Aziz Ahmad, Khalid Shahid and Abdul Majad appellants were convicted by the learned Additional Sessions Judge, Lahore, on 17th July, under section 304-I, P. P. C. And each of them sentenced to undergo rigorous imprisonment for six years and a fine of Rs. 1,000 each or in default in payment of fine to undergo rigorous imprisonment for one year Aziz Ahmad filed separate criminal appeal bearing No. 626 of 1977 which Abdul Majad and Khalid Shahid filed Criminal Appeal No. 734 of 1977.
Mst. Dilshad Akhtar filed Revision Petition bearing No. 667 of 1977. In the original petition, a prayer had been made that the judgment of the learned Additional Sessions Judge be set aside and the respondents be convicted under section 302/34, P. P. C. And sentenced to death but in the amended petition dated 13th February. 1971;, a prayer had been made that the case may be remanded for fresh trial or in the alternative, maximum sentence provided under section 304-I, P. P.
C. Be awarded -to the respondents. The two appear and the criminal revision which arise out of the same judgment, are being disposed of together.
2. Four or five months before the present occurrence, Abdul Majad appellant, his brother Khalid Shahid appellant and their co-accused Aziz Ahmad caused injuries to Mohammad Iqbal, a brother-in-law of Adeeb Asghar deceased. A case under section 308, P. P. C. Was regis--tered at Police Post, Krishan Nagar, on the statement of Mohammad Iqbal. The challan was submitted in Court which was still pending. Adeeb Asghar used to pursue the case on behalf of the complainant.
The three appellants bore grudge against the deceased on that account.
3. On 26th May, 1975, Ata Hussain (P. W. 6) invited Adeeb Asghar deceased, Abdul Waris and Qazi Ehsan-ud-Din P. Ws. To dinner, The deceased and the said two witnesses remained with Ata Hussain P. W. Till midnight. After attending the dinner, the deceased and the two witnesses namely, Abdul Waris and Qazi Ehsan-ud-Din left for their houses at mid--night. When they reached near the shop of Babu Barber, they noticed Abdul Majad, Khalid and Aziz appellants standing near the electric pole. The three accused stopped the deceased and the witnesses. Khalid shouted to the deceased that he would teach him lesson for pursuing the case of his brother-in-law Mohammad Iqbal" The three accused took out their knives. Abdul Majad accused inflicted one knife blow on the abdomen of the deceased. Thereafter, Abdul Majad and Khalid Shahid accused inflicted more knife blows to the deceased on the front side of the body. The deceased received injuries on his arm when be tried to ward of the blows. Aziz Ahmad inflicted knife blows to the deceased on the buttocks while standing towards his back. Waris P. W. Hurled a brick-bat in order to save the deceased and it struck on the head of Abdul Majad accused. When Abdul Waris wanted to hurl a second brick-bat, the three accused left the spot saying that they bad finished the deceased.
Adeeb Asghar was put in a taxi-car by Abdul Waris and Qazi Ehsan-ud-Din and taken to Mayo Hospital. The deceased was thereafter taken to the operation theatre as he was in a serious condition.
4. Bashir Ahmad, A. S. I. (P. W. 18) reached Mayo Hospital on coming to know of the occurrence.
Adeeb Asghar was in the operation theatre then. Abdul Waris P. W. Was present there. The A. S. I.
Record--ed his statement Exh. P. B., at 1-30 a.m. On 27th May, 1975. This statement was sent at the police station and the formal F. I. R. Exh. P. B./1 was recorded. Originally, the case was registered under section 307, P. P. C. The A. S. I. Inquired from the doctor vide ruqa Exh. P. W. 14/A dated 27th May, 1975, if Adeeb Asghar was fit to make statement. The doctor gave the reply-in the negative.
Inquiry was made about the condition of the deceased on 29th May, 1975 but the same was the reply. The deceased expired on 30th May, 1975. The offence was changed to sec--tion 302/34, P. P.
C. Abdul Waris P. W. Produced his blood-stained dhoti and blood-stained shirt, which were taken into possession. The Police took into possession blood-stained trousers of the deceased. On 31st May, 1975, Abdul Majad accused while in Police custody, made statement that he could lead to the recovery of knife, the weapon of offence from his house. Consequently, he led the Police to his house and produced blood--stained knife from underneath the sofa which was sealed into a parcel. Aziz Ahmad accused was not traceable but then he was arrested. Khalid Shahid accused had absconded. Proceedings under section 87/88, Cr. P. C. Were taken against him and he was declared proclaimed offender. The Magistrate recorded the statement of Mohammad Waris Constable on 2nd August, 1 975 who deposed that he had been deputed for the arrest of Khalid accused, but the said accused was not traceable and had intention--ally absconded.
Subsequently, this accused also appeared and faced the trial.
4. The prosecution examined 22 witnesses. The prosecution was unable to produce Abdul Waris complainant because his whereabouts were not known.
5. Doctor Tahir Anees (P. W. 10) conducted post-mortem examina--tion on the dead body of Adeeb Asghar on 31st May, 1975. He found the following injuries on his person:-
(1) Stitched wound sharp-edged right para-umbilical region 2--" from umbilicus at 9 O'clock pintex, oblique.
(2) Stitched incised wound 3--" long; back right mid-forearm.
(3) Stitched incised wound 1--" long, back of right upper fore--arm,
(4) Stitched wound --" long inner upper right fore-arm.
(5) Stitched wound 1--" long on the upper right thigh.
(6) Stitched wound 1--' long, back left supper fore-arm.
(7) Stitched wound 1----- long left outer buttock.
(8) Stitched wound 1" long left upper buttock.
(9) Stitched right paramediam wound 5--" long.
(10) Stitched wound 1" long left inner ankle.
Injuries Nos. 1 and 10 were the surgical incisions. Injuries Nos. 1 to 8 were ante-mortem and caused by sharp-edged weapon. The probable cause of death was cardio-respiratory failure due to post- -traumatic and post-operative complications.
6. Doctor Saeed Anwar bad medically examined Abdul Majad accused on 27May, 1975. He found four injuries on the person of the said accused. Injuries Nos. 1, 2 and 4 were the result of blunt weapon while Injury No. 3 was the result of sharp-edged weapon. X-ray of the skull was recommended but there is no X-ray report on the file. Ashfaq Ahmad, Inquiry Clerk, Mayo Hospital, Lahore was produced as P. W, 17 to identify the handwriting and signatures of Doctor Saeed Anwar on medico-legal report Exh. P. W. 17/A, which was in respect of Abdul Majad accused.
7. Ata Hussain (P. W. 7) corroborated the prosecution version by stating that he had invited Adeeb Asghar deceased, Abdul Waris and Qazi Ehsan-ud-Din P. Ws. To dinner on 26th May, 1975 and they came to his house at 9-00 p.m. And remained there till mid-night.
Qazi Ehsan-ud-Din was examined as the only eye-witness in this case. He fully supported the prosecution case. According to him, the three accused who were armed with knives waylaid the deceased at the crossing situated at a distance of 100 feet from the house of Ata Hussain and inflicted knife blows to the deceased. The witness further stated that after the occurrence, he along with Waris took Adeeb Asghar to Mayo Hospital in an injured condition in a taxi-car. He attested memo. Exh. P. C. In respect of the blood-stained clothes of Waris P. W. This wit--ness was cross- examined at length. He is not related to the deceased. He was not on inimical terms with the appellants. He was a disinterested witness. He neither materially contradicted his earlier statement nor made any improvements. His statement was consistent throughout. No point favourable to the accused was available from the statement of this witness in spite of the fact that the cross- examination of the witness extended beyond seven pages. The statement of the witness is fully corroborated by the medical evidence. Nazir Hussain, S. H. O. (P. W. 21) had prepared the recovery memo. Exh. P. E., which was attested by Imdad Hussain (P. W. 8) and Bashir (not produced). Imdad Hussain (P. W. 8) fully corroborated the recovery of knife from the possession of Abdul Majad appellant.
Aziz Ahmad and Khalid Shahid appellants absconded after the occurrence. Khalid Shahid was declared proclaimed offender. Both these accused had absconded and the fact of their absconsion can be taken to be a corroboration against them.
8. Abdul Majad appellant in his statement, recorded under sec--tion 342, Cr. P. C., denied the prosecution allegations. When asked that during the occurrence, Waris picked up the brick and hurled on his head, Abdul Majad accused gave the following answer:- "The allegation is incorrect. In fact Iqbal P. W. And Waris given up P. W. Had assaulted me in Veshno Gali and caused me injuries by blunt weapon as well as sharp-edged weapon. I went to Police Station, Old Anarkali to get a case registered against them and appeared before Nazir Hussain Inspector P. W. I narrated him the occurrence. He refused to get the case registered due to ulterior motive on account of influence of Waris P. W. The notorious bad character of Krishan Nagar. Later on the case was registered against Waris etc. On the direction of S. P., City when Muhammad Riaz S. H. O., P. S. Gowalmandi was directed by the S. P., City to visit the spot and get the case registered after recording the state--ment of the complainant. The case was thereafter registered as case F. I.
R. No. 436 dated 28May, 1975 under section 307/148/ 149, P. P. C. At P. S. Old Anarkali against Waris etc."
He did not admit the recovery of blood-stained knife. According to him, he was not the owner of the lace of recovery. He further explained that the knife was produced by place P. W. And the recovery was falsely planted on him. When asked to explain as to why the case had been made out, he came out with the following explanation:--th th ---It has been fabricated by Waris P. W. And his companions with the active assistance of the local Police Officer, due to previous comity. In fact Adeeb Asghar deceased and Waris P. W. Had became eye--witnesses in another murder case of Krishan Nagar in which Nizam Din was murdered and Mohsin Abbas was sent up. It was common--ly known that the relation of Mohsin Abbas had actually caused the injuries to Adeeb Asghar somewhere in darkness which remained unwitnessed. Waris P. W. Finding this golden opportunity falsely involved me and my co-accused in this case He had also stated that his co-accused were not present when he was injured in Veshno Gail on the night between 26-27th May, 1975. Khalid Shahid and Aziz Ahmad denied the prosecution allegations. Khalid Shahid gave the following detailed statement when asked as to why the case had been made out against him:- "It has been fabricated by Waris P. W. And his companions with the active assistance of the local Police Officer due to the previous enmity. In fact Adeeb Asghar deceased and Waris P. W. Had become eye-witnesses in another murder case of Krishan Nagar in which Nizam Din was murdered and Mohsin Abbas was sent up. It was commonly known that the relation of Mohsin Abbas had actually caused the injuries to Adeeb Asghar somewhere in darkness which remained unwitnessed. Waris P. W. Finding this golden opportunity falsely involved me and my co-accused in this case."
Aziz Ahmad appellant gave the following detailed statement:- ---The allegations are incorrect and false. I was not present at the alleged time of occurrence.
During the investigation, S. P., City after thoroughly investigating the case at the spot concluded that I was innocent and did not participate in the alleged offence. He also observed that at the alleged time of occurrence I was present at People House with Allah Ditta, M. P. A. And remained there from evening till 1-30 a.m. On the alleged date of occurrence. He further directed to S. H. O., P.
S. Old Anarkali Inspector Nazir Hussain P. W. To further enquire about my innocence and if found innocent I should be got discharged. Nazir Hussain under these instructions further investigated the case regarding my innocence and recorded evidence of the parties. He concluded that the informant had incorrectly named me in F. I. R. He also found me innocent but intentionally flouted the direction of S. P. And did not get me discharged. Rather he challaned the other two co-accused and my name was placed in column No. 2 meant for the purpose although arrested, but not challaned. I have not been summoned as an accused person uptil today in this case which is a mandatory require--ment under section 190, Cr. P. C. My inclusion in the trial or in the commitment proceedings are not warranted bylaw."
The accused did not lead any evidence in defence.
9. Both the appeals were argued at length. The learned counsel for Aziz Ahmad contended that Aziz Ahmad accused was found innocent and was placed in column No. 2 of the challan but the Magistrate did not pass any order summoning him as an accused person and in the absence of such an order, the trial had vitiated against him as it was void ab initio. He further submitted that the Sessions Judge could not take cognizance against Aziz Ahmad as the said accused was not forwarded to him by the Magistrate under a valid order. On merits, it was contended that there was no corroboration against Aziz Ahmad. He had no motive to assault the deceased nor any weapon of offence was recovered from his possession,
10. The learned counsel for Abdul Majad and Khalid Shahid appel--lants contended that the case against both the appellants was not proved. He further submitted that plea of self-defence was available to both these appellants and in spite of the fact that they had not taken up the plea of self-defence, they were entitled to it as it was flowing from the prosecution evidence
11. The learned counsel for the complainant pointed out that Aziz Ahmad was released on bail by the learned Additional Sessions Judge on 29th July, on the ground that his name had been placed in Column No. 2 of the challan; that Aziz Ahmad furnished bail bond and continued appearing before the Magistrate till the case was sent to the Sessions Judge; that the Magistrate or the Sessions Judge had not passed any order of discharge and in that way, the accused was before the Magistrate and no fresh order was required to be passed in respect of him.
12. Aziz Ahmad appellant was arrested in this case. He filed an application for bail and was admitted to bail by the learned Additional Sessions Judge, on 29th July, 1975. After he was released on bail, he continued appearing in Court. The learned counsel for Aziz Ahmad and Abdul Majad submitted an application to the Court that copies of the statements of the prosecution witnesses had not been supplied to them. It was ordered on 17November, 1975 that the accused shall be supplied the copies of the prosecution witnesses. Ultimately, the copies were supplied and the prosecution evidence was summoned. The Magistrate did not pass any order about the discharge of the bond of Aziz Ahmad under section 173(3), Cr. P. C. Since no discharge order had been passed by the Magistrate in favour of Aziz Ahmad, it shall be deemed that the Magistrate took cognizance against Aziz Ahmad also. The said accused had been supplied copies of the statements of the prosecution witnesses. In case the Magistrate wanted to drop proceedings against him, he would have passed order to that effect. In view of these circumstances, I hold that the proceedings against Aziz Ahmad were not void ab initio and the trial had not vitiated against him.
13. I have minutely examined the prosecution evidence including the pleas of the appellants and particularly the suggestions made to Qazi Ehsan-ud-Din (P. W. 7). It was suggested to Ehsan-ud- Din P. W. That one Nizam Din was murdered and in that murder case, Mohsin Abbas was challaned.
The witness admitted this fact. It was again suggested to the witness if Adeeb Asghar and Waris P.
W were the eye-witnesses in that case. The witness showed ignorance. The witness further showed ignorance if the relatives of Mohsin Abbas had attacked Ware P. W. And Adeeb Asghar deceased many times before the present occur--occurrence. The witness denied the suggestion that the deceased was murdered by relatives of Mohsin Abbas. He also denied the suggestion that the accused were falsely implicated due to previous enmity. Aziz Ahmad and Khalid Shahid appellants had not admitted their presence at the spot. The case of Abdul Majad appellant was, that in fact Iqbal P. W. And Waris P. W. Had assaulted him in Veshno Gali and caused him injuries by blunt weapon as well as sharp-edged weapon. In this occurrence, Abdul Majad appellant did not admit the presence of the deceased. He did not utter a single word as to how the deceased was caused injuries. According to his case, the deceased had not been injured there. While explaining as to why the case had been made out against him, Abdul Majad appellant stated that it had been fabricated by Waris P. W. And his companion with the active assistance of the local Police and in fact, Adeeb Asghar deceased and Waris P. W. Had become eye--witnesses in another murder case of Nizam Din of Krishan Nagar in which Mohsin Abbas was challaned and it was commonly known that the relatives of Mohsin Abbas had actually caused injuries to Adeeb Asghar somewhere in the darkness which remained unwitnessed and Waris P. W. Finding golden chance falsely involved him in this case. The case of Abdul Majad appellant was that Adeeb Asgbar had not been injured in that occurrence. The entire evidence was read. The plea of self-defence was neither taken up by any of the appellants nor it was flowing from the evidence on the record. The case was rather reverse. Abdul Majad appellant had categorically stated that Adeeb Asghar had not been injured in the occurrence in which he had been caused the injuries. The learned Additional Sessions Judge made the following observations in his judgment:- "The mere registration of the cross-case and challaning persons by the Police is nothing unless proved through evidence. The fate of the cross-case is not known at this stage. Neither learned counsel for the defence has brought any material on record with regard to the said counter-case pending in the Court of Magistrate.th Nevertheless the fact remains that the defence has failed to give any details of the cross-case. The effect of the cross-case even otherwise cannot be given while considering the evidence of this case. This case will have to be decided on its own material brought on the record.
As to what was the counter version, it is not known. Neither the defence has brought anything on the record in this regard."
14. After having considered all the material on record, I hold that both the appeals are without merits and are dismissed.
15. It was not a case of exceeding the right of self-defence. The learned Additional Sessions Judge had erroneously acquitted the appellants of the charge under section 302, P. P. C. And convicted them under section 304-1, P. P. C. The revision petition is accepted and the impugned judgment whereby the three appellants were acquitted of the charge under section 302/34, P. P. C. Is set aside. The case is remanded for fresh trial.
Since it is an old matter, the learned Sessions Judge may try the case himself or entrust the case to some other Additional Sessions Judge but not to one who had earlier disposed of this case. The occurrence had taken place in May, 1975. Four years have already elapsed. This case may be given priority over other cases.
16. Any observation made in this judgment shall not influence the learned Sessions Judge or Additional Sessions Judge who holds the trial afresh and he shall dispose of the case according to the evidence brought on the record afresh.