P L D 1960 (W (PLP)

MUHAMMAD SHAFI, J.‑

On the 2nd of March 1957 at 9‑30 p.m. a report was made in Gojra Police Station at the instance of Chaudhary Fazal Karim (P. W. 10) that Hasan Shah, aged about 60 years, son of Saidan Shah, Bahadur Shah, aged about 16 years, son of Imam Ali Shah, Umar Din, aged about 32 years, son of Akbar, Ismail, aged about 24 years, son of Din Muhammad, and Ghulam Rasul, aged about 28 years son of Akbar, had formed an unlawful assembly, and arming themselves with deadly weapons, had committed the murder of their co‑villager Faqir Din and had made a murderous assault on his son, Muhammad Yaqub in pro secution of the common object of the assembly, at about 10 or 11 a.m. on the 2nd of March 1957, at some distance away from their common Chak No. 280/J.B., situated at a distance of about eleven miles from the aforementioned Police Station. Sheikh Muhammad Ramzan (P. W. 15) the Station House Officer, con ducted the investigation. Hasan Shah accused produced before him a sword, Bahadur Shah a spike, Umar Din a spear, Ismail a dang and Ghulam Rasul a kahi.

2. On autopsy being made by Dc. Rahmat Ullah (P. W. 1), Faqir Din deceased was found to have three punctured wounds, two contusions and a scratch mark on his body. His son, Muhammad Yaqub, had one contused and three incised wounds and five contusions. The aforementioned five culprits were committed to the Court of Session under sections 148, 302/149 and 307/149 of the Pakistan Penal Code. Chaudhary Fazal Karim (P. W. 10), Muhammad Anwar (P. W. 11), the aforementioned Muhammad Yaqub (P. W. 12) and Muhammad Shafi (P. W. 14) were produced as prosecution witnesses. The accused denied the charge and stated that the witnesses had deposed against them on account of enmity. The learned Sessions Judge convicted Ismail alone for the murder of the deceased and sentenced him to transportation for life under section 302, P. P. C. He acquitted the remaining accused of 302 charge and by a peculiar logic, which both the learned counsel for the State and those appearing for the accused could not support, convicted Hasan Shah, Bahadur Shah and Umar Din under section 304 (ii) of the Pakistan Penal Code and sentenced them each to seven years' rigorous imprisonment. He did not actually say in his judgment 304 (ii) but otherwise it is quite clear that he meant this section when he said that he was convicting these accused under section

304. He further convicted B3hadur Shah, Ismail and Umar Din under section 326/34 of the Pakistan Penal Code and sentenced them each to four years' rigorous imprisonment. The sentences where necessary were ordered to run concurrently. Ghulam Rasul was convicted under section 324 of the Pakistan Penal Code and sentenced to two years' rigorous imprisonment. All these persons have come up on appeal to this Court by three separate appeals.

3. The facts of the case; as given by the ocular prosecution witnesses, are that Hasan Shah accused‑appellant was the Imam of a mosque in the village. Some three years back Hasan Shah and Faqir Din deceased were sitting at the shop of Boota (P. W. 8) and started arguing with each other on some religious matter. They got quite excited and in the course of argument Faqir Din deceased called Hasan Shah a dog. Hasan Shah retorted that if he was a dog then Faqir Din's Murshad, who is also a Sayyed like him, must also be a dog. Over this both got excited, their tempers became frayed and they started fighting with each other. From their conduct it appeared that they were even prepared to go to the extent of killing each other but the people sitting there inter vened and stopped the fight from taking a serious turn. There after both these persons, it appears, were never on talking terms and. whenever they came face to face with each other they freely indulged in abusive and insulting language. About one and a half years prior to this occurrence, Hasan Shah had been summoned by Nur Muhammad, the brother of Faqir Din deceased, for some religious ceremony. When he arrived there, Faqir Din deceased abused him and told him never to visit that Mohalla again. Hasan Shah complained to the elders of the village about this uncalled for behaviour of Faqir Din. They reprimanded Faqir Din who in turn demanded the dismissal of Hasan Shah from the Imamat of the mosque. He, however, refused to desist from abusing Hasan Shah whenever the opportunity was offered to him.

4. On the 1st of March 1957, which happened to be a Friday, Hasan Shah was again abused by Faqir Din. He brought the matter to tire notice of the Panchayat of the village, but could not get any redress from them. On the morning of the day of occurrence Hassan Shah collected a Panchayat and told them that since the last three years lie had been asking them to make some arrangement with regard to Faqir Din who always abused and insulted him but they could not bring an end to this behaviour of Faqir Din and that he was, therefore, compelled to take the matter into his own hands. He was so excited that he appeared to be consumed with a crushing passion to take revenge from Faqir Din at any cost. He left the Panchayat and taking a sword from his house proceeded towards the field of Umar Din and Maula Bakhsh where Faqir Din had gone along with his two sons, Muhammad Yaqub (P. W. 12) and Muhammad Anwar. Hasan Shah was joined by the remaining accused out of whoa, Bahadur Shah was armed with a spike and Umar Din with a spear, Ghulam Rasul and Ismail who on this particular time appeared to have nothing in their hands but are alleged to have armed themselves later on at the spot. Chaudhary Fazal Karim (P. W. 10), Muhammad Shafi (P: W. 14), Talib. Hussain Chowkidar, Allah Ditta, son of Muhammad Bakhsh, Abdullah, son of Ghulam Bhik, and Fazal Din, son of Amir, also followed them, presumably in order to prevent them from killing Faqir Din. No sooner Hasan Shah reached the scene of occurrence than he wanted to attack Faqir Din with the sword but Ch. Fazal Karim (P. W. 10) arrived in time to prevent him from causing any harm to Faqir Din. He caught hold of him. Hasan Shah, how ever, called out to his companions to kill Faqir Din whereupon all the remaining accused‑appellants fell upon Faqir Din and killed him. Muhammad Yaqub (P. W. 12) wanted to rescue his father from the onslaught of these men but was also very seriously injured.

5. At the trial out of the witnesses mentioned in the first information report as ocular witnesses, Ch. Fazal Karim and Muhammad Shafi alone were produced as prosecution witnesses. Talib Hussain, Abdullah and Allah Ditta were not produced by the Public Prosecutor on the plea that they had been won over by the accused despite the fact that Abdullah and Allah Ditta had fully supported the prosecution story in the Court of the com mitting Magistrate. Talib Hussain Chowkidar had also made a statement which did not show that he was trying to favour one party or the other. Fazal Din, the fifth witness mentioned in the first information report, was included in the original challan but was given up by the Prosecuting Sub‑Inspector, in the Court of the committing Magistrate. As a general rule, the prosecutor is bound to call all eyewitnesses who are mentioned .as such in the first information report unless he has some very strong reasons to believe that the witness if called would not speak the truth, or is unnecessary, or is an accomplice himself. The mere statement of the Public Prosecutor, not supported by any material upon the record that the witnesses were won over by the accused, would not absolve the prosecution to produce material witnesses mentioned in the first information report. If, however, the Public Prosecutor refuses to examine such witnesses, then a duty is cast upon the Court to call those witnesses as Court witnesses and afford opportunity to both the accused and the prosecution to cross examine them. Failure to examine the witnesses mentioned in the first information report as having seen the occurrence, or who were able to give important information, in the case, or had some connection with the transaction in question might very well lead to miscarriage of justice which should be avoided at. all cost. I may, with respectful agreement, quote the following observations made by their Lordships of the Privy Council in Stephan Seneviratne v. The King (AIR 1936 PC 289). "Their Lordships do not desire to lay down any rules to fetter discretion on a matter such as this which is so dependent on the particular circumstances of each case. Still less do they desire to discourage the utmost condour and fairness on the part of these conducting prosecutions but at the same time they cannot, speaking generally, approve of an idea that a prosecution must call witnesses irrespective of considerations of number and of reliability, or that a prosecution ought to discharge the functions both of prosecution and defence. If it does so, con fusion is very apt to result, and never is it more likely to result than if the prosecution calls witnesses and then proceeds almost automatically to discredit them by cross‑examination. Witnesses essential to the unfolding of the narrative on which the pro secution is based, must, of course, be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution." Golden rule laid down in the authority should be followed by the Courts in Pakistan. Apart from the fact that some of the most material witnesses have not been examined in the case, the learned trial Judge seems to have ignored the material evidence produced by the prosecution, and the law applicable thereto. Even if the conclusions arrived at by the learned trial Court be correct, still it is difficult to understand how could the Court convict the accused under section 304, Part II. Furthermore the learned Judge has not taken into account the definition of the unlawful assembly, particularly the explanation attached thereto given in section 141 of the Pakistan Penal Code. The observation made by the learned trial Judge in para. 13 of the judgment that although all the accused were seen proceeding towards the belan of Faqir Din deceased, but there was no proof on the record that they had consulted together or were acting in concert was not only con tradictory in terms but absolutely irrelevant. In any case, it will not be proper for us to criticize the judgment minutely because in that case there is a danger of our encroaching upon the jurisdiction of the learned Sessions Judge in arriving at an independent con clusion without any hint from this Court with regard to the guilt or innocence of the accused.

6. We have thus regretably arrived at the conclusion that the trial held by the learned Sessions Judge was defective in the extreme. We consequently accept the appeal of the accused, set aside the trial, and send the case back to the Sessions Judge, other than the one from whose judgment we are hearing this appeal, for retrial in accordance with law and in the light of the observation made above.

7. The learned counsel appearing for the accused had made a request that their clients should be released on bail. As we have remanded the case, the question of releasing them on bail can best be decided by the learned Court who tries them. We decline to pass any order on this prayer. K. B. A./A.H. Retrial ordered.