MUHAMMAD SHARIF Versus THE STATE

Petitioner Muhammad Sharif was tried alongwith Bashir and Muhammad Suleman by Ch. Abdul Waheed, Additional District Magistrate, Mianwali, under sections 394/201/34-364/307/365, P. P. C. The learned Magistrate, vide his judgment dated 30th October, 1976 convicted the petitioner and Bashir under sections 364/34 and 394/34, P. P. C. and sentenced both of them to undergo R. I. for two years plus a fine of Rs. 50 under each of the sections. In case of default in payment of the fine, the convicts were ordered to undergo in each case further R. I for two months. The sentences were ordered to run concurrently. At the initial stage of the trial, Muhammad Suleman was discharged.

2. Muhammad Sharif and Bashir both appealed against their con victions and sentences before Sessions Judge, Mianwali. The learned Judge accepted the appeal qua Bashir and acquitted him, whereas he maintained the convictions and the sentences recorded against the present petitioner. Hence this revision.

3. The case of the prosecution is that on 16th December, 1965, after Isha Prayer Shams-ud-Din (P. W. 1) was returning from the shop of one Islam-ud-Din (P. W. 8) where he had taken milk and eggs. When he reached a deserted lane, Sharif petitioner and another person met him. The petitioner placed something op the mouth of Shams-ud-Din, by smelling which he became unconscious. He was then taken to an unknown place and put under confinement, where he remained in that condition till 23rd December, 1965. During this period, he was beaten and threatened by the petitioner and Bashir. His handkerchief (P. l), pen (P. 2), wrist watch (P. 3) and golden ring (P. 4) were removed by the petitioner. On 23rd December, 1965, Shams-ud-Din was again made un conscious by the petitioner and Bashir in the room where he (Shams-ud Din) was confined. They then tied his legs and hands and covered his face with a muffler and took him to Darya Khan Railway Station where they placed him between two railway tracks. They also placed a woollen chaddar on the body of Shams-ud-Din. This happened on the night between 23rd December, 1965 and 24th December, 1965. At about 5 a.m. on 24th December, 1965, Muhammad Bakhsh (P. W. 2) who was a pointsman at Darya Khan Railway Station saw a bundle lying by the Railway track. He informed Ghulam Akbar Khan. Assistant Master (P. W. 3) who lodged the F. I. R. (Exh. P. B). Ghulam Akbar Khan also identified the man in the bundle as Shams-ud-Din. Shams-ud-Din was untied and was sent to the hospital for medical examination and treatment. The police took into possession muffler P. 5, and the string P 6, vide Memo Exh P A. which was attested by Muhammad Bakhsh and Ghulam Akbar Khan P. Ws, Muhammad Yar (P. W. 9). Allah Bux (P. W. 10) and Allah Yar (P. W. 13) joined the investigation and Muhammad Sharif petitioner led them to the recovery of the aforementioned four articles belonging to the victim, from the box (P 7) which was lying in a room of the mill of the petitioner. The articles were secured by Arbab Muhammad Ayub Khan S. I. (P. W. 15) vide Memo. Exh P. D.

4. Dr Abdul Jabbar A. M. O. (P. W. 14) medically examined Shams-ud-Din on 24th December, 1965, at about 6-45 a.m He found abrasion marks on his person, the duration of which corresponds to the time as stated by Shams-ud-Din.

5. Dildar (P. W. 16) was a shopkeeper who identified the watch P. 3 and deposed that the same belonged to Shams-ud-Din. Muhammad Hussain (P. W. 17) deposed that he saw the petitioner and Bashir sitting, and another person sleeping, near Darya Khan Railway Station on the night between 23rd and 24th December, 1965. Bashir Ahmad (P. W. 18) deposed that Karim-ud-Din P. W. was his brother-in-law, who had promised to give the hand of his daughter Mst. Anwari Begum in marriage to Shams-ud-Din and that marriage was to take place on 17th December, 1965 The motive, as put forth by the prosecution was, that the present petitioner wanted to marry Mst. Anwari Begum, but the father of girl refused because he (petitioner) was a man of loose character. The father of Mst. Anwari Begum wanted to marry his daughter with Shams-ud-Din and it was for this reason that the petitioner had a grouse against Shams-ud-Din.

6 The petitioner and Bashir (since acquitted by Sessions Judge) pleaded not guilty. They produced Allah Dad (D. W. 1), Abdul Rashid (D. W. 2) and Akhtar Ali Shah (D. W. 3). The defence by producing D. W. 1 tried to show that Muhammad Yar P. W. 9 could not possibly witness the recovery of the four articles belonging to the victim because he was on duty at the relevant time. However, Exh D. W. 1/A which was an application on behalf of Muhammad Yar seeking leave, showed that the witness had left his office at 12 noon. The evidence of the other two D. Ws. was similarly found to be of no help to the petitioner etc., because they admittedly never appeared before the Investigating Officer.

7. Shams-ud-Din P. W. gave all the details of the occurrence. His evidence was fully corroborated by the medical evidence. In addition to this, there is overwhelming evidence on the record to support the prosecu tion version in all material particulars.

8. In appeal, the learned Sessions Judge held that there was no evidence to connect Bashir with the offences under which he was convicted. He found that it was nowhere alleged that Bashir was instru mental in robbing Shams-ud-Din or that he had, had a hand in taking him to the Railway track He observed that Muhammad Hussain P. W. merely stated that Bashir and one Shabbir were present near the Railway godown, Darya Khan, where a third man was sleeping covered with a chaddar". He, therefore, accepted the appeal qua Bashir and acquitted him.

9. Learned counsel for the petitioner contended that since Bashir was acquitted by the learned Sessions Judge disbelieving the same evidence, the petitioner was also entitled to acquittal. In view of the above-noted observations recorded by the learned Sessions Judge, this argument has no force. Even otherwise, if some witnesses are believed qua some of the accused under appropriate circumstances they can still be safely relied upon qua other accused. In this case, the petitioner's case is quite distinguishable from Bashir. It was the petitioner who had a direct motive for the crime. It was he at whose pointing out the aforementioned four articles belonging to the victim were recover ed immediately after the arrest of the petitioner, i. e. on 25th December, 1965. There is overwhelming evidence on the record connecting the present petitioner with the crime.

10. It is next submitted that the recovery of the articles could not be relied upon because the same was effected in contravention of the provisions of section 103, Cr. P. C. because tae recovery witnesses did not belong to the locality from where the articles were recovered. It is true that recovery witnesses should not only be respectable but they should also belong to the locality from where the recovery is made, and this is the requirement of section 103. However, a strict requiremen of this section has not always been insisted upon by Courts for proof of recovery. In Muhammad Ahmad v. The State (P L D 1972 S C 72) the Supreme Court merely relied upon the statement of the Investigating Officer for proof of recovery. In Mela and others v. The State (P L D 1962 Lah, 58) this Court had expressed the fact that recovery witnesses belonged to a place other than the place of recovery, was not ground for holding that the recoveries were no established. In the present case, there appears to be no motive for the witnesses to falsely implicate the petitioner. They are independent witnesses and their evidence inspires confidence.

11. It is also submitted that the report having been lodged after eight days, the prosecution case was rendered doubtful. This submis sion too has no force. The report was lodged with the police without any loss of time when Shams-ud-Din was found lying in a bundle by Muhammad Bukhsh P. W. Ghulam Akbar Khan, A. S. M. who lodged the report is totally a disinterested person.

12. It is further submitted that the petitioner was not given full opportunity to cross-examine Shams-ud-Din P. W. This is factually incorrect. Shams-ud-Din was subjected to cross-examination on 12th July, 1966, on which date his statement already made under section 164, Cr. P. C. was not found to be available on the record and for that reason the case was adjourned. On the receipt of the statement of Shams-ud-Din recorded under section 164, Cr. P. C., he was again called in the witness box on 24th August, 1967. He answered the only question put to him by the petitioner. It is true that the petitioner's counsel was not present on that date, but it was the duty of the peti tioner's counsel to be present on the date of hearing. In these circumstances, the petitioner can hardly be heard to say that he was not afforded full opportunity to cross-examine Shams-ud-Din P. W. No ground is made out for interference with the judgment of the lower appellate Court in revision.

13. It is lastly submitted that in view of the inordinate delay which has taken place in the disposal of this revision petition, the sentence of the petitioner should be reduced to the period already undergone.

14. I find that the revision petition was firstly heard on 3rd October, 1968, and then on 19th November, 1968, when the sentence of the petitioner was suspended, and since then he is on bail. Considering the overall circumstances of the case, I feel that the petitioner had treated Shams-ud-Din with extreme cruelty for eight long days, and he deserves no leniency. I accordingly maintain the conviction and the sentence recorded against the petitioner, and dismiss the revision petition. The petitioner's bail is cancelled. He shall surrender his bail-bond to serve out the remaining portion of his sentence.

Revision petition dismissed.