The appellants have filed this appeal against their judgment dated 26-7-1981 of the Sessions Judge, Jhelum, whereby Zulfiqar Ahmad, Sajid Mahmood and Pervaiz Akhtar appellants have been convicted and sentenced to 10 years' R: I. Each under section 304-II, P. P. C. And fined Rs. 2,000 each or in default to suffer one year R.
1. Each. Likewise Muhammad Siddique appellant was convicted and sentenced to 4 years' R. I. Under section 326, P. P. C. And fined Rs. 1,000 or in default to suffer further six months' R. I. Muhammad Rafique appellant was convicted under section 325, P. P. C. And sentenced to two years' R. I. A fine of Rs. 500 was also inflicted on him and in default of payment of fine he was directed to suffer six months R. I. Arshad Mahmood appellant was convicted under section 323, P. P. C. And sentenced to one year R. I. He was also directed to pay a fine of Rs. 500 or in default to suffer further six months' R.
1. The half of fine, if realised, was directed to be paid to the legal heirs of Ghulam Muhammad deceased and the remaining half to the injured prosecution witnesses in equal shares as compensation.
2. The learned trial Judge, however, acquitted Ali Muhammad, Abdul Hamid and Ibrar Hussain, accused, holding that they had acted in self-defence and were also entitled to the benefit of doubt.
3. Against the judgment of the trial Judge acquitting the aforesaid accused and the sentence awarded to the appellants, the complainant filed Criminal Revision No. 136/81, and the same was ordered to be heard along--with this appeal. The learned counsel for the petitioner in revision petition did not press the petition and as such the same was dismissed as not pressed. This leaves me with the criminal appeal filed by the appellants.
4. The occurrence in this case took place on 18-1-1981 at 2 p.m., as per prosecution version in the house of Ghulam Muhammad deceased in village Bambla situated at a distance of about 9 miles from Police Station, Duman, District Jhelum. The incident was reported by Muhammad Zahoor (P.
W. 10) to Irshad Haider, S. I. S. H. O. (P. W. 12) who happened to be present at Police Station, Chakwal in connection with some other official business. He recorded the statement of Muhammad Zaboor complainant at 5-30 p.m. And forwarded the same to the Police Station for registration of. The case and formal F.
1. R. Exh. P. Q. Was recorded at Police Station, Duman on 18-1-1981 at 6-30 p.m.
5. The prosecution case, as per the F.
1. R., is that on 18-1-1981, the complainant along with his 10 relatives, named in the said statement, remained busy in the construction of a thara of well known as "Mofeed-e-Aam"" till 1 p .m. And after completing the platform they all went to the house of Ghulam Muhammad deceased for taking tea. It was alleged that at about 2 p.m. When they were sitting after taking tea at the house of the deceased, Muhammad Siddique appellant armed with barchi, Pervaiz Akhtar, Sajid Mahmood, Zulfiqar Ahmad, Muhammad Siddique, Arshad Mahmood, Ali Muhammad and lbrar Hussain armed with sotas entering the Haveli shouted lalkara to Sabir Hussain, P. W. That they had come to teach him a lesson for constructing a wall in their way. In the meantime Abdul Hamid (acquitted accused) also came there armed with a laths. Muhammad Siddique appellant gave barchi blow on the back of Sabir P. W. Who fell down after receiving the injuries. Pervaiz Akhtar, Sajid Mahmood and Zulfiqar Ahmad appellants gave first, second and third blow with their respective sotas on the head of Ghulam Muhammad. After receiving these blows, Ghulam Muhammad staggered and picked up a hatchet and delivered its blow to Zulfiqar Ahmad appellant and thereafter fell on the ground. It is stated in the F. I. R. That at this stage Sabir Lambardar, Izat Beg and two women who were also present in the courtyard went inside the room of Ghulam Muhammad due to fear of death and saw the remaining incident through the window of the room. Ali Muhammad (acquitted accused) gave two sofa blows on the head of Hukam Dad P. W. Who picked up a danda from the courtyard and gave a blow to Ibrar Hussain (acquitted accused). After that Ali Muhammad gave sota blow to Hukam Dad P. W. And he fell down.
Muhammad Munir P. W. Who had placed his hand over the head of Hukam Dad in order to ward of the attack on his bead got injured from the sota blow given by Ali Muhammad. Muhammad Rafiq appellant gave sots blow, on the head, right eye-brow and right elbow of Sher Muhammad P. W.
Ibrar Hussain (acquitted accused) tried to give a sota blow on the head of Sultan Muhammad but as be placed his right arm on the head the blow landed on his elbow. Muhammad Aslam P. W. Had snatched soti from Ali Muhammad and gave blow with it to him on his head. Abdul Hamid (acquitted accused) tried to snatch sot! From Muhammad Aslam and 4q this process was given a soti blow by Muhammad Aslam P. W. Arshad Mahmood appellant gave a sot! Blow on the head of Muhammad Aslam P. W. And he fell on a grass-cutting machine and received injuries on this fall.
Abdul Hamid tried to give soti blow on the head of Ashraf P. W. But he had put his left hand on his head and so the b'.Ow landed on his left hand. Thereafter c'-l the accused persons went away along with their respective weapons.
6. The motive of the offence as alleged in the F. I. R. Was that about 2J months prior to the occurrence Sabir Hussain P. W. Had constructed a wall of his Haveli on which the accused persons had asked him to remove wall from that place and construct it at a little backward so that the passage would become wide but Sabir Hussain did not accede to the request. On the day this request was made the accused and Sabir Hussain had exchanged abuses and it was on account of this that all the accused persons bad attacked them with their common object.
7. After the fight the complainant took all the injured persons to Civil Hospital, Chakwal in a Suzuki Van, where they were examined and after obtaining the medico-legal reports he proceeded towards Police Station, Chakwal where he met Irshad Haider, S. I., S. H. O. Police Station, Duman and made a statement to him as mentioned above.
8. Muhammad Siddique, Muhammad Rafique appellants, Abdul Hamid (acquitted accused) are real brothers, Pervaiz Akhtar appellant is son of Siddique appellant, Ibrar Hussain (acquitted accused) is maternal nephew of Muhammad Siddique appellant. Zulfiqar Ahmad appellant is collateral of Muhammad Siddique appellant. Ali Muhammad (acquitted accused) is brother-in- law of Muhammad Siddique appellant. Sajid Mahmood appellant is son of Ali Muhammad (acquitted accused). Arshad Mahmood is son of an aunt of Muhammad Siddique appellant.
9. After recording the statement of the complainant Ch. Irshad Haider, S. I. (P. W. 12) reached Civil Hospital, Chakwal and recorded the statements of the injured persons except Hukam Dad P. W. And Ghulam Muhammad, deceased as they were in state of unconsciousness at that time.
He arrested Zulfiqar Ahmad appellant, Abdul Hamid, Ali Muhammad and Ibrar Hussain (acquitted accused) from the hospital as they were present there for treatment of their injuries. Muhammad Siddique, Muhammad Rafique, Pervaiz Akhtar and Sajid Mahmood appellants were arrested on 26- 1-1981 when allegedly they were produced by Muhammad Aslam, Chairman of the Union Council.
At the time of arrest, the prosecution case is, that they produced sotas P. 5 to P.
8. Muhammad Siddique appellant allegedly produced barchhi P. 10 Arshad Mahmood appellant was arrested from P. A. F., Sargodha where he was serving as corporal. The barchhi P. 10 and sotas P. 11 and P. 12 recovered from Pervaiz Akhtar and Sajid Mahmood appellants were blood-stained and thesis stains were opined of human blood as per report of the Serologist Exh. P. RR and P. RRR Zulfiqar Ahmad while in Police custody led to the recovery of blood-stained sota P. 5 from his cattle-shed on 28-1-1981, i.e., after about 10 days of his arrest Ch. Irshad Haider, S. 1. Got prepared site plans of the place of occurrence. He took into possession blood-stained earth from the place where Ghulam Muhammad deceased was injured vide memo. Exh. P. Z. He also took into possession blood-stained earth from the place where Sabir Hussain P. W. Received injuries vide memo. Exh. P.
AA. He got site plan of the place of occurrence prepared in triplicate from Nawab Khan, draftsman Exh. P. R., P. R./1 and P. R./2. These site plans were prepared at the instance of the Police and at the pointation of the witnesses. Ghulam Muhammad deceased was firstly examined by Dr. Asghar Hamid Qureshi (P. W. 1) while he was in injured condition. As he died at 8-25 p.m. On the same night, the post-mortem examination was conducted on his dead body on 19-1-1981 at 9-15 a.m. By the same doctor. The doctor found same injuries on the dead body of the deceased, which were noted by him in the medico legal report. The injuries in the post-mortem report are reproduced for reference;- "(1) A swelling 4 --x 3 -- on the right side of the scalp behind the vertex.
(2) A tense swelling on the right side of the forehead, right cheek, sight temporal and mastoid area including right ear, in an area 9' x 5 -- . The right ear was blood-stained and right lids were swollen and bluish in colour. . (3) Two swellings 4' x 4', 3' x 4' on left side of the scalp, No. 1 was 1 --above and in front of left ear and No. 2 was 2 --above and left ear."
The skull bones were extensively depressed and fractured under Injuries Nos. 1 and 2. The vault of the skull was broken into many pieces. Right temporal, right parietal, right side of frontal bones were fractured. Right, middle and small part of the posterior craneal fossae were fractured. The brain matter was showing through on right side. The doctor was of the opinion that death was due to injury to the brain and bleeding into and outside the craneal cavity, extensive fractured skull bones as a result of Injuries Nos. 1, 2 and 3 which were individually as well as collectively sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injuries and death was about 4 -- to 6 --hours and between death and post-mortem was about 18 to 22 hours.
The other injured persons examined on the side of the complainant party were Sabir Hussain (P. W.
11), Hukam Dad (P. W. 4) Muhammad Munir, Muhammad Ashraf, Sher Muhammad and Sultan Muhammad.
It may be noted at this stage that out of these injured except for Sabir Hussain P. W. 11 none of the injured came forward to appear as a witness in the case. It may further be added that besides the above-named persons one Izat Beg and Sabir Hussain as well as certain ladies were stated to be present in the house and to have witnessed the occurrence but none of them also came to substantiate the version of the complainant (P. W. 10).
10. The prosecution case, therefore, rests on the ocular account of Muhammad Zahoor (N. W. 10), and Sabir Hussain (P. W. 11), the medical evidence contained in the testimony of Dr. Asghar Hamid Qureshi (P. W. 1), vi the recovery of barchhi P. 10 from Siddique appellant, sofa P. 5 from Zulfiqar Ahmad, sota P. 11 from. Pervaiz Akhtar, sota P. 12 from Sajid Mahmood and the evidence of motive.
11. Against this the plea of defence was that the complainant party attacked Zulfiqar -Ahmad appellant and his acquitted co-accused, namely, Ali Muhammad, Abdul Hamid and Ibrar Hussain and caused injuries to them and thereafter in exercise of right of self-defence they caused injuries to Sabir Hussain injured P. W. And other persons belonging to the complainant party. It was further pleaded that they have been falsely implicated. Sajid Mahmood further pleaded that he was not present at the spot and was in fact on duty in the Bank at the relevant time.
12. The learned trial Judge recorded the statement of Jahan Khan, District Inspector Jhelum (C. W.
I), Muhammad Amir Nawaz, Inspector C. I. A .: Jhelum (C. W. 2). Jahan Khan (C. W. 1) had investigated the case and had recorded the opinion that Sajid Mahmood appellant was not present in the fight and he was present on his duty in Muslim Commercial Bank, Bhagwal and accordingly he had recommended tha. Sajid Mahmood be placed in column No. 2 of the challan.
On this direction tamimma challan was submitted in the Court on 16-5-1981. Muhammad Amir Nawaz (C. W. 2) had also investigated the case. According to his investigation Sajid Mahmood accused appeared to be innocent. All the cheques and vouchers relating to the relevant date i.e. 18-1-1981 carried the signatures of Sajid Mahmood appellant as cashier. Similarly pay slips also bore his signatures. This was so found by Jahan Khan (C. W. 1) also. The entries of the cash book for the relevant date were found to have been entered by the Manager and not by the cashier, namely, Sajid Mahmood appellant. In view of this fact, the plea of alibi and the evidence of two court witnesses were not relied upon by the learned trial Judge.
13. The recoveries of the blood-stained weapons of offence were not relied upon by the learned trial Judge. Visual inspection of the recovered blood-stained sofas revealed that all the sotas except one or two, are of ordinary pattern. Two or three sticks have been made out from the branches of tree and the knots thereof had been rubbed with sand and mud in order to show that they were old. These sticks it was observed, could be found in every house in the village. The recovery of sot! from Zulfiqar Ahmad after about 10 days after the incident whereas the recoveries from the other persons were stated to have been made at the time of their arrest when allegedly they were produced by Muhammad Aslam Chairman. The recovery from Arshad Mahmood appellant was admittedly effected on 18-2-1981 vide memo. Exh. P. Y. The prosecution wants me to believe that though the recoveries were effected many days after the incident yet the appellants never thought to wash the blood stains from the said sotas in all these days. These recoveries as such cannot be believed. Especially when Karamat Hussain (P. W. 9) the recovery witness is brother of Sabir Hussain (P. W. 11) and a relation of the complainant party. This leaves me with the ocular account of Muhammad Zaboor complainant and Sabir Hussain (P. W. 11). These eye-witnesses have deposed about the occurrence as well as the motive. The case as such depends upon the truthfulness of these two witnesses. Muhammad Zahoor complainant states that he went into the room along with Izat Beg, Sabir Lambardar and women at the time when the attack had already commenced and Ghulam Muhammad deceased had been given injuries and he saw the causing of the injuries by the appellant through window. He however, admits that from the window, courtyard was visible but lane was not visible from the said window. Muhammad Zahoor had notified almost ten persons to take tea and according to him they were taking tea on thala (thara) in the courtyard when the appellants and other assailants entered the courtyard, threatened the complainant party and opened attack on them. If 10/11 persons were taking tea in the said courtyard where fight ensued the Investigating Officer would have found the utencils in which the tea was being served in broken or otherwise condition but no such utencils were taken into possession. It was the case of the prosecution that Muhammad Aslam fell on grass-cutting machine after receiving blow and was injured yet the said machine was neither taken into possession nor it was indicated in the site plan. The prosecution version is that the occurrence took place in the courtyard but the blood was found at two places one from the place outside the courtyard in the lane and the other was the place at some distance. 'In the F.
1. R. It was stated that when the accused party challenged the complainant party Ghulam Muhammad deceased went forward. Muhammad Siddique appellant gave a barchhi blow on the back of Sabir Hussain P. W.
When the parties were facing each other it was curious how Sabir Hussain was given a blow on the back to explain this improbability the two witnesses at the trial made an improvement by saying that Muhammad Siddique appellant came at the back of Sabir Hussain and gave barchhi blow holding barchhi in his two hands with full force. It was also an improvement that some of the accused persons named in the F. I. R. Were also injured. Details were given as to how Zulfiqar Ahmad as well as the three acquitted accused received injuries. One of the injuries on the person of Zulfiqar Ahmad was explained by introducing an unbeliev--able story that Ghulam Muhammad after receiving three blows on his head staggered and while he was staggering, caught hold of a hatchet lying in the courtyard and after giving blow to Zulfiqar Ahmad fell down. A reference to the injuries found by the doctor on the person of Ghulam Muhammad cannot be expected to be believed to pick up the hatchet and give its blow. No doubt Sabir Hussain (P. W. 11) was an injured witness but the improvement made and the version narrated by -him is not believable. It is worth noticing that Hukam Dad, Muhammad Munir, Muhammad Ashraf, Sher Muhammad, Muhammad Aslam and Sultan Muhammad who were stated to have received injuries in the incident and were admittedly related to the complainant party did not come forward to support the version of the incident put by Sabir Hussain (P. W: 11) and Muhammad Zahoor complainant. The complainant (P.
W. 10) went into hiding and admittedly could not have seen the occurrence. If it had happened in the lane the blood was. Secured from the lane and as such that part of the incident could not have been seen by Muhammad . Zahoor (P. W. 10). Moreover, the doctor found four injuries on the person of Ghulam Muhammad deceased but the P. Ws. In their testimony only talked of three blows having been given to Ghulam Muhammad deceased.
As regards Sajid Mahmood appellant, it was admitted by the two Court witnesses that on the relevant dates all the cheques and pay slips carried his signatures. Their testimony was disbelieved by the learned Sessions Judge for the reason that the entries in the cash book for the said date were not made, by him. Learned Sessions Judge failed to consider that the cheques and pay slips are to be handled by the cashier as and when those are presented Sajid Mahmood appellant admittedly handled them. This shows that he was present in the Bank on the day of the incident.
Cash book can be written even later on. It appears that Sajid Mahmood either left in the day and that is why the entries in the cash book were made by the Manager or the said cash .Book was written by the Manager on request of Sajid Mahmood appellant. This was a small branch in a village and at such places only two or three employees work. It was not very unusual for the colleague, to make entries in the cash book. This evidence if does not successively proves the plea of alibi still it goes to support the plea of alibi taken by Sajid Mahmood appellant. The benefit of doubt so emerging has to go to him in any case. .
The investigation conducted by Ch. Irshad Haider, S: I., S. H. O., then posted at Police Station, Duman was dishonest. He in his deposition stated that he recorded the statement of Muhammad Zahoor at Police Station, Chakwal where he happened to be present in connection with some official business. He could not state the business for which he was present there. Ali Muhammad, F. C. (P.
W.) who had escorted dead- body of the deceased to the mortuary for post-mortem examination stated in cross-examination that he along with Ch. Lrshad Haider, S. H. O. And Muhammad Khan, F.
C. P. W. Started from Police Station for the Hospital, Chakwal, which is at a distance of about 16 miles at about 8-30 p.m. Reached there at about 9-30 pan., in a bus and that Noor Sultan Constable and Khadim Hussain, F. C., were sent to the hospital earlier and that these two Police officials were present at the hospital when they reached there. Noor Sultan appeared as P. W. 8 who on 18-1-1981 received blood-stained shirt, bunyan of Sabir Hussain injured and delivered the same to Irshad Haider, S. I. Who took them into possession vide memo. Exh. P. S. He received these clothes from thedoctor at about 6/7 p.m. On 18-1-1981. He further stated in cross-exami--nation that he had reached hospital at about l -- or 2 hours before he was given the clothes by the doctor.
This corroborates the statement of Ali Muhammad, F. C. (P. W. 2), that Noor Sultan had been despatched to the hospital earlier from Police Station, Duman. This will show that the information of the incident was received at Police Station, Duman from where the Police Party including Ch. Irshad Haider, S. I. Left for the hospital without record--ing the statement of the person who had informed about the occurrence and without recording any _F. I. R. This will also show that Ch. Irshad Haider S. I. (P. W. 12) was telling lie when he stated that he had gone to Police Station, Chakwal in the morning and was present there in connection with some official business and that Muhammad Zahoor P. W.
Came to him at 5-30 p.m. On 18-1-1981 and that he recorded statement there and sent the same to Police Station, Duman for registration of the formal F. I. R. It will be noted that 7 hours elapsed between his arrival at Police Station, Chakwal and the contact made with him by Muhammad Zahoor complainant and he had the audicity to state that he did not remember what he had been doing for about 7 hours at Police Station, Chakwal before arrival of the complainant. He admittedly did not make any entry in the roznamcha at Police, Station, Chakwal of arrival nor he remembered as to whether he had made any entry in his own Police Station regarding his visit to Police Station, Chakwal.
In these circumstances no evidentiary value can be attached even to the F. I. R. And to the investigation conducted by Irshad Haider S. I., S. H. O.
It is high time that the Police officers should realise that their duty is to protect the life and property of the citizens and to maintain law and order. It is also duty of the Police to bring to book the culprits who take law into their hands and have committed offences. In the performance of their duties, the Police officers are expected to collect sufficient material and evidence in accordance with law so Ls to prove the guilt of the actual culprits with a view to have them punished in accordance with law by the Courts established for the said propose. There is no dearth of cases where interested 'persons and parties try to involve innocent persons along with actual culprits and in cases where the actual culprits are not known, effort to involve enemies with the purpose of screening them out is also made. In this effort and process Police is not expected to take any side.
As law enforcing agency, i.e., the Police are protector of the person and property of the citizens and are expected in discharge of their duty to bring the actual culprits to trial for verdict of the Court.
Whatever the system of administration whether based on Angle-Saxon System or Islamic Law, no progress would be possible until and unless the Police-the agency responsible for collecting evidence against the alleged crimi--nals fail to act by procuring sufficient material connecting the alleged culprits with the offence charged and produces the said material before the Court which can stand the test of reason and law and which can- barreled upon for holding the culprits charged with the offence guilty beyond reasonable shadow of doubt. I may add that Islamic Jurisprudence also recognizes the principle of establishing guilt of accused beyond reasonable doubt before convicting him. The principles of appreciation of evidence and or judging the guilt of an accused under laws based on Anglo-Saxon Laws are basi--cally the same which are recognized by Islamic Laws.
14. It is unfortunate that though Zulifqar Ahmad appellant admit--ted his participation in the fight but as the prosecution had failed to prove its version, no offence can be found to have been committed even by Zulifqar Ahmad appellant as he cannot be held guilty of any offence on the basis of the statement made by him under section 342, Cr. P. C.
15. The result of the above discussion is that in the facts and circum--stances of this case the prosecution evidence cannot be relied upon to bold the appellants guilty of the offences charged.
The prosecution failed deliberately to take the Court into confidence as to what was the motive and how the fight started. The impression cannot be avoided that innocent persons were also involved. I am conscious that in cases of free fight parties do not gene--rally come out with true story. It is a nominal incident of an "adversary proceeding" to minimise ones own part in the incident. In such a case the Court must not be deterred by the incompleteness of the tale from drawing, the inferences that properly flow from the evidence and circumstances. But is this case of free fight ? The answer trust be in the negative as accord--ing to prosecution, the assailants came armed and launched an attack on the! Complainant party in their very house. All the assailants cannot be considered to have gathered at the place of occurrence without pre-planning, concert and preparation. The prosecution therefore, concealed the actual story of occurrence ; thus it is the prosecution which must fail. The appeal is there--fore, accepted, conviction and sentences awarded to the appellants are set aside. Zulfiqar Ahmad, Sajid Mahmood and Pervaiz Akhtar appellants are in Jail. They shall be set free forthwith, if not required in any other case. Muhammad Siddique, Arshad Mahmood and Muhammad Rafique appellants are on bail. Their bail bonds shall stand discharged. s. G. D. Appeal allowed.