Bati (25), Noti (22), Bashir (19), together with their father Sohli, brother Nazira and one Gahra, were tried by Sardar Ghulam Baqir Ali Khan, Magistrate, Sargodha, under sec--tions 148, 323, 149 and 326/149, P. P. C. By judgment dated the 31st may 1963, Sohli, Nazira and Gahra were acquitted. Bati, Noti and Bashir were convicted under section 326/34, P. P. C. And were sentenced to undergo rigorous imprisonment for one year and 9 months, one year and 4 months and 6 months, respectively. The convicted persons preferred an appeal to the Sessions Judge, Sargodha, who by judgment dated the 20th July 1963, upheld the conviction but reduced the sen--tences as follows.
The sentence of Bati was reduced to 9 months' rigorous imprisonment, the sentence of Noti was re- -duced to one year's rigorous imprisonment and the sentence of Bashir was reduced to that already undergone together with a fine of Rs. 100 or in default to undergo three months' further rigorous imprisonment.
All the three convicts preferred Criminal Revision No. 711 of 1963:
2. The prosecution case, briefly, is as follows :- On the 6th September 1962, at digarwela, in the area of dera Boteka Dakhli Gurna, Police Station Midh Ranjha, Salehon son of Sardara , (P. W. 1) was returning from Bela to the village abadi. The six accused persons, who lay in ambush in a bajra field, emerged and assaulted him. Bati was armed with a spear, Noti was armed with a hatchet and the other four persons were armed with dangs, The assailants challenged and set upon Salehon who tried -to escape. Bashir overtook him and gave a dang blow at his right shoulder. Bati gave him a spear blow on his right side. Noti gave him a hatchet blow on the forehead. Salehon, in self-defence gave stick blows to Noti, Bashir and Bati.
Mirza (P. W. 2), who happened to be close by, tried to intervene and was given a lathi blow by Sohli.
The occurrence was witnessed by Salehon son of Lala (P. W. 5), Sardara (P. W. 6) and Shera son of Sardara.
The motive for the assault was that about a fortnight before, Salehon had had an altercation with Bashir petitioner.
3. As the River Chenab was .In spate, Salehon waited for the night and the following morning he went to Gurna where he happened to meet A. S. I. Riaz Ali Shah and made his state--ment (Exh. P.
A.) to him.
4. All the accused excepting Sohli were arrested on the 8th September 1962. Sohli was arrested on the 25th September 1962. On the 8th September 1962, Bati petitioner led to the recovery of barchhi (P. 1) from his residential kotha and Noti petitioner led to the recovery of hatchet (P. 2) from his residential kotha. The Investigating Officer took the same into possession vide memos. Exhs. P. E.
And P. F. Allah Yar (P. W. 4) duly proved the memos.
5. Dr. A. K. Ali Ahmad (P. W. 3) examined Salehon on the 7th September 1962, at 1-30 p.m. And found the following injuries on his person :-
(1) An incised wound 3" x 1/4" x 2/3" on the forehead left side. This wound had caused fracture of the left frontal bone.
(2) A punctured wound 1" x --" on the lateral side of the chest right side.
(3) A reddish contusion mark 3" x 3" over the right shoulder. Injury No. 1 was grievous, caused by a sharp weapon. Injury No. 2 was caused by a sharp-pointed weapon. The duration of the injuries was 24 hours.
The same day, Mirza P. W. Was examined and was found to have to contusions.
On the 25th September 1962, Dr. Izhar-ul-Hassan (P. W. 11) examined Bati and found a healed wound 1--" x --", caused by a blunt weapon.
The same day, the same doctor examined Noti and found on his person an injury --' x --", caused by a blunt weapon.
The same day, the same doctor examined Bashir and found an injury -- x 1/8", above his left eye.
All these injuries were 20 days old.
6. Bati, Noti and Bashir, in their statements under sec--tion 342, Cr. P. C. Stated that on the 6th September 1962, at about digarwela, their buffalo got stuck up in the mud and that they were busy extricating it when Salehon (P. W. 1), Mirza (P. W. 2) and Sher son of Sardara assaulted them on account of enmity. They claimed to have caused injuries to Salehon and Mirza in self-defence.
Other accused persons denied the parti--cipation and urged that they had been implicated out of enmity.
7. They examined Mian Khan (D. W. 1), Nazira (D. W. 2), Samanda (D. W. 3) and Nazir son of Rahmat Khan in defence. These witnesses supported the defence version. According to them. Salehon fell on a Kassi and got injured,
8. The trial Court, taking a cautious view, held that the injured persons, namely, Salehon and Mirza on one side and Bati, Noti and Bashir on the other, took part in the occur--rence. He also concluded, from a comparison of the respec--the injuries, that the accused party were the aggressors. Accord--ingly, he convicted them as stated above.
9. The appellate Court maintained the conviction, modifying the sentences as stated above.
10. Before me, the learned counsel for the petitioners made the following admissions :-
(1) The first information report was lodged after a consider--able delay.
(2) The Investigating Officer did not have the petitioners examined soon after their arrest on the 8th September 1962, and got them examined only on the 25th September 1962.
(3) The alleged eye-witnesses were related to Salehon and were inimical to the petitioners. Their statements should not have been accepted and acted upon unless there existed inde--pendent corroborative evidence which was not forthcoming in this case.
(4) The petitioners caused the injuries in exercise of their right of private defence. The Courts below erred in rejecting their plea.
(5) The veracity of P. Ws. Being indivisible, it is not permis--sible to convict the petitioners on the evidence of witnesses who were not believed in respect of Sohli, Nazira and
(6) The case being an old one, the petitioners should not be sent back to prison. In this connection, he relied on Iqbal Ahmad v. State 1968 P Cr. L J 425.
11. It is common ground that prior to the occurrence in question the relations of the to parties were strained and there existed enmity between them.
12. The occurrence took place on the 6th September 1962, at digarwela and the report was made to Riaz Hussain A. S. I. The following morning at Gurna. The explanation given was that no arrangements existed to cross the River Chenab during the night. The explanation is plausible.
There is no serious delay in making the report. Besides the factum of the fight has been admitted by the accused persons. The delay did not cast any doubt about the occurrence itself. The contention is without force.
13. The petitioners at no stage; urged that they received injuries larger in number and graver in nature than those noticed by Dr. Azhar-ul-Hassan on the 25th September 1962. They did not make any grievance of this delay even in their statements under section 342, Cr. P. C. Eventually, they admitted that they received these injuries in the course of the occurrence in question. It is true that Riaz Hussain A. S. I. Omitted to have them medically examined but Malik Arsallah Khan A. S. I. (P. W.
10) duly got them examined. The delay in getting them medically examined, did not prejudice their case.
14. The direct evidence is furnished by Salehon (P. W. 1), Mirza (P. W. 2), Salehon son of Lala (P. W. 5) and Sardara (P. W. 6). Salehon (P. W. 1) and Mirza are closely related, Salehon son of Lala (P. W. 5) has to daughters, namely, Mst. Khatoon and Mst. Rajan. Mst. Rajan is married to Mirza P. W. Mst.
Khatoon is married to Lala, brother of Salehon (P. W. 1). Sardara (P. W: 6) is not shown to be, in any way, related to the complainant party or inimical to the petitioners. Gahra and Nazira did not cause any injuries. Sohli was alleged to have given a dang blow to Mirza. The Court acquitted the petitioners so far as injuries to Mirza were concerned. Sohli was not alleged to have caused any injury to Salehon. It follows that so far as the present petitioners are concerned, the eye-witnesses have made consistent statements and no part there--of has been disbelieved by the Courts below. The Courts below found that the statements made by Salehon (P. W. 1), Mirza .(P. W. 2) and Salehon (P. W. 5) were corroborated by independent evidence of Sardara (P.. W. 6), the evidence regarding the recoveries of barchhi and hatchet and lastly, by the medical evidence relating to Salehon and Mirza and the medical evidence relating to the petitioners. In my opinion, this corroborative evidence entitled the Courts below to accept A and at upon the statements made by Salehon (P. W. 1), Mirza, (P. W. 2) and Salehon (P. W. 5) notwithstanding their relationship inter se and the enmity with the petitioners. The contention is without force.
15. The Courts below found that Salehon was given a hatchet blow by Noti, barchhi blow by Bati and a sota blow by Bashir, whereas Salehon gave one sota blow to the three petitioners each.
Obviously the petitioners were armed with sharp-edged deadly weapons whereas Salehon was armed with an ordinary stick. The D. Ws. Urged that Salehon fell down on a kassi and accidentally received an injury. The defence witnesses failed to explain the injury caused by a sharp-pointed weapon on the chest. The Courts below rejected the defence version for good reasons and I agree with them. The site of occurrence was a vacant field belonging to a third person. Perhaps it was a free fight giving no right of private defence to either party (PLD 1962 SC 502). The irresistible conclusion is that the petitioners were the aggressors and gave Salehon graver injuries. It is not possible to accept that Salehon attacked them first and the petitioners gave the blows in exercise of right of private defence. The contention is without force.
16. As stated above, so far as the injuries to Salehon are concerned, the eye-witnesses made consistent statements. The conclusion reached by the Courts below did not violate the principle that the veracity of a witness is indivisible.
17. So far as Bashir petitioner is concerned, his conviction was maintained and the sentence was altered to one already undergone together with a fine of Rs.
100. The fine has been paid. This order does not require any consideration or modi--fication Bati has been awarded rigorous imprisonment for 9 months and Noti has been awarded rigorous imprisonment for one year. They have suffered their sentences for about to months only. Reference has been made to 1qbal Ahmad and others v. The State (1968 P Cr. L J 425) and it is urged that Bati and Noti should not be sent back to the prison to suffer the remain--ing part of their sentences. Noti gave a hatchet blow on his forehead resulting in fracture of the frontal bone and Bati gave a barchhi blow in the chest. The injuries were serious indeed and do not entitle the petitioners to any indulgence. It is true that they were enlarged on bail by order dated the 16th August 1963, and during the last five years this Court has not been in a position to dispose of the case. This should not, however, deprive Salehon of the redress that he deserves. In my opinion, the petitioners are not entitled to relief on this ground.
18. Before we part with the case, we may advert to the irregularity committed by the trial Magistrate in not recording the evidence in his own handwriting. Section 357 of the Criminal Procedure Code, 1898 provides that "the evidence of each witness shall . . . . . Be taken down by the . . . . Magistrate with his own hand and in his mother-tongue, un--less he is prevented by any sufficient reason from taking down the evidence of any witness, in which case he shall record the reason of his inability to do so and shall cause the evidence to be taken down in writing from his dictation in open Court . . . . . . .". The Magistrate reported that at the relevant the he suffered from a spine trouble and that it was not possi--ble for him to record the evidence in his own hand. Accord-- ingly, he caused the evidence to be taken down by his Reader in writing from his own dictation in open Court. This explanation is fully supported by Mr. Ahmad Khan, Advocate, for the accused persons when the case was being tried by the Magistrate. It is, however, noticed that the Magistrate did not record this fact in the proceedings before he allowed the Reader to take down the evidence. Section 537, Cr. P. C. Provides that any irregularity in the mode of trial shall stand cured, unless the irregularity has occasioned a failure of justice. Mr. Ahmad Khan, Advocate, conceded that this procedure did not, in any way, prejudice the accused persons and that he did not find it necessary to raise any objection on that score in the course of the trial. Since there was no miscarriage of justice on account of this irregularity, the irregularity stands cured. Hazrat Jamal v.
The State (PLD 1958 SC (Pak.) 383) is cited in support of this view. Accordingly, the conviction of the petitioners shall not be affected by the afore--said irregularity.
19. In view of what has been stated above, the revision petition is without force. It is hereby dismissed. Bati and Noti are on bail. They be taken into custody to serve out their remaining part of sentences.
Petition disallowed.