P L D 1955 Lahore 271 (PLP)

SHABIR AHMAD, J.‑Of the eight persons tried by him under sections 302/149, 307/149 and 148 of the Pakistan Penal Code, Mr. Masud Ahmad, who was then Sessions Judge, Mianwali, by his order, dated the 31st of January 1953, sentenced Rafiullah, Muqarrab and~ Adam Khan to seven years' rigorous imprisonment under section 304 (I) read with section 34 and to a concurrent sentence of five years' rigorous imprisonment under section 307/34 of the Pakistan Penal Code, but acquitted the other five, namely, Mirza Khan, Noor Khan, Hayat, Ahmad Khan and Ranbaz. Rafiullah, Muqarrab and Adam Khan have not questioned their con victions but the Provincial Government have presented an appeal under section 417 of the Code of Criminal Procedure with a view to having the acquittal of Mirza Khan set aside. Shah Jahan and Mehr Shah, P. Ws. 9 and 8 respectively, have put in a petition for revision with a view to having Noor Khan, Hayat, Ahmad Khan and Ranbaz, the other four acquitted accused, retried. In this petition no notice was issued to the accused persons but it was ordered that the petition will be considered along with the appeal against Mirza Khan. This order will dispose of the appeal and the petition for revision. According to the prosecution the incident which took place on the 5th of September 1952, between 7 and 8 a. m. in Wandha Dhedianwala, Dakhli Musakhel, resulted in Ismail losing his life and Shah Jahan, Faiz Ullah, Mehr Khan and Haq Nawaz receiving injuries. The body of Ismail when subjected to post‑mortem examination on the 6th of Septem ber 1952, at about 8 a. m., revealed the following injuries :‑

1. Nine gunshot wounds on the right side of the chest, external to the nipple and extending to axilla over an area, 5" x 2 ".

2. Ten gunshot wounds on the front upper of middle of right forearm over an area of 7" x 2 ".

3. A gunshot wound on the right front of the forearm in the middle directing towards the right side of the chest, 1 " x "

4. The gunshot wounds on the middle back of the right side, " x ". Sixth, seventh and eighth ribs on the right side were found fractured and the pleura was injured on the right side, as was the right lung. Dr. Manzur Elahi (P. W. 1), who had con ducted the post‑mortem examination on the dead body of Ismail examined Shah Jahan on the 5th of September, 1952 and found seventeen injuries on his person of which two namely, a gunshot wound on the upper front of the left leg, 1 x 3/8", and a gunshot wound on the posterior portion of upper part of the left leg, were respectively the wounds of inlet and outlet. These injuries had resulted in the fracture of the bones of the left leg which had eventually to be amputated. The other injuries received by Shah Jahan were caused by blunt weapons, but none of them was grievous in nature. Faiz Ullah received two injuries, namely, a gun shot wound, 1 " x ", on the lower front of right leg, and a gunshot wound, 1 " x ", on the anteremedian aspect of the lower portion of the right leg, on the same level as the other injuries. These injuries were respectively the inlet and the outlet wounds. Dr. Manzur Ilahi (P. W. 1) who examined the injured man on the 5th of September, 1952, described the injuries to be simple in nature. Mehr Khan when examined by the doctor on the 5th of September 1952 was found to have seven blunt‑weapon injuries on his person, while Haq Niwaz, who also was examined by the doctor on that date, had a gunshot wound on the upper posterior surface of the left forearm, 1" x ", and a gunshot wound, 1 " x ", on the median surface of he left forearm, which were respectively the inlet and outlet wounds, and a contusion on the vault of the head. Of the accused, Rafiullah, Muqrrrab and Adam Khan were examined by the same doctor on the 6th of September 1952, and were found to have four minor injuries, two minor injuries and two minor injuries respectively, on their persons. The first information report of the incident was made by Mehr Shah at Police Station Musakhel, at about 9 a. m. on the day of the occurrence. The report stated, inter alia, that the eight accused had come in a body and had attacked Ismail and others and that it was as a result of a gun fired by Mirza Khan, the respondent in the present appeal, that Ismail had received injuries. It was further mentioned in the report that besides the informant the incident had been witnessed by Shah Jahan (P. W. 9), Faiz Ullah (P. W. 10), Mehr Khan (P. W. 11) and Haq Nawaz (P. W. 12). At the trial the prosecution produced Mehr Shah (P. W. 8), Shah Jahan (P. W. 9), Faiz Ullah (P. W. 10), Mehr Khan (P. W. 11) and Haq Newaz (P. W. 12) as eye witnesses of the occurrence. They also relied on a dying declaration of the deceased Ismail which was recorded by Rehmat Ali, Assistant Sub‑Inspector of Police (P. W. 13), who had partly investigated the case, and attested by Muhammad Khan (P. W. 6) and Dost Muhammad (P. W. 7). The learned Sessions judge coming, to the conclusion that it was not safe to act on the dying declaration excluded it from consideration. Of the eye‑witnesses produced by the prosecution Haq Nawaz (P. W. 12) did not support the prosecution case, though he had done so in his statement in the Court of the Committing Magistrate which state ment was transferred to the file of the Court of Session under section 288 of the Code of Criminal Procedure. The other witnesses supported the prosecution case in its entirety. The learned Sessions judge, however, came to the conclusion that it was not a case of attack by the accused party on the complainant party, but one of a sudden fight resulting from a sudden quarrel which attracted the application of Exception 4 of Section 300 P. P. C. and, therefore, though the assailants had the intention of causing the death of Ismail they were not guilty of murder but only of an offence falling under the first part of section 304 of the Pakistan Penal Code. He, however, gave a finding inconsistent with his finding with regard to the death or Ismail because if Exception 4 applied to the causing of death of Ismail, the conviction for causing injuries to the injured P. Ws. should have been under section 308, i. e., for an attempt to commit culpable homicide not amounting to murder and not under section 307 of the Pakistan Penal Code. Learned counsel for the Crown contended that the evidence adduced by the prosecution had brought home the guilt to Mirza Khan respondent and his acquittal which was unjustified had led to a miscarriage of justice. In this con nection he first of all made a reference to the first informa tion report in which it had been mentioned in clear term that Mirza Khan respondent had fired at Ismail. He then referred to the statements made oy Mehr Shah (P. W. 8) Shah Jahan (P. W. 9), Faizullah (P. W. 10) and Mehr Khan (P. W. 11) in the trial Court and that of Haq Nawaz (P. W. 12) in the Court of the Committing Magistrate, in which it had been consistently mentioned that Mirza Khan respondent was the person who fired at Ismail deceased With regard to the evidence relied upon by the learned counsel for the Crown, the learned counsel for the respon dent urged that it had rightly been not accepted by the learned trial judge whose judgment should not be reversed. Before dealing with the evidence, I would dispose of one or two other contentions of the learned counsel for 'Mirza Khan respondent. He urged that as on the evidence led by the prosecution the case of Mirza Khan respondent was in no manner distinguishable from the case of the other four acquitted accused against whom the Provincial Government had not preferred an appeal, the appeal should be dismissed on‑ the short ground that the appellant did not consider the evidence against the other four accused to be reliable. This argument, however, I cannot bring myself to, accept. It is for the Provincial Government to decide: against which of the acquitted accused persons it will prefer art appeal under section 417 of the Code of Criminal Procedure, and if the Government does not prefer an appeal against a person against whom an appeal should have been preferred, this Court cannot dismiss the Government appeal on the ground of that omission of the Provincial Government. Once notice has issued to an accused person to show cause why his acquittal should not be set aside, the provisions contained in section 423 of the Code of Criminal Procedure become applicable and the appellate Court must come to its finding, one‑way or the other, after going through the evidence and hearing the parties, if they appear before it. It "was next urged by the learned counsel for Mirza Khan that being an appeal against an order of acquittal, it should not be accepted unless the judgment of the trial judge were found to be manifestly wrong. The grounds on which are appeal against an order of acquittal will be set aside are well ' settled and it has been laid down in judicial decisions of unquestionable authority that an order of acquittal should not be set aside lightly and the mere fact that the appellate Court considered that a view contrary to the one arrived at by the acuqitting judge was possible, was by itself no ground for changing the order of acquittal into one of conviction. In law there is as laid down by the Privy Council in Sheo Swarup and others v. King Emperor (1 L R 56 All 645,) no distinction between an appeal against a conviction and one against acquittal, but the appellate Court cannot overlook the fact that the initial presumption of innocence in favour of the accused person is to some extent strengthened by his acquittal by a Court of competent jurisdiction. It will be keeping all these principles in view that the appeal against Mirza Khan will be disposed of. As mentioned already, the name of Mirza Khan respon dent was mentioned in the first information report as the person who caused injuries with a firearm to Ismail. Then we have the depositions of four eye‑witnesses, namely, Mehr Shah (P. W. 8), Shah Jahan (P. W. 9), Faizullah (P. W. 10) and Mehr Khan (P. W. 11), that it was Mirza Khan respondent who fired at Ism ail deceased with his gun. The learned trial judge was doubtful of the presence of Mehr Khan (P. W. 11) at the spot, at the time of the present occurrence, but after considering the evidence on the record and the reasons given by the learned Sessions Judge for his finding with regard to Mehr Khan, I cannot see any ground for doubting the presence of Mehr Khan at the scene of the occurrence at the time when the fatal incident occurred. Mehr Khan (P. W. 11), as mentioned already, had a number of injuries on his person, and I can see no ground for not accepting the statement of Dr. Manzur Ilahi (P. W. 1) that when he examined these injuries they were about twelve hours old. If these injuries had been received on the previous evening, as held by the learned trial judge, the doctor would certainly have noticed when he examined Mehr Khan on the 5th of September, 1952, that the injuries were of a longer duration than twelve hours. The mere fact that the doctor did not mention in his medico‑legal report that the injuries on the person of Mehr Khan were fresh when examined was not sufficient to doubt the correct ness of his statement in Court to the effect that the injuries were fresh and did not appeal to have been caused on the evening previous to the day on which he examined the witness. But even if the deposition of Mehr Khan (P. W. 11) were to be kept out of consideration, the case of the pro secution will not be materially affected. As Mehr Shah (P. W. 8) bore no injuries on his person, the learned counsel for the respondent urged that the presence of this witness at the scene of the occurrence was doubtful, but I cannot accept this argument. The mere fact that Mehr Shah (P. W. 8) received no injuries cannot prove that he was not a witness of the occurrence which resulted in the death of Ismail and receipt of injuries by some other persons. I am of the view, however, that if Mehr Shah (P. W. 8) was not an eye‑witness, it is to say the least of it, unlikely that he would be the person to go and make a first information report as he did in the present case. But even if his deposi tion were also to be kept out of consideration, the prosecu tion case against Mirza Khan respondent will not materially suffer, because the presence of Shah Jahan (P. W 9), Faizullah (P. W. 10) and Haq Nawaz (P, W. 12), all three of whom bore gunshot injuries on their persons, cannot be doubted. The evidence against Mirza Khan respondent being the assailant responsible for injuring Ismail is unanimous and overwhelming. The learned counsel for the respondent urged that as the parties were not or good terms, the evidence against Mirza Khan respondent should not be accepted, but this contention has no great force. The only enmity between the parties s was that Shah Jahan (P. W. 9) had, about a year earlier, declined to support a criminal case brought by Muqarrab accused against Isab Khan and some others, and that on the evening previous to the one on which the fatal incident occurred there had been either an alterca tion or a minor fight between some members of the two parties. These incidents, in my view, were not a sufficient ground for falsely implicating Mirza Khan respondent, who was not concerned in the two affairs. It was then urged by the learned counsel for the respondent that the statements of Shah Jahan (P. W. 9) and Faizullah (P. W. 10) should not be attached weight to because they had made statements under section 164 of the Code of Criminal Procedure before Magistrates during the course of investigation and once they had made those statements they were bound down to them and could not, therefore, be considered to be entirely independent witnesses. I cannot accept this contention either. Recording of statements of witnesses under section 164 of the Code of Criminal Procedure by Magistrates during the course of investigation is allowed by a provision of law and can be open to no legal objection. However, if it is not apparent that the statements under section 164 of c the Code of Criminal Procedure were taken with a view to binding down the witnesses to those statements, as no' adverse inference should be drawn against the prosecution. In the present case the two witnesses whose statements were recorded under section 164 of the Code of Criminal Procedure had received .firearm injuries and the leg of one of them had to be amputated, and it is obvious that the police resorted to section 164 of the Code of Criminal Pro cedure so that in case of their death the statements of these two witnesses could be used as dying declarations. It was next urged by his counsel that as the respondent lived at Musakhel which is at a distance of two or three miles from the scene of the occurrence, his presence at the time and the scene of occurrence was improbable. This argument overlooks the fact that the respondent has relatives in the locality where the incident took place and the pro secution evidence established beyond all reasonable doubt that he was with his relatives that morning. No doubt the prosecution have not led evidence as to when the respondent came to the village where the occurrence took place but that cannot in any manner affect the veracity of the witnesses. The learned trial judge kept the dying declara tion of Ismail deceased out of consideration and though I do not agree with his finding that the dying declaration was not entitled to weight, I will keep it out of consideration because the other evidence on the record is, in my opinion, sufficient to bring home the guilt to the respondent. The finding of the learned trial judge is not without significance. He remarked ‑ "I feel, though with some hesitation, that the case against Noor Khan, Hayat, Ahmad Khan, Mirza Khan and Ranbaz appears to be doubtful and it would not be safe to accept the evidence of the prosecution witnesses, so far as it implicates them, in the. commission of the offence complained of." If the learned Judge had been sure that the prosecution had not established their case against the respondent beyond all reasonable doubt, I am certain that his finding would not have been as halting as it is. Doubts there always will be in the human mind, but it is only reasonable doubts of which an accused person can get the benefit. The finding in favour of Mirza Khan in the present case was in my opinion entirely wrong and unjustified. I would, therefore, hold that it was established beyond all reasonable doubt that not only was Mirza Khan respondent one of the assailants but also that he was the person who fired at Ismail deceased. This leads to the question as to what offence Mirza Khan respondent can be convicted of. The learned Sessions Judge convicted Rafiullah, Muqarrab and Adam Khan under section 304 Part I of the Pakistan Penal Cole, though he held that they had the intention to cause the death of Ismail, because he was of the view that the injuries were caused to the deceased in a sudden fight. The main reason for the learned Sessions Judge's conclusion that it was a sudden fight in which the deceased and the injured prosecution witnesses received injuries was that Rafiullah, Muqarrab and Adam Khan and their father Nur Khan lived close to the place of the occurrence. This circumstance, in my view, was not by itself sufficient to rebut the consistent evidence of the prosecution that the accused persons attacked the deceased and his companions shortly after there had been an altercation between Shah Jahan and Ismail on one side and Rafiullah accused on the other. The prosecution case was that after this altercation, Rafiullah went home and returned with his seven co‑accused. This story was supported at the trial by four of the prosecution eye‑witnesses and even Haq Nawaz P. W. 12 had made a similar statement in the Court of the Committing Magistrate. As against this overwhelming evidence, we have the bare statements of Rafiullah, Muqarrab and Adam Khan that they were attacked by the complainant party after which a firearm was used by D Adam Khan accused. It is not without significance that in their statements at the trial, Rafiullah, Muqarrab and Adam Khan to some extent changed the version they had given in the Court of the Committing Magistrate. There is no defence evidence in support of the version given by the three accused and it does not receive even the slightest support from any part of the prosecution evidence or any circumstance emerging from it. Had the complainant party been the assailants, they would not have received the numerous injuries which they received, when they succeeded in causing only eight minor injuries. I cannot accept the finding of the learned trial judge that Ismail and the injured prosecution witnesses received their injuries in a sudden fight, nor is there anything in support of the argument of the learned counsel for Mirza Khan respondent that the party of the accused acted in the exercise of the right of private defence. But even if the finding of the learned Sessions judge be accepted, the case will still fall under section 302 P. P. C. because it is obvious that by resorting to sue firearms the accused acted in act unusual and a cruel manner. It is true that the three co‑accused of the respon dent who were found guilty were convicted only under section 304 Part I P. P. C. with regard to the death of Ismail, and, as the Provincial Government did not appeal within the period of limitation allowed by law, their convic tions cannot now be altered from section 304 Part I to section 302 P. P. C., but that cannot prevent the conviction of the respondent for the offence which he is proved to have committed. If, in spite of my view that it was a clear case of murder, I were not to convict Mirza Khan respondent under section 302 P. P. C., I would be perpetuating an injustice which had been perpetrated. Ismail died within about six hours of the receipt of injuries by him, though the learned counsel for the respondent, with a view to streng thening his argument that the dying declaration was not reliable, urged that he must have died soon after the receipt of injuries, but there is no manner of doubt that the death of Ismail was the direct result of the gunshot injuries received by him. It was, therefore, a clear case of murder anti I would, consequently, convict Mirza Khan respondent under section 302 P. P. C. for the injuries caused by him to Ismail deceased. The evidence establishes beyond all reasonable doubt that the respondent was vicariously responsible for the injuries received by Shah Jahan; Faizullah, Mehr Khan and Haq Nawaz, and I would convict him under section 307 of the Pakistan Penal Code also. I will now address myself to the consideration of the revision petition against the other four acquitted accused. After going through the evidence, I am of the view that these four accused took part in the incident but that does not settle the matter. All that can be done, in view of the absence of an appeal by the Provincial Government, is to order a retrial of these four acquitted accused and that, in my opinion, should not be done because it would, because of the fact that the acquittal of Mirza Khan is being set aside, amount practically to an order to the subordinate Court to which the case is sent to convict the four acquitted accused. It is discretionary with the High Court to exercise or not to exercise its power of revision in a particular case and, keeping everything in view, I have arrived at the'' conclusion that a retrial should not be ordered. It is true that according to my own finding, the four persons who were guilty of murder will escape the legal punishment of their misdeeds but I would rather have that than order a retrial which will amount to practically signing the death warrants of the accused. I would, therefore, dismiss the petition for revision. This only leaves the question of sentence to be dealt with. I sentence Mirza Khan respondent to five years' rigorous imprisonment under section 307 read with section 149 of the Pakistan Penal Code. It was a dastardly attack with firearms on unarmed people for which, in my view, the extreme but the normal penalty for taking the life of a human being is called for. I would, therefore, order that for the offence of murder committed by him, Mirza Khan respondent shall be hanged by the neck till he be dead. M. A. SOOFI, J.‑--I agree. A. H. Appeal accepted