' Appellant Noor Khan and acquitted accused Soofi Abad Ali, Nazir Ahmed and Darya Khan were charged for lurking house-trespass by night and for causing murder of Syed Hasnain aged 5-6 years on 14-8-1984 at 4-30 a.m. Appellant Noor Khan is convicted for offence under section 302, P.P.C. And sentenced to imprisonment for life and fine of Rs,5,000 or in default to suffer R.I. For 1 year.
He is also convicted for offence under section 458, P.P.C. And sentenced to R.I. For 10 years and fine of Rs,5,000 or in default to suffer R.I. For 1 year more. Both the sentences are directed to run concurrently. Co-accused Soofi Abad Ali, Nazir Ahmed and Darya Khan are acquitted. The case against appellant and co-accused was the result of a direct complaint, filed by Mst. Fatima, mother of deceased Syed Hasnain.
2. Before dealing with the facts of direct complaint by Mst. Fatima, it would be appropriate to give the background of the case.
3. On 14-8-1984 at 4-30 a.m. A.S.I. Bashir Ahmed, Incharge, Town Police Station, Nawabashah, registered F.I.R. No,144/84 under section 380/307, P.P.C. On the basis of statement of S. Abdul Batin, father of deceased Syed Hasnain in presence of Mashirs Muhammad Rafiq Awan and Amanat Ali.
The facts of F.I.R. Are that S. Abdul Batin appeared at police station and stated that one Mst.
Haseena Begum wife of Abad Ali resided in his Mohallah. Said Mst. Haseena had sought refuge in the house of Abdul Batin due to maltreatment of her husband. Taking pity upon her, Abdul Batin brought Mst. Haseena and his own wife to the house of a neighbour Hidayatullah asking him to keep the said two women in his house as he was leaving for Karachi. Mst. Haseena was introduced by Abdul Batin to Hidayatullah as his sister-in-law. Abdul Batin himself came and slept in his house alongwith minor son Hasnain and daughter Saima. One Mst. Noor Jahan had also on an earlier occasion sought refuge in Abdul Batin's house as her husband Rehmatullah had maltreated her.
Appellant Noor Khan, who was Head. Constable at Town Police Station Nawabshah took away Mst.
Noor Jahan and handed her over to Rehmatullah but at the same time took Syed Abdul Batin to police station and put him in lock-up. Abdul Batin was released on a promise that he would pay illegal gratification to H.C. Noor Khan. Since Noor Khan continued demanding illegal gratification and caused persistent harassm ent, S. Abdul Batin caused injuries with Chhuri to his son Hasnain so as to implicate H.C. Noor Khan whose harassment had become unbearable.
' S. Abdul Batin was arrested on the basis of such statement recorded at police station, the blood- stained Chhuri produced by him was recovered and on the next day he was produced before a Magistrate where he gave judicial confession admitting to have caused Chhuri blows to his minor son Hasnain. After usual investigation S. Abdul Batin was sent up to face his trial on the charge of murder of his own son S. Hasnain (Sessions Case No,301 of 1984).
' The minor S. Hasnain succumbed to his injuries at sunset time and because his father S. Abdul Batin was illegallly arrested on the basis of false F.I.R., to protect H.C. Noor Khan, the Mohallah people gathered and took the dead body of the minor S. Hasnain to S.P. Nawabshah who assured them of a fair and impartial enquiry. Mst. Fatima, mother of deceased S. Hasnain was also detained at police station, and after her release, she moved applications before the Martial Law Authorities and the other high ups against appellant and some co-accused in which she alleged that the story in the F.I.R. 144 of 1984 registered by A.S.I. Bashir Ahmed.Khan was false and that appellant and some co-accused had murdered her son S. Hasnain. Such applications and the acknowledgments Exhs.14 to 20 are on record. Except a case under sections 385, 220 and 161, P.P.C. Read with section 5(2) of Act II of 1947, registered against appellant Noor Khan, no further action was taken in respect of murder of S. Hasnain.
' Mst. Fatima then filed a direct complaint in the Court of Joint Civil Judge and F.C.M. Nawabshah under sections 302, 307, 458 and 506, P.P.C. On 12-11-1984 the learned Civil Judge and F.C.M.
Submitted the said complaint to the Sessions Judge, Nawabshah as the offences were triable exclusively by the Sessions Court. The learned Sessions Judge sent back the case to the Joint Civil Judge with direction to hold preliminary inquiry and after the statements of witnesses in P.E. Were recorded, the case was again sent to the learned Sessions Judge for appropriate action. On 8-12- 1984 the learned 1st Additional Sessions Judge, Nawabshah brought the case on file for trial of accused under sections 458, 302, and 34, P.P.C., took cognizance of the matter and issued B.Ws.
Against appellant and 3 co-accused.
' It may also be relevant to mention that in the direct complaint filed by Mst. Fatima, she stated that the houses of appellant Noor Khan and acquitted accused Abad Ali were adjoining to her house.
Similarly Nazir Ahmed and Darya Khan (co-accused) were also residing in her neighbourhood. She further stated that one Mst. Noor Jahan wife of Rehmatullah Pathan and Mst. Hasina Begum 'Wife of accused Abad All resided in her neighbourhood and the said ladies were maltreated by their husbands. Syed Abdul Batin, husband of Mst. Fatima used to reprimand them for maltreating their wives. On account of this, appellant Noor Khan and Abad All became inimical to complainant and her husband and threatened them of dire consequences. It was further stated that on one occasion when Mst. Noor Jahan was maltreated by her husband, she came and took refuge in complainant's house. Appellant And Rehmatullah Pathan both entered complainant's house, took away Mst. Noor Jahan, physically maltreated complainant, her husband and children and took away S. Abdul Batin to police station and detained him in lock-up and robbed him of Rs,300 carried by him in his pocket. S. Abdul Batin was further asked to pay Rs,3,000 as illegal gratification or else he would be involved in some cases.
' On the night of incident, complainant Mst. Fatima, her husband S. Abdul Batin and her children deceased Syed Hasnain and baby Saima were asleep in the house when appellant entered the house by scaling over the wall, and unchained the door from inside. He was carrying a knife. Co- accused Darya Khan, Nazir Ahmed and Abad All were standing outside and on the opening of door, Abad Ali also entered. Appellant and Abad All abused complainant and asked S. Abdul Batin, that if he did not pay money, he would be murdered. The deceased S. Hasnain aged about 6-7 years woke up and carrying him in his hands, Abdul Batin begged the accused not to maltreat them. Mst.
Fatima took her daughter Saima in her hands and begged them for the sake of minors not to he maltreated.
' The accused gave Chhuri blows which hit the minor S. Hasnain on abdomen and baby Saima on her feet. Complainant and her husband raised cries, which attracted some Mohallah people but no one came near due to fear of appellant.
' It was further stated in the complaint, that after the departure of accused, S. Abdul Batin went to police station to lodge the report and thereafter took the deceased S. Hasnain and injured Saima to hospital for treatment, At the hospital, Town Police arrested Abdul Batin while complainant remained in the hospital and her injured son S. Hasnain died at about Maghrib time. Complainant went to inform her husband at police station regarding the death of minor Hasnain where she found that the appellant was maltreating her husband and asking him to confess that he had caused injuries to minor Hasnain.
' At 10 p.m. The complainant and Mohalla people took the dead body of S. Hasnain to the residence of S.P., Nawabshah who directed them to go to police station and that justice would be done to them. When she came to the police station she was also arrested and after her husband gave confession on the next day, she was released. She also stated that she moved applications to various authorities but her grievances were not redressed and as appellant and co-accused continued extending threats of murder, she filed direct complaint.
' Charge was framed against the appellant and co-accused on 24-2-1986 under sections 458, 302 and 34, P.P.C. To which they pleaded not guilty and claimed to be tried.
' The trial of the case was conducted by the learned 1st Additional Sessions Judge, Nawabshah, but before judgment could be announced, the case was transferred to IInd Additional Sessions Judge, Nawabshah, who passed the impugned judgment.
' The prosecution examined P.W.1 Mst. Fatima Exh.12. She produced the original complaint Exh.13 and acknowledgment of her applications to the President of Pakistan and other Authorities as Exhs.14 to
20. Prosecution also examined Mst. Laila P.W.2 Exh.21, the daughter of complainant. She produced her statement in P.E. As Exh.22. P.W.3 S. Abdul Batin was examined vide Exh.23. Dr. Muhammad Ismail Exh.25, the Medical Officer at Nawabshah Hospital who conducted post-mortem examination on the dead body of S. Hasnain, was called as Court witness. He produced copy of post-mortem report as Exh.26. Tulja Ram Exh.27 was called as Court witness. He was Additional City Magistrate, Nawabshah on 15-8-1984, and he stated that S. Abdul Batin was produced for his confession which he recorded vide Exh.28. A.S.!. Bashir Ahmed Khan who had recorded the statement of S. Abdul Batin on 14-8-1984 while he had come with his injured son was called as a Court-witness and his evidence was recorded vide Exh.30.
' Statements of appellants under section 342 of Cr.P.C. Were recorded (Exhs.32 to 35) and they denied the allegations against them. They neither examined themselves on oath nor led any defence. On assessm ent of evidence, the learned trial Court convicted appellant as stated above and acquitted co-accused Mistry Abad, Nazir Ahmed and Darya Khan by judgment now impugned.
4. Mr. M. Ilyas Khan, learned counsel for the appellant, has contended that there are material contradictions in evidence in so far as injuries to deceased Hasnain are caused, that the occular testimony is in conflict with medical evidence, that there is no corroboration from independent source except the evidence of interested witnesses, that on same evidence 3 accused have been acquitted, that judicial confession of S. Abdul Batin ought to have been believed as it was recorded on the next day of his arrest i,e. On 15-4-1984 and that the delay in filing direct complaint is after due deliberation. Ile also contended that the learned trial Judge in the impugned judgment has referred to the facts of the connected case against S. Abdul Batin (F.I.R. No,144/1984) and seems to have taken corroboration from evidence of that case. This, according to the learned Advocate, the trial Court could not do in view of the case-law laid down in Syed Rahim Bakhsh Shah v. Ghous Bakhsh Shah and 2 others PLD 1969 Lah. 932, where a learned single Judge of the Lahore High Court, while dealing with the point whether reference to facts of other case would vitiate the judgment, observed, that mere reference to some facts of other case, not brought on record in case under disposal, does not per se vitiate entire judgment. It was also held that the judgment would not be rendered unsustainable where complete exclusion of such facts of minor and unimportant nature would not affect result of case. He also referred to Mistri Khan v. Kala Khan and 2 others PLD 1977 SC 462, where on admitted facts of evidence of interested witnesses and considerable civil and criminal litigation between parties, it was held that it was not safe to rely on ocular evidence of deceased's mother and nephew without satisfactory corroboration.
' He lastly argued that co-accused Abad Ali was acquitted on the basis of same evidence available on record against appellant Noor Ahmed and such concession should have been extended to appellant Noor Khan. Further, that Mst. Saima, who was allegedly injured, was not examined by Doctor nor by trial Court and prosecution version on that account becomes highly doubtful.
' Mr. Zubair Qureshi, learned counsel appearing for the State, has supported the judgment of the trial Court. He has contended that the only witnesses available in the house of complainant at 4-30 a.m. Were her husband S. Abdul Batin, and daughter Mst. Laila, who have given a consistent account of the incident and there is no reason to disbelieve them. It is also contended that there was no reason for complainant Mst. Fatima to subtitute appellant Noor Khan for S. Abdul Batin, her own husband, if the latter was real murderer of her son. He has also contended that although there is no evidence other than that of the complainant herself, her husband S. Abdul Batin and daughter Mst. Laila, yet the said evidence gets full corroboration from the facts which formed the background in which incident occurred and such evidence is not only confidence inspiring but worthy of credit.
5. I have heard the arguments of the learned counsel. The death of minor S. Hasnain is not disputed. What is disputed is, the controversy, whether blows with `Chhuri' were given to deceased by his own father S. Abdul Batin to implicate appellant Noor Khan, who had caused unbearable harassm ent to Abdul Batin for recovering illegal gratification, or that the version given by Mst.
Fatima in her direct complaint is more worthy of credit. I would now deal with the first situation which started from F.I.R. No,144 of 1984 registered by A.S.I. Bashir Ahmed Khan on 14-8-1984 at 4-30 a.m. Allegedly based on the statement of S. Abdul Batin who is said to have appeared at police station with his injured son S. Hasnain and a blood-stained Chhuri, and admitted causing of blows to the injured. This statement was recorded in presence of two Mashirs Muhammad Rafique Awan and Amanat Ali. During preliminary inquiry of direct complaint, Amanat Ali was examined and he denied that S. Abdul Batin had appeared at said police station and or had produced blood-stained Chhuri. The other wintess/Mashir Muhammad Rafique could not be examined as his whereabouts were not known. Thus, there remained the version of A.S.I. Bashir Ahmed Khan, who registered case on behalf of State on the basis of purported statement of S. Abdul Batin. In his evidence in Court as a Court-witness A.S.I. Bashir Ahmed Khan has admitted that accused Noor Khan told Abdul Batin not to play. Radio in the Mohallah and then brought him to police station and demanded money.
He also stated that he did not obtain signature of Abdul Batin on his statement but obtained signatures of witnesses. If statement of S. Abdul Batin was under section 154 of Cr.P.C. His signature must have been obtained. It is not even a statement under section 161 of Cr.P.C. As admitted by A.S.I. Bashir Ahmed Khan. It is thus not even worth a waste paper. There seems a deliberate attempt on the part of A.S.I. Bashir Ahmed Khan to protect his own subordinate H.C. Noor Khan when he registered the case on behalf of the State.
6. In the background of the case that S. Abdul Batin was put in lock-up by appellant Noor Khan on the charge of his having protected some women in his house or even on the charge of playing Radio in Mohallah and then having been released on promise of paying illegal gratification, the story given in the F.I.R. Becomes highly doubtful. It is on record that on the basis of F.I.R. Registered by A.S.I. Bashir Ahmed Khan, S. Abdul Batin was challaned. On trial he was found innocent and acquitted by judgment dated 16-7-1991.
7. In the light of the above, it has to be seen whether the version of incident given by complainant Mst. Fatima in her direct complaint is substantiated by sufficient evidence, although, said evidence consisted of her own statement and that of her husband and daughter Mst. Laila. It has come on record that after the minor S. Hasnain died in hospital at Maghrib time, complainant Mst. Fatima went to police station to inform her husband S. Abdul Batin who was detained by police. Not only that the police did not allow her to see her husband but she found that Abdul Batin was being maltreated by police and being coerced to give confession. She then, with the help of Mohallah people, approached the S.P. Nawabshah complaining about the high handedness of police. It was on the direction of S.P. Nawalishah, who assured that justice would be done, that she went to police station but she was also detained and released after her husband gave confession the next day.
The burial of S. Hasnain was performed by the Mohallah people in absence of her husband S. Abdul Batin.
8. Soon after her release and the burial ceremonies; she sent applications to the Martial Law Authorities giving the true facts about the murder of her son. These applications and acknowledgments are on record as Exhs.14 to 20. Except that an F.I.R. Under Anti-Corruption laws was registered, no action was taken against appellant and co-accused in respect of the allegations of murder of S. Hasnain. It was in these circumstances, that she filed a direct complaint in the Court and after preliminary inquiry, case was brought on file and after trial appellant was convicted.
9. There is no contradiction in the ocular testimony of Mst. Fatima, S. Abdul Batin and Mst. Laila, with medical evidence. The ocular testimony is on the contrary consistent with the medical evidence where Dr. Muhammad Ismail, who had conducted post-mortem examination on the dead body of deceased, had certified 7 incised wounds, including incisions given during operation of the deceased. The presence of 4 incised wounds on the body of deceased S. Hasnain corroborates the ocular testimony and there is no reason to hold that there is any contradiction or discrepancy.
10. The other point that would require consideration is whether the evidence of three eye-witnesses who are closely related, required corroboration from independent source. Admittedly, complainant and her husband are Bengalis and appellant Noor Khan was residing in their Mohallah. No one was prepared to depose against Noor Khan due to his fear as he was a Head Constable in Police and had previously put S. Abdul Batin in police lock-up for no fault of his, except that he had given refuge to some Bengali women, who were being maltreated by their husbands. One of such women was the wife of accused Abad Ali. This Abad Ali, through the good offices of appellant, had succeeded in getting back his wife from the house of complainant. The fact still remained that there was animosity between S. Abdul Batin on one hand and appellant Noor Khan on the other hand which became a cause of constant harassment for S. Abdul Batin who was not only detained at police station by the appellant, but was also being pressurised to pay illegal gratification.
Although, appellant is acquitted by the Anti-Corruption Judge, Sukkur, on the charge of having received or demanded illegal gratification from S. Abdul Batin, the benefit of acquittal cannot be given to him for the purpose of deciding this case.
11. Although, three co-accused namely, Abad Ali, Nazir Ahmed and Darya Khan are acquitted on same evidence, it is to be seen whether they were rightly acquitted or not. The part assigned to Abad Ali was that he was merely present in the house of Mst. Fatima at the time of occurrence, while Nazir Ahmed and Darya Khan were said to be standing outside. These three accused, having not participated in causing fatal injuries to the deceased and other evidence against them being scanty, were rightly acquitted by the trial Court. As for the appellant, the allegation of his having committed lurking house-trespass by night, and having caused Chhuri blows to S. Hasnain, was sufficiently proved by evidence of three eye-witnesses, and there is no reason to hold that ocular testimony is unworthy of credit. Confession extorted from S. Abdul Batin, which is disbelieved during trial, cannot lead to an inference that it was S. Abdul Batin and not appellant who caused injuries to Hasnain.
12. The delay in filing complaint by Mst. Fatima is well-explained and per se it could not be ruled out of consideration on the ground that it was filed after delay or after deliberations. The reason for filing complaint with some delay in the circumstances of the case is inconsequential. I do not find that the learned trial Judge while deciding the case against appellant and co-accused has taken corroboration from the other case against Abdul Batin (outcome of F.I.R. 144/89). All that has been stated by the learned trial Judge is that Mst. Fatima had verbally told him (the learned Judge) that she sold her daughter to meet the expenses of defending her husband in the case filed Against him. Such observation was extraneous and should have been avoided by the learned Judge. Be that as it may, such an observation is not in conflict with the rule laid down in the case of S. Rafique Bakhsh PLD 1967 L 932. The judgment of trial Court is not vitiated as reference to such facts has not formed basis of conviction.
13. For the foregoing reasons, the judgment impugned in this appeal needs no interference. The conviction and sentence awarded to appellant is maintained and the appeal is dismissed.