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Criminal Appeal No. 204 of 1978, decided on 2nd May; 1983.

‑‑ S. 326‑Witness‑Statements of prosecution witnesses straight forward and convincing except for minor discrepancies‑Such dis crepancies bound to occur on account of lapse of time‑Statements of witness, held, cannot be discarded on mere ground of relation ship specially as statements of interested witnesses have been corro borated by statement of independent witness.‑[Witness].

PLD1975SC160and1978SCMR1136ref.

‑‑ S. 326‑Sentence, reduction of‑Accused faced trial right from 1976 and released on bail on 23rd September, 1978‑Sentence of two years' reduced to already undergone.‑[Sentence].

P L D 1974 S C 46 and 1976 S C M R 354 fol.

S. Nasiruddin for Appellant.

Murtaza Hussain for the State.

Date of hearing : 28th April, 1983.

Appellant above named being aggrieved by judgment, dated 31st July, 1978 of the VII Additional Sessions Judge, Karachi, in 'Sessions Case No. 7998/76 by which appellant has been convicted under section 326, P. P. C. and sentenced to suffer R. I. for two years and to pay a fine of Rs. 200 has preferred the above appeal, on the following facts and grounds :‑

According to prosecution case, on 8th September, 1976, at about 10‑40 p. m., Nafasat Zaman S.‑I. P. received telephones message from Dr. Rauf, R. M. O , Jinnah Hospital, Karachi. that one person by name Banney Khan is received with knife injuries in the Hospital. Mr. Nafasat Zaman, Additional S. H. O. Police Station Korangi made such entry No. 50 dated 8th September, 1976 in the station diary. He then proceed ed to the Jinnah Hospital and enquired from the R. M. O. Dr. Rauf. Dr. Rauf informed that injured Banney is not in a position to give state ment. Such letter of the Medical Officer has been produced as Exh. 14. S. I. P. thereafter recorded 154, Cr. P. C. statement of Muqeemuddin, who had brought injured Banney Khan in the Hospital. The statement under section 154, Cr. P. C. of Muqimuddin reads as under :‑

"I, Muqimuddin son of Imamuddin, resident of C/106 Korangi No. 5 Karachi, state that I am Shoe Maker. Bunney is MY friend and works in the Carpet Factory and resides at 99‑B Area Korangi. About two days prior to the incident Muqimuddin was at Kalin Factory at C' Area, with Banney Khan. At about noon time Salahuddin Ahmed had come there and demanded Khaddies from Banney Khan. Banney replied that they had no Khaddies in spare. Upon this, Salahuddin was annoyed and was abusing and telling that be would see him. At that time, Muhammad Yousuf brother of Banney and other workers were also present at Karkhana. Today at about 8.30 p. m. 1, Banney and Muhammad Yousuf, after taking meals at Shakoor Hotel Korangi No. 6, were coming out from Hotel and were going to our houses. At that time Salahuddin also came there and told Banney as to why he did not give Khaddi on that day. Upon this Banney replied, that he bad no spare Khaddi otherwise he would have given the same. At this Salahuddin abused to Banney, when Banney said not to abuse. Salahuddin immediately took out a knife and attacked at Banney Khan and gave him knife injury. I and Muhammad Yousuf raised cries and tried to catch bold of Salahuddin, but Salahuddin succeed ed in running away and took away Khanjar knife with himself. I, Muhammad Yousuf and other persons witnessed this incident. I and Muhammad Yousuf put injured Banney Khan in a Taxi and brought him to the Jinnah Hospital. The statement is read over to him and it is same."

This statement under section 154, Cr. P. C. of Muqimuddin was sent by the S. 1. P. Nafasat Zaman to the Police Station, through Constable Muhammad Akhter for registration of the case. The F. I. R. was registered on 9th September, 1976 at about 2‑05 a. m. The S.‑I. P. then proceeded to place of wardat and prepared the Mushirnama of wardat in presence of Mashirs. He also recorded statements of P. Ws. Muhammad Younus, Muhammad Yousuf and further statement of Muqimuddin and Salahuddin. He gave letter for recording the statement of the injured Banney Khan, but injured was not in a condition to give the statement. Such endorsement of Doctor has been produced as Exh. 16. The injured Banney Khan was able to give statement, on 13th September, 1976 and his statement was recorded, on 13th September, 1976. Appellant Salabuddin was also arrested on 9th September, 1976. After completing investigation the appellant was challaned, on 20th September, 1976.

The charge Exh. 1 was read over to the appellant, who had not plea ded guilty. Prosecution had examined P. W. Muqimuddin Exh. 4; P. W. Banney Khan Exh. 7, P. W. Muhammad Younus Exh. 10, P. W. Muhammad Yousuf Exh. 11, P. W. Nafasat Zaman S. I. P. Exb. 12 and P. W. Dr. Rauf Exh. 18. Thereafter, prosecution bad closed its side vide fixb. 20. In his statement Exh. 21, the appellant denied prosecution allegations and stated that he is innocent. He was working at the Carpet Factory of one Salam. The allegations against him are false. He does not know the injuries of Banney. The witnesses are related to the injured.

Appellant in his statement Exh. 22, stated, that he wanted to examine witnesses and would submit the list of witnesses through his father. The appellant submitted the list of 5 witnesses as Exh. 23 on 17th January, 1978, but later on his Advocate gave statement Exh. 24, that he does not want to produce any defence in this case.

The learned trial Court taking into consideration the evidence adduced before it convicted and sentenced the appellant abovenamed as hereinbefore mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo of appeal.

The learned Advocate for the appellant in support of the above appeal submitted as under : ‑

(a) That all the three prosecution witnesses are closely related and in view of the delay in lodging of F. I. R. and the contradictions inter se in the statements of P. Ws., the statements of the P. Ws. required independent corroboration,, which is not at all available in the present case, as there was no recovery at all made from the present appellant.

(b) That in the alternative the sentence awarded to the appellant is harsh keeping in view the fact that the appellant has been facing trial since 1976 and was released on bail by this Court as far back as 23rd September, 1978.

The learned Advocate appearing for the State on the other hand submitted, that be fully supports the conviction of the appellant, as prosecution has established its case beyond reasonable doubt, by the state ments of the prosecution witnesses, who no doubt are related, but no specific enmity is alleged against them and as such their statements cannot be discarded simply on the ground of relationship. In support of this contention the learned Advocate for the State relied upon the case reported in P L D 1975 S C 160 and 1978 S C M R 1136. How ever, the learned Advocate for the State submitted, that keeping in view the fact, that the appellant has been facing trial from 1976 and was released on bail as far back as, on 23rd September, 1978, the interest of justice will be fully met, if the sentence of imprisonment awarded to the appellant is reduced to the period already under gone by him, in view of the law laid down by the Hon'ble Supreme Court in ‑cases reported in P L D 1974 S C 46 and 1976 S C M R 354.

I have carefully considered the above submissions made by the learned Advocate before me and have gone through .the R. and P. of the learned trial Court as well as impugned judgment and the cases ,cited by the learned Advocates before me.

I find that prosecution by the statement of P. W. 1, P. W. 2 and P. W. 3 whose statements have been fully corroborated by the statement of P. W. 5 Muhammad Yousuf an independent witness, has established its case beyond reasonable doubt against the appellant. I find the state ments of these P. Ws. straightforward and convincing except for minor discrepancies, which are bound to occur on account of the lapse of the time. In view of this, I agree with the contentions of the learned Advocate for the State, that, the mere relationship in the absence of any enmity suggested against the P. Ws. their statements cannot be discarded on mere, ground of relationship, specially as the statements of interested witnesses have been corroborated by the statement of P. W. 5 Muhammad Yousuf, who is an independent prosecution witness. The cases cited by the learned Advocate for the State in this connection are fully applicable to the present case and as such I see no reason to disagree with the conclusions and findings of the learned trial Court.

However, it is an admitted position, that the appellant has been facing trial right from 1976 and was released on bail by this Court as far back as 23rd September, 1978 and as such I agree with the conten tion of the learned Advocate for the State as well as the learned Advocate for the appellant, that ends of justice will be fully met, if the sentence of imprisonment awarded to the appellant is reduced to the period already undergone by him, in view of the law laid down by the Hon'ble Supreme Court in cases reported in P L D 1974 S C 46 and 1976 S C M R 354.

Therefore, while dismissing the above appeal on merits and maintain ing the conviction of the appellant, I reduce the sentence of imprisonment awarded to the appellant from 2 years to one already undergone by him and maintain the fine of Rs. 300 imposed on him by the impugned judg ment and in default of payment of said fine to suffer further R. I. for months. The appellant is on bail and as such he is granted one month time to pay fine imposed on him, failing which his bail bonds shall stand cancelled and the learned trial Court is directed to issue non‑bailable warrants for the arrest of the appellant and on his arrest to remand him back to judicial custody to serve out sentence in lieu of fine imposed on him by the impugned judgment.

M. A. K. Order accordingly.

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