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Criminal Revision No.472 of 1986, decided on 15th February, 1987.

‑‑‑S. 227‑‑Penal Code (XLV of 1860), S. 466‑‑Charges, amendment of‑ Complaint against respondents filed originally under Ss.302/307/148/149 & 12‑B. P.P.C., however, later on respondent Police Official alone charged for offence under S. 466, P.P.C. on the allegation of securing thumb‑impression of complainant on F.I.R. by force but Trial Court refused to charge remaining respondents for such an offence‑‑Excepting statement of complainant no evidence that another police official incorrectly recorded his statement or statement recorded at instance of other accused‑‑No witness of conspiracy between accused named in complaint nor any evidence that any other accused was present in police station when said police official secured complainants thumb impression by force.. available on case file‑‑Trial Court, held, rightly refused to charge remaining accused with offence under S.466, P.P.C in circumstances‑‑Interference with impugned order declined.

Ch. Rafique Ahmad Bajwa for Petitioner.

Hamid Ali for the State.

Muhammad Nasrullah for Respondents Nos. 1 to 13

Nasim Sabir for Respondents Nos. 14 and 15.

Date of hearing: 15th February, 1987.

Facts necessary for decision of this petition are briefly stated below:‑

It is alleged that on 28‑11‑1982 at 10 p.m. Mazhar Hussain Shah, Head Constable alongwith 5 others went to village Lamey and asked Muhammad Yousaf complainant, Talib Hussain, Muhammad Yasin and Subedar Allah Ditta to accompany him to Police Station, Kharian in connection with an application against them regarding possession of illicit arms. They accordingly accompanied Mazhar Hussain Shah Head Constable in a private wagon. After covering a distance of about one mile when they reached Nala Golarianwala the wagon stopped. Mazhar Hussain Shah Head Constable asked Muhammad Yousaf complainant and his companions to get down, with a direction to come to the police station next day at about noon. It is further alleged that at about 11 p.m. when they started returning home from the said place and were near the land of Mst. Nazir Begum, all of a sudden Muhammad Ali etc., 12 accused armed with guns sticks and hatchets came out of ambush. They encircled them. Muhammad Yasin P.W. managed to slip aside. Muhammad Ali etc. accused inflicted injuries on the person of Talib Hussain who was seriously injured. Allah Ditta P. W. and Yousaf complainant tried to rescue Talib Hussain but they were also beaten by the accused. The motive was stated to be previous criminal litigation between the parties. Talib Hussain died of injuries at the spot. Allah Ditta P.W. was taken to Tehsil Hospital. Muhammad Yousaf complainant was brought to Police Station, Kharian where he reported the matter to S.H.O. Muhammad Riaz in presence of Muhammad Yasin and Muhammad Sadiq P. Ws. The complainant's case is that he stated before the S. H .O. Muhammad Riaz the details of the occurrence and that the accused committed these offences in collaboration with H . C . Mazhar Hussain Shah. However, Muhammad Riaz S.H.O. wrote down his statement on a plane paper saying that the F.I.R. will be registered later and asked him to thumb‑mark the statement. He refused whereafter Muhammad Mushtaq A.S.I. forcibly obtained his thumb‑impression on the said statement.

2. Muhammad Yousaf complainant, not satisfied with investigation of the case, on 27‑3‑1983 filed a complaint under sections 302, 307, 148, 149 and 120‑B, Cr.P.C. against Muhammad Ali etc. accused. Mazhar Hussain Shah, S.H .O. Muhammad Riaz and A.S.I. Muhammad Mushtaq were also named as accused in the complaint. The trial Court after preliminary enquiry summoned the accused to face charges. The accused appeared in Court. The trial Court recorded statements of 7 prosecution witnesses in presence of the accused including three eye‑witnesses namely Muhammad Yousaf, Subedar Allah Ditta and Yasin. It appears from the record that on 5‑4‑1986 a request was made to learned trial Judge for addition of charge against A.S.I. Muhammad Mushtaq accused. The case was adjourned for arguments on 10‑4‑1986 when arguments were partly heard. On 10‑4‑1986, as it appears from the interim order, the learned counsel for the complainant had contended that charge under section 466, P.P.C. should be framed against the A.S.I. Muhammad Mushtaq. The case was adjourned for further arguments on the point to 13‑4‑1986 when the learned Additional Sessions Judge added charge under section 466, P. P. C. against A.S.I. Muhammad Mushtaq. Thereafter, the case was adjourned to 8‑5‑1986 on the request of the learned counsel for the complainant for 'recording of further evidence of the complainant as a consequence of the amendment in the charge'. On 29‑5‑1986 an application was filed by Muhammad Yousaf complainant with a request that charge under section 466/34, P.P. C . be added against Riaz Ahmad and other accused. This application came up for final hearing on 18‑9‑1986 before learned Additional Sessions Judge Gujrat who, without discussing merits in detail, dismissed the said application with an observation that there was "nothing to infer about any conspiracy among accused persons namely Muhammad Mushtaq, Muhammad Riaz and others". Hence this revision.

3. I have heard the learned counsel appearing on behalf of the parties. The alleged occurrence took place on 28‑11‑1982. Muhammad Yousaf petitioner filed complaint on 27‑3‑1983 under sections 302, 307, 148, 149 and 120‑B, P.P.C. only and not under section 466, P.P.C. The accused were summoned to face trial for the said offences. The learned Additional Sessions Judge, Gujrat recorded evidence of 7 prosecution witnesses including three eye‑witnesses. It was at this stage that a request for addition of charge under section 466, P.P.C. was made on behalf of the complainant. A perusal of the interim orders dated 5‑4‑1986, 10‑4‑1986 and 13‑4‑1986 gives an impression that the learned counsel for the complainant requested for addition of charge under section 466, P.P.C. only against A.S.I. Muhammad Mushtaq which request was accepted. The application, dated 29‑5‑1986 for addition of under section 466/34, P.P.C. seems to be an after‑thought. I have examined the merits of this revision petition. There prima facie appears no evidence to support the allegation that S.I. Muhammad Riaz and A.S.I. Muhammad Mushtaq had conspired with their co‑accused for commission of present offence. The only allegation as contained in complaint was that Muhammad Riaz incorrectly wrote down the statement of Muhammad Yousaf complainant on a plane paper and asked him to put his thumb‑impression thereon. He refused saying that he can sign. The S.H.O. however, insisted for thumb‑impression which was later obtained by A.S.I. Muhammad Mushtaq by force. It is not stated in the complaint that the S.H.O. directed Muhammad Mushtaq to secure thumb‑impression of the complainant by force. There is no evidence that any other accused including Mazhar Hussain Head Constable was present in the police station at that time. There is also no witness of conspiracy between the accused named in the complaint. Excepting the statement of complainant there is no evidence that S. H.O. Muhammad Riaz incorrectly recorded his statement or that the said statement was recorded at the instance of other accused. As such I am of the view that the remaining accused were rightly not charged with the offence under section 466, P.P.C. I do not find any illegality or infirmity in the impugned order, dated 18‑9‑1986. I, therefore, find no merit in this petition which is accordingly dismissed. The learned trial Judge 9s directed to complete trial before 15‑7‑1987 under intimation to registrar of this Court.

Any observation on facts will have no bearing on merits during trial.

S. G. D. /M‑56/L Revision declined.

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