1969 P Cr (PLP)

(c) Evidence‑Contradiction as to date of occurrence-- Statements of witnesses in respect of date of occurrence varying and also inconsistent with contents of F. I. R.‑Trial Court and lower appellate Court failing to consider such contradic tions‑Conviction, in circumstances, held, liable to be set aside. S. A. Latif for Noor Muhammad for Petitioners. Nemo for the State. Date of hearing : 6th December 1967. In this case Rule was issued on the Deputy Commissioner of Kushtia and the complainant‑opposite‑party to show cause why the order of conviction and sentence under sections 147, 148 and 323, Pakistan Penal Code as passed by the learned Sessions Judge of Kushtia in appeal should not be set aside.

2. The learned Magistrate found the accused Razzaque guilty under section 148, Pakistan Penal Code and the rest of the petitioners under section 147, Pakistan Penal Code. Razzaque was also found guilty under section 324, Pakistan Penal Code and the rest of the petitioners were found guilty under section 323 of the Code. The petitioners were sentenced to various terms of imprisonment and fines. On appeal the conviction and sentence of Razzaqe and Hamid under section 323, Pakistan Penal Code for causing voluntary hurt to P. W. 2 Patijan were set aside. The learned Sessions Judge upheld the conviction of all the petitioners under section 147, and that of Razzaque under section 324, P. P. C. and Hamid under section 323, P. P. C. for causing hurt to P. W. 1 Azahar. He further upheld the convic tion and sentence of Razzaque and section 148, P. P. C. The Court of appeal below set aside the other convictions and sentences.

3. Mr. S. A. Latif, learned Advocate for the petitioners has canvassed three points pertaining to law. In the first place, he contends that the Criminal Court had no jurisdiction to try the case in view of the provision of section 3 of the Conciliation Court's Ordinance read with Part I of the Schedule. He has correctly pointed out that the offences under sections 323, 324 and 147, Pakistan Penal Code in the present case are included in part 1 of the Schedule to the Ordinance while the offence under section 148, Pakistan Penal Code is not Section 3 lays clown that in all cases falling under Part I of the Schedule the jurisdiction of a Criminal and Civil Court to try case as enu merated thereunder is completely ousted. This section read with part I of the Schedule to the Ordinance makes it perfectly clear that in a case where the offences alleged are under sections 147, 323 and 324, Pakistan Penal Code are concerned the Criminal Court has no jurisdiction to try that case. In the instant case, one of the petitioners has been convicted under section 148, Pakistan Penal Code which is not included in Part I of the Schedule and as such the said offence is triable by the Criminal Court. The case is a compact one and when several offences are alleged to have been committed by the accused and one of them is triable by the Criminal Court, the Criminal Court has jurisdiction to try all the offences alleged in a particular case. This is in conformity with the established practice and has the sanction of law behind it. For instance, if one of the offences with which the accused are charged is triable by the Sessions Court white there are offences triable by a Magistrate of the 1st Class, then the case is triable by the Sessions Court and not by the Magistrate. In this view of the matter it is manifest that the Criminal Court had jurisdiction to try the present case.

4. Next point urged by the learned Advocate is that the examination of the petitioners under section 342, Cr. P. C. is not in accordance with law and that it has caused serious prejudice to the petitioners under section 342, Cr. P. C, as pointed out by the learned Advocate, is that the exact time of the occurrence not mentioned there although there is mention of the date, The time of the occurrence was given by the witnesses and the peti tioners were fully aware and conscious of what case the prosecution sought to make against them and what charges they were facing. In these circumstances, it cannot be held that the peti tioners have been prejudiced by the omission to state in the examination under section 324, Cr. P. C. the time of the occur rence.

5. The learned Advocate, has addressed himself on still another point, namely, that the Courts below did not take into account the discrepancy and contradiction in the F. I. R. and the evidence. According to the F. I. R. the occurrence took place on 24th Jaistha while the evidence mostly is that 25th Jaistha was the date of occurrence. The date of the occurrence was men tioned as 24th Jaistha in the F. I. R. and P. Ws. 5 and 6 have also testified that it was on 24th Jaistha that the occurrence took place. But the evidence of P. Ws. 1, 2, 3 and 4 is that the occurrence took place on 25th Jaistha. None of the Courts below took this contradiction into consideration. The Court of appeal below did not at all refer to the evidence of P. Ws. 1 to 4 to the effect that the occurrence took place on 25th Jaistha. The trial Court has stated in his judgment that it is in the evidence of P. Ws. 1 to 3 that on 24th Jaistha at about 11 a.m. when they were processing cotton yarn in the outer house of P. W. 2 the petitioners launched their attack. This is however, not correct. P. Ws. 1 to 3 have not mentioned 24th Jaistha but have specifically stated that this happened on 25th Jaistha. The trial Court did not care to look into the evidence before making the above statement.

6. The Courts below did not consider this important aspect of the case, namely, the contradiction regarding the date of occurrence. For this reason the conviction and sentence passed on the petitioners are liable to be set aside. The Rule is accordingly made absolute. Rule made absolute.