Consistency of PWs during Cross Examination

 PLJ 2024 Cr.C. (Note) 232

[Lahore High Court, Lahore]

Present: Miss Aalia Neelum, J.

AHMAD SHER--Petitioner

versus

STATE etc.--Respondents

Crl. Rev. No. 4856 of 2021, decided on 23.2.2021.

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 435/439--Criminal revision--The petitioner has not opted to assail conviction, rendered by learned trial Court against petitioner, therefore, High Court does not feel it necessary to discuss in detail prosecution evidence available on record--However, High Court finds that prosecution had undoubtedly proved factum of occurrence--High Court does not find material contradictions in statements of prosecution witnesses--It is also proved from evidence on record that prosecution witnesses i.e. (PW-5)-the complainant and (PW-8) have remained consistent, despite lengthy cross-examination--Petitioner was rightly convicted and sentenced by trial Court and Addl. Sessions Judge rightly dismissed appeal--The petitioner had already served out 01-Year 05-months and 23-days in jail--Consequently, ends of justice will be served by maintaining conviction of petitioner inflicted by trial Court on him but reducing sentence to period already undergone by petitioner, leaving order of punishment intact in respect of order of payment of fine and punishment, awarded in default of payment of fine--This criminal revision stands dismissed with modification in sentence.

                                                                               [Para 6 & 7] A & B

Mr. Habib Ullah Bhatti, Advocate for Petitioner.

Mr. Muhammad Nauman Siddiq, Deputy Prosecutor General for State.

Mr. Abdul Rehman. Advocate for Complainant.

Date of hearing 23.2.2021.

Judgment

This revision petition is directed against the judgment dated 25.09.2020 passed by the learned Addl. Sessions Judge, Khushab in criminal appeal No. 06/2020. Wherefore, the learned Addl. Sessions Judge, Khushab dismissed the appeal of the petitioner confirming the judgment of conviction and sentence passed by the trial Court, whereby the learned Judl. Magistrate 1st Class, Khushab convicted the petitioner under Section 489-F, PPC and sentenced him to undergo simple imprisonment for 03 years with the direction to pay
Rs. 10,000/-as fine and in case of default in payment thereof, to further undergo simple imprisonment for 01-month. The benefit of Section 382-B, Cr.P.C. was also extended in favour of the petitioner. Wherefore, being aggrieved by the judgment dated 25.09.2020 of dismissal of the Criminal Appeal No. 06/2020 passed by learned Addl. Sessions Judge, Khushab and judgment dated 12.02.2020 passed by the learned Judl. Magistrate Ist Class, Khushab in case F.I.R No. 25 of 2018, dated 15.01.2018, offence under Section 489-F, PPC, registered at Police Station City Jauharabad, District Khushab. The petitioner-Ahmad Sher has come up with this revision petition.

2. Briefly, the prosecution story as alleged in the F.I.R (Ex.PB) lodged on the complaint (Ex.PA) of Taimoor Nawaz Khan, (PW-5)-the complainant is that the petitioner issued the cheque in favour of the complainant, which was dishonoured on its presentation in the Bank.

3. At the very outset, learned counsel for the petitioner has opted not to object conviction of the petitioner, however, prayed for reduction in his sentence. The petitioner is the first offender and has already undergone 01-year, 05-months and 23-days imprisonment out of the actual sentence. So, a lenient view may be taken.

4 On the other hand, learned Deputy Prosecutor General as well as the learned counsel for the complainant have no objection upon the reduction of sentence of the petitioner.

5. Arguments heard and record perused.

6. As the learned counsel for the petitioner has not opted to assail conviction, rendered by the learned trial Court against the petitioner, therefore, this Court does not feel it necessary to discuss in detail the prosecution evidence available on the record. However, this Court finds that the prosecution had undoubtedly proved the factum of occurrence. This Court does not find material contradictions in the statements of prosecution witnesses. It is also proved from the evidence on record that the prosecution witnesses i.e. Taimoor Nawaz Khan (PW-5)-the complainant and Sultan Khan (PW-8) have remained consistent, despite lengthy cross-examination. I am persuaded to hold that the petitioner was rightly convicted and sentenced by the learned trial Court and learned Addl. Sessions Judge rightly dismissed the appeal.

7. The report sent by the Superintendent District Jail, Shahpur through letter dated 15.02.2021 reveals that the petitioner had already served out 01-Year 05-months and 23-days in the jail. Consequently, the ends of justice will be served by maintaining the conviction of the petitioner inflicted by the learned trial Court on him but reducing the sentence to the period already undergone by the petitioner, leaving the order of punishment intact in respect of order of payment of fine and the punishment, awarded in default of payment of fine. This criminal revision stands dismissed with modification in sentence.

(A.A.K.)          Revision dismissed

Provisions of 367 CRPC are mandatory for conviction

PLJ 1991 Cr.C (Lahore) 489

Present: MUHAMMAD MUNIR KHAN, J

ALI MUHAMMAD and 5 others-Petitioners

versus

THE STATE-Responden

Criminal Revision No.35 of 1989, accepted on 26.5.1991

Criminal Procedure Code, 1898 (V of 1898)--

— -S.367 (2) & (3) read with Pakistan Penal Code, 1860, Sections 440, 448, 148   & 149-Criminal trespass-Offence of-Conviction for-Challenge to—Although petitioners were charged and convicted under as many as four sections of PPC, yet no separate sentence under each section was passed by trial court'-Held: Conviction and sentence of petitioners being violative of mandatory provisions of Section 367 (2)&(3) of Cr.P.C cannot sustain-Held further: Occurrence           facing taken place in 1986, petitioners having faced agony of protracted trialajid having been sent to Jail thrice, it would not be proper to direct their re-         ^triai.                                                                                      [P.490]A&B

Mr. Abdul Sattar Chughtai, Advocate for Petitioners.

Syed All Raza, Advocate for State.

Date of hearing: 26.5.1991.

JUDGMENT

Ali   Muhammad  and  5  others  petitioners  were  tried  under  Sections 440/448/148/149 P.P.C. on the allegations that they on 19.2.1986 at 8-00 A.M.demolished two walls of the house of Feroze Khan complainant and encroached       " upon the same, by Magistrate 1st Class, Jauharabad. They denied the charge andclaimed to he tried.

2.          To prove its case, prosecution produced 5 witnesses. Muhammad Feroze Khan P.W.2 supported the charge against the petitioners. Muzaffar HussainP.W.I, Muhammad Sumair P.W.3 and Muhammad Mumtaz P.W.4 are the eye­ witnesses of the occurrence.  They have supported the statement  ade  yMuhammad Feroze P.W.2 in all material particulars. When examined under Section 342 Cr.P.C., the petitioners denied the incriminating circumstances. They did not produce any witness in defence.

3.          The trial Court vide its order dated 18.6.1987 convicted Fateh Khan and Shameer petitioners under Sections 440/448/148/149 P.P.C. and sentenced them to one year R.I. each. The remaining petitioners were convicted under Section 448/148/149 P.P.C. and sentenced to six months R.I. each. The appeal filed by  hepetitioners against their conviction and sentence was dismissed by the learned Additional Sessions Judge, Khushab on 23.1.1989, hence this revision.

4.     Since after hearing the learned counsel for the parties, I feel persuaded to set-aside the convictions and sentence of the petitioners on account of legalinfirmities in the judgment, so I need not set out the facts in detail and enter into the merits of the case. I find that although the petitioners were charged andconvicted under as many as four sections of Pakistan Penal Code, yet no separate sentence under each section was passed by the trial Court. This being violative of the mandatory provisions of Section 367(2) (3) Cr.P.C., conviction and sentence of the petitioners cannot sustain.  The relevant provisions may be reproducedadvantageously: -Sec.367 Cr.P.C.(2) "It shall specify by offence (if any) of which and the section of the Pakistan Penal Code or other law under which, the accused is convicted, and the punishment to which he is sentenced.

(3) When the conviction is under the Pakistan Penal Code and it is doubtful under which of two sections, or under which of two parts of the same section, of that Code, the offence falls, the Court shall distinctly express the same, and pass judgment in the alternative".

Pursuant to the above discussion, the revision is accepted. The conviction and sentence of the petitioners are set-aside.

5.   Now the question arises as to whether or not, direction for the retrial of the case be given? I find that the occurrence took place in the year, 1986. Thepetitioners have faced the agony of protracted trial. They were sent to jail thrice and have remained in jail as under trial prisoners and also as convicts, so, it  ay not be proper to direct their retrial after 5 years of the occurrence. Disposed of accordingly.

(MBC)                             (Approved for reporting)            Petition accepted.