NAZIR AHMAD Versus STATE
Nazir Ahmad appellant was convicted under section 325/452/148/149, P.P.C. by the learned Sessions Judge Jhang vide his judgment dated 18‑7‑1990 and was sentenced to undergo one year R.I. under section 148/149, P.P.C., two years' R.I. and to pay a fine of Rs.1,000 or in default of payment of fine to undergo one month S.I. under section 452/149, P.P.C. and two years' R.I. and a fine of Rs. 1,000 or in default of payment of fine to undergo one month S.I. under sections 325/149, P.P.C. All the sentences awarded to the appellant were ordered to run concurrently, however, the sentences in default of payment of fine were ordered to run consecutively. The appellant filed Criminal Appeal 443/90 in this Court. The co‑accused of Nazir Ahmad appellant namely Shafiq‑ur‑Rehman and five others were also convicted under the aforesaid actions by the same judgment and were awarded same terms of imprisonment nil fine as Nazir Ahmad. They have filed Criminal Appeal No.449/90. As both hose appeals arise out of the same judgment, they are being disposed of by this judgment.
2. The brief facts relevant for the disposal of these appeals are that Muhammad Shaft complainant filed a criminal complaint Exh.PA. under sections 325/452/354‑A, 148/149, P.P.C. on 16‑2‑1988 in the Court of Illaqa Magistrate against the appellants. According to the complaint Exh.PA Muhammad Shafi complainant was residing in Chak No.397/JB, Tehsil and District Toba Tek Singh. He owned Toyota Hilux Wagon No.1127/SW. His brother‑in‑law Muhammad Iqbal was plying the aforesaid wagon. On 27‑11‑1987 at about 11‑00 a.m. Muhammad Iqbal boarded the wagon with passengers at wagon stand and was about to leave for Akkalwala when Muhammad Iqbal Toor A.S.I. and Falak Sher Constable No.260 appellants reached there and asked Muhammad lqbal to hand over the said wagon to them for election duty whereupon Muhammad lqbal replied to them that the passengers were sitting in the wagon and that he after dropping them at their destination would come back and deliver the wagon to them. Muhammad lqbal after dropping the passengers at Akkalwala, took the wagon to his house and did not take it to wagon stand for giving it to the appellants, Muhammad Iqbal Toor A.S.I. and Falak Sher constable because he apprehended that the Police would use his wagon for 2/3 days without any payment.
On the same day at about 2‑30 p.m. Muhammad Shafiq Complainant long with Muhammad lqbal driver and his wife Mst. Sairan was present in his house. Meanwhile, appellants armed with rifles, revolvers and sticks trespassed into his house and they while abusing Muhammad lqbal caught hold of him from his neck and dragged him outside in the courtyard whereupon Mst. Sairan in order to rescue her brother Muhammad Iqbal intervened at which the appellants attacked her.' Shafique‑ur‑Rehman appellant gave a Butt blow of his revolver on her right collar bone. The rest of the appellants started giving her beating with their sticks and she sustained injuries on her left elbow, right arm, cheek and left knee. The appellants Muhammad lqbal Toor A.S.I. and Nazir Ahmad S.I. forcibly tore her clothes, laid her on the ground and made her naked. Nazir Ahmad S.I. brought the iron rod and inflicted it on her chest. Meanwhile the constables had apprehended Muhammad Shafi complainant and Iqbal P.W. On hearing alarm of Muhammad Shafi Complainant, Muhammad Iqbal and Mst. Sairsn including Muhammad Nawaz Khan son of Mehr Bahadar, Nawab son of Moosa, Jafar son of Inayat etc. reached there.. They challenged the appellants whereupon the appellants by hoarding the official vehicle made good their escape from the spot Muhammad Shy complainant removed his wife Mst. Sairan P.W. to the Hospital in injured condition and got her medically examined on the same day. Thereafter he went to the Police Station for the registration of the case against the appellants but the Moharrir turned him out from the Police Station and did not register the case. The complainant submitted an application to the S.P. Toba Tek Singh for registration of the case, who passed an order accordingly. Then the complainant along with the said application went to the Police Station for registration of the case but the SHO asked him to come on the following day of the general election. The complainant went to the Police Station on 1‑12‑1987 in the company of Rab Nawaz for the registration of the case but the‑ Police arrested them in a false case. The complainant after being released on bail on 31‑12‑1987 tried for registration of the case but in vain. Hence he filed the complaint on 16‑2‑1988 in the Court of Ilaqa Magistrate.
3. The complainant in order to prove its case produced six P.Ws. in all and tendered in evidence documents Exh. PA to Exh.PF. Muhammad Shafi complainant P.W. 1 in his statement reiterated the contents of complaint Exh.P.A. He in cross‑examination stated that his house consisted of four rooms and courtyard and that there are about 20/25 houses in the Abadi where his house is situated. He stated that the occurrence had taken place about 15 minutes and that first of all Nawab P.W. had come to the place of occurrence and after him Jafar and then Nawaz P.W. had reached there. He denied the suggestion of the defence that Nazir appellant was not present at the spot at the time of occurrence. He also denied the suggestion that Nawab son of Moosa was an absconder in Hudood case and that the appellants had come to his Chak to arrest him. He also denied the suggestion that he and his companions including his wife and other womenfolk resisted the arrest of absconders including Nawab. Muhammad Nawaz P.W. 2 deposed that he knew Muhammad Shari complainant, his brother‑in‑law Muhammad lqbal P.w'. and also the appellants. He deposed that on 27‑11‑1987 at about 2‑30 p.m. he was going in his car from Toba Tek Singh to his village and when reached near the house of Muhammadd Shari complainant situated in his Chak on the Pakka roadside, a Police wagon halted there and that on seeing the Police Wagon he stopped his motor car and came out of it and saw appellants Shafique, Nazir, Falak Sher, Noor Ahmad, Naseer, Iqbal and one other constable who had alighted from the Police Wagon. Three Thanedars namely Shafique, Nazir and Iqbal were armed with revolvers while the constables were armed with lathis and rifles and they entered into the house of Muhammad Shafi complainant. Shafique‑ur‑Rehman appellant pulled out Iqbal P.W. from inside the room to the courtyard whereupon her sister Mst. Sairan P.W. protested against the act of the appellants. She tried to intervene to rescue her brother whereupon Shafique‑ur‑Rehman appellant gave a butt blow of his revolver which hit Mst. Sairan P.W. on her right collar bone. The other appellants also joined‑hands with Shafique‑ur‑Rehman appellant and gave beating to Mst. Sairan P.W. with their respective weapons. Then Nazir and Iqbal appellants laid Mst. Sairan P.W. to lie on the ground and stripped off her clothes. Meanwhile Nazir appellant went outside and brought an iron rod from the Police wagon and hit it to Mst. Saran on the right side of her chest. During the occurrence Jafar and Nawab were also attracted at the spot and then the appellants made good their escape while boarding in their official Wagon, he admitted that on the same day the Police had registered a case under section 216/353/382/337/279, P.P.C. about this occurrence in which he was also challaned. He volunteered that all the accused of the said case were acquitted. He denied the suggestion for the defence that the police had raided the house of the complainant in connection with arrest of some absconders and that they all had resisted the raid. He denied the suggestion that he got instituted this complaint in order to create defence in the aforementioned case under section 216/353/ 382/337/279, P.P.C. Mst. Sairan P.W.3 is injured P.W. and wife of the complainant. She deposed that Iqbal P.W. is her cousin. He lived in her house with them; that about a year ago at about 2/2‑30 p.m. she along with her husband and Muhammad Iqbal P.W. was present in her house and that in the meantime seven Police officials namely Shafique‑ur‑Rehman, Nazir and Iqbal Thanedars armed with revolvers, Noor Ahmad, Falak Sher, Naseer and another Constable whose name she did not remember armed with rifles and lathis trespassed into their house. Shafque‑ur‑Rehman appellant pulled out Muhammad lqbal from the room by holding him from his collar. She asked the appellants as to why they were manhandling him and tried to intervene and rescue him, whereupon the appellants left Iqbal P.W. and attacked upon her. First of all Shafique‑ur‑Rehman appellant inflicted the butt of his revolver on her right collar bone and thereafter all the appellants started beating her and she sustained injuries on various parts of her body. Na7.ir and Iqbal appellants stripped her off. Then Nazir appellant brought an iron rod from the Police van and hit it on her chest and she fell on the ground. The other appellants had caught hold of her husband Muhammad Shy complainant and brother lqbal P.W. and that upon their hue and cry, Nawab, Jafar and Nawaz P.Ws. reached the spot and witnessed the occurrence. Besides them many other people of the village also reached there and the appellants then fled from the spot and that she was medically examined. Muhammad Iqbal P.W.4 deposed that he was driving wagon No.1127/SW of the complainant, between Toba Tek Singh and Akkalwala. About 1‑1/2 years before at about 11‑00 a.m. his wagon was parked at Adda Toba Tek Singh and was waiting for the passengers as it was his turn.
In the meantime, appellants Iqbal Toor Falak Sher Constables came there and asked him to accompany them with the wagon as the wagon was required for election duty on which he replied that some passengers were sitting in the wagon and that after dropping them at Akkalwala he would come back with the wagon and then he would accompany them for the election duty.
He further deposed that when he took his wagon to Akkalwala and dropped the passengers there he thought that if he went to aforesaid accused they would use his wagon for about 4/5 days without paying him any charges and as such he decided to go to his Chak instead of going to Toba Tek Singh. After reaching his Chak he parked the wagon in his house, and was sitting inside the room alongwith his sister Mst. Sairan and Muhammad Shaft P.Ws. at about 2‑00 p.m. when appellants Shafique‑ur‑Rehman, Muhammad Iqbal.19 Falak Sher, Noor Ahmad, Naseer and another constable whose name he did not remember while variously armed came there. Shafique‑ur‑Rehman caught him from his collar and pulled him out in the courtyard and slapped him. His sister Mst. Sairan P.W. intervened to rescue him whereupon Shafique‑ur Rehman appellant gave the butt of his pistol on her right collar bone. The other appellants also gave her beating and that Iqbal Toor and Nazir appellants stripped off her. Thereafter Nazir appellant went outside and brought an iron rod from the Police vehicle and inflicted it on the chest of his sister Mst. Sairan P.W. On their hue and cry Muhammad Nawaz, Nawab and Jafar P.Ws. reached there who witnessed the occurrence. He denied the defence suggestion that a case under Hudood Ordinance was registered against him and his brother in District Sukkur and that they were absconders in that case. He also denied the suggestion that Muhammad Iqbal A.S.I., Falak Sher and other Constables conducted raid upon them and they tore the uniform of the Police officials and also snatched the belt and cap of Falak Sher appellant. He admitted that the Police registered a case under sections 353/382/ 216/279/148/149, P.P.C., against them. He denied the suggestion that they managed to escape and his sister Mst. Sairan P.W. was injured by striking with his wagon and that his brother‑in‑law Muhammad Shaft lodged false complaint in order to create defence to the afore mention registered at the instance of the Police.
Dr. Shaheena Mubarak WM (P.W.5) DHQ Hospital Toba Tek Singh on 27‑11‑1987 medically examined Mst. Sairan wife of Muhammad Shaft and found the following injuries on her person. ‑
(1) A swelling of 3 cm x 3 cm over the centre of right clavicle.
(2) A lacerated wound 1.5 cm x 1 cm x bone, deep on the back of left elbow joint,
(3) An abrasion 6 cm x 0.5 cm on the back of right forearm 4 cm above the right wrist joint.
(4)' An abrasion 3 cm x 2 cm on the left cheek just near the left eye.
(5) An abrasion 6 cm x 0.5 cm on the inner side of left ankle joint.
(6) She complains of pain in the whole of right chest but no visible injury or swelling seen.
Muhammad Latif (P.W.6) Radiographer, DHQ Hospital Toba Tek Singh deposed that on 28‑11‑1987 Mst. Sairan P.W.3 wife of Muhammad Shaft complainant was referred to him by W.M.O. Shaheena Mubarak for X‑Ray of her injuries. Accordingly, he X‑Rayed her right chest and right clavical at No.462 and X‑Ray film is Exh.PC and that he sent the film to the aforesaid W.M.O. for her opinion.
Muhammad Shat complainant vide his statement dated 5‑3‑1990 tendered in evidence certified copy of an application dated 12‑6‑1988 written by Saif Ullah Inspector Exh.PD and the order of Magistrate recorded on the said application Exh.PD/A. certified copy of report under section 173, Cr.P.C. in case FIR No.182 of 1987 of Police Station Toba Tek Singh dated 12‑6‑1988 Exh.PE, certified copy of judgment of the Ilaqa Magistrate dated 21‑9‑1988 in case F.I.R. No. 182/87 Exh. PF and closed his evidence. .
The appellants professed innocence. Shafique‑ur‑Rehman appellant stated that he had investigated case FIR No.182/87 dated 27‑11‑1987 registered against Muhammad Shaft complainant, Muhammad Nawaz P.W. his brother Rab Nawaz, Nawab and Balawal etc. and that he had also got re examined Mst.Sairan P.W. in the said case and on this account the complainant and the P.Ws. falsely involved him in this case. Appellants Nazeer Ahmad, S.I. Umar Hayat and Naseer Constables stated that the P.Ws. were accused in case A.I.R. No.182, dated 27‑11‑1987 and that they in order to create defence filed this complaint. Umar Hayat and Naseer Constables stated that they had accompanied Shafique‑ur‑Rehman S.I. who had gene to Chak No.397/JB for investigation of case FIR No.182, dated 27‑11‑1987 in which the complainant and the P.Ws. were accused and for this grudge they have been falsely involve"' in this case. Muhammad lqba1 Toor ASI stated that in fact on 27‑11‑1987 he received a secret information that Nawab son of Moosa, Balawal son of Abdul, Suleman son of Wali Muhammad, Fazil son of Ashiq, Bashir son of Abdul Raheem, Moosa son of Noor Muhammad, caste Od, residents of Chak No.397/JB were proclaimed offenders in case FIR N0.190/84 under sections 10/11 of the offence of Zina (Enforcement of Hudood) Ordinance No.VII of 1979 registered at Police Station C‑Section Sukkur and that they were present at their residence and could be arrested, so he along with Falak Sher Constable Muhammad Iqbal ASI, Bashir Ahmad Constable No.515, Noor Ahmad Constable No.306 and some persons from the public conducted raid upon the Jhuggis of the proclaimed offenders where 25/30 women and 15/20 males were present and that Muhammad lqbal son of Nawaz, Muhammad Shaft, Nawab and Nawaz P.Ws. and some others resisted the raid and raised lalkara for killing the Police party and they snatched the official cap and belt of Falak Sher Constable and that the proclaimed offenders managed to run away on the >lagon which hit Mst. Sairan and that he sent a complaint for registration of case under sections 216/186/279/337/148/149, P.P.C. on which a case FIR '0.182 was registered at Police Station Toba Tek Singh which later on was nvestigated by Shafique‑ur‑Rehman and for this reason he has been falsely involved in this case. Falak Sher and Noor Muhammad stated that they had accompanied Muhammad Iqbal Toor A.S.I. who had conducted raid upon the proclaimed offenders and for this reason they have been falsely it involved in, this case. All the appellants declined to make their statements on oath, however, they offered to produce their defence evidence. '
The appellants in their defence produced Muhammad lqbal ASI as D.W.1 who proved copy of report No.7 dated 10‑2‑1985 Exh.DB, copy of daily diary report No. 13, dated 10‑2‑1985 Exh.DC, report No.8 of daily diary register dated 27‑11‑1987 Exh.DD, ropy of report No. 13 of daily diary register Exh.DE, copy of F.I.R. No.182, dated 27‑11‑1987, under sections 216/186/279/337/ 148/140, P.P.C. Exh.DF and copy of report No. 15 dated 27‑11‑1987 of the daily diary register Exh.DG.
Abdul Hayee D.W.2 deposed that about 2‑1/4 years before he had gone to Bungalow Akkalwala with Police party headed by Muhammad Iqbal Toor A.S.I. and from the said Bungalow Akkalwala he alongwith the Police party went to the huts of the Oods situated at a distance of half furlong from the said bungalow and when they reached there some accused were sitting on the cots and that the Police apprehended Muhammad Shah complainant who was sitting on the cot and that one Muhammad Nawaz who was sitting there asked the other persons sitting there to attack the Police party whereupon 15 men and 25/30 women attacked the Police party and got released Muhammad Shat complainant who while sitting in a wagon succeeded in running away and that those persons apprehended Falak Sher Constable and forcibly snatched his cap and official belt and his shoulders and thereafter they ran away from the spot and that Muhammad Shafi complainant while running away in a wagon ran over a woman and that about 6/7 persons had boarded in that wagon along with Muhammad Shall complainant while running away.
9. The learned counsel for the appellants contended that it is a case of two versions; one version has been given by the prosecution which is being supported by close relatives of the complainant and the injured P.W. whereas the other version has been advanced by the defence that the appellants went to Chak No.397/JB for the arrest of proclaimed offenders in case FIR No.190, under sections 1')/11 of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 registered at Police Station C‑Section Sukkur. In that connection, they raided upon the Jhuggis of proclaimed offenders where 25/30 women and 15/20 men were present and Muhammad Iqbal son of Nawab, Muhammad Shafi and Muhammad Nawaz P.Os and some other persons resisted the raid and raised lalkara for killing the Police party and they snatched the official cap and belt of Falak Sher appellant and thereafter the proclaimed offenders managed to run away in that wagon which hit Mst.Sairan and on the complaint of Muhammad lqbaC ASI a case vide F.I.R.No.192, under sections 216/186/ 279/337/148/149, P.P.C. was registered at Police Station Toba Tek Singh on 27‑11‑1987. He further contended that the complaint was lodged after inordinate delay which makes the prosecution case further doubtful. In the end, he submitted that the ocular version furnished by these highly interested persons is against the medical evidence and also referred to certain discrepancies between the statements of the eye‑witnesses regarding the manner in which the injuries were caused to Mst. Sairan P.W.3 and also submitted that Muhammad Nawaz P.W.2 is a chance witness and he could not see the occurrence while standing outside the house.
10. The learned counsel for the State has supported the judgment of the learned trial Court.
The learned counsel for the complainant has urged that the defence plea of the appellants is fictitious and fabricated one as neither the certified copy of FIR No.190/87, under section 10/11 of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, registered at Police Station C‑Section Sukkur nor the orders of the relevant Court declaring those persons who were allegedly accused in that case, proclaimed offenders, was produced by the appellants in their defence. He also contended that the version given in the complaint is truthful and the evidence led by the prosecution is straight forward and confidence inspiring.
11. I have carefully gone through the record of the case with the able assistance of the learned counsel. I have also examined critically the; respective submissions of the learned counsel for the parties referred above.
12. The cardinal principle of administration of criminal justice with respect to the decision of the case of two versions is that both the versions are put in juxtaposition, then on the basis of the evidence adduced before the Court, the Court has to see which version is more probable and nearer to the truth subject to the limitation that it is the duty of the prosecution to prove the guilt of the accused beyond any reasonable doubt. If any doubt arises, that must be resolved in favour of the defence.
13. Applying the aforesaid golden principle of law to the facts of this case, I find, the prosecution witnesses are the natural and probable witnesses of the occurrence as the occurrence took place in the house of the complainant, the evidence of the prosecution stands fully corroborated by the medical evidence as well 4s by the evidence of P.W.2 Muhammad Nawaz who is an independent witness. The contention of the learned counsel for the defence is devoid of force that he is a chance witness and he could not witness the crime while standing outside the boundary wall of the house as no suggestion was put to this witness and there is no background of enmity between the appellants and the witnesses referred above. I see no justification to discard their straightforward, truthful and confidence inspiring evidence. Even the presence of Muhammad Nawaz P.W. is admitted by the defence as he was made an accused in case F.I.R. No. 182/87 under sections 216/186/279/337/148/149, P.P.C. lodged by Muhammad Iqbal Toor appellant on the said date at Police station Sadar, Toba Tek Singh.
14. I have carefully examined the defence version and I find that it is an after thought and fabricated one. Muhammad lqbal Toor, Falak Sher and Noor Ahmad appellants stated in their statements that they conducted the raid to arrest P.Os upon the nuts of Oods and that Muhammad Nawaz P.W. along with some other persons including 20 to 25 women resisted the raid and got released Muhammad Shafi complainant and other P.Os and that Muhammad lqbal took them in his wagon and managed to escape while Shafique‑ur Rehman, Umar Hayat and Naseer appellants pleaded that they had investigated the case FIR No.182/87, dated 27‑11‑1987. There is no material on the record to prove, what was the nature of the case, who were the accused in that F.I.R. as the certified copy of that F.I.R. was not placed on the record. The defence of the appellants is based upon Rapt No.8 of Daily Diary register dated 27‑11‑1987 Exh.DD but there is no corresponding order placed on record declaring those persons as proclaimed offenders under section 87, Cr.P.C. I approve the findings of the learned trial Court that this defence is an afterthought and fabricated one as the complainant and the P.Ws were later on acquitted in that case which strengthens the prosecution case that the police officials/appellants in order to cover up their high‑handedness involved the complainant and the eye‑witnesses in a false and fabricated case. Even the certified copy of report under section 173, Cr.P.C. Exh.PE shows that only Mst.Sairan and Mst.Nooran were challaned while Rab Nawaz and Muhammad Nawaz were placed in column No.2 of the challan and the rest of the accused mentioned in the said F.I.R. were not even challaned and had been discharged by the order of the Magistrate, a copy of which is Exh.PD/1. The certified copy of the judgment passed by Malik Muhammad Mushtaq, Ilaqa Magistrate in case F.I.R. No. 182/87, dated 27‑11‑1987 under sections 216/186/279/ 337,/148/149, P.P.C. titled as "State v. Muhammad Shafi etc." shows that the accused of the said case were acquitted by the Court under section 249‑A, Cr.P.C. which fully exposes the falsehood of the defence version. The contention of the learned defence counsel with respect to the discrepancies regarding the height of the boundary wall and the manner in which Mst.Sairan received injuries on her person are of insignificant nature and minor in character. This type of discrepancies do occur in the evidence of most honest, truthful and straightforward witnesses due to the lack of memory and the difference of perceptions of the persons who appear in the witness box. These minor discrepancies are not of such a character which would materially affect the credibility of the prosecution witnesses,
15. The upshot of the above discussion is that these appeals have got no merits and the same are dismissed accordingly. All the sentences recorded by the learned trial Court are maintained. As the appellants are on bail, they are directed to surrender to their ball bonds. They shall be taken into custody and sent to jail to serve out remaining portion of their sentences.
N.H.Q./N‑68/L Appeal dismissed.