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Criminal Revision No. 1052 of 1980, decided on 14th April,1981.
‑‑‑S. 366/452/456/148/149‑‑Abduction‑‑Prosecution witnesses interested and inimical to accused‑‑No corroboration existing against accused either to warrant their conviction‑‑Conviction and sentence set aside.
‑‑S. 366/452/456/148/149‑‑Abduction‑‑Conviction of accused under Ss.366 & 148, P.P.C doubtful in state of evidence on record‑‑Accused given benefit of doubt and acquitted.
‑‑S. 452/456/149‑‑House trespass by night‑‑Liability of accused more appropriately falling under S.456, P.P.C‑‑Accused convicted accordingly.
‑‑S. 452/456/149‑‑House trespass by night‑‑Conviction‑‑Sentence -Accused remaining in jail and suffering sufficient sentence Sentence reduced to one already undergone.
Sh. Khizar Hayat for Petitioners.
Muhammad Din Chaudhry for the State.
Date of hearing: 14th April, 1981.
A case under section 366/452/148/149, P.P.C., was registered at 11‑35 a. m. on 30‑8‑1973 on the statement of Mst. Rehmat Bibi P. W.1, on the allegation that on the previous evening at Isha Wela viz 8‑30 p.m., the accused‑petitioners entered into the house where her mother -in‑law, her husband, husband's brother and his cousin were there and abducted the complainant. The accused, namely, Noor Muhammad, Allah Ditta and Ghulam Hussain sons of Khan Muhammad, Muhammad Nawaz and Ahmad Bakhsh were tried under the aforesaid charges and sentenced to various terms of imprisonment and fines. On their appeal, the conviction has been maintained but the sentences reduced as under:‑--
(1) Six months rigorous imprisonment each under section 148, P.P.C.
(2) One year's rigorous imprisonment each and a fine of Rs.100 or in default to suffer further rigorous imprisonment for two months under section 452/149, P.P.C. and
(3) Two years rigorous imprisonment and a fine of Rs.200 or in default of payment of fine to undergo further rigorous imprisonment for four months under section 366/149, P.P.C. to each of the accused persons.
This is vide order dated 25‑11‑1980. The petitioners have come up in revision.
2. Learned counsel for the petitioners has contended that the person who lodged the F.I. R, namely, Mst. Rehmat Bibi, was examined on 2‑3‑1976, but for the next nine months, she was never produced for cross‑examination which has been reserved and thereafter she expired and consequently was never cross‑examined. It is also submitted that the officer who recorded the F.I.R., namely, Rab Nawaz A.S.I. was neither produced, nor, any reason given for not producing him. He has also submitted that all the witnesses are admittedly related and inimical and there is no independent corroboration of their testimony. It is also submitted that there is a conflict in the evidence in so far as according to the ocular evidence, Hayat Muhammad P.W.3 was given knife blow by Nur Muhammad petitioner, but no evidence has been produced to the effect.
3. Learned counsel for the State has submitted that the case has been proved against the petitioners by reliable evidence which has been believed by the trial Court and the conviction has been upheld by the learned appellate Court.
4. After hearing the learned counsel for the parties and perusing the record with their assistance, it appears that Noor Muhammad, petitioner No.1, who was a domestic servant of the complainant Mst. Rehmat Bibi and her husband Hayat Muhammad, was turned out of the house for having made advances towards the lady bf the house. He had been given a beating. It seems that he came back and while taking away or going back with the lady, her relations intervened and rescued her. The witnesses, being interested and inimical and there being no corroboration against accused‑petitioners other than Nur Muhammad, there is no reliable evidence to warrant their conviction. Consequently, their revision petition is accepted. Their conviction and sentences are set aside. They shall be released forthwith if not required in any other case.
As regards Nur Muhammad accused‑petitioner No.1, he has finally been sentenced by the learned Additional Sessions Judge on 25‑i1‑1980 to various sentences ranging upto the maximum of two years rigorous imprisonment. His conviction under sections 366 and 148, P.P.C. is doubtful in the state of evidence on the record and he is, therefore, entitled to the benefit thereof. Consequently, he is acquitted of those charges. As regards his conviction under section 452/149, P.P.C., the time of house trespass being Isha Wela, night, his liability more appropriately fell under section 456, P . P. C . and he is convicted thereunder. The sentence on the charge of house trespass under section 452 was one year's rigorous imprisonment with a fine of Rs.100 or in default two months' R.I as ordered by the learned Additional Sessions Judge on 25‑11‑1980. Since then he has been in jail. The sentence suffered is sufficient in the circumstances of the case. Therefore, his sentence under section 458, P.P.C. is reduced to the one undergone. He shall be released forthwith, if not required in any other case. Thus, all the petitioners shall be released forth with if not wanted in any other case.
M.Y.H./3189/L Revision accepted.
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