This is a private revision against Judgment of acquittal, recorded on the 29th of July 1965, in favour of the respondents by Haji Mohammad Khan, Additional Sessions Jundge, Sialkot, since retired.
2. The occurrence took place at digarwela on the 1st of August 1964 in village Mohrike, six miles away from Police Station Satrab, District Sialkot. The report was lodged by Rukan Din complainant, uncle of the deceased and an eye-witness, at 10-00 p.m. in an adjoining village and he had also sustained three simple injuries while trying to rescue the deceased. The report was recorded by Ghulam Samdani Sub-Inspector P. W.
24. All the respondents were specifically named in the F. I. R.
According to the initial report, at the relevant time, the deceased was proceeding from the well known as Lambardaranwala situated to the north of the place of occurrence, in the village abadi carrying a bundle of charri fodder on his head followed by Rukan Din, complainant, his son Buta P.
W. 15 and Muhammad Ali P. W. 16, who were at some distance from him. As the deceased reached at point No. 1, shown in the site plan Exh. P. A. in front of the Itaveli of Haider son of Mir Dad, which has no surrounding wall, all the respondents, who admittedly are related inter se, suddenly emerged from the haveli armed with sticks. Aslam and Nasarullah felled Nazir Ahmad deceased by pulling his legs. The bundle of fodder on his head was also dropped. In the meantime, Haider son of Mir Dad, and Haider son of Said exhorted their companions to kill Nazir Ahmad. All of them then started showering stick blows on him as a result of which he became unconscious. Nasarullah and Zafar Ullah respondents then caught hold of him from the legs while Aslam and Ghulam Rasul from the arms and lifted him inside the haveli and placed him on a wooden leveller (sohaga) of which blood stained chips Exh. P. 4 and Exh. P. 5, were later recovered vide memo. Exh. P. G. Nasarullah and Aslam then picked up two wooden munglis (Pounders) and started pounding the deceased on the rigs, legs and back. Rukan Din his son Buta and nephew Muhammad Ali raised an alarm which attracted Muhammad Shaft P. W. 22 and Suba P. W.
23. Rukan Din stepped forward to rescue his nephew but was given stick blows by Nasarullah , Aslam and Ata Ullah accused, with the result that none of the prosecution witnesses ventured physically to intervene and save the deceased who died at the spot. Leaving him there all the accused ran away. After their departure Rukan Din felt the pulse of Nazir Ahmad who had already breathed his last. They then placed him on a cot and removed him to a nearby Itaveli of Karam Din cousin of Rukan Din P. W. where it remained lying till the arrival of the police. All the accused except Ata Ullah were arrested on the 3rd of August 1964 while the latter remained absconded for three weeks and could not be arrested till the 25th of August 1964. The incriminating articles recovered by the police from the spot were firstly the blood - stained earth from the haveli of Mir Dad from point No. 5 secondly the bundle of fodder Exh. P. 15 which the deceased allegedly carried at the relevant time thirdly the leveller (sohaga) of which chips Exh. P. 4 and Exh. P. 5 were found out away having been found blood-stained. The other recoveries made by the police in the course of investigation were stick Exh. P. 7 at the instance of Haider son of Mir Dad which was not found to be blood-stained; stick Exh. P. 8 at the instance of Haider son of Said which too was not found to be stained with blood ; stick Exh. P. 10, at the instance of Aslam which was also not blood stained. In addition to this stick Exh. P. 11 recovered at the instance of Zafar Ullah, stick Exh. P. 12 recovered at the instance of Ghulam Rasul ; stick Exh. P. 14 recovered at the instance of Nasarullah were found to be stained with human blood. Besides, Nasarullah led to the recovery of mungli Exh. P. 3 in addition to his blood-stained chaddar Exh. P. 13 which was removed from his person. Likewise, Aslam also led to the recovery of mungli Exh. P. 2 which was found to be stained with human blood.
3. The motive alleged in the case was that two persons Ghulam Qadir and Nazir had mortgaged their land with Haider and Ghulam Rasul accused for a sum of Rs. 16,000 while their co-sharer Mst.
Rasul Bibi, had mortgaged her share with Nazir Ahmad deceased for a consideration of Rs. 1,000.
The deceased in vain tried to get possession of the mortgaged piece of land and the dispute led to hurt cases between the parties which created bad blood between them. Another motive alleged was that Mst. Salima a previous wife of Aslam accused was abducted by Muhammada P. W. 13, who was a resident of Gujranwala District and being the relative of the deceased used to visit the latter frequently which resulted in his illicit intimacy with Mst. Salima.
4. The reasons which weighed with the learned trial Judge in recording a judgment of acquittal were firstly the weakness or even the non-existence of a motive; secondly the relationship of the eye-witnesses with the deceased on which account their testimony was discarded ; thirdly the disparity between the dimensions of the injuries on the person of the deceased with the alleged weapons of offence, i.e,, mwiglis Exh. P. 2 and Exh. P. 3 which were both found to be stained with human blood, as also some of the dangs; fourthly the unreliability of the evidence of recovery witnesses Muhammad Buta P. W. 20 and Riaz Ahmad, P. W. 21 on account of their relationship with the complainant party; fifthly the non-availability of independent and unimpeach able evidence in support of the prosecution case despite the fact that the occurrence took place in broadday light inside the village abadi ; and lastly the plea taken by the accused that they had been falsely implicated on account of enmity was also considered as one of the grounds tending towards acquittal.
5. The contentions raised by the . learned counsel for the petitioner in support of the revision against acquittal were detailed by me in my admitting order dated the 23rd of November 1965 running into six pages which to save time may be reproduced verbatim :-- "This is a revision petition under section 439, Cr. P. C. against the order of the Additional Sessions Judge, Sialkot, dated the 29th of July 1965, whereby he acquitted the respondents of charges under sections 148, 302/149 and 323/149, P. P. C."
6. In the course of arguments the learned counsel for the petitioner also referred to the District Magistrate's recommenda tion for filing a State appeal against the order of acquittal, but this is a wholly irrelevant consideration for me and regardless of that this private revision should be decided on its own merits.
7. Several grounds were raised in the petition but the learned counsel mainly concentrated on the following conten tions :--
(i) That the trial Court had wrongly rejected the testimony of the eye-witnesses mainly on account of their relationship with the deceased and enmity with the respondents. None of them were cross- examined on point of any actual or suggested enmity. Particularly P. Ws. Muhammad Boota and Muhammad Shafi were wrongly disbelieved on the pretext of their much too remote relationship if any with the deceased. Reliance was placed on Dllawar v. Emperor PLD 1956 Lah. 233 and Shahab Din v. The State PLD 1964 SC 177.
(ii) That undue importance was given to certain minor discrepancies in the statements of the eye- witnesses in discredit ing them.
(Hi) That certain previous statements of the eye-witnesses were characterised as contradictions without being put to them and affording them an opportunity of explanation as provided under section 145 of the Evidence Act.
(iv) That the learned trial Court had patently erred in discarding important corroborative evidence available in the form of recoveries of the weapons of offence, particularly the sticks (Exhs. P. 11, P.
12andP. 14) recovered from Zafrullah, Ghulam Rasul and Nasrullah accused, and moonglis (wooden hammer) Exhs. P. 2 and P. 3 recovered from Muhammad Aslam and Nasrullah accused and which were all found to have been stained with human blood. Reference was also made to the recovery of blood-stained chaddar (Exh. P. 13) on the person of Nasrullah accused, and the other recoveries of blood-stained earth and blood-stained pieces of sohaga (wooden roller).
(v) That one reason given by the trial Court for discrediting the eye-witnesses was the disparity in the dimensions of the injuries on the person of the deceased and the dimensions of the weapons used which was contrary to all known principles of medical jurisprudence.
(vi) That the trial Court had arrived at inconsistent and conflicting conclusions on the point of previous enmity between the parties as on the one hand the existence of enmity was not only believed but also made a pretext for rejecting the testimony of the eye-witnesses, while on the other, it was found to be non existent while discussing the alleged motive of the murder.
(vh) That the trial Court's consideration of the fact that the deceased was a notorious bad character registered with the police leading to the inference that "he might have become offensive and so met his death," is wholly unwarranted by any recognized principles of law,
8. It was contended that the learned trial Court had neither judicially applied its mind to the facts of the case nor had it taken a judicious view particularly in the matter of assessment of evidence.
Attention was drawn to the trial Court's insistence on comparing the dimensions of ecchymosis resulting from the impact of blows on the person of the deceased with the dimensions of the weapons used, which had no legal foundation or basis in medical science. Reliance was placed to the following observation by Moodi at page 216 of his Medical Jurispurdence, 1963 Edition :-- 'The size of the ecchymosis gives no indication as to the size of the body responsible for causing it.'
It was argued that such blunders had led to unwarranted conclusions resulting in miscarriage of justice. Reliance was placed in this regard on AIR 1934 P C 227. Althouh this was an appeal against acquittal under section 417, Cr. P. C. and had no direct bearing on the case but nevertheless it laid down some important legal principles which could be justifiably invoked. Reference was also made to the unlimited powers and discretion of the High Court under section 439, Cr. P. C. to examine the evidence, as held in Anwar and another v. The Crown (1).
9. I have carefully considered the points raised by the learned counsel for the petitioner. The occurrence allegedly took place at digarwela in the village abadi on the 1st of August 1964. The prosecution produced five witnesses namely Rukan Din (P. W. 14), Muhammad Boota (P. W. 15), Muhammad Ali (P. W. 16), Muhammad Shaft (P. W. 22) and Sooba (P. W. 23) all of whom have been disbelieved. While disbelieving the evidence of recoveries the, trial Judge in paragraph 9 of his judgment observed as follows :-- "These recoveries would have been very material if the recovery witnesses were independent witnesses but it has come on record that Boota P. W. 20 is son-in-law of Karam Din cousin of Rukan Din P. W. while Faiz Ahmad P. W., the other recovery witness is a nephew of Hakam, father-in-law of Rukan Din P. W. Their testimony on account of close relationship with the deceased cannot be relied upon."
The contention regarding trial Court's comparison of the dimensions of the weapons of offence with those of the injuries on the person of the deceased is also fully borne out by the following observations of the trial Court in paragraph 8 of the judgment :-- "Considering the medical evidence while comparing the width of the two munglis with the width of the injuries allegedly with munglis to the deceased, it appears that these two munglis, the width of one P. 2 being 6" and the width of P. 3 being 4" were used by the assailants besides other munglis of various width. There is only one bruise mark No. 5 which is 4* x 3" and another bruise mark given at No. 10 by the doctor (l)PLD 1955 FC 185 renumbered as 8 in this judgment which is 8" x 4", another bruise No. 20 renumbered 18 which is 4"x3", bruise No. 23, renumbered 21 which is 4" x L' bruise No. 24 renumbered 22 which is 4"x lj" bruise No. 26 renumbered 24 which is 4" x 1". These correspond to mungli P. 3 there is no injury with mungli P. 2 since not a single injury corresponds to the width of 61". Thus a serious doubt is created in the prosecution evidence in this behalf."
In paragraph 11 of the judgment a reference is made to the bad character of the deceased in the following terms :-- "The deceased was bad character of Register No. 10 of the police and goonda and his term of two years for good behaviour under Goonda Act had expired one month before the occurrence. It is more plausible that he became offensive and met his death."
No such allegations appear to have been made by the respondents in their statements wherein they simply denied the charge.
10. Without in the least expressing any opinion on the above points, lest it might be construed as a finding to the prejudice of either party I am of the view that the petition has qualified for admission in which notice should issue to the respondents. Bailable warrants against all the respondents should be issued who may be released on bail on furnishing security in the sum of Rs. 10,000 each with two sureties each in the like amount to the satisfaction of the A. D. M., Sialkot.
11. As against these points, learned counsel for the respondents contends before me: Firstly that normally this Court will not interfere in exercise of its discretionary jurisdiction with the trial Court's assessm ent of the evidence which has additional advantage of seeing the demeanour of the witnesses ; secondly the exercise of discre tionary powers would not be justified after the lapse of seven years since the registration of the case, and thirdly that the four considerations enumerated in Shea Swarup and others v. King-Emperor AIR 1934 P C 227 (2) namely the views of the trial Judge as to the credibility of the witnesses, (2) the pre sumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses, fully availed to the respondents in the instant case and as such the interference of this Court at such a late stage would not be justified.
12. On the other hand, in support of the proposition that mere relationship of the witnesses does not justify the rejection of their testimony, learned counsel for the petitioner has relied on Emperor v.
Muzaffar Hussain (1) and Tawaib Khan v. The State (2). As regards the hurdles against a challenge acquitted mentioned in AIR 1934 P C 227 (2), learned counsel contends that none of them is available to the respondents in view of the fact
(1) AIR 1944 Lah. 97 (2)PLD 1970 SC 13 that the presence of Rukan Din complainant P. W. 14, as established by the existence of three injuries on his person explained in the F. I. R. promptly lodged by him before the Sub- Inspector, the full support lend by medical evidence to the prosecution case and in particular the dimensions of the injuries caused by multiple hits of the munglis as explained by the doctor sought to be explained away on artificial and untenable grounds by the learned trial Judge, the fixation of the venue of occurrence by the recovery of the blood-stained earth, blood-stained sohaga (Leveller), the bundle of charri etc., coupled with the recoveries of blood-stained munglis and sticks at the intance of the accused- respondents, except Ata Ullah who had absconded would clearly make it a cast iron case against the respondents. It is next contended that surprisingly enough some important incriminating questions relating to the recovery of blood-stained chip- Exh. P. 4 and Exh.
P. 5 from the sohaga on which the deceased w:,. pounded to death by munglii and the recovery of a bundle yf charri Exh. P. 15 were not put to the accused in the course of their examination under section 342, Cr. P. C. which also prejudiced the case of the prosecution. Lastly it is submitted that once the Court is satisfied that judgment of acquittal is not sustain able having resulted in miscarriage of justice the mere flux of time would not be allowed to stand in the way of retrial.
Reliance is placed in this regard on Municipal Committee v. Fazal Hussain (1), M. S. Khawaja v. The State (2), Mazhard Haq v. Ishaque Sardar and IS others (3). Reference is also made in this regard to The State v. Abdul Hamid and another (4), Muhammad Amvar v. Abdul Majid (5) and The State v.
Muhammad Moosa and 4 others ('). It is submitted that in the last-mentioned three cases the delay ranges from seven to twelve years.
13. Having heard the learned counsel for the parties, I am convinced that the impugned judgment is not sustainable and fully justifies the interference of this Court in exercise of its revisional jurisdiction. As a matter of abundant caution, I have deliberately avoided any reference to the merits of the case, lest it might be] construed even unconsciously to the prejudice of the respondents. Accordingly, while setting aside the impugned judgment and ordering a retrial of the respondents, I direct that no observation made in this order should be construed to the prejudice of the respondents and the trial Court should proceed in a completely uninhibited manner.
14. Although the respondents have been represented by a counsel they are not present in person except Nasarullah. In view of the lapse of seven years, I direct that they shall be released on bail on furnishing security in the sum of Rs. 10,000 (ten thousand) each with two sureties each in the like amount to the satisfaction of the trial Court till the conclusion of the trial. . Retrial ordered.
(I) PLD 1965 Lah. 369
(3) PLD 1962 SC 480
(5) 1970 P Cr. L J 232
(2) PLD 1965 SC 287
5. With the help of the learned counsel for the appellant we have gone through the evidence. The learned trial Judge has not believed the recovery of the gun, the crime empty and the live cartridges from the appellant. He has given good reasons in support of this finding. The learned counsel for the State in the beginning stated that he would assail this finding and would try to prove that the recovery was genuine. But near the close of the arguments he gave up the point probably after he had realized that the prosecution had failed to establish any connection between the crime'and the gun. The5 * so-called crime empty was not recovered from the spot and the gun was not recovered soo after the occurrence. In the light of all these circumstances w accept the finding of the learned trialCJtidge in respect of th recovery and will keep it out of consideration.
(1) PLD 1955 Lah. 271 (3) PLD. 1952 Bal. 37
(1) 1949 P L R 313
(3) PLD 1961 Lah. 415
[I] The main question to be determined in this case is whether Narinjan, Shangara and Rehmat P.
Ws. were able to identify the culprit at the spot. The occurrence is admittedly of night and the time given by Narinjan is 1 a.m. The moon set on 30th September, was at 12-24 midnight. All the witnesses who were asked questions about this fact are consistent that the night was dark. Tn fact the evidence is that nothing could be seen beyond one pace. (See Rehmat P. W. II in cross- examination). Tt is also in evidence that the assailant was at a distance of at least 5 karams from each one of the witnesses when they are claimed to have seen and identified him. Both the learned counsel are agreed
2. The appellant pleaded not guilty at the trial. He alleged that when he reached the spot he found the deceased sitting over his brother Akbar and throttling him with both hands. As a result he had become unconscious. He gave knife blows to the deceased in order to save the life of his brother,
3. Opponent Muhammad Morrial stated that he was in police compartment and was going with the post of his incharge to Hyderabad. Muhammad Nawaz S. H. O. had broken open the lock of my house and he had made applications against him about four months back, therefore, he was implicated in this false case.
4. Opponent Dhani Bux stated that he was travelling in the police compartment on duty when the complainant and P. W. Poss Khan were being charged at Nawabshah he happend to be there and that is why he was implicated. He also said that he did not know anything about this case.
5. The opponents did not lead any evidence in defence.
6. The entire prosecution case mainly hinges on^the oral testimony of the two witnesses, namely, the complainanr Ghulam Sarwar and P. W. Poss Khan, who is admitted by him to be his friend. The complainant has deposed to the same facts as are detailed in narrative of the prosecution story given above and they need not be repeated. The complainant thus, in short, alleges that he was forcibly taken in the Ice compartment of the
7. 1969 SCMR 666
8. 1969 SCMR 839
9. I L R 1943 Bom. 531
10. As regards to the recovery of a gun and an empty the learned counsel for the appellants pointed out that although a report has been called from the Ballistic Expert but he was never examined in the Court, therefore, no reliance can be placed on his opinion. He further pointed out that an empty had been recovered after two months and the parcels were not sealed as per statements of the mashirs by the Police at the time of recovery, therefore, the instrument of offence cannot be connected to the appellants as having used by them. We are of the opinion that there is much force in the arguments advanced by the learned counsel for the appellants.
12. We called upon Mr. Lakhan, the learned counsel for the State, the only argument he advanced was that it is not possible that Mst. Janul will innocently implicate the appellants who are her nephew and cousin. This proposition was not supported by any case-law and when it was pointed out to him that the prosecution has to prove his case beyond any reasonable doubt and not to travel on possibilities and probabilities, the learned counsel has no worthwhile reply to advance.
13. We respectfully agree with the principles laid down in the above cited judgments and are of the opinion that the prosecution has failed to prove its case beyond reasonable doubt
(1) 1969 P Cr. L J 439
11. A I R1941 Cal. 271 (2) AIR 1929 Bom. 261
(3) AIR 1936 Pesh. 1939