1. The appellants were convicted for an offence under sec tion 326/149, P. P. C. and senenced to undergo R. I. for 5 years and pay a fine of Rs. 1,000 or in default to undergo R. I. for one year.
2. Three bullocks of Sultan complainant were stolen. He suspected the appellants for having stolen the bullocks. Consequently he along with his father Ali Muhammad, Nawab and Nasir tracked the foot-prints which led to the house of the appellants Rasulo and Panah. The females of the appellants came out and informed them that the appellants had gone to offer Idd prayers. On the following day the complainant along with his father Ali Muhammad, Mehrab, Nawab and Nasir went to the house of the appellants and asked them to return the bullocks but they refused and abused them. The complainant party, therefore, returned and while they covered a short distance all the four appellants armed with hatchets and lathis overtook them and inflicted injuries upon Nawab, Mehrab and Nasir, and then they forcibly dragged away Ali Muhammad after giving him blows. The complainant made a search for Ali Muhammad but he was not traced. Consequently first report was lodged. The Police after usual investigation challaned the appellants. It is said that during investigation appel lant Rasulo produced a blood-stained hatchet.
3. There could be no manner of doubt that Nawab and Nasir sustained the injuries and this is borne out by the medical evidence. Nawab had two incised wounds caused by hatchet and Nasir had one incised wound caused by hatchet and five injuries by blunt weapon. The injury No. 1 was said to be grievous. So far Mehrab is concerned there is no medical evidence.
4. As regards the identity of the appellants with the crime the evidence mainly is ocular consisting of four witnesses Sultan, Nawab, Nasir and Mehrab. They are closely related to each other. Sultan, Nawab and Mehrab are brothers inter se while Nasir is their cousin. The learned Additional Sessions Judge accepted their evidence but on consideration of the circum stances prominently appearing in this case I must say that he clearly erred for the reasons which l will presently state.
5. In the first place all the four witnesses pointed out, are closely related to each other. It is further an admitted position that there is a dispute between the parties since a long time and some cases had already been filed. Consequently their evidence could not be accepted without corroboration.
6. But no such corroboration is available in the present case. Apart from this there are other circumstances which render their evidence incredible.
7. It will be noticed that there is inordinate delay in lodging the first report. The incident was said to have taken place on the morning of 11-3-68 while the first report was lodged on 12-3-68 at 1-30 a.m. although the police station was situated at a distance of 16 miles. Of course in this connection an explanation was offered. But the explanation is not only false but contradictory. The main reason put forth by the com plainant was that he did not proceed to the police station to lodge the report on account of the fear of the appellants. This is ridiculous. The appellants lived at a considerable distance from the complainant and, therefore, there could be no question of any fear from the appellants. This fear has also no basis in view of the statement made by the complainant that he had gone to Parial Shah who lived at a distance of 6 miles from his village but he was not available. If lie could cover 6 miles without any fear there is no reason why he could not also proceed to the police station to lodge the report. It was further pointed out by the learned counsel for the State that the complainant was anxious to find out the whereabouts of his father and therefore the report was delayed but there is also no substance in this explanation as some one also could be deputed to lodge the report. Moreover, r it was not disclosed in the lirst report that the father had also accompanied the complainant party to the house of the appellants. The story has also been greatly exaggerated and there are several omissions in the first report as well as in the police statements of the witnesses. Not only this, even Parial Shah who was examined, stated that the complainant simply told him that Nasir and his other relations had sustained injuries but as far as he could recollect the complainant had not disclosed the names of the culprits to him.
8. On the other hand the case of the appellants is that the injured persons had gone to commit some theft and when they were discovered they received injuries from those persons whose theft they had gone to commit and they had been implicated on account of enmity. In view of the circumstances of this case I find considerable force in this contention, or at least this renders the prosecution evidence highly doubtful. The most important feature of this case is the time when the first report was lodged and this supports the defence put forth by the appellants. As already pointed out the lirst report is lodged at 1-30 a.tn. at a village situated at a distance of four miles where the S. H. O. had gone to investigate some cases. According to the prosecution the incident had taken place in the morning and if this was true the report could have been lodged much earlier and not during night hours.
9. The only corroboration which was sought in this case was' against Rasulo appellant who was said to have produced blood-j stained hatchet. Even this does not serve to provide any corro-j boration as the hatchet was not sent to the Chemical Analyser. | Even otherwise 1 am unable to find this as a supporting circumstance in view of the circumstances of the present case.
10. I, therefore, allow the appeal and set aside the conviction and sentence passed against the appellants, and acquit them. They A are in custody and should be set at liberty forthwith.
11. Appeal accepted.
12. 1972 P.Cr- L J 210 [Lahore] Before Muhatn md Munir l-drukce, J MOH1--Accused-Petitioner versus The STATE--Respondent Criminal Revision No. 716 of 1955, decided on loth July 1971.
(a) Criminal Procedure Code (V of I898), S. 257--Accused being in custody not enabled to engage counsel and to cross-examine prosecution witnesses--Accused being unrepresented, held, could not be said to have had opportunity to cross-examine witnesses-- Accused's request to re- summon such witnesses for cross-examina tion--Not unjustified in circumstances [p. 219]F
(b) Criminal trial---Commencement of trial after break of six years, accused having undergone agony of prolonged suspense and in curred heavy expenses--Chances existing of stolen property (buffalo) having changed many hands and of remaining untraceable and of some witnesses also being not available--Inexpedient in circumstan ces to proceed with case--, [p. 219]/?
13. Nemo for Petitioner. '
14. Sadiq IIay at Lodhi for A.-G. for the State.
15. Date of hearing : 16th July 1971.
16. Order of Reirenck The facts of this case arc as follows : The petitioner was challancd to the Court of Mr. Faisal Tchsccn Memon, Magistrate 1st Class, Montgomery, under section 457/411, P. P. C. Five witnesses, namely, Jehangir Khan, Maham Ali, Nazir, Ata Muhammad and Faiz Hussain ShahS.H.O. were examined on 22-5-1965. A charge under section 411, P. P. C. was framed on the same day and the petitioner was also examined, and was asked to produce defence on 28-5-1965. On that date his counsel made an application that he be permitted to cross- examine the witnesses who had not been cross-examined by the accused- petitioner previously. The learned Magistrate on the same day (the date under the order is wrongly shown as 27-5-1965) rejected the application by a brief order which reads thus :-- "The accused had been given an opportunity to cross- examine all the P. Ws. examined and he examined two of the witnesses and he did not want to cross-examine the rest. There is no ground for calling them. Therefore, the application is rejected."
2. The accused has preferred this petition under section 435, Criminal Procedure Code praying that recommendation be made to the High Court under section 438, Cr. P. C. Code that the order of the learned trial Magistrate refusing to permit the petitioner to cross-examine the prosecution witnesses be set aside and the petitioner allowed to cross-examine them.
17. The proceedings are forwarded for revision on the following grounds : It appears from the record that the petitioner was in jail when the prosecution witnesses were examined and he was not represented by any counsel. Jehangir Khan (P. W. 1), Maham Ali (P. W. 2), Ata Muhammad (P. W. 4), and Faiz Husain Shah S. H. O. (P. W. 5) were not cross-examined by the accused. A few questions were put to Nazra (P. W. 3). Thus it is evident that four of the prosecution witnesses were not cross- examined by the accused-petitioner. Section 257 as amended by the West Pakistan Act No. XVII of 1964 makes it incumbent upon the Magistrate to issue process for compelling the attendance of any witness, other than a witness whom the accused has cross- examined, for the purposes of examination or the production of any document or other thing after he has entered upon his defence and applies to the Magistrate to that effect. The Magistrate has, however, discretion to refuse to issue such process if he considers that such application is made for the purpose of "vexation or delay or for defeating the ends of justice." When the Magistrate refuses to issue such processes he is required to give reasons in writing for such refusal.
3. The order of the learned Magistrate reproduced above shows that the Magistrate did not record any reasons for refusing to summon the witnesses who had not been cross-examined by the accused-petitioner. The learned Magistrate was of the view that when an opportunity had bccii given to the accused to cross- examine the witnesses lie had no right to summon the witnesses for cross-examination after entering upon his defence. The legal position is, however, diifcrcnt. The accused person has a right to cross-examine all those witnesses whom he has not cross- examined before entering upon liis defence and such right cannot be taken away from hint unless it is proved to the satisfaction of the Magistrate that the witnesses are being summoned for purposes of vexation or delay or for defeating the ends of justice. In the present case there is no such material to show that the accused-petitioner is trying to delay the proceedings.
18. Recommendation : In view of the above-mentioned circumstances the record is forwarded to the High Court with the recommendation that : The order of the learned Magistrate refusing to summon the prosecution witnesses for cross- examination by the petitioner be set aside and it may he directed that P. W. 1 Jehangir Khan, P. W. 2 Maham Ali, P. W. 4 Ata Muhammad and P. W. 5 Faiz Husain Shah be summoned by the trial Magistrate and the accused-petitioner be permitted to cross-examine them.
19. Order of the High Court Modi son of Rchana, Caste Khural, resident of llonga Sahiba, Police Station Maudi Jlira Singh, Tchsil Dipalpur, District Montgomery (now Sahiwal), is alleged to have been intercepted along with a stolen buffalo and its young one in a nakabandi held by Faiz Husain Shah, Sub-Inspector of Police, Mandi IJira Singh on the canal bridge of Solut in the area of village Bonglut Khan Singh on the night between 6th and 7th of January 1965 in the presence of Jehangir Khan and Maham Ali P. Ws. resulting in his prosecution under sections 457 and 411, P. P. C. and after the examination of live prosecution witnesses and recording his statement on 22nd May 1965, Mr. 1:. T. Memon, the then Magistrate 1st Class, Mont gomery (now Sahiwal) framed a charge under section 411, P. P. C. against him and posted the case to 28th May 1965 for his defence when he submitted an application under section 257 of the Criminal Procedure Code that being in custody he had not engaged any counsel for his defence when the aforesaid witnesses were examined, so he should be allowed to recall them for their cross-examination, but this request was refused by the trial Court, the petitioner accordingly filed an application under section 435/ 436, Cr. P. C. before the learned Sessions Judge to question the correctness of this order which was entrusted to Mr. S. A. Rashid, Additional Sessions, Jitdge for disposal, who sent for the records and after examining the same forwarded it to this Court with a recommendation that the impugned order be set aside in the interest of justice to the petitioner, a notice was, therefore, issued to the parties. The petitioner is, however, absent and J have persued the record with the assistance of Mr. Sadiq Hayat Lodhi, Advocate, who appeared on behalf of the State and find that the order, of the learned Magistrate dated 27th May 1965 was misconceived as the petitioner being unrepresented at the time could not be said to have had an opportunity to cross- examine them, so his request to resummon them for that purpose was not at all unjustified.
20. There being no grounds to consider]'* that this application was made for the purposes of vexation or] delay or for defeating the ends of justice. The Magistrate could not have denied this opportunity to the petitioner which had been specifically safeguarded even under the amended section 257, Cr. P. C. In such circumstances, I have, therefore, no option but to accept the recommendation made by the learned Add], Sessions Judge in this behalf by his order dated 25th August 1965 and set aside the impugned order.
2. At the same time I, however, feel that a direction to proceed with his trial after a break of over six years would be very hard on the petitioner who has undergone the agony of a prolonged suspense about the fate of his case in addition to the heavy expense incurred by him in his defence and his detention in the judicial lock-up for over a month and a half after his arrest in this case. There are chances that even the alleged stolen buffalo may have changed many hands by this time and may not be traceable for its production in Court for the cross-examina tion of these witnesses some of whom may also not be available after such a long time, it would, therefore, be inexpedient to proceed with the case against the petitioner after such an in ordinate delay, the proceedings pending against the petitioner are, accordingly, quashed in the interest of justice. .