MEHMOOD AHMED BUTT Versus STATE

1. Appellant Mehmood Ahmed son of Manzoor Ahmed was charged under section 332, 353, P.P.C. and tried before the learned IInd Additional Sessions Judge, South, Karachi, in Criminal Case No.65 of 1986, who has convicted and sentenced him as under vide judgment dated 3‑9‑1988:‑‑

1. Under section 332, P.P.C. R.I. for two years.

2. Under section 333, P.P.C. R.I. for 2‑1/2 years and fine of Rs.500 in default to suffer further R.I. for two months.

3. Under section 353, P.P.C. R.I. for two years.

2. The substantive sentences were ordered to run concurrently.

3. The brief facts giving rise to the present appeal are that on 10‑12‑1985, complainant Muhammad Hanif Traffic Police Constable was posted at Gagget Chowk, I.I. Chundrigar Road, Karachi for Sindh Assembly duty from 7‑30 a.m. to 3‑00 p.m. While he was performing his duty at 2‑00 p.m. a rickshaw NoACR‑768 came there and the driver was directed to turn the same to the other side. The driver who later on disclosed his name as Wahid Rasool, obeyed the direction but the passenger sitting in the rickshaw who disclosed his name later on as Mehmood Ahmed was annoyed with the complainant, and observed that rickshaw driver is not servant of his father, and he will not turn the rickshaw as per his direction. The complainant tried to make him understand but he did not listen to the complainant and assaulted him and started beating him with kick and fist, due to which the complainant received injuries on right side eye, nose and other parts of his body. In the meanwhile his colleague Constable Mukhtar Ahmed reached there and saved him from the clutches of accused Mehmood Ahmed, and then they overpowered the accused and took him to Police Station, Civil Lines. He produced the accused at the Police Station where he was arrested and the complainant lodged his report. Thereafter the complainant was referred to the Medical Officer for examination, treatment, and after usual investigation the accused was sent up before the Court.

4. A formal charge was framed against the accused, to which he pleaded not guilty.

5. At the trial prosecution examined complainant Muhammad Amin, P.W.1, who has produced F.I.R. as Exh.7, Mukhtar Ahmed, Traffic Constable P.W.2, who has produced memo. regarding seizure of uniform of the complainant which was blood‑stained as Exh.9, memo. of arrest of accused as Exh.10, memo of place of wardat as Exh.ll. Muhammad Sidique Tariq, the then S.H.O. Civil Lines P.S. P.W.3, he had carried on part of the investigation. However, he proceeded on leave on 22‑12‑1985, and handed over the case papers to S.I.P. Ghazi Shah who carried on the remaining investigation. Dr. Hamid Ali P.W.4, who has produced medical certificate regarding injuries sustained by complainant Muhammad Amin as Exh.16 and supplementary certificate as Exh.14. A.S.I.P. Muhammad Zafar who had recorded the F.I.R. P.W.5, S.I.P. Ghazi Shah he was handed over case papers by S.H.O. Muhammad Siddiqui and since the investigation was already complete he challaned the accused before the Court.

6. After close of the prosecution case, the statement of the appellant was recorded under section 342, Cr.P.C. in which he has denied the allegations. He has further stated that on the day of incident, he was going in auto‑rickshaw, which was stopped by traffic constable and the driver was taken by them to roadside where the driver had quarrel w !h the P.C. and both had a fight, and were bleeding. He did not participate ~in the fight. The police took him and driver to P.S. where he was put behind the bars. He has also examined himself on oath as envisaged by section 340(2), Cr.P.C. He has also examined one Muhammad Saleem, D.W.2, who has deposed that about 2‑1/2 years ago, he was passing from McLeod Road, Karachi, at about 12‑30 or 1‑00 p.m., he saw that there was quarrel going on between auto‑rickshaw driver and P.C. near auto‑rickshaw, he remained at Wardat. He also saw police constable maltreating rickshaw driver. Accused Mehmood Ahmed sitting in Court came out of rickshaw to rescue the driver. The P.C. maltreated him as well, the police was from traffic department.

7. After taking into consideration, the evidence produced by the prosecution and the accused, the learned trial Judge was pleased to convict the accused under sections 332, 333 and 353, P.P.C. The present appeal is directed against the above judgment of conviction.

8. It was contended by Mr. Ch. Iftikhar Ahmed, learned counsel, appearing for' the appellant that the accused was charged under sections 332 and 353, P.P.C. and the learned trial Judge, has erred in convicting the appellant under section 333, P.P.C. as well. He has further contended that the evidence produced by the prosecution was interested, unreliable and the learned Judge has erred in convicting the appellant. In the alternative, it was contended by Mr. Ch. Iftikhar Ahmed that the appellant is a respectable person and had suffered agony of protracted trial from 10th December, 1985 and has also remained in custody for seventeen days and, therefore, it will not be appropriate to send him back to jail after 5‑1/2 years, and he had no objection if the sentence of fine was enhanced to some extent.

9. Mr. A.K. Jatoi, learned counsel appearing for the State has contended that the prosecution evidence was straightforward, natural and reliable, and the complainant and P.Ws. had no reason to implicate the appellant falsely. He has conceded to the legal proposition that since the charges framed against the appellant were of lesser offence, the appellant could not be convicted under section 333, P.P.C. He has further contended that looking to the facts and circumstances of the case, and the agony undergone by the appellant during the trial, he had no objection, if the sentence was reduced to some extent.

10. I have considered the contentions, and have gone through the R&P of the case. Admittedly, the complainant and P.W. Mukhtar Ahmed had no enmity with the appellant so as to falsely implicate him in this case. The evidence of the above two witnesses appears to be straightforward, natural, reliable and has not been shaken in any way in cross‑examination. There was no reason for the complainant to leave the actual culprit (auto‑rickshaw driver) and to implicate the appellant falsely. The defence of the appellant appears to be afterthought, and the fact that the defence witness (Muhammad Aslam) claims that the accused was not known to him prior to this incident, it was surprising as to how the appellant came to know about the name and address of the defence witness namely, Muhammad Salim. It appears that Muhammad Saleem was a set‑up witness, and his evidence was rightly ruled out of consideration.

11. From the above discussion, it is clear that the prosecution had proved its case against the appellant beyond reasonable doubt and he was rightly convicted under section 332/353, P.P.C. However, since the appellant was charged under sections 332 and 353, P.P.C. only, he could not be convicted under section 333, P.P.C. as well and, therefore, the conviction and sentence of the appellant under section 333, P.P.C. is bad in law and is accordingly set aside.

12. I have given my anxious consideration to the question of sentence, admittedly the incident took place in December, 1985, and the appellant had to undergo agony of protracted trial and in appeal for more than 5‑1/2 years, and he has already remained in custody for 17 days and, therefore, it will not be appropriate to send him back to custody, therefore, the substantive sentence 0 awarded to the appellant is reduced to one already undergone. However, the sentence of fine is enhanced from Rs.500 to Rs.1,000 (Rupees one thousand) in default whereof the appellant shall suffer R.I. for one month. The fine to be deposited before the Nazir of this Court within seven days. The fine if paid, the same shall be paid to P.C. Muhammad Amin/Complainant as compensation.

13. N.H.Q./M‑1495/K Order accordingly.