MOULA BUX and 5 others vs THE STATE
This criminal appeal challenges the conviction of the appellants under Section 337-F(i)(iii) of the Pakistan Penal Code 1860 for causing injuries to two individuals. During the appellate proceedings, the parties reached a compromise regarding one injured person, which was accepted by the court, resulting in the appellants' acquittal for that specific count. The remaining issue concerned the conviction related to injuries allegedly caused to the second victim, Nazeer Ahmed, who failed to appear before the trial court to testify. The prosecution argued he had absconded, yet failed to produce evidence, such as a process-server's statement or a relevant FIR, to substantiate this claim. The Court held that the prosecution failed to prove its case regarding the injuries to Nazeer Ahmed. Applying the principle of adverse inference, the Court ruled that the non-production of a material witness without sufficient justification allows for the presumption that the evidence, if produced, would have been unfavorable to the prosecution. Consequently, the conviction and sentence regarding this count were set aside, and the appeal was allowed.
- Can a conviction for causing injuries be sustained when the injured witness fails to appear and testify without a satisfactory explanation?
- Does the non-production of a material witness by the prosecution allow the court to draw an adverse presumption against the prosecution's case?
- Is the non-appearance of an injured witness in a Qisas case sufficient to negate the charge of causing injury?
- Section 337-F(i)(iii), Pakistan Penal Code 1860
- Section 345(5)(6), Code of Criminal Procedure 1898
- Article 129(g), Qanun-e-Shahadat Order 1984
1. ' RAHMAT HUSSAIN JAFFERI, J.--- The appellants were tried and convicted for offence punishable under section 337-F(i)(iii), P.P.C. And sentenced to suffer R.I. For one year on each count for causing injuries to two injured persons namely Nazeer Ahmed and Ghulam Abbass. The appeal was heard and fixed for judgment when the applications under section 345(5)(6), Cr.P.C. For permission to grant leave to compromise the matter and accepting the same were, moved by A the injured Ghulam Abbass, complainant Arab Ali and appellants. The said applications were allowed and the compromise entered between one injured Ghulam Abbass and the appellants was accepted.
2. Consequently the appellants were acquitted from the charge of causing injuries to injured Ghulam Abbass.
3. ' Now the appeal is to be decided in respect of injuries caused to Nazeer Ahmed.
4. ' Without going into the details of the matter it is pertinent to point out that before the trial Court Nazeer Ahmed did not appear and record his statement to prove that he had received injuries from the hands of the appellants. No doubt the complainant stated so but the injuries caused to a person is personal grievance. Thus, the evidence of other witnesses is neither supported nor corroborated by the evidence of injured Nazeer Ahmed.
5. ' The prosecution took the plea that injured Nazeer Ahmed had absconded in another case, therefore, he was not examined. If P.W. Nazeer Ahmed had absconded then the statement of process-server should have recorded to prove the above aspect of the case or at least a copy of F.I.R. Involving the P.W. Nazeer Ahmed should have been produced to substantiate the cause of non-examination of Nazeer Ahmed. Non-production of such material clearly demonstrates that there was no sufficient cause for withholding the evidence of. Nazeer Ahmed, therefore, the presumption as required under Article 129(g), Qanun-e-Shahadat Order, 1984 can fairly be drawn that had the P.W. Nazeer Ahmed been examined, he would have rot supported the prosecution case. Reliance is placed on the case of Asghar Ali v. The State 1992 SCM R 2088 and at page 2100 it has been observed as under:- "(22) Under the Injunctions of Islam, if an injured witness himself does not appear to charge an accused for his injury and the Court is not satisfied with his disability or incompetence or reason for not appearing then the conviction for his injury cannot be recorded on the basis of other evidence under Qisas provision. Qisas is a personal right and as it now stands, if the person, aggrieved therefrom forgives it, and one way of forgiving the wrong doer is not appearing in support of the case against the wrong doer, there will be no Qisas.
(23) Under the secular law, the position is graver for the prosecution case. In Whaston's Criminal Evidence 13th Edition by Charles E. Torcia, (Volume 1) at page 245, on the, question of withholding the evidence, the following commentary appears:-- "The withholding of evidence gives rise to an inference or presumption that the evidence withheld would be unfavourable to that party. .. If the non-existence of a fact is peculiarly within the knowledge of the defendant, it devolves upon him to produce the evidence and, if he fails to do so, the injury may properly infer that such evidence cannot be produced. Similarly, if weaker and less satisfactory evidence is produced by a party who could have furnished stronger and more satisfactory evidence, it will be presumed that the evidence withheld would be adverse to him."
6. ' In Khairdi Khan and others v. The Crown PLD 1953 FC 223 at page 243, the non-production of such a witness was dealt with as hereunder:-- "It is hardly necessary to stress the great importance which attaches to the non-production of an important witness by the prosecution in a criminal case, where no satisfactory reason for non- production is established.... The presumption provided by section 114, illus (g), Evidence Act must, therefore, be raised against the prosecution."
7. ' John Henry Wigmore in his book "A" Treatise on the Angle-American System of Evidence in Trials at Common Law... Known as Wiqmore on Evidence. Third Edition (Volume II), monograph 285 on the subject of 'Failure to produce Evidence' comments that "the non-production of evidence that would naturally have been produced by an honest and therefore, fearless claimant permits the inference.
8. That its tenor is unfavourable to the party's cause."
9. ' In view of the above position the prosecution has failed to prove that the appellants are responsible for causing the injuries to Nazeer - Ahmed. Therefore, the conviction and sentence awarded to the appellants for causing such injuries to Nazeer Ahmed are set aside. The appeal is allowed.