PLJ 2022 Cr.C. 942
----Ss. 324, 337-A(ii), 337-F(ii), 311, 355, 147 & 148--Conviction and sentence--Challenge to--Attempt to murder--Authentication of issuing medical certificate by doctor--Medical said certificate does not bear official stamp as well as official seal of doctor and his hospital--Furthermore, date and time of examination of Dr. by Psychiatrist has nowhere been specifically mentioned--Though Dr. well-conversant with signature and handwriting of Dr. Medico Legal Officer, has been examined by prosecution who had produced Medico Legal Certificates of injured PWs and medical certificate issued by Psychiatrist in respect of Dr. but examination of Medico Legal Officer is necessary for just decision of case as he is proper person who examined injured persons, noted injuries on their bodies and declared nature of said injuries while issuing Medico Legal Certificates--Not only this, but Medico Legal Certificates were produced in evidence through another Medical Officer Dr. who was well conversant with signature and handwriting of Dr.--The authenticity of same was challenged by accused before Medical Board, which was constituted on application of accused before whom injured witnesses appeared on date fixed by Medical Board, but opinion of Medical Board has not been produced by either party before learned trial Court, however, copies of office order passed by Director General Health-Services, and letter dated 06-03-2020 have been annexed with memo of instant Criminal Appeal as Annexure ‘F’ and ‘F-1’, available at page 135 and 137, respectively--Said fact has not been denied by counsel for complainant who frankly conceded to said aspect of case and recorded his no objection if Appeal is allowed and matter is remanded to trial Court for recording evidence of Dr. and Chairman or any Member of Medical Board constituted by Director General Health Services, Hyderabad Sindh on application of appellants/accused.
[Pp. 947 & 948] A, B & F
Innocent Person is not Punished on Technical Omissions--
----It is salutary principle of judicial proceedings in criminal cases to find out truth and to arrive at a correct conclusion and to see that an innocent person is not punished merely because of certain technical omissions on his part or on part of Court--It is correct that every criminal case has its own facts and, therefore, no hard and fast rule criteria for general application can be laid down in this respect but if on facts of particular case it appears essential to Court that additional evidence is necessary for just decision of case, then it is obligatory on Court to examine such a witness ignoring technical/formal objections in this respect as to do justice and to avoid miscarriage of justice. [P. 948] E
Duty of Court--
----It is obligatory upon Court to allow parties to produce and examine said material witness whose evidence enables Court to go at truth of matter, so as to come to a proper conclusion. [P. 948] C
Additional Evidence--
----It is settled law that it is, thus, manifest that calling of additional evidence is not always conditioned on defence or prosecution making application for this purpose, but it is duty of Court to do complete justice between parties and carelessness or ignorance of one party or other or delay that may result in conclusion of case should not be a, hindrance in achieving that object. [P. 948] D
Mr. Dareshani Ali Haider ‘
Syed Sardar Ali Shah Rizvi, DPG for State.
Mr. Anwar Ali Lohar, Advocate for Complainant.
Date of hearing 24.5.2021.
PLJ 2022 Cr.C. 942
[Sindh High Court, Sukkur Bench]
Present: Khadim Hussain Tunio, J.
ABDUL GHAFOOR and another--Appellants
versus
STATE--Respondent
Crl. A. No. S-77 of 2020, decided on 28.5.2021.
Judgment
Appellants/accused (i) Abdul Ghafoor son of Abdullah and (ii) Gul Hassan son of Muhammad Paryal were tried by learned Additional Sessions Judge-I (MCTC), Ghotki, in Sessions Case No. 231 of 2019 (Re. The State v, Imtiaz Ali and others), emanating from FIR No. 186 of 2019, registered at Police Station Daharki, for offence punishable under Sections 324, 337-A(ii), 337-F(ii), 311, 355,147,148 read with Section 149, PPC and vide judgment dated 11-12-2020, the appellants were convicted and sentenced as under:
• Accused Abdul Ghafoor and Gul Hassan are convicted for the offence punishable u/S. 324 r/w Section 34, P.P.C. and sentenced to undergo R.I. for seven years as Ta’zir and to pay fine of amount Rs. 50,000/- each or in case of non-payment of fine, they shall suffer S.I for six months more.
• Accused Abdul Ghafoor and Gul Hassan are also convicted for the offence punishable u/S. 337-A(ii) r/w Section 34, P.P.C., for causing Shajjah-i-Mudihah’ on the person of injured complainant Sher Muhammad and sentenced to undergo R.I for five years as Ta’zir and to pay Arsh (five percent of Diyat) each to the injured complainant and in case of non-payment thereof, they shall undergo S.I for six months more.
• Accused Abdul Ghafoor and Gul Hassan are also convicted for the offence punishable u/S. 337-F(ii) rlw Section 34, P.P.C., for causing Ghayr Jaifah Badi’ah on the person of complainant Sher Muhammad and sentenced to undergo R.I for three years as Ta’zir and also to pay Daman of Rs. 10,000/- each to the complainant and in case of non-payment thereof, they shall undergo S.I for one month more.
• Accused Abdul Ghafoor and Gul Hassan, are also convicted for the offence punishable uls 337-A(ii) rlw Section 34, P.P.C., for causing Shajjah-i-Mudihah on the person of injured PW Amanullah and sentenced to undergo R.I for five years as Ta’zir and to pay Arsh (five percent of Diyat) each to the injured PW Amanullah and in case of non-payment thereof, they shall undergo S.I for six months more.
• Accused Abdul Ghafoor and Gul Hassan are also convicted for offence punishable uls 337-F(ii) r/w Section 34, P.P.C., for causing Ghayr Jaifah Badi’ah on the person of injured PW Amanullah and sentenced to undergo R.I for three years as Ta’zir and also to pay Daman of Rs. 10,000/- each to the injured PW and in case of non-payment thereof, they shall undergo S.I for one month more.
All the sentences were ordered to run concurrently. However, the appellants/accused were extended benefit of Section 382-B, Cr.P.C.
2. Succinctly, facts of the prosecution’s case are that on 21-08-2019 at 1900 hours, complainant-Sher Muhammad lodged an FIR alleging therein that on the very same day, he along with his nephew Amanullah left his house on motorcycle for buying wood. At about 0830 hours, when they reached at Nao Kot Bus Stand near Saw (Ara) Machine, they found twelve culprits coming on five motorcycles and identified them as accused Wadero Abdul Ghafoor and Gul Hassan having hatchets; Imdad Ali, Qurban Ali, Muhammad Hassan alias Imran, Imtiaz, Peer Bux, Noor Hassan and Iqbal Ahmed having lathies; Nawab Ali having plastic bottle in his hand along with to unknown culprits. While coming, accused Wedoro Abdul Ghafoor and Gul Hassan asked the complainant party that due to non-holding of ‘Jirga’ of ‘Karap’, they will not be spared and would be murdered. By saying so, accused Wadero Abdul Ghafoor caused hatchet blow on the head of complainant, accused Imdad Ali and Imtiaz caused lathi blows on right shoulder and backside of the complainant, accused Gul Hassan caused hatchet blow on the head and arms of PW Amanullah and accused Peer Bux, Muhammad Hassan alias Imran and Noor Hassan caused lathi blows to PW Amanullah. In the meantime, accused Nawab Ali and Iqbal, while pouring the black oil from the plastic bottle on their hands had rubbed the same on the face of complainant, to which complainant party raised cries, which attracted PWs Barkat Ali and Abdul Wajid. Thereafter, all the accused escaped away on their motorcycles towards Mirpur Mathelo. Thereafter, with the help of PWs, complainant and PW Amanullah, in injured condition, came at Police Station Daharki and after getting treatment from the
3. Learned trial Court framed the charge against the appellants/accused, to which they pleaded not guilty and claimed to be tried.
4. In order to substantiate the charge, the prosecution examined in all eight witnesses including (i) Complainant-Sher Muhammad, (ii) Amanullah, (iii) Barkat Ali, (iv) Mashir-Shahmeer, (v) ASI Khair Muhammad Laghari, (vi) Mst. Sultana alias Hajul, (vii) I.O-ASI Peer Bux Bhutto and (viii) Medical Officer Dr. Nisar Ahmed being well conversant with the signature and handwriting of ailing Dr. Kelash Kumar, Medico Legal Certificate; the witnesses produced a number of documents during their evidence. However, learned State Counsel gave up Dr. Kelash Kumar owing to his illness and closed the side of prosecution.
5. Statements of appellants/accused were recorded in terms of Section 342, Cr.P.C., in which they denied the allegations as leveled by the prosecution by stating that they have been falsely implicated in this case. However, the appellants/accused did not examine themselves on oath as required under Section 340(2), Cr.P.C., nor adduced any evidence in their defence. Nonetheless, appellant/accused Abdul Ghafoor produced photostat copies of memo of application under Section 491, Cr.P.C., certified copy of report of learned Magistrate, police report and certified copy of order of learned Sessions Judge passed on application under Section 491, Cr.P.C. Similarly, appellant/accused Gul Hassan produced photostat copies of overseas identity card, passport and four tickets.
6. Learned trial Court, after hearing the parties and on the assessment of evidence, convicted and sentenced the appellants/ accused as narrated above. Hence, instant Criminal Appeal has been preferred against the impugned judgment.
7. Mr. Dareshani Ali Haider ‘Ada’, learned counsel for appellants/accused has contended that complainant-Sher Muhammad admitted in his cross-examination that there was Tea Hotel and Saw (Ara) Machine adjacent to the place of incident, but no one was taken as witness or mashir from there; complainant also stated in his cross-examination that at the first instance he lodged NC report, but such NC report has not been produced in the evidence; that there is delay of about 10 to 11 hours in lodging of the FIR; that complainant has admitted in his cross- examination that accused have challenged the medical certificates before the Medical Board in which he had appeared; that in all the mashirnamas, two same persons namely Shahmeer and Ali Gul have been shown as mashirs; that PW-2 Amanullah in his examination-in-chief has stated that on their cries, Barkat Ali and Abdul Wajid came at the spot who saved them, however, said PW Barkat Ali is silent on this point; that learned trial Court on the same set of evidence acquitted some of the accused and on the other hand convicted the appellants/accused; that the despatcher of hatchet was not examined before the learned trial Court; and that previously several medical certificates issued by Dr. Kelash Kumar in other cases were suspended/kept in abeyance by the Medical Board.
8. Syed Sardar Ali Shah Rizvi, learned DPG has supported the impugned judgment and has argued that there is no material contradiction and minor contradiction, if any, can be ignored. He has further argued that learned trial Court has passed a speaking judgment and the same does not suffer from any illegality or infirmity.
9. Mr. Anwar Ali Lohar, learned counsel for complainant has also supported the impugned judgment and has urged that there is no illegality in the impugned judgment, however, he raised his no objection if the impugned judgment is partly allowed and the case is remanded for passing fresh judgment after recording evidence of Dr. Kelash Kumar.
10. I have heard the learned counsel for the parties and have gone through the entire record with their assistance.
remanded to the learned trial Court for recording evidence of Dr. Kelash Kumar and Chairman or any Member of the Medical Board constituted by the Director General Health Services, Hyderabad Sindh on the application of the appellants/accused.
14. In view of above discussion, instant Criminal Appeal is partly allowed. Conviction and sentence awarded to the appellants/accused are set-aside to the extent of the appellants/accused and the matter is remanded to the learned trial Court with direction to call opinion of the Medical Board, summon Dr. Kelash Kumar and Chairman or any Member of the Medical Board for recording of their evidence with opportunity of cross-examination to appellants/accused Abdul Ghafoor and Gul Hassan, record fresh statements of appellants/accused under Section 342, Cr.P.C. and after hearing the parties pass a fresh judgment fully in accordance with law on merits. This exercise shall be completed within four months on receipt of this order.
15. These are the reasons of short order announced by this Court on 24-05-2021.
(A.A.K.) Appeal partly allowed
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