' This criminal revision has been filed against the judgment dated 15-12-1983 passed by Sardar Ghulam Farid, Additional Sessions Judge, Lahore, whereby he set aside the judgment, dated 17-7- 1983 of the Magistrate 1st Class, Lahore Cantt., who sentenced the respondents to undergo 2 months' R.I. Each under section 147, P.P.C. And 9 months' R.I. Each under section 452/149, P.P.C.
Alongwith a fine of Rs,200, or in default of its payment to suffer one month's R.I. Further. All the sentences were ordered to run concurrently vide judgment of the trial Court.
2. The petitioner Jan Muhammad (P.W.1) on 27-4-1981 made a statement Exh.PA. Before P.W.5 Abdul Aziz, A.3.I. To the effect that his son Muhammad Ismail, respondent No,1 had illegally occupied a room of his house and the complainant had filed an ejectment petition against him in the Court of Mr. Zulqarnain, Civil Judge, Lahore, which was decreed. On the day of occurrence i,e. 27-4-1981, the complainant in obedience to the order of the Court, through a Bailiff Mr. Amir Hamza and with the assistance of the police, took possession of the room and at the time of possession respondent No,1 had already taken away his articles from the room. The complainant after keeping his luggage had locked the room and at about 6-30 p.m. Respondent No,1 alongwith his sons Muhammad Abbas, Sarfraz Ahmad, Muhammad Ilyas and Muhammad Saeed, respondents Nos.2 to 5, who were young, forcibly broke open the lock of the room and started putting their luggage. The complainant tried to stop them, on which the respondents hurled abuses and went on beating him. Respondent No,4 had struck a `Rora' on his eyebrow and blood started oozing out from the injury. Respondent No,1 also delivered a `Rora' blow on his right hand, and meanwhile the other sons, Muhammad Umer and Muhammad Daud, of the complainant who resided in the same house, reached to save him and the respondents also grappled with them and belaboured them. Respondent No,1 threw a brick on Muhammad Umer, which hit him on the back side of his left shoulder. Thereafter, all the respondents caught hold of Muhammad Daud and belaboured him. He received three injuries on the back of his left shoulder and bruises on his right shoulder. On hue and cry of the complainant, Muhammad Azhar and Muhammad Ilyas, Mohalleydars reached the spot and witnessed the, occurrence. The respondents leaving behind the complainant and his sons ran away. Respondent No,1 had tried to take forcible possession of the room of the house of the complainant and under that process had given beating to them. The complainant was proceeding to the police station and on the way P.W.5 Abdul Aziz, A.S.I. Met him, who recorded his statement Exh.PA. And sent the same to the police station, on the basis of which F.I.R. Exh.P.A./1 was reduced into writing.
3. The prosecution had examined six P.Ws. In all to substantiate its case. P.W.1 Jan Muhammad complainant, petitioner before this Court narrated the facts cited by him in the F.I.R. Exh.PA./1. P.W.2 Muhammad Daud and P.W.3 Muhammad Umer corroborated the statement of P.W.1. P.W.4. Sh.
Azhar Hussain stated that on the day of occurrence, he had gone to P.W.2 Muhammad Daud, where a fight was on. The respondents and P.W.2 was present there. The respondents had with them brickbats and iron rods and they were giving beating to P.W.2 and P.W.3. The complainant Jan Muhammad (P.W.1) was injured and P.W.4 had separated them.
' Thereafter, P.W.1 went to the police station. P.W.5 Abdul Aziz, A S I is the Investigating Officer. He also identified the handwriting and signatures of Muhammad Sharif, S.I. Who had formally drafted the FIR. Exh.P.A./1, on the basis of complaint Exh.P.A. P.W.6 Dr. Tahir Unis had medically examined the complainant Jan Muhammad (P.W.1) and had found three simple injuries on his person caused with blunt weapons. His M.L.R. Is Exh.P.D. P.W.6 on the same day medically examined P.W.2 Muhammad Daud and had found nine simple injuries caused with blunt weapons. Exh.P.E. Is the M.L.R.
4. The respondents when examined under section 342, Cr.P.C. Denied the prosecution evidence against them and produced in defence D.W.1 Shams Din, who stated that possession of the disputed room of the house of the complainant was delivered to him through Bailiff and after the departure of Bailiff and the police, the complainant had asked respondent No,1 to again keep his luggage in the room as he wanted to teach him a lesson, and in the evening sons of the complainant reached, who threw out the luggage of Ismail respondent on which the dispute arose.
If the sons of the complainant had not come, there would have been no fight. D.W.2 Muhammad Javaid corroborated the statement of D.W.1. The trial Court found the accused guilty and sentenced them accordingly.
5. The appellate Court had allowed the criminal appeal and had set aside the judgment of the trial Court. Respondent No,1 is the son of the petitioner/complainant and the other respondents are grandsons of the petitioner. They were all residents of the same house and so they could not be said to have committed criminal trespass. The respondents were not charge-sheeted for the injuries inflicted on the petitioner and Muhammad Daud (P.W.2). Therefore, they could not be convicted on the said charge. The P.Ws. Had made dishonest improvements in their statements before the trial Court and the ocular testimony was not in conformity with the medical evidence. No brickbat (Rora) or iron rod was recovered from the respondents and secured by the police. I am of the view that the conviction and sentence passed against the respondents was not tenable and they were rightly acquitted of the charges. The statements of the respondents were not recorded in accordance with the provisions of section 342, Cr.P.C. Which were violative of the provisions of section 364, Cr.P.C. Requiring the trial Court to have affixed a certificate underneath the statement to show its authenticity, which lacked in the present case and it occasioned illegality. The appellate Court had rightly and legally set aside the conviction and sentence passed against the respondents by the trial Court. In the circumstances, the question arises for consideration is that if the case is sent back for retrial, whether it would be justified. The occurrence in this case took place on 27-4-1981. The respondents have been undergoing the agonies of long protracted trial for more than 12 years, so the retrial would not be justifiable.
6. Pursuant to the above discussion, the criminal revision fails and is dismissed.