Criminal Revision Nos. 1310 and 1311 of 1971 are connected matters, the former having been directed against the judgment of the learned Additional Sessions Judge, Gujrat, dated the 29th of November 1971, whereby he upheld the convictions of the petitioners under sections 148 and 307/149, P. P. C. maintained the sentence of one year's R. I. each on the first count but reduced the sentence of three and a half years' R. I. on the second count to that of two and a half years' R. I. each, maintaining the sentence of fine of Rs. 200 each or further five months' R. I. each in default of payment thereof. The second case is a private revision filed by Muhammad, the injured person, for the enhancement of sentences. This judgment will dispose of the two revision petitions.
2. The case for the prosecution briefly is that on the lst of June 1970, at about sunset time, Muhammad petitioner in Criminal Revision No. 1311 of 1971, accompanied by Nazra, who was given up as unnecessary, was returning to his house from Busal Sukha. As he reached near the house of Maula, shoemaker, all the seven petitioners of whom Haider, Ghulam, Shera and Siddique were armed with lathis, Shana with a hatchet, and Salehon and Manak with spears, waylaid and attacked him. Salehon hit Muhammad with a spear on the left shoulder followed by Manak who gave him a spear blow on the left leg. Ghulam and Haider belaboured him with their sticks. Shera also gave him a stick blow on the left side of the chest. Siddique gave him a stick blow on the buttocks. Then all belaboured him indiscriminately. On the alarm raised by Muhammad and his companion Nazra, Shera son of Muhammad, Nur son of Mirza and Muhammad son of Murad, were attracted to the spot and saw the occurrence. They also entreated the assailants to spare Muhammad. The same night Muhammad was removed to the Civil Hospital, Mandi Baha-ud-Din and was got medically examined at 10-15 p.m. the same night. On the next morning, his son Shera repaired to Police Station Miana Gondal and lodged the report Exh. P. A. with Sher Bakhsh A. S. I. on the basis of which a case under sections 148, 307/149, P. P. C. etc. was registered against the petitioners. The motive alleged was that several years before the murderous assault on Muhammad, he had fired at Zaida, father of Haider, Ghulam and Salehon petitioners and injured him for which he was challaned but was acquitted.
3. Vide medico-legal report Exh. P. D. Muhammad was found to have sustained as many as 20 injuries of which injuries Nos, 1, 3 to 9, 15 to 17 and 20 were caused with blunt weapon while injuries Nos. 2, l2, 14, 18 and 19 were caused with sharp- edged weapon and injuries Nos. 10 and 11 with sharp-pointed weapon. Injuries Nos. 4, 9, 14 and 15 were declared grievous. On the advice of the doctor incharge of the Civil Hospital, Mandi Baha-ud-Din, Muhammad was later shifted to Mayo Hospital, Lahore. In the final challan submitted by the police Salehon petitioner was placed in column No. 2, for having been found innocent.
4. The prosecution case rested on the testimony of Muhammad, the victim of the assault, who appeared as P. W. 1, Nur Muhammad P. W. 2, Muhammad son of Murad P. W. 3 and Shera P. W, 4 son of Muhammad P. W.
5. The petitioners pleaded not guilty to the charge and examined three witnesses in defence. Sayed Fiaz Hussain Shah, Inspector of Police, appeared as D. W. 1 and stated that on an application submitted by the accused party he investigated the case afresh after the challan had already been submitted in Court. Sheikh Abdul Manan.a Commission Agent of Mandi Baha-ud-Din, appeared as D. W. 2 and supported the plea of alibi raised by Salehon petitioner. He stated that on the lst of June 1970, Salehon had received from him a sum of Rs. 1,588.70 in the first instance and then a sum of Rs. 500 after Asar prayers. He added that he had also made a statement before the police to this effect. Khan Muhammad, a former Chairman of Union Council, Barmusa, appeared as D. W. 3, and stated that Shera petitioner was with him on the lst of June 1970 in connection with his dispute with Manu and Bakri over the purchase of a bullock which Shera wanted to return after having purchased from Manu, who was not agreeable to this. He stayed with him for the night.
6. Having considered the evidence on the record the learned Magistrate came to the conclusion that the offence stood fully brought home to the petitioners and accordingly convicted them. In appeal, however, the learned Additional Sessions Judge maintained the convictions but reduced the sentences as stated earlier.
7. Learned counsel for the petitioners raised a two-fold preliminary objection before me, firstly that despite the fact that Salehon petitioner was found to be innocent by the Police and placed in column No. 2 the learned trial Magistrate did not apply his mind before summoning him with the other co-accused and conducted himself in a perfunctory manner which was vitiative of the trial, and secondly that the learned Magistrate had taken cognizance under clause (c) of subsection (1) of section 190, Cr. P. C. and had not given an opportunity to the accused to exercise their option regarding the choice of forum as envisaged by section 191, Cr. P. C. Reliance was placed in this regard on Yusuf and 11 ethers v. The State (1), Babu and 3 others v. The State (2) and Muhammad Nawaz Khan v. Nur Muhammad and others (3). [5]
8. The contentions raised on the merits were firstly that there was a delay of about 24 hours, in the lodging of the report, which afforded ample opportunity to the complainant party to fabricate an elaborate version after consultation ; secondly that Nazra, an important witness, mentioned in the F. I. R. was not examined ; and lastly that no independent witness had been examined by the prosecution.
9. On the other hand, leamed counsel for the State contended that the opinion of the police regarding innocence of an accused person was not relevant much less binding on the Magistrate that he had taken cognizance of the entire case against all the accused including Salehon, who was never released on bail despite the reference to his innocence in the concluding report under section 173, Cr. P. Code which was before the learned Magistrate ; and that the cognizance had been taken under clause (b) of subsection (1) of section 190, Cr. P. C. and as such the provision contained in section 191 was not relevant. Reliance was placed in this regard on Ali Muhammad v.
The State (1), Ahdus Sattar Molla v. The Crown (2) and Falak Sher ami another v. The State (3).
On merits, it was contended that the delay in the lodging of the report had been adequately explained by the prosecution inasmuch as the first anxiety of the near relations of Muhammad was to try to save his life and to remove him to the hospital as early as possible where he was medically examined at 10-15 p.m. the same night. It was next contended that the remoteness of the motive, namely, the previous murderous assault on Zaida, the father of Haider, Ghulam and Salehon petitioners was not material and that it being a case of daylight occurrence, having taken place inside the village ahadi, the elaborate account given by Muhammad, who had fortunately survived the murderous assault, supported by his son Shera, Muhammad son of Murad, Nura son of Mirza and confirmed by medical evidence was sufficient to bring home the guilt to the petitioners who were rightly convicted.
10. Having considered the contentions raised by the learned counsel for the parlies, I am in no manner of doubt that Criminal Revision No. 1310 of 1971, filed by the convict-petitioners must fail. In the first instance, Muhammad Nawaz Khan v. Nur Muhammad and others (4) relied upon by the learned counsel for the petitioners in support of his preliminary objections is not helpful to him. It was observed by my learned brother Sardar Muhammad Iqbal, J. in that case : "The Magistrate is not bound by the police officer's opinion. On the contrary, he may, by relying on the material furnished in the report, take cognizance of a case against the person whom the police officer believed to be innocent. Where the cognizance is taken by a Magistrate of a case on the basis of a negative report under section 173, Cr. P. C., such
(1) 1970 P Cr. L J 1316 (2) PLD 1953 SC 145
(3) PLD 1967 SC 425 (4) PLD 1967 Lab. 176 cognizance is taken obviously on the police report and not upon his own knowledge or suspicion.
The case, therefore, falls under clause (b) of subsection (1) of section 190 and not under clause (c)."
Reliance was placed by his Lordship in this regard on Muhammad Nawaz v. Crown (1), Emperor v.
Dal ip Singlt (2), Sarwa v. Emperor (3) and Jn Re : Alfred Paul (4). In this view of the matter, there is hardly any justification for contending that the cognizance had been taken under clause (c) of section 190 (1), Cr. P. C. As regards the objection that the Magistrate had proceeded in a perfunctory manner a further discussion in the same judgment will resolve the issue. On behalf of the respondents reliance was placed before his Lordship on Muhammad Abbas v. The State (5). In that case, the Police had submitted a challan under section 173, Cr. P. C. against one of the two accused and had shown Muhammad Abbas the other accused in column No. 2. It was mentioned in the police report that sufficient evidence was not available against him. Acting on this report, the Magistrate did not summon him. During the trial, however, the police applied to the Magistrate that Muhammad Abbas may also be summoned as an accused and brought to trial. This order was successfully challenged by him in the High Court on the ground that if the Magistrate be deemed to have acted under clause (c) of section 190 (1), Cr. P. C. it was incumbent upon him to comply with the provision of section 191, Cr. P. C. and to inform the accused that he was entitled to have the case tried by another Court. Distinguishing this case, Sardar Muhammad Iqbal, J. observed as follows :-- "The Magistrate in that case did not proceed against Muhammad Abbas. It was only after some evidence was recorded that he summoned Muhammad Abbas. He was obviously in that case not acting on the police report but on the information which he might have received subsequently from the statements of the witnesses whose evidence he had recorded."
In the instant case, the report of the police was before the learned Magistrate and notwithstanding the fact that Salehon petitioner was placed in column No. 2 he was brought to trial along with the other accused.
Coming now to the next authority Babu and 3 others v. The State (6) relied upon by the learned counsel for the petitioners, I find that in that case the Magistrate had, in the first instance, agreed with the police report and discharged the accused. Subsequently, however, after examining some persons as Court-witnesses he re-summoned them. Obviously, in that case, cognizance had been taken under clause (c) of section 190 (1), Cr. P. C. and as such it was imperative for the Magistrate to have
(1) 48 Cr.LJ 774
(3) 14 Cr. L J 290
(5) PLD 1964 Lah. 7
(2) 5 Cr. L J 275
(4) AIR 1944 Mad. 166
(6) 1969 P Cr. L J 226 informed the accused that they could have the case transferred to some other Court as held in Abdus Sattar Molla v. The Crown (I) which was also discussed in Muhammad Nawaz Khan v. Nnr Muhammad and ethers (2). The authority is not therefore attracted to the facts of the case before me.
No doubt in the last authority pressed into service namely, Yusuf and others v. The State (3) the proceedings were quashed by the learned Judge under section 561-A, Cr. P. C. and an observation made therein regarding the treatment of the accused "in a machanical fashion" could possibly be construed in favour of the petitioners yet the position was clearly distinguishable inasmuch as that case was transferred to four different Courts in a short span of time. On the admission of the petition under section 561-A, Criminal Procedure Code, the learned Judge sent for the record and also examined Mr. Hamesh Gul, Magistrate who was seized of the matter. The latter stated that he had not seen the police report nor was it ever brought to his notice that two of the accused were placed in column No. 2. It was in these circumstances that the proceedings were quashed and the case was remanded for fresh inquiry.
It was held in Falak Sher and another v. The State, relied upon by the learned counsel for the State, that a Magistrate can take cognizance under clause (b) of section 190 (1), Cr. P. C. even if the accused has been found innocent by the Police. Their Lordships approved the view taken in Muhammad Nawaz Khan v. Nur Muhammad and others and held that the Magistrate could issue summons to the accused despite the fact that the Investigating Officer in his report under section 173, Cr. P. C. had placed him in column No. 2. It was further laid down that cognizance of such a case would fall within the ambit of section 190 (1) (6), Cr. P. C.
11. Having considered the position in the light of the various authorities discussed above I am of the view that a presumption of regularity would attach to all cases of cognizance by the Courts based on an implied perusal of the concluding report under section 173, Cr. P. C. and that a separate order for summoning the accused placed in column No. 2 is not a legal requirement. All that is to be ensured is that the Police finding regarding the innocence of an accused is within the knowledge of the Court taking cognizance. This would be normally presumed in the absence of clear indication to the contrary. l2. As regard the merits of the case, having considered the judgments of the Court below I find that the conclusions arrived at by them concurrently are unexceptionable being in consonance with the weight of evidence and no fault can be found with them. However, in so far as the case of Salehon is concerned, I am inclined to think that he would be entitled to the benefit of doubt for the reason firstly that the medical evidence revealed only two spear blows on the person of Muhammad of which one was
(1) PLD 1953 FC 145 (2) PLD 1967 Lah. 176
(3) 1970 P Cr. L J 591 attributed to Salehon and the other to Manak. According to the prosecution, when, on receipt of the first two injuries, Muhammad fell to the ground, ail the accused continued belabouring him. This does not exclude and would rather support the use of spear by Manak more than once which would satisfactorily explain the existence of two sharp-pointed weapon injuries suffered by Muhammad. The fact that Salehon was found innocent by the police, received further support from the statement of Sh. Abdul Manan D. W. 2, a commission agent of Mandi Baha-ud-Din, who stated that Salehon had seen him twice on the day of occurrence in order to get some money and for the second time he handed over to him a sum of Rs. 500. He asserted that he has appeared before the police and made a statement to this effect. For all these reasons, the participation of Salehon is not free from doubt. Accordingly I set aside the conviction and sentence of Salehon petitioner and acquit him. The petition fails in so far as the other petitioners are concerned.
Coming now to Criminal Revision No. 1311 of 1971 for enhancement of sentence, I find that no reason whatever was given by the learned Additional Sessions Judge for taking off one year from three and a half years' R. I. awarded to the petitioners by the learnd trial Magistrate, ln fact, having regard to the large number of injuries sustained by the victim of assault who is present in Court and has suffered permanent incapacitation on account of a deformity in the left leg making it impossible for him to walk straight, one cannot avoid an impression that the trial Court had already erred on the side cf leniency in the award of sentence. Accordingly, I allow this revision except in the case of Salehon who is acquitted and restore the sentences of three and a half years' R. I. recorded by the learned trial Magistrate, under section 307/149 of the Pakistan Penal Code against th? other accused. The other sentences are, however, maintained.
Order accordittlgy.