1. ' Mojahid (22), Abdul Rehman (58) and Khalid (30) appellants in Criminal Appeal No.228 of 1990 and Abdul Khaliq (54), Abdul Majeed (48) and Muhammad Yousaf (30) appellants in Criminal Appeal No.189 of 1990 have challenged their convictions and sentences recorded by the trial Court vide the judgment, dated 4-4-1990. They were alleged to have caused death of Sardar Muhammad deceased and injuries to Abdul Razaq P.W.1 and Abdul Ghaffar, P.W.3 complainant.
2. They were convicted on different counts and awarded various sentences as noted below:-- Mojahid.
3. Under section 324, P.P.C.R.I. for 3 years.
4. Under section 148, P.P.C.R.I. for 3 years and fine of Rs.5,000. In default further R.I. for 1 year.
5. Sentences to run concurrently.
6. Abdul Rehman: Under section 326, P.P:C.R.I. for 10 years with fine of Rs.5,000. In default R.I. for 1 year.
7. Under section 148, P.P.C.R.I. for 3 years, fine Rs.5,000. In default R.I. for 1 year.
8. Sentences to run concurrently.
9. Fine if recovered was ordered to be paid to Abdul Ghaffar and Abdul Razzaq injured P.Ws. in equal shares.
10. Khalid Under section 304, Part II, P.P.C.R.I. for 10 years Under section 148, P.P.C. R.I. for 3 years with fine of Rs.5,000, In default R.I. for one year.
11. Fine if recovered, to be paid to the heirs of Sardar Muhammad deceased.
12. Under section 324, P.P.C.R.I. for 3 years.
13. Sentences to run concurrently and Abdul Majeed, Khaliq and Yousaf Under section 324, P.P.C.R.I. for 3 years.
14. Under section 148, P.P.C.R.I. for 3 years with fine of Rs.5,000 In default R.I. for 1 year.
2. Suleman son of Ahmad Din real brother of Abdul Khaliq accused was also tried alongwith the appellants who was acquitted by the trial Court. Both the appeals are being disposed of by a single judgment as common questions of law and facts are involved in the appeals.
3. Briefly stated the prosecution story is that 4/5 days prior to the occurrence an altercation had taken place between Abdul Ghaffar complainant and Khalid appellant but the matter was settled due to intervention of respectables of the locality. However, Khalid accused nursed a grudge against the complainant. On 25-5-1985 at about 5-00 p.m. the complainant was going to his house. When he reached near the shop of Ismail Faqir, seven accused persons namely, Khalid, Khaliq, Abdul Rehman; Abdul Majeed, Suleman, Abdul Khaliq and Muhammad Yousaf armed with Sotas (except Abdul Khaliq who was empty---handed) came there raising Lalkaras. Abdul Khaliq appellant raised a Lalkara that the complainant be taught a lesson for giving abuses and be done to death. Upon this Khalid -appellant gave a Dang blow hitting Abdul Ghaffar, the complainant on right side of his shoulder. Mojahid appellant gave a Sota blow on his head. Abdul Rehman appellant inflicted a Sota blow on his left hand. On the hue and cry raised by Abdul Ghaffar, complainant, his younger brother Abdul Razzaq, uncle Sardar Muhammad, father Hassan Muhammad and Muhammad Ali son of Roshan Din reached the spot. When Sardar Muhammad, deceased and Abdul Razzaq went ahead to rescue him, Khalid appellant gave a Dang blow on the head of Sardar Muhammad deceased who fell down unconscious. Abdul Rehman appellant gave a Sota blow on the left wrist of Abdul Razzaq 'P.W. Abdul Majid appellant also gave Sota blows on the head and back of Abdul Razzaq. Suleman, the acquitted co-accused was said to have given a Sota blow on the head and right ear of Abdul Razzaq. Yousaf appellant gave a Sota blow causing an injury on the right shoulder of Abdul Razzaq. Muhammad Ali and Hassan Muhammad intervened and managed to rescue the injured persons from the clutches of the accused persons.
15. Sardar Muhammad and Abdul Razzaq were taken to the hospital where Sardar Muhammad died as a result of the injuries sustained by him.
4. In support of its case the prosecution relied on the evidence of motive, ocular evidence, medical evidence and the recoveries. In all; the prosecution examined 12 witnesses in its case.
5. P.W.1 Abdul Razzaq stated that on 25-8-1985 at about 5 p.m. he was going to offer prayer in the village mosque. His uncle Sardar Muhammad deceased was also with him, Hassan Din father of the deceased and Muhammad Ali were following them. When he reached near the house of one Babu Cheena, he saw his brother Abdul Ghaffar coming from his house. When Abdul Ghaffar reached near the shop of Ismail Faqir the 7 accused persons named above armed with Dangs/Sotas (except Abdul Khaliq who was empty-handed) also reached there. On the Lalkara raised by Abdul Khaliq for leaching a lesson to Abdul Ghaffar and killing him, Khalid accused opened attack and gave Dang blow on the left shoulder of the complainant. Mojahid and Abdul Rehman appellants-gave blows to Abdul Ghaffar on his head and left hand respectively. When he and his uncle Sardar Muhammad deceased went forward to save the complainant, Khalid appellant gave a Dang blow on the head of Sardar Muhammad deceased who fell down on the ground and became unconscious. He further stated that Abdul Rehman appellant gave a Sota blow on his left arm. Abdul Majced appellant gave blows on his head and back. Suleman the acquitted accused caused a Sota blow hitting on right side, his ear. Yousaf appellant inflicted a Sota blow on his right shoulder. Abdul Khaliq appellant went on raising Lalkara that no one should be spared. His father Hassan Din and Muhammad Ali intervened and managed to rescue the injured persons. Thereafter, the accused persons decamped from the spot with their respective weapons. The injured persons were brought to District Headquarter Hospital, Kasur where Sardar Muhammad succumbed to his injuries. P.W.2 Barkat Ali deposed to recoveries of Dang P.1, Sotas P.2 to P.G from Khalid, Abdul Majeed, Suleman, Abdul Rehman, Mojahid and Yousaf accused respectively. Abdul Ghaffar, P.W.3, the injured complainant supported the averments made in the F.I.R. P.W.4 Sardar Muhammad son of Badar Din deposed to the recovery of tile last worn clothes of the deceased i.e. blood-stained shirt P.7, Chadar P.8 and Saafa P.9. P.W.5 Fazal Din is a witness of recovery of blood-stained earth from the place of occurrence. P.W.6 Zulfiqar Ali Moharrar Head Constable was given the scaled parcel pertaining to blood-stained earth which he had handed over to Muhammad Akhtar Ali Constable on 1-9-1985 for the delivery to the office of the Chemical Examiner, Lahore. The parcel remained intact in the custody of the said witness P.W.7 Muhammad Akhtar Constable had escorted the dead body of the deceased to the mortuary for post-mortem examination. The doctor gave the last worn clothes of the deceased to him alongwith some documents for giving the same to the Investigating Officer. He also delivered the parcel pertaining to the blood-stained earth in the office of the Chemical Examiner. P.W.8 Muhammad Ahmad Anwar Draftsman prepared the site plan Exhs. P.K. and P.K.1 of the place of occurrence. P.W.9 Anayat Ullah recorded the formal F.I.R. Exh.P.G./1 on receipt of the complaint Exh. P.G, P.W.10 Muhammad Ali is an eye-witness. He lent support to statements made by Abdul Razzaq P.W.1 and Abdul Ghaffar P.W.3.
16. P.W.11 Dr. Ijaz Ahmad Sheikh, Medical Officer Rural Health Centre Mustafa Abad had medically examined Abdul Razzaq P.W. and found following injuries on his person:-- (1)A lacerated wound on right side parito occipital bone area of the head, size 3 c.m. x scalp deep.
17. (2)Swelling behind right side ear size 3 c.m. x 2-1/2 c.m.
18. (3)Abrasions back of right shoulder size 2 c.m. x 1 c.m.
19. (4)Contused swelling back of left elbow joint size all over. He was complaining pain on the back of chest.
20. ' Injury No.4 was declared to be grievous in the light of the operation note receipt from the General Hospital, Lahore. Copy of the medico-legal report is Exh. P.L. He also medically examined Abdul Ghaffar, complainant and found the following injuries on his person.
21. (1)Swelling on right occipital bone area of head size 2 c.m. x 2 c.m.
22. (2)Abrasion on left side chest 1 c.m. x 1 /2 c.m.
23. (3)Contused swelling on right side shoulder size 5 c.m. x 3 c.m.
24. (4)Contusion on left clavilar bone area size 3 c.m. x 1 c.m.
25. (5)Swelling on back of left hand at inner half size 6 c.m. x 4 c.m.
26. ' Injury No.5 was declared to be grievous while the rest were simple. Exh. P.M. is the copy of the medico-legal report. On 26-8-1985 at 9-00 a.m. he conducted a post-mortem examination on the dead body of Sardar Muhammad son of Haji Muhammad Bakhsh and found the following injuries on the dead body:-- (1)A lacerated wound on left side front prietal bone area of head near middle line obliquely size 6- 1/2 c.m. x 1 c.m. and bone deep.
27. ' On internal examination the left prietal bone underneath the injury was fractured extending to the left and downward on the left temporal bone area up to tempora mendibula joint.
28. ' On examination of the brain, membranes were lacerated in mid lines and there was defuse subrachlnoit haemorrhage all over the brain surface.
6. P.W.12 Mirza Ramzan Baig Inspector conducted investigation in the case. He recorded the statements of the P.Ws. under section 161 of the Cr.P.C., prepared injury statement of Sardar Muhammad deceased and Abdul Ghaffar complainant and prepared inquest report of the deceased. He took into possession blood-stained earth from the spot and last worn clothes of the deceased. He also effected recoveries of crime weapons from the accused persons. On 30-8-1985, he got two of the appellants namely, Abdul Rehman and Khalid medically examined by Dr. Zafarullah Sial, Medical Officer Civil Hospital Mustafabad. The said doctor was examined by the trial Court as C.W.1. On examining Abdul Rehman appellant, he found following injuries on his person:-- (1)Lacerated wound on the left parietal area of scalp, 0.7 c.m. from the left car upper margin. Edges of the wound are joined together partially. Size 0.5 c.m. x 1/2 c.m. x 1/2 c.m.
29. (2)There was contusion with swelling on the back side of the left hand at the meta carpal area size OS c.m. on 07 c.m.
30. ' Injury No.2 was declared grievous in the light of the X-ray report. He also found following injuries on the person of Khalid Mahmood appellant:-- (1)Small incised wound on the back side of left forearm at middle. Edges of the wound were partially joined. Size 2 c.m. x 1/2 c.m. x 1/2 c.m.
31. (2)Abrasion mark on the back side of the left elbow joint size 1-1/2 c.m. x 1/2 c.m.
32. (3)Contusion with swelling on the backside of the left chest at middle size 2 c.m. x .1 /2 c.m.
33. (4)Small abrasion mark on the top of the right shoulder joint size 1 c.m. x 1/2 c.m.
34. (5)Small healed abrasion partially on the front side of right knee joint, size 1 c.m. x 1./2 c.m.
35. ' All the injuries were found to be simple in nature caused within a duration of 5 days. Injury No.l was caused with a sharp-edged weapon while others with blunt weapons.
7. In their statements under section 342 of the Cr.P.C. the accused persons pleaded innocence.
36. Suleman, the acquitted accused has stated that he was not present at the spot and was at a place two miles away from the place of occurrence. Khalid appellant made a detailed statement and claimed that when he alongwith his father Abdul Rehman was sitting in his Havaili, Abdul Ghaffar armed with Chhavi, Abdul Razzaq, Sardar Muhammad deceased, Riaz armed with Dangs, and Muhammad Shari armed with Sota entered his Havaili and attacked him and his father Abdul Rehman, both of whom were injured. On the hue and cry raised by them Asmat Ullah son of Suleman accused and Abdullah alongwith others were attracted to the spot. Asmat Ullah gave injuries to Sardar Muhammad deceased in exercise of his right of self-defence. Khalid appellant further stated that he as well as his father gave some injuries to Abdul Ghaffar and Abdul Razzaq in exercise of the right of his defence. Abdul Rehman also made a similar statement under section 342 of the Cr.P.C. "
37. 8: I have heard the learned counsel for the appellants and the State and gone through the relevant record with their assistance. Both the learned counsel for the appellants urged that the appellants were subjected to aggression and had come forward with their counter-version promptly but the investigating Officer did not even care to investigate into the same. They further alleged that it was Asmat Ullah who had inflicted a Dang blow on the head of Sardar Muhammad deceased and for that reason he was done to death on G-9-1985 by Abdul Ghaffar complainant alongwith 4 others m the premises of Sessions Court Kasur, just 12 days after the present occurrence. They also urged that the provisions of sections 326 and 324 of the P.P.C. were not attracted because no injury with a sharp-edged weapon or fire-arm was caused. They further submitted that the recoveries were planted on the appellants and were otherwise of no value being rot stained with blood. The learned State Counsel supported the convictions of the appellants and pointed out that the Dang recovered from Klialid appellant was blood-stained He further urged that the prosecution had succeeded in proving its case beyond reasonable doubt.
9. Admittedly both Abdul Rehman and Khalid appellants were injured in the same occurrence and they came forward with their counter-version at the earliest opportunity. However, it is strange that the Investigating Officer did not care to inquire into the counter-version to ascertain its truth. When examined as P.W.12 Mirza Ramzan Baig, the Investigating Officer, admitted that he had received the medico-legal reports about injuries sustained by Abdul Rehman and Khalid appellants but did- not try to find out as to how the said injuries were received by them. His precise statement is as under:- - "I did not investigate over the infliction of these injuries. I even did not enquire about that how Abdul Rehman and Khalid accused received these injuries. It is correct that Abdul Rehman and- Khalid accused had taken up the plea before me that it was Abdul Ghaffar, Hassan, Abdul Razzaq and Sardar etc. who caused them these injuries at the first instance. They also stated before me that in the exercise of the right of private defence to save the life of Abdur Rehman and Khalid Asmat Ullah, his father Suleman and Abdullah etc. gave injuries to Sardar Muhammad and Abdul Ghaffar etc."
38. ' He could not offer any explanation as to why a case for infliction of simple and grievous injuries to Abdul Rehman and Khalid was not registered by him. Reason for his apparently mala fide conduct might be the influence 4 the complainant party, one of whom namely Abdul Ghaffar complainant was a Naib---Court and the deceased was his nephew. Whatever the actual reason, it is obvious that the Investigating Officer was guilty of dereliction of his duty and action should be taken against him departmentally.
10. The prosecution is guilty of suppressing material facts pertaining to the injuries sustained by Khalid and Abdul Rehman appellants. In the absence of any explanation for the said injuries, including one grievous injury found on the person of Abdul Rehman appellant, it can be presumed that they were attacked first and had acted in the exercise of their right of self-defence and that probably Asmat Ullah (now dead) had given Sota blow to Sardar Muhammad deceased in his effort to rescue Khalid and Abdul Rehman. The circumstance that Asmat Ullah was killed just after 12 days of the occurrence in the premises of the Sessions Court Kasur is vitally important and lends support to the defence version. Five accused persons namely Abdul Ghaffar (complainant in the present case), Abdul Razzaq, Sardar Muhammad, Riaz and Shat were implicated in the said case but were ultimately acquitted on 4-4-1.990. Riaz is son of Fateh Muhammad, A.S.I. nephew of the deceased. The Investigating Officer claimed to have joined the residents of the locality where the occurrence had taken place and recorded statements of Nabi Bakhsh, Babu and Ismail etc. (as per the Urdu record). However, those persons were not cited as P.Ws. It was pointedly suggested to him by the defence that he did not cite them as witnesses because they were not prepared to support the prosecution story. It is really strange that the occurrence, according to the prosecution, had taken place in a thoroughfare but not a single independent witness was produced to support the prosecution story. Both Abdul Razzaq P.W.1 and Abdul Ghaffar P.W.3 are nephews of the deceased and Muhammad Ali P.W.10 belongs to his brotherhood. None of them gave any explanation about the injuries sustained by Khalid and Abdul Rehman and were thus guilty of suppression of facts.
39. Muhammad Ali resided at a distance of about 100 Karams from the place of occurrence and was a mere chance witness. Moreover, he did not receive any injury, although he claimed that he tried to rescue the injured P.Ws. when they were being caused injuries by the assailants. Had it been so he' must have received some injury at the time of the occurrence. Thus, the prosecution story is not free from shadows of reasonable doubt. The defence version put forward by the appellants appears to be more probable in the circumstances of the case. Abdul Rehman appellant had received two injuries and injury No.2 on his hand, was found to be grievous. Khalid appellant had received one incised injury and 4 other injuries with blunt weapon. Thus they reasonably apprehended danger to their lives. Probably on being attacked by the complainant party they raised hue and cry, which attracted Asmat Ullah and others to the spot and found Khalid and Abdul Rehman appellants in real danger. Asmat Ullah gave a blow on the head of Sardar Muhammad deceased who subsequently died in the hospital. Due to this role performed by Asmat Ullah he was done to death just after 12 days in the Court premises.
11. I therefore, conclude that the prosecution had failed to prove its case against the appellants beyond reasonable doubt, who in all probability were subjected to aggression and had acted in the exercise of right of self-defence. Hence I allow the appeals, set aside the convictions and sentences of the appellants and acquit, them of the charges against them. They were released from the jail in persuance of the short order passed by this Court on 21-10-1990. Their bail bonds and surety, bonds shall stand discharged.