IN THE HIGH COURT OF SINDH  BENCH  AT  SUKKUR

 

Criminal Misc. Application No.S-302 of 2019

 

 

Applicant:                                          Abdul Aziz Siyal, through             M/s. Mehfooz Ahmed Awan and Farhan Ali Shaikh, advocates.

Respondents No.1 to 4:                     Syed Zafar Ali Shah, advocate

State:                                                 Through Ms. Shabana Naheed APG

Date of hearing:                                 18.10.2021

Date of decision:                                24.12.2021 

 

O R D E R

 

Zulfiqar Ali Sangi, J:              Through this application, the applicant has assailed the order dated 06.04.2019, passed by learned Additional Sessions Judge, Moro, in Criminal Revision Application No.12/2019, filed by the Applicant against impugned judgment dated 07.02.2019, passed by 2nd Civil Judge and Judicial Magistrate, Moro, in Criminal Case No.77 of 2017, arising out of FIR No.256/2017, registered at P.S. Qamar Din Chandio for an offence punishable under Sections 337-F(i), F(vi), 440, 540, 34 PPC, whereby Respondents/accused were kept under the custody of Probation Officer for one year.  

 

2.                 Briefly stated the facts of the prosecution case are that complainant/applicant Abdul Aziz son of Muhammad Saifal Siyal lodged his FIR on 22.09.2017, wherein the complainant has stated that he has his own agricultural land as well as cattle farm, in connection with the farm the accused Javed was annoyed with them and private faisla was held by nekmard of the village in which Rs.20,000/- penalty/fine was imposed upon accused Javed and others therefore accused Javed and others were annoyed and they used to say to the complainant that they will see him. On 20.09.2018, the complainant alongwith his cousin Waqar Ahmed and farmer Muhammad Juman came to Moro and after finishing their work they were returning back to their village and when they reached at Sakhi Ji Top near to Dargah Fateh Faqeer Buriro, 04 persons gave hakals and stopped them, they were identified to be 1. Javed, 2. Naveed, 3. Amanullah all sons of Hamzo Khan and 4. Hamzo Khan son of Hani Ali Muhammad duly armed with lathies. The complainant stopped their motor cycle and tried to laid down; that accused Javed caused lathi blow on his right arm in result thereof his arm became fractured then Naveed Ahmed caused lathi blow on left leg and other accused also caused lathi blows on his back, when he shouted and cried then Waqar, Muhammad Juman and other passerby persons gave holly names to the accused persons and rescued them from the accused. The accused persons went away while using abusive language. The complainant in his FIR has further stated that he saw that his right arm was fractured and blood was oozing from his left leg and also his Wrist watch was broken, thereafter the complainant went to police station Qamaruddin Chandio, took letter for medical examination, and the complainant went to Taluka Hospital Moro where Doctor examined him and admitted in hospital after treatment and receipt of medical certificate the complainant went to police station and lodged the FIR.  

 

3.                 Learned Counsel for the Applicant, at the very outset,  submitted that the impugned order as well as impugned judgment passed by learned lower Courts are against the law, facts as well as natural justice and the same are passed in a hasty manner without applying judicious mind; that learned appellate court has failed to consider the evidence as advanced by the complainant party though the evidence was in line with the medical evidence, hence the learned appellate Court maintained the judgment of learned trial Court regarding conviction, the charges/ allegation against the respondents/ accused in the above matter were proved against them and the Point No.1 has been proved against the respondents / accused in the judgment of learned trial court; that as per section applied in the FIR as well as final charge sheet there is maximum punishment provided in the law, which has not been considered by the learned appellate Court so also the learned trial Court while passing the impugned judgments; that prima facie case of injuries on the persons of injured was also certified by the concerned medical officer and there is no any cogent reasons or any major contradiction available on record, therefore the respondents / accused werel not deserving for lenient view; that perusal of last paragraph of impugned judgment dated 07.02.2019 reflects that learned trial Court while passing the impugned judgment has not applied proper course while sending the respondents/ accused on probation; besides one accused is government employee and due to which learned trial Court has taken lenient view for all the accused persons, which is against the principle of justice. Learned Counsel, at the end, submitted that instant application may be allowed and the impugned order and the judgment may be set-aside.

   

4.                 Conversely, learned Counsel representing the Respondents No.1 to 4 submitted that the applicant intends to drag the Respondents unnecessarily in false and frivolous litigation on the one or other pretext despite of admitted enmity. He next contended that impugned order as well as judgment passed by learned lower Courts is in accordance with law and no any illegality has been committed by learned trial judge while awarding the conviction and compensation; besides released them on probation period. Further submitted that instant application may be dismissed and the impugned order as well as judgment may be maintained.   

 

 

5.                 Learned DPG, while adopting the arguments of learned counsel for the Respondents, contended that no any illegality or irregularity has been pointed out by learned Counsel for the applicant in the impugned order as well as judgment passed by both courts below, hence does not require any interference by this Court.

 

6.                 I have heard learned Counsel for the parties as well as DPG and have perused the record minutely with their able assistance.

 

7.                 The judgment of the learned trial court viz Civil Judge and Judicial Magistrate-II, Moro has been examined carefully and the relevant para of which is re-produced as under:-  

“In view of above discussion on Point No.1, which has been decided as proved, I am of the considered view that the prosecution has succeeded to prove the charge under Sections 337-F(VI) and 337-F(I) read with 34 PPC against above named accused persons beyond reasonable doubt. Therefore, I convict the accused namely Javed, Naveed Ahmed, Amanullah all sons of Hamzo Khan Siyal and Hamzo Khan son of Haji Ali Muhammad Siyal under Section 245 (2) Cr.P.C for above proved charge. Before passing the sentence upon convicts it is very essential that their case be examined for sending them on probation instead of sentencing them to prison. Accused are first offender. They are not previously convicts. The accused have no criminal record. Accused Javed is government teacher. If he is sentenced he will lose his job and his family members will suffer a great deal. The offence is not grievous one. Accused are not hardened criminal. This calls for lenient view in favour of accused. If the accused are sentenced with imprisonment there are chances that they would mix up with hardened criminal. But if they are sent on probation under the custody of probation officer under Section 5 of Probation Ordinance, 1961 there is greater chance that they might reform as one of the concepts of punishment is to reform which cannot be served by sending the convicts to jail but the same can be served if the accused are released under the probation ordinance. Present conditions of jails are such where once a person was sent, and then he may come out after serving out sentence as a hardened criminal. Instead of becoming a helping hand to the society he would become a cause of concern to it. Option between reformation and punishment was an onerous one and it required a judicious application of mind by the person or Authority dealing with such offender. Greatest virtue of law was its flexibility and its adaptability; it must change from time to time so that it answers the demand of the people, the need of the hour and order of the day. Present case is fit where accused should be sent under the custody of probation officer for one year. The Court is also mindful of the fact that accused have caused multiple injuries to Complainant Abdul Aziz for which he must be adequately compensated as provided under Section 6 of Probation Ordinance, 1960. Complainant has also suffered the protracted trial for more than one year and he has not only spent time upon litigation but it has caused more damage to him financially. He must also be compensated in the entire interest of justice. Therefore, all accused are required to pay Rs.15,000/- (rupees fifteen thousand) each as compensation for injury to the injured Abdul Aziz within one month after the passing of the judgment. Accused are required execute a bond with solvent surety in the sum of Rs.15,000/- (rupees fifteen thousand) each with a bond that they would pay the compensation to Complainant Abdul Aziz within one month. In case accused fail to pay the compensation as mentioned hereinabove, they shall be called upon to serve the sentence in accordance with law. If accused fail to furnish surety as mentioned hereinabove, they shall be remanded to judicial custody for want of surety. Accused are present on bail their bail bonds are cancelled and surety is discharged.”  

 

Perusal of the above conclusion drawn by the trial court it appears that the prosecution has proved case against the respondents beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence. The respondents were convicted by the trial court; however, they were not sentence and were sent under the custody of probation officer under section 5 of the Probation of offenders Ordinance, 1960 and were ordered to pay compensation under section 6 of the Probation of Offenders Ordinance, 1960.

 

8.                The court (s) holding the trial of an accused for some accusation are deciding the matters either against the accused or in his favour after recording evidence and giving all opportunities to accused and the prosecution is provided under the law. If the court comes to the conclusion that the prosecution has proved its case against the accused beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence then the first step for the court is to declare that the accused is guilty of the offence as alleged against him/them for such the court used word as conviction/convicted. The definition of word conviction as per the Cambridge English Dictionary is “the act of deciding officially in a court of law that someone is guilty of a particular crime.”  After the said declaration a second step is to be taken by the criminal court that the accused is to be sentenced for the offence for which court has convicted the accused. The word sentence is also defined in the Cambridge English Dictionary is “a punishment given by a judge in court to a person or organization after they have been found guilty of doing something wrong.”  From these definitions it is clear that at first instance the court has to decide as to whether the accused is guilty of some offence and then pass verdict of sentence.

 

          However, when the court (s) after recording evidence and giving all opportunities to the accused and the prosecution are of the view that the prosecution has failed to prove the case against the accused beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence then the court has to acquit the accused by extending benefit of the doubt or the ground which the court deemed fit for acquittal after considering the case as each case is to be decided on its own facts and the circumstances.

9.                 In the case in hand the trial court after considering the entire evidence produced by the prosecution found the accused guilty of an offence alleged against them and then instead of passing the order of sentence has exercise powers under section 5 of the Probation of Offenders Ordinance, 1960, which reads as under:-  

5. Power of court to make a probation order in certain cases.— (1) Where a court by which—

(a) any male person is convicted of an offence not being an offence under Chapter VI or Chapter VII of the Pakistan Penal Code, or under sections 216A, 328, 382, 386, 387, 388, 389, 392, 393, 397, 398, 399, 401, 402, 455, or 458 of that Code, or an offence punishable with death or transportation for life, or

(b) any female person is convicted of any offence other than an offence punishable with death, is of opinion that, having regard to the circumstances including the nature of the offence and the character of the offender, it is expedient to do so, the court may, for reasons to be recorded in writing, instead of sentencing the person at once, make a probation order, that is to say, an order requiring him or her to be under the supervision of a probation officer for such period, not being less than one year or more than three years, as may be specified in the order;

Provided that the court shall not pass a probation order unless the offender enters into a bond, with or without sureties, to commit no offence and to keep the peace and be of good behaviour during the period of the bond and to appear and receive sentence if called upon to do so during that period:

Provided further that the court shall not pass a probation order under this section unless it is satisfied that the offender or one of his sureties, if any, has a fixed place of abode or a regular occupation within the local limits of its jurisdiction and is likely to continue in such place of abode or such occupation, during the period of the bond.

(2) While making a probation order, the court may also direct that the bond shall contain such conditions as in the opinion of the court may be necessary for securing supervision of the offender by the probation officer and also such additional conditions with respect to residence, environment, abstention from intoxicants and any other matter which the court may, having regard to the particular circumstances of the case, consider necessary for preventing a repetition of the same offence or a commission of other offences by the offender and for rehabilitating him as an honest, industrious and law-abiding citizen.

(3) When an offender is sentenced for the offence in respect of which a probation order was made, that probation order shall cease to have effect.

 

From perusal of section 5 (1) (b) it is clear that the court is competent to make probation order and send the person under the supervision of a probation officer for a period, decided by the court instead of awarding sentence.

 

10.              The court may also pass order for the payment of compensation under section 6 of the Probation of Offenders Ordinance, 1960, and the same was passed by the learned trial court in the present case. For ready reference section 6 of the Probation of Offenders Ordinance, 1960, reads as under:-

6. Order for payment of costs and compensation.— (1) A court directing the discharge of an offender under section 4 or making a probation order under section 5 may order the offender to pay such compensation or damages for loss or injury caused to any person by the offence and such costs of the proceedings as the court thinks reasonable :

Provided that the amount of compensation, damages and costs so awarded shall in no case exceed the amount of fine which the court might have imposed in respect of the offence.

(2) At the time of awarding compensation or damages in any subsequent civil suit or proceeding relating to the same offence, the court hearing such suit or proceeding shall take into account any sum paid or recovered as compensation, damages or costs under sub-section (1).

(3) The amount ordered to be paid under sub-section (1) may be recovered as fine in accordance with the provisions of section 386 and 387 of the Code.

 

11.              The judgment of the trial court was challenged by the applicant by filling Cr. Revision Application No. 12 of 2019 and the same was also dismissed by the Additional Session Moro  vide order dated: 06-04-2019, after considering all the submissions of the parties and had maintained the judgment of the trial court.

 

12.              I have gone through the submissions of the counsel for the parties and the material available on record so also the relevant sections of the Probation of Offenders Ordinance, 1960 and of the view that the respondents have not committed any offence under Chapter VI or Chapter VII of the Pakistan Penal Code, or under sections 216A, 328, 382, 386, 387, 388, 389, 392, 393, 397, 398, 399, 401, 402, 455, or 458 of that Code, or an offence punishable with death or transportation for life, which bared the jurisdiction of the trial court under the provisions of Probation of Offenders Ordinance, 1960. The trial court in the impugned judgment has passed the verdict of guilty against the respondents for offences punishable under sections 337-F(VI) and 337-F(I) read with 34 PPC, therefore has rightly exercised the powers under the provisions of Probation of Offenders Ordinance, 1960.

 

13.              Learned counsel for the applicant has not been able to point out any illegality or irregularity in the impudent judgment of the trial court so also in the order passed by the Revisional Court, which are based on the sound reasons and are in accordance with law and do not need to be interfered by this court. Resultantly, the above Cr.Mis. Application filed on behalf of the applicant/complainant is dismissed.

 

 

J U D G E