' SARDAR MUHAMMAD ASHRAF KHAN, J.-- This acquittal appeal by the State is directed against the judgment of the District Criminal Court, Poonch passed on 27-5-1981 whereby it, on appeal, set aside the convictions and sentences awarded to the respondents by the Tehsil Criminal Court Rawalakote vide its order, dated 31-10-1977 and accordingly acquitted them.
2. Briefly stated the facts leading to the filing of this appeal are that on 9-9-1976 at 9.30 p.m.
Muhammad Asghar Khan, P.W. Lodged a verbal F.I.R. With the Police Station Rawalakote in which it was alleged that on the morning of the same day he asked Muhammad Jabair Khan, respondent in Chack Bazar that he should not, taking with him stranger and unknown persons, wander and rove about in the village upon which Muhammad Akram, respondent started abusing him and threatened to take revenge from him for his admonition. It was further alleged in the said report that on the evening of the same day at 7.30 p.m. While he and Abdul Qayum P.W.Were going to offer their 'Teravi' prayer at Chack Mosque, they found the respondents and Muhammad Shabir sitting on the road and blocking their way near the grave of Major Muhammad Sabir Shaheed out of whom Muhammad Akram, respondent asked them as to where they were going and that on complainant's reply that they were going to offer 'Teravi' prayer, the said respondent and others started abusing them. The report further contained the allegation that in the meantime Muhammad Akram, respondent took out a knife from his pocket and mounted an attack upon him and that Muhammad Azad, respondent caught hold of him by arms while Muhammad Akram inflicted knife blows on his head and scapula, Muhamamd Jabair, respondent caused 'Sot' blows and Muhammad Shabir beat him with fist blows. It was also reported that on hearing their hue and cry, Muhammad Azad P.W., Muhammad Roshan and Muhammad Sadiq reached the spot to whom the complainant narrated the whole occurrence.
3. A case under section 307/341, A.P.C. Was registered by the police on the above report and after completing the investigation, a challan under sections 307, 326 and 341, A.P.C. And section 15 of the Islamic Penal Laws (Enforcement) Act read with section 34, A.P.C. Was put up before the Tehsil Criminal Court Rawalakote against the respondents while the name of Muhammad Shabir, accused was entered in column-2 of the challan as he was found innocent and released under section 169, Cr.P.C.
4. The trial Court after recording the evidence adduced by the prosecution and the defence and hearing the arguments of the counsel for the parties, convicted the respondents for the offences under section 341, A.P.C. And section 15 of the Islamic Penal Laws (Enforcement) Act read with section 34, A.P.C. And each of them was sentenced to one month rigorous imprisonment and a fine of Rs,200 under section 341, A.P.C. While under section 15 of the Islamic Penal Laws (Enforcement)
Act read with section 34, A.P.C. Muhammad Akram and Muhammad Jabair, respondents were awarded the sentences of 'Hakoomat-e-Adal' of Rs,2,000 and Rs,500, respectively while Muhammad Azad, respondent was sentenced to one month rigorous imprisonment on the above count and the sentences of imprisonment awarded to him both under section 341, A.P.C. And section 15 of the Islamic Penal Laws (Enforcement) Act were ordered to run concurrently.
5. Feeling aggrieved by the above judgment of the trial Court, dated 31-10-1977, the respondents filed an appeal against the same before the Sessions Judge but the same was ultimately dismissed vide his order, dated 5-7-1979 on the ground of lack of jurisdiction. The respondents then lodged an appeal against the aforesaid judgment of the Tehsil Criminal Court before the District Criminal Court, Poonch on the same day which accepting the same, set aside the judgment of the Tehsil Criminal Court recording their convictions and awarding sentences to them and accordingly acquitted the respondents vide its judgment, dated 27-5-1981. It is the above judgment of the District Criminal Court, Poonch against which the present acquittal appeal has been filed by the State.
6. Muhammad Akram and Muhammad Jabair, respondents could not be served with the notices issued against them by this Court on admitting the present appeal for hearing as they had left the territory of Azad Kashmir after their acquittal by the Court below and thus the same was heard only against Muhammad Azad, respondent.
7. We have heard the learned counsel for the State and Muhammad Azad, respondent and have also gone throught the record of the case. The learned Additional Advocate-General appearing on behalf of the State has challenged the order of acquittal of the said respondent passed by the District Criminal Court Poonch mainly on the following grounds:-
(1) That the appeal of the respondents against their convictions and sentences before the District Criminal Court, was not maintainable being barred by limitation inasmuch as it was required to be filed within 30 days from the date of the passing of judgment of the Tehsil Criminal Court, in view of the provisions of section 25(4) of the Islamic Penal Laws (Enforcement) Act whereas the same has been filed after the expiry of a period of more than one year and nine months from the date of passing of the said judgment and that the said Court had wrongly condoned the delay caused in filing the same because section 5 of the Limitation Act was not applicable to an appeal filed under the Islamic Penal Laws (Enforcement) Act before the District Criminal Court from the judgment of the Tehsil Criminal Court.
(2) That the charges against the respondents were fully brought home to them on the basis of the proof produced by the prosecution consisting of ocular, circumstantial and medical evidence and the motive for the crime and thus appellate Court below has erred in acquitting them.
8. On the other hand, it was argued by the learned counsel for Muhammad Azad, respondent that no period of limitation for an appeal from the order the Tehsil Criminal Court was provided in any law at the time of filing appeal by the respondents against the said order before the District Criminal Court and that it was for the first time on 29-9-1979 when the period of 30 days was provided for such an appeal by adding subsection (4) to section 25 of the Islamic Penal Laws (Enforcement) Act, 1974 through an Ordinance No, CXXVIII of 1979 and known as Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (Amendment) Ordinance, 1979 and and thus the appeal of the respondents was not barred by limitation, having been filed before the making of provision in the Islamic Penal Laws (Enforcement) Act providing for period of limitation for an appeal from the judgment of the Tehsil Criminal Court to the District Criminal Court.
9. On the merits of the case, it was argued that there are material discrepancies in the statements of the prosecution witnesses in the presence of which Muhammad Azad, respondent cannot be held to be guilty of the offences with which he was charged. It was further contended by the learned counsel for the said respondent that Muhammad Azad, respondent had not caused any hurt to the complainant and as such he was rightly acquitted by the District Criminal Court.
10. We first proceed to examine the contention of the learned counsel for the State regarding the appeal of the respondents against their convictions and sentences before the District Criminal Court being time-barred. The District Criminal Court in its judgment under appeal has also dealt with the objection about appeal before it being barred by limitation and has condoned the delay caused in filing the same on the ground that the respondents had filed an appeal against their convictions and sentences before the Sessions Judge within the time which they had been persuing uptil the date the appeal was filed before it.
11. After giving our due consideration to the above question as to whether or not the appeal of the respondents before the District Criminal Court was barred by limitation, we have come to the conclusion that the contention advanced by the learned counsel for Muhammad Azad, respondent that at the relevant time no period of limitation was prescribed under any law for an appeal from the judgment of the Tehsil Criminal Court, has much force in it and thus the question whether or not section 5 of the Limitation Act was applicable to the appeal of the respondents before the District Criminal Court is irrelevant and requires no determination because when there was no period of limitation prescribed for such an appeal, the question of its being time-barred did not arise with the result that any further question of applicability or otherwise of section 5 of the Limitation Act, does not crop up. In the Islamic Penal Laws (Enforcement) Act, 1974 as originally enacted the Tehsil Criminal Court did not figure anywhere in it and for the first time it was constituted by the Government in exercise of its powers conferred upon it by section 2(8) of the aforesaid Act through a Notification No, 2774-2854/SL/74, dated 2-11-1974 and it was made subordinate to the District Criminal Court which was also made its appellate Court. In the above Notification, no period of limitation for an appeal from the order or judgment of the Tehsil Criminal Court to the District Criminal Court was provided and it was only on 29-9-1979 that by an amendment through an Ordinance promulgated by the President and referred to above, subsection (4) was added to section 25 of the Islamic Penal Laws (Enforcement) Act, 1974 by virtue of which the period of 30 days was provided for an appeal from the judgment of the Tehsil Criminal Court and thus before that practically there was no period prescribed for an appeal to the District Criminal Court from the judgment of the Tehsil Criminal Court. Since the appeal by the respondents to the District Criminal Court was filed before the introduction of the aforesaid amendment in the Islamic Penal Laws (Enforcement) Act, they were under no legal obligation to file the same within any specific period from the date of the judgment of the Tehsil Criminal Court. This being the legal position prevalent at the relevant time, the aforesaid appeal of the respondents was not barred by limitation thereby involving the question of applicability of section 5 of the Limitation Act. Therefore, the District Criminal Court did not commit any illegality in hearing and deciding the same.
12. For the reasons stated above, the contention of the learned counsel for the State that the appeal of the respondents before the District Criminal Court was unmaintainable on account of having been filed beyond the period of limitation fixed for it and that the said Court has wrongly condoned the delay, as section 5 of the Limitation Act was not applicable to it, has no force which is accordingly repelled.
13. After disposing of the above legal point, involved in this appeal, we proceed to examine the same on merits. The District Court of Criminal jurisdiction has acquitted the accused-respondents on the ground that the prosecution has failed to prove the charges of criminal acts made against them. The above conclusion was arrived at by it because it did not find the prosecution evidence reliable and worthy of any credence and in support of its findings it has given elaborate reasons for that after discussing the prosecution witnesses and the evidence given by them. At the very outset, it may be stated that it is a settled rule o practice that the High Court gives considerable weight and consideration to the order of the Court acquitting the accused and does not interfere with it in an acquittal appeal against it unless the same is found to be unreasonable or perverse or based on no evidence or misreading of the evidence. After reading the judgment of the Court below, we do not find the same suffering from any of the above infirmities so far it relates to Muhammad Azad respondent (hereinafter called as respondent) whose case is under consideration before us.
14. The District Criminal Court has thoroughly and critically discussed the evidence of every important prosecution witness in this case and it was after such an examination found the evidence led by the prosecution as a whole to be lacking in credibility and reliability so as to convict the respondent on its basis for offences with which he was charged and accordingly setting aside his conviction and sentence acquitted him. The acquittal order of the respondent cannot be held to be unreasonable or perverse or having been passed on speculations and inferences unwarranted by the evidence on record. According to the settled rule of law even if this Court comes to the conclusion different from the one arrived at by the District Criminal Court in this case regarding the value and weight to be attached to the prosecution evidence still it cannot upset its acquittal order until and unless it is found to be artificial, speculative and unreasonable based on the findings which no prudent person would have arrived at on the basis of the evidence brought on the record. As stated earlier, it is not possible for us to hold that the findings of the Court below in respect of the evidence of the prosecution are unreasonable or perverse thereby necessitating the setting aside of the acquittal order in respect of the respondent.
15. On the contrary, after examination of the record of the case, we are also of the opinion that the prosecution has not been successful in proving the guilt of the respondent beyond reasonable doubt.
16. The respondent was convicted by the trial Court for the offences under section 341, A.P.C. And section 15 of the Islamic Penal Laws (Enforcement) Act on account of his vicarious liability for having shared the common intention with the other respondents for wrongfully restraining the complainant and causing hurt to him in furtherance of which the complainant was actually wrongfully restrained and injured.
17. As regards the charge of wrongfully restraining the complainant, there appears nothing on the record to show that the complainant was in fact wrongfully restrained within the meaning of section 339, A.P.C.
To constitute an offence of wrongful restraint under section 341, A it is necessary to prove that the person alleged to have been so restrained was obstructed so as to prevent him from proceeding in any direction in which that person had right to proceed. But the above requirements are not fulfilled in the present case. The only evidence on record in respect of the above offence consists of the solitary evidence of the complainant which is only to the effect that Muhammad Akram and the respondent stopped them near the grave of Major Muhammad Sabir Shaheed when he and Abdul Qayum P.W. Were going to Chack Mosque for 'Teravi' prayer and then it was inquired by Muhammad Akram, respondent as to where they were going and that on his reply that they were going for prayer, Muhammad Akram, respondent took out the knife from his pocket and assaulted him while the respondent caught him by his arms. The above statement in no way goes to show that the respondent intended to prevent the complainant from proceeding to the Mosque or in fact did so and at the most, by the act of his catching him by his arms, it may be inferred that he had the intention to facilitate Muhammad Akram, respondent in the infliction of injuries by knife to the complainant. In every act of assault there is always some sort of restriction on the movement of the victim of crime but it cannot be held that every case of assault also involves in it the commission of the offence of wrongful restraint. So even if, the evidence of the complainant in this respect is assumed to be true and reliable still it does not disclose an offence of wrongful restraint having been committed by the respondent. The mere act of stopping the complainant in the way by the respondent for the purpose of committing another offence does not constitute the offence of wrongful restraint and even if, it is considered to be constituting such an offence the solitary statement of the complainant without any corroboration cannot be made the basis of the conviction of the respondent.
18. There is no corroboration of the evidence of the complainant that the respondent had also wrongfully restrained the complainant at the time of occurrence. Abdul Qayum P.W. Who was allegedly accompanying the complainant does not at all mention in his statement that they were stopped by the respondents before the complainant was caught by his arms by the said respondent. On the contrary, he has stated that while they were going to the Chack Mosque for prayer, the respondent caught hold of the complainant by his arms while Muhammad Akram, respondent pulled out a knife from his pocket and started inflicting blows with it on the person of the complainant. The above statement shows that the complainant was straightaway assaulted, and negatives the allegation that the respondent has also committed the offence of wrongful restraint thereby making himself liable for punishment under section 341, A.P.C.
19. We, now come to the consideration of the question of the respondent's liability for offence under section 15 of the Islamic Penal Laws (Enforcement) Act. He is not accused of causing any injury to the complainant and thus he can only be convicted of the said offence, if it is established from the facts and circumstances of the case that the complainant was injured and beaten by other respondents in furtherance of the common intention shared by him as well. The prosecutions in order to show that the injuries were caused to the complainant furtherance of the common intention of all the respondents, has adduced evidence to the effect that at the morning time on the day of occurrence, Muhammad Akram, respondent had threatened the complainant at Chack Bazar to take revenge from him as soon as he got opportunity when Muhammad Jabair, respondent was admonished by him for his roving about in the village alongwith other respondents. But from the evidence of the complainant and Abdul Qayum P.W. In presence of whom the above threat is alleged to have been given to the complainant, it does not appear that the respondent was also accompanying the other respondents when the above threat was, extended to the complainant by Muhammad Akram, respondent. They have not mentioned in their statements that the respondent was also with them at the time of the incident which allegedly took place on the morning of the occurrence and had only deposed that Muhammad Akram respondent had threatened the complainant to avenge their insult. So when the respondent was not accompanying the other respondents at the said incident at Chack Bazar, the same cannot be used against him as a circumstance indicating that he had also shared the common intention of causing hurt to the complainant with other respondents in furtherance of which other respondents had inflicted injuries on the person of the complainant. There is no other evidence from which it could be inferred that the respondent was a party to any pre-arranged plan under which the complainant was to be attacked and injured by them nor from the circumstances of the case it can be said that he had developed any such common intention of injuring the complainant with other respondents.
20. There is no allegation against the respondent that he had caused any injury to the complainant and the only act attributed to him in the occurrence is that he had caught hold of the complainant by his arms at the time of occurrence wherein knife blows were given to the complainant by Muhammad Akram, respondent. There is no evidence that the respondent knew that Muhammad Akram, respondent was carrying knife in his pocket with which he is alleged to have inflicted injuries to the complainant. In the absence of any such evidence he cannot be made vicariously liable for the acts of Muhammad Akram or any other respondent by pressing into service section 34, A.P.C.
The common intention within the meaning of the aforesaid section of the Penal Code generally implies the pre-arranged plan although in some cases the same may develop during the course of the transaction constituting the offence and the Courts are very cautious and careful in presuming such a common intention unless from the facts and circumstances of the case, it is borne out that the criminal act was done in concert in pursuit to some pre-arranged plan or in furtherance of common intention developed by the accused at the spur of the moment.
21. As stated earlier, none of the above conditions is fulfilled in the case of the respondent and his mere presence at the time of ocurrence is not sufficient circumstance justifying the Court of law to convict him for the offences committed by the other respondents by bringing into play the doctrine of constructive or vicarious liaoility envisaged by section 34, A.P.C.
22. From the evidence on record, it cannot be said with certainty that the occurrence had taken place in the manner as alleged by the prosecution and the possibility of some altercation and quarrel between the complainant party and the accused respondents having preceded the occurrence, is not ruled out. The prosecution's case that while the complainant was going to offer his 'Teravi' prayer in Mosque, he was stopped in the way by the respondents and Muhammd Shabir, accused and was injured, is not free from doubt. In the cross-examination of the prosecution witnesses a suggestion has been put to them that while the respondents were going to their homes, they were attacked, belaboured and the scooter belonging to the respondent was damaged by the complainant party consisting of Abdul Qayum, Muhammad Azad, Javed and the complainant and there exist certain circumstances in presence of which the possibility of the occurrence having not been initiated by the respondents as alleged by the prosecution, is not ruled out. It is the prosecution case itself that the scooter belonging to the respondent was found lying on the road side at the place of occurrence in a damaged and unserviceable condition. If the respondent had come at the place of occurrence on his scooter and joined the other respondents in the commission of the offences and the complainant party had remained inactive and passive as is alleged by the prosecution then the respondent and one or two other respondents could have run away from the spot after occurrence on the scooter and it would not have been found broken or damaged at the place of occurrence.
23. There is yet another circumstance which also goes a long way to lend further support to the possibility of the respondents being not the aggressor and the one who initiated the attack on the complainant and that some sort of quarrel between the parties initiated by the complainant party had preceded the causing of injuries by Muhammad Akram, respondent with the knife on the person of the complainant and his beating by Muhammad Jabair, respondent. It is in the evidence of Muhammad Asgher, complainant, Abdul Qayum and Muhammad Azad, P.Ws. That they and other villagers were offended and unhappy over the irresponsible behaviour of the respondents of their rambling and roving about in the village and thus the possibility that finding them near their houses, the complainant party might have admonished them for their vagrancy which in turn might have led to quarrel between them resulted in causing of injuries to the complainant.
24. The allegation of the prosecution that on the morning of the day of occurrence, Muhammad Akram respondent had given threat to the complainant that the respondents would take revenge from him for the admonition administered to them by him and that in order to put that threat into practice they had attacked and caused grievous as well as simple hurt to him in furtherance of their common intention, is not supported by the evidence of any independent, impartial and uninterested witness. The evidence in this respect consists of the statements of the complainant and his close relatives, namely, Abdul Qayum and Muhammad Azad, P.Ws. Their depositions, in view of the facts and circumstances mentioned in the above para, cannot be accepted as a whole truth and relied upon for basing conviction of the respondent. The first incident of the morning had taken place in the bazar where naturally some other independent persons other than the relatives of the complainant must have heard the threat alleged to have been given by Muhammad Akram respondent to the complainant of taking revenge from him.
25. Similarly, it is a strange coincidence that the same relations of the complainant had witnessed the occurrence who were also present at the time of the aforesaid morning incident which happened between the parties.
26. For the foregoing reasons, we find no force in this acquittal appeal so far it relates to Muhammad Azad respondent who alone appeared and pursued his case, and accordingly dismiss the appeal to his extent.
27. As regards the other respondents, they could not be served on account of their having left the Azad Jammu and Kashmir territory after their acquittal by the District Criminal Court. Therefore, the appeal against them would remain pending and would be taken up for hearing and disposal on their appearance before the Court. Warrants of their arrest shall issue but they will not be arrested if they furnish bail bond in the sum of Rs,20,000 with one surety each in the like amount to the satisfaction of the officer entrusted with the execution of the warrants. The record of the case shall be consigned to the record room and put up before the Court on the appearance of the respondents.