FAYYAZ MEHMOOD KHAN and another vs STATE

The petitioners in Criminal Revision No, 122/2000 were convicted under Section 337-A(ii)/34 PPC and sentenced to RI for six months vide judgment dated 25.3.2000 passed by learned Judicial Magistrate Section 30, Multan and. the appeal preferred against their conviction and sentence as well as revision petition filed by the complainant for enhancement of their sentence were dismissed by the learned Additional Sessions Judge, Multan vide order dated 18.5.2000. Through this single judgment I intend to dispose of Crl. Revision No, 122 of 2000 filed by the petitioners against their conviction and sentences as well as Crl. Misc. No, 224-M/2004 filed by the complainant for enhancement of sentence as both the matters arise out of the same judgments.

2. The brief facts are that FIR No, 408/1994 (Exh. PA) was lodged on 5.11.1994 at 11.00 p.m. on the statement of Maqbool Ahmad injured PW for an occurrence which had taken place on the same day at about 9.00 p.m. According to the complainant on receiving information he proceeded to the house of her sister accompanied by Abdul Rasheed Khan, and Muhammad Ihsaq Khan that she was administered poison by detaining her in a room by her mother-in-law. Riaz Mahmud Khan and Fayyaz Mahmud Khan and she was found unconscious in her room. The complainant intended to take her for medical examination whereupon Fayyaz Khan Petitioner inflicted blow with butt of pistol on his head and snatched away his sister. Hence, this case.

3. During the initial investigations the petitioners were found innocent, but ultimately they were challaned and sent up for trial. The charge was framed under Section 337-(ii)/337-J/34 PPC and the prosecution in order to prove the guilt of accused/petitioners examined as many as seven witnesses: PW1-Mst. Tehmina Durrani is sister of the complainant, who was allegedly administered poison. PW2-Mabool Ahmad is complainant who corroborated the FIR. Muhammad Bakhsh, SI appeared as PW3 and conducted the investigation, PW4-Dr. Khalid Rehmani had issued the MLR, PW-5-Rashid Ahmad SI also partly investigated the case while PW-6-Abdul Rashed Khan was another eye-witness of the alleged occurrence arid PW7- Muhammad Bakhsh SI was a formal witness. The accused/petitioners in their statements under Section 342 Cr.P.C. denied the prosecution case and claimed that they were falsely implicated in the present case. Also produced Abdul Aziz SI as DW1, who had prepared the discharge report (Exh. DA) but same could not be presented before the Magistrate while Shahzad Khan appeared to state that Mst. Tehmina had been divorced and no occurrence had taken place on 5.11.1994 as was alleged in the FIR.

4. On the conclusion of the trial the learned trial Court convicted and sentenced the petitioners as stated above whereafter appeal filed by them against their conviction and revision petition filed by the complainant for enhancement of their sentence were dismissed by the learned Addl; Sessions Judge through the impugned judgments.

5. Learned counsel for the petitioner contends that the story regarding administering poison to Mst.

Tehmina was found false; that medical evidence is not in line with the ocular account as Maqbool Ahmad in his statement under Section 154 Cr.P.C. attributed only one injury near his ear to Fayyaz Mahmud Khan but in the MLR two injuries were found; that the complainant was inimical towards the petitioners due to the dispute between Mst. Tehmina sister of the complainant and brother of the petitioners, that both the Courts below have committed material irregularity by convicting the petitioners on uncorroborated evidence of interested witnesses; that Mst. Tehmina is still living in the same house in spite of pronouncement of Talaq which negates the prosecution story that she had any apprehension of danger to her life; that nothing was recovered from the petitioners and the allegations are false; that the documentary evidence relied upon by the learned trial Court was inadmissible in evidence as the same are only photo copies and were also not submitted/attached alongwith report under Section 173 Cr.P.C. at the time of submission of the same in the Court nor any notice of the same was given to the petitioners to properly defend the same, hence, their case was seriously prejudiced, and that Abdul Rashid PW was resident of two miles away from the place of occurrence and his statement being a chance witnesses could not be relied upon as he failed to give any plausible explanation for his presence at the spot at the time of occurrence.

6. On the other hand, learned counsel for the complainant opposes this revision petition. It is contended that prosecution succeeded in bringing home guilt to the petitioners through unimpeachable evidence and sentence of six months imprisonment does not commensurate with the gravity of offence which may be enhanced. The learned State Counsel has supported the impugned judgments of conviction and sentence.

7. I have heard the learned counsel for the parties and also perused the record with due care and caution.

8. The occurrence in the present case had allegedly taken place in the house of the petitioners in the night at about 9.00 p.m. when the complainant on receiving information about administering of poison to his sister Tahmeena reached there. The informant was not produced at the trial to corroborate this portion of the statement. Both the Courts below have already disbelieved the story of administering poison to PW-1 Tahmeena and acquitted the petitioners of the charge under Section 337-J PPC but no appeal in this regard was filed by the prosecution. Hence, the finding of the Courts below to this extent has attained finality and as such the bone of contention alleged for the occurrence could not be proved.

9. To prove the occurrence the prosecution examined PW-1 Tahmeena, PW-2 Maqbool Ahmad Khan and PW-6 Abdul Rasheed Khan. A The statement of PW-1 Tahmeena under Section 161 Cr.P.C. during the investigation was recorded after more than 7 months of the occurrence on 1.6.1995, which leads to draw an inference that initially she was not ready to support the prosecution story.

Moreover, according to the complainant's own version she was unconscious at the time of the alleged occurrence. As such statement of PW-1 was out of consideration and could not be relied upon to corroborate the statement of PW-2. Similarly, PW-6 Abdul Rasheed was resident of two miles away from the place of occurrence. The occurrence, allegedly took place inside the house and he admittedly neither entered the 'house nor played any active role to save the complainant from the clutches of the assailants in spite of being present there. He as such was a chance witness, but having failed to give any plausible explanation for his presence at the spot, his statement cannot be relied upon.

10. Now we are only left with the statement of PW-2 Maqbool Ahmad Khan. Admittedly, his real sister Mst. Tehmina Durrani was married to Shehza.d Khan real brother of the petitioner and there was dispute between them regarding the payment of dower amount. Hence there was ill- willbetween the parties. I have noticed that PW-2 Maqbool Ahmad Khan had made certain improvements and was also in contradiction with the other PWs. In the FIR he stated that on receipt of information regarding administering of poison he went to the house of his sister whereas at the trial he stated that Shehzad Khan husband of her sister had given this information to him. In the FIR he stated that Abdul Rashid PW-6 and others were also with him, but at the trial he did not mention their names, whereas PW-6 Abdul Rashid Khan stated that the per chance was getting a key prepared in front of the main gate of the house when he heard alarm and witnessed the occurrence. In the FIR PW-2 only attributed one butt blow to Fayyaz Mahmood petitioner, but according to the medico-legal two injuries were found on his person and at the trial he dishonestly improved his statement by attributing two pistol butt blow's to Fayyaz Mahmood petitioner and also attributed role to Riaz Mahmood petitioner that he had "caught hold of him from the back. It is strange that he did not take his sister to the hospital for treatment in spite of that she was allegedly administered poison and he went to the police station for getting the case registered. According to PW-6 25/30 persons had gathered at the spot, but none of the independent witness from the vicinity was produced either during the investigation or at the trial to corroborate the version of the complainant. All these improvements and contradictions were on material points and apparent on the face of the record, which were sufficient to declare this witness untrustworthy, but both the learned Courts below failed to notice the same and as such it is a clear cut example of misreading and non-reading of evidence on the record by both the learned Courts below.

11. In the above facts and Circumstances the statement of PW-2 without there being independent corroboration, which is lacking in the present case, was not sufficient to record conviction against the petitioners. Both the learned Courts below have committed material illegality while relying upon his statement. I am satisfied that the prosecution did not produce sufficient evidence to bring home guilt to the petitioners beyond any shadow of doubt. Therefore, this revision petition is accepted, the impugned judgments of conviction and sentence are set aside and both the petitioners are acquitted of the charge by extending them the benefit of doubt. Resultantly, Crl.

Misc. No, 304-M-2000 filed for enhancement of their sentence is dismissed.