions as contained in the report lodged by Mst. Balqees Bibi (P.W.1) at 9-15 a.m. on 12-4-1995 at Police Station Wahndo, District Gujranwala are that during the preceding night at about 11 p.m. she alongwith Muhammad Yousaf, has husband. Mst. Sumara Bibi, daughter, Muhammad Shakeel and Dilawar Hussain, her sons and Muhammad Majeed, her brother were sleeping in their house in village Hameedpur Kalan when at about 11 p.m. Liaqat Ali alias Natti and' Safdar armed with kalashtiikovs trespassed into their house and having caused injuries to her, Muhammad Yousaf. her husband and Muhammad Majeed. her brother with the butt of their weapons confined Muhammad Yousaf and Muhammad Majeed in a room and tied their hands with ropes. The said petitioners then took out the household articles and handed over the same to Jammat Ali who was present in the courtyard of the house whereas Liaqat son of Ramzan, Waris alias Bhutto, Irshad alias Shadu and Muhammad Ashraf son of Ahmad Din were guarding the house at the outer gate. Liaqat Ali and Safdar after removing. valuable articles from the house committed Zina?bil-Jabr with her one by one and the accused were identified by Muhammad Majeed and Muhamntad Yousaf at the spot. They and Mst. Balqees Bibi also sustained injuries at the hand of Liaqat alias Natti and Safdar Ali. Dr, Nasreen Akhtar (P.W.5) medically examined Mst. 6alqees Bibi. on the same day at Tehsil Headquarters Hospital. Kamoke and made the following observations: "A young lady of moderate built. Two bruises on upper arm one inch below the shoulder joint, 3. x -2 inches and 3 x 1 1/x inches Bruises of feding colour. No mark of violence on her private part. Two swabs taken from vagina and were sent to Chemical Examiner on 19-4-1995 and as per report by Chemical Examiner, the swab stained with semen." Dr. Sahibzada Fareed Zulfikar (P.W.6) Medical Officer, . H. U. Marlaiwala having conducted the medical examination of luhammad Majeed and Muhammad Yousaf traced the following injuries n their person: ' "Muhammad MAieed His general condition was satisfactory. (1)??????? A bruised swelling-5 x 3 c.m. on their right shoulder above the right shoulder-joint. (2)??????? A bruised swelling 5 x 3 c.m. on the left shoulder above the left shoulder-joint. All the injuries were Ghair Jaifa Dahamish caused by blunt . weapon. Exh. PC. is the correct carbon copy of Medico-legal Report which is in my hand and signed by me." Muhammad Yousaf The general condition of patient was satisfactory. (1) A vertical scratch 1.5 x 0.5 c.m. on the dorsal aspect of right ring finger on the proxima phalynx. (2) A horizontal scratch on the lateral aspect of right thigh in the middle. All the injuries were caused by blunt weapon and were Ghair Jaifah Damaish. Exh.PD is the correct carbon copy of Medico-legal Report which is in my hand and signed by me." The learned counsel representing the petitioners in Criminal 'etition No.636-L of 2001, without discussing the facts, urged that none f the petitioners in the above petition was either armed or caused any amage to the inmates of the house and they allegedly being empty?anded while present on the outer gate were guarding the hmtse, herefore, their conviction and sentence under sections 458 and 397, '.P.C. was not legal and even if the prosecution story is believed as uch, the petitioners would hardly be responsible for committing an ffence under sections 457 rVad with section 495, P.P.C. The learned ounsel however, has argued that prosecution story was not plausible and onfidence-inspiring as the occurrence could not possibly be taken place n the manner as, stated, and while pointing out the minor discrepancies .l the evidence he contended that the participation of the petitioners in he occurrence was not free from doubt. The learned counsel has next .rgued that Irshad alias Shadu was not named in the F.I.R. and none of he accused was identified by Mst. Balqees Bibi rather as per her tatement the accused were identified by her husband Muhammad tousaf and her brother Muhammad Majeed whereas Muhammad Yousaf tated that he did not name Irshad as an accused. The learned counsel thus concluded that probably Irshad was either substituted for one Irshid who was absconding or for Muhammad Yaqoob who was not challaned. In nutshell the argument of the learned counsel was that there was no incriminating evidence against Irshad petitioner to connect him with the commission of offence and in the light of role assigned to the petitioners namely Liaqat Ali son of Muhammad Ramzan, Waris alias Bhutto 'and Jammat Ali, their conviction and sentence under sections 458, P.P.C. and 397, P.P.C. was also not legal. Learned counsel appearing on behalf of Liaqat Ali alias Natti and Safdar Ali in Jail Petition No. 147 of 2001 and Muhammad Ashraf in Jail Petition No. 153 of 2001 contended that since the. occurrence took place during the night therefore, the identification of the accused was not possible and that Mst. Balqees Bibi (P.W.1) without claiming the identification of the accused at the spot deposed against Liaqat and Safdar on the basis of claim of their identification made by Majeed and Yousaf and thus without identification of the accused by the victim, -it would not be safe to convict them for committing an offence under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The learned counsel added that the report of Chemical Examiner that swabs were stained with semen would be of no significance as husband of Mst. Bilqees Bibi was present at home during the night of occurrence, therefore, it would be difficult to establish the charge under section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 in such situation against the accused and further the story of committing theft by .the petitioners in the house of complainant also would not appeal to mind in the given facts. We have heard learned counsel for the petitioners at length and also perused the record with their assistance. The contention of the learned counsel that since the petitioners who remained present outside the gate and were empty-handed could not be charged under section 397, P.P.C., is not without force. Section 397, P.P.C. provides as under:-- "

397. Robbery or dacoity, with attempt to Cause death or grievous _hurt.

If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any persotr, or attempts to cause death or grievous hurt to any person, the imprisonment with which such .offender shall be punished shall *not be less than seven years." In the light of role assigned to the petitioners in Criminal Petition No.636-L of 2001 they would be guilty of committing an offence under section 395, P.P.C. and .not 397, P.P.C. therefore, we convert their conviction from section 397, P.P.C. to section 395, P.P.C. ands sentence them to 10 years' R.I. each with a fine of Rs.50,000 each and in default in payment of fine each one of them shall undergo S. I. for one year. However, the second contention of the learned counsel than conviction and sentence under section 458, P.P.C. was not legal, and proper has no substance. Section 458, P.P.C.- would squarely be attracted in all cases in which a person with or without being armed puts any restraint on the victim during the course of occurrence. In .the .present case, the petitioners while guarding the house put under restraint to the inmate, therefore, the conviction and sentence awarded to them under section 45.8, P.P.C. would not call for interference. Taking the case of the petitioners in Jail Petitions Nos.147 and 153 of 2001 we find that Liaqat Ali alias Natti and Safdar Ali have played pivotal role. They in addition to the removing of household articles from the house of the complainant party also committed Zina-bil?Jabr with Mst. Bilqees Bibi in presence of her brother and husband. This was an extremely heinous act on their part and it would not appeal to mind that Mst. Bilqees Bibi, mother of grown-up children would level such an allegations falsely against the petitioners at the cost of her own honour and dignity. It is also not believable that her real brother and het husband while putting their family honour at stake would cook such a story. The perusal of evidence would reveal nothing to suggest that witnesses deposed against the petitioners due to any grudge 'or enmity. The learned trial Judge having found the petitioners guilty of committing the offences under sections 458, 397, P.P.C. read with 10(3) of Offence 'of Zina (Enforcement of Hudood) Ordinance, 1979, and under section 337-L (ii), P.P.C. convicted and sentenced them accordingly and further in appeal their conviction and sentence was maintained by the High Court. We, in the given facts have no reasons to differ ,with the finding of guilt of the petitioners arrived at by the. trial Court- and maintained by the High Court. For the foregoing reasons we acquit Irshad alias Shadu from all charges and set aside his conviction and sentence. Criminal Petition No.636-L of-2001 to his extent is converted into appeal and is allowed.. He shall be released front jail forthwith if not required in any other case. The conviction and sentence of the petitioners namely Liaqat Ali son o Muhammad Ramzan. Waris alias Bhutto and Jammat Ali, petitioners in Criminal Petition. No.636-I, of 2001 and Muhammad Ashraf in Jail Petition No.153 of 2001 under section 397, P.P.C. is converted into section 395, P.P.C. and their conviction and sentence under section 458, P.P.C. is maintained. The .conviction and sentence of Liaqat Ali alias Natti and Safdar Ali petitioners in Jail Petition No.147 of 2001 is maintained under sections 397, P.P.C. and 458, P.P.C. read with section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 337-L(ii), P.P.C. awarded to them by the trial Court. The different sentences of the petitioners however, shall run concurrently. With the above alteration in the conviction and sentences, we while maintaining the judgment of the High Court dismiss these petitions. Leave is refused. N.H.Q../I-56/S. ????????? Leave refused.