' Criminal Appeal No,2 of 1985 filed by Khan Muhammad and Muhammad Khalid appellants and Criminal Appeal No,4 of 1985 filed by Abdullah son of Hidayat arising out of single judgment of conviction and sentence passed by Additional Sessions Judge, Multan on 8-12-1984. Both the appeals are disposed of vide single judgment.
2. Khan Muhammad son of Ghulam Muhammad, Muhammad Khalid son of Khan Muhammad and Abdullah son of Hidayat were tried by Additional Sessions Judge, Multan and were convicted under section 302/34, P.P.C. For committing the murder of Muhammad Azam son of Qadir Bakhsh and were sentenced to imprisonment for life each and a fine of Rs,10,000 each. In default of payment of fine each of the accused were to suffer two years' R.I. Benefit under section 382-B, Cr.P.C. Was given to the accused and in case the fine be recovered it was ordered that half of the same shall be paid to the heirs of the deceased Muhammad Akram.
3. Qadir Bakhsh son of Allah Bachaya made a statement to Muhammad Ashiq, S.-I. Police Station Lodhran on 5-11-1982 at 4-10 p.m. When the latter was on patrol duty and made the first information report near Tehsil Lodhran. The said statement Exh.P.L. Was reduced into writing, read over to Qadir Bakhsh who thumb-marked the same as a token of its correctness and Muhammad Ashiq, S.-I. Sent the complaint to the police station through Ghulam Qasim, Constable and F.I.R.
No,299 Exh.P.L. Was registered at the police station under section 307/34, P.P.C. By Muhammad Ali, M.H.C., P.W. It was alleged by the first informant in his statement that he and his brother were residents of Basti Paley Wali and adjacent to the same there was cotton crop of Khan Muhammad, accused. At about 1- p.m. On that day while Khan Muhammad was having round of his crops, Saeed Ahmad son of Farid, his sister's son aged 13 years, was passing by. He was caught hold of by Khan Muhammad and was given beating. On his cries his son Muhammad Azam and Muhammad Akram and Allah Diwaya sons of Yar Muhammad went to the spot and got Saeed let off by admonishing Khan Muhammad which was taken by him as insult and left the spot saying that he would avenge the insult. At about 2 p.m. When he was present in his house and his son Muhammad.' Azam was standing on the watercourse outside the house that Khan Muhammad armed with Kulhari, Abdullah armed with Phaora and Khalid armed with Sota came there. Khan Muhammad raised Lalkara to Muhammad Azam that he shall not be left alive. In the meantime he, Ghulam Yasin and Alaf Din arrived there and in their presence Khan Muhammad gave a Kulhari blow at the head of Muhammad Azam, Abdullah accused gave a Phaora on the right side of head of Azam and Khalid gave two Lathi blows on the head of Azam hitting him in the back and right side of his head. Azam fell down and the accused sped away. Muhammad Azam was taken to the Civil Hospital by him, his brother Elahi Bakhsh, Ghulam Rasool, Muhammad Hanif etc. Where Azam was medically examined. He produced the medico-legal report of Muhammad Azam before the Sub-Inspector who after recording his statement proceeded with the investigation. The Sub- Inspector went to Civil Hospital, Lodhran where he addressed a Ruqa Exh.P.C. To the Medical Officer to inquire whether Muhammad Azam was fit to make a statement. The reply Exh.P.C./1 was in the negative. Thus, all the witnesses who were present at the hospital were examined and their statements under section 161, Cr.P.C. Were recorded. After a short time the Medical Officer, vide his Ruqa Exh.P.D. Informed him that injured Muhammad Azam had expired. Offence under section 302, P.P.C. Was added. He examined the dead body of Muhammad Azam and prepared injury statement Exh.P.6 and inquest report Exh.P.F.; despatched the dead body for autopsy under the escort of Mumraiz Khan, Constable. He went to the spot and recorded the statement of Alaf Din, P.W. On the following day he inspected the place of occurrence, collected the blood-stained earth, sealed the same into a parcel and secured the same vide memo. Exh.P.M. He also inspected the place where Saeed Ahmad P.W. Was injured, prepared site plan Exh.P.S. Without scale. Mumraiz Khan produced the last-worn blood-stained clothes of the deceased Kurta P.1, Dhoti, P.2 and Pagri P.3 which were secured vide memo. Exh.P.M.
3. All the three accused were arrested on 7-11-1982 by the Investigating Officer Khan Muhammad accused led to the recovery of blood-stained hatchet P.4 on 8-11-1982 from his house which was made into a parcel and secured vide memo. Exh.P.Q. Abdullah accused led to the recovery of blood-stained Phaora P.6 from his cattle shed which was made into a parcel and secured vide memo. Exh.P.R. All the memos. Were in his hand and signed by him. He also got the site plan of the place of occurrence prepared in triplicate by Munshi Ghulam arid, Patwari which were delivered to him and he affixed his notice in red ink -in site plans Exhs.P.A., P.A./1 and Exh.P.A.12. He deposited the parcel with he Moharrir for safe custody and got the accused challaned.
4. The accused were sent up to stand their trial in the Sessions Court. The trial Court charged all the three accused under section 302/34, P.P.C. On 15-10-1983 which was put to the accused who pleaded not guilty and claimed trial. The Court proceeded to record the prosecution evidence.
5. At trial prosecution produced Haq Nawaz, Constable P.W.1 who was delivered four sealed parcels on 22-11-1982 which he delivered at the office of the Chemical Examiner intact. Ghulam Farid Patwari prepared site plans Exhs.P.A., P.A./1 and P.A./2 in the scale of 20 Karams to an inch.
Muhammad Ali, Constable P.W.4 was Moharrir Head Constable who recorded formal F.I.R. Exh.P.L./1 on the basis of complaint Exh.P.L. He was handed over four sealed parcels by the Investigating Officer on 8-11-1982 which he sent to the office of the Chemical Examiner through Haqnawaz P.W.1.
Mumraiz, Constable P.W.10 had escorted the dead body to the mortuary and had produced last- worn clothes of the deceased Exhs.P.1, P.2 and P.3 which were secured vide memo. Exh.P.N. All the above witnesses are of formal nature and they need not be discussed for the purpose of the disposal of the present appeals.
6. Saeed Ahmad P.W.5 was the alleged cause of the motive who stated that Qadir Bakhsh P.W. Was his maternal-uncle whereas Azam, Muhammad Akram and Allah Diwaya P.Ws. Were his cousins. At 1 p.m. On the fateful day he was present in his cotton field when Khan Muhammad accused was having round of his own field. Khan Muhammad came to their field, caught hold of him and started beating him on the pretext that he was damaging their cotton crop. He denied the allegation but Khan Muhammad continued beating when Azam, deceased was attracted to the spot. Qadir Bakhsh, Allah Diwaya and Muhammad Akram P.Ws. Were also attracted to the spot. They separated him from Khan Muhammad who was admonished. Khan Muhammad was given brick bats and fist blows by the witness and Azam, deceased. Khan Muhammad then left saying that he would avenge the insult. He was medically examined. Muhammad Akram P.W.6 made a similar statement corroborating P.W.S.
7. Rahim Bakhsh P.W.7 was the recovery witness of blood-stained earth, last-worn clothes of the deceased and the recoveries made at the instance of Khan Muhammad, Khalid and Abdullah accused. He was a marginal witness of Exh.P.M. Exh.P.N. Alongwith Alaf Din P.W. And marginal witness of Exh.P.N., Exh.P.O., Exh.P.Q. And Exh.P.R., respectively which were also signed by Ghulam Yasin, P.W.
8. Qadir Bakhsh P.W.8 repeated almost the same version which he had given in Exh.P.L. Ghulam Yasin P.W.9 narrated the eye-witness account and that he had identified the dead body of Muhammad Azam, deceased and the recoveries of last-worn clothes of the deceased and weapons of offence from Khan Muhammad, Khalid and Abdullah. He was marginal witness to all the recovery memos.
9. Alaf Din P.W. Who was mentioned in the F.I.R. As having seen the occurrence wherein Muhammad Azam was injured and was also the witness of recovery of blood-stained earth, was given up by the prosecution, on the basis of an application made by the complainant, as having been won over by the complainant.
10. As Exh.P.A., Exh.P.A./1 and Exh.P.A./2 do not specify the place ,from where the blood-stained earth showing the place of occurrence of injuries to Muhammad Azam, deceased place of occurrence a matter of controversy I draw an adverse presumption against the prosecution to that extent under section 114 of Evidence Act, 1872, illus. (g) and I am of the view that he was not to support the prosecution story regarding the place of occurrence as also the mode of occurrence and as to the place from where blood-stained earth was collected vide memo. Exh.P.M. The recovery memo.
Exh.P.M. Also does not specify the place whereas the same could have been specified by giving Killa number etc. Or at least by showing a spot in the site plan. Similarly spot was also not shown by the Investigating Officer in Exh.D.G. Which were prepared by Muhammad Ashiq, S.-I. P.W.I1 the Investigating Officer without scale but was not produced by the prosecution in its evidence. This fact also supports my view that the prosecution was withholding material evidence which could show the actual place from where blood-stained earth was collected. Exh.D.G. Also does not show the spot from where the blood-stained earth was collected.
11. Muhammad Ashiq, S.-I. Appeared as P.W.11. He stated that he was present near Tehsil Lodhran when he recorded the statement of Qadir Bakhsh P.W., Exh.P.L. And then narrated all the steps that he took in the investigation. In cross-examination he admitted that the accused party had on 7-11- 1982 produced the medical certificate regarding injuries to Khan Muhammad, and Abdullah accused and also produced medical certificates of Ghulam Sarwar and Mst. Sairan wife of Khan Muhammad. He also admitted in cross-examination that he got Khan Muhammad accused X- rayed regarding two injuries which were declared grievous and admitted that he had not made an application for obtaining the physical remand of Khan Muhammad on 26-11-1982 for the said purpose. The application was placed on the file as Exh.D.H. He further admitted that till 26-11-1982 he had found, during the investigation, that Khan Muhammad accused received injuries at the hands of Yasin and Alaf Din, P.Ws.
Medical Evidence:
12. Dr. Zia-ud-Din Zaidi P.W.3 had medically examined Muhammad Azam aged 32 years on 5-11- 1982 at 2-45 p.m. And found the following injuries on his person:--
(1) Contusion mark on the right side of the forehead obliquely extending to frontal part of head 7 x 3 c.m. At a distance of 3 c.m. From right eyebrow.
(2) An incised wound on the right side of the head 1-1/4 x 1/4 c.m. x bone deep at a distance of 7-1/2 c.m. From right eyebrow.
(3) Contused wound on the back of head 3 x 1/2 c.m. x bone deep 6 c.m. From right ear.
(4) Contusion mark on the left side of head 6 x 3 c.m. At a distance of 4 c.m. From the left ear oblique.
' Injuries Nos.!, 3 and 4 were according to his opinion, caused with blunt weapon while injury No,2 was caused with sharp-edged weapon. The duration between the injuries and examination was within three hours. The condition of the patient was stated as serious. Exh.P.B. Was the medico-legal certificate. On receipt of a query Exh.P.C., he replied the same in negative vide his endorsement Exh.P.C./1. At about 5 p.m. Muhammad Azam expired in the hospital and he sent the intimation thereof to the police vide memo. Exh.P.D.
13. On the next day he conducted post-mortem examination of Muhammad Azam and found the same injuries as mentioned in Exh.P.B. On dissection of the scalp he found blood clotted under the scalp and skull was fractured into pieces on right side, the frontal parts of the skull under injury No,1 . In his opinion injury No,1 which was caused by blunt weapon was sufficient to cause death in the ordinary course of nature and the time between death and postmortem was given as 14 to 15 hours. After conducting the post-mortem examination he handed over the last-worn clothes of the deceased and police papers to Mumraiz Khan, Constable P.W. Exh.P.E. Was the correct carbon copy of his post-mortem report Exh.P.E./1 was the diagram showing the seat of injuries. Inquest report Exh.P.F. And injury statement Exh.P.G. Were also signed by him.
14. On 6-11-1985 on a Ruqa of the Investigating Officer Exh.P.H. He medically examined Saeed Ahmad, P.W. And found the following injuries on his person:--
(1) Contusion mark on the back of left hand 6 x 4 c.m.
(2) Small abrasion on the left side of the nose. 1 c.m. In length.
(3) There was complaint of pain on the back of chest on left side.
' Exh.P.J. Was the medico-legal report issued by him. The witness admitted to have conducted the medico-legal examination of Saira wife of Khan Muhammad at 4 p.m. On 5-11-1982 and had observed the following injuries:--
(1) Contusion with swelling on the right cheek 5 c.m. x 4 c.m.
(2) Contusion on outer side of left wrist 1 c.m. x 2 c.m.
' Injuries Nos.1 and 2 were simple and were caused with blunt weapon within three hours.
15. He also admitted. To have examined Ghulam Sarwar son of Khan Muhammad aged 13 years at 4 p.m. On 5-11-1982 and found the following injury:--
(1) Contused wound on the back of head at a distance of 8 c.m. From left ear 3 c.m. x 1 c.m. x 1 c.m.
Obliquely.
' Injury was simple and was caused with blunt weapon with a duration of three hours.
16. He also admitted to have examined Khan Muhammad accused at 4 p.m. On 5-11-1982 and found the following injuries on his person:--
(1) Contusion mark on the outer side of left shoulder 7 x 1-1/2 c.m.
(2) Contusion mark on the top of left shoulder 4 c.m. x 1-1/2 c.m.
(3) A contusion mark on the outer side of left scapula on back rear axilla 10 x 1-1/2 c.m.
(4) Contusion mark on the back of chest on the left middle part 11 x 2 c.m. Obliquely.
(5) Contusion mark on the back of lumber region on left 5 x 1-1/2 c.m. Obliquely.
(6) Contusion on the top of right shoulder.
(7) Contusion mark on the back of right scapula 8 x 1-1/2 c.m.
' He was advised X-ray of the back of chest and right shoulder. Injuries Nos.4 and 6 were kept under observation. Rest were declared simple and all injuries were caused with blunt weapon within the duration of three hours. He also admitted that after examining the X-ray report he declared injuries Nos.4 and 6 as grievous.
17. He also admitted that he had also examined Muhammad Abdullah son of Hidayat Ullah at 4 p.m. On 5-11-1982 and found following injuries:--
(1) Contusion mark on the back of right shoulder on right scapula 6 x 3 c.m. Obliquely.
(2) Contusion mark on the back of chest on left 12 c.m. x 2 c.m. Obliquely.
(3) Contusion mark on the vertex of the head on left 4-1/2 c.m. x 3 c.m.
' All the injuries were simple, caused with blunt weapon within three hours. In cross-examination he admitted that Exh.D.A. And Exh.D.B. Were the correct photo copies of the medico-legal reports of Mst. Saira Bibi and Ghulam Sarwar respectively, the original of which were in his hand and signed by him. The witness had compared the photo copies in the Court with the original and certified them to be correct. He also admitted that Exh.D.C. Was the medico-legal report issued by him regarding injuries of Khan Muhammad and Exh.D.D. Was the medico-legal report issued by him regarding injuries of Abdullah. He also admitted that injuries Nos.1 and 2 on the person of Saeed Ahmad, P.W. Could be caused by a fall on hard substance and the possibility that the injuries were self-suffered could not be ruled out.
18. At the conclusion of the cross-examination of P.W.3 the Prosecutor made a request that either the witness be re-examined or the witness be declared hostile and he be allowed to cross- examine him. He got adjournment to address his arguments. On 29-3-1994 the Court declared P.W.3 as hostile and allowed the public prosecutor to cross-examine him. During the cross- examination of public prosecutor the witness was confronted with Ruqa Exh.P.K. From the police file and confronted the witness with the same. He admitted that Ruqa Exh.P.K. Had his endorsement Exh.P.K./1 which was in his hand and signed by him. He also admitted that the accused party had come to him for medical examination as a private case, when the police was present in the hospital and the medical examination was in the knowledge of the police. He examined the accused party in a room whereas the police was in the premises of the hospital outside the room.
He had not delivered the medico-legal certificates to the police but he had informed the police that he had also examined the accused party. He denied to have any knowledge of the police having prepared injury statements of four injured persons of the accused party. He denied the suggestion that Exh.D.A., Exh.D.I3., Exh.D.C. And Exh.D.D. Were fictitious documents which he prepared to create defence for the accused. He denied the suggestion that injuries Nos.4 and 6 on the person of Khan Muhammad could be self-suffered and self-inflicted.
19. I would observe here that the order of the trial Court declaring P.W.3 and P.W.12 as hostile was perverse and foolish. They had not deviated from the prosecution case but the Court unnecessarily caused harassm ent to the P.Ws. By declaring them hostile simply because P.W.3 admitted to have medically examined Khan Muhammad and Abdullah accused and Mst. Saira and Ghulam Sarwar, the members of their family and P.W.12 made no such admission. I take exception to the practice adopted by the trial Court which impeded administration of criminal justice. P.Ws.3 and 12 were the witnesses of the prosecution and their testimony related to their reports/opinion. So far as the reports were concerned, none of the two had given contrary evidence. Merely because P.W.3, in cross-examination, admitted to have medically examined the accused party, does not give right to the Prosecutor to cross-examine him and especially so when the Investigating Officer had admitted such examination and presence thereof on the file of the case. None of the P.Ws. Fit in the term of hostile witness. Declaring these P.Ws. As hostile amounted to causing harassment to the P.Ws. Who were also public servants.
20. The Prosecutor was allowed to produce Dr. Muhammad Afzal Hashmi, P.W.12, Medical Superintendent, Civil Hospital, Multan whose name did not appear in the calendar of witnesses. An objection was rightly raised by the learned defence counsel that a witness could not be produced to rebut the opinion of another prosecution witness. His objection was overruled and the P.W.
Stated that on 12-1-1983 he examined Khan Muhammad accused under the orders of a Magistrate.
He was brought to him on 3-1-1983 by S.-I. Muhammad Ashiq. The original medico-legal report and X-rays taken on 27-12-1982 were also produced before him. Khan Muhammad accused was referred to Radiologist of Nishtar Hospital, Multan for fresh X-ray of ribs and left shoulders. The X- ray results were brought to him on 8-1-1983 with the following result:-,- "(1) An old fracture of ninth and tenth ribs of left side of chest, with callus deposits around the fracture line.
(2) An old fracture of Acremen, process of the right scapula seen."
' According to the opinion of the Radiologist ribs Nos.9 and 10 were shown as fracture whereas in the previous opinion only rib had been shown as fractured. The S.H.O. Was required by him to bring the injured alongwith the record of reexamination. Khan Muhammad injured accused was again produced before him on 12-1-1983. The original medico-legal report dated 5-11-1982, the X-rays and opinion of Assistant Professor were also produced and in his opinion the chance of these injuries causing fractures on the shoulders and ribs by self was most remote. He had forwarded the documents in original to the Magistrate. This witness was also declared as hostile by the trial Court at the request of the prosecutor and was cross-examined. Exh.P.W.12/1 was brought on the file by the prosecution which was not earlier available on the case file.
21. The Court summoned Dr. Solomon Elahi and examined as C.W.1 and Dr. Saeed Ahmad Malik who was examined as C.W.2. C.W.1 stated that on 3-1-1983 he was posted as Assistant Professor of Radiology at N.M.C., Multan and M.S., Nishtar Hospital, Multan referred Khan Muhammad to him for X-ray examination of chest and right shoulder with note Exh.C.W.1/1. He took the X-ray examination of said person and gave the following opinion:-- "(1) There were old fracture 9th and tenth ribs, left side of chest with callus deposits around the fracture lines; and
(2) Old fracture auction process of right scapula, was seen."
' Dch.C.W.1/2 was the report which was in his hand which was based on X-ray Film Exh.C.W.1/3-6. Dr. Saeed Ahmad, C.W.2 'stated that Khan Muhammad was X-rayed in his presence on 27-11-1982. The patient was brought by Muhammad Khan, Constable, Police Station Lodhran. According to the X- ray report there was a fracture of 10th rib on the left side of chest and of scapula at right shoulder joint. He brought on file the photo copy of report Exh.C.W.1/2.
22. The trial Court allowed a document to be placed on the file Exh.P.K. Which was not in the notice of the accused persons as the same was not placed on the judicial file. If the prosecution is allowed by the trial Court to bring on record the pieces of evidence in their exclusive possession to which the accused were not presumed to have any access the nature of criminal jurisprudence would change entirely. The Court gave a free hand to the prosecutor not only to intimidate the witnesses but also to burden the case file with Exh.P.K. Which had earlier been withheld by the prosecution.
23. The D.D.A. Had tendered in evidence the report of the Chemical Examiner Exh.P.U. And that of the Serologist Exh.P.V. And had closed the case of the prosecution on 28-10-1984 after examining P.W.12.
He had given up Ch. Nazir Hussain, D.S.P., Elahi Bakhsh and Allah Diwaya as unnecessary and gave up Alaf Din P.W. On account of his being won over by the accused on 14-4-1984.
24. The accused were examined under section 342, Cr.P.C. On 7-11-1984. They claimed innocence and raised a plea of self-defence of person. They did not opt to make statement on oath under section 340(2), Cr.P.C.
25. I have heard the learned counsel for the appellant in both the appeals and the learned counsel appearing on behalf of the State and on behalf of the complainant and have gone through 'the entire evidence and proceed to record my findings.
26. The motive as alleged by P.Ws. .5, 6 and 8 to show that Khan Muhammad accused had given a beating, by slaps and fists etc. Who was rescued by P.Ws. And Khan Muhammad was admonished who took it as insult. Saeed Ahmad, P.W. Had himself appeared and was medically examined. I do not agree that injuries on the person of Saeed Ahmad P.W.5 were the result of slaps and I agree with the Medical Officer P.W.3 that the same could be self-suffered and fabricated. When seen with reference to the efforts made by the Investigating Officer to belie the plea of self-defiance and the P.W.5 having not been examined on 5-11-1982 I am of the view that on 5-11-1982 Saeed Ahmad did not have injuries on his person or 'otherwise he must have been got examined by the complainant party as the accused party was also getting all the injured persons of their family medically examined when, according to P.W.3 the complainant party as also the police were present within the hospital compound. Even if it be assumed that Saeed Ahmad P.W.5 was given beating by Khan Muhammad who was not given any beating in reply by the P.Ws. It was rather the complainant side who had a motive to cause injuries to Khan Muhammad as he had given a beating to their child. I disbelieve the motive part attributed to the accused and I am of the view, and as discussed hereafter, that it were the complainant party who had the motive to avenge the beating of Saeed Ahmad, P.W.S. Recoveries:
27. The recovery of blood-stained earth from the spot is of no help to the prosecution side. The defence has claimed that the blood-stained earth was secured from their cotton crop whereas the Investigating Officer and the witnesses had not pointed out the place from where the blood- stained earth according to their story was collected. There is no such point given in Exhs.P.A., P.A./1 and P.A./2 and in Exh.D.G. Which could suggest the place of recovery of blood-stained earth. Alaf Din P.W., who had witnessed the recovery memo. Was also the eye-witness, was the best available possible evidence to the prosecution as he was in a position ,to pin point the place in the Court wherefrom the blood-stained earth was collected. The prosecution has declared the witness as having been won over and it can safely be presumed under section 114 of the Evidence Act that the witness if produced in the witness-box was not to support the prosecution story.
' So far as the recoveries of Kulhari P.4, Sota P.5 and Phaora P.6 from Khan Muhammad, Khalid and Abdullah accused respectively is concerned the same were witnessed by Rahim Bakhsh P.W.7 and Ghulam Yasin P.W.9. Rahim Bakhsh was not resident of the locality. It was not on the road side that the accused were searched and the weapons were recovered from their possession and secured from the prosecution to plead that the provisions of section 103, Cr.P.C. Were not applicable. Here was a case where the accused were under investigation and the search was to be conducted and in case of recovery, recovery memo. Was to be prepared. The mandatory provisions of section 103, Cr.P.C. Was violated in the present circumstances. The Investigating Officer was obliged to associate two respectables of the locality to witness the search and sign the memo. P.W.7 was not A witness of the locality and was a chance witness as per his own admission because he was present there only in connection with showing his grief over the incident to the complainant party. I have all the reasons to disbelieve this witness. So far as Ghulam Yasin P.W.9 is concerned he is the cousin of Qadir Bakhsh and uncle of Muhammad Azam, deceased. He had a cause against Khan Muhammad of having firstly given beating to Saeed Ahmad P. W.5 and thereafter given alleged blows to the deceased. He was interested in the conviction of the accused who claimed themselves to have been injured at the hands of the complainant party. The only independent witness whose name was also mentioned in the F.I.R. Was Alaf Din but he was given up as having been won over by the accused party and in view of the above discussion I am of the view that the prosecution has failed to prove the recovery of Kulhari P.4, Sota P.5 and Phaora P.6 from Khan Muhammad, C Khalid and Abdullah respectively. I disbelieve the alleged recoveries.
Investigation:
29. I am constrained to note that the Investigating Officer was deviated the medico-legal reports by the accused party on 7-11-1982, when they were arrested and the Investigating Officer has admitted in Court that he knew about the version of the accused till 26-11-1982 and he believed the same to be correct. Thereafter he proceeded to get Khan Muhammad accused re-examined. He did not obtain the remand of the said accused for re-examination but directly secured his person vide Exh.D.H. Which shows the mala fides of the Investigating Officer. After a lapse of almost 20 days he was evidently sure that the injuries have healed, that is why he took up to get the accused medically examined and get an opinion and secure information whether he could discard the counter-version of the accused. I am of the view that the investigation was suffering from absolute patent mala fides. Counter-version:
30. There was counter-version in the case. The accused party also suffered injuries. Ghulam Sarwar and Mst. Saira suffered injuries who were not accused persons. Their injuries were not explained.
Khan Muhammad accused suffered two grievous injuries. Two of his ribs were fractured and shoulder bone was also fractured. None of the injury could be self-suffered, and it is not believable that it dawned upon the Investigating Officer after a laps of two weeks that the injuries were self- suffered. The story of giving brick bats as explained by the prosecution witnesses is ridiculous ex facie.
31. When both versions are put in juxtaposition the version of the accused is reasonably plausible and as such I am of the view that a right of private defence of person had accrued to the accused which extended in the circumstances, to the extent of causing death. The apprehension of the accused cannot be weighed in golden scales. Fractures of ribs and shoulder bone were sufficient to give apprehension to the accused party that death may also be caused and, therefore, I hold that the accused party' exercised the right of self-defence of their person and did not exceed the same.
32. As a result of what has been discussed above the appeal is accepted and the conviction of appellants in Criminal Appeal No,2 of 1985 and Criminal Appeal No, 4 of 1985 as recorded by Additional Sessions Judge, Multan on 8-12-1984 is set aside and the appellants in both the appeals are acquitted of the charge. They are on bail. They are discharged of their bail bonds.