GULBAZ KHAN, J.-Muhammad Asif son of Jahan Khan aged thirty years was tried alongwith his father Jahan Khan, maternal and paternal-cousins Fazal Dad and Muhammad Shafi sons of Muhammad Khan, Muhammad Azam son of Rehmat Khan, Muhammad Ashraf and Muhammad Afzal sons of Pola Khan, for offences under sections 148, 302/149 and 307/149, P. P. C., for committing rioting armed with deadly weapons, for committing murders of Muhammad Asif son of Hakim Ali and Nawab son of Shah Muhammad 4nd for making murderous assault on Bahadur Khan (P. W. 4), Lal Khan (P. W. 6), Muhammad Khalid (P. W. 8) and Muhammad Nawaz (P. W. 9), on 27th May, 1981 at about 6-00 p. m., near the house of Ashraf Ali, situated in village Gorsiyan, at a distance of eight miles from Police Station Kunjah, District Gujrat. The case was tried by the learned Additional Sessions Judge, Gujrat. Muhammad Asif appellant was convicted under section 304, Part I, P. P. C.
And sentenced to undergo rigorous imprisonment for seven years' and a fine of rupees five thousand on each of the two counts or in default in payment of fine to undergo rigorous imprisonment for six months on each count. He was further convicted under section 308, P. P. C.
And sentenced to undergo rigorous imprisonment for four years and a fine of rupees one thousand or in default in payment of fine to undergo rigorous imprisonment for three months. All the sentences were ordered to run concurrently. Muhammad Asif was acquitted of the other charges.
The remaining six accused were acquitted of all the charges. The judgment was announced, on 3rd May, 1982. Muhammad Asif filed appeal against his convictions and sentences. Hakim Ali complainant filed revision petition against all the seven accused, which was admitted by this Court, on 19th July, 1982 against all the accused, except Muhammad Azam. The State also filed appeal under section 417, Cr. P. C. Against the judgment of the learned Additional Sessions Judge.
This appeal was admitted on 13th February, 1983 against all the accused, except Muhammad Azam. Since the criminal appeals' and the revision petition arise out of the same judgment, the same are being disposed of together.
2. On 27th May, 1981 at about 6-00 p. m., Muhammad Asif deceased, Nawab, deceased, Hakim Ali complainant (P. W. 5) Bahadur Khan (P. W. 4), La! Khan (P. W. 6), Muhammad Khalid (P. W. 8) and Muhammad Nawaz (P. W, 9) were present at their baithak situated towards southern side of village Gorsiyan, Muhammad Asif deceased accompanied by his cousin Nawab deceased left for his house followed by the above-mentioned five witnesses. When the two deceased reached near the house of Ashraf Ali son of Pola Khan, the seven accused, namely, Muhammad Asif, Fazal Dad, Jahan Khan, Muhammad Shah, Muhammad Ashraf, Muhammad Afzal and Muhammad Azam came from the front side. Muhammad Asif and Fazal Dad accused were carrying 7 mm. Rifles while the remaining accused, except Muhammad Azam, were armed with .12 bore guns. Muhammad Azam accused was having pistol with him. Jahan Khan accused gave out lalkara that _Muhammad Asif and others should be done to death, whereupon Muhammad Asif appellant fired shot which hit Nawab deceased on the left side of the chest. Fazal Dad accused fired shot which hit Muhammad Asir deceased on the left side of the chest. Jahan Khan accused fired shot at Lal Khan P. W. Hitting him on the right leg and right arm. Muhammad Shafi accused caused injuries to Lal Khan P. W. On the buttocks with fire shots. Muhammad Ashraf accused fired shot at Muhammad Nawaz P. W. Which hit him on the right thigh. Muhammad Afzal accused fired shot at Muhammad Nawaz P. W. Which hit him on the right arm and left ankle. Muhammad Asif appellant fired another shot which hit Bahadur Khan near the left armpit. Fazal Dad accused also fired another shot hitting Muhammad Khalid P. W. On the left shin. Muhammad Azam fired shots with his pistol. Hakim Ali complainant fired in self-defence with his 12 bore licensed gun causing injuries to Muhammad Asif appellant. Muhammad Asif and Nawab died at the spot on account of injuries while Bahadur Khan, Lal Khan, Muhammad Khalid and Muhammad Nawaz received fire-arm injuries but survived.
3. The motive for the occurrence was that Jahan Khan accused contested election against Akbar Ali, a first cousin of Hakim Ali complainant. Akbar Ali was declared successful. Due to that election, the relations between the parties had become strained.
4. Hakim Ali complainant left for the Police Station. He met Muhammad Fazal A. S.-I. (P. W. 15) at Octroi Post, Nagrianwala, at a distance of three furlongs from Police Station, Kunjah, on 27th May, 1981 and made statement Exh. P. C., which was completed at 9-45 p. m. This statement was sent at the Police Station and formal F. I. R. Was recorded.
5. After sending the statement of Hakim Ali complainant at the Police Station, Muhammad Fazal A.
S.-1., on reaching the spot, prepared inquest reports of Muhammad Asif deceased and Nawab deceased and sent their dead bodies for post-mortem examination. He collected blood-stained earth from two places where the dead bodies were lying and sealed them into separate parcels.
Separate memos. Were prepared. Akbar Ali P. W. (not examined) produced blood-stained clothes of Muhammad Khalid, Lal Khan, Bahadur Khan P. Ws., which were taken into possession by Muhammad Fazal A. S.-I. Muhammad Iqbal F. C. Produced the clothes of the two deceased before the said A. S.-I., which were taken into possession. The site plan was prepared by the Draftsman.
Muhammad Fazal A. S.-I. Arrested all the seven accused on 1st June, 1981. He noticed injuries on the person of Muhammad Asif accused. He prepared his injury statement and sent him for medical examination.
6. On 5th June, 1981, Muhammad Shafi and Muhammad Ashraf accused produced .12 bore gun and a cartridge each, Which were taken into possession, vide separate memos. The memos. Were prepared by Muhammad Fazal A. S.-1. And attested by Muhammad Khan (P. W. 10) and Akbar Ali (not produced).
On 10th June, 1981 Muhammad Afzal accused produced 12 bore gun and a cartridge which were taken into possession. This memo. Was prepared by the same Police Officer and attested by the same witness.
On 14th June, 1981 Muhammad Asif accused produced 7 mm. Rifle alongwith two 7 mm. Bullets, which were taken into possession. The rifle was sealed into a parcel. The relevant memo. Was attested by Riasat Ali (P. W. 11) and Akbar Ali (not produced).
Muhammad Azam produced 12 bore revolver and two cartridges before Muhammad Fazal A. On 14th June, 1981 and those were taken into possession. 'The relevant memo. Was attested by Riasat Ali (P. W. 11) and Akbar Ali (not produced). Challan was submitted against the accused after the investigation was completed.
7. Since the injuries on the persons of the two deceased, the four prosecution witnesses and Muhammad Asif appellant are of great signiticance and have lot of bearing on the result of the case, the same are being mentioned in detail.
Dr. Muhammad Iqbal conducted autopsy on the dead body of Muhammad Asif, on 28th May, 1981 at 10 a. m., and found the following injuries on his person :-
(1) A fire-arm entrance wound 1.5 x 1.5 c. In. On the front of chest, 4 c. m. From mid-line, 7 c. m. From the nipple upward and inner side of the third intercostal space.
(2) (a) A fire-arm entrance wound 1.5 x 1.5 c. m. On front of left shoulder, upper 1/4 of left upper arm.
(b) A fire-arm exit wound 2 c 2 c. m, on the back of left shoulder.
(3) (a) A fire-arm entrance wound 1.5 x 1.5 c. m. On the front of right shoulder.
(b) A fire-arm exit wound 2 x 2 c. m. On the back of right shoulder.
On dissection, it was found that the seat of injury No, 1 was the chest cavity through the intercostal space. It had pierced the heart from the right atrium to left atrium and had passed through the upper lobe of left lung and found lodged subcutaneously on the left side of the chest below the inferior angle of scapula. The stomach was half full with semi-digested fluid.
In the opinion of the doctor, the death was on account of injury No, 1, which was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and caused with fire-arm.
The death had occurred immediately. The time between the death and post-mortem was about 16 to 20 hours.
The doctor extracted bullet from the dead body and sealed it into a parcel. He handed over the sealed phial containing the bullet and clothes of the deceased to the police.
8. On the same day, at 11-00 a. m., the same doctor conducted post, mortem examination on the dead body of Nawab and he noticed the following injuries :-
(1) (a) A fire-arm entrance wound 1.5 x 1.5 on front of left chest, 3 c. Tn. From mid-line, 5 c. m., from the nipple in the 5th intercostal space.
(b) A fire-arm exit wound 2 x 2 c. m. On the left side of the chest below inferior angle of scapula. On dissection, injury No, 1 was found to have entered the chest cavity through the 5th intercostal space. It had pierced the heart, right ventricle, lower lobe of lung on left side and then passed out from the posterior wall of chest cavity at the left of inferior angle of left scapula. Stomach was found half full with semi-digested fluid. In the opinion of the doctor injury No, 1, which was ante- mortem and caused by a fire-arm, was sufficient to cause death in the ordinary course of nature.
The time between injury and death was immediate and between death and post-mortem about 16 to 20 hours. It was contained in the post-mortem report that the injury had caused extreme haemorrhage and the death was due to haemorrhage and shock.
9. Dr. Ghulam Mujtaba medically examined Muhammad Khalid P. W., on 27th May, 1981. In his medico-legal report Exh. P. D., the time of examination was recorded as 9-50 p. m. The doctor found the following injury on his person :-
(1) A fire-arm wound of entry 1.8 x 1.6 c. In. With blackening around and lacerated inverted margins about 10 c. In. Below left patella. It was bleeding profusely. There was corresponding hole in the Dhotti On examination, a small hapatraze metallic foreign body was removed.
The injury was kept under observation and X-Ray was advised. This injury was declared grievous after the X-Ray report. The injury was caused with fire-arm and it was fresh.
10. The same doctor medically examined Bahadur Khan P. W., the same day. The time of his examination in the medico-legal report Exh. P. E. Was recorded as 10-00 p. In. The following injury was found on his person :- A fire-arm wound of entry 1.5 X 1 C. m. On front of left chest near anterior border of left axilla about 8 c. In. Near left clavicle.
This injury was kept under observation and X-Ray was advised. After X-Ray, it was declared grievous. It was fresh at the time of examination and caused by a fire-arm.
11. On the same day, the same doctor medically examined La! Khan P. W. The time of his examination was recorded in medico-legal report Exh. P. G. As 10.15 p.m. Following injuries were found on his person :-
(I) Multiple fire-arm wounds (26 in number) of the dimension of <0.2 x 0.1 cam (wrongly recorded as 0.2 X 1 c.m.) ,.About round in shape in an area of 45 c.m. x 22 c.m. (wrongly recorded as 454m. x 42 c.m.) on front of back of right thigh starting from riMiliac crest anterior prominance up to back of right patella with corresponding holes in the chadar.
(2) A fire-arm wound 0.2 c.m. x 0.1 c.m. (wrongly recorded as 2.00 x 1 c.m.) in mid outer portion of right leg.
(3) Fire-arm wounds 0.2 c.m. x 0.1 c.m. (wrongly recorded as 2 x 1 c.m.) round in shape in an area of 10 c.m. Of outer mid of right forearm.
(4) Fire-arm wounds 4 in number and of the dimension of 0.2 x 0.1 c.m. (wrongly recorded as 2 x 1 c.m.) in an area of 14 c.m. x 4 c.m. "outer quadrant" of left buttock. (outer quadrant missing in the Paper Book as well as in the statement of the doctor).
(5) 3 fire-arm wounds 0.2 x 0.1 c.m. (dimension omitted in the Paper Book as well as in the statement of the doctor) round in shape in an area of 11 c.m. x 6 c.m. Outer right "quadrant" buttock (outer right quadrant missing in the Paper Book as well as in the statement of the doctor).
(6) A fire-arm wound 0.2 c.m. x 0.1 C.m. (wrongly recorded as 0.2 X 1 c.m.) on the inner side of the left thigh.
All the injuries were kept under observation. They were fresh and caused by fire-arm. X-Ray was advised for the injuries. After the receipt of X-Ray report, the injuries were declared grievous in nature.
12. The same doctor medically examined Muhammad Nawaz P. W., the same day. According to the medico-legal report, the time of his examination was 10-25 p.m. The following injuries were found on his person :-
(1) A fire-arm wound 0.2 c.m. x 0.1 c.m. (wrongly recorded as 2 X 1 c.m.) in dimension round in shape on the right bicep (upper arm).
(2) A fire-arm wound 0.2 c.m. x 0.1 c.m. In dimension round in shape on the right ankle.
(3) A fire-arm 'wound 0.2 c.m. x 0.1 c.m. (wrongly recorded as 2 c.m. x 1 c.m.) front mid of right shin.
(4) 3 fire-arm wounds (wrongly recorded as a fire-arm wound in the Paper Book as well as in the statement of the doctor) mid and front of right thigh in an area of 12 c.m. x 2 c.m. Of the dimension of 0.2 c.m. x 0.1 c.m. (dimension wrongly recorded as 2 x 5.1).
(5) 4 fire-arm wounds 0.2 c.m. x 0.1 c.m. On the outer of right patella in an area of 10 c.m. x 3 c.m.
Injuries were kept under observation. X-Ray was advised. The injuries were fresh and caused by fire-arm.
12. Dr. Muhammad Iqbal medically examined Muhammad Asif accused,-on 1st June, 1981 at 11-20 a.m. He was taken to the doctor by Zakaullah F. C. No, 60 of Police Station Kunjah. Following injuries were found on his person :-
(1) A scabbed wound 0.2 x 0.2 cm. With reddish margins mid 1/3rd of left upper arm outer aspect (1/3rd omitted in the Paper Book as well as in the statement of the doctor).
(2) A scabbed wound 0.2 X 0.2 c.m. With reddish margins on the left side of the cheek.
(3) A scabbed wound 0.2 x 0.2 c.m. On the right cheek outer angle of mouth. The margins were reddish.
(4) A scabbed wound 1 X 0.2 c.m. (wrongly recorded in the Paper Book as well as in the statement of doctor 0.2 x 0.2 c m.) on the right forehead on its junction with hair.
(5) A scabbed wound 0.2 x 0.2 c.m. On the bed of left thumb nail.
(6) A scabbed wound 0.2 x 0.2 c.m. On the inner side of the bed of the thumb nail.
(7) A scabbed wound 0.2 X 0.2 c.m. On the back of the left thigh with reddish margins.
(8) A scabbed wound 0.2 x 0.2 c.m. On the front of lower 1/3rd of left thigh (wrongly-recorded as left leg in the Paper Book as well as in the statement of the doctor).
The injuries were kept under observation. X-Ray was advised. The duration of the injuries was a few days. After X-Ray report, the injuries were found simple and to have been caused with fire-arm.
14. The prosecution examined fifteen witnesses including Hakim All complainant, four injured witnesses, namely, Bahadur Khan, Lal Khan, Muhammad Khalid and Muhammad Nawaz, the three doctors, the Draftsman, the recovery witnesses, the Investigating Officer and the Constables. The complainant and the four eye-witnesses fully supported the prosecution case and involved the accused in their statements recorded by the trial Court.
15. Muhammad Asif appellant admitted in his statement recorded under section 342, Cr. P. C. That Jahan Khan accused was his father ; Fazal Dad and Muhammad Shafi accused were sons of the real sister of his father ; Muhammad Azam accused was his first paternal-cousin ; Muhammad Ashraf and Muhammad Afzal were the sons of first paternal-cousins of his father. He also admitted that in the last local council election, his father was one of the contesting candidates and he lost the election. He gave this answer when a question was put to him that in the local union council election, Akbar Ali first cousin of Hakim Ali complainant contested election from one side whereas his father Jahan Khan was a candidate in the said election on the other side and in that contest, Akbar Ali was declared successful, whereas Jahan Khan was defeated and due to this the relations were strained. The appellant stated that the election did not lead to any strained relations between them and Akbar Ali. He added that Akbar Ali continued to draw his ration from the Ration Depot of his father lie denied that he was a member of an unlawful assembly and had committed rioting. He further denied to have committed the murders and made murderous assault on the eye- witnesses. He denied the presence of Hakim Ali complainant at the spot. When asked if he produced rifle and two cartridges before the police on 14th June, 1981 he stated that he produced lisensed gun of his father on the very first day of his arrest, which was falsely planted upon Afzal accused and on the last day of his remand, a rifle was planted upon him, which was supplied by the complainant party. He gave the following detailed answer :- "On 27th May, 1981 at about 4-00 p.m. I was present alongwith Muhammad Arshad son of Mehdi Khan at the shop of Khushi Muhammad cobbler in the area of village Gorsiyan and were chatting and joking with each other. Muhammad Nawaz P. W. Happened to pass that way and thought that I had cut a joke with him. He started abusing me and when I stopped him he became enraged and started grappling with me. Fazal Dad accused was attracted to the spot and he separated us. He gave 2/3 pushes to Muhammad Nawaz and asked him to hide his face. Muhammad Nawaz left the scene while threatening that he would take revenge of his insult.
' After Maghrib prayer while I was on my way to my baithak and had not yet reached the turnin of the lane, where the baithak is situated when suddenly Asif and Nawab deceased, Bahadur, Lal, Nawaz and Khalid P. Ws. Emerged from the baithak of Hakim Ali and started firing at me. As the distance between the assailants and myself was more than 120 feet I received some pellet shots on the front of my body. I started running and when I was taking a turn towards the lane leading to our baithak I was hit by another shot fired by the aforesaid persons, which hit me on the left cheek and left arm. In the meantime I heard gunshot reports from the house of Ashraf Ali son of Pola, but I cannot say if the firing was aimed at any particular person or was being made in the air. I got inside my baithak and took out the licensed gun of my father. I loaded it and peeped out of the baithak. As no one was visible in the lane I came out of the baithak and started running towards.
The west. Suddenly another shot was fired from my back, which hit me on the left thigh. I turned round and saw all the six persons mentioned above running towards me armed with fire-arms.
Seeing grave danger to my life at the hands of my pursuers I fired with my gun and saw two of my pursuers falling down. The rest of the pursuers started attending to them. Finding an opportunity I took to my heels and with great difficulty managed to save my life. As the aforesaid persons were firing indiscriminately while chasing me it is just possible that some of them may have been injured by the shots of their own companions. I did not stay inside the baithak as I was being pursued by Asif, Nawab and others, who were armed with fire-arms and there was no outlet from the said baithak, which is situated adjacent to the house of Akbar Ali and Ashraf Ali sons of Pola, who are first cousins of Hakim Ali P. W.1 and my co-accused have been falsely involved after a distorted version was concocted by the complainant party in connivance with the police. Had I not acted in the exercise of the right of my self-defence, ' my assailant would have killed me on the spot."
He did not lead any evidence in defence.
15. Fazal Dad appellant denied the prosecution allegation and stated that he was involved falsely because he divorced Mst. Noor Begum niece of Hakim Ali complainant. He further stated that on the day of occurrence at about 4-00 p.m. He found. Asif accused and Nawaz P. W., grappling with each other in the shop of Khushi Muhammad cobbler in village and he separated them and gave 2/3 pushes_Lo Nawaz asking him to go and hide his face. He further stated that while leaving Nawaz P. W. Threatened to avenge himself.
16. Jahan Khan accused professed innocence and attributed his involvement to the effect that in 1978, Mst. Sharifan daughter of one Bahadur Khan was abducted and a case under section 366, P.
P. C. Was registered against Sardar Khan, a first cousin of Hakim Ali P. W. And in that case the daughter, the son and the wife of the said Sardar Khan were also challaned. Rehmat Khan (father of Azam accused), Sardar Khan (real brother of Ashraf) and Afzal accused appeared as witnesses against the relatives of Hakim Ali complainant. He produced certified copy of the F.
1. R. Exh. D-3. He added that he was an old man with cataract in his eyes and as such he could not go to the extent of firing.
17. Muhammad Shafi appellant attributed his involvement due to his relationship with Asif accused.
He denied to have produced the gun. He explained that the licensed gun of his brother Fazal Dad had been planted upon him.
18. Muhammad Ashraf and his brother Muhammad Afzal accused denied to have taken part in the occurrence. According to them, they were involved on account of their relationship with Asif accused. Muhammad Ashraf stated that the licensed gun of his brother Latif was falsely planted upon him. Muhammad Afzal did not admit the recovery of gun.
19. Muhammad Azam accused stated that his father was a witness in the case against Sardar Khan, first cousin of Hakim Ali complainant in the abduction case of Mst. Sharifan daughter of Bahadur Khan.
' No evidence was led in defence.
19-A. We propose to dispose of the legal objection raised by the learned counsel for Muhammad Asif appellant. It was argued by the learned counsel that the State appeal was incompetent as the District Magistrate had declined to file the appeal and it was after his refusal that the complainant filed the revision petition alongwith the order of the District Magistrate, dated 25thh. May, 1982, declining to file the appeal. It was pointed out by the learned counsel that the complainant moved the Advocate-General and the matter was referred to the Law Department but the case was not found fit for filing the appeal. In support of his submissions, the learned counsel referred to Rule 1-A, Part A (b) Chapter I of the Lahore High Court Rules and Orders. Vol. V, and cited case titled The Crown v. Sultan Mehmmood and others and PLD 1955 FC 20, in the matter of Sh. Abdul Karim, an Advocate .
This objection was met by the State counsel who urged that even after the refusal by the District Magistrate, the Provincial Government was still competent to file State appeal. Case titled Mul Singh v. Emperor was cited in support of this submission.
For the decision of this legal objection, sections 417, Cr, P. C. And 439, Cr. P. C. Would be relevant. It is provided in section 417(1), Cr. P. C that subject to the provision of subsection (4), the Provincial Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court. Under the aforesaid provisions of law it is the Provincial Government, which can direct Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court. Under Rule 1-A, Part A (b), Chapter I, of Lahore High Court Rules and Orders Vol. V, Deputy Registrar has been directed with reference to section 439 (5), Cr. P. C. Not to receive any petition for revision of an order of acquittal unless it is accompanied by a copy of an order of the Magistrate of the District, refusing to move the Provincial Government to appeal under section 417, Cr. P. C. It is provided in section 439 (5), Cr. P. C. That where under the Code of Criminal Procedure, an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the parties, who could have appealed. Jn cognizable cases, the State becomes the complainant although the cases are registered on the statement of some individual persons. In cognizable cases, the right of filing appeal against the judgment of acquittal rests with the Provincial Government and not with the person who lodges the report. Where a case is instituted upon a complaint and the judgment of acquittal is A passed, in such a case, the right has been given to the complainant to make an application to the High Court for the grant of Special Leave to Appeal from the order of acquittal and on such grant the complainant is competent to present an appeal to the High Court. In the instant case, under the law, Hakim Ali complainant could not file an appeal against the impugned judgment and it was only the State which could file appeal under section 417, Cr. P. C. Under the High Court Rules and Orders referred to above, Deputy Registrar has been directed not to receive any petition for revision against the order of acquittal unless it is accompanied by a copy of an order of the Magistrate of the District refusing to move the Provincial Government to appeal under section 417, Cr. P. C. In the case in hand the complainant moved the District Magistrate for filing appeal and the District Magistrat declined to file it. After obtaining the requisite certificate of the District Magistrate, Hakim Ali, complainant filed the revision petition. It is quite clear from the provisions of section 417 (1), Cr. P. C.
That it is the Provincial Government, which can direct the Public Prosecutor to present an appeal to the High Court. The order of refusal by the District Magistrate to file an appeal against judgment of acquittal could not bind the Provincial Government. This proposition was frankly conceded by the learned counsel for the appellant. The facts of the case titled The Crown v. Sultan Meiunood and others were quite distinguishable. In that case during the course of a private revision petition, the Crown through the Advocate-General of Punjab, gave assurance that the Crown did not consider it a fit case for filing appeal against the judgment of acquittal and on that assurance the learned1 2 3 Chief Justice proceeded with the hearing of the revision petition and set aside the order of acquittal but refused to pass an order for the retrial whereupon the Government filed an appeal in which the only ground agitated was that the order of acquittal was improper because the High Court in its order of revision had expressed the view that there was sufficient material for the conviction of the respondents. It was held in the aforesaid case that the appeal was incompetent.
It was observed in the said judgment that the communication of the Government decision not to appeal was final and that after the exercise of revisional jurisdiction, the Government could not by filing an appeal, ask the Court to adjudicate upon the same matter once again. In the above- referred case the Provincial Government through the Advocate-General had given assurance to the Court that the Provincial Government did not consider it a-fit case for filing appeal but subsequently backed out of that assurance and filed the appeal when it was declared by the Court that order of acquittal was wrong yet it refused to order for re-trial. Case cited, in the matter of Sh.
Abdul Karim, Advocate (PLD 1950 Lah. 439), has no relevancy. In case Mu! Singh v. Emperor it was held," so far as the wording of section 417, Cr. P. C. Is concerned, there is nothing in it which shows that it is the District Magistrate alone who can move the Local Government to file an appeal. It is in ordinary case a matter of practice that Local Government is moved by private applicant or the Police through the District Magistrate, or the latter, as the head of criminal Administration in his District, himself moves the Local Government but in the case like the present, I think the Government could have moved otherwise but that has not been done." In the instant case, the Provincial Government had not declined to file appeal against the judgment of acquittal. There was no such indication on the record. Even on the refusal by the District Magistrate to file an appeal, the Provincial Government was still competent to ask the Public Prosecutor to present the appeal against the judgment of acquittal. The objection raised by the learned counsel for the appellant was not tenable. Hakim Ali complainant had proceeded in accordance with law and filed the revision petition after getting the requisite certificate. Hence the revision petition was also competent. The legal objection stands disposed of accordingly.
20. We were taken through the entire record. We heard at length the arguments of the learned counsel for the parties.
21. It was stated by the complainant that the accused had strained relations with them as Jahan Khan had lost the election against his first cousin Akbar Ali. It was admitted by the accused that Jahan Khan was defeated in the last local council election. They denied that they had strained relations with Akbar Ali. According to them Akbar Ali was still drawing his ration from the Ration Depot of Jahan Khan accused. It was brought in the cross-examination of Bahadur Khan that Hakim Ali complainant, his brother Lal Khan and some others preferred an application against Jahan Khan accused for the detachment of certain units of his depot and in consequence thereof the units of their interest were detached. Bahadur Khan deposed in cross-examination that they and the accused party used to have quarrels inter se with respect to the result of local council election as well as other previous matters. He further deposed that the accused party had demonstrated that they would not allow them to enjoy the local membership held by his first paternal cousin named Akbar Ali. He denied the defence suggestion that a quarrel had taken place between Muhammad Nawaz P. W. And Asif accused at the shop of Allah Ditta Mochi. He further denied the suggestion that they had made a concerted attack upon Asif accused and caused him injuries with firearm and in self-defence Asif accused ran to his house wherefrom he fired at them and so Ashraf and Akbar sons of Pola Khan P. W. Also participated and fired in this occurrence as they had dispute over land with them and as they were in the open they were hurt. Hakim Ali complainant stated in Court that his first cousin Akbar Ali contested election against Jahan Khan and in that election Akbar Ali was declared successful and the accused had strained relations with them. He stated in cross-examination that neither he nor his sons offered a deliberate cause of4 grievance to the accused a month prior to the day of occurrence except that two months prior to the occurrence there was some contest about the Ration Depot between La! Khan P. W. And Jahan Khan accused. It stood established from the statements of prosecution witnesses that due to the election between Akbar Ali and Jahan Khan the parties had strained relations. Hakim Au complainant, Lal Khan P. W. And some others had made an application against Jahan Khan accused for the detachment of certain units and were successful in this attempt. It further proved that Jahan Khan accused and others had grudge on that account. It happened two months prior to the occurrence, as stated by Hakim All and it appeared to be the immediate motive with the accused party to launch an attack. Akbar Ali, was a first cousin of Hakim Ali complainant. He had accompanied the injured witnesses to the hospital and had received their medico-legal reports.
He had also attested certain recovery memos. His brother Ashraf All had also attested certain memos. Both of them were cited as prosecution witnesses but were given-up as unnecessary.
These circumstances were ample enough to prove that Akbar All and his brother Ashraf Ali were having good relations with their relative Hakim Ali complainant The defence had put fishy questions to the prosecution witnesses in order c to show that on the day of occurrence at 4.00 p. m., a quarrel had taken place between Muhammad Nawaz P. W. On one side and Muhammad Asif and Fazal Dad accused on the other side, at the shop of Khushi Muhammad cobbler and in that quarrel Fazal Dad accused had given 2/3 pushes to Muhammad Nawaz P. W. And told him to hide his face and Muhammad Nawaz threatened that he would take revenge of the insult. Nothing came out of the cross-examination. There was not an iota of evidence to hold that the said incident had taken place at the shop of Khushi Muhammad cobbler. Muhammad Arshad son of Mehdi Khan and Khushi Muhammad cobbler were not examined in defence in support of the defence suggestion. The motive was with the accused party to assault and not with the complainant side. The decision of the trial Court regarding the motive was against the material on record and it was perverse.
22. According to the prosecution version, Muhammad Asif and Nawab deceased were done to death at Points Nos. 1 and 2 shown in the site plan, whereas Bahadur Khan, Muhammad Khalid, Muhammad Nawaz and Lal Khan were caused injuries at Points Nos. 3, 4, 5 and 6. The said place was in a lane near the house of Ashraf Ali son of Pola Khan. It was in front of the baithak of Hakim Ali complainant. The police collected blood-stained earth from these two points. The houses of the accused were not situated in this lane. It had come in the evidence furnished during cross- examination of Bahadur Khan P. W. That a lane passed beside the house of Muhammad Ashraf son of Pola Khan and further led on to the western side and that the houses of Bahadur and the Imam of village mosque were situated in that lane on the northern side. It had also come on record that the houses of Jahan Khan, Muhammad Shafi and Fazal Dad accused were situated in front of those two houses in the same lane. The lane which turned to the house of Jahan Khan, Muhammad Shafi and Fazal Dad accused was at a distance of fifteen/twenty feet from the door of Muhammad Ashraf son of Pola Khan P. W, It stood established from the evidence that the houses of the iccused were not situated in the lane, where the murders of Muhammad Asif and Nawab took place. Their houses were situated towards west in the lane but were shown in the site plan towards north of the house of Ashraf Ali son of Pola Khan. No blood-stained earth was recovered from the lane which was running east-west towards the north of the house of Ashraf Ali.
23. The presence of Muhammad Nawaz, Bahadur Khan, Lal Khan and Muhammad Khalid P. Ws.
Could not be disputed on account of the injuries on their persons. Even the defence admitted their presence at the spot. Hakim Ali complainant is father of Muhammad Asif deceased and Muhammad Nawaz P. W. He is a first cousin of Nawab deceased. He is married to the sister of Bahadur Khan and Lal Khan P. Ws. He is an uncle of Muhammad Khalid P. W. The baithak of Hakim Ali complainant was situated at a short distance from the place of occurrence. It was stated by all the injured P. Ws that before the occurrence they were present at the baithak of Hakim Ali complainant. It could not be validly argued that the presence of the two deceased, the complainant and the four injured witnesses at the baithak of Hakim Ali complainant was unnatural.
In rural life, the relatives do collect and sit together for a chat. Bahadur Khan P. W. Was a Subedar in the Pakistan Army and he had come on leave during the days of occurrence. It was stated by Bahadur Khan that house of Hakim Ali complainant adjoined his house and he went to the house of Hakim Ali complainant at about 5-00 p. m. And had no special, business. But he explained that he usually visited him. He had gone to the baithak alongwith his brother Lal Khan. As stated above, Muhammad Asif deceased and Muhammad Nawaz P. W. Were the sons of Hakim Ali complainant.
It was a sitting of the close relatives at the baithak of Hakim Ali complainant. Much was dilated upon by the trial Court as to why so many persons were present at the baithak. If there had been any planning of the complainant party, the brothers of Bahadur Khan and LaL Khan P. Ws. Namely, Muhammad Sadiq and Muhammad Sharif and other close relatives of the complainant would have joined them. Bahadur gave a plausible explanation by stating that he followed Muhammad Asif deceased and Muhammad Nawaz P. W. As he wanted to go to the house of his mother. It was stated by Lal Khan P. W. In the cross-examination that they used to sit daily at the baithak of Hakim Ali complainant in the evening to smoke huqqa. The other witnesses made statements on the same lines. Similar explanation was given by Hakim Ali complainant in the F. I. R. As well as in his statement F made before the trial Court, but it was termed as an unlawful assembly. This finding of the trial Court was without any subst.Ince or material on record.
24. The prosecution case was that Muhammad Asif appellant and Fazal Dad accused were armed with 7 mm. Rifles, Jahan Khan, Muhammad Shafi, Muhammad Ashraf and Muhammad Afzal accused with 12 bore guns while Muhammad Azam accused carried a pistol ; that Muhammad Asif appellant fired shot, which hit Nawab deceased on the front side of the chest. The said deceased had a fire-arm wound of entry of the dimension of 1 5 x 1.5 cm. On the front of left chest and an exit wound on the left side of the chest below the inferior angle of scapula. The prosecution version received support from medical evidence. Fazal Dad accused fired shot which hit Muhammad Asif deceased on the left side of his chest. Muhammad Asif deceased had a wound of entry 1.5 x 1.5 c.m.
On the front of chest. A bullet was extracted from this injury. This injury was sufficient to cause death in the ordinary course of nature. This version found corroboration from medical evidence.
Muhammad Asif appellant was stated to have fired at Bahadur Khan which hit the latter near the armpit, whereafter Fazal Dad fired another shot which hit Muhammad Khalid P. W. Below the left knee. Both Bahadur Khan and Muhammad Khalid had fire-arm injuries which were attributed to Muhammad Asif appellant and Fazal Dad accused. The dimension of these two injuries was 1.8 x 1.6 c.m and 1.5 c.m. x 1 c.m. The dimensions of injuries of these two witnesse and of the two deceased were almost the same. It was quite obvious from the X-Ray films of Muhammad Khalid and Bahadur Khan P. Ws. That the foreign metallic pieces were not round in shape as was in the case of Muhammad Nawaz and La! Khan P. Ws. And Muhammad Asif appellant. From the X-Ray films of the said two witnesses and the appellant, it was quite clear that metallic pieces were round in shape, which were the result of .12 bore gun. There are bullets which break into small pieces after striking some object. The injuries of Bahadur Khan and Muhammad Khalid P. Ws. Were not the result of 12 bore gun but had been caused by rifle shots. Although the complainant had not explained the remaining two injuries of Muhammad Asif deceased in the F. I. R., the injured witnesses had explained those injuries in their statements before the trial Court. They had not improved upon their earlier statements recorded under section 161, Cr. P. C. In that regard as they were not confronted with those statements. The com'plainant also explained those two injuries during the trial It appeared to be an omission on the part of the complainant not to have explained those two injuries. Jahan Khan accused was carrying gun and he had fired shot at Lal Khan P. W. Hitting him oh the right thigh and right arm. The shots fired by Muhammad Shafi accused hit Lal Khan on the buttocks. The injuries on the person of Lal Khan could be the result of two shots. The foreign metallic pieces found in the X-Ray film of Lal Khan P. W. Were round in shape and were pellets. The dimension of these injuries was 0.2 x 0.1, which had been caused with 12 bore gun. Muhammad Ashraf accused fired shot which hit Muhammad Nawaz P. W. On the right thigh whereafter, Muhammad Afzal accused fired shot which hit Muhammad Nawaz on the right arm and left ankle.
From the dimension of the injuries and X-Ray film of Muhammad Nawaz, it stood established that the injuries had been caused with 12 bore gun. From the seat of injuries, one could say that the injuries had been caused with two fire shots. The medical evidence clearly fitted in with the prosecution version. Two types of weapons, rifle and 12 bore gun, had been used in causing injuries to the two deceased and four prosecution witnesses referred to above. An incorrect view had been taken by the trial Court that the injuries on the persons of the two deceased and the prosecution witnesses were the result of pellets and not bullets.
25. Great stress was laid by the trial Court on the points that Hakim Ali complainant was not present at the spot, that he had accompanied Muhammad Khalid P. W. To the hospital as his name appeared in the medico-legal report against the column meant for relative of the injured witnesses, that F. I. R., was not lodged on 27th May, 1981 but some time later, that none tried to run away or take shelter which was sufficient ground to believe that the victims were going with an ulterior design, that Hakim Al's version that he fetched the gun from his baithak after the accused opened the attack was incorrect.
26. It is true that Hakim Ali complainant did not sustain any injury during the occurrence. The place of murders was about thirty-seven yards from the door of the baithak of Hakim Ali complainant. It was not a long distance. He was not walking side by side with the two deceased and other prosecution witnesses. Muhammad Asif deceased and Nawab deceased left the baithak followed by Bahadur Khan, Lal Khan, Muhammad Nawaz and Khalid P. Ws. Hakim All complainant was the last person. It was so stated by all the eye-witnesses. In the site plan no place had been shown to indicate that Hakim Ali complainant was walking side by side with the two deceased or the four injured witnesses at the time of occurrence. The accused had come from the northern side. Hakim Ali complainant could see them coming armed with deadly weapons. The accused opened the attack. Hakim Ali, who had a licensed gun, fired shot in self-defence from a distance of eighteen/nineteen yards as stated by Lal Khan. He was shown in the site plan at point No, 7 which was twenty-three yards from point No, I. Hakim Ali complainant had seen the occurrence from near his baithak and had fired shots at the accused causing injuries to Muhammad Asif appellant. The four injured witnesses were removed to Aziz Shaheed Bhatti Hospital, Gujrat, which was at a distance of six/seven miles from the spot. The occurrence had taken place at about 6,00 p. m. The time of arrival of the four injured witnesses given in their medico-legal reports, was as 8.00 p. m Although the complainant denied to have accompanied the injured witnesses to the hospital, it appeared from the record that he did go to the hospital and his name appeared in the column meant for relatives or friends, in the medico-legal report of Muhammad Khalid Exh. P. D.
Muhammad Nawaz injured witness was his son. Lal Khan and Bahadur, the two injured witnesses, were his brothers-in-law while Muhammad Khalid was real nephew. Since they had fire-arm injuries, it was quite natural for Hakim Ali complainant to have accompanied them to the hospital.
The complainant left to lodge the report. He met Muhammad Fazal A. S.-I. At Octroi Post, Nagrianwala, in the area of Kunjah, at about 9-00 p. m. He had gone there on bicycle. He had covered this distance from hospital Gujrat in about one hour's time. His statement was completed by 9.45 p. m. Muhammad Khalid was the first to be medically examined. His medical examination started at 9.50 p. m. His medico-legal report was handed over to Akbar Ali Member. Had Hakim All complainant been present in the hospital at that time, the said medico-legal report would have been handed over to him. It was clearly an indication that at the time of completion of medico-legal report of Muhammad Khalid, Hakim Ali complainant was not present in the hospital.
He had left by then. We cannot subscribe to the view that the F. I. R. Had been lodged on the following day or some time later as suggested during the cross-examination. Statement Exh. P. C.
Was sent on 27th May, 1981, at the Police Station and the formal F. I. R , was recorded at 10-05 p. m.
The A. S.-I. After preparing the inquest reports sent the dead bodies for post-mortem examination.
He had noted three injuries against column No, 10 of the inquest report of Muhammad Asif deceased Exh. P. S. In case the statement of the complainant had not been recorded by that time, the A. S -I, would have got it explained from the complainant because according to his statement Exh. P. C, Fazal Dad had fired one shot at Muhammad Asif deceased. This circumstance proved that the statement of the complainant had been recorded prior to the preparation of the inquest reports. The date of the preparation of both the inquest reports was given as 27th May, 1981. Post- mortem examination on the dead body of Muhammad Asif was conducted on the following day at 10-00 a. m. The doctor found three injuries on the person of the deceased. Injury No, 2 (a) was wound of entry while 2 (b) was its exit. Similarly injury No, 3 (a) was the wound of entry whereas 3
(b) wound of exit. The submission that the case was registered even after the post-mortem examination of the two deceased was without any basis. If the case had not been registered before the post-mortem reports, the A. S.-I. Would have got clarified the three injuries of Muhammad Asif deceased.
' Bahadur Khan P. W. Stated in cross-examination that the two deceased had raised hue and cry for a second. The complainant stated that injured P. Ws. Did not try to run away when Muhammad Asif opened the first fire shot as the injured P. Ws. Were not left with any other alternative. Although Lai Khan P. W. Got up after having fallen down on receiving the fire shot, he was not in a position to run on account of his injuries. Since the attack was sudden and shots were fired by the accused causing injuries to the deceased and the injured witnesses, it was not possible for the deceased or the injured witnesses to run away or to have taken shelter.
27. The learned counsel for the appellant and the respondents contended that the motive given in the F. I. R., was over the election between Jahan Khan accused and Akbar Ali P. W. Which was a simple affair and Akbar Ali was not produced in support of the motive and thus the motive stood unproved that no untoward incident took place in-between the election and the day of occurrence ; that the two deceased had no enmity with the accused ; that Hakim Ali complainant had not made statement before the A. S.-I. At Octroi Post Nagrianwala, as he was in hospital with Muhammad Khaiid P. W. At the alleged time of the recording of his statement ; that according to the F. I. R. Only one shot had been fired at Muhammad Asif deceased but the medical evidence and the inquest report showed that he sustained three injuries ; that after the post-mortem report the eye-witnesses corrected their statement and explained the remaining two injuries of Muhammad Asif deceased ; that a pellet had been recovered from the body of Muhammad Asif deceased ; that metallic foreign body recovered from the person of Muhammad Khalid P. W. Was not produced in Court that one shot could cause injury to both the deceased and Bahadur Khan P. W. ; that Hakim Ali complainant could not fire at the accused for fear of causing injuries to his own relatives who were in-between him and the accused ; that no rifle had been used in the occurrence and all the injuries were the result of 12 bore gun ; and that on account of the suggested motive the two deceased and the injured witnesses armed with deadly weapons attacked Muhammad Asif accused and caused him injuries with fire-arms who acted in self-defence and thus committed no offence.
' Most of the points urged by the learned counsel for the appellant and the respondents have already been met in the above paras. The material point for determination is as to whether the prosecution version was correct or the defence version. It has already been held in the preceding paras. That the motive was with the accused party to attack and not with the complainant party.
No doubt the injured witnesses, the complainant and the two deceased were closely related to each other but their statements could not be brushed aside on account of their relationship inter se. Out of five eye-witnesses, four had received injuries. It was the case of the defence that except Hakim Ali, the two deceased and the four injured witnesses armed with fire-arms waylaid Muhammad Asif accused and when he was returning to his house, he was fire-d at from a distance of 120 feet and while he was taking a turn towards the lane leading to his baithak, he was hit by another shot causing him injuries on the left cheek and left arm. If the six persons armed with fire-arms had attacked Muhammad Asif accused they would have not allowed him to escape.
Muhammad Asif stated in Court that on entering his baithak he took out the licensed gun of his father, loaded it and as no one was visible in the lane, he came out of baithak and started running towards the west ; that suddenly another shot was fired at his back causing injury on his left thigh and when he turned he saw all the six persons mentioned above running ; that he felt great danger to his life and fired with his gun and saw the two of his pursuers falling down. The appellant was palpably false in making the said statement. It was also the case of the appellant that since the complainant party was firing indiscriminately while chasing him, it was just possible that some of them might have been injured by the shots fired by their own companions. The complainant party was nQt so bad-shot that it would cause injuries with fire shots to its own partymen. There was no truth in the defence suggestion put to Bahadur Khan P. W. That Akbar All and Muhammad Ashraf sons of Pola Khan had dispute with the eye-witnesses and they participated and fired and the witnesses received injuries as they were in the open. We have already resolved that they had no dispute with the injured witnesses and had cordial relations with them. After entering the baithak, Muhammad Asif accused was quite safe. There was no occasion for him to come out of the baithak again and run towards the west making himself an easy target to the six persons who were armed with fire-arms. It was quite clear from the statement of Muhammad Asif that he had fired shots while running towards the west of his baithak. In that event, the deceased would have fallen in the lane, which was towards the north of the house of Ashraf Ali son of Pola Khan and was running towards the west from the main street. As mentioned earlier, the police had collected bloodstained earth from point No, 1 and point No, 2 where the two deceased had fallen down on receipt of the fire shots. There could not have been lot of blood at the two places of murders as there was internal haemorrhage. Doctor found three litres of blood in the chest cavity of Muhammad Asif deceased and 3 litres of blood in the chest cavity of Nawab deceased. The injuries on the person of Muhammad Asif could not have been caused by one shot. Although Hakim Ali complainant stated that he had fired once, we are of the view that he had fired more than one shot. It was quite natural for him to have used the gun repeatedly as his sons, nephew, cousins and brothers-in-law were being fired at by the accused.
28. Muhammad Asif did not get himself medically examined soon after the occurrence. It was stated by the Investigating Officer that he searched for the accused for their arrest from 27th May, 1981 till they were arrested on 1st June, 1981. The A. S.-I. Found injuries on the person of Muhammad Asif accused and he got him medically examined. Neither the accused nor their relatives made any attempt to approach the police for the registration of a cross-case. Where Police declines to register a case, it is a tendency with the aggrieved party to move an application before the higher Police officers or move this Court for the registration of the case. No such steps had been taken by the accused party. Even the complaint had not been filed by any of the relatives of the accused.
The circumstances discussed in this para. Negated the defence version. We feel no hesitation in rejecting the defence plea as being totally false, baseless and without any foundation.
29. The Investigating Officer had not sent the weapons to the Fire-Arms Expert because no empty cartridge had been recovered at the spot. The metallic pieces seen in the X-Ray films of Bahadur Khan, Muhammad Khalid, Lal Khan and Muhammad Nawaz P. Ws. Were not extracted from their bodies. As a hapatraze metallic foreign body was recovered from the body of Muhammad Khalid P.
W., there was no use of sending it with the weapons recovered for comparison. Dr. Muhammad Iqbal during examination-in-chief stated that he extracted bullet from the dead body of Muhammad Asif and he made the same into a sealed phial. He further stated that he handed over the sealed phial containing bullet, clothes of deceased as well as the papers and the dead body to the Police. He had twice used the word bullet. The doctor knew, as stated by him in cross- examination that the pellet was round in shape whereas the bullet, was conical. Knowing the distinction fully well, the doctor could not use the word bullet in the post-mortem report. He obliged the defence by stating that the seals appended on the phial D-1 were intact. Phial D-1 contained a big ball round in shape. If this ball had been recovered from the dead body, the doctor would not have used the word bullet in the post-mortem report. The explanation of the doctor that he had used the word bullet in a generalized manner, was not acceptable.
30. There was no material on record to say that the A. S. I. Had reached the spot on the following day of the occurrence. The view of the trial Court was erroneous in this respect. The learned Additional Sessions Judge was not correct in observing that as to why it should not be believed that the injuries at the buttocks of La! Khan P. W, 6 were caused by his own companions who fired from behind at the accused while hitting his own comrades. This aspect has already been considered in the earlier part of the judgment. The trial Court was also not correct in holding that the occurrence had not taken place near the house of Ashraf Ali son of Pola Khan as alleged by the prosecution. He derived this conclusion on account of the presence of little blood at the spot of occurrence, absence of blood at the place where the four witnesses were injured, absence of crime empty or led bullets or pellets. The occurrence had taken place at about 6-00 p. m. The Investigating Officer reached the spot at about 10-30 p. m. The four injured witnesses had been removed to the hospital. Two dead bodies were placed on the cots and kept near the baithak of Hakim Ali complainatit. Several persons must have passed near the spot. Any body interested in the accused could pick up the empties. The absence of empties could not affect the merits of the case. As stated above, the blood had been taken into possession from two places where the two dead bodies fell. There was not profuse bleeding due to internal haemorrhage. Hence there could not be lot of blood at the spot. It was not necessary for the Investigating Officer to trace out or collect blood from the places where the witnesses were jnjured. Pellets or bulletssan be recovered only if those hit some wall and fall near the place. It was not possible for the Investigating Officer to collect the bullets or the pellets from the spot.
31. The defence was unable to show that the injured witnesses had any motive for false implication.
It also failed to prove that there was any other motive except the one which was given by the witnesses. Sardar Khan, a relative of Hakim Ali complainant had abducted the daughter of one Bahanur Khan son of Allah Ditta, in 1978. Jahan Khan accused and Rehmat Khan (father of Muhammad Azam accused) were mentioned as eye-witnesses in the F. I. R. But no evidence was led to prove that both of them did appear as witnesses in the said case. This case had not been registered at the instance of Sardar Khan. He was not a prosecution witness. The complainant could not involve Jahan Khan and Muhammad Azam accused falsely for the reason that their names were mentioned as witnesses in the abduction case against his relative.
32. We are quite conscious of the limitations placed under the law in the disposal of appeal against judgment of acquittal. We are aware that a judgment of acquittal is not to be interfered with lightly and this Court has to give proper weight and consideration to the views of the trial Judge regarding credibility of the witnesses. We also know that presumption of innocence in favour of the accused is by no means weakened by the acquittal after trial, rather the said presumption of innocence gets strengthened but if it is found that the reasons given by the trial Judge are speculative and artificial in nature or the conclusions drawn are perverse, resulting in miscarriage of justice, this Court is duty bound to reverse such a judgment. Where it is found that the lower Court had so obstinately blundered and gone wrong as to produce a result mischievious to the administration of justice and to the interest of the public, this Court should interfere with such a judgment of acquittal.
33. After having considered the material on record and the contentions of the learned counsel for the parties at length, we are satisfied that the grounds on which the judgment of acquittal has been based, are unreasonable and unsound. The case against Muhammad Asif, Fazal Dad, Jahan Khan, Muhammad Shall, Muhammad Ashraf and Muhammad Afzal stood proved beyond reasonable doubt. They are guilty of offences under sections 148, 307/149 and 302/149, PP. C. They are convicted under section 148, P. P. C., and sentenced to undergo R, I. For three years. They are further convicted under section 307/149, P. P. C. For making murderous assault on Bahadur Khan, Lal Khan, Muhammad Nawaz and Muhammad Khalid and are sentenced to undergo R. I. For seven years each and a fine of Rupees two thousand each or in default in payment of fine to undergo further R. I. For six months. They are also convicted under section 302/149, P. P. C. For committing the murders of Muhammad Asif and Nawab. Fazal Dad and Muhammad Asif appellants had caused injuries to the two deceased and thus sentenced to death and a fine of Rupees five thousand each or in default in payment of fine to undergo further R. I. For two years. They shall be hanged by the neck till they be dead. In case their death sentences are commuted to any other terms of imprisonment, their sentences shall run concurrently. Jahan Khan, Muhammad Shafi, Muhammad Ashraf and Muhammad Afzal are sentenced to ,imprisonment for life and a fine of Rupees five thousand each or in default thereof to undergo further rigorous imprisonment for two years. The substantive sentence of these four accused shall run concurrently. The benefit of section 382-B, Cr.
P. C. Shall be given to the accused and the period spent by them as under-trial prisoners shall be counted towards their sentences. The fine, if recovered from Fazal Dad, Muhammad Asif, Jahan Khan, Muhammad Shafi, Muhammad Ashraf and Muhammad Afzal under section 302/149, P. P. C.
Shall be given to the heirs of the two deceased in equal share. The fine, if recovered, from the aforesaid six accused under section 307/149, P. P. C., shall be paid to the four injured witnesses in equal share.
The appeal filed by Muhammad Asif is dismissed.
The State appeal is accepted in the above terms.
Since the State appeal has been accepted, Criminal Revision stands disposed of. PLD 1953 Lab. 271 PLD 1950 Lab. 439 AIR 1923 Lab. 163 AIR 1923 Lah. 163