' SARDAR MUHAMMAD ASLAM, J.---This judgment shall dispose of Criminal Appeal No,1282 of 2000 tiled by the appellant Nasir Abbas, Criminal Revision No,875 of 2000 filed by Khadim Hussain, complainant and Murder Reference No,523 of 2000 submitted by the learned trial Court for confirmation of .Sentence of death.
2. The appellant Nasir Abbas has challenged his conviction and sentence recorded by the learned Additional Sessions Judge, Jhang, whereby he convicted the appellant under section 302(b), P.P.C.
And sentenced to death. The appellant was also directed to pay compensation to the legal heirs of the deceased as required under section 544-A, Cr.P.C. Vide his judgment dated 21-8-2000 in case F.I.R. No,119 dated 7-3-1998 under sections 302/34/109, P.P.C. Registered with Police Station, Bhowana District Jhang. The complainant-petitioner also filed revision petition to enhance the sentence of Zahid Iqbal and Farhat Abbas.
3. Briefly the facts giving rise to this incident as narrated in F.I.R.Lodged by Khadim Hussain, complainant, father of the deceased Ghulam Haider are that on 7-3-1998 at 9-00 a.m. Ghulam Haider deceased proceeded from his house to his fields and reached near the Dhari of Zahid Iqbal, when Zahid Iqbal armed with .8 MM rifle, Farhat Abbas armed with .12 bore gun and Nasir Abbas, the appellant armed with .8 MM Rifle Allah Ditta armed with Sota emerged out hurling abuses and shouting lalkara. The complainant along with Imtiaz Hussain, Aftab Hussain and Zulfiqar Ali were proceeding towards the said direction at a little distance behind Ghulam Haider. The complainant rushed towards that side in order to stop Farhat Abbas and others from causing abuses. Nasir Abbas, appellant fired with .8 MM rifle straight at his son, Ghulam Haider, which landed at the chest.
He fell down. His co-accused fired shot straight on them. He and his companion saved their lives by lying down on the ground. They then attended Ghulam Haider and found that he had expired.
4. The motive for the occurrence was that a day before the occurrence Imtiaz Hussain P.W.5 and Farhat Abbas had a quarrel at Adda Khewa and in order to take revenge, Farhat Abbas and others with their common intention killed Ghulam Haider. The occurrence is stated to have taken place at the behest and abetment of one Taj, who had provided his rifle to the appellant for causing murder of Ghulam Haider.
5. The case was investigated by the investigating agency. Challan was submitted. The trial commenced. The prosecution examined 13 witnesses in all. The appellant was examined under section 342, Cr.P.C. He denied his guilt and pleaded right of self-defence in answer to question No,10 which is re-produced below:-- "I was involved by the complainant party due to relationship with the accused. As a matter of fact, Farhat Abbas co-accused was given beating by Imtiaz P.W. At Adda Khewa a day prior to the instant occurrence when he was all-alone. At the same time, Farhat Abbas accused in retaliation gave beating to Imtiaz P.W. The complainant party felt annoyance, became aggressive and threw threats, in the evening preceding the day of occurrence. For that reason father of Farhat Abbas had gone to the S.P., Jhang in the morning to lodge the report. On the day of occurrence the complainant party while variously armed launched an attack at the Mari of Zahid Iqbal, my co- accused. Allah Ditta son of Sultan deceased came forward to forbid them, whereupon he has attacked by the complainant party, he was mercilessly beaten and killed. In the process Zahid Iqbal my co-accused who was all alone present at his Dhari, while empty-handed started running.
At the same moment, Imtiaz P.W. Who was armed with a rifle fired at him, which hit Ghulam Haider deceased, per chance, who died at the spot. The case against the complainant party for the murder of Allah Ditta was registered at Police Station Mochiwala, vide F.I.R. No,59 of 1998 dated 7-3- 1998. The complainant party in connivance with Muhammad Ashiq Inspector, S.H.O. Collusively and dishonestly got the instant case registered against me and other accused, late in the night, though the occurrence about the murder of Allah Ditta and Ghulam Haider took place at the same place and time, but the complainant party fabricated this case, to save their skin from the murder of Ghulam Haider deceased, by themselves, as well as to involve us in a false case to wreak personal vengeance. The Inspector/S.H.O. Was immediately transferred from police station by the next day of the registration of this case. The police party did not challan complainant party in this case due to influence of the complainant. Anyhow, during investigation it was proved that complainant party was aggressor. The P.Ws. Neither own or cultivate any land near the Dhari of Zahid Iqbal my co- accused and they had no reason to be there except to launch the attack."
6. Irshad Hussain, Patwari appeared as D.W.1, who brought on record copy of the Revenue Record comprising of Exh.D.C. To Exh.D.J. The appellant did not opt to record his statement under section 340(2), Cr.P.C.
7. The ocular account was furnished by Khadiin Hussain P.W.4 and Imtiaz Hussain P.W.S. P.W.12 Dr. Saifullah Haral conducted the post-mortem examination. He found the following injuries on the person of Ghulam Haider, deceased:-- 1) A lacerated oval wound of entry 1 x 1 c.m., blackened, inverted margin on front of left middle chest close to nipple and wound of exit 2 and half x 2 and half c.m. (R.I.) outer upper chest.
' According to him the fire shot was caused from the distance of 2/3 feet.
8. The learned counsel for the appellant raised the following contentions:--
(i) That the F.I.R. Was lodged with the delay finding no plausible explanation from the record;
(ii) That the complainant side were aggressor, who launched the attack and killed Allah Ditta, the first cousin of the appellant, by causing 23 multiple injuries on his person with Sota. The appellant acted in exercise of right of private defence to save the life of Allah Ditta and did not repeat the fire.
(iii) The learned trial Court relied on extraneous material, which was not part of the record of the case. Requisitioning file of murder case of Allah Ditta, its examination and drawing conclusion therefrom seriously prejudiced the appellant.
9. The learned counsel for the State assisted by learned counsel for the complainant opposed the contentions raised by the appellant's learned counsel and argued that the F.I.R. Was lodged promptly which exclude chance of fabrication; that the eye-witness account furnished by Khadim Hussain P.W.4 and Imtiaz Hussain P.W.5 is consistent, cogent,, reliable and trustworthy, which was not shaken in the cross-examination. He also argued that the learned trial Court has though convicted respondents Nos.2 and 3 (in Criminal Revision No,875 of 2000) under section 324, P.P.C.
And sentenced but acquitted them from the charge of murder of Ghulam Haider, deceased for reasons not sustainable in law.
10. We have considered the submissions of the learned counsel for the parties and perused the record.
11. Two persons lost their lives in this occurrence one each on complainant and accused's side. As conceded by P.W.5 Imtiaz Hussain, an eye-witness of the occurrence, Allah Ditta, a relation of the appellant was murdered on the same day at the same time in the same occurrence which resulted in death of Ghulam Haider deceased. The distance between the two dead bodies was 15/16 Karams. We are surprised to note that the occurrence having taken place at the same time, how separate F.I.Rs, were registered and investigated. If the dead bodies were found at the border of two police stations one each side, the jurisdiction was to be determined with reference to place where initial occurrence commenced. Even if the complainant launched an assault on Allah Ditta in retaliation whose dead body was found at the border of the Police Station Bahwana or in the limits of Police Station, Mochiwala, it was bounden duty of the Investigating Officer to record this fact in case diary and solicited an opinion from the Legal Branch for investigation by one officer of the police station to avoid conflict of opinion.
12. The complainant in this case concealed the factum of death of Allah Ditta from the Investigating Officer. Investigation as to how Allah Ditta was done to death is not ascertainable as neither the copy of F.I.R. Nor post-mortem report of Allah Ditta deceased was taken into possession by the Investigating Officer or the same was produced by the appellant in his defence. Both the parties failed to bring this important piece of evidence on record. The Investigating Officer is guilty of conducting investigation in a relaxed manner without realizing the gravity of offence. Had he been careful he would have collected evidence as to which side committed aggression or it was case of free-fight.
13. Presence of Allah Ditta deceased from the appellant's side and Ghulam Haider deceased on complainant's side along with the complainant and P.W.5 is admitted by the parties. What was the occasion for the complainant to be present at the place of occurrence as they did not own any land in the vicinity and their claim of proceedings towards their fields is falsified. Who initiated fight and how the occurrence took place is a pivotal question requiring its ascertainment from the record.
14. P.W.5 Imtiaz Hussain admitted in his cross-examination that " Allah Ditta was murdered subsequently by him and Aftab, eye-witness in retaliation to the murder of Ghulam Haider. He also admitted it correct that Allah Ditta was killed near the Dhari of Zahid Iqbal on its rear side. He stated that the dead body of Ghulam Haider was lying at a distance of 10/15 Karams from that of Allah Ditta. P.W.9 Sadiq, father of P.W.5 stated, that it may be correct that his son Imtiaz joined the complainant to kill Allah Ditta.
15. Firstly Muhammad Ashiq Inspector, P.W.11, conducted investigation. He stated that the murder of Allah Ditta came to his knowledge of his own on inspection of the spot. Complainant and eyewitnesses concealed this fact. Allah Ditta deceased was one of the assailants named in the F.I.R.
In spite of acquisition of knowledge of his murder, he did not mention this fact in the record till transfer of investigation from him. He also stated that on account of his transfer he had no time left to properly investigate the case. Investigation was then taken up by P.W.10, Muhammad Younis, S.- I., who found Allah Ditta was murdered on the same day. He also secured the copy of F.I.R. No,59 of 1998 of Police Station Mouchiwala. In his opinion the complainant side was aggressor. However, complainant side earned acquittal in case No,59 of 1998 by way of compromise with legal heirs of deceased of Allah Ditta.
16. We are purposely avoiding to dilate deeply on the evidence as we intend to remit the case back to the learned trial Court. The learned trial Court observed in Para-22 of its judgment, "To satisfy myself, I have summoned the file of Case No,59 registered on 7-3-1998 by Police Station, Mochiwala over the killing of Allah Ditta. The post-mortem report confirms that Allah Ditta deceased received 23 injuries, but all these injuries were reported by the Doctor as having been caused by blunt weapon. Sometime is required to inflict so many injuries on Allah Ditta. The question arises as to why the accused side did not take the cudgels to shield Allah Ditta despite their presence and why the P.Ws. Who had allegedly gone for attack, remained unable to exterminate Allah Ditta by any fire-arm."
17. The above portion of judgment indicates that the learned trial Court relied on post-mortem report and opinion of the Doctor, which was not part of the record. If such evidence was essential, he was empowered under section 540, Cr.P.C. To summon the record and examine the author of these documents, as Court witness. The material relied upon was not put to the accused in statement under section 342, Cr.P.C. It has caused serious prejudice to the accused. The reliance of the afore-mentioned documentary evidence and drawing conclusion therefrom is, thus, not sustainable in law. One way is to exclude this evidence and decide the appeal on remaining evidence and the other is remit back the case so that this evidence be brought on record. We are of the view that for substantial justice remand of case will meet the ends of justice and the learned trial Court be asked to summon the record of the other case and examine the witnesses as Court witnesses.
18. For what has been discussed above, we allow this appeal, set aside the conviction recorded by the learned trial Court and remit the case back to the learned trial Court to requisition the record of the case F.I.R. No,59 of 1998 registered at Police Station Mochiwala relating to murder of Allah Ditta deceased and examine the witnesses mentioned in the calendar as Court witnesses and decide the case afresh preferably within a period of four months from the date of receipt of judgment. The appellant will be treated as under-trial prisoner.
19. As far Criminal Revision is concerned, the respondent therein did not, challenge their conviction and might have undergone their substantive sentence by now. They are alleged to have caused ineffective firing. Sufficient incriminating material as to their guilt of sharing common intention is not available on record. We are thus not inclined to issue notice to the respondents and direct dismissal of this Criminal Revision in limine.
Murder Reference is answered in negative.