1984 P Cr (PLP)

In the same breath it was also suggested to the witness that after the incident in which Afzal Khan sustained injury, there was another fight i.e. free fight between the parties. The witness replied: "It is not a fact that after the incident in which Afzal Khan sustained injury, there was another fight between the parties." It was, therefore, the case of the respondent that the free fight was a distinct and separate incident from the incident in which Afzal Khan had received injury. The so‑called free fight had followed the first incident, according to the defence.

13. The next eye‑witness is P.W. Muhammad Younus (Exh.l6). He was A. S. I. Chakiwara P.S. at the relevant time. He was in his own police station from where he had seen the incident which had taken place just in the adjacent block of the same building. About the injury received by Afzal Khan the statement of this witness is the same as that of P.W. Anisur Rehman. He has further stated that he had received report in writing from Mr.Anisur Rehman which was incorporated in the relevant register as F.I.R.

14. Next eye‑witness is P.W. Zakir Hussain (Exh.21). On the day of the incident i.e. 9th June, 1972 he was also A.S.I. Chakiwara P.S. and was sitting in the common Varandah of Chakiwara P.S. and Kalakot P.S. when he saw the incident which he has described almost in the same manner as P.W. Anisur Rehman. He has admitted in cross‑examination that after Afzal Khan had received knife injury at the hand of respondent Ali Khan, the parties had grappled with each other for 3‑4 minutes.

15. The next eye‑witness is Sher Samad Khan, who is related to both the parties. His evidence is same as that of P.W. Lai Khan. In cross-examination he admitted, on being questioned by the defence counsel, that the respondent Ali Khan is his distant relation. He further stated that Muhammad Khan son of Noor Khan, the companion of respondent Ali khan, is distant cousin of the father of the witness.

16. The last eye‑witness is H.C. Ashiq Hussain of Kalakot P.S. He was present at the poilce station at that time of the incident and has described the incident as narrated above. He has fully supported Anisur Rehman and other eye‑witnesses.

17. The presence of P.Ws Anisur Rehman S.H.O, Lai Khan, Mr.Muhammad Younus A.S.I Chakiwara, ‑Sher Samad, Zakir Hussain A.S.I and Ashiq Hussain H.C. at the scene of offence, is not denied by the respondent. They are all eye‑witnesses and have deposed that it was Ali Khan respondent who had first attacked and fatally wounded deceased Afzal Khan with knife and that he was overpowered by Mr.Anisur Rehman, who had also snatched the knife from him. Mr. Anisur Rehman, Muhammad Younus, Ashiq Hussain and Zakir Hussain are natural witnesses of the incident because the incident had taken place within the building of Kalakot P.S. Chakiwara P.S. is also situated in the same building. All the above police witnesses were posted either at Kalakot or Chakiwara P.S. Hence their presence at the scene of offence cannot be doubted, nor the truth of their ocular testimony regarding involvement of respondent Ali Khan in the crime leading to the murder of Afzal Khan, can be doubted. They had no interest in implicating an innocent man falsely. From their testimony it is proved beyond any doubt that Ali Khan had stabbed Afzal Khan with a knife and that Mr. Anisur Rehman and caught Ali Khan red‑handed with the Knife and had snatched the knife from him. These four police officers have also corroborated P.Ws. Lai Khan and Sher Samad who had gone to Kalakot P.S. to lodge report about the earlier incident in which Khan Bahadur son of Lai Khan (P.W.) was murdered. Even the respondent has not denied the presence of the above witnesses at the spot, according to whom the party of deceased Afzal Khan had first attacked him. The learned trial Judge has also not dis believed the eye‑witnesses so far as the main incident is learned. 1, has also not disbelieved the version of the above six-eye-witnesses that respondent Ali Khan was responsible for causing fatal knife injury to the deceased. In spite of this finding he held that there was 'free fight between the parties and that it was not known as to which of them the aggressor, hence the case against Ali Khan was doubtful and conse quently he was entitled to acquittal.

18. In arriving at the above finding the learned trial Judge committed, a grave legal error, inasmuch as he did not properly appreciate he legal implications of 'free fight'. Perhaps he was unaware of or his attention was not drawn to the well‑known case of Syed Ali Bepari v. Nibaran Mollah and others P L D 1962 S C 502 in which it was held by the Supreme Court that in case of free fight the plea of self‑defence is not available nor the question as to which of the parties was the aggressor, is relevant. In a free fight each individual participant is responsible for the specific role attributed to him. Thus even on the hypothesis of 'free fight' Ali Khan was not entitled to acquittal because specific role of causing fatal knife injury to Afzal Khan has been attributed to him. But it will be presently shown that free fight. If at all there had been one, it had followed the first incident in which Afzal Khan was stabbed the respondent.

19. It is the case of respondent himself that while he was about to lodge report about an earlier incident. Afzal Khan and his party arrive at the police station and were excited on seeing him, that Afzal Khan, tried to attack him with knife but Gulrang Khan caught his hand, that Afzal Khan pulled his hand with force, with the result that his knife struck his own stomach. According to the defence as suggested to the P.Ws. in the cross‑examination, it was after this incident that the parties had entangled with each other and then the other police officers had disengaged them. Thus, so far as the injury to Afzal Khan is concerned, it was not received during any free fight even according to the defence.

20. The plea of the respondent that Afzal Khan had received stab wound in his stomach by his own hand, is preposterous on the fact of it. The knife injury on the stomach of the deceased was long, cavity deep and had cut about of costal cartilage causing profuse bleeding which had proved fatal. Such an injury could have been caused to the injured only by an assailant who must have stabbed the knife in the abdomen of the injured with considerable force. This inference is fortified by the independent testimony of four Police Officers in whose presence the incident had taken place and whose testimony corroborates the ocular evidence of P.Ws. Lai Khan and Sher Samad. However some of the witnesses whose evidence has been described above, have stated that there was a free fight between the parties, but according to them first the respondent had stabbed Afzal Khan with knife and thereafter the parties had grappled with each other and were engaged by the other police witnesses.

21. The learned trial Judge has laid much emphasis on the point that the P.Ws have tried to suppress the injuries on the person of the respondent and his companion Gulrang Khan. This emphasis is not only misplaced but is based on misreading of evidence. The P.W's have clearly stated that after Ali Khan caused one stab wound to Afzal Khan and that he was about to give another blow with knife when Gulrang Khan came in between and was hit by ;he knife in his stomach according to the P.Ws. injured Gulrang Khan had received injuries at the hand of the respondent. The learned trial Judge therefore, misread the evidence in holding that the P.Ws. had suppressed the injuries on the person of Gulrang Khan. The learned trial Judge was therefore wrong in making reference to suppression of injuries to Gulrang Khan at several places in his judgment to justify his conclusion that the P.Ws. were unreliable.

22. So far as injuries on the person of Ali Khan, respondent are concerned, they were so minor that the P.Ws. might not have noticed them. From the evidence of D.W. Ali Raza whose statement recorded during commitment proceedings was brought on record under section 33 of Evidence Act, it transpires that Ali Khan had: (1) One incised wound " x " on right buttock. (2) Painful swelling wound metacorpos phaleangil joint and seems to be dislocated. (3) Abrasion 1 " x " on back of forearm. These injuries were of such minor nature that in the heat of excitement the P.Ws. might not have noticed them. Moreover the Medical Officer (Dr.Abdul Sattar) who had examined this accused, has not been produced in evidence. The Medical Certificate issued by him, has been produced by Mr. Khalid Anwar S.H.0 as Exh.44.

23. It is doubtful if the respondent had received any injury in this incident. On 13th June, 1972, that is after a week of the incident, the respondent made an application to the committing Magistrate (A.C.M. No.XV Karachi) through his Advocate praying that he may be sent to the Dr. for medical examination because he had received six knife injuries on his person. This application is Exh.45 on the trial Court's record. This application was forwarded to S.H.O. Chakiwara for getting the respondent medically examined. The application was returned by the S.H.0 with the observations that there were no fresh injuries on the person of the respondent but there were some bruises only on his elbow. Even in his statement under section 342, Cr.P.C. the respondent did not state that he had received six knife injuries. The ocular testimony cannot therefore, be rejected or disbelieved as a whole on the ground that there had been any attempt on the part of the eye‑witnesses to suppress injuries on the person of the accused or his companion Gulrang Khan.

24. The learned trial Judge has also held that the Mashirnama of securing the knife was prepared before lodging the F. I. R. therefore, the Mashirnama was not admissible in evidence. His argument was that investigation is to commence after lodging of the F.I.R. hence any statement recorded or document prepared before that, should be kept out of consideration. In support of this view the learned trial Judge has relied on Ramzan v. The State P L D 1967 Lah. 588 in which it was held by learned Judges of D.B. of Lahore High Court that: "Statement recorded after commencement of trial is not F.I.R. but statement of person before police, which is inadmissible in evidence." The learned trial Judge has not properly applied this law to the present case. He has not held that the F.I.R. was inadmissible on the ground that it was recorded after commencement of the trial. On the contrary he has held that as the Mashirnama of securing the knife was prepared before the lodging of the F.I.R. and "this amply proves that the Mashirnama of recovery of the knife is not admissible". The inference drawn by the learned trial Judge from the Lahore case, is perverse and unwarranted. Had he concluded that the F.I.R. was inadmissible, it would have been understandable but what he concluded was that the Mashirnama of recovery of knife was inadmissible.

25. The learned trial Judge did not even consider that investigation can by started only be a competent police officer of the police station concerned. Anisur Rehman S.I.P. Kalakot was not the competent Police Officer of the concerned police station. The concerned police station was Chakiwara which was situated "adjacent to Kalakot P.I.S. in the same building. Hence incharge of Chakiwara P.S. was, at the relevant time was competent to record F.I.R. and commence investigation. Whatever Mr. Anisur Rehman of Kalakot P.S. did before lodging of F.I.R. was not part of investigation because he was nobody to investigate the case. P.S. Kalakot was itself situated within the jurisdiction of Chakiwara P.S. Hence neither the Mashirnama of recovery of knife can be said to have been prepared during investigation of the case, nor the F.I.R. shall be deemed to have been recorded after preliminary investigation. Since the offence had taken place in presence of Mr. Anisur Rehman, who had snatched the knife from the respondent, there was nothing wrong if he prepared Mashirnama of arresting the respondent and of recovery of knife from him. Thereafter he had taken the respondent to the adjecent room of Chakiwara Police Station and lodged F.I.R. in writing with Mr. Muhammad Younus A. S. I. who was Incharge of that Police Station at that time. The F.I.R. was lodged within 15 minutes of the incident. The statement in writing submitted by Mr. Anisur Rehman was treated by Mr. Muhammad Younus A.S.I. as F.I.R. He had later given the papers to Mr. Khalid Anwar S.H.O. who had carried on further investigation. Whatever Mr. Anisur Rehman did before lodging the F.I.R. was preparing a record of something which had happened before his eyes. He would have failed in his duty if he had not arrested the respondent or failed to snatch the knife from him. The trial Judge has therefore, wrongly held that the Mashirnama of securing the knife and of arresting the respondent were inadmissible .in evidence.

26. The learned trial Judge has further held that as the knife has not been produced in Court nor shown to any witness, hence the recovery of knife was not proved. It appears that the knife was misplaced during commitment proceedings or the trial. It must be remembered that the incident had taken place in June, 1972. The case was committed to the Court of Sessions in the year 1975. The trial before the Additional Sessions Judge commenced on 4th March, 1976 and concluded on 23rd December, 1981. On the very first page of the paper book it is recorded in the opening form of the trial Court's record under the date 4th March, 1976: "The case property is before the Court." The case remained pending before the trial Court for almost five and a half years and was decided on 23rd December, 1981 i.e. after 9jr years of the incident. The trial Court's record shows that the knife was produced before the Court at the commencement of the trial. It must have been misplaced by the person incharge of case property of the Sessions Court. Had the trial Judge looked into his own record properly, he would not have held that the knife was not produced before the Court. It is not denied that a knife had been used in this crime. It is also proved that the knife was used in presence of Mr. Anisur Rehman. It is not possible to believe that Mr. Anisur Rehman would not have recovered the knife from the culprit. Thus here again the learned trial Judge committed grave error of fact in holding that the recovery of knife from the respondent was not proved.

27. Mr. Muhammad Hayat Junejo, learned counsel for the defence, has drawn our attention to the case of Sheo Swarun and others v. King Emperor A I R 1934 P C 227(2) in which it has been held that: "Sections 417, 418 and 428 of the Code give to the High Court full powers to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching, its conclusion upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence ‑in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted his trial, (3) the right of the accused to the benefit on any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." We are also aware that the law laid down by the judicial committee In the above case has been followed by the High Courts in our country to this day in matters of acquittal. But we cannot lose sight of the powers of the High Court under section 417, Cr.P.C. In the case of Ghulam Muhammad v. Muhammad Sharif P L D 1969 S C 398 the Supreme Court observed as under in respect of the powers of High Court under section 417, Cr.P.C: ‑ "The view expressed by the learned Judges that High Court will interfere with an order of acquittal only if the appreciation of evidence by the trial Judge is perverse or foolish is not correct. The State has under section 417 of the Code of Criminal Procedure the right to appeal from an order of acquittal both on facts and law. It is, therefore, not permissible to read into section 417 the words of limitation employed by the learned Judges. A practice, has, however, grown that a Court of appeal will not interfere with an order of acquittal if the evidence is open to the view formed by the trial Court. In other words the order of acquittal will not be set aside on the grounds of appreciation of evidence alone. But if the reasons given by the trial Judge are of speculative and artificial nature or the findings recorded by him are based on no evidence or misinterpretation of evidence or the conclusions drawn by him about the guilt or innocence of the accused persons are perverse or foolish resulting in miscarriage of justice the Court of appeal will in such a case re‑examine the evidence and drawn its own conclusions from it."

28. In the present case the respondent was caught red‑handed with crime weapon in daylight within the precincts of a police station. A many as six witnesses including four police officials of that P.S. had witnessed the incident and had supported the prosecution. We are also convinced that the reasons given by the trial Judge for disbelieving these witnesses are of speculative and artificial nature and finding arrived at by him are based on misinterpretation of law and misreading of evidence which has ended in miscarriage of justice. Consequently we allow the appeal and set aside the judgment of IIIrd Additional Sessions Judge and find the appellant guilty of offence under section 302, P.P.C. So far as the sentence is concerned, there are mitigating circumstances which do not call for capital sentence. The act of the respondent was not premeditated. He had caused only one knife injury to the deceased and had not acted in a cruel manner. It also appears that the incident should have proceeded by a verbal altercation between the parties, which had led the respondent to make the fatal attack upon Afzal Khan. During commitment proceedings he had remained in custody for about three and half years and thereafter suffered the I agony of protracted trial which took more than five years to complete. For these reasons we sentence the respondent to imprisonment for life and also to pay fine of rupees ten thousand. In default of payment of fine he shall suffer further R.I. for six months. The amount of fine if recovered shall be paid to the heirs of deceased Afzal Khan as compensa tion under section 544‑A, Cr.P.C. The appellant was released on bail by this Court. His bail stands cancelled and he shall be arrested and committed to the prison to serve out the sentence. S. G. D. Appeal allowed