JUDGMENT SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT HYDERABAD

Criminal Appeal No.S-270 of 2012

Appellant              :         Lalio and others through Mr. Sajjjad Ahmed                                    Chandio Advocate

Respondent          :                   The State through Shahzado Saleem Nahyoon                                 Assistant Prosecutor General Sindh

Date of hearing:             25.02.2013.

Date of decision               11.03.2013

J U D G M E N T.

AFTAB AHMED GORAR,J-     Appellants were tried by learned Ist Additional Sessions Judge Badin and were convicted u/s 336, 35 PPC and sentenced to undergo R.I. for seven years as Tazir and to pay arsh amounting to Rs.50,000/- each to injured Shrimati Haveeran, in default whereof to suffer S.I for one year. They were further convicted u/s 337 A(i) r/w section 35 PPC and were sentenced to suffer R.I. for one year and to pay Daman of Rs.25000/- each to the above named injured, in default whereof, to suffer S.I. for six months more. Appellants were given benefit of section 382-B Cr.P.C.

2.                Brief facts of the prosecution case as per FIR, are that Shrimati Haveeran daughter of complainant was married with appellant Veenjho Kolhi, who used to maltreat her on petty matters. On 11.10.2011 the complainant came to know that accused Veenjho Kolhi, his father, brothers had beaten his daughter, she went unconscious and admitted in Liaqat Hospital Hyderabad. On this information, complainant alongwith his sons Somji and Lakhyo went to Liaqat Hospital Hyderabad and found his daughter unconscious. Complainant noticed injury on her head. Accused Veenjho and his brothers did not allow the complainant party to stay there. On next day, accused took complainant’s daughter from Hospital to their village. Complainant then approached learned Sessions Judge/ Justice of Peace Badin wherefrom directions for registration of FIR and for providing medical treatment to the injured were issued . The complainant then obtained letter for medical treatment from P.S. Badin and got his daughter admitted in the Hospital and then appeared at Police Station and lodged report with allegations that accused in order to kill his daughter, maltreated her and she went unconscious.

3.       Formal charge u/s 324, 35 PPC was framed against the appellants at Ex.3, to which they pleaded not guilty and claimed their trail.

4.       In order to prove its case, prosecution examined P.W.1 Complainant Megho at Ex.11. He produced FIR at Ex.11/A and copy of order dated 20.10.2011 of learned Sessions Judge, Badin at Ex.11/B. Prosecution further examined P.W.2 Somji at Ex.12, P.W.3 ASI Nazim Hussain at Ex.13, P.W.4 Shrimati Haveeran at Ex.14, P.W.5 mashir Muhammad Ali at Ex.15. He produced memo of injuries and place of incident at Ex.15-B, P.W.6 Khajo at Ex.17, P.W.7 Lady Dr. Qazbano at Ex.18. She produced police letter and provisional as well as final medical certificates at Ex.18/A to 18/C. Thereafter prosecution side was closed.

5.       The statement of appellants were recorded u/s 342 Cr.P.C, wherein they denied the prosecution allegations and pleaded their innocence. However, neither they examined themselves on oath nor led any defence evidence.

6.       The learned trial court after hearing the parties and appraising the evidence convicted the appellants as mentioned above.

7.       Learned counsel for the appellants argued that the impugned judgment suffers from legal infirmities, therefore is not sustainable in law. He contended that the learned trial court did not appreciate evidence available on record and committed gross illegality by misreading and non-reading of the evidence. He further contended that there is no eyewitness of the incident and entire case is based on surmises and conjectures. Learned counsel submitted that the medical evidence is contrary to the ocular evidence, therefore, charge was not proved against the appellants. He further contended that the complainant registered the FIR after 50 days of alleged occurrence, which has casts doubt in the prosecution case. He added that alleged incident took place  in the house of the appellants which is surrounded by the houses of different persons but none from them witnessed the incident. Learned counsel next contended that there is no strong and unimpeachable evidence against the prosecution to render them for conviction. He further contended that learned trial court has based conviction against the appellants on the basis of medical evidence regarding injuries allegedly sustained by the victim declared by the WMO u/s 337 A(i), 336 PPC. Learned counsel submits that neither charge was framed under such sections nor the medical evidence was put forth to the appellants in their statements u/s 342 Cr.P.C to explain about the same, therefore, such conviction is not sustainable in law. He further submitted that there is no medical evidence regarding permanent impairment or disfigurement of any organ of the body of victim, therefore, conviction u/s 336 PPC is not warranted by law. Learned counsel urged that impugned Judgment is based on defective charge as well as statements u/s 342 Cr.P.C and mandatory provisions of law have been violated by the learned trial court, therefore, impugned Judgment is liable to be set-aside. He has relied upon the case of Munir Ahmed alias Munni Vs. The State (2001 SCMR 56), Asif Iqbal and 3 others Vs. The State and another (2012 P Cr. L J 91), Dilsher Vs. The State (PLd 2012 Sindh 307), Muhammad Ayub Vs. The State (2006 P Cr.L J 257).

8.       On the other hand, learned Deputy Prosecutor General Sindh supported the impugned Judgment and argued that prosecution has proved its case against the appellants beyond shadow of doubt. He argued that the present case rests upon the circumstantial evidence duly corroborated by the medical evidence. He contended that prosecution has succeeded to bring guilt of the appellants at home, therefore, their conviction does not call for any interference.

9.       I have heard the learned counsel for the parties and examined the record carefully. The appellants were charged for having caused injuries to Shrimati Havera, whereby there was weakness of left side of the body. In this respect, the prosecution has examined complainant and other witnesses. The evidence of the complainant and other witnesses except WMO and victim, is the circumstantial evidence as they stated that when they came to know that the appellants had caused injuries to Shrimati Haveera and she was admitted to the Hospital, they came to the Hospital and saw victim in unconscious condition. Thereafter they approached the learned Justice of peace, obtained order for registration of FIR, obtained letter for treatment of injured and she was treated by the WMO.

10.     The star witness in this case is the victim/injured Shrimati Haveera herself. She in her deposition stated that she married with appellant Veenjho and was residing in his joint house, where his brothers and father were also residing. She further  deposed that on the night of incident, accused Veenjho and his brothers and father (appellants) beaten her after having drink of wine and she received injuries and went unconscious. Then accused kept her to the Hospital but not got her treated. Thereafter her father got her treatment and incurred about one lac rupees.

11.     P.W.7 Dr. Qazbano WMO Taluka Hospital Golarchi in her deposition stated that on 20.10.2011 she examined injured Shrimati Havera Kolhi  and found following injuries on her person:-

1. Slight healed injury on next skin deep with scar 3 cm x ½ cm on the right side of neck. The probable duration of the injury was four to eight days.

2. Old scars of mark seen (1) on the frontal region of head (2) below chin right side (3 above left eye.

          The WMO further deposed that she found that injured was was unconscious/ semi unconscious and could not talk or walk. She stated that the injuries were first reserved for want of expert opinion and after receipt thereof, she declared injury No.2(i) as Itlaf-e-Salahyat Udw u/s 336 PPC on the basis of weakness of left side of the body, whereas she had noticed injury No.2(i) as injury on the frontal region of head. According to her, C.T. scan showed chronic subdural hemorrhage. The lady doctor did not specify either in her certificate or deposition as to which of the organ of the body of the victim was destroyed or permanently impaired or was permanently disfigured, which is the essential ingredients of section 335 PPC punishable under section 336 PPC.

12.     The perusal of record reveals that charge against the appellants was framed u/s 324 PPC and they were not given the notice of the injuries allegedly sustained by the injured/ victim to know about the same as the charge is the first notice to the accused in order to afford them opportunity to defend themselves.

13.     In the case of Asif Iqbal Vs. The  State  (supra), it was held that purpose of charge was to tell an accused as precisely and concisely as possible about the matter; what the prosecution intended to prove against him in order to afford him an opportunity to defend himself. Section 265-D Cr.P.C envisaged that while framing the charge; Trial Court was bound to consider not only the F.I.R and report under S.173 Cr.P.C but all other documents and material filed by the prosecution which would include the recovery memos,  the site plans, the statements of witnesses under section 161 Cr.P.C and 164 Cr.P.C etc to rule out any prejudice to accused; and to ensure just and fair trial on the basis of material placed by the prosecution before the court.

          In the case of Dilsher Vs. The State (supra), while discussing the importance of the charge and its essentials, it was held that no charge was framed against the appellant for lodging a false complaint and he was convicted without providing him any chance of defence.

          In case of Pir Mumtaz and another Vs. The State(2005 P Cr. L J 721), it was held that accused charged with one offence though could under section 237 or 238, Cr.P.C be convicted of another, but since both the said provisions were exceptions to general rule contained in s.233 Cr.P.C for every distinct offence there should be, separate charge. Person charged with one offence, could not be convicted of another, unless it was doubtful as to what offence was made out against accused and offence was cognate to, or a part of or attempt to commit principal offence with which accused was originally charged as provided under Ss. 236 & 238 Cr.P.C. In said case it was held that accused was not charged for offence in which he was convicted and there was difference between both offences, therefore, his conviction was set-aside and case was remanded to the trial court for its trial and decision afresh in accordance with law.

14.     It has also been observed that statements of the appellants were not recorded in accordance with law as no question was put forth to them in respect of the injuries allegedly sustained by the victim or the material produced by the prosecution in order to explain their position. In the case of Munir Ahmed alias Munni Vs. The State (supra), it was held that where an incriminating piece of evidence is  not put to an accused, the same has not to be considered as evidence against him.

          In the case of Muhammad Ayub Vs. The State (2006 P Cr. L J 257), it was held that examination of accused u/s 342 Cr.P.C was mandatory and not discretionary. Object of examination of accused was to give him an opportunity of explaining the circumstances, which could tend to incriminate him or were likely to influence mind of Judge in arriving at a conclusion adverse to him. Examination of accused was not a mere formality, but a necessity and on that account impugned Judgment of the trial court was set-aside and case was remanded for its decision afresh.

15.     In view of the above circumstances, I am of the considered view that the learned trial court did not follow relevant provisions of law while framing the charge and recording statements of appellants u/s 342 Cr.P.C, which has probably prejudiced the case of the appellants.

16.     The upshot of the above discussion is that the impugned Judgment is set-aside. The case is remanded to the learned trial court to frame the charge properly in accordance with the law and after recording evidence of the prosecution witnesses, record the statements of the appellants u/s 342 Cr.P.C putting forth the material purportedly brought by the prosecution and conclude the trial in accordance with law. This case pertains to the year 2011, therefore, learned trial court is directed to conclude the trial within four months positively.

          The Cr. Appeal stands disposed of alongwith pending application MA 5674/2012.

                                                                             JUDGE.

A.K