AZIZULLAH Versus THE STATE
1. This appeal has been filed by the appellants challenging the judgment passed by the Second Additional Sessions Judge, Kandhkot in Sessions Case No.204 of 1989 whereby the present appellants were convicted under section 459/460, P.P.C. and sentenced to suffer R.I. for 10 years each and also to pay a fine of Rs.5,000 each or in default of payment of fine to undergo further R.I. for three months.
2. Briefly the facts leading to the present case are that on 13-2-1989 complainant Muhammad Bux lodged his F.I.R. at Police Station Ghouspur to the effect that complainant alongwith his sons Ramzan and Azizullah are residing in one and same house near Ghouspur Town and there are houses of Gul Hassan and other Ogahi near his house and he also owns buffaloes which he used to tether in the cattle-pen of his house and he used to sleep near his cattle pen inside the outer door of cattle pen. On the night of incident the complainant after tethering his cattle went to sleep on a cot kept inside the door when at about midnight time he woke up on some noise and saw three persons standing near his cattle pen. On this complainant raised cries of thief and grappled with one of the thieves with the result that remaining two thieves caused him Lathi injuries on his head. On his cries P.W. Ramzan and Azizullah both sons of complainant came there who were sleeping in the nearby rooms and flashed their torches, on which the complainant party identified them to be present accused Azizullah, Gul Hasan and third one was not identified by the complainant party. According to complainant both the present accused were residing in the same village where complainant resided. The accused managed their escape good from the scene of offence and complainant then went to report the matter to his Nekmard Molvi Mir Muhammad who was not present in his house. The complainant thereafter went and lodged his report with Police Station Ghouspur, which was reduced in writing by I/C A.S.-I., Misri Shah.
3. The A.S.-I. after recording the F.I.R. prepared the Mashirnama of injuries of the complainant in presence of the two Mashirs Sanwan and Allah, Warayo and referred the injured to the Medical Officer. He also recorded statements of the witnesses under section 161, Cr.P.C. and took up the investigation. After concluding the investigation the case was sent up for trial. Charge was framed under section 459 read with section 460, P.P.C. on 8-8-1991 to which the appellants pleaded not guilty and claimed trial.
4. The prosecution in support of their case examined complainant Muhammad Bux who also produced the F.I.R. Eye-witness Muhammad Ramzan son of the complainant was examined while the other eye-witness Azizullah was given up. The prosecution also examined Mashirs Sanwan who produced different Mashirnamas. Medical Officer Dr. Hairdin was also examined and finally A.S.-I. Misri Shah's evidence was recorded and the prosecution closed their side. The statements of accused were recorded under section 342, Cr.P.C. wherein they denied the allegations. The accused did not examine themselves on oath but they examined one witness Arbab Ali in their defence. The trial Court after hearing the arguments of the Advocates was pleased to pass the above judgment convicting and sentencing the appellants as stated therein. Being aggrieved the appellants have preferred this appeal.
5. I have heard Mr. Muhammad Daud Baloch, Advocate for the appellants and Mr. A.G. Shaikh, A.A.-G. The learned counsel for the appellants had challenged the judgment on numerous grounds. The first ground urged by the learned counsel is that F.I.R. is delayed by 14-1/2 hours whereas there is admittedly enmity between the parties. He has pointed out from the cross -examination of the complainant and his son Muhammad Ramzan, the only eye witness examined by the prosecution, that admittedly prior to this incident there was a theft of a pair of bullocks of Khamiso wherein the present complainant party was suspected and the present accused party had helped in recovery of such bullocks. Mr. Abdul Ghani Shaikh, the learned A.A.-G. has submitted that this by itself does not show that the present applications have been falsely implicated in the case as there is nothing on the record to pin point the present complainant party to have been found guilty of the theft of the bullocks. Mere suspicion itself would not be sufficient in such matter. He has further pointed out that enmity is a double-edged sword, which can cut both ways and therefore it can be possible that because of such enmity the present appellants had committed lurking house trespass with the intention of committing theft being duly prepared to cause hurt. As regards delay it may be observed that incident is alleged to have taken place at odd hour in the night i.e. about mid-night and obviously in this part of the Province and in these circumstances one would not dare to go out of his house in the night time. The delay stands explained in the F.I.R. that the complainant party had approached their Nakmard Molvi Mir Muhammad and after waiting for him they came to police station to lodge the report.
6. The next point urged by the counsel for the appellants is that there is no independent eye-witness in the present case. He has pointed out that both the eye-witnesses, namely, Muhammad Ramzan who was examined by the prosecution and Azizullah who was given up are the sons of the complainant and therefore, obviously interested. He has submitted that in such circumstances it would be dangerous to base the conviction on the evidence of interested witnesses. It may be observed that mere fact that the witness is son of complainant would not discredit his evidence. The circumstances of the present case show that incident had taken place inside the house of the complainant in the cattle-pen whereas his two sons were sleeping in the house just in front of the cattle-pen and when the complainant raised cries, as he was receiving beating at the hands of the accused, that his sons came running there. In such circumstances they are the natural witnesses and there are no reasons as to why their statements should not be believed.
7. The above evidence is corroborated by the injuries sustained by the complainant. According to medical evidence the complainant has received three lacerated wounds and one burise which are said to have been caused by hard blunt substance such as Lathi. There is no explanation as to how the present complainant would have received these injuries if not as alleged by him. The contention of the counsel for the appellants is that even the identification of the accused is not satisfactory. According to him the complainant has stated that he had identified the accused on the light of electric bulb whereas according to his two sons they have identified the accused on the torch light. Mr. A.G. Shaikh, A.A.-G. has submitted that the evidence of the complainant shows that when he was given beating he raised cries and at that time his two sons came running from inside the house who had torches in their hands and at that time the accused party started running away. Obviously it is in this course that the said witness would have thrown torch light at the accused and identified them. I find no reasons to interfere with the findings of the trial Court in respect of this piece of evidence.
8. Lastly the learned counsel for the appellants has argued that according to findings of the trial Court the complainant had sustained one grievous injury which is so certified in the report of the radiologist from Chandka Medical College Hospital. He has submitted that the said radiologist has not been examined in the Court and therefore, this report to this extent would not be admissible in evidence. He has placed reliance on the case of Malik Muhammad Sulleman and others v. The State 1994 PCr.LJ 1490 wherein a learned Single Judge of Lahore High Court had held that in case the radiologist had not been by prosecution to prove the charge of grievous hurt against the accused, the conviction of accused would be altered from section 325, P.P.C. to section 323, P.P.C. In this view of the matter I am inclined to hold that the prosecution has failed to prove the nature of injuries, sustained by the complainant to be grievous. The said injury would, therefore, be treated as a simple injury.
9. Irrespective of the nature of injury, sections 459 and 460, P.P.C. read as under:--
10. "459. _Hurt caused whilst committing lurking house-trespass or house breaking.- -- Whoever, whilst committing lurking house-trespass or house-breaking, causes hurt to any person or attempts to commit Qatl of, or hurt to, any person, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to the same punishment for committing Qatl or causing hurt or attempting to cause Qatl or hurt as is specified in Chapter XVI of this Code.
11. 460 Persons jointly concerned in lurking house-trespass or house breaking by night punishable for Qatl or hurt caused by one of them . -- If, at the time of the committing of lurking house-trespass by night or house-breaking by night, any person guilty of such offence shall voluntarily cause or attempt to commit Qatl of, or hurt to, any person, every person jointly concerned in committing such lurking house- trespass by night or house-breaking by night, shall be punished with imprisonment for life or with imprisonment of either description for a term of which may extend to ten years and shall also be liable to the same punishment for committing Qatl or causing hurt or attempting to cause Qatl or hurt as is specified in Chapter XVI of this Code."
12. In these circumstances I am of the view that the judgment of the trial Court does not require to be interfered with. The prosecution has proved the charge against the appellants under sections 459 and 460, P.P.C. However, considering the fact that 4he injuries caused are simple in nature I would modify the quantum of the sentence and reduce the same from 10 years to 5 years and also reduce the quantum of fine from Rs.5,000 to Rs.500 each and in default of payment of such fine the appellants would suffer further R.I. for one month. The appellants would, be entitled to benefit of section 382-B, Cr.P.C. as they are said to have been in custody initially during trial and after judgment for a period of 22 months.
13. With the above modification in sentence the present appeal is dismissed.
14. N.H.Q./A-1598/K Sentence reduced.