SHAMEEM HUSSAIN KADRI, J.-Mohammad Ali (22), his brother Allah Bakhsh (36), Fateh Mohammad (55). Mohammad Shafi (28) and Rukan Din (72), all Gujjars, were tried by the learned Additional Sessions Judge, Lyallpur, for the murder of one Munir Ahmad, under section 302/148/14% P. P. C. He convicted Mohammad Ali under section 302, P. P. C. And sentenced him to transportation for life.
Allah Bakhsh was convicted under section 323, P. P. C. And sentenced to pay a fine of Rs. 100.00 or in default to suffer one month's R. I. The other accused were acquitted by his order deated 23rd January 1968.
2. Fazal Karim brother of the deceased has filed two revision petitions, Criminal Revision No. 371 of 1968 for the imposition of death penalty on Mohammad Ali and suitably changing the conviction of Allah Bakhsh and Criminal Revision No. 427 of 1968 for challenging the acquittal of the co-accused.
Both the revisions were ordered to be heard along with this appeal. This order will dispose of the appeal as well as both the revision petitions.
3. The brief facts of the prosecution case are as follows: House of Capt. Mohammad Yousaf is situated opposite to the house of Fateh Mohammad acquitted accused in the lane of Chak No. 138 G. B. On 6th July 1966, at about 9 p.m. Fateh Mohammad was playing on Alghoza. His companion Rukan Din was singing songs and the other accused were enjoying the music. Two sons of the Captain, namely, Mohammad Akram (P. W. 8) and Yar Mohammad (P. W. 9) objected to the singing of songs in front of their house and asked them to refrain from doing so. It is alleged that the accused did not pay any heed to their request which led to exchange of abuses between them.
The accused thereupon entered their houses and brought lathis and a spear. The spear is alleged to have been brought by the While the altercation was going on Munir Ahmad appeared at the scene. He reprimanded the accused. Fateh Muhammad abused Munir Ahmad who also in return did so. At this Fateh Mohammad is alleged to have exhorted his companions to deal with him. Allah Bakhsh gave a thrust on the chest of the deceased with a dang in his hand as a result of which he bent forward. The appellant then gave a spear blow on the back of Munir Ahmad who fell unconscious. It is alleged that Fazal Karim brother of the deceased was sitting at the shop of Anwar-ul-Haq hearing radio music. Nisar Ahmad (P. W. I1) and Abrar (P. W. 12), the two neighbours, also arrived on hearing the alarm raised in the street.
4. The deceased was taken to the hospital at Sammundri by his brother Fazal Karim and two P. Ws.
Nisar Ahmad and Abrar Ahmad. He was examined by Dr. Abdul Hameed Zaghum (P. W. 2) on 7th July 1966 at 5 minutes past 1 a.m. The doctor handed over rukka (Exh. P. C.) to Fazal Karim which was addressed to the local police station. At 2 a.m. He reached Sammundri Police Station and gave rukka to Mirza Muhammad Sarwar A. S. I. (P. W. 1,5), who recorded the F I. R. (Exb. P. J.)
5. The case was investigated by the A. S. I. Who arrested Fateh Mohammad, Rukan Din and Mohammad Shafi at about noon time when they appeared before him. Mohammad Ali and Allah Bakhsh were arrested on 8th July 1966. A pair of Alghozas (Exh. P. 3/I-2) was produced by Fateh Mohammad which was taken into possession vide memo. Exh. P. M.
6. On 10th July 1966, on the pointing out of the appellant a spear (Exh. P. 1) was recovered from the straw lying in the open dhari of one Ghulam Rasool. It was sealed into parcel vide memo. Exh. P. H.
The weapon was blood-stained and its recovery memo was attested by Sultan Mahmood (P. W. 13) and Bashir Ahmad (P. W. 14).
7. Dr. Abdul Hameed Zaighum on examination of Munir Ahmad on 7th July 1966 found a punctured wound 1-- x -- x chest and abdominal cavities on the back of right side of chest and a reddish contused mark with swelling 1-- x 1--" in front of the left side of the chest. According to him injury No. 1 was grievous. The A. S. I. Made enquiry from the said doctor vide Exh. P. D. As to whether Munir Ahmad could make a statement to which he replied vide Exh, P. D,/I that he could. The same day he addressed rukka (Exh. P. E.) to the S. H. O. For making arrangement for recording the dying declaration of Munir Ahmad since his condition had worsened. Syed Hussain Imam Tehsiidar (P. W.
10) arrived in the hospital at 12-25 a.m. On 9th July 1966. He enquired from the doctor as to whether Munir Ahmad was able to make his statement. The reply of the doctor (Exh. P. F.) was that he was fit to do so. The Tehsildar recorded the statement (Exh. P. F./1) in the presence of the doctor. The doctor gave certificate (Exh. P. F./2) to the effect that during the time of recording of the statement Munir Ahmad remained fit. Other injury on his person was found to be simple and in his opinion it could be caused by a violent fall.
8. Dr. Masood Farooqi (P. W. 1) preformed autopsy on the dead body of Munir Ahmad on 16th of July 1966, at 12 noon. In the stomach of the deceased he found two holes, one at philoric end 1" x 1 " and the other at fundus --' x --'. Death in the opinion of the doctor was due to injury No. 1 which led to fatal peritonitis. The injury was sufficient in his opinion to cause death in the ordinary course of nature, having been inflicted by a sharp-edged pointed weapon.
9. Out of the eye-witnesses the learned Additional Sessions Judge did not rely on the evidence of Nisar Ahmad and Abrar Ahmad. He also did not believe Fazal Karim as an. Eye-witness of the occurrence. Muhammad Akram was given up by the prosecution, as having been won-over, before the C. M. He, however, was produced at the trial and he supported the prosecution case. His brother Yar Muhammad (P. W. 9) is the other eye-witness whose testimony was relied upon by the learned'
Additional Sessions Judge.
10. Fazal Karim neither in the F. I. R. Mentioned that he was sitting at the shop of Anwar-ul-Had at the time of occurrence nor he stated before the C. M. That he was listening to the radio sitting there.
It was for the first time at the trial stage that he introduced his presence at the shop of Anwar-ul- Haq. He did not mention the names of Abrar Ahmad and Nisar Ahmad P. Ws. As eye-witnesses of the occurrence in the F. I. R. In both the dying declarations Exh. P. F./1 and Exh: P. U., the former recorded by the Tehsildar and the latter by the A. S. I., Muhammad Munir did not mention the names of Nisar Ahmad and Abrar Ahmad, who had witnessed the occurrence. The learned Additional Sessions Judge was thus perfectly justified to ignore their testimony as eye-witnesses of the occurrence. In regard to Muhammad Akram we are of the view that it would be unsafe to rely on the statement of a person who at one stage was given up as having been won-over but latter produced at the trial in support of the prosecution. Even otherwise we are of the view that the accused have definitely been prejudiced since they were deprived of the right of cross- examination before the committing Magistrate under section 208, Cr. P. C. A Full Bench judgment of the Lahore High Court reported as Mst. Niamat v. Emperor (AIR 1936 Lah. 533) was cited at the bar in opposition to "the view expressed by us. We are afraid, the objection is unten--able, for, the case cited above is clearly distinguishable. In that case the witness was an expert who had to prove the thumb-mark of the accused on the register of vendor of arsenic. He was produced for the first time at the trial while in the instant case the ocular witness, who had refused to appear .In support of the prosecution before the committing Magistrate, was produced for the first time at the trial. The learned Judges constituting the Full Benzh did not advert to subsection (2) of section 208, Cr. P. C.
In coming to the conclusion which they did. Clearly by so doing the accused were deprived of the right of cross-examination available to them before the committing Magistrate. It is true that under - section 286, Cr. P. C. In the address the prosecutor, when he opens the prosecution case before the Judge, briefly refers to the evidence which he intends to produce against the accused. The trial Court is competent to summon for examination any person whose evidence appears essential for the just decision of the case under section 540, Cr. P. C. Both sections 286 and 540, Cr. P. C. Were considered by a Division Bench judgment In re: B. K. Narayana Reddi (AIR 1941 Mad. 325). The learned Judges following the Lahore case cited above opined that they were not satisfied that the Crown is not entitled to have fresh witnesses summoned for the purpose of their evidence being taken and considered in the trial. If the prosecution have additional witnesses ready and available to them for giving evidence, their evidence can be taken and there is no legal objection to this course. However, this evidence cannot be made available to the prosecution without the intervention of the Court.
11.Bhagivan Singh v. The State of Punjab (AIR 1952 SC 214) from Indian jurisdiction was also cited wherein it was held that the Sessions Court can under section 540, Cr. P. C. Examine witnesses who were not produced before the committing Magistrate. If such a witness is treated as a prosecution witness and is examined by the prosecuting counsel instead of by the Court itself, it would be at best an irregularity curable by section 437, Cr. P. C. The Supreme Court Judges, however, observed that the only ques--tion that is to be considered in such a case is whether the accused has been prejudiced by the procedure, whether he was taken by surprise and whether prejudice was occasioned by such surprise. This is exactly the question which is before us. We are not persuaded to agree that no prejudice has been caused to the accused in the instant case, for, they had the opportunity to cross-examine the witness at the trial. A pre-trial procedure having been provided in the Cr. P. C. Is not without any object. It provides an opportunity to the accused person to exactly know with what evidence he has to face his trial. The evidence of the witness at the trial, who was given up at the committing stage, would of course be admissible, but surely the conduct of the witness makes him unreliable. On one occasion he is unwilling to support the prosecution version and he comes forward to support it on another occasion at the trial, the integrity of the witness becomes obviously doubtful. Prudence requires that no reliance should be placed on such a testimony. We would, therefore, exclude the evidence of this witness from consideration as well.
12. We are now left with the statement of Yar Muhammad (P. W. 9). He stated before the C. M. That 30 or 35 persons had collected on hearing the altercation between him and his brother on one side and the accused on the other side and there was grappling between the deceased and the accused. He denied to have made this deposition at the trial. We are inclined to believe his earlier version as correct and natural. Altercation must attract large number of persons if it takes place in a Bazar. Prosecution case cannot fall if they have not been produced. We are inclined to hold that there is sufficient evidence against the appellant to connect him with the crime beyond reasonable doubt.
13. The two dying declarations of the deceased are at variance with each other but the specific part played by the appel--lant in thrusting the spear is attributed to him alone 'in both the statements by the deceased. There is no previous enmity between the deceased and the accused persons. So it cannot be urged with success that the appellant has been substituted for some one who from amongst the crowd might have given the spear injury.
14: The recovery of spear (Exh. P. 1) has been witnessed by Sultan Mahmood (P. W. 13) and Bashir Ahmad (P. W. 14), Lambardars of the two abadis of the Chak. Sultan Mahmood belongs to village Manji to which Muhammad Akram, Yar Muhammad and Abrar Ahmad P. Ws. Belong. He comes from the came baradari and has also appeared as a witness in a hurt case against the appellant and Allah Bakhsh. We would, not therefore like to rely on his statement. The other Lambardar Bashir Ahmad, although he also belongs to the same district of Hoshiarpur to which the complainant party belongs, yet he has no enmity with the appellant and therefore the recovery of the spear cannot be thrown out even though it was canvassed that he had deposed that Ghulam Rasool who was present outside the dhari wherefrom the recovery was made, had also attested the recovery, despite the fact that memo does not bear his signatures or thumb-- impression. The disintegration of blood from the spear cannot exclude the recovered spear as the weapon of offence used by the appellant.
Reference is made to Ghulam Rasul v. Ali Akbar and` others PLD 1965 SC 363
15. There is, therefore, sufficient evidence to bring home the guilt to the appellant. The next question which would arise for consideration would be as to what offence he has committed. We feel that in the absence of any previous enmity between the parties the deceased having no concern in the affair tried to display bravado and intervened in the altercation which was going on between the Captain's son and the accused on account of the singing in the Bazar. He being a strong person, who tried to perhaps display his supremacy, threatened and abused the accused. The intention of the accused naturally had to devolve on him. Allah Bakhsh gave a push to the deceased in order to save himself from his onslaught. It is said that there was grappling, as well.
This being the situation, the appellant in order to rescue his brother, whom he thought had fallen into the clutches of the powerful person, with the purpose of incapacitating him, gave a single blow to the deceased, but in so doing, in our opinion, he has exceeded the right of private defence of person since Munir Ahmad though a very stout person was empty-handed in the scuffle. Short of causing his death any harm could be done to the deceased. In these circumstances the appellant's case will fall within the purview of Exception 2 to section 300, P. P. C. We would, therefore, alter his conviction to one under section 304, Part I, P. P. C. And reduce the sentence to seven years R.I.
16. It was vehemently argued by Mr. M. Arif counsel for the complainant that the learned Additional Sessions Judge has not properly appreciated the evidence and the acquittal of the accused has caused miscarriage of justice. We are afraid, we cannot agree with the submission made by him.
There is no illegality in the trial and it cannot be urged with success that the appreciation by the learned Additional Sessions Judge of the evidence before him can in any manner be said to be foolish or perverse. The acquittal cannot be lightly interfered with and we cannot replace our own view of appreciation of evidence in coming to a con--clusion contrary to the one, arrived at by the learned Additional Sessions Judge. In our-view no case for retrial is made out.
17: His next contention was 'that the conviction of Allah Bakhsh under section 323, P, P. C. Is bad and his conviction should be altered to that under section 302. P: P. C. We are afraid in the absence of any appeal by the State and the view which we have adopted no case for interference is made out on that score as well. His last objection was that the learned Additional Sessions Judge has not given any compensation to the deceased under section 544-A, Cr. P. C. Which is a must unless there is some reason given by the learned Additional Sessions Judge for not inflicting the penalty of fine. The view which we have adopted in the case would not require a heavy compensation. It would be fair if a fine of Rs. 1,000 is imposed on the appellant which will be paid as compensation .To the complainant. In the absence of payment of fine he will suffer further sentence of one year R.
I. '
18. For the foregoing reasons this appeal is partly accepted and both the revisions filed by the complainant are dismissed.