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 petitions 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 Khan 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 treatment. 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 court on assessm ent 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 conviction. 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 unreliable. Fifthly, absence of Rehmat Gul P.W.2 from Mekhter on the date of incident though 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 the 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 than Rs, 100,000 (Rupees one lac), and he (victim) was disabled permanently, 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 appellate, 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 SCM R 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 they 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 Code (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 Raja 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, instances 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 to 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 admitted 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 Investigating Officer remained un, 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. The 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 rightly 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 credibility 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 appellate, 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, and 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 paper 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, which 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 for 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 appeal 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 referred 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 ninety (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 circumstances 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 filed 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 awarded 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 section 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 record 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 stated 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 reappraisal 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 ground 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 not 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 Zarif 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.