This appeal under section 410, Cr. P. C. Is directed against the Judgment dated 19-1-1978, of the learned III Additional Sessions Judge, Hyderabad, whereby he convicted the appellants under sections 452, 392 read with 397, 324/34 and 323/34, P. P. C. And sentenced them to undergo R. I. For two years under section 452, P. P. C., one year, under section 324/34, P. P. C. Six months, under section 323/34, P. P. C. .And 7 years under section 392 read with 397, P. P. C. They were ordered to pay compensation of Rs. 5,000 each to the complainant in terms of section 544-A, Cr. P. C. And in default of payment of fine to suffer R. I. For 12 months more. The sentences were ordered to run concurrently.
2. The facts of the case are that one Bahadur Khan Chowdhry son of Saeedullah Khan filed his F. I.
R. On 10-4-1965, at Police Station City Hyderabad which reads as under;--- "I alongwith my family are residing in House No. 281, E/39 Fakir jo-Pir. At present I alongwith my brothers, namely Ghulam Qadir, Nadir Khan and women, namely Khadija Begum who Ghulam Qadir, Mst. Faizi Begum who Nadir Khan and my wife Mst. Bhagh Bhari are residing together. Our house consists of three rooms on the ground floor, in which our articles are lying and two rooms on the upper story, wherein we all the three are residing with our families. A case regarding this house between myself and Mahmoodul Hassan and others is pending in the civil Court. On 27th February, 1965, the civil Court First Class Sub-Judge decided the case ex parte. On this date I could not attend the Court, therefore this case was decided against me. But time for appeal was given for one month.
Accordingly, I filed appeal in the same Court on 27th March, 1965. It was admitted and was fixed for hearing on 19-4-1965. On 1-4-1965 I received a notice from Deputy Settlement Commissioner, Hyderabad vide his No. AAO/HDR-1/2442, dated 1-4-1965 directing me to deposit Rs. 4,741.69 in respect of house No. 281/E 39. I have got this notice and will produce the same. Today in the morning at 8-00 a. m. I went for my duty to the School, and Ghulam Qadir also went to his duty to Al-Farooq School at 8-30 a. m. And Nadir Khan also went to his duty to Government School Liaquat Colony at 8-00 a. m. At about 2 O'clock when I came to my house I found that our entire articles lying in the above house were lying outside on the road, and none of my brothers was present there. Mst. Khadija Begum, Mst. Bhag Bhari, Mst..Faizi Begum, women of my house were standing outside on the road at place of articles. On enquiry they told that Mahmoodul Hassan and others had come with. The bailiff, who entered the house, beat us and turned us out of the house. They have also thrown the articles outside. At that time the Police was standing outside after getting the house vacated, when the Police and bailiff went away, at that time also they started abusing the women, where- upon the women also spoke harsh words with them. Upon this Mahmoodul Hassan and his 3-4 other partners, whose names I do not know, gave slaps and fists blows to the women. I finding this made enquiry from the neighbours namely Muhammad Aslam, and Basheer Ahmed Khan, who also narrated the same facts. Now I have come here and lodge report that Mahmoodul Hassan and his two partners had come alongwith attachment warrant, bailiff and the Police in aid, have forcibly taken out the women from the house by holding them and have thereby caused disgrace in absence of any male member. Now I have come here and lodge report. Investigation be made.
Complaint was read over to the complainant who admitted it correct and signed thereon."
3. The complainant found that the S. H. O. Did not mention facts about beating of his ladies and robbery of their cash and ornaments in the F. I. R. He also did not read over the F. I. R. To him but compelled him to put his signature on it and also refused to give letter for referring the injured ladies to the hospital for examination, treatment and certificate of their injuries. He therefore immediately presented an application to the D. I. G., Hyderabad Division, West Pakistan at Hyderabad on the same day complaining against the S. H. O. Mentioning facts of inflicting knife injuries to the ladies and breaking open this locks and robbing cash and ornaments from their boxes. The application presented to the D. I. G. Reads as under ;-- "Sir, It is most humbly requested that on 10-4-1965 we all the three brothers went on our duties. I returned to my house at 5-00 p. m. After giving the tuition (and found that) all of my household articles were lying in the street and the locks of the boxes were also broken. Therefore I enquired from all of my three women, whereupon they replied that Abdul Saeed Khan, Abdul Rashid Khan, and Hamid Hussain and some other persons entered the house all of a sudden, gave us knife injuries and broke the locks of the boxes. The accused persons have run away taking Rs. 7,000 (Rupees seven thousand) of mine Rs. 1,300 (Rs. Thirteen hundred) of Nadir Khan, my gold ornaments weighing 18 tolas and of Bhoy Kadir Khan of gold weighing 14 tolas. I have made the report of this incident to the S. H. O. P. S. City but the S. H. O. Has conspired with the accused party and has taken from them sufficient bribe. He has neither properly written my report regarding theft and beating and nor he has read over the same to me, but has forcibly compelled me for putting the signature. Nor he is giving the letter for hospital to the inured women. Therefore it is requested to your honour that the ornaments and the money taken away by the accused persons be kindly returned to me after making enquiry and my complaint may kindly be entered in the F.
1. R. Properly, enquiry be made against the S. H. O. And S. P., Hyderabad may kindly be directed to go to the place of occurrence and investigate personally and the accused persons be arrested."
This application was forwarded by the D. I. G. To the S. P., Hyderabad for immediate necessary action against the accused.
The ladies however were referred to the hospital as a result of this application but Police did not neither arrest any of the persons named in the F. I. R. Nor properly investigate into the allegations levelled by the complainant. He therefore filed the direct complaint against the appellants and others in the Court of IInd Additional City Magistrate, Hyderabad under sections 392, 380, 352 and 448, P. P. C. Which reads as under "(1) That the complainant is the Head Master of Government Urdu Primary School, Police Headquarters, Hyderabad.
(2) That the complainant has two brothers, namely Kadir Khan and Nadir Khan, they are also teachers in AI-Farooque Primary School and Government Primary School, Liaquat Colony, Hyderabad respectively.
(3) That on 10th April, 1965, as usual, the complainant went to his school duty, while his brothers also went to their respective duties of school.
(4) That after giving tuitions, when the complainant returned to his house at about 5-00 or 5-30 p. m., he was astonished to see the womenfolk of his house standing in the street and crying, and he further saw the household articles also lying in the street and boxes were opened.
(5) That on enquiry from women folk and the. Complainant's brother Kadir Khan, they informed him that the above accused along with other unknown persons entered the house and took the household articles and thrown them in the street. Accused have broken the locks of the trunks and the accused have taken away the cash and ornaments (as per list attached) and have also assaulted and beaten the women folk and this incident was seen by Bashir Ahmad Khan and Muhammad Aslam and Abdul Sattar.
(6) That on hearing this tragic news. The complainant went to City Police Station and lodged his F. I.
R. But Police omitted the committing of robbery by the accused and many salient features of the case and therefore the complainant went to the D. I.-G. Police at his bungalow alongwith application stating the facts therein, and the D. I: G. Police forwarded this application to S. P.
Hyderabad,. For disposal who in turn sent this application to A. S. P., Hyderabad for enquiry.
(7) That the women folk were sent to Civil Hospital by Police alongwith letter and they were treated there.
(8) That when A. S. P. Did not make any requisite enquiries, the complainant gave another application to p. I: G. Police and he again forwarded this application to A. S. P., Hyderabad.
(9) That nothing so far has been done by the Police, as the accused are influential person and are in league with the Police, and the complainant is a poor Teacher.
(10) That after waiting for the Police to take some effective step in. This case and they having failed in it so far, the complainant files this direct complaint in this Court.
(11) That the accused have neither been arrested nor the Police have secured the complainant's cash and ornaments from the accused and the complainant therefore has no faith in the Police.
(12) It is, therefore, prayed that this Hon'ble Court be pleased to proceed against the accused and do justice to the complainant. Hyderabad W. P.
8th May, 1965.(Sd.) Complainant Ch. Bahadur.
List of Properly Rs.
1. Cash7,000
2. Kadir Khan1,300
3. Nadir Khan.1,100 Total9,400 Ornaments Mst. Bhagbhari;
1. Two Kangans of 6 tolas
2. Two ear-rings 3 tolas.
3. Golden buttons 2 tolas.
4. Har 3 tolas.
5. Golden Tika 2 tolas.
6. Two Rings.
7. Golden Har 2 tolas.
8. Golden Kil.
Mst. Khadija Begum
1. Golden Har 5 tolas.
2. Golden ear-rings 4 tolas.
3. Golden Tika 2 tolas:
4. Golden buttons 3 tolas.
5. Two golden rings worth Rs. 200."
4. The learned Additional City Magistrate, Hyderabad committed the case to IIIrd Additional Sessions Judge, Hyderabad, while the trial was proceeding before the Additional Sessions Judge, the appellants filed a quashment application being Cr. Miscellaneous No. 1002 of 1976 in this Court which was disposed of with observation that the prosecution had completed its side at the trial and there was no attack that no case was made out from the evidence that has been recorded.
The application was therefore considered to be mis-conceived and was as such dismissed on 17- 2-1977.
5. The prosecution case is mainly based on ocular testimony, corroborative evidence, evidence of motive and medical evidence.
6. The accused/appellants however denied all the allegations against them and have claimed to have been falsely implicated in this case on account of enmity.
7. I would first of all examine evidence of Mst. Khadija and Mst. Bhag Bhari who are injured eye- witnesses against the appellants. Both of them have stated that the appellants alongwith other persons forcibly entered into their house and threw out their household articles outside their house and assaulted the women who were living in the said house at the time of incident. The appellant Abdul Saeed Khan gave blows by knife to Mst. Bhag Bhari P. W. 5 and Me. Khadija P. W.
6. They also broke open their boxes and robbed cash and ornaments belonging to the complainant Kadir Khan, Nadir Khan, Mst. Bhagh Bhari and Mst. Khadija.
Both these injured eye-witnesses have not been cross-examined at all inspite of the fact that opportunity was given to the appellants who preferred .Not to cross-examine any of them.
8. The complainant Ch. Bahadur Khan P. W. 7, Iqbal Shah P. W. 3, Bashir Ahmed P. W. 4 and Haji Abdul Sattar P. W. 8, a neighbour of the complainant are corroborated witnesses who have supported the version of Mst. Bhag Bhari and Mst. Khadija. The abovesaid witnesses have also not been cross-examined by the accused/appellants except Iqbal Shah P. W. 3, though opportunity was provided to the accused/appellants but they did not avail it. The application to recall the P. Ws.
Who were not cross-examined was made before the trial Court but it was dismissed and a Revision Application No. 91 of 1977 against such order was preferred in this Court during pendency of trial but the same was dismissed on 24-5-1977.
9. There is also a strong corroborative documentary evidence against the appellants as one Hamid Hussain son of Mahmood Khan was also a co-accused with the appellants in this case who died during the pendency of the case before trial Court. This Hamid Hussain had also filed a direct complaint in the Court of IIIrd Additional City Magistrate, Hyderabad, against Bahadur Khan (the Complainant in this case) and his brother Nadir Khan under sections 341, 342 and 503, P. P. C. For the same incident on 22-4-1965, which has been produced as Exh.
24. The present appellants were shown as P. Ws., in the complainant and their statements have been recorded which are produced as Exs. 26 and 27 respectively. The complainant and his brother Nadir Khan were discharged by the learned Additional City Magistrate by his order dated 29-2-1972 produced as Exh.
25. It would be interesting to note that the learned Magistrate, while discharging the complainant Ch. Bahadur Khan and his brother Nadir Khan observed that it was a rare case in which the prosecution had made out absolutely no case against the accused persons but made a strong case. Of robbery against the complainant and his. Two companions i. e. Abdul Saeed and Abdul Rashid Khan (present appellants). It was also observed that the complainant should have been prosecuted for filing absolutely a false case but because of their different cases against each other, the learned Magistrate did not do so.
10. The complainant has also produced a copy of Exh. 28 to show that it was to make payment of the amount of notice etc. That he had drawn a sum of Rs. 7,000 from his Bank-account a few days prior to this incident in order to clear amount of the Settlement Department which amount was robbed by the appellants at the time of incident.
11. The motive for commission of this offence, has been given .To be a dispute between the complainant on one side and Hamid Hussain and Anwar Hussain on the other. The appellants, had accompanied Hamid Hussain and others in order to dispossess the complainant who was not prepared to give up his claim on the house in question. They succeeded in dispossessing him but committed the above offence.
12. Dr. Badar Islam, who was Casualty Medical Officer, Civil Hospital, Hyderabad, was examined in the committal Court on 17-2-1972. He was out of the country at the time of trial, therefore his evidence in the committal Court was brought on the record of the trial Court which reads as under :- "On 10-4-1965 I was Casualty M. O. Civil Hospital Hyderabad. At 7.00 p. m., I received Mst. Bhag Bhari d/o Fazaluddin r/o Fakir-KaPir Hyderabad from City P. S. Hyderabad for examination, treatment and certificate. I examined her and found the following injuries :--
(1) Incised wound on the interior surface of the right forearm 2' x --x -- ' muscle deep.
(2) Incised wound 1 --x --muscle deep in the interior side of the right upper arm -at about middle.
(3) Incised wound 2 -- ' % --muscle deep on the middle of the right upper arm, Communicating Injury No. 2.
(4) A contused wound 3' x 2' on the left side of chest just below the clavial, Clenical there was no fracture.
Nature of injuries were simple. Duration of injuries was within 24 hours. Kind of weapon used for 1, 2, 3 sharp cutting weapon like a knife and No. 4 some blunt like lathi etc. I see certificate which is issued by me Exh. 13-A and is name and bears my signature.
On the same day I also examined Mst. Kbadija Begum d/o Zaidan Khan from- City P. S., Hyderabad.
I have issued certificate and sent the same to S. H. O. City P. S. The entry certificate is not available on the record. I see the entry of the hospital maintained by the Police and the entry shown at No. 35 on page 410 showing the name of Khadija who Ghulam Kadir and receipt of the Police having received certificate from the hospital. I produce the entry Exh. 13-Bi."
Thus medical evidence proves injuries on the person of Mst. Bhag Bhari and Mst. Khadija.
13. Mr. A. Q. Halepota, the learned counsel for the appellants has contended that names of the appellants do not appear in the F. I. R., lodged by the complainant at the police station in which incident is shown to have taken place little before 2.00 p. m. He has also contended that names of the P. Ws. Muhammad. Aslam, Basir Ahmed, Haji Abdul Sattar and Iqbal Shah do not appear in the F. I. R. Therefore no reliance can be placed on their testimony. He has pointed out that the complainant has put in 'a different case in his application dated 24-4-1965 addressed to the D. I.- G., Hyderabad Exh. 22 so much so that no names of P. Ws, have been shown in this application also.
The complaint lodged in the Court on the contrary shows names of Kadir Khan and Abdul Sattar as witnesses which were neither mentioned in the F. I. R. Nor in the application to the D. I. G. He has therefore argued that it has not been specifically mentioned as to what type of weapons were used for inflicting injuries to the ladies.
14. The learned counsel has attacked the evidence of Iqbal Shah P. W. 3, who is the only witness out of the whole lot who has been cross examined at length that this witness has not seen the incident as he has not stated as to who gave injuries to the ladies and with what weapons. Moreover his behaviour at the time of incident was that of a silent spectator though he was on. His duty to take possession of the house but he remained silent and did- not prevent the appellants from committing offences. He has admitted that the complainant was his friend.
15. As far as evidence of Bashir Ahmed P. W. 4 is concerned, the learned counsel for the appellants has contended that it cannot be relied upon as this witness has stated that injuries were inflicted by the appellants by "Zamboor" and the appellants were not known to him previously and that he was not also aware of their names. Moreover he has no business to be there at the time of occurrence and has given a false evidence. He was actually a set-up witness and interested in the complainant.
16. The evidence of Zafar Hussain bailiff of Civil Court, Hyderabad, who has produced a Mashirnama has been attacked on the point that. It's contentions have not been deposed to by Mashirs of this Mashirnama and therefore it cannot be accepted. Though Mubashir Ahmed, Mashir of delivery of possession has been examined and he has supported what has been said by Zafar Hussain bailiff: It has also been contended that name of another Mashir has been shown to be Abdul Waheed whereas certified copy of Mashirnama. Produced by, him with memo of the appeal showed the name of another Mashir as Wahid A.I. Therefore no reliance can be placed on such a statement of Mubashir Ahmed as well as Zafar Hussain.
17. It has been further contended that it was a case of interested evidence and the appellants have been falsely implicated due to their strained relationship with the complainant over a dispute on possession of the house. The relationship between the P. W. Is admitted as the complainant Bahadur Khan ;s husband of P. W. Mst. Bhag Bhari whereas P. W. Mst. Khadija, is wife of his brother. Haji Abdul Sattar is friend of the complainant and also that his name does not appear in the F. I. R. Which was filed by the complainant Bahadur Khan at City Police Station, Hyderabad. There is no mention of his name. Even in the application presented to the D. I: G., by the complainant on the very day and also not in the direct complaint filed by him on 8-5-1965 f. e. After about 28 days after this incident.
Therefore it could be safely concluded that introducing his name was a subsequent improvement of the case and it could easily be ignored. In fact, names of P. Ws. Bashir Ahmed who is a school teacher, Haji Abdul S3ttar and Iqbal Shah are not mentioned in the application to D. 1.-G. In which name of only one Muhammad Aslam has been shown but he has not been examined.
18. The reliance of the trial Court on statements of the appellants in another case has been attacked on the ground that the same were not put to the appellants at the time of recording of their statements under section 34?, Cr. P. C. .
19. It has been lastly contended that injuries on person of Mst. Bhag Bhari who was examined ' at 7.00 p. m., 1. e. After about 6-7 hours of the incident were shown as fresh and injuries on person of Mst. Khadija in absence of her Medical Certificate become doubtful and no reliance could be placed on such evidence.
20. Mr. R. A. Qureshi, the learned counsel for the State, on the other hand has submitted his written arguments and has contended that Mst. Bhagh Bhari and Mst. Khadija are natural witnesses being inmates of the house and they are injured eye-witnesses and their presence at the spot cannot be denied. Their evidence under the circumstances can be safely relied upon as it does not suffer from any infirmity. Their version has also been strengthened by the medical evidence. There may be some contradictions in their version but they being not material .Could be overlooked as such contradictions are bound to occur particularly when the evidence is recorded after considerable lapse of time. There is no doubt that certificate of injuries on person of Mst. Khadija has not been produced but Imtiaz A.I P. W. 20 has produced the register in which such entries are made about injuries on person of Mst. Khadija and they stand proved even by Dr. Badar Islam who has very clearly deposed to in his evidence.
21. The evidence of Iqbal Shah, who his been cross-examined at length has corroborated the testimony of the lady witnesses. It has been further corroborated by P. Ws. Bashir, Abdul Sattar and the complainant Ch. Bahadur, who have not been cross-examined at all and therefore there is nothing on the record to disbelieve their version. The learned counsel for the State has also contended that both the appellants were witnesses against the complainant Ch. Bahadur in the case - filed by one Hamid Hussain (since dead) who was also co-accused with the appellants in this case. The appellants have admitted in their statements that they caused injuries to the lady witnesses and also removed gold and other articles. He has pointed out that these statements have been put to them in their statements recorded under section 342,. Cr. P. C..
It would thus appear that factum of incident is not denied. It is only question of two versions and the version put by the prosecution in this case has been fully proved. War Hussain bailiff and Mashir Mubashir Ahmed strike last nail in the coffin of defence when they have stated to the effect that on 12-4-1965, they had gone to the disputed house and 'were informed that the, present appellants accused have already taken possession of the disputed house on 10-4-1965 and contents of Mashirnama Exh. 32 have been fully supported by Mashir Mubashir Ahmed .
The contention that the direct complaint for the first time Was lodged on 8-5-1965 after about a month's time-and therefore it has no value. The learned counsel for the State has contended that the complainant after lodging F. I. R. With the Police on very day put in an application to the D.1: G.
Informing him of the fact that the Police did not record the facts properly in the F. I. R. And that robbery of cash and ornaments was not mentioned in it. It is therefore natural that the complainant would wait for some time to see result of his application given to the D. I.-G. And having been disappointed from the Police investigation he filed a direct complaint after waiting for a reasonable time. The argument of the defence that names of the witnesses have not been given in the F.
1. R. And in the application to the D. I. G. By the complainant and therefore their testimony be disbelieved. The learned counsel for the State has stated that names of the lady witnesses are mentioned but presence of P. W. Iqbal Shah has also been admitted by the appellants as his name is also shown in the complaint filed by late co-accused, Hamid Hussain against Babadur Choudbry the present complainant in this case. The defence has also tried to rely on another Mashirfama produced with the memo of appeal, purported to have been prepared by P. W. Zafar Hussain bailiff on the day of incident. It cannot be considered as it's original is not available. Moreover it has not been put to P. W. Zafar Hussain bailiff in the lower Court under section 145 of Evidence Act. It's copy has not been supplied to the State, nor State had any notice of this Mashirnama. Moreover this is not original Mashirnama but a certified copy.
22. I have considered the contentions of the learned counsel for the appellants as well as State. The ocular testimony is consisting of two injured eye-witnesses Mst. Bhag Bbari and Mst. Khadija who apart from being natural witnesses have stated facts in such a manner that there is no room to disbelieve them. Moreover their testimony has remained un--challenged as nothing has been put to them in cross-examination in spite o the fact that the appellants were given opportunity to cross-examine these witnesses but they preferred not to avail of it. There is no alternative but to accept their version as true. The other corroborative witnesses lqbal Shah P. W. 3, Bashir Ahmed P.
W. 4 and Haji Sattar P: W. 8 have also full supported the version , of the injured eye-witnesses. Out of these three witnesses only Iqbal Shah P. W. 3 has been cross-examined at length. The evidence of above two witnesses has again gone unchallenged and nothing in cross-examination has been put to them and their testimony even otherwise is worth reliance and is being accepted by me. As far as evidence of Iqbal Shah P. W. 3 is concerned, there are no material contradictions even in his version so as to disbelieve him. His presence on the spot is established as his name appears as witness in the direct complaint filed by one Hami Hussain (since dead) who was co-accused with the present appellants. The prosecution is further strengthened from the- documents consisting of the complaint filed by Hamid Hussain co-accused (since dead) and the statements of the present appellants Exhs. 26 and 27 respectively who figured as witnesses in the abovesaid complaint. Even otherwise these are public document and there are strong reasons to take note of them. These document have also been put to the appellants in their statements recorded under section 342, P.
P: C. The reliance can safely, be placed on the particularly in the circumstances when the appellant Abdul Saeed in reply to a question by the trial Court to the effect that he was a witness in the direct complaint filed by the co-accused Hamid Hussain (since dead) an his statement was recorded in that case. And the contents of the certified copy of it Exh. 26 were read out to him in Court, to which he replied in affirmative. I therefore accept theca as . True. After , considering ocular testimony and corroborative evidence coupled with other circumstances of the case as discussed above, I am satisfied that the case of the prosecution has been proved against the appellants beyond reasonable doubt and they' have been rightly convicted and sentenced under the above offences.
23. In the result this appeal stands dismissed.