' Faiz Ali (25), Akbar Ali (28), Amir Ali (35) son of Fateh Nur, Sabir Hussain (22), Muhammad Khan (19) sons of Ghulam Ali and Sardar Khan (24) son of Faqir Muhammad were tried by the learned Additional Sessions Judge Rawalpindi under section 302, P. P. C. Read with section 149, P. P. C. The learned Additional Sessions Judge vide his judgment dated 22-7-1965 disbelieved the prosecution evidence as well as the evidence, of recovery whereas he accepted the defence version as more plausible and convicted Faiz tali respondent under section 335, P. P. C. And sentenced him to four years' R. I. The rest of the accused respondents, namely, Akbar Ali, Amir Ali, Sabir Hussain, Muhammad Khan and Sardar Khan were acquitted by giving them the benefit of doubt. Revision petition has been filed under section 439, Cr. P. C. By Ahmad Khan petitioner who has prayed that order of the acquittal passed by the learned trial Court in respect of respondents Nos. 2 to 6 be set aside and a re-trial should be ordered in their case. A prayer for enhancement of the sentence of respondent No, 1 Faiz Ali has been made and his conviction under section 335, P. P. C. Has been assailed as unjustified. This revision petition was admitted by the order of this Court dated 10-3- 1966 to show cause as to why the order of acquittal of respondents Nos. 2 to 6 should not be set aside and order should be passed for their retrial. Similarly notice to Faiz Ali respondent was also issued to show cause why his sentence should not be enhanced.
2. The brief facts of the case are as under :- ' On 13th of May 1965 Ahmad Khan P. W. 12 alongwith Nazar Hussain deceased were working in khilwura owned by them in village Dhanda. At that time some sheep belonging to Amir Ali respondent trespassed into the melon crop of Ghulam Hussain, a maternal uncle of the deceased and his brother Ahmad Khan. Some damage was caused by these animals. Nazar Hussain deceased drove out the sheep from the field. In the meanwhile a dog belonging to Sabir Hussain respondent started chasing the sheep to which all the respondents who were present in their khilwara took strong exception. According to the prosecution version all the six respondents made a rush towards khilwara of the deceased while each of them was armed with pitchfork. As soon as they reached the khilwara alongwith the deceased Faiz Ali respondent initiated the attack with pitch-fork and inflicted a blow which fell on the left side of the head of the victim. Muhammad Khan respondent did not lag behind and gave a second blow with his weapon which hit the deceased on the right side of his head. On receiving these two blows the deceased fell down on the ground, Ahmad Khan (P. W. 12) who intervened was hit by Faiz Ali respondent on his back. Mardan Aly (P. W.
13), Ghulam Hussain (P. W. 14) and Shah Nawaz (P. W. 15), alongwith Sher Zaman saw this occurrence as they were present at that time in khilwara of Shah Nawaz. The respondents also did not spare them. Out of them Ghulam Hussain (P. W. 14) was injured by Amir Ali respondent while Muhammad Khan inflicted a blow on Mardan Ali (P. W. 13). Amir Ali respondent also gave a further blow to Mardan Ali (P. W. 13). Thereafter all the respondents left the spot and went away.
' An F. I. R. Was lodged at Police Station Chauntra by Ahmad. Khan P. W.
12. Nazar Hussain deceased was admitted in the hospital on 13th of May 1965 but he did not survive and died on the same day. A message was delivered on telephone at police station from Civil Hospital, Rawalpindi saying that Nazar Hussain had died. After receiving this massage a Head Constable reached the hospital where he found the dead body of Nazar Hussain at the premises.
He prepared injury statement Exh. P. E and inquest report Exh. P. F. The dead body was sent for post- mortem examination to the mortuary under the escort of F. C. Sajawal Khan (P. W. 7). Ch. Ejaz Hussain D. S. P. (P. W. 16) was acting as Supervisory Officer, Police Station Chauntra, when notified of this occurrence proceeded to the spot in the company of Abdul Hamid, S. a 0. Police Station, Mandra and reached at about 2-30 p. m. This Officer took up the investigation in his hand and found Ghulam Hussain and Mardan Ali in an injured condition. He prepared injury statement Exhs.
PM/I and PN, respectively and sent them to the hospital for medical examination. Faiz Ali, Akbar Ali, Sabir Hussain, Muhammad Khan and Sardar Khan were present at the spot and were taken into custody. Sabir Hussain respondent while in police custody led to the recovery of danda Exh. P. 3 from his kotha. This weapon was taken into possession by recovery memo. Exh. P. C. However this was not found stained with blood. Similarly Faiz Ali respondent led the recovery of danda Exh. P 4 from his kotha which was blood-stained and was taken into possession vide memo. Exh. P. D. A site plan was got prepared by Muhammad Sultan Patwari P. W.
5.
3. Dr. Maqsud Khan Medical Officer, District Headquarters Hospital, Rawalpindi found the following injuries on the dead body of Nazar Hussain deceased:-
(1) Swelling 3" x 2" over the left temple of the skull.
(2) Swelling 3-1/2' x 3" over the right side of the skull over the right temple.
' The internal examination by this doctor shows that the skull was found fractured. In the opinion of the doctor both the injuries were sufficient to cause death in the ordinary course of nature.
4. On the 14th of May, 1965, Dr. Muhammad Faruq, Incharge Civil Dispensary, Kallar, while examining Ahmad Khan P. W. 12 found the following injury on his person:-
(1) An abrasion 1" x I" just above the left shoulder-joint.
' The injury, according to the doctor, was simple in nature and was caused by blunt weapon, and its probable duration was within 24 hours.
5. On 15th May, 1965, at 1-10 p. m. Dr. Muhammad Sami (P. W. 3) medically examined, Ghulam Hussain P. W. 14 and found the following injuries on his person:-
(1) A lacerated wound 1/4" x 1/4" on the dorsum of left mid-finger.
(2) An ecchymosis 3" x 1" on the upper part of left scapula.
' The doctor said that both the above injuries were simple caused by some blunt means and of the duration of 1 to 4 days.
6. On the same day, at 1-15 p. m. The doctor examined Mardan All (P. W. 13) and found the following injuries on his person:-
(1) Complained of pain on left scapular region. No external sign of injury was observed.
(2) Two scratches 2" x 1/10" each on the media side of left scapula.
(3) Abrasion 1/4 X I" on lateral side of left scapula.
' The injuries aforementioned, according to the doctor, were simple, caused with some blunt weapon and of the duration of one to four days.
7. Beside the immediate cause of this incident, the prosecution has also taken another stand that in fact a bad blood existed between the parties due to matrimonial differences. It was stated by Ahmad Khan P. W. 12 that Amir Ali respondent and Najabat Ali were real brothers. The hand of Mst.
Faiz Akhtar, daughter of Najabat Ali was promised to Nazar Hussain deceased. Amir Ali respondent wanted her hand for his own son Aziz.
' Najabat Ali refused the hand of his own daughter for the son of Amir Ali respondent. According to the prosecution due to this background the relations between the parties were strained.
8. On the other hand Faiz Ali respondent came out with his own version by stating that on the day of occurrence he was working in his khilwara after sunrise, when he heard Nazar Hussain deceased misbehaving and abusing his sister Mst. Hajira Bibi. As the lady cried for help he ran to the spot and found that deceased had rendered her naked after felling her on the ground and beating her. This infuriated Faiz Ali respondent and he gave a blow with his Dosangi to protect his sister Mst. Hajira Bibi from the onslaught of deceased. As this Dosangi was two prong weapons therefore it caused two injuries on the head of the deceased which ultimately caused his death. With regard to the other respondents he stated that they were not present on the spot at that time and this occurrence was not witnessed by anybody else. No defence was led by Faiz Ali deceased in support of his version.
9. Learned counsel appearing on behalf of the petitioner had assailed the judgment of the learned trial Court on the following grounds:-
(i) That the learned trial Court was not justified to disbelieve the prosecution witnesses as they were related both to the deceased as well to the complainant party.
(ii) That injuries on the person of the P. Ws. Fully established that they were present at the scene of the occurrence. Therefore it was not proper to reject their evidence.
(iii) That the discrepancies to which the trial Court has referred to, do not relate to material which should have persuaded it to hold that they were giving false evidence.
(iv) That the learned trial Court is not justified to hold that offence of the respondent Faiz Ali fell under section 335, P. P. C. As it was nothing short of murder.
' On the other hand the learned counsel appearing on behalf of the respondent has fully supported the judgment of the learned trial Court which in his view was well reasoned and had dealt with all aspects of the case in a very elaborate manner. According to the learned counsel a judgment of this standard could not be considered either perverse or foolish. It was also pointed out that no useful purpose will be served to order the re-trial of the respondents who were acquitted 11 years earlier by a well-considered judgment of the learned trial Court and even if at all a re-trial was ordered it would meet the same fate as it met long time ago because the medical evidence fully belied the prosecution version. With regard to enhancement of the sentence of Faiz Ali respondent it was submitted that he was given maximum sentence provided under that section and therefore the prayer for the enhancement was preposterous.
10. I have given my anxious thought to the contentions raised by both the learned counsel and have perused the record of this case carefully with their assistance. Learned trial Court has dealt with the evidence of motive in paragraph 8 of its judgment and has found that the motive as stated regarding the matrimonial differences was nothing but a figment of imagination on the part of the complainant party. This motive according to the learned trial Court did not find any support from the evidence of the pros. The learned trial Court found that motive in such case pertained to an occurrence which had taken place 8 or 9 years earlier and during this long period nothing untoward had happened which could show that the parties nursed some sort of grudge against each other over this affair. It was further found that Nijabat Ali was the person who was defending the case of the respondent which was admitted by P. W. 11 in his statement and therefore, if there was any rancour with Amir Ali respondent over that past affair then Nijabat would not have supported him. While disbelieving this motive the learned trial Court did not attach much importance to the immediate cause of the occurrence as stated by the prosecution. The learned trial Court found that Ahmad Khan P. W. 12 admitted in his cross-examination before it that an altercation between the deceased and Amir Ali respondent was only a verbal exchange of hot words while they stayed in their respective khilwaras and never came close to each other. He found further strength in arriving at this conclusion when Ghulam Hussain P. W. 14 stated that after the said altercation between Nazar Hussain and Amir Ali had taken place both the parties went back to work in their khilwaras. This statement was further supportedby Shah Nawaz P. W. 15 who also contributed to the above-mentioned condition. Discarding both the motive as not proved as well as unworthy of credence, the learned trial Court proceeded to hold that the version given by Faiz Ali respondent looked more plausible and probable. In support of this version he relied on the statement of Shah Nawaz P. W. 15 who admitted in his statement before the trial Court that Mst.
Hajira Bibi and the deceased were seen abusing each other at the time of occurrence and that was the reason that the respondents were attracted to the spot. It was also found by the learned trial Court from the evidence of Ahmad Khan (P. W. 12) that he had also admitted the above- mentioned incident. While discussing the evidence of Shah Nawaz P. W. 15, the learned trial Court found that the witness had accepted that the abuses given by the deceased to Mst. Hajira Bibi were really filthy. A reference was also made to the statement of Ahmad Khan P. W.
12. When he was asked to explain that why he deliberately suppressed this incident to which he had replied that if he had disclosed an incident of abuses by the deceased to Mst. Hajira Bibi, this would have damaged the case of prosecution beyond repairs. With these sentences from the mouth of the prosecution witnesses, the learned trial Court was convinced that a positive attempt had been made to create evidence of motive in order to suppress the real evidence and give twist to the actual happening and to implicate the respondents with the offence of murder. Going through these reasoning's of the learned trial Court based on this evidence of the prosecution witnesses it cannot be said that the conclusion by the learned trial Court was anything based on artificial reasoning. With the data on the record this judicial approach would hardly call for any interference.
11. Similarly I have looked with care the arguments advanced by the learned trial Court in paragraph 9 of its judgment regarding the veracity of the ocular testimony produced on behalf of the prosecution. Undoubtedly all these witnesses are do rely related to the deceased and thus their testimony cannot be taken as gospel truth. The relationship inter se of all these witnesses has been brought out in an impressive manner in this paragraph of the judgment by the learned trial Court.
In paragraph 10 of the judgment, the learned trial Court devoted its attention to the truthfulness of the eyewitnesses. It was found by the learned trial Court that from the very outset the prosecution did not come with clean hands and tried to involve Akbar Ali and Sardar Khan respondents in this case although their names were not mentioned in the F. I. R. He also found a motive for the prosecution for implicating all the respondents. A sister of Sabir Hussain and Muhammad Khan respondent, named, Mst. Karam Bibi, was married to Fazal Hussain, brother of Mardan Ali, who had been deserted by her husband. While discussing various contradictions which he found in the statements of P. Ws. As compared with their earlier statements before the Committing Magistrate, he also took into consideration the injuries on the persons of the complainant party and found that it was stated by the medical expert who examined them that such like injuries were the result of fall or could be suffered in the agricultural pursuit. Relying on the observation of the medical evidence the learned trial Court did not rule out the possibility of all these injuries as having been suffered or sustained in the normal course of agricultural profession. In order to satisfy itself it examined the weapon of offence so as to find whether the weapon of offence (trangles) could cause injuries as found on the person of the deceased or not. The learned trial Court after examining these two weapons found that each of these had three prongs. According to the learned trial Court if this weapon was used by Faiz Ali as stated by P. Ws. Then it must have caused the injuries at definite places. In case it was accepted that both Faiz Ali and Muhammad Khan respondents wielded the same against the head of the deceased, then there should have been six injuries in all instead of two found by the doctor. According to the learned trial Court the version given by Faiz Ali respondent was more probable as the Dosangi which he claimed to have " used against the head of the deceased was two prongs weapon with a space between its teeth, therefore the possibility of both the injuries having been caused on the right and left side of the head of the deceased by "Dosangi" was more probable and near the truth. Keeping in mind that trial Court' is always in a position to make better assessm ent of facts before it, as it has got the advantage to note the demeanour of witnesses, who appear before it, as well as to examine the weapon of offence, connected with crime, I find no reason cogent enough to differ with it while examining this aspect of the case. I am in complete accord about the shape and construction of Trangle {{URDU TEXT}} and Dosangi {{URDU TEXT}} the agricultural instrument with which I am myself familiar, even without re-examining the same.
In the light of the above analysis of the prosecution version and the assessment of the defence case I find that the learned trial Court was fully justified to hold that it was Faiz Ali respondent only who got provoked when he found that his sister was being insulted and abused by the deceased, and thus gave a single Dosangi blow on his head. This act of Faiz Ali respondent fell within ambit of section 335, P. P. C. And therefore, the learned trial Court visited upon this respondent the maximum penalty provided under this section. I hardly find any reason to interfere with the judgment of the learned trial Court which is a well-considered and cannot in any manner b called perverse or based on artificial reasoning.
' The result is that I dismiss the revision petition as being without any force.