Find a Lawyer

Criminal Revision Application No. 1 of 1980, decided on 6th October, 1981.

‑‑Ss. 435 & 439‑‑‑Revision (Criminal)‑Injured eye‑witnesses clearly implicating accused and stating that he was present at spot and instigated other assailants to commit crime‑‑‑Contention that in view of clear cut evidence of injured eve‑witnesses, Sessions Judge could not direct exclusion of name of accused respondents from persons being proceed ed against, on mere conjectural grounds, not consistent with evidence brought on record‑Contention, held, correct and observations of Sessions Judge being premature directed not to be considered part of order, in circumstances.

Nooruadin Sarki for Appellant/Petitioner.

Yosuf Laghari for Respondent No. 1 (absent).

Sohail Muzaifar for A: G. for the State.

Date of hearing : 6th September, 1981.

This is an application under section 435/439, Cr. P. C. in which grievance is made on behalf of the applicant that in a private complaint filed by him, the learned Sessions Judge, Tharparkar at Mirpurkhas has committed an illegality by not including respondent No.1 Ramzani as accused although he has been implicated by three injured eye‑witnesses.

2. Shortly stated the relevant facts are that incident took place on 19‑4‑1980 at 5‑15 p.m. in the land of Muhammad Siddiq in deh 121 Taluka Mirpurkhas and six persons including Ramzani in furtherance of their common object while armed with deadly weapons committed assault. In the result whereof Ismail, Ishaque and Rasool Buksh became injured. Com plainant Ali Muhammad came to the place of incident, beard the story from the eye‑witnesses went to Police Station Mirpurkhas and lodged report for offences under section 326/324/323/114/147/148, P. P. C. It is submitted on behalf of the applicant/complainant that police after the necessary investiga tion excluded name of Ramzani and substituted another person by the game name and also excluded Nabi Buksh as accused person. It is further submitted that challan was presented by police for the offences mentioned above with the exception of offence under section 307, P. P. C. Being dissatisfied with the attitude of the police and before the submission of challan applicant filed a direct complaint in the Court of learned Sessions Judge on the same facts stated above and for offences specified including offence under section 307, P. P. C. The learned Sessions Judge sent the case for enquiry and report to learned Joint Civil Judge & First Class Magistrate, Mirpurkhas, who recorded statements of the complainant and the eye‑witnesses and also Dr. Muhammad Ibrahim, who had examined injured persons in the case. The learned Joint Civil Judge & First Class Magistrate then submitted report which is on the record. He has stated in the report that two injured eye‑witnesses, namely, Ishaque and Rasool Buksh have implicated Ramzani to be present at the spot at the time of incident and initiated.

3. Mr. Nooruddin Sarki, Advocate has taken me through the statements of the injured eye‑witnesses. It appears that injured eye‑witnesses Muhammad Ismail in the beginning of his deposition recorded before the joint Civil Judge has stated that Ramzani, who is a big Zamindar wanted land from him and on his refusal threatened him that he would be killed, but in later part of deposition this witness has clearly stated that Ramzani was present at the spot and instigated other assailants. The, other two injured eye‑witnesses, namely, Ishaque and Rasool Buksh have also very clearly implicated Ramzani to be present at the spot and instigated. The grievance of Mr. Nooruddin. Sarki is that in view of this clear cut evidence of injured eye‑witnesses whose presence at the spot cannot be denied the learned Sessions Judge should not have directed exclusion of name of Ramzani from persons being proceeded against on conjectural grounds which are not consistent with evidence brought on record. In the impugned order the learned Sessions Judge has observed that name of Ramzani was initially given in F. I. R. and he was not challaned by Police and rightly so. In this context such observa tion is made by the learned Sessions Judge for the reasons that Ramzani was a Zamindar and his name appeared to have been given by complainant party so that he may not come to the help of the accused who are his haris. It is further observed in this context that such tendency amongst the complainants in our part of the country is common and it is not believable that Zamindar would himself come to the scene of offence at the time of commission of the offence.

4. I am afraid these observations made by the learned Sessions Judge are premature and should not have been made before proper appraisal of evidence brought on the record. During the preliminary enquiry the injured eye‑witness‑.s were not cross‑examined. It is only during the trial when the witnesses are examined and are subjected to cross‑examination an final analysis of evidence and other material warrant such observations, then only they can be made and not at a premature stage.

5. Mr. Sohail Muzaffar, Advocate for Advocate‑General for State has also conceded and rightly so that this observation is premature and inconsis tent with the record. Mr. Nooruddin Sarki presses his revision application only on this ground that the observation is unwarranted and has given up other grounds raised in the memorandum of revision application.

6. In the circumstances, the impugned order dated 12‑10‑1980 of learned Sessions Judge is partly set aside to the extent that observations made by him in respect of Ramzani and direction are not be considered part of the order and case be registered against Ramzani also. Revision application is partly allowed in the terms stated above.

Revision allowed

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.