SAEED AHMAD Versus STATE

1. USMAN ALI SHAH, J .--This direct appeal under section 12 of the Special Courts for Speedy Trial Ordinance No.II of 1987 has arisen against the judgment dated 28th October, 1987 passed by the learned Judge of Special Court No.III, Gujranwala at Lahore, whereby he convicted the 5 appellants herein under sections 148, 452/149, 307/149 and 354-A/149, P.P. C. and sentenced each one of them as under: ---

(1) Under section 148, P . P . C . , 1 year's R.I.

(2) Under section 452/149, P. P. C . , 3 years' R.I. and a fine of Rs.500 or in default 3 months' R.I.

(3) Under section 307/149, P.P.C., 7 years' R.I. and a fine of Rs.1,000 or in default six months' R.I.

(4) Under section 354-A, P.P.C. imprisonment for life and a fine of Rs.2,000 or in default R.I. for one year. with direction that all the sentences of imprisonment shall run concurrently. The learned Judge further directed that the sum of Rs.10,000 out of the total fine, if recovered, will be paid as compensation to complainant Mst. Safia Bibi.

2. Briefly, the prosecution case is that the first husband of complainant Mst. Safia Bibi (PW.8) namely, Muhammad Ali, died about 10/11 years prior to the occurrence. She had a daughter and 3 sons from him. She alongwith her children had inherited some property from him. She married again one Farzand Ali. Talib Hussain the brother of her first husband had sold his share to appellant Muhammad Sharif. Mst. Safia Bibi complainant had constructed a manger in front of her house. Appellant Muhammad Sharif claimed to have purchased the said site from Talib Hussain. About 9-10 days prior to the occurrence appellant Muhammad Sharif alongwith his son-in-law appellant Ali Muhammad, demolished the manger. This resulted in dispute between the parties but was settled between them by the respectables of the locality. Mst. Safia Bibi, however, entertained fear from the accused party and on her application proceedings under section 107/151, Cr.P.C. were initiated against Muhammad Sharif, Ali Muhammad and Muhammad Sadiq appellants. As a result, Muhammad Sharif, Ali Muhammad and Muhammad Sadiq appellants were bound down on the one side and Farzand Ali, the second husband of the complainant, on the other for keeping peace.

3. On 18-8-1987 at about 12 noon, Mst. Safia Bibi was serving meals in her house to her children. Meanwhile, the appellants armed with sticks entered the house. Mst. Hussain Bibi appellant was empty-handed. On her Lalkara, the other appellants started giving stick blows to complainant Mst. Safia Bibi. In the course of beating the complainant, the appellants removed her clothes from her and made her naked. She was dragged out of her house and thrown in nearby pond. She was then taken out of the pond, her hands were tied behind and was made to stand on the public path. The occurrence among others was witnessed by Muhammad Boota (PW.9) and Said (PW.10).

4. After the occurrence complainant Mst. Safia Bibi was taken to hospital at Shah Gharib for examination and treatment. Knowing about the occurrence, A.S.I. Muhammad Hussain (PW.11) reached the hospital and recorded her statement (Ex.Pl), to the above effect on the basis of which a case was later registered against the appellants.

5. Dr. Khalid Muhammad Ashraf (PW.1) examined Mst. Safia Bibi on 18-8-1987 at about 10 p. m. He found as many as 27 injuries on her person.

6. On completion of investigation the appellants were challaned in Court to stand trial on the above-mentioned charges. The learned trial Judge relied upon the ocular account furnished by complainant Mst. Safia Bibi (PW.8), Muhammad. Boota (PW.9) and Said (PW.10), on medical evidence. and on the motive for the occurrence. It is not denied that the appellants are closely inter-related. Appellant Saeed Ahmad is the son of appellant Muhammad Sharif and appellant Mst. Hussain Bibi. The daughter of Muhammad Sharif is married to appellant Ali Muhammad. Appellant Muhammad Sadiq is the collateral of Muhammad Sharif. It is a matter of record that there was a dispute over the construction of the manger between the parties who were bound down in security proceedings under section 107/151, Cr.P.C. for keeping peace. PW.9 Muhammad Boota and PW.10 Said are disinterested witnesses. They are neither related to the complainant party nor have they any enmity with the accused party. The learned counsel for the appellants, however, urged that these witnesses were procured to depose against his clients. He argued that these 2 witnesses are not the residents of the village where the occurrence took place. And thus their evidence cannot be relied upon. We. have not been able to appreciate this contention. The village of these two witnesses is situate at one Kos from the place of occurrence. These two witnesses Stated that they were proceeding back to their village Bona from Kakeywali on a public path. Village Padhiar where the occurrence took place falls on the way. On reaching near the mosque, they saw the accused armed with sticks, entering the house of the complainant Mst. Safia Bibi. Thereafter, the appellants took out the complainant from her house, she was made naked and her hands and legs were tied. Nothing is shown from the evidence on record which renders the evidence of these two witnesses doubtful. The learned counsel for the appellants also contended that not a single witness from the village of the complainant was produced to depose against the appellants. He also contended that according to the complainant, she was serving meals to her children at the time of offence but her children were also withheld to depose against the appellants. These, according to the learned counsel, cast doubt on the prosecution case. He also urged that if at all the complainant was a truthful witness, her villagers and more so her children would have come forward to support her. This contention is also without force. The .children of the complainant were minors and as regards residents of the village, we agree with the learned trial Judge that they must have seen the occurrence but to avoid earning displeasure of either of the parties no one of the village came forward to become witness in this case.

7. On a careful review of the evidence on record, we have come to the conclusion that except Mst. Hussain Bibi appellant, the guilt against the other appellants is proved beyond reasonable doubt. In the F.I.R. Mst. Safia Bibi complainant stated that Mst. Hussain Bibi appellant was empty-handed at the time of occurrence, when she was entering her house. The allegation that she was tied to a tree and was given beating with Danda by Mst. Hussain Bibi appellant, also does not find mention in the F.I.R., lodged by her. This casts doubt that the appellant Mst. Hussain Bibi took any part in the occurrence. We would, therefore, give her the benefit of doubt and while accepting her appeal, set aside her convictions and sentences with direction that she shall be set at liberty, if not required in any other case.

8. As far as the remaining four appellants are concerned, in the facts and circumstances of the case, they were responsible for causing injuries and insult to the complainant Mst. Safia Bibi. We have already held them guilty of the charge against them. In the F.I.R., the complainant alleged that at the time of occurrence they were armed with sticks. According to the medical evidence, the complainant bore as many as 27 injuries on her person which must be the role of four accused. About 7/8 days before the occurrence, there was a quarrel between the parties and they were bound down to keep peace. In all these circumstances, the learned trial Judge has properly appreciated the evidence on record and his findings about the guilt of the appellants do not warrant any interference.

9. We are, however, of the view that the charge under section 307/149, P.P.C. is not attracted to the case of the appellants. From the evidence on record, it is clear to us that they had no intention to kill the complainant but to beat and disgrace her. According to the medical evidence, Mst. Safia Bibi received fractures of her left patella and left fibula which were grievous in nature. Thus, the provision of section 325/149, P.P.C. would be attracted to the appellants and not section 307/149 of the Pakistan Penal Code. We would, therefore, substitute section 325/149, P.P. C. , for section 307/ 149, P.P.C., convict them under the former provision and sentence each one of them to 3 years' R.I. and with a fine of Rs.500 or in default 3 months' R.I. With this modification their appeal is dismissed.

10. S.Q./S-103/S Appeal partly accepted.