' A case under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is registered against the petitioner and his co-accused Mst. Faiz Bibi who was initially the complainant in the case.
2. According to the F.I.R., the complainant Mst. Faiz Bibi made a report at the police station in which she contended that on the morning of 30-6-1998, she went out of her house for shopping. She was intercepted by the present petitioner on way who dragged her forcibly into his house. Nobody was present in his house at that time. The aforesaid Mst. Faiz Bibi was subject to Zinabil-Jabr.
3. During the investigation, conducted by A.S.P. Badar Farrukh, it transpired that the complainant Mst. Faiz Bibi had illicit relations with the petitioner for a long time which was commonly known in the village. It was, therefore, found by the police that Mst. Faiz Bibi had committed Zina-bil-Raza with the accused/petitioner and as such, both of them were challaned.
4. It is contended by the learned counsel for the petitioner that the co-accused Mst. Faiz Bibi has since been admitted to bail, therefore, the petitioner be also granted bail. It is further submitted that the story contained in the F.I.R., has turned out to be false in respect of Zina-bil-Jabr and as such, the case would become that of further enquiry after the complainant has also been cited as accused with the petitioner.
5. Learned counsel for the State has, however, opposed the bail application on the ground that both the accused had been challaned for keeping illicit relations and committing Zina-bil-Raza and as such, the petitioner would have no case for bail as compared to his co-accused Fazi Bibi who was granted bail being a woman under proviso to section 497, Cr.P.C.
6. I have considered the above submissions and find that the petitioner is named in the F.I.R., and there is evidence {{PAGE NO 78 , 79 Missed in Book}} ' blood-stained earth was secured vide memo. Exh.P.D. And so also sickle P.6 and dry grass P.7 were secured vide memo. Exh.P.E. Which bears his signatures. Zulfqar Ali, A.S.I. (P.W.4) deposed that on 27-11-1989, he was given one parcel containing blood stained earth by S.I. For keeping the same in Malkhana. The said parcel was given by Rab Nawaz headconstable to Maratib Ali constable for onwards transmission to the office of Chemical Examiner. Maratib Ali (P.W.5) deposed that on 6-12- 1989, he received one sealed p.Arcel containing bloodstained earth and stones and delivered the same in the office of Chemical Examiner on 7-12-1989. Sakhi Muhammad constable (P.W.6) escorted the dead body of Shamsher on 26-11-1989 to Civil Hospital Jahuarabad where post- mortem examination was conducted on 27-11-1989. After post-mortem examination, he was given last worn clothes of the deceased P.1 to P.5/1-2 alongwith a phial P.8 which he produced before the Investigating Officer who secured the same vide memo. Exh.P.C. Which bears his signatures. Rab Nawaz headconstable (P.W.7) was given a parcel containing blood-stained earth and stones on 27-11-1989 which he handed over to Maratib Ali constable on 6-12-1989 for onwards transmission to the office of Chemical Examiner. Rab Nawaz Patwari (P.W.8) visited the place of occurrence on 30- 11-1989 as per direction of the police and pointation of witnesses and prepared site plans Exhs.P.F.
And P.F/1 which bear his signatures. Aziz-ur-Rehman tP.W.9) is a witness of recovery of gun P.9, four live cartridges P.10/1-4 and a Jhola P.11 from Ghulam Qadir accused which were secured vide memo. Exh.P.G. Muhammad Nawaz, S l'S.11.0. (P.W.10) is also a witness of recovery of memo. Exh.P.G.
Ata Muhammad S.I. (P.W.I 1) and Qarib Ali Shah, S.I. (P.W.12) are the Investigating Officer and their evidence has already been discussed above. The learned D.A. Produced report of Chemical Examiner Exh.P.J. And that of Serologist Exh.P.K. And thereafter, closed the prosecution evidence vide his statement, dated 26-1-1991.
4. When examined under section 342, Cr.P.C. Muhammad Qasim Elahi .Bakhsh, Muhammad Ashraf alias Muhammad Razaq and Qadir Bakhsh accused admitted the factum of murder of Muhammad Hussain, father of Muhammad Ashraf alias Muhammad Razzaq and uncle of Qadir Bakhsh and Elahi Bakhsh accused and further stated that the said case was decided on the basis of compromise. They, however, denied the other contentions of the prosecution and stated that they have been involved in this case falsely. None of the accused chose to examine himself under section 340(2), Cr.P.C. Or to adduce any defence evidence.
5. After going through the evidence produced by the prosecution, the trial Court acquitted Muhammad Elahi, Muhammad Ashraf alias Muhammad Razzaq and Muhammad Qasim while convicted Qadir Bakhsh under section 302, P.P.C., and sentenced him to imprisonment for life and fine of Rs, 10,000 or in default thereof R.I. For six months. He further ordered that a sum of Rs,10,000 shall be paid as compensation under section 544-A, Cr.P.C., to the legal heirs of the deceased, failing which the accused/appellant shall further undergo R.I., for six months. The accused/ appellant was further extended benefit of section 382-B, Cr.P.C., vide judgment, dated 2-2-1991. The accused/ appellant has felt aggrieved of the said judgment and has filed the instant criminal appeal.
6. Arguments have been heard and record perused.
7. It is contended by learned counsel for the accused/appellant that as many as 4 accused have been involved in this case, out of whom Qadir Bakhsh, Muhammad Elahi and Muhammad Ashraf alias Muhammad Razzaq have been shown to be armed with .12 bore guns whereas Muhammad Qasim was shown as empty-handed, that the evidence against the present appellant as well as acquitted accused consists of statements of Mehr Khan complainant (P.W.2) and Allah Yar (P.W.3), that the Trial Count has disbelieved the statements of P.Ws. 2 and 3 so far as the accused Muhammad Elahi, Muhammad Ashraf alias Muhammad Razzaq and Muhammad Qasim (since acquitted) are concerned, that the Trial Court has also disbelieved the motive aspect of the prosecution version as it appears in F.I.R. Exh.P.B., that the Trial Court has also disbelieved the factum of recovery of gun, live cartridges and a Jhola from Ghulam Qadir accused, that since statements of P.Ws.2 and 3 have been disbelieved to the extent of acquitted accused, so the same could only be relied upon to the extent of Qadir Bakhsh if there had been some independent corroboration as held in Muhammad Nawaz v. The State (1984 SCM R 190) and Misal Khan v. The State (1984 SCM R 485) and that as the prosecution evidence disbelieved qua acquitted accused has not been corroborated by any independent evidence, so the Trial Court was not justified in passing order of conviction against the appellant.
8. Conversely, the impugned judgment has been supported by the learned State counsel.
9. It is evident from the facts stated above that out of four accused nominated in the F.I.R., the fatal injury has been attributed to Qadir Bakhsh accused/appellant. His other co-accused Muhammad Elahi and Muhammad Ashraf alias Muhammad Razzaq (since acquitted) have been attributed the same part, but it did not hit the deceased. The accused Muhammad Qasim has simply been ascribed the role of proverbial Lalkara and has been shown to be empty handed. To prove its stand, prosecution has examined as many as 12 P.Ws., but only the statements of Mehr Khan complainant (P.W.2) and Allah Yar (P.W.3) are relevant, as the other witnesses are of formal nature.
The Trial Court has not believed the statements of P.W.2 and P.W.3, so far as they relate to the involvement of Muhammad Elahi, Muhammad Ashraf alias Muhammad Razzaq and Muhammad Qasim accused (since acquitted), but has relied upon their depositions to the extent of involvement of accused/appellant Qadir Bakhsh. It is an admitted proposition of law that if the statement of a witness is not believed qua one person, that has to be disbelieved qua other accused, unless the same is corroborated by some other independent evidence. In the instant case, independent evidence could be in the form of recovery which has also not been believed as no empties were recovered from the place of occurrence which could possibly connect the use of gun P.9 recovered at the instance of accused. The motive aspect of the prosecution version has also not been believed by the Trial Court. There was no independent corroboration of the statements of P.Ws.2 and 3 who were disbelieved qua the acquitted accused. Thus, the Trial Court could not pass an order of conviction on the basis of statements of P.Ws.2 and 3 which lacked corroboration by any other independent evidence. Reliance is placed on Muhammad Nawaz v. The State (1984 SCM R 190) where it has been held that: {{PAGE NO 82 and 83 Missed In Book}} ' proposed amendment was to the effect that para.5-A be allowed to be added in the plaint with, the averment that the petitioner has not acquired any right in the suit land on the basi:of sale- deed, dated 16-12-1970 (this is the document which ultimately turned out to be the document of transfer by Elahi Bakhsh in favour of the petitioner and was produced in evidence as Exh.D.4) and that the same is ineffective upon the rights of respondent No,2. This application was resisted. Both the learned counsel state that this application was decided by the learned Trial Court vide order, dated 1-11-1987 (Annexure Y). Vide this order the learned Trial Court proceeded not only to dismiss the application for permission to amend the plaint, but at the same time proceeded to strike off the name of the petitioner suo motu. Needless to say that this exercise on the part of the Trial Court effectively rendered the suit filed by respondent No,2 as meaningless as, non-proceed able.
Respondent No,2 feeling aggrieved tiled a civil revision, which was heard by a learned Additional District Judge, Multan, who allowed the same and granted permission to respondent No,2 to amend the plaint in the manner prayed for and also set aside the order of the learned Trial Court striking off the name of the petitioner.
3. Learned counsel for the petitioner contends that the impugned order passed by the learned Additional District Judge is without jurisdiction. According to the learned counsel the order is tantamount to an order of addition of parties. Further contends that the order has the effect of rendering the suit time-barred in view of the provisions of Order 1, Rule 10(5), C.P.C., as according to the said provision of law, the suit shall be deemed to have been instituted against the newly added respondent on the date of his addition.
' According to the learned counsel it will be deemed that the petitioner was impleaded in the suit on the day when some allegation is recorded against him in the plaint and secondly some relief is claimed against him. He has referred to several judgments including the case of Muhammad Arshad and another v. Mst. Firdausia Begum and 4 others (1994 CLC 1967) in support of his contention that there wag considerable delay in filing of the application for amendment and the learned Additional District Judge had no lawful authority to grant the same.
4. On the other hand, Mr. Shamsul Haq Ansari, learned counsel for the respondent referring to the cases of Mst. Ghulam Bibi and others v. Sarsa Khan and others (P .D 1985 SC 345) and Samco Salvage (PIE) Limited v. Kaptan Yusuf Kalkavan and another (1993 SCM R 593) argues that any amount of dely is of no consideration when a Court comes to the conclusion that the amendment sought is necessary for effective decision of the entire controversy between the parties. Further contends that the order was passed in civil proceedings. The civil suit is still pending and refers to the cases of Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 12 others (1991 SCM R 970) and Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and 20 others (PLD 1996 SC 246) to contend that in the .First instance a writ petition is not competent against the decision of Civil Courts rendered in civil suits or proceedings arising out of the same and in the second instance the impugned order essentially being an interlocutory order, on that ground also, the writ petition is not competent.
5. I have gone through the certified copies of the records appended with the writ petition with the assistance of the learned counsel for the parties. I find that the writ petition is neither competent nor maintainable. The order, dated 1-11-1987 on a bare reading deals with the application (Annexure X), which is for all purposes an application for amendment of the plaint and through the amendment, respondent No,2 sought to add a plea against the person, who was already party to the suit i,e,, the petitioner. The plea sought to be taken was in respect of a document, which saw the light of the day after the completion of the pleadings, issues and some where during the course of recording of evidence of the parties. At the most,. The only objection that could have been raised to the proposed amendment, was the delay which apart from the fact that it had been sufficiently explained, otherwise also the learned Additional District Judge had seen to it that the petitioner was reasonably compensated and he had imposed a costs of Rs,1,000 on respondent No,2. The judgments cited by the learned counsel for the respondent fully support the impugned order of the learned Additional District Judge, as it is by now settled law that any amount of delay will be of no consequence in allowing an application for amendment provided the provision of Order 6, Rule 17 stands fulfilled.
6. The Trial Court proceeded to strike off the name of the present petitioner from the plaint without any basis whatsoever, on this plank also, the learned Additional District Judge has not only passed a lawful but a just order by setting aside the said illegal order of the learned Trial Court and leaving the petitioner in the array of the defendants. The objection of the learned counsel for the respondent that the writ petition has been filed against the order passed in civil proceedings and that too ofinterlocutory nature, is also not without force.
' In view of the above discussion, I do not find that any case has been made out by the petitioner for interference by this Court in exercise of its Constitutional jurisdiction. I further find that the writ petition is frivolous. It is dismissed with costs of Rs,2,000 to be paid to the counsel for the respondent No,2. This order be immediately remitted to the learned Trial Court with the direction to requisition the file from the records and proceed with the matter as expeditiously as possible in line with its poster, as already enough time has been lost because of the pendency of this writ petition at this Bench due to overload of cases, and it will be appreciable if he decides the suit in accordance with law before the year 1999 is out.