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Petitioner: WAQAR AMBALVI VS Respondent: FAQIR ALIHonorable Justice ABDUS SATTARDr. Tasaddaque Hussain,A. H. Syed,Raja Said Akbar Khan
1969 P Cr
1969 P Cr. L J 341
[Supreme Court]
Present: Hamoodur Rahman, C. J., Muhammad Yaqub Ali, Sajjad Ahmad and Abdus Sattar, JJ
WAQAR AMBALVI-Appellant
Versus
FAQIR ALI AND OTHERS-Respondents
Criminal Appeal No. 10 of 1968, decided on 3rd December 1968.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 9th November 1965, in Criminal Revision No. 808 of 1965).
Witness-Witnesses named in F. I. R. but not in petition of complaint and not subjected to any cross-examination-Testimony of such witnesses, whether, in circumstance, could be rejected (Quaere)-Case, however, involving misreading of evidence and there fore remanded to first appellate Court for disposal in accordance with law.
Dr. Tasaddaque Hussain, Senior Advocate Supreme Court (Kh. Shaukat Ali, Advocate with him) instructed by Wajid Hussain Senior Attorney for Appellant.
A. H. Syed, Advocate Supreme Court instructed by Sh. Abdul Karim, Attorney for Respondents Nos. 1 to 4.
Raja Said Akbar Khan, Advocate-General West Pakistan Lahore (absent) (Malik Mohd. Nadir, Advocate with him instructed by Ijaz Ali, Attorney for the State.
Date of hearing : 3rd December 1968.
JUDGMENT
ABDUS SATTAR, J.-On 8th July 1963, the appellant lodged a report at Police Station Sharqpur against respondents Nos. 1 to 4 alleging that they had in his absence, on the 7th July 1963, broken the lock and occupied a kotha which was in his possession standing on a piece of land allotted to him. The police after investigation found that the allegations of the appellant were false. Thereafter proceedings under section 182, P. P. C. were started against the appellant. The appellant then on the 5th December 1963, filed a complaint against respondents Nos. 1 to 4 do which the allegations made in the First Information Report were more or less repeated.
The respondents were tried by the Sub-Divisional Magistrate, Ferozewala at Shahdara who found them guilty under section 448, P. P. C. and sentenced each of them to imprisonment till the rising of the Court and to pay a fine of Rs. 200 and in default to undergo rigorous imprisonment for one month. An appeal was preferred against the convictions and sentences which was heard by the Additional Sessions Judge, Lahore at Sheikhupura. The learned Additional Sessions Judge disbelieved the prosecution evidence that the kotha was in possession of the appellant and that the respondents had forcibly occupied it on the 7th July 1963. The learned Judge observed that the appellant's case in the petition of complaint was that he came to know of the trespass on the evening of the 7th July 1963 when he returned from Lahore but P. W. 4, Muhammad Ali who informed him stated that he had come to know of the trespass during the night. According to him, therefore, the appellant "could not have learnt about the trespass on the evening of 7-7-1963". The learned Additional Judge also remarked that the appellant did not in the petition of complaint mention the names of P. Ws. 2 and 3 and as such no reliance could be placed on the statements of Rehmat Ali (P. W. 2) and Muhammad Ishaq (P. W. 3) who were examined to prove the actual incident. Lastly it was found that the appellant in the petition of complaint stated that the disputed kotha stood on the land when the same was allotted to him. At the time of argument his case, however; was that the land was vacant when it was allotted to him. He later leased out the land to Allah Ditta who agreed to construct a kotha thereon. A kotha was constructed by Allah Ditta who surrendered it to him.
Leave to appeal was granted as it was found "that there are features in this case which would justify re-examination of this case".
The learned counsel for the appellant argued that there is hardly any inconsistency between the evidence of the appellant and P. W. 4 Muhammad Ali. It was then submitted that the other findings against the appellant are based on misreading of the evidence. We do not understand how the learned Judge found that there was contradiction between the case in the com plaint and the evidence of P. W. 4. The remark of the learned Additional Sessions Judge that the case of the appellant in the petition of complaint was that he got allotment of the land with the katha appears to be clearly based on a misreading of the deed of lease between the appellant and Allah Ditta. The names of the witnesses who were examined by the appellant were mentioned in the First Information Report and of course were not repeated in the petition of complaint. In these circumstances whether the evidence of these witnesses is liable to be rejected particularly when they were not subjected to any cross-examination worth the name is a question which needs serious consideration. In view, however, of the order that we propose to make in this case it is not desirable that we should express any opinion in this regard. Suffice it for us to say that the appeal was not properly disposed of by the learned Additional Sessions. Judge. The appellant filed a revision petition in the High Court of West Pakistan, Lahore, a learned Single Judge dismissed it in limine as he thought that there was "no miscarriage of justice in accepting the appeal of respondents by the appellate Court". We are unable to accept this conclusion.
In the result the appeal is allowed, the judgments of the High Court and of the Additional Sessions Judge are set aside and for doing complete justice between the parties the case is sent back for a re-hearing of the appeal preferred by respondents Nos. 1 to 4 and its disposal in accordance with law. On the prayer of counsel for the parties it is directed that the appeal be heard by the Sessions Judge, Lahore, who is also ex officio Sessions Judge, Sheikhupura.
Appeal accepted.
Case remanded.