' The Sessions Judge, Sialkot, tried Nasar Iqbal, Muhammad Shabbir, Inayat Ali, Muhammad Akram appellants and Muhammad Nawaz absconder on the charge of murder of Muhammad Riaz and attempted murder of Latif and Nazir P. Ws. By his judgment dated 28-3-1979, the learned trial Court convicted each of them under section 148, P. P. C. And sentenced to one year's rigorous imprisonment each, under section 307/149, P. P. C. (on two counts) i,e, for the attack on Nazir and Latif P. Ws. He convicted on each count each of them and sentenced to two years' rigorous imprisonment and to pay a fine of Rs, 500 each or in default to undergo one month's rigorous imprisonment on each count, and a compensation of Rs, 500 each in default whereof one month's further rigorous imprisonment has been directed on each count. For the murder of Muhammad Riaz he convicted all of them under section 302/149, P. P. C. And sentenced each of them to imprisonment for life, a fine of Rs, 1,000 in default whereof to undergo three months' rigorous imprisonment and a compensation of Rs, 1,000 each under section 544-A, Cr. P. C. To be paid to the legal heirs of the deceased or in default to undergo three months' further rigorous imprisonment each. The sentences have been ordered to run concurrently in each case.
' Nasar Iqbal and Inayat All have impugned the aforesaid judgment in Cr. A. No, 440 of 1979, Muhammad Shabbir and Muhammad Akrara have filed Cr. A. No, 553 of 1979 against their convictions and sentences, while Khan Muhammad, father of Muhammad Riaz deceased, has filed Cr. R. No, 323 of 1979 praying for the enhancement of the sentence of the appellants. This revision petition has been ordered to be heard along with Cr. A. No, 440 of 1979. This judgment disposes of all the three matters.
2. While going through the facts I tentatively formed the view that in case the appeals were not allowed the compensation for the murder of Muhammad R iaz would be inadequate and, therefore, I served notice for enhancement, of the amount of compensation on the two learned counsel appearing on behalf of the appellants who have accepted the same.
3. The occurrence took place in Thatha Lakhi at a distance of six miles from Police Station Sambrial, District Sialkot, on 26-6-1978 at about 6 p.m. The deceased was carried in an injured condition to Civil Hospital, Sialkot, and the Hospital authorities sent information about this fact to the police whereupon Sir Nawaz Malhi A. S. I. (P. W. 7) proceeded to the hospital and at 4-40 p.m. Recorded statement (Exh. P. J.) of Muhammad Riaz who was then alive. Formal F. I. R. (Exh. P./1) was recorded by Muhammad Umar A. S. I. (P. W. 13) at 8-15 p.m. On 27-6-1978. Needless to mention that the case was initially registered under sections 307/149, and 148, P. P. C. But on the expiry of Muhammad Riaz on 1-7-1978, the offence was amended to one under section 302, P. P. C.
4. Dr. Muhammad Aslam Bhatti (P. W. 4) at 2-30 a.m. On 27-6-1978 medically examined Muhammad Riaz and found the following injuries on his person :- "(1) Incised wound 2" x 1/2" x not probed on the outer posto-lateral side, left side of chest upper part.
(2) Incised wound 3" x 3/4" on the lateral outer left side of chest at lower part.
(3) Lacerated wound 1/2" x 1/8' X 1/8' on the right parietal region."
' The same doctor on 2-7-1978 at 10 a.m. Performed the post-mortem examination on the dead body of Muhammad Riaz and found the same injuries on ;t. In his opinion injuries Nos 1 and 2 were caused by a sharp-edged weapon and injury No, 3 by a blunt weapon. Injury No, 2 was grievous and dangerous to life, while injuries Nos, 1 and 4 were simple in - nature. Death in the opinion of the doctor was due to shock and haemorrhage resulting from injury No, 2 which was suffictent to cause death in the ordinary course of nature. Probable time between injuries and death was 4 to 5 days and between death and post-mortem examination it was about 14 hours.
' On the 27th June 1978, at 2-45 a.m. The same doctor medically examined Latif (P. W. 10) and found two incised wounds, one lacerated wound and and an abrasion all simple in nature within the duration of 6 to 10 hours. On the same day the doctor medically examined Nazir Ahmad (P. W. 9) and found five lacerated wounds and three contusions out of which injury No, 1 i,e, lacerated wound 3" x 1/3" bone deep in the middle of head was declared to be grievous and the rest were simple in nature.
5. Dr. Muhammad Nawaz Chaudhary (D. W. 1) on 27-6-1978 medically examined Fateh Din, son of Ghulam Haider i,e, father of Muhammad Nawaz absconder (aged 15) and found three contusions and three abrasions on his person all simple in nature caused by blunt weapon within 12 to 15 hours. (The original document shows his age as 65 years).
The same doctor on the same day medically examined Sanaullah, brother of Inayat Ali appellant, and found one lacerated wound 34" x 1/2' x bone deep on the front and middle of head which was declared grievous in nature within the duration of 12 to 15 hours.
' The same doctor also medically examined Razzak 'brother of Nasar Iqbal appellant and found two abrasioss and one incised wound on his person which were all simple in nature within the duration of 12 to 15 hours.
6. Nasar Iqbal and Inayat Ali appellants were arrested on 11-7-1978 and they produced lathi (Exh. P.
2) and hatchet (Exh. P. 3) which were taken into possession vide Memos. Exhs. P. L. And p.m., respectively. Since both these articles are not stained with blood, therefore, they do not advance the case of the prosecution materially.
' On 21-7-1978, Muhammad Shabbir and Muhammad Akram appellants were arrested and on the same day Muhammad Akram led to the recovery daggar (Exh. P. 4) and Muhammad Shabbir led to the recovery of dagger (Exh. P. 5) which were taken into possession vide Memos. Exhs. P. N. And P.
0., respectively. These two articles were also not stained with blood and, therefore, are of no legal value.
7. The conviction is based on the ocular account given by Nazir Ahmad (P. W. 9) and Muhammad Latif (P. W. 10) i,e, the two injured witnesses. Khan Muhammad and Mian Khan were given up as unnecessary.
8. The case of the prosecution, briefly stated, is that a day preceding the incident Amjad, a nephew of Muhammad Riaz deceased, had an altercation with the children of Ghulam Rasul, father of Nasar Iqbal appellant, and they themselves abandoned the quarrel.
' On the day of occurrence, i,e, 26-6-1978, at about 6 p.m. When the deceased was on his way back home from his well, he found Muhammad Shabbir and Muhammad Akram appellants armed with daggers, Nasar Iqbal appellant and Muhammad Nawaz (absconder) armed with lathies and Inayat Ali appellant armed with a hatchet. (There is some confusion in the F. I. R. Regarding the attributation of hatchet or a stick to Inayat while lying ambush). When the deceased reached near them, Muhammad Akram opened the attack with dagger blow landing in the flank of Muhammad Riaz deceased, and then Muhammad Shabbir gave another dagger blow in the flank of the deceased. Nasar Iqbal appellant gave a lathi blow on the, head of the deceased. On the alarm raised by the deceased, Nazir Ahmad and Muhammad Latif P. Ws. Who were following the deceased from the well, reached the spot. Inayat Ali, Nasar Iqbal appellants and Muhammad Nawaz absconder gave them injuries with their respective weapons.
9. It is significant to note that the F. I. R. Does not make any mention regarding the injuries of Fateh Din, Sanaullah and Razzak (close relations of the appellants) and at the trial the case for the prosecution is that these three persons were not injured in the incident.
10. All the accused have denied their participation in the incident. Muhammad Shabbir appellant has given out the below quoted version in defence :- "I am innocent and have been falsely implicated in this case. As a matter of fact, Riaz deceased, Nazir and Latif P. Ws. Accompanied by four others had launched attack on Muhammad Razzak, Sanaullah and Fateh Ali and they with the help of others caused injuries to Riaz, Nazir and Latif in self-defence. Riaz deceased and Latif P. W. Suffered knife injuries at the hands of Razzak and the lathi blows were given to the deceased and these witnesses by Fateh Ali and some others in the fight."
' Similarly, Nasar Iqbal appellant has stated as under :- "I am innocent. On the day of occurrence, I was not in the village. I was in Dhodhke, Dstrict D. G.
Khan where I was posted as a Sepoy in the Army: I learnt about the fight in the village in which Riaz was killed, Latif and Nazi; P. Ws. Received injuries and in which my brother Muhammad Razzak, Sanaullah, the brother of Inayat accused, and Fatah Ali, father of Muhammad Nawaz absconder had received injuries. I could only get leave from my Unit on 10-7-1978, came to my village on 11-7- 1978 and was arrested, and falsely implicated ill this case at the instance of the complainant party.
11. In view of the statement of the accused the issues in dispute are very much narrowed down. 1 am quite clear in my mind that the F. I. R. (Exh. P. J/1) has been drawn after deliberations and ante- dated and ante-timed. Sir Nawaz Malhi A. S. I. (P. W. 7) is a party to this forgery and fraud.
Examination of the original document (Exh. P. J.) reveals that originally under his signatures he wrote down the date as 28-6-1978 and then interpolated it so as to read as 27-6-1978. I can conveniently oveIook it as being a slip of pen or mistake, but there are other circumstances which cannot be overlooked. After the `karwari' he clearly gives the date 27-6-1978 and the. Time as '4-40 In the formal F. I. R. (Exh. P. J./1) the time of its registration is given as '8-15 {{URDU TEXT}} and date as 27-6-1978, whereas according to his statement in Court Sir Nawaz Malhi (P. W. 7) stated :- "On 27-6-1978, while posted as A. S. I. In Police Post Rangpura, I received telephonic message from Dispenser of Allma Iqbal Memorial Hospital, Sialkot, at about evening time i,e, 4 p.m. To the effect that Muhammad Bashir had been admitted in the Hospital in injured condition. I went to the hospital. From the hospital, 1 came to know that Muhammad Riaz (deceased) of Sambrial had also been admitted in the hospital in injured condition."
(The underlining* is mine).
' I had the impression that 4 p.m. Was written by a slip of pen, therefore, I verified it from the Urdu record wherein it is clearly stated : {{URDU TEXT}} (The underlining is mine)
' This position is untenable. The occurrence took place at 6 p.m. On 26-6-1978. The injured was medically examined in the hospital at Sialkot at 2-30 a.m. i,e, on the night between the 26th and 27th of June, 1978. If his case was that he recorded the F. I. R. At 4-40 a.m. Whereupon the formal F. I.
R. Was registered at 8-15 a.m. On 27-6-1978, it could be reconciled, but he sticks to the position that he received information telephonically from the dispenser regarding one Muhammad Bashir injured at 4 p.m. i,e, in the evening time which is not reconcilable.
' The learned counsel for the appellants have argued that he is hopelessly committed to the latter position, because he proceeded to the hospital after recording a report in the daily diary of Police Post, Rangpura which would be a distance of about two furlongs from the Allama Iqbal Memorial Hospital, Sialkot, and while judging the conduct of Sir Nawaz Malhi A. S.
1. We have also to bear in mind that he was not the relevant Police Officer. The occurrence took place within the jurisdiction of Police Station Sambrial and not Police Post, Rangpura to which Sir Nawaz Malhi A. S. I. (P. W. 7) belonged. There is direct telephone link between Sialkot and Sambrial, I am, therefore, of the view that there is lot of force in the argument of the defence that the entire proceedings were manoeuvred under the influence of Sir Nawaz Malhi A. S. I. (P. W. 7) to the prejudice of the accused side and for setting up a concocted version eliminating and suppressing all the relevant facts and circumstances which may tend to go in favour of the defence and in this regard particular significance has been attached to the suppression of injuries found on the person of Fateh Ali, Sanaullah and Razzak (close relatives of accused). Sanaullah had an injury on the head which on X-ray revealed a fracture of the vault of the skull, and, therefore, prima facie, this injury could not be self-suffered and the prosecution was accordingly faced with the difficulty of explaining this injury. Therefore, under police or legal advice it was thought expedient to completely omit to mention from the version the names of the persons injured on accused side. The matter may be brought to the notice of the Inspector-General of Police, Punjab, not only for departmental action, but for the trial of Sir Nawaz Malhi A. S. I. (P. W. 7) for all the offences which he has apparently committed.
12. Specific plea has been raised by the defence that the complainant side was the aggressor and they caused injuries to Fateh Ali, Sanaullah and Razzak. Their injuries have been proved by Dr. Muhammad Nawaz Chaudhary (D. W. 1). Out of these, an injury on the person of Sanaullah was on the head with the fracture of skull underneath and, therefore, the same cannot be self-suffered or suffered by a friendly hand. The duration of injuries coincides with the time of the incident and, therefore, the defence version that the above mentioned three persons were injured in the same incident cannot be easily ruled out, and in this context it is taken note of the fact that Muhammad Nazir Sub-Inspector (P. W. 12) admitted : "It is correct that the investigation of this case was also made by Qazi Ghulam Rabbani D. S. P. And Sanaullah D. S. P. It is also correct that on 23-7-1978 Fateh Ali and Abdul Razzak etc. Made application which is on the record of the police file and along with that application affidavits of about 12 eye-witnesses were also submitted. This application was to the effect that case under sections 148, 307, 325 and 149, P. P. C. Against Nazir, Latif P. Ws. And others should be registered. On 5-7-1978, an application containing the same facts was made by Sanaullah son of Alif Din to a S. P.
Ghulam Rabbani and that application was marked to me. This application is also on the police file.
It is also correct that another application to the same effect was made by Sana Ullah son of Alif Din to Ch. Muhammad Ramzan D. I. G. And this application was also marked to me. It is also on the 'police file. It is also correct that medico-legal reports of Fateh Din, Sanaullah and Abdul Razzak were produced before me. Those medico legal reports are not on the file I do not remember whether the said ladies excluded the presence of any. Male witness or not. The said ladies did not appear before me. I have consulted the police diary. It is correct that Khushi Muhammad, Sultan son of Karam Dad, Sanaullah son of Alif Din and Ashraf son of Khushi Muhammad appeared before me and their statements were recorded by me. These persons were not the eye-witnesses. They appeared as defence witnesses. Riaz son of Rasul Bakhsh appeared before me as defence witness."
' That being the position, the prosecution has completely suppressed these injuries not only in the F.
I. R. But even at the . Trial as when the defence version was put to them in cross-examination, they disowned the same and thereby refused to offer any explanation.
' I am satisfied that Fateh Ali, Sanaullah, and Razzak suffered injuries in the same incident and the injuries have been suppressed by the prosecution, therefore, the ocular version as stated by Nazir Ahmad (P. W. 9) and Muhammad Latif (P. W. 10) cannot be accepted as the whole truth merely on the ground that they are injured. Their being injured, only establishes the fact that they were present at the time of the occurrence, but not that they are disclosing the entire truth and not suppressing the facts and circumstances which lend support to the defence version. Both of them are closely related to the deceased and also inter-related. Muhammad Riaz deceased is a son of a cousin of Nazir Ahmad (P. W. 9) and Muhammad Latif (P. W. 10) is his maternal cousin. Similarly, Muhammad Riaz deceased was maternal cousin of Muhammad Latif P. W., therefore, it is quite natural on their part to advance the case for the prosecution by suppressing their own role or that of the deceased.
13. The counter version or the evidence that was led during the course of investigation has not been brought on record of the trial Court. Verdict in the case is the function and duty of the Court and it would be founded on the basis of the evidence at the trial and the record 8 prepared thereon and not on the basis of the evidence led during the course of investigation as the police is merely an investigating agency and not a Judge in the cause. The accused made application for examining Fateh Ali, Sanaullah and Razzak as Court witnessses, but the learned trial Court declined the same with an observation that the accused could produce them in defence if they so liked. The learned counsel for the complainant as well as the learned counsel for the State have supported this order on the reasoning that it was within the discretion of the learned trial Court to exercise its jurisdiction and that if the appellants were genuinely interested, they could have led that evidence and, therefore, no credit should accrue to the appellants on this score.
' I have dealt with both the propositions in Mahboob Khan's case (1). Significant case-law has been taken note of and the relevant portion from the case which answers the argument of the learned counsel is quoted below :- "Vesting of discretion in a Court does not imply arbitrary exercise of. Powers. Discretion has to be exercised in accordance with the settled principles of law for promoting the ends of justice and necessarily connotes as act of a judicial character requiring a fair and just exercise of judgment after a careful and proper consideration of the attendant and relevant facts and circumstances.
(Underlining* is mine)."
' And then on the question of recording of Court witnesses the relevant portion from the summing up is as follows: "At the same time, however, the role . Of the Court is not limited to the examination of only such witnesses that a party chooses to produce, for it will be indicative of an unavoidable implication that only such evidence can be received at the trial which goes in favour of the party leading it.
Administration of justice is the ultimate responsibility of the Court and it has to deliver the same in an even-handed manner. Examination as a Court witness of a person cited as an eye-witness by the prosecution and abandoned by it often affords a fair and equitable chance to both the parties to cross-examine the witness after he has been examined-in-chief by by the Court and no side is prejudiced in such a situation. However, if a witness for the prosecution is summoned in defence and he chooses to support the case for the prosecution, the defence is certainly prejudiced whether it is allowed to cross-examine him, or such cross-examination is declined."
' Since the appellants have not led any defence evidence or any substantive evidence in support of their version, it is not possible to assume as to what would have been the version of Fateh Ali, Sanaullah and Razzak if the learned trial . Court had chosen to record their evidence and, therefore, it is not possible to record any finding of fact on the basis of any assumption favourable to the appellants. Nevertheless, on the record, as it stands, and has been referred to earlier, I am clear in my mind that the prosecution witnesses have not stated the whole truth and it does not appear to be a one-sided affair or a case of waylaying as the prosecution desires me to believe. In principle I have no cavil with the proposition of law that an accused is entitled, a matter of right and not by way of discretion or grace of the Court, to the benefit of any doubt genuinely arising in a case and the learned counsel for the appellants in support of the above proposition has relied upon the below quoted portion from one of my own reported case of Barkat v. The State (2) :- "In a criminal case whenever the prosecution version suffers from such general doubts as to make the reliability of the version doubtful, benefit of this doubt has to be extended to the accused. The extension of this benefit of doubt is given to the accused as a matter
(1) PLD 1979 Lab. 691 (2) 1979 P Cr. L J 823 [Here in italics) #TBS *Mere in italics) #TBE of right and is not an act of grace on the part of criminal Courts. In contradistinction to civil cases where the comparative preponderance of the weight of evidence led by the parties is a material and deciding factor, in criminal cases the burden of proof is always on the prosecution and it has to discharge its onus effectively and beyond all reasonable doubt and has to prove its case in a manner that leaves absolutely no doubt in the mind of the Court about the guilt of the accused. The prosecution has to prove its case in a manner so as to exclude every possibility of the innocence of the accused. Whenever the prosecution evidence falls short of this standard, it is a case in which benefit of doubt has to be extended to the accused. This is a view that has been consistently followed by superior Courts in Indo-Pakistan Sub-Cantinent and though it originated as a rule of prudence, it has now developed into a rule of law." (The underlining* is mine).
' Bearing the above principle in mind, I would extend to the accused as a matter of right the benefit of doubt to the extent it genuinely arises, that is to say that it was not a one-sided affair; three persons on the accused side have also received injuries which were, barring one injury, simple in nature and this fact would indicate that the complainant party was not armed with any formidable weapon and that the accused were not attacked in any pre-planned or pre-determined manner ; therefore, it appears that in all probability the parties happened to come across each other by a chance, and probably each side made grievance or complaint to the other accusing them to have acted in a high-handed manner and this developed into an argument leading to the exchange of blows etc. And the resultant injuries to the complainant party as well as to Fateh Ali, father of Muhammad Nawaz absconder, Sanaullah brother of Inayat Ali appellant and Razzak brother of Nasar Iqbal appellant.
' In the circumstances, each would be responsible for his own act and conviction under section 302, P. P. C. Or that under section 148, P. P. C. Or the application of, the principle of constructive responsibility would not be attracted to the facts and circumstances of this case and, therefore, these convictions are set aside and the same altered as follows :-
(1) Muhammad Shabbir and Muhammad Akram appellants who were armed with formidable weapons like dagger inflicted a blow each in the left flank and the chest of the deceased, therefore, each one of them is convicted under section 304, Part I, P. P. C. And sentenced to ten years rigorous imprisonment each taking into consideration under section 382-B, Cr. P. C. The period of their detention during the trial. They are also directed under section 544-A, Cr. P. C. To pay a compensation of Rs, 10,000 each to the heirs of the deceased and I am not satisfied with the arguments of the learned counsel for the appellants for not enhancing the compensation. As mentioned earlier, I served them with a notice for enhancement of compensation which they accepted.
(ii) Nasar Iqbal appellant is attributed a stick blow on the head of Muhammad Riaz deceased resulting in an insignificat injury of the dimension of 1/8" x 1/8" x 1/4". This injury could also be by a fall etc. In the scuffle. I would give him the benefit of doubt and record an acquittal qua the injury to the deceased as attributed by the prosecution. At the trial an injury with a stick to Nazir Ahmad (P.
W. 9) on the head is also attributed to Nasar Iqbal appellant. Stick is not a formidable weapon.
Nevertheless, the injury has been inflicted on the head and Nazir Ahmad P. W. Has five injuries on his head and in respect of this injury to Nazir Ahmad P. W. Nasar Iqbal is convicted under section 308, P. P. C. And he is sentenced to the period already undergone by him, In addition to that he will pay a compensation of Rs, 5,000 to Nazir Ahmad (P. W. 9) and I am not persuaded by the argument of the learned counsel for the appellants for not enhancing the amount of compensation.
(iii) Inayat Ali appellant is alleged to have given from blunt side of his hatchet a blow each to Nazir Ahmad (P. W. 9) and Muhammad Latif (P. W. 10), while in the F. I. R. In the earlier part he is attributed a hatchet blow and in the latter part a stick blow. I am quite clear in my mind that the latter seems to be a slip of pen. The role attributed to Inayat Ali is corroborated by the medical evidence. The injuries found on the person of Nazir Ahmad and Muhammad Latif P. Ws. Are with blunt weapon and simple in nature, therefore, Inayat Ali appellant is convicted under section 308, P. P. C. On two counts i,e, for causing injuries to Nazir Ahmad and Muhammad Latif P. Ws. And on each count he is sentenced to the imprisonment already undergone by him. He is directed to pay a compensation of Rs, 1,500 each to Nazir Ahmad (P. W. 9) and Muhammad Latif (P. W. 10) i,e, on each count."
' No imprisonment in default of payment of the compensation is being awarded to each of the appellants for the reason that as held by a Division Bench of this Court in Amanat Ali v. The State (1) they have no alternative but to pay the compensation.
' The convictions and sentences of all the four appellants under sections 148, 307/149 and 302/149, P. P. C. Are set aside.
14. Cr. A. Nos, 440 of 1979 and 553 of 1979 are disposed of in the above terms.