Criminal Revision No. 734/1971 and State Appeal No. 374/1971 ate connected matters having been directed against the judgment dated 19-6-1971 of the Additional Sessions Judge, Sargodha whereby he upheld the conviction and sentence of Mehra petitioner recorded by the trial Magistrate under section 325 read with section 39 of the Pakistan Penal Code with an award of two years' rigorous imprisonment, and acquitted his co-accused Ataya and Gulla who had also been convicted along with him, with an award of the same quantum of punishment each.
2. The case for the prosecution as revealed in the initial report Exh. P. A. Lodged by Khan Muhammad son of Ata Muhammad, P. W. 3 one of the injured witnesses, at Police Station Shahpur Sad-Jar, at 3-15 p. m., on 19-7-1968, briefly, was that earlier the same day, alter sunrise, he happened to be present in his land in the area of village Buttarwala seven miles from the Police Station, while his two tenants, namely, Allah Bakhsh P. W. 1 and Khan Muhammad son of Ahmad Yar P. W. 5 were ploughing the land. In the meantime, Mehra petitioner accompanied by Ataya and Gulla respondents in the State appeal, and three others who were later identified to by Muhammad, Ahmad and Kamir, and were acquitted, by the trial Magistrate, suddenly appeared on the scene armed with dangs. They challenged Allah Bakhsh saying that they would he avenged for the insult to Salahi, brother-in-law of Mehra, petitioner. They all attacked Allah Bakhsh who, on receipt of injuries fell to the ground, but the assailants continued showering blows on him. Khan Muharnm ad P. W. 5 tried to intervene and was also injured at the hands of Mehra, Ataya and Gulla.
Then Khan Muhammad, complainant, stepped forward with a stick in hand but he too was belaboured by Mehra, Ataya and Gulla. In exercise of the right of private defence, he inflicted some blows on Mehra. The motive alleged in the report was that a couple of months prior to the occurrence, in the month of Balsakh, Salahi, brother-in-law (wife's brother) of Mehra, unsuccessfully competed with one Qutba over harvesting of wheat at the instance of Allah Bakhsh who had arranged this trial between them. Being incensed over his defeat, Salahi abused Allah Bakhsh, who gave him beating in return. Salahi then left throwing a challenge that he would be avenged. It was on that account that Mehra accompanied by five other accused had assaulted Allah Bakhsh to save when Khan Muhammad son of Ata Muhammad and Khan Muhammad son of Allah Yar also intervened and received injuries into the bargain.
3. The medical evidence revealed that Khan Muhammad complainant received five simple blunt weapon injuries, while Khan Muhammad son of Allah Yar received ten injuries containing multiple contusions on the right buttock mentioned injury No. 1, injury No. 6 resulting in the fracture of the nasal bone was declared grievous, all having been caused by a blunt weapon. Allah Bakhsh son of Abdullah, who was the principal target of the assailants, received eight injuries, including two small circular abrasions mentioned against injury No. 8. Injury No. 4 resulting in the fracture of his right tibia was found to be grievous, all having been caused by blunt weapon Mehra, the principal accused in the case, was found to have sustained seven injuries which were explained by Khan Muhammad complainant as having been dealt by him in exercise of the right of private defence.
Injury No. 5, which was a contused wound on the back of his left fore-arm, and injury No. 7, a welling on the index finger were found to be grievous. The rest were simple all having been caused by blunt weapon.
4. The venue of the occurrence does not appear to have been seriously disputed. The prosecution case rested on the ocular testimony of four eye-witnesses who were all injured except Ramzan P.
W. However, in view of the fact that three of the accused, namely Muhammad, Ahmad and Kamir, were not specifically in the initial report and the complainant party did not agree to their identification test, as submitted earlier, they were given the benefit of doubt and acquitted by the trial Magistrate who convicted Mehra, Ataya and Gulla, the last-mentioned two having also secured acquittal in appeal which is now challenged through State appeal.
5. Challenging the conviction pf Mehra, the principal contention of the learned counsel for the petitioner is that his examination under section 342 of the Criminal Procedure Code was conducted in a very superficial and careless manner so much so that some of the most material questions calling upon him to explain the injuries on his person, the reasons for his false implication, and whether he would like to lead evidence in defence though purporting to have been put to him, remained unanswered as indicated by the blankness of the relevant columns. Although Ataya, Gulla and other witnesses led evidence in defence, Mehra did not avail of any such opportunity. It may be mentioned in this context that Ataya and Gulls had been found innocent by the Police during investigation and ware placed in column No. 2 in the first instance. They examined Sub- Inspector Said Hasan as D. W. 1 and one Muhammad Nawaz D. W. 2, who, on persona: inquiry, was satisfied about the innocence and was examined by the Sub-Inspector in this regard during investigation. It was primarily on the basis of this evidence that their appeal was allowed by the learned Additional Sessions Judge.
6. In so far as the case of Mehra is concerned the question to be determined is as to whether the omission can the part of the trial Magistrate to record answers to specific questions put to him during his examination under section 342 of the Criminal Procedure Code are fatal to the prosecution case or alternatively can be cured under the extended scope of the amended provisions contained in section 537 of the Criminal Procedure Code. It is well settled that notwithstanding the enlargement of the scope of the curative provision contained in section 537 of the Criminal Procedure Code, as amended, if some important incriminating questions are not put to the accused in order to afford him an opportunity to offer his explanation, these questions have to be excluded from consideration. I am afraid on the three questions pertaining to the explanation of the injury sustained by him, the reasons for his implication, and his willingness to lead evidence or otherwise are excluded from consideration, the prosecution case against him would have no legs to stand. Even otherwise the superficial and careless examination of an accused under section 342 of the Criminal Procedure Code, as revealed in the case of Mehra, could not be brought within the purview of the curative provision contained in section 537 of the Criminal Procedure Code as held in Suleman v. C. ITOH & Company Ltd (PLD 1962 Kar. 447) and in Ghulam Mustafa v. The State (1968 P Cr. L J 1797). In the circumstances therefore one is driven to the irresistible conclusion that the conviction of Mehra cannot be allowed to stand and is accordingly set aside.
7. This brings me to the State Appeal against the acquittal of Ataya and Gulla. In the first instance, it is abundantly clear that Mehra was the principal accused who wanted to avenge the insult of Salahi, his wife's brother, and was instrumental is arranging the assault on Allah Bakhsh, which also resulted in injuries to Khan Muhammad, complainant, P. W. 3, and Khan Muhammad P. W.
5. Once he is let off along with the three others acquitted co-accused, namely Muhammad Ahmad and Kamir, whose acquittal was not challenged by the State, the challenge to the acquittal of Ataya and Gulla through State Appeal cannot be considered to as entirely detached manner in complete disregard of the significant fact of the acquittal of four out of the six accused. Coupled with this is the finding of the Investigating Officer that they were innocent. Of course the opinion of the Investigating Officer .In regard to the guilt or innocence of the accused may not he quite relevant yet, in, it would be difficult to say that the testimony of the two witnesses examined in defence by Ataya and Gulla respondents in the State appeal, based on their personal inquiry, can have has no effect on the judicial mind in the circumstances of the easel wherein four out of the six accused, including the principal accused, have already been let off. Although having regard to the facts and circumstances one cannot avoid an impression that it vas a cage of a pre-planned attack yet unfortunately the conclusions arrived at are inescapable. Consequently I allow the revision filed by Mehra and dismiss the State Appeal against Attya and Gulla.