' HASNAT AHMAD KHAN, J. Maskeen Ullah, the appellant, having been declared as Juvenile, was separately tried from his co-accused namely Hameed Ullah, Ikram Ullah, Ameer Abdullah Khan and Zafar Ullah, by Mr. Muhammad Javed Iqbal Qureshi, learned Additional Sessions Judge, Juvenile Court, Mianwali, in case F.I.R. No,193/2001, dated 15-8-2001, registered with Police Station Sadar Mianwali, for offence under sections 302/ 324/337-D/337-F (ii)/34, P.P.C. After the conclusion of the trial the said learned Addl. Sessions Judge found the appellant guilty of murdering Races Khan (deceased). Consequently, the appellant was convicted and sentenced under section 302 (b)/34, P.P.C, to life imprisonment as Tazeer along with a compensation of Rs, 50,000 to the legal heirs of the deceased under section 544, Cr.P.C, or in default of payment therefor, he was ordered to undergo six months S.I. The appellant was also convicted under section 324/34, P.P.C, for launching murderous assault on Sami Ullah (P. W.12) and was sentenced to 10 years R.I. With a fine of Rs,5,000 or in default of payment thereof he was further ordered to undergo six months' S.I.
However, the sentences awarded to the appellant under both the heads were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was also granted to the appellant.
2. Feeling aggrieved by the judgment of the learned trial Court, the appellant challenged his conviction and sentence through the instant appeal. During the pendency of the titled appeal the appellant was released on bail by way of suspension of sentence by this Court vide order dated 18- 5-2004.
3. Pithily, the prosecution's story, as narrated by the complainant Rustam Khan (P.W.11) in the F.I.R.
(Exh.PM), was/is that his nephew Raees Khan was student of 10th Class. The said Raees Khan, along with others, was studying in the tuition center set up by one Master Khalid Mehmood. Normally the classes started at 4-00 p.m. And continued up till 5-15 p.m. On 15-8-2001 at about 5-30 p.m. The complainant was going to play volleyball, and when he reached near the house of Ameer Abdullah Khan Bazgul, he saw that Hameed Ullah Khan, Maskeen Ullah Khan (present appellant) and Ikram Ullah Khan, armed with knives, were quarreling with Raees Khan (the deceased) and Samee Ullah Khan (friend of Raees Ahmad Khan), in the lane (Gali) near the old "Bethak" of Khan Behadur Khan Advocate. Within his (complainant) view Hameed Ullah, co-accused, stabbed his knife into the right side of Raees Khan's chest whereas the second blow given by Ikram Ullah with his knife hit Raees Khan (the deceased) below his right arm pit. Due to the said injuries Raees Khan (the deceased) fell down whereupon Samee Ullah Khan, injured P.W., caught hold of Ikram Ullah Khan. In the meanwhile Hameed Ullah gave two knife blow on Samee Ullah's back, thereafter Maskeenullah, the appellant inflicted a knife injury to the said Samiullah, whereupon he also fell down. The hue and cry raised by the complainant attracted Muhammad Aslam and Khizer Hayat Khan, P. Ws, who reached the place of occurrence on Yamaha Motorcycle and witnessed the occurrence. All the three accused fled from the spot after waiving their knives. Both the injured namely Raees Khan and Samee Ullah Khan, were rushed to D.H.Q. Hospital Mianwali by the complainant. However, on reaching the hospital Raees Khan bled to death while Samee Ullah Khan wad admitted in the hospital.
4. The motivating factor behind the occurrence, as stated by the complainant in the F.I.R, is that on 13-8-2001 Raees Khan (deceased) had quarreled with Hameed Ullah, co-accused, wherein Hameed Ullah Khan was insulted by, Raees Khan and Samee Ullah Khan. On 14-8-2001 Shafa Ullah (given up P.W.) and Rab Nawaz Khan, were sent to Ameer Abdullah Khan, father of Hameed Ullah, Khan, accused to compromise the matter with Hameed Ullah Khan. At the relevant time Ameer Abdullah Khan, the acquitted co-accused was flanked by Zafar Ullah Khan, Hameed Ullah Khan, Ikram Ullah Khan and Maskeen Ullah Khan. However, Ameer Abdullah khan and Zafar Ullah Khan, accused, refused to burry the hatchet instead they asked Hameed Ullah, Ikram Khan and Maskeen Ullah, to eliminate Raees Khan and Samee Ullah Khan within a day in order to avenge their insult.
Hence the F.I.R.
5. After registration of formal F.I.R. Abdul Ghafoor, S.-I./Investigating Officer (PW.14) proceeded to DHQ. Hospital, Mianwali, where he prepared injury statement (Ex.PC) of the deceased and inquest report (Exh.PD). Whereafter he visited the place of occurrence and prepared rough side plan (Exh.P.N.). Thereafter he took into possession the bloodstained earth from two places vide recovery memos (Exhs.P.G. And P.H.). The last worn clothes (P.1 to P.3) of Raees Khan (deceased) were handed over to him (Investigating Officer) by Ghulam Hussain Shah, vide recovery memo (Exh.P.E.).
The wearing apparels (P.7 and P.8) of injured P.W. Samee Ullah were also taken into possession by the Investigating Officer vide recovery memo Exh.P.O. On 16-8-2001. On the asking of the Investigating Officer the draftsman prepared site plans Exh. PF and Exh.PF/1. On 29-8-2001 the Investigating Officer arrested Ameer Abdulla Khan, Zafar Ullah Khan, Hameed Ullah Khan, Ikram Ullah Khan and Maskeen Ullah Khan (present appellant). After his arrest besides other accused, Maskeen Ullah, the appellant, allegedly led to recovery of knife (P.6) which was taken into possession vide recovery memo. Exh. P. L. During investigation Ameer Abdullah Khan and Zafar Ullah Khan, were found to be innocent by the Investigating Officer, therefore, their names were placed in column No,2 of the report under section 173, Cr.P.C. While rest of the accused including the appellant were declared guilty and they were sent to the Court to face trial. The appellant having been declared as a juvenile offender was tried separately.
6. In order to prove its case, the prosecution produced as many as 14 witnesses, out of whom Hameed Ullah, A.S-I (P. W.1) deposed about the safe custody of parcels handed over to him by the Investigating Officer Aziz Ullah, Constable (P.W.2) proved the sending of two sealed parcels containing blood-stained earth to the office of Chemical Examiner. Dr. Aamer Mumtaz, M.O. (P.W.3) who had conducted the MLR on the person of Samiullah, the injured found following injured on his person:--
(1) A sharp edge wound 4 x 1 1/2 cm on the posterior aspect of left side of upper chest, 8 cm superior and from the inferior angle of left scapula 14 c.m. From the tip of the shoulder and 8 cm from the midline on the left side. The muscles at the site of the injuries were cut which was KUO for X-ray and further investigation.
(2) A sharp edge wound 3 x 1 cm on posterior aspect of right chest of chest on the medial angle of right scapula, 7 c.m. From the midline on the right side, the muscles at the site of injuries were cut and injury was KUO for X-ray.
(3) A sharp-edged wound 1 x 1 cm from the lower side of back chest in the midline. The muscles at the site of injuries were cut and this was also KUO. All the injuries were KUO and sharp-edg wound.
' On the same day he (the doctor) conducted the autopsy on the body of Raees Khan, the deceased, and found the following injuries:-
(1) A stabbed wound 3 x 1 cm on the upper aspect of right side of chest just below the middle of right clavicle, on RT side, 7 cm inferomedial to the tip of shoulder 11 cm above the right nipple.
(2) A stabbed wound 1 1/2 x 1 cm on the lateral aspect of right side of chest just on the mid axillery, 9 cm below from the RT axilla and 9 cm lateral to right nipple and 21 cm above from the right iliac crest.
' In his opinion the death had occurred due to severage hemorrhage and shock caused by injuries No,1 and 2. Injuries Nos.1 and .2 were fatal enough to cause death in any kind of circumstances both collectively as well as individually. According to the Doctor, both the injuries were caused by sharp edged weapon and were ante mortem in nature.
' Muhammad Sharif, Draftsman, appeared as P.W.5 and proved site plans prepared by him.
Samiullah , the injured, appeared as P.W.12 and furnished the ocular account. Rab Nawazs, P.W.13, claims that prior to the occurrence he along with Shafa Ullah went to Ameer Abdullah to have a compromise regarding the brawl which had taken place between Raees Khan (deceased) and Ameer Abdullah Khan on 13-8-2001. Abdul Ghafoor, S.-I./ Investigating Officer appeared as P.W.14, and furnished the details of the investigation conducted by him. Rustam Khan, Complainant, appeared as P. W.11 and supported his stance taken in the F.I.R. The learned S.P.P. Gave up Wazir Khan, Najeeb Ullah, Muhammad Aslam Khan and Khizar Hayat, P.Ws. Being unnecessary.
' Rest of the witnesses being formal in nature need not be discussed here.
7. After tendering into evidence the reporters of Chemical Examiner (Exh.PR & PS) and those of Serologist (Exh.PT & PU), the learned DDA closed the prosecution's evidence.
8. The appellant made his statement under section 342, Cr.P.C. While responding to question No,9 he stated as under:-- "I am innocent, the witnesses are related to the deceased and I have been falsely involved in this case at the instance of Mehr Khan, Inspector, real brother of 'Nana" of Samiullah P.W. Who is inimical to us."
' The appellant, however, did not opt to appear as his own witness under section 340(2), Cr.P.C. Nor did he produce any evidence in his defence.
9. After the conclusion of the trial the appellant was convicted and sentenced as mentioned above.
10. In support of his plea that the case be remanded to trial Court as the evidence recorded in the case of adult co-accused has been used in the case of the present appellant, learned counsel for the appellant has argued that recording of evidence in cases of a juvenile and an adult accused apart, according to section 5 of the Juvenile Justice System, 2000, even on the date of the trial of a juvenile accused no one else should be present in the court; that on the some of the dates of hearing when the evidence was recorded in the trial of adult co-accused and the same was later on transferred to the case file of the present appellant, the appellant was not even present in the Court as his case was not fixed for hearing on the said dates; that the statements of P.Ws. 1 to 10, recorded in the case of the appellant, are verbatim copy of the evidence recorded in the case of adult co-accused; that Malik Salim Akhtar Ganjera, Advocate was counsel for Amir Abdullah and Hameedullah co-accused while Zafarullah and Ikramullah other co-accused were being represented by Senior Malik Salim Akhtar, Advocate; that a perusal of the statements of P.W.11, P.W.12, P.W.13 and P.W.14 would show that on the relevant date they were cross-examined by the learned counsel for the adult accused as well; that violation of provisions of section 5 of the Juvenile Justice System Ordinance, 2000, is tantamount to illegality which has vitiated the whole trial. To shore up his contentions on this point learned counsel for the appellant has relied upon the cases reported as, Hassan Gul v. The State (1975 PCr.LJ 437), Alam Sher and 4 others v. The State (1977 PCr.LJ 1078), Mitthulal and others v. The State of Madhya Pradesh (AIR 1975 SC 149), The State v. Qalandar Khan (PLD 1971 Pesh. 119), Muhammad Khalid and 5 others v. Municipal Committee and 10 others (1987 CLC 250), and Muhammad Younis v. The Crown (PLD 1953 Lah. 321).
11. Insofar as merits of the case are concerned, learned counsel for the appellant has contended that the prosecution miserably failed to prove the motivating factor behind the occurrence; that the prosecution version qua conspiracy hatched by the appellant and his co-accused has been disbelieved by the learned trial Court; that the appellant was falsely implicated in this case; that none of the witnesses of the vicinity were produced by the prosecution in order to establish its case; that Rustam Khan (P.W.11) admittedly was not resident of the area where the occurrence took place and he could not give proper explanation or justification for his presence at the time and place of occurrence; that the prosecution has not come forward with clean hands inasmuch as the case were registered after distorting the real facts viz. It was suppressed by the prosecution that in fact Raees Khan (the deceased) and Samiullah (injured P. W .), along with their companions, had launched an attack on the accused party; that the deceased and the injured P.W. Received injuries in a melee; that according to the prosecution's own version, during the occurrence, Samiullah had caught hold of Ikramullah, the co-accused, whereafter he was injured by the appellant and Hameedullah co-accused; that admittedly Samiullah, injured P.W, was stabbed after causing of fatal injuries to Raees Khan (deceased) by the co-accused, therefore, it cannot be said that the appellant shared common intention for killing Raees Khan (the deceased) with his co-accused; that at the most the appellant can be convicted and sentenced for causing a simple injury to Samiullah (injured P.W.) and that the prosecution has failed miserably to establish the recovery of crime weapon at the instance of the appellant.
12. Conversely, learned Additional Prosecutor-General, assisted by the learned counsel for the injured witness Samiullah, controverted the contentions raised by the learned counsel for the appellant on the point of remand of case to the learned trial Court by submitting that the appellant remained present during the trial and he was duly represented by a counsel and was given due opportunity to defend himself and cross-examine all the witnesses who entered in the witness box; that during the trial though the appellant was equipped with the legal advice yet he did not raise any objection at any stage regarding the holding of the trial of the appellant with the adult co- accused on same dates of hearing; that a perusal of the record suggests that statements of the some of the witnesses were recorded separately in both the trials; that in any case the appellant has not been prejudiced in any manner by relying the evidence which was recorded in the trial against his adult co-accused and that section 5 of the Juvenile Justice System Ordinance 2000 is directory in nature and not mandatory because no penal consequences have been provided in case of the non-compliance of said section. In support of his contentions learned counsel appearing on behalf of injured witness has relied upon the case reported as Muhammad Khan and others v. The State and others (PLD 1978 SC 251), Muhammad Younis Cheena v. The Crown (1969 SCMR 424), Shahidullah Khan and others v. The State (PLD 1961 Dacca 01), Sabur-ur-Rehman and another v. Government of Sindh and 3 others (PLD 1989 Kar. 572) and Madat Khan and another v.
King Emperor (AIR 1927 Privy Council 26).
13. On merits, learned APG, assisted by the learned counsel appearing on behalf of injured witness, has argued that common intention of the appellant along with the co-accused is established from the answer of question No,2 of the statement of the appellant made by him under section 342 Cr.P.C, therefore, he is vicariously liable for the murder of Raees Khan (deceased).
14. Availing the right of reply, learned counsel for the appellant has contended that it is wrong to contend that during the trial the procedure adopted by the learned trial Court was not objected to by the appellant. In order to support the said contention, learned counsel for the appellant has referred to order, dated 1-4-2003, passed by the learned trial Court during the trial.
15. Heard. Record perused.
16. First of all, I would like to deal with the objection raised by the learned counsel for the appellant qua the transfer of verbatim copies of the evidence recorded in the case of adult co-accused to the file of this case. In order to understand the impact and the implication of the objection raised by the learned counsel for the appellant I have straightway noticed that during the trial the appellant was represented by Senior Malik Salim Akhtar, Advocate, who was also representing Ikramullah and Zafarullah, the adult co-accused of the appellant whereas Hameedullah and Ameer Abdullah, the remaining two adult co-accused, were being represented by Malik Salim Akhtar Ganjera, Advocate. I have further gathered that almost verbatim retyped evidence recorded in the case of adult co-accused of the appellant was made part of the instant case with slightest changes. Further, barring a few dates trial in both the cases was conducted on common dates of hearing. Apparently the procedure adopted by the learned trial Court is violative of section 5 of the Juvenile Justice A System Ordinance, 2000 which reads as under:-- "No joint trial of a child and adult person---Notwithstanding anything contained in section 239 of the Code, or any other law for the time being in force, no child shall be charged with or tried for an offence together with an adult.
(2) If a child is charged with commission of an offence for which under section 239 of the Code, or any other law for the time being in force such child could be tried together with an adult, the Court taking cognizance of the offence shall direct separate trial of the child by the Juvenile Court."
' According to the said section trial of a juvenile offender should not be held along with the adult person/accused. It is also true that according to section 6(2) of the Juvenile Justice System Ordinance, 2000, a Juvenile Court should not ordinarily taken up any other case on the date when the trial of a child is fixed, whereas subsection (3) of the said section further safeguards the rights of a child accused by imposing the following restrictions:-- "(3) No person shall be present at any sitting of a Juvenile Court except--
(a) members and officers of the Juvenile Court.
(b) Parties to the case before the Juvenile Court and such other persons who are directly concerned with the proceedings including the police officers;
(c) Such other persons as the Juvenile Court directs to be present; and
(d) Guardian of the child.
' Keeping in view the interest of minor qua decency and morality, subsection (4) of section 6 of the Juvenile Justice System Ordinance lays down as under:-- "(4) At any stage during the course of the trial of a case under this Ordinance, the Juvenile Court may, in the interest of such child, decency or morality, direct any person to withdraw from Court for such period as the Court may direct."
' According to provisions of subsection (5) of section 6 of the Ordinance, the trial of a juvenile offender can proceed even in absence of the accused. The relevant section is reproduced as under:-- ' attendance of the child is not essential for the purposes of the trial, the Juvenile Court may dispense with the attendance and proceed with the trial of the case in absence of the child."
17. From the above provisions of the Ordinance, the entire scheme and object of the legislature for framing the Juvenile Justice System Ordinance, 2000 appears to be that a child/juvenile accused should not remain in the company/association of adult person(s). In this way the object of the legislature appears to be to protect the interest of child and, maintain decency and morality. But in this case it appears that the appellant who, during the trial was on the border line of the minority, did not object to the procedure and course adopted by the learned trial Court. It further appears that during trial at no stage the appellant, who was duly represented by an Advocate, ever objected to the holding of trial against him on the dates when the trial of his adult co-accused was being conducted. Admittedly, the appellant is closely related to his adult co-accused, inasmuch as two co-accused were his uncles whereas the other two were cousins as well as class-fellows. That might be a reason of not raising such an objection by him. Further, instead of objecting against the course adopted by the learned trial Court the appellant raised an objection on 1-4-2003 whereby it was requested by the appellant that prosecution evidence be recorded in the case of adult co- accused first which was fixed on 2-4-2003 Consequently, with the consent of the parties, the case against the appellant was adjourned to 7-4-2003.
18. A perusal of order-sheet of the other trial reveals that evidence of the some of prosecution witnesses was recorded in the said case on 2-4-2003 and 3-4-2004. Record of this case reflects that the aforesaid witnesses appeared in this case as well, on 7-4-2003 but instead of recording their statements the learned trial Court, unfortunately, placed re-typed statements of the said witnesses, which had already been recorded, with slight changes, on the record of this case. Similar course was adopted by the said Court on 17-4-2003 and 21-4-2003. But from 1-4-2003 onwards, dates of hearing of both the cases were fixed separately. Be that as it may, it is not denied that all the witnesses were cross- examined at length by the learned counsel for the appellant who was also representing Ikraumullah and Zafarullah, the adult co- accused. While cross-examining the witnesses, the interest of the appellant was duly watched and guarded. And, at no stage the appellant or his learned counsel raised any objection against the procedure adopted by the trial Court. Similarly, at no stage the appellant complained that he was not being given proper opportunity to cross-examine the said witnesses. The complainant also failed to raise such an objection.
19. Now, coming to the question of preservation of decency and morality as enshrined under subsection (4) of section 6 of Juvenile Justice System Ordinance, 2000, I find that adverse effect, if any caused due to violation of the relevant provisions of law has reached an irreversible stage, therefore, cannot be cured. Now the appellant has already become major, therefore, remanding the case for holding the trial against the appellant exclusively is not going to serve any purpose.
Furthermore, despite repeated queries by the Court, learned counsel for the appellant could not point out even a single circumstance of factor to show that the defence of the appellant was adversely affected by holding his trial along with his adult co-accused on one and the same date of hearing or by placing the re-typed verbatim copies of the statements of the witnesses from the file of adult co-accused to the file of the trial against the appellant. A perusal of the evidence would reveal that while cross-examining the witnesses, Malik Salim Akhtar (Senior), Advocate, who was not only representing the two adult co- accused but the appellant was also represented by him, duly safeguarded the interest of the appellant as well.
20. B The criteria for remanding any case on account of any irregularity committed during the trial are two-fold. Firstly, the appellate Court has to examine as to whether the irregularity committed by the learned trial Court prejudiced the accused in any manner and secondly whether the objection qua the said irregularity or illegality was raised at the earliest stage. In this case, I conclude that the objection in the real terms, against the procedure adopted by the learned trial Court, was never raised by any of the parties including the appellant during the trial rather it appears that the verbatim copy of the evidence recorded in the case of adult co- accused was transferred to the file of this case with the consent of both the sides. Further, during the recording of his statement under section 342, Cr.P.C, a specific question was put to the appellant as to whether he had heard and understood the prosecution evidence. The appellant while replying the said question answered in an affirmative and never claimed that either the evidence was not recorded in his presence or he was not given an opportunity to cross-examine the witnesses. More importantly, at the cost of repetition, it is observed that learned counsel for the appellant failed miserably to show that the defence of the appellant had been prejudiced or he was misled by the irregularity committed by the learned trial Court. While deciding a similar question, the Honourable Supreme Court in the case of Muhammad Younas Habib v. The State (PLD 2006 SC 153) inter alia held as under:- "The aforementioned allegation was explicit and could not be described as vague. The learned High Court did not appreciate that these errors or omissions would not be material, "unless the accused was in fact misled by such error or omission and it has occasioned a failure of justice." In para-10 of the impugned judgment, the learned High Court has attempted to explain how according to it the accused was misled and referred to a question asked to the accused in his statement under section 342, Cr.P.C, with regard to his salary and the reply given by him. This had nothing-to .Do. With the charge framed and no inference could be drawn from it that he was misled or that it had occasioned failure of justice. Furthermore, before giving any finding or observation that any error or mission had occasioned a "failure of justice", the law mandates that "the Court shall have regard to the fact that whether the objection should have been raised at an earlier stage in the proceedings." Admittedly, petitioner-accused did not raise this objection before the trial Court that he had been misled by the framing of the charge. Even after conviction the petitioner did not allege so in the grounds of appeal filed before the learned High Court and even during arguments, the petitioner's learned counsel never raised this plea that the petitioner had been misled by the framing of the charge. In these circumstances, it was not open for the Court of appeal to have annulled the judgment and directed retrial after more than five years of the judgments of the trial Court."
' In another case reported as Sabour- ur-Rehman and another v. Government of Sindh and 3 others (PLD 1989 Kar. 572), it was held that the case should only be remanded if the accused succeeds in establishing that his defence was substantially prejudiced. In case reported as Madat Khan and another v. King Emperor (AIR 1927 Privy Council 26), the Privy Council refused to remand the case despite the fact that in a case of cross-version, joint judgment was delivered. While doing so it was inter alia held by the Privy Council as under:- "There was, however, a body of separate evidence which was applicable to each case and that in itself was enough for the conviction; so that, although technically it might have been better to keep the evidence entirely distinct, and to have delivered two separate judgments no injustice has followed from what was done."
21. Though the case-law cited by the learned counsel for the appellant do suggests that evidence recorded in one case should not be transferred to the file of other case but considering the peculiar circumstances of this case it would not be appropriate to remand the case to the learned trial Court after almost 8 years of putting the legal machinery into motion, especially when the methodology, which has been objected to at the time of the decision of this appeal, was evolved and adopted by the learned trial Court with implied consent of the parties. An irregularity, committed by the consent of the parties, can be treated as a curable one as was held in the case reported as Mitthulal and others v. The State of Madhya Pradesh (AIR 1975 SC 149).
22. The other reason, for restraining myself from remanding this case, is that in case the matter is remanded on the ground of said irregularity, which was according to the learned counsel for the appellant is illegality, the adult co-accused can also pray for the remand of their case on the basis of the same irregularity because from the record it appears that at initial stage statements of some of the prosecution witnesses were recorded in this case and after re-typing the same on different typewriter were placed on the record of the trial of the said co-accused.
23. Now, reverting to the merits and demerits of the case, I have gone through the entire evidence oral as well documentary with the assistance of the respective learned counsel for both the parties.
Having done so I have gathered that the prosecution case comprises motive, conspiracy, ocular evidence, medical evidence and recovery of the crime weapon.
24. Insofar as the motivating factor behind the occurrence is concerned, according to the prosecution on 13-8-2001 Samiullah (injured P.W.) and Raees Khan (the deceased) had a brawl with Hameedullah co-accused on a trivial matter in the tuition center where all of them were studying. The prosecution further alleged that in the said incident Hameedullah co- accused was insulated by Raees Khan (deceased) and Samiullah (injured P.W). In the said backdrop, according to the P prosecution, the elders of the accused were approached by the complainant side to patch-up the matter. But instead of having a compromise with the complainant party, Ameer Abdullah and Zafarullah, acquitted co-accused, instigated Hameedullah and Ikramullah and the present appellant to avenge their insult. After going through the relevant evidence. I find that motive has duly been proved from the statement of Samiullah (injured P.W.) who was directly involved in the quarrel which took place between Hameedullah and the complainant party on 13- 8-2001. During his cross- examination the defence did not seriously challenge the said motive.
Though the investigation officer failed to collect sufficient evidence regarding the motive but the fact remains that injured P.W. Who was directly involved in the said quarrel had reiterated the story of motive as mentioned in the F.I.R, in unequivocal terms. Thus, I conclude that the prosecution has successfully proved the story of motive, however, the version regarding approaching the accused party by the elders of the complainant party for settling the matter has already been disbelieved by the trial Court.
25. Now, coming to the question of recovery of crime weapon I find that according to the prosecution a knife was recovered at the instance of the appellant from a open place abutting on a bridge. In order to prove the said recovery, Jehangir Khan entered the witness box as (P.W.10).
During his cross-examination he could not properly explain his presence at the time of recovery. It further appears that none of the people from the locality wherefrom the recovery was allegedly effected had joined the recovery proceedings. Besides, the recovery evidence of Jehangir Khan (P.W.10) has been contradicted by Abdul Ghafoor, S.I./Investigating Officer inasmuch as according to the Jehangir Khan knife/weapon of offence was buried in the sand whereas according to the Investigating Officer the same was recovered from the bushes. Besides, according to the recovery memo (Exh.PL) the said knife was not blood-stained. In this view of the matter no importance can be attached to the recovery of knife from the appellant.
26. As far as ocular testimony is concerned, the same comprises the statements of Rustam Khan (P.W. 11) and Samiullah (P.W.12). Admittedly, both the eye-witnesses had no deep rooted enmity with the appellant for his false implication in this case. It is true that no one from the vicinity where the occurrence took place has been produced in the witness box by the prosecution but the Investigating Officer explained the said lapse by stating as under:- "I had not recorded the statement of Khan Bahadur Khan, Advocate nor I approached him.
Volunteers that nobody in this district joins the investigation to avoid enmity. "
' Even otherwise it is of common knowledge that independent people do avoid to become witness and make statements is a criminal case specially in a murder case. Besides, it was daylight occurrence which was reported to the police promptly. Raees Khan (the deceased) and Samiullah (injured P.W.) were rushed to the hospital by the witnesses. More importantly, the presence of the injured P.W. At the time and place of occurrence cannot be doubted. The injured P.W. Received serious stabbed wounds, and it is not the case of the defence that the injuries received by him were self-suffered. Besides it, the ocular evidence is in line with the medical evidence. Both the witnesses were cross-examined at length but the defence failed to cause any serious dent in the prosecution version. Similarly, the veracity of both the eye-witnesses could not be shaken by the cross-examiner. Besides, it while making his statement under section 342, Cr.P.C, the appellant did not deny the time and venue of the crime. Moreover, he did not deny his presence at the time and place of the occurrence. Therefore, I conclude that ocular evidence is trustworthy and reliable.
27. Insofar as the defence version is concerned, I find that according to the appellant in fact accused were attacked by the complainant party with the help of some other people who were armed with knives. Responding to question No,6 put to the appellant under section 342, Cr.P.C, he did not deny his presence at the time of occurrence but he claimed that he was not armed with a knife. He further claimed that the deceased as well as the injured P.W. Had received injuries in a melee. But the attending circumstances do not support the defence version which even otherwise has not been found to be a plausible one inasmuch the deceased and injured received 5 sharp- edged and critical injuries during the occurrence whereas all the accused remained unscathed as none of them received even a scratch at the hands of the complainant party, therefore, the defence version that the accused were attacked by the complainant party is hereby spurned.
28. Now adverting to the question of sharing common intention by the appellant with his co- accused, I find that the appellant was not involved in the brawl which allegedly took place on 13-8- 2001. It is an admitted fact that all the accused as well as Raees Khan (deceased) and Samiuallh (injured P.W.), at the time of occurrence were studying in one tuition center. At the time of occurrence all of them were almost of same age group and were students of 10th class. It appears that in the backdrop of the scuffle, which had taken place prior to the unfortunate occurrence, both the parties clashed near their tuition center and suddenly a quarrel took place between them.
During his examination-in-chief Rustam Khan P.W.11 claims that when he reached near the place of occurrence he saw that all the accused including the present appellant were quarrelling with Raees Khan (the deceased) and Samiullah (injured P.W.). The said part of the statement supports my view point that it was a case of sudden fight between the parties. The preponderance of the evidence on the record further reveals that the appellant who himself was a young boy on the day of occurrence did not cause any injury to the deceased rather he did not participate in the occurrence till his relative i.e,, cousin, namely Ikramullah I during the quarrel was admittedly caught hold of Samiullah, the injured P.W. It appears that when Ikramullah, the co- accused, was over- powered by Samiullah the appellant gave him a knife blow presumably with a view to get the said Ikramullah released from the grip of Samiullah (injured P.W.). The knife which according to the prosecution was recovered from the appellant was having 3-1/2 inch blade. Normally, such like knifes are not kept for assaulting people. The said circumstances reveal that the appellant did not share common intention with his co- accused in killing Raees Khan (the deceased).
29. In such like cases the accused are convicted and sentenced according to the individual roles played by them.
' Consequently, this appeal is partly allowed and conviction and sentence of the appellant under section 302(b) P.P.C, is set aside. However, considering the fact that Samiullah (injured P.W.) was caused serious injuries by the appellant and his co- accused, as is apparent from the evidence of the doctor who had medically examined him (Samiullah), therefore, the appellant cannot be absolved from the liability of murderous assault launched by him on Samiullah (injured P.W ).
Consequently, the conviction awarded to him under sections 324, 34 P.P.C, is maintained* but considering the young age of the appellant and the fact that he has been facing the rigours of the trial as well as those of the appeal since the year 2001, the sentence awarded to him under the aforesaid section is reduced to 7 years' R.I. However, the sentence of fine recorded by the learned trial Court shall remain intact. Since during the pendency of this appeal, the appellant was released on bail by way of suspension of sentence, he be taken in custody and be jailed for undergoing his remaining portion of sentence.
30. Before parting with this judgment I would like to observe that as the trial in this case had been conducted in a haphazard, arbitrary, casual and slipshod manner, the Judge who conducted the trial at least deserved a strong stricture. However, in view of the fact that the said learned Judge, according to my information, has already retired from service in the year 2007, any adverse remarks passed against him at this stage would be serving no useful purpose.