2015 P Cr. L J 539
[Balochistan]
Before Mrs. Syeda Tahira Safdar, J
NAWAB KHAN alias DAH KHAN and others ---Petitioners
versus
The STATE and others ---Respondents
Criminal Revisions Nos. 70 and 78 of 2011, decided on 19th January, 2015.
(a) Criminal Procedure Code (V of 1898) ---
----Ss. 439, 423, 426, 427 & 428 ---Revisional jurisdiction, exercise of ---High Court within the
mandate of S. 439, Cr.P.C., had power to satisfy itself as to the correctness, legality or propriety
of any findings, s entence or order, recorded or passed by the criminal courts ---While exercising
the powers under S. 439, Cr.P.C. powers available to an Appellate Court under Ss.423, 426, 427
& 428, Cr.P.C. would also become available ---Accused persons were to point out the errors and
the illegalities on part of the Trial/Appellate Courts and irregularities of a nature, which could
vitiate the trial or the final order.
(b) Penal Code (XLV of 1860) ---
----Ss. 337 -A(i) & 337F(v) ---Criminal Procedure Code (V of 1898), S.43 9-A---Causing Shajjah -
i-Khafifah, hashimah ---Appreciation of evidence ---Petition for enhancement of sentence ---
Scope ---Trial as well as Appellate Court, in their judgments remained contended on the
explanation submitted by the Investigating Officer, with r egard to delay in filing of the FIR ---
Reason assigned by the Investigating Officer in that regard, having remained unrebutted, was
rightly relied by the courts below ---None of the witnesses suggested the facts, nor anything was
placed on record to establis h mala fide on the part of the witnesses ---Mere relationship of the
witnesses with the complainant, was not a legal ground to discard their evidence, until, mala
fides were established to discard their evidence, which could result in false implication of
accused persons ---Existence of relationship, was of no legal effect, nor fatal to the case of the
prosecution ---No material discrepancies, were pointed out in the statements of the witnesses,
which could diminish the credibility of their testimony ---Both th e Trial and Appellate Court
below, not only discussed the evidence produced in the defence by accused persons, and gave it
due consideration, but did not find the defence plea as confidence inspiring ---No instance of
misappreciation, or non -appreciation of the material on the record, were pointed out, which
skipped the notice of the courts below ---Finding recorded by the courts below, about guilt of
accused persons, did not suffer from any legal infirmity and did not require reappraisal of
evidence ---In pre sence of ample evidence, mere fact that on the basis of minor variations in the
statements, a different inference, could be drawn from the material, than the one drawn by the
courts below was no ground for making any interference in the findings of courts below in
exercise of revisional jurisdiction ---Accused, were rightly convicted and sentenced by courts
below ---Complainant, despite having knowledge, opted not to question the quantum of sentence
before the Appellate Court below, which was fully equipped w ith the power within the mandate
of S. 439 -A, Cr.P.C. ---Complainant could not file revision petition for enhancement of sentence
of accused persons.
Syed Ghulam Murtaza v. Baber Akbar 1991 PCr.LJ 720; Paresh Nath Chakraborty
Sunamganj Municipal Board v . M.H. Obaidur Raja PLD 1963 Dacca 728; Arshad Ali alias
Achhu v. The State 2002 SCMR 1806; Nazar Ahmed v. Nazar Muhammad 1984 PCr.LJ 867 and
Muhammad Afzal v. Ghulam Asghar PLD 2000 SC 12 ref.
(c) Criminal Procedure Code (V of 1898) ---
----S. 439 --- Revisional jurisdiction --- Scope --- Scope of revisional jurisdiction was limited, not
to re-open a question of fact unless it suffered from any illegality to make an order perverse or
unjust ---Where neither substantial question of law was inv olved, nor misappreciation or non -
appreciation of facts and evidence, was established, concurrent findings of the courts below,
need not to be interfered with under revisional jurisdiction.
Muhammad Qahir Shah for Petitioners.
Amir Hamza, Deputy Pro secutor -General for the State.
Manzoor Ahmed Rehmani for the Complainant.
Date of hearing: 2nd December, 2014.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---Consequent to the judgment dated 14th June,
2011 of Judicial Magistrate, Loralai, whereby the accused Nawab Khan and Fazal Khan, the
petitioners of the Criminal Revision Petition No. 70 of 2011, were found guilty for the offences
under section 337, Pakistan Penal Code (P.P.C.), thereby convicted and punished under section
337-A(i), P.P.C. to suffer rigorous imprisonment for a period of six (6) months and liable to
Daman of Rs. 2,000 (Rupees two thousand) each, further, sentenced under section 337 -F(v),
P.P.C. to suffer rigorous imprisonment for a period of two (2) years, with liability of Daman of
Rs. 5,000 (Rupees five thousand) each, to be paid to the injured Said Khan. The judgment in
appeal dated 29th June, 2011 of Sessions Judge, Loralai, upheld the conviction. The Criminal
Revision Petitions Nos. 70 of 2011 and No. 78 of 2011 were filed by the convicts and the
complainant to assail the judgments, therefore, to avoid any conflict in the findings both the
petitions were clubbed and heard, and decided through this common judgment.
2. The brief facts as collected from the papers annexed with the p etitions that FIR No. 5 of
2011, Levies Station Mekhter was lodged on 31st January, 2011 on the report of one Baz Khan
(complainant) about an incident alleged to have occurred at 4 -30 p.m. on 30th January, 2011,
whereby his (complainant's) brother Said Kha n was injured by the persons, four in numbers,
named as Akhtar Jan, Nawab Khan, Muhammad Khan and Fazal Khan, with sticks and stones.
Consequent thereto the leg of the victim was fractured from two places, who was taken to the
hospital and remained under t reatment. On framing of the charge, five witnesses appeared for the
prosecution, while in defence there were two witnesses, but the petitioners (accused facing trial)
opted not to enter into the witness box to record their statements on oath. The trial cou rt on
assessment of the available evidence concluded that the prosecution succeeded to establish its
case, and convicted the petitioners Nawab Khan and Fazal Khan, who faced the trial, in the terms
as mentioned in the preceding para. The case to the extent of remaining two accused was placed
in dormant. The appellate court was of the same view, thus concurred with the findings of the
trial court. The grievance of the petitioner subsisted resultantly petition No. 70 of 2011 was filed
to question their convic tion. As far petition No. 78 of 2011 is concerned, it is for enhancement of
the sentence.
3. The petitioners Nawab. Khan and Fazal Khan through petition No. 70 of 2011 prayed for
reversal of the judgments of the courts, trial and appellate, with an order of acquittal in their
favour. The petition was with the assertions that the delay of seventeen (17) hours to report the
incident was fatal to the case, but was overlooked by the courts, trial and appellate. Secondly,
non-assignment of the specific role in commission of the act. Thirdly, the motorcycle in use of
the injured Said Khan and his companion Rehmat Gul were not taken into custody, nor produced
before the court. Fourthly, the inter se relationship between the prosecution witnesses namely
Rehmat Gul P.W.2, Said Khan P.W.3 and Payo Khan P.W.4, who were sons of three brothers
namely Waray, Khanak and Sohrab, which undermine their credibility and made their evidence
un reliable. Fifthly, absence of Rehmat Gul P.W.2 from Mekhter on the date of incident t hough
proved, but not duly considered. Sixthly, non -appreciation of facts in comparison to the relevant
law resulted in non -exercise of the jurisdiction vested with the appellate court.
4. The Criminal Revision Petition No. 78 of 2011 filed by Baz Khan, the complainant, as he
was aggrieved of the quantum of the sentences awarded to the accused and prayed for
enhancement, with further assertion to convict the accused also for the offence under section
342, P.P.C. The petition was on the sole ground that th e injuries suffered by Said Khan as noted
in the Medico Legal Certificate were grievous in nature, thus instead of sections 337 -A(i) and
337-F(v), sections 337 -A(ii) and 337 -F(vi), P.P.C. were attracted, therefore, the punishments
provided therein were to be awarded to the accused persons. In addition the victim Said Khan
remained under treatment in Nishtar Hospital, Multan, and the expenses incurred on his medical
treatment were more then Rs. 100,000 (Rupees one lac), and he (victim) was disabled
permanent ly, thus the amount of Daman must be up to Rs.100,000. With regard to the facts a
lenient view was taken and in absence of the reasons it was in contravention of law.
5. The learned counsel for the petitioners in Criminal Revision Petition No. 70 of 2011 only
repeated the stance taken in the petition and added nothing new. In reply the learned counsel for
the complainant strongly contested the petition while contended that the plea taken in the defence
was duly considered by the courts, trial and appellat e, and there were concurrent findings, which
need not to be disturbed. He relied on: --
Syed Ghulam Murtaza v. Baber Akbar 1991 PCr.LJ page 720 SC(AJ&K)
Paresh Nath Chakraborty Sunamganj Municipal Board v. M. H. Obaidur Raja
PLD 1963 Dacca 728
Arshad Ali alias Achhu v. The State 2002 SCMR 1806
6. While addressing petition No. 78 of 2011 the learned counsel for the petitioner Baz Khan
stated that despite the fact the convicts were found guilty for the offence for which they were
charged, but th ey were not sentenced as provided by the law, and there was no reason for taking
a lenient view. While addressing the delay in filing of the petition for enhancement of the
sentence it was contended that as the appeal was dismissed within ninety (90) days, the provided
period for filing of a revision petition, thus non -filing of the petition before the appellate court
would not be fatal, as the instant petition was filed within time. The learned counsel referred to
sections 435 and 437, Criminal Procedure C ode (Cr.P.C.) in support of his arguments. Reliance
was placed on: --
Nazar Ahmed v. Nazar Muhammad 1984 PCr.LJ page 867 (Karachi)
Muhammad Afzal v. Ghulam Asghar PLD 2000 SC 12
Paresh Nath Chakraborty Sunamganj Municipal Board v. M. H. Obaidur Raj a
PLD 1963 Dacca 728
7. The learned Deputy Prosecutor -General was of the view that the courts, trial and
appellate, failed to assign any reason for taking the lenient view, but he conceded that no revision
for enhancement of the sentence was filed by the State before any forum.
8. The petitioners are before this court to invoke its revisional jurisdiction against
concurrent findings, thus they have to establish material illegalities and irregularities on part of
the courts, trial and appellate, instance s of misappreciation of the evidence, which led to injustice
or the jurisdiction either not vested in the courts were exercised, or there were mis -exercise or
non-exercise of the vested jurisdiction. A High Court within the mandate of section 439, Cr.P.C.
have power to satisfy itself as to the correctness, legality or proprietary of any findings, sentence
or order, recorded or passed by the criminal courts and also to the irregularity of any process of
such courts. In exercise thereof the powers available t o an appellate court under sections 423,
426, 427 and 428, Cr.P.C., also become available. In view thereof it was the petitioners
(convicts) to point out the errors and the illegalities on part of the courts, trial and appellate, and
the irregularities of a nature, which vitiated the trial or the final order.
9. In the case in hand the delay in filing of the FIR was the basic contention of the
petitioners, which according to them was unexplained, thus fatal to the case of the prosecution.
The possibility of deliberation and consideration in nomination of the persons, accused of the
offence, thus not out of question, but it was neither considered, nor findings were recorded to the
effect. The perusal of the impugned judgments reveals that the trial as well as the appellate court
in their judgments addressed the issue of delay in the report, and remained contended on the
explanation submitted by the Investigating Officer Imam Bakhsh appeared as Prosecution
Witness No. 6 (P.W.6). In his statement P.W.6 admitte d the delay, but stated that he had duel
charge of Mekhter and Bori. His explanation was not contested as neither questioned in defence,
nor any suggestion was put to the witness to suggest mala fides on his part. Thus the reason
assigned by the Investigat ing Officer remained un -rebutted, therefore, rightly relied by the
courts, trial and appellate. Even the witnesses, or the complainant were not suggested the
deliberation and mala fides on their part in nomination of the petitioners as the real culprits. T he
only suggestion put to the complainant was about presence of some tribal feud between the
complainant and the accused persons resulted in false implication of the petitioners (convicts). It
was to be noted that no assertion to the effect was made by the petitioners (convicts) while they
were under examination by the trial court under section 342, Cr.P.C.
10. The second ground pertained to the inter se relations between the complainant and the
witnesses, which resulted in false deposition. It was rightl y held by the appellate court that mere
relationship with the complainant has been considered insufficient and inconclusive proof to
discard the prosecution evidence without plea of mala fides and false implication. Mere
relationship of the witnesses with the complainant never a legal ground to discard their evidence
until mala fides are established, which could result in false implication of the accused persons.
None of the witnesses were suggested the facts, nor anything placed on the record to establish
the mala fides on part of the witnesses, thus the existence of relationship was of no legal effect,
nor fatal to the case of the prosecution. No material discrepancies were pointed out in the
statements of the witnesses, which could diminish the credibilit y of their testimony.
11. Non-consideration and misappreciation of the defence version and the evidence was
another ground on which re -appraisal of the material was sought. The contents of the impugned
judgments disclosed that the courts, trial and appel late, not only discussed the evidence produced
in the defence by the petitioners (convicts), and gave it due consideration, but did not find the
defence plea confidence inspiring. The non -presence of P.W.2 Rehmat Gul from the area was the
main assertion, a nd defence witness No. 2 (D.W.2) Naimatullah was produced to the effect. He
(D.W.2) asserted presence of Rehmat Gul in Jinnah Hospital, Multan, where he (witness) was
also present for his own treatment. It remained mere an assertion as D.W.2 produced no pa per to
establish his own presence at the referred hospital on the date i.e. 30th January 2011, thus rightly
discarded by the courts, trial and appellate. No instances of misappreciation or non -appreciation
of the material on the record were pointed out, wh ich were skipped from the courts, trial and
appellate.
12. As far Criminal Revision Petition No. 78 of 2011 is concerned, the petitioner Baz Khan
sought enhancement in the sentence awarded to the convicts Nawab Khan and Fazal Khan. The
learned counsel fo r the petitioner was asked to justify the maintainability of the petition before
this court, when the appeal filed against the conviction had already been heard and decided by
the appellate court i.e. Sessions Judge, Loralai. It was his reply that as the a ppeal was entertained
and decided within a period of ninety (90) days, therefore, no revision was filed before the
appellate court, and the petition filed before this court was maintainable as filed within the
provided period of ninety (90) days. He referr ed sections 435 and 437, Cr.P.C. in support of his
reply. The learned counsel seems to be under some misconception, as period of ninety days
nowhere mentioned in the referred two sections. He might have in his mind section 115, C.P.C.,
which contained nine ty (90) days for filing a petition for revision under the Civil Procedure Code
(C.P.C.). Though no period is specified for filing a revision petition under the Criminal
Procedure Code, but it should be within reasonable period depends upon facts and circum stances
of each case.
13. In case in hand the facts spelled that the order of the trial Court was questioned through
appeal before the Sessions Judge, Loralai, and it was very much within the knowledge of the
petitioner Baz Khan, but no petition was file d for enhancement of the sentence during pendency
of the appeal. On decision the convicts invoked revisional jurisdiction of this court, later in time
the petitioner Baz Khan appeared with the instant petition for an order of enhancement in the
sentence aw arded to the convicts. The mala fides apparent on face of it. The petitioner Baz Khan
despite having knowledge opted not to question the quantum of the sentence before the court of
Sessions Judge, who is fully equipped with the power with the mandate of se ction 439 -A,
Cr.P.C. Thus there remains no occasion for the petitioner to file the petition in hand before this
court.
14. In addition thereto the basic assertion on which the claim rest was that the expenses borne
by the victim on his treatment were up to Rs.100,000 and his (victim's) disability, permanent in
nature. It remained mere an assertion as there was nothing on the r ecord on basis of which it
could be assessed that the expenses incurred on the medical treatment of the victim was up to
Rs.100,000, or in consequence of the injuries, he was disabled permanently. The victim Said
Khan while in the witness box as P.W.3 stat ed not a single word about his disability. As far
conviction sought for an offence punishable under section 342, P.P.C. is concerned, it is for
wrongful confinement, not attracted in the case in hand. There is no substance in the Criminal
Revision Petition No. 78 of 2011.
15. In view of the above discussion there remained no doubt that the evidence lead, either by
the prosecution or by the convicts in their defence, were either been misread or misunderstood,
therefore, the findings recorded by the courts, trial and appellate, about guilt of the petitioners do
not suffer from any legal infirmity, thus not required re appraisal of the evidence. In addition in
presence of the ample evidence the mere fact that on the basis of minor variations in the
statements a different inference could be drawn from the material than the one drawn by the
courts, trial and appellate, also no ground for making any interference in the findings of the trial
court in exercise of revisional jurisdiction. Even when there was no grou nd of lack of jurisdiction
or material irregularity in conducting of the trial was asserted. Needless to observe that the scope
of revisional jurisdiction is limited, not mandated to re -open a question of fact unless it suffers
from any illegality to make an order perverse or unjust. In view of the established principle no
substantial question of law is involved, nor misappreciation or non -appreciation of facts and
evidence was established, thus concurrent findings of the courts, trial and appellate, need n ot to
be interfered.
16. In view of the above discussion both the criminal revision petitions bearing No.70 of
2011 and No.78 of 2011 failed, thus stand dismissed. Consequent thereof the petitioners Nawab
Khan son of Haider Khan and Fazal Khan son of Zar if Khan, who were on bail vide order dated
8th August, 2011 of this Court, are directed to be taken into custody to serve the remaining
sentence.
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