1. ' HAIDER ALI PIRZADA, J.-- This appeal by the complainant Muhammad Shafi is filed under section 417 (2) of the Code of Criminal Procedure against the acquittal of the accused respondents 2 to 6 by the learned A.C. & S.D.M. Liaquatabad, under section 148/342/323/220/ 458, P.P.C. For which they were tried on a direct complaint.
2. ' Briefly the case set up in the direct complaint is that P.W. Shamim Ahmed working as a Chowkidar at 932/16, Federal 'B' Area, is the neighbour of the complainant and stated that Shamim Ahmed was putting up with his family and elder brother Mehmood Ahmed. On 16th of January, 1970 at about 12 o'clock noon, respondents 2 to 6 came in taxi and started forcibly lifting Shamim Ahmed who raised cries and the complainant and Mr. Irshadullah a retired Government Officer came and asked the respondents 2 to 6 the reason of taking away Shamim Ahmed to the Police Station. The respondents/accused could not explain the reason and at the advice of complainant and Mr. Irshadullah Khan left P.W. Shamim Ahmed and at the time of leaving, the respondents extended very serious threats. P.W. Shamim Ahmed gave an application to the S.P. Central Division, Karachi, regarding the highhandedness of the respondents and in the said application the complainant was cited as a witness. On the 14th of February, 1970 at about 12-30 a.m. All the respondents came to the house of Shamim Ahmed and entered the house after breaking open the door and started beating him when he raised cries of "thief, thief, robber, robber and bachao bachao". The complainant hearing the cries reached at the house of Shamim Ahmed and asked the reason of beating Shamim Ahmed and taking him away forcibly. The respondent No,2 Mukhtar became very furious and gave a fist blow on the nose of the appellant on account of which blood oozed out from the nose and subsequently on medical examination it was found to be nasal fracture. The complainant after the blow on his nose ran away to his house and bolted the door from inside. The respondents Nos. 2 and 3 caught hold of Shamim Ahmed and brought him out-side the house and under the orders of respondent No,2, the respondents 4 to 6 who were police constables came rushing to the house of the complainant and found the door bolted from inside. The respondent No,2 Mukhtar was informed about the situation and ordered the respondents 4 to 6 to break the door and bring the complainant out. The respondents 4 to 6 under the directions of respondent No, 2 broke open the door and entered the house of the complainant who due to fear of being beaten and maltreated also raised cries for help. His wife Mst. Shaukat Begum came to his help and three respondents beat her with some blunt object and his daughter Zarka Parveen came for his help.
3. She was molested and the respondents caught hold of her hair and dragged her upto the threshold. The other children of the family concealed themselves under the cots for fear of their lives. The complainant and his family were however left after being beaten and the respondents took away Shamim Ahmed to the police station where he was detained upto 6 p.m. And during the course of his detention, he was belaboured and beaten. At 6 p.m. The then Deputy S.P. Nazimabad came on inspection, Shamim Ahmed was freed from the detention with the warning of respondent No, 2 to vacate the house by 9 p.m. Shamim Ahmed came to his house. The complainant accompanied by Shamim Ahmed went to Civil Hospital for medico-legal examination. The C.M.O.
4. Civil Hospital informed the police station about the injuries and addresses of the injured persons.
5. The respondents 2 to 6 again went to the house of the appellant at 2-20 a.m. On 15th February, 1970 and in the absence of the complainant who was staying in his sister's house, the respondents started extending serious threats of violence in abusive and indecent language againSt the members of his family and this process continued upto 4-30 a.m. When the respondents went away.
6. ' The appellant filed direct complaint on 21-2-1970 in the Court of City and Additional District Magistrate, Karachi. His statement was recorded under section 200, Cr.P.C. And also statement of P.Ws. Shamim Ahmed, Zohra Begum. Non-bailable warrants were issued against respondents 2 to
6. The case was transferred to the Court of Assistant Commissioner and S.D.M. Liaquatabad, Karachi East. The complainant examined himself besides himself examined P.W. Shamim Ahmed, Zohra Begum, Shaukat Begum, Muhammad Ahmed, Dr. Noor Ibrahim. The statements of the respondents 2 to 6 were recorded who produced defence witnesses, D.W.1 Fazal Rahim, D.W.2 Abdul Khaliq, D.W. 3 Abdul Rashid and D.W.4 Ghazanfar Ali. By the judgment, dated 28-5-1979, the learned S.D.M. Acquitted the respondents 2 to 6.
7. ' Before the trial Court the complainant has examined six witnesses in support of his case. P.W.2 Shamim Ahmed, P.W.3 Zohra Begum w/o Shamim Ahmed, and P.W.6 Mahmood Ahmed claimed to have seen the incident in which respondent Mukhtar was present and gave a fist blow on complainant Musafir's nose and said "catch hold of this bastard and he may not be allowed to go".
8. Complainant bled profusely from his nose and his shirt became stained with blood. He rushed for going outside P.W. Shamim's house whereupon respondent Shah Sarwar tried to catch hold of him.
9. P.W.4 Shaukat Begum wife of the complainant saw her husband came running, his nose was bleeding. He came inside and hurriedly bolted from inside. They also saw complainant in injured condition running for his house. Now these eye-witnesses are natural and uninterested in the sense that they lived in the same locality and are not related to the complainant except Shoukat Begum, who is wife of complainant.
10. ' P.W. 5 Dr. Moosa Ibrahim produced medical report issued by Dr. Mahmood All Khan as Exh.5/1 injury No,3 was kept reserved. He also produced supplementary report of said injury as Exh. 5/2 bears signature of Dr. Moosa Ibrahim.
11. ' Respondents before the trial Court in their statement under section 342, Cr.P.C. Have denied allegations. Respondent No, 2 Mukhtar denied in his statement that he gave fist blow on the nose of complainant as a result of which he received grievous injury on his nose and started bleeding. He also stated that on 14-2-1970 at 8-30 in the night he had gone to his house at Malir, after taking permission from S.P. Central. And the entry whereof is in the station Diary. He had come to his duty at Liaquatabad P.S. On the next day. Four witnesses were examined in defence.
12. ' We have heard Mr. Abdul Aziz for the appellant/complainant, Mr. Murtaza Hussain for A.G. For State, and Messrs Khawaja Adeel and Murtaza Ali, Advocates for the respondents at great length. We have assessed the evidence which is on the record. We are aware of the Limitations relating to the scope of interference in an acquittal Appeal. The trial Court is in a better position to assess the evidence with advantage of noticing the demeanour of witnesses, who are examined before the trial Court. But in a case where the trial Court has grossly misread the evidence and assessed the same with inherent illegalities disregarding settled principles of law and guidelines, which are to be observed for appraisal of evidence and the net result of these lapses is miscarriage of justice, interference in acquittal appeal is then legally called for In the instant case, the trial Court has misread the evidence and has appraised the same in violation of settled principles of law and guidelines and has given perverse reasons for disbelieving complainant's witnesses.
13. ' The learned S.D.M. Framed the following two points for determination:
(1) Whether the accused have trespassed the house of the complainant in furtherance of common intention?
(2) Whether the complainant received a punch blow from accused No,1 and wife and daughter of complainant received beating from accused No,3 and 4?
14. ' After recording evidence, the learned S.D.M. Held that: "It is highly doubtful whether the accused caused such injuries or were self-made. The benefit of doubt always goes to accused. Hence my finding on point No,2 is in negative."
15. ' In point No,1, the learned S.D.M. Held that the version of P.W. Shamim Ahmed cannot be relied as he is very good friend of complainant and they are on friendly terms which fact is disclosed by D.Ws.
16. The learned S.D.M. Also discarded the evidence of other witnesses on the ground that they are highly interested witnesses. He also held that their version is very weak to support the prosecution.
17. ' P.W.1 Muhammad Shafi Khan Mussafir stated that on 14-2-1970, he was sleeping and it was time of 12 o'clock in the night when there arose commotion from outside. He came outside and found that the people were raising cries, while standing on the roofs of their houses. He saw Maqbool Shah A.S.I. Was in uniform while S.H.O Mukhtar (Respondent No,2) in plain clothes and all the three constables respondents were beating P.W. Shamim Ahmed. Respondent No, 2 Mukhtar and constable Abdul Rehman were standing near the door. He asked them as to why they were beating him. Whereupon Abdul Rehim caught his hand and said that he got Shamim released on the previous day and he had come to release him on that day again. Saying so, the respondent No,2 Mukhtar gave a powerful fist blow on his nose and said "catch hold of this bastard and he may not be allowed to go"
18. ' P.W.2 Shamim Ahmed has deposed that it was about 1 o'clock in the night in between 13th and 14th February when he was sleeping in his house. The door of his house was of cardboard. The respondents entered his house by breaking his door. He raised cries, "thief, thief" Respondent Mukhtar was standing at the door of complainant and two three persons arrived there. Respondent Abdul Rehman sepoy told respondent Mukhtar, pointing at complainant that this is the same man who hau got him released prior to this also. The respondent Mukhtar gave a fist blow on his nose.
19. Complainant ran towards his house. Respondent Mukhtar asked others to catch him. Complainant shut the door. Whereupon respondent Maqbool Shah asked to break the door. All the three sepoys broke the door and entered inside. His evidence is on all fours with complainant's case which we propose to rely upon. The reasons assigned by the learned trial Judge to disbelieve this witness are fallacious. Firstly that this witness is very good friend of complainant. Secondly- that they are on friendly terms which fact is disclosed by defence witnesses that they are involved in prostitution business. These reasons are conjectural in nature and individually and collectively do not turn on the fact or falsify it that the respondents broke open his door. The complainant, on bearing his cries, entered his house and that the P.W.2 Shamim saw the incident as claimed by him. We rely upon his evidence. Injury on the person of the complainant is medically proved.
20. ' Now, we take up second witness P.W.3 Zohra Begum, she has fully supported the complainant's case. The trial Judge discarded her evidence on the ground that she is wife of P.W. Shamim. Her version is very weak to support the prosecution. The reason is not enough to discard her evidence: She is natural witness and her presence at the time of incident cannot be disputed because she is inmate of the house. C She has fully supported the case and there is nothing adverse in her cross to justify disbelieving her.
21. ' The learned trial Judge's remarks are also not well-founded for non-examination of two P.Ws., namely, Master Liaquat All and Irshadullah Khan. Irshadullah died during the proceedings while Master Liaquat All was a minor. Their non-examination cannot adversely affect prosecution case.
22. The learned counsel for the complainant has placed reliance on the case of Gulzar and 2 others v.
23. State 1970 SCMR 603. The principle laid down in the above case this non examination of minors cannot affect adversely the case of the prosecution is fully applicable to the facts of this case.
24. There is plenty of corroboration available in this case, which has been wrongly overlooked. All eye- witnesses have supported the complainant's case. Ocular evidence is supported by the medical evidence to the extent that grievous injury by fist blow was found on the nose of the complainant as seen and claimed by the eye-witnesses. This evidence is further supported by P.W. Mst. Shaukat Begum wife of the complainant who has stated that complainant came running and his nose was bleeding. The trial Judge criticised evidence of prosecution witnesses on the ground that complainant and P.W.Shamim were men of bad character as they were indulging and/or running prostitution den. In Abdul Hakeem and 2 others v. The State PLD 1971 Kar. 239, a decision of this Court where there was criticism of evidence of a witness against whom proceedings under section 110, Cr.P. Code were pending and it was suggested that he was a man of bad character and, therefore, his evidence could not be relied, for that reason, it was observed as under:- "We are unable to give any credence to this contention, for a person of bad character can be a credible witness. It is the inherent worth of his statement that would matter and not the character."
25. ' The learned counsel for the respondents have submitted that the learned trial Court has given cogent reasons for disbelieving prosecution witnesses and came to the conclusion, that there was no evidence on record that such incident happened whereby respondents entered the house of the complainant and caused grievous injury.
26. ' We have carefully gone through the statements of P.W. No,1 complainant and P.W. 2 Shamim, P.W.3 Zohra, Shaukat Begum and Muhammad Ahmed who is P.W.
5. It is clear from their statements that respondent No,1 gave fist blow on nose of complainant. P.W.2 and P.W.3 have categorically stated so before the trial Court. From medical certificate on record, it is clear that complainant received grievous injury on his nose. In view of this, it is clear from the evidence that complainant received grievous injury on his nose which was seen by P.Ws. 2, 3, 4 and 5.
27. We find that statement of P.W. No,1 is straightforward and convincing and is fully corroborated by P.Ws. 2, 3, 4 and 5. As against the aforesaid analysis of the evidence of the prosecution, the F plea of alibi put up by the respondent has no legs to stand. The respondent No,2 has stated in his statement under section 342, Cr.P.C. That on 14th February, 1970 in the night, he had gone to his house at Malir after taking permission from S.P. Central. And the entry whereof is in the Station Diary. He had come to his duty at Liaquatabad P.S. On the next day. This statement is not supported by any evidence, but still we have considered this fact, and we feel that this fact could have only been satisfactorily proved by the production of Station Diary or proof of permission of the S.P.
28. Central. There should have been no difficulty in producing any person from Malir as witness. Burden of proof is not on the accused but the fact remains that if a plea of alibi is set up by the accused he has to prove the same by himself and in case he fails to prove the plea at least to the extent of creating a doubt, no benefit can be taken by him for the plea raised.
29. We see no justifiable reason, why the evidence of these witnesses should be disbelieved. There is nothing in the cross-examination of the witnesses nor there is anything in the depositions of the defence witnesses which leads to any such conclusion nor have the learned counsel for the respondent pointed out any such matter. We have therefore, come to the conclusion that the case against respondent No,2 (Mukhtar) has been established beyond reasonable doubt and he ought to be convicted for the offence of causing of grievous hurt.
30. ' The learned counsel for the respondents next argued that in the present case, Dr. Mahmood Ali Khan who had prepared the injury report Exh.5/1 was not available for evidence and as such injury report stands unproved and cannot be relied upon as substantial piece of evidence. The argument, is not acceptable in law. Section 32 of the Evidence Act with subsection (2) reads as under:- "32. Cases in which statement of relevant facts by person who is dead or cannot be found, etc., is relevant.-- When it relates to cause of death; or is made in course of business; or against interest of maker; or gives opinion as to public right or custom, or matters of general interest; or relates to existence of relationship; or is made in will or deed relating to family affairs; or in document relating to transaction mentioned in section 13 clause (a) or is made by several persons and expresses feelings relevant to matter in question. Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:- (1)
31. "(2) When the statement was made by such person in the ordinary course of business and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him."
32. ' In the present case, it cannot be disputed that the attendance of the Medical Officer, Dr. Mahmud Ali Khan, who had proceeded to U.S.A., could not be procured without delay and expense, which in the circumstances of the case, would have been unreasonable. The Medical Officer had examined the complainant when he was brought to the hospital of which he was incharge in the discharge of his professional duty and he had noted injury in the injury-sheet maintained by him. Dr. Moosa Ibrahim stated before the trial Court that the injury report had been prepared by the Medical Officer and it bears his signature. This statement of Dr. Moose Ibrahim clearly proved the injury report on the record; and the injury report having been proved is admissible under section 32(2) of the Evidence Act. In our opinion, therefore, the learned Assistant Commissioner and S.D.M. Was wrong in holding that the injury report had not been proved in accordance with law The view taken by the learned Assistant Commissioner and S.D.M. Was, therefore, untenable and he was wrong in holding that it is highly doubtful whether the respondent No,2 (Mukhtar) caused such injury or it was self-made. Under these circumstances there could be no doubt that the complainant had received grievous injury on his nose. We are also of the view that all respondents at the relevant time were police officials and there was no sharing of common object, when respondent No,2 Mukhtar is individually responsible for this illegal act and others with him cannot be burdened with vicarious liability. Moreover, there is no such evidence to show that other respondents shared common object with respondent No,2 Mukhtar, who gave fist blow to complainant. Therefore, other respondents should get benefit of doubt but not respondent No,2 against whom case is fully established.
33. ' In regard to the question of sentence, however, there are circumstances which persuade us that the extreme sentence is not called for in this case. The incident took place on 13th July, 1970 that is about 14 years ago and he was acquitted on the 28th May, 1979. We would, therefore, allow this appeal against respondent No,2 Mukhtar, only and convict him under section 325, P.P.C. And sentence him to R.I. For one year and a fine of Rs,5,000 in default of payment, whereof he would suffer R.I. For 6 months. If the fine is recovered, the same shall be paid to the complainant.
34. ' Appeal in respect of the respondents 3 to 6 is dismissed.