1992 P Cr (PLP)

Islam Khan appellant and four others, were tried under sections 295‑C, 506, 149 and 147, P.P.C. by the learned Additional Sessions Judge, Narowal. The trial Court, convicted Islam Khan under section 506, Part II, P.P.C. vide judgment dated 27‑7‑1988, and sentenced him to two years' R.I. whereas his co‑accused were acquitted of the charges. Hence the present appeal.

2. F.I.R. Exh.P.A./2 in this case was registered on the written application Exh.P.A. of Asadullah Khan (P.W.1). It is alleged in the said application that on 20‑3‑1987, he went to Jamia Masjid Jalala for performance of Juma prayer. After recitation from Holy Qur'an, he had just started its Urdu translation, when he received a message from the appellant and the acquitted accused that he should not deliver speech about Khatam‑i‑Nabuwat, failing which he would face dire consequences. After offering Juma prayer, the complainant went to village Ikhlaspur, where the accused abused him and used filthy language. They threatened the complainant that if he talked against them, he would be (tilled. The complainant further asserted in the said application that the accused man handled him. The occurrence was witnessed by Nasir Khan and Hamid Khan, who rescued him otherwise the accused would have killed him. Initially, the case was registered under section 506/149/147, P.P.C. but later on section 295‑C, P.P.C. was also added.

3. The prosecution in support of its case produced five witnesses, out of them, Asadullah Khan (P.W.1) and Hamid Khan (P.W.4) gave the ocular version. They deposed that the appellant alongwith the acquitted accused abused the complainant in front of the hotel of Nazir, manhandled him and also gave him fist blows.

4. The appellant denied the prosecution allegations and stated that the accused party are the members of one family. They converted into Ahmadi sect in the year 1960. The complainant party is from their brotherhood. From the year 1974 onwards, the complainant party had been persuading the accused party to leave to Ahmadi sect and enter in their religion, but on the refusal of the accused party to do so, this false case had been cooked up against them. The appellant declined to produce any evidence in defence.

5. The trial Court believing the ocular version of Asadullah Khan (P.W.1) and Hameed Khan (P.W.4) convicted the appellant as indicated above.

6. Learned counsel for the appellant vehemently contended that in the present case, it is an admitted fact that relations between the parties are not cordial due to their religious difference, although the parties belong to the same brotherhood; hence there should be some independent corroboration of the ocular version to sustain the conviction, which is lacking in the present case. He further submitted that Hameed Khan (P.W.4) is the brother‑in‑law (sister's husband) of Asadullah Khan (P.W.1) and in the absence of any confirmatory evidence, either in the shape of medical evidence or otherwise, his statement cannot be accepted on its face value. He forcefully contended that the evidence of these two witnesses has been disbelieved by the trial Court qua the acquitted accused and the learned trial Judge has erred in law while convicting the appellant solely on the basis of the statement of the appellant, because the law requires that the statement of an accused should either be accepted or rejected in its entirety, but this principle of law has not been adhered to in the present case. He forcefully argued that on the belated application of the complainant, section 295‑C, P.P.C. was added after ten days, which after thorough discussion was found to be incorrect by the trial Court, hence the evidence of these witnesses should not be believed against the appellant for the offence under section 506, P.P.C. without independent corroboration which is not forthcoming in the present case.

7. Learned counsel for the State has supported the impugned judgment and submitted that the complainant being Pesh Imam of the mosque is not expected to tell a lie in the Court, hence his uncorroborated testimony should be believed. He half‑heartedly contended that the acquittal of the accused under section 295‑C, P.P.C. is not based upon proper appreciation of evidence and, as there is no State appeal, he can only make a request for re‑trial of the said accused after exercising suo motu revisional powers under section 439, Cr.P.C.

8. I have carefully gone through the evidence with the able assistance of the learned counsel for the parties. After examination of the aforementioned contentions, I find substantial force in the submission of the learned counsel for the appellant that the statements of Asadullah Khan P.W.1 and Hameed Khan P.W.4 are not being corroborated by any independent evidence and in view of difference of faith, their uncorroborated testimony could not be accepted in the interest of justice. Asadullah Khan P.W.1 categorically stated that he was manhandled and given fist blows by the appellant and the acquitted accused who were five in number, but there is no medical evidence to corroborate his testimony. Furthermore, the only independent witness Nazir, in front of whose hotel the occurrence took place, has not been produced by the prosecution, which reflects adversely on the prosecution case. The mere admission of the appellant that his co‑accused warned Asadullah Khan P.W. that he should not abuse them is not sufficient to sustain the conviction of the appellant, because the prosecution must stand on its own legs and not on the infirmity, if any, A occurring in the defence version. The allegation against the appellant and the acquitted accused with respect to the charge under section 295‑C, P.P.C. was found to be false by the trial Court after elaborate discussion and in the absence of any appeal by the State, this finding has become final. The non filing of appeal by the State against the acquittal of the accused for the offence under section 295‑C, P.P.C. shows that the complainant is not as truthful a witness as he wants this Court to believe. In this view: of the matter, independent corroboration of the evidence of the witnesses is `must' even for maintaining the conviction of the appellant, which unfortunately is not available in the present case.

9. In view of the above discussion, I hold that the prosecution has miserably failed to bring home the guilt to the appellant. Consequently I accept this appeal, set aside the conviction and sentence of the appellant and acquit him. He is on bail and is discharged from his bail bond. H.B.T./I‑275/L Appeal accepted.