2010 M L D 1237
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
ABDUL GHAFOOR and 3 others ---Petitioners
Versus
THE STATE ---Respondent
Criminal Revision No. 95 of 2008, decided on 9th April, 2010.
Penal Code (XLV of 1860) ---
----S. 448 ---House -trespass ---Delay of nearly eleven hours in filing of F.I.R. and the
complainant had not disclosed any reason for such a delay ---Trial Court as well as the
Appellate Court failed to appreciate the evidence and material on record and came to the'
conclusion, which was contrary not only to the facts, but was in violation of law, which were
liable to be s et aside ---Contradictions and variations pointed out, were not considered, while
the doubt which would arise, its benefit was also not extended in favour of accused persons
which was in contravention of principle of law ---Impugned judgments of the courts b elow
were set aside and accused were acquitted of the charge.
Haji Khalid Ahmed Kabdani for Petitioners.
Abdullah Kurd for P. -G. for the State.
Date of hearing: 4th December, 2009.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---The petitio ners being aggrieved of judgment, dated
23-7-2008 made by Judicial Magistrate, Kharan, whereby they were convicted of the charge
and sentenced to suffer imprisonment for a period of 15 days with fine of Rs.1000 each, in
case of default has to suffer impris onment for five days. They are further aggrieved of order
made on 29 -10-2008 by Sessions Judge, Kharan, who upheld the conviction order while
rejecting their appeal. They prayed for setting aside of both the orders and their acquittal of
the charge. It is their contention that both the judgments are result of misreading of evidence,
while failure of appreciating the contradiction, additions and omissions in the statements of
prosecution witnesses. The doubt created by such contradictions, benefit of which m ust go to
the accused persons, but the same has not been extended in favour of them.
Learned counsel for the parties are heard, while record is perused. As per record an F.I.R.
was lodged on 9 -5-2008 on written report of Haji Lal Bakhsh, about an. inci dent occurred on
8-5-2008 at 10 O'Clock at night. It is reported that four persons 'namely Khair Muhammad,
Imam Din, Abdul Ghafoor and Khalid, present petitioners, entered into house of one Lal
Bakhsh, got him out of his bed, beat and abused him, dishonour ed him, as he was alone, thus
helpless. On hearing of his hue and cry his sons Rehmatuallh and Abdul Nasir, who were
present in their rooms, which were situated at some distance, came at the spot and asked the
accused persons/petitioners to leave, on which they left the site. On completion of
investigation, challan was submitted, case was tried, on completion of evidence case was
decided through impugned judgment made on 23 -7-2008, which was upheld by the appellate
Court through order made on 29 -10-2008.
During course of arguments the learned counsel for the petitioners mainly contended that
there is delay in lodging of F.I.R. with no reason, no recovery of crime weapon. Further, as
per record there existed a civil dispute between the parties. The learne d State counsel fully
supported both the judgments.
The learned trial Court after discussing the evidence comes to the conclusion that the accused
persons/petitioners trespassed into house of the complainant and horrified him. No findings in
respect of beating thereby injuring the complainant is given by the trial Court. As according
to F.I.R. the accused persons/petitioners entered the house of complainant in armed position,
beat him and thereby injured him. Copy of charge framed by the trial Court is not on record;
therefore, it is hard to ascertain that what sort of charge was framed. It seems on perusing of
impugned judgment of trial Court that charge was in respect of offences under sections 448
and 540, P.P.C., while punishment was awarded to them to suffer rigorous imprisonment only
for offence under section 448, P.P.C., while offence under section 540, P.P.C. is deleted by
the trial Court on pretext of being not attracted.
Section 448, P.P.C. pertains to the punishment for offence of house tre spass, which is defined
in section 442, P.P.C. The trial Court comes to the conclusion that the petitioners/accused
persons trespassed into house of the complainant and horrified him, while relying on
statement of complainant, who appeared as P.W. and his son Rehmatullah P.W.2 being eye -
witness. As per his (complainant's) own statement the incident was occurred on 8 -5-2008 at
10-00 p.m. while he reported the matter to the police on next morning. He further stated that
at 9-00 a.m. he went to S.H.O., whereup on he was directed by S.H.O. to submit written
application, on the same he gave application in writing, written by petition writer
(ﻋﺮﺍﺋﺾﻧﻮﻴﺲ ,)which is Exh:P/1 -A. There is clear delay of nearly eleven hours in filing of
F.I.R. The complainant has not disc losed any reason for such a delay. Further as per his
report his sons Rehmatullah and Abdul Nasir, when came at place of incident and asked the
accused persons to leave, who left the site. P.W.2. Rehmatullah does not depose any such
thing; rather he stated that he rescued his father from hands of accused persons. As per F.I.R.
the accused persons were armed with sticks, but in his statement he has deposed nothing
about the same. Contrary to it P.W.2 has stated that the accused persons have sticks in their
hands. Though the complainant has asserted that he has been beaten by the accused
persons/petitioners, but he and his witness admitted that he sustained no injury. It seems
somehow impossible that despite having sticks in their hands the petitioners/accused persons
beat the victim/ complainant only with fists and kicks, instead of using the sticks. It is alleged
in written report that it was intention of the accused persons while humiliating him, that on
his interference, he be killed. But while recording hi s statement nothing of the, sort is
deposed by him.
The learned trial Court arrived to the conclusion that through evidence the accused persons
are fully implicated in the case, they assembled at the place of occurrence and made assault in
furtherance of common intention. On coming to this conclusion the learned trial Judge
convicted the accused persons only for the offence of trespass. It is strange. The appellate
Court, while disposing of the appeal come to the conclusion that there are no contradicti on in
the statements of witnesses, no irregularity is found in the impugned judgment, further held
that the order has been passed on basis of facts and law. The appellate Court simply relied on
findings given by the trial Court. Being appellate Court the l earned Judge was bound to
assess the material and evidence present on record independently. Thereafter, to give findings
on the same, but learned Judge has not done so. The petitioners have filed an application
bearing C.M.A. No. 359/2009, whereby prayed f or placing on record copies of judgments
made in case pertaining to F.I.R. No.8 of 2008 Police Station Saddar Kharan lodged on 25 -8-
2008 by Judicial Magistrate, Kharan and, dated 29 -11-2008 by Sessions Judge, Kharan,
whereby one Lal Bakhsh complainant in p resent case, along with co -accused was convicted
of the charge, while their appeal was also dismissed. It is further appeared from these
judgments that the complainant of said case was one Abdul Ghafoor i.e. petitioner No.1 of
present petition. This fact s hows that there is enmity between the parties, while counter cases
had been filed. This fact is not denied from the other side.
Keeping in view the above mentioned facts, the trial as well as the appellate Courts failed to
appreciate the evidence and m aterial on record and come to the conclusion, which is contrary
not only to the facts, but also in violation of law, which are liable to be set aside in the
circumstances. The contradictions and variations pointed out hereinabove are not considered,
while the doubt which arises of the same, its benefit is also not extended in favour of the
accused persons, which is in contravention of principle of law.
In view of above discussion, the revision petition is hereby accepted. The impugned
judgments, dated 2 9-10-2008 made by Sessions Judge, Kharan and dated 23.7 -208 made by
Judicial Magistrate, kharan are hereby set aside. The petitioners/accused namely Abdul
Ghafoor son of Bahadur Khan, Khalid son of Abdul Ghafoor, Imam. Din son of Lakkar Khan
and Khair Muha mmad son of Lakkar Khan are acquitted of the charge pertaining to F.I.R.
No.10 of 2008 Police Station Saddar Kharan. They are on bail, their bail bonds stand
discharged.
H.B.T./40/Q Petition accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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