ATAULLAH SAJJAD, J.-This judgment will dispose of Criminal Appeals Nos. 247, 509 and 756 of 1967 and Criminal Revision No. 1116 of 1967.
2. Muhammad Ihsan Butt and his son Muhammad Ikram Butt were tried by Mr. Muhammad Hassan Sindher, the Ex---Officio Additional Sessions Judge, Jhelum for offences under sections 302 and 307 read with section 34 of the Pakistan Penal Code. Muhammad Ihsari was acquitted of both the charges but Muhammad Ikram was convicted under section 304, Part I, and sentenced to transportation for life. He was acquitted of the charge under section 307, P. P. C. Muhammad Ikram filed Appeal No. 247 of 1967, against hit conviction and sentence: The State has filed Appeal No. 756 of 1967 against the acquittal of Muhammad Ikram from charges under sections 302/34 and 307/34, P. P. C. The State has also filed Appeal No. 509 of 1967 against the acquittal of Muhammad Ihsan from all the charges. The complainant also filed Criminal Revision No. 1116 of 1967 against the acquittal of the respondents from charges under section 302/307/34, P. P. C. Notice was issued in this Revision Petition as well.
3. During the hearing bf this case, Mr. M. Anwar raised a preliminary objection to the, entertainment of Criminal Appeal No. 756 of 1967 which has been filed by the State against the acquittal of Muhammad Ikram from charges under section 302/307, P. P. C. It was argued that in the first instance only an appeal against acquittal of Muhammad Ihsan had been filed but on a second thought after the appeal against Muhammad Akram had come up for preliminary hearing, the then Additional Advocate-General moved the Government to sanction the filing of an appeal against the implied acquittal of Muhammad Ikram from charges under sections 302 and 307, P. P.
C. This appeal was barred by the by over a month but a Division Bench of this Court at a preliminary hearing condoned the delay. Mr. M, Anwar submitted that a valuable right had accrued to Muhammad Ikram by lapse of the and in his absence and without notice to him no order regarding condonation of delay could be passed. He in this connection referred to the case of Gulzar Hassan Shah v. Ghulam Murtaza and 4 others (PLD 1970 SC 335) and submitted that this order of condonation of delay which was passed ex parte could be recalled. It was observed by the Supreme Court in the precedent case that the general principle of finality of judgments will not apply to cases where an order was passed without jurisdiction or without giving an opportunity to the parties of being heard and that in such cases section 561-A, Cr. P. C. Could be invoked for the purposes of justice between the parties and for seeing that the at of the Court does not injure any of the parties.
4. We have given our anxious thought to the argument of the learned counsel and we find force in it. We feel that the delay should have been condoned subject to all just exception in and the ex parte order of condonation of delay should be recalled We have ourselves applied our mind to the fact whether or, not the delay should be condoned in this case and we find that this is not a case where we should order the condonation of delay.
5. The case for the State is that though the trend of the recommendation made by the office of the Advocate-General was that appeal against both the accused should be filed but in the concluding portion of the opinion the word respondent in singular was inadvertently used. The Law Department after studying the case had given sanction for filing appeal only against Muhammad Ihsan although the facts of the whole case were before Law Department in the form of the opinion of a Law Officer of the office of the Advocate-General.
6. The condonation of delay is ordered in the interest of justice where the delay had occurred due to circumstances beyond the control of a party. Here the whole case was before the Government when the Law Secretary recommended the filing of an appeal against only one person. It, therefore, cannot be said that it was on account of circumstances beyond the control of the Government that this delay had occurred. In The State v. Ghulam Shah and others (PLD 1959 Lah. 9), where the appeal was barred by 14 days, a Division Bench of this Court refused to condone the delay and their Lordships brought about a distinction between a case of convict who files an appeal with delay and the case of the State where appeal is filed against acquittal. We may quote here with advantage the observations of Shabbir Ahmad, J. Which find mention at page 10 of the report :- "It is well-known that the law looks with more disfavour at the conviction of an innocent person than the acquittal of the guilty one, and the reason for this attitude is not far to seek. If the period of limitation in filing an appeal against an order of conviction is not extended the result can be that an innocent person may suffer punishment which he does not deserve, but if the same course is followed in the case of an order of acquittal all that can possibly result is that a guilty person may escape punishment which he deserves. It cannot be overlooked that a period of six months is allowed to the Provincial Govern--ment to present an appeal under section 417 of the Code of Criminal Procedure against an order of acquittal and I am of the view that this long period should be extended only where exceptional circumstances exits."
We feel that the condonation of delay should be refused on another principle. The Law Department had looked into the' matter and had decided that appeal only against Muhammad Ihsan should be filed. It was not permissible to them on general principles of law to change their mind and decide to file an appeal) later on in respect of a person against whom they had not chosen a to file an appeal earlier. It was observed in The Crown v. Sultan Mahmood and others (PLD 1953 Lah. 271) that when the Crown elected not to appeal, the power to appeal was exhausted and could not be revived by the mere fact that the advisers of the Provincial Government had changed their mind. It was also held that the appeal under consideration was not competent in law and must be thrown out on that ground alone. In view of what we have said, the preliminary objection prevails.
7. Now we come to the merits of the case. The accused were charged with the above offences for causing the death of Zulfiqar Ahmad and for making a murderous assault on Muhammad Akram (P. W. 5) a maternal uncle of the deceased. The evidence is that Manzoor Ahmad Babar a brother of Muhammad Akram (P. W. 5) was a Basic Democrat and was an aspirant to the office of the Chairman of the Union Committee. Muhammad Ihsan Butt claimed that he had some influence on Munawwar Ali Zaidi, who was also a Basic Democrat and could get his vote for Manzoor Ahmad Babar provided a sum of Rs. 10,000 was paid for that purpose. Babar withdrew from the contest and the election took place between Abdul Karim Sethi and Fateh Muhammad Nayyar. Abdul Karim Sethi had been set up by the Muslim League, and it 'a said that Muhammad Ihsan Butt who was also member of the Muslim League Party, again demanded Rs. 10,000 for the vote of Munawwar Ali Zaidi. This was refused with the result that Fateh Muhammad Nayyar got elected. The complainant party are said to have let this information out with the result that Muhammad Ihsan Butt and his son Muhammad Ikram Butt felt insulted at this propaganda.
8. On the 23rd of January 1966, which happened to be the Eid Day, Muhammad Ikram Butt met the deceased and Muhammad Akram (P. W. 5) at a cinema house at about 8-30 p.m. And complained that they had been propagating against his father. There was an altercation and the complainant and the deceased are said to have slapped Muhammad Ikram. On the same night after an interval of about one hour the deceased and Muhammad Akram were passing in front of the baithak of Muhammad Ihsan Butt when the latter challenged them and asked Muhammad Akram to listen to him. He came out and told them that he would teach them a lesson for false propaganda against him. Muhammad Ihsan whipped out a knife and gave a blow to Muhammad Akram, P. W. In the belly. The second injury was given on the left side of the neck of the witness. Muhammad Akram fell down. Zulfiqar deceased stepped forward to save his uncle and in the meanwhile Ikram Butt who was armed with a knife came out of his house. Both the accused started causing injuries to the deceased. Ikram accused dealt a blow with his knife to the deceased on his chest and Ihsan gave a blow which fell on his belly. Ihsan gave another blow to the deceased on the forehead. The knife of Ihsan dropp--ed from his hand and was picked up by Akram (P. W. 5). He gave an injury to Ikram Butt on the chin. The deceased after receiving three injuries ran away and was followed by, Muhammad Akram who overtook him near the house of Fazal Illahi Machhi. The tussle between Muhammad Ihsan and Muhammad Akram continued and Ihsan received an injury on his hand by a blow given by Muhammad Akram P. W. With the knife which had fallen from the hand of Muhammad Ihsan. Ihsan then went into his house and Muhammad Akram P. W. Started towards the house of Fazal Machhi but tumbled down in the way and received an injury on his forehead.
After getting up when he reached near the house of Fazal Machhi he saw that Muhammad Ikram accused was sitting on the chest of Zulfiqar deceased and gave one or to blows on his chest in his presence. Muhammad Akram raised an alarm and. Several persons were attracted to the spot among them being Muhammad Nazir (P. W. 6) and Azizul Haq (P. W. 7). Another eye-witness, named, Ghulam Nabi Qassab was not produced at the trial.
9. The injured persons were taken to the hospital in a tonga and were examined by the doctor. In response to a telephonic message from the doctor Ali Muhammad S. H. O. Police Station, Jhelum, came to the hospital and recorded the first information report to the dictation of Muhammad Akram P. W. At 11-50 in the night. Formal F. I. R. Exh. P. B. 1 was drawn up on the basis of this statement. Muhammad Ihsan and Muhammad Ikram were also- brought to the hospital, in an injured condition where the same S. H. O. Recorded the F. I. R. In the counter --case under sections 452 and 307, P. P. C. To the dictation of Muhammad Ihsan Butt. We find from the cross-examination of the Sub-Inspector that both the parties were present in the hospital when he arrived and it was just by chance that he record--ed the statement of Muhammad Akram P. W. First and that of Muhammad Ihsan later on.
10. Zulfiqar died in the hospital on 21st of January 1966, at 11-20 a.m. And his dead body was sent for post-mortem examination. The doctor, in all, found five injuries on the dead body, one of which was a contused wound on the right side of the scalp and the other four had been caused with a sharp- edged weapon. According to the doctor death had been caused by injuries 3 and 5. Both these injuries had resulted in excessive internal haemorrhage and damage to lung and were found sufficient in the ordinary course of nature to cause death.
11. Muhammad Ihsan Butt had three incised wounds while his son Muhammad Ikram had eleven injuries, one of which was contused wound on the front and middle of left arm and the rest had been caused by a sharp-edged weapon on different parts of the body.
12. Muhammad Akram (P. W. 5) received three injuries, one of which was contusion on the left side of the forehead and the other to were incised wounds, one on the outer part of the abdomen and the other on the left side .Of the, neck. It may be stated here that the first information did not mention the fact of any injury having been caused to the accused. The first informant also omitted to mention that Muhammad Ikram had met him and the deceased at the cinema and there was an alterca--tion between them and that they had slapped Muhammad Ikram. There was no mention of the fact in the F. I. R. That the knife had fallen from the hand of Muhammad Ihsan and the first informant had given him an injury on the hand with the same knife. At the trial however, it was admitted by Muhammad Akram that he had given only one injury on the chin to Muhammad Ikram. Aziz-ul-Haq (P. W. 7) stated that Akram P. W. Had given one or to injuries to Muhammad Ikram. There is, therefore, no explanation coming forth from the evidence of the prosecution for the fourteen injuries on the person of the to accused.
13. The case of the defence, as is revealed by the F. I. R. Dictated by Muhammad Ihsan in the hospital (a copy of which is Exh. P. A. On this record) and the statements made by the accused at the trial, was that there had been an altercation between Muhammad Ikram Butt on one side and the deceased and Muhammad Akram and Muhammad Nazir P. Ws. 5 and 6 respectively on the other, at the Regent Cinema and that Muhammad Ikram. Butt had come home and had complained of this fact to his father. Some the after that Muhammad Akram (P. W. 5), Muhammad Nazir (P. W. 6) and the deceased came armed with knives at about 9-30 p.m. And trespassed into the house of Muhammad Ihsan Butt where they gave injuries to him in the presence of some persons. On the outcry raised by Muhammad Ihsan, his son Muhammad Ikram came from the upper storey and gave a danda blow to Muhammad Akram (P. W. 3). While fighting Muhammad Ikram went out and clasped Zulfiqar deceased in order to apprehend' him. Muhammad Nazir and Muhammad Akram P. Ws. Thereupon showered blows with knives on him some of which also fell on the deceased who was thus injured at the hands of his own companions.
14. The learned Additional Sessions Judge found that the `prosecution witnesses had suppressed material facts with regard to the large number of injuries on the person of the deceased and were not therefore trustworthy. He, however, convicted Muhammad Akram under section 304, P. P. C, for reasons which will find mention hereinafter. He observed that Muhammad Nazir and Azizul Haq P.
Ws. May have been there as people loiter about on the Eid day. According to both these, witnesses they were sitting at the shop of one Ismail at about 10 p.m. And were gossiping there. Muhammad Nazir runs a dry cleaners shop in partnership with his brother-in-law Qudratullah in the same lane but he does not claim that, that shop was open at that the. We find it difficult to believe that in the wintry night of 23rd of January these to persons found a convenient place for gossiping at the platform of the closed shop of Ismail and exposed themselves to the discomfort: of facing chill. We are inclined to think that Muhammad Nazir P. W. If at all he was there, must have come for some other, reason. We do not think that Azizul Haq was with him at that the:
15. The Investigating Officer had found blood inside the baithak of Muhammad Ihsan as also in the lane outside the baithak. He also found blood near the house of Fazal Ilahi Machhi. A danda was also found in the street by the Sub---Inspector. The learned Additional Session Judge on these facts appears to' have believed the defence story that the fight had started inside the baithak of Muhammad Ihsan and the statement of Muhammad Ikram that he had given a danda blow to Muhammad Akram P. W. Appeared to be correct. He acquitted Muhammad Ihsan because he believed the story that he had been attacked inside the baithak; but convicted Muhammad Ikram on the ground that it would not have been possible for the deceased to run for a distance of 88 feet from the place where the fight was proceeding in the lane to the place where he fell down after receiving injuries on the chest and the abdomen and that Muhammad Ikram being a sturdy young man must have followed him and inflicted these injuries after pursuing him. We-find from the evidence of Muhammad Akram P. W. That the deceased had already been dealt blows in the lane on the chest and the belly. The deceased had already received three wounds from the hands of the assailants. Muhammad Ikram had already given him an injury on the chest and Muhammad Ihsan had inflicted to wounds on him one on the belly and the other on the forehead. The witnesses do not agree as to the number of the injuries given to the deceased when he had fallen in front of the house of Fazal Ilahi Machhi. Muhammad Nazir P. W. Had stated before the police that only one injury was given 'by Muhammad Ikram to the deceased when he had fallen down. Azizul Haq stated at, the trial that Ikram had given the deceased one injury on the forehead and another injury on his chest while the latter had fallen down, but before the police he had mentioned only one injury. We, therefore, find from the prosecution story itself that the injuries on the chest and the abdomen had already been inflicted on the deceased. We agree that normally with such a grievous injury a person may not be able to run a distance of 88 feet but in this case the prosecution story itself shows that the injuries on the chest and the abdomen had been inflicted in the lane and the deceased ran a distance of 88 feet and fell down in front of the house of Fazal Ilahi Machhi. It is, therefore, doubtful whether Muhammad Ikram gave the fatal injuries to the deceased in front of the house, of Fazal Ilahi Machhi. They were probably given when the fight was going on in the lane.
16. There is another aspect of the case. The learned Additional Sessions Judge held that the circumstances were in favour of the probability that the accused were first attacked by the complainant party. The fact that the blood was found inside the baithak clearly goes to support the observation of the learned Additional Sessions Judge and in that case the accused had a right to apprehend the trespassers as they had committed a cognizable offence by entering into their house during night and attacking Muhammad Ihsan with open knives. If we believe that the deceased had come armed and inflicted injuries to Muhammad Ikram in order to ward of his arrest, the appellant was perfectly within his right to give blows in self-defence. Muhammad Ihsan stated before the committing Magistrate that his son wanted to apprehend the assailants and was resisted and given injuries. We find that we cannot maintain the conviction of Muhammad Ikram on a mere supposition that after receiving the injuries on the chest or abdomen he could not run 88 feet of distance. We have found above that perhaps the fatal injuries had been inflicted in the lane according to the own version of the prosecution and we do not think that it was impossible for the deceased to run a distance of 88 feet and fell down before the house of Fazal Ilahi Machhi. The argument of the learned Additional Sessions Judge which he pressed into service for convicting Muhammad Ikram is, therefore not infallable. It would in each case depend upon the individual strength, deter--mination and inner reaction of the injured person as to what action be taken in a desperate attempt to save himself. The deceased lived for about 14 hours after receiving these injuries although he was in a state of unconsciousness.
17. As a result of the above discussion we allow the appeal filed by Muhammad Ikram against his conviction and sentence and dismiss the appeals filed by the State against Muhammad Akram and Muhammad Ihsan. The Criminal Revision also stands dismissed. Muhammad Akram shall be set at liberty if lie is not required to be detained in some other case.