Appeal accepted (PLP)

CORNELIUS, C. J.‑This judgment will dispose of Criminal Appeal No. 46 of 1966, by three brothers Muhammad Shafi, Muhammad Sharif and Karam Bakhsh, sons of Bassa, who stand convicted under section 302/34, P. P. C., and sentenced to undergo transportation for life. They had been sentenced under the same section by the trial Judge to undergo five years' rigorous imprison ment, which was clearly contrary to law and when the matter came before the High Court in appeal, the learned Judges enhanced the sentence under section 302/34 to transportation for life acting in revision on the basis of a proper petition. These three appellants were also convicted for offences under sections 307 and 323 read with section 34, P. P. C., and were sentenced to terms of imprisonment, which the learned Judges have directed should run concurrently with the longer sentence awarded under section 302/34, P: P. C. As the. latter sentence was awarded in the High Court for the first tithe, these three appellants had a right of appeal to this Court, which they have exercised. Along with them, there had been convicted by the trial Court their nephew. Muhammad Sadiq alias Bhola, son of their brother Imam Bakhsh, who had been sentenced to death under section 302/34, P. P. C. On behalf of Muhammad Sadiq, a separate petition for special leave to appeal was instituted, which is Criminal Petition No. 15 B of 1966, and. may be conveniently disposed of along with the Criminal Appeal. Mr. Barkat Ali Saleemi has addressed the Court in both the matters. There were seven persons accused at the trial, who were charged with offences of murder, attempt to murder, criminal trespass and simple hurt caused while members of an unlawful assembly, as well as for the offence of rioting. Five of the accused persons were brothers, sons of Bassa, namely, Muhammad Shafi, f Muhammad Sharif, Karam Bakhsh Elahi , Bakhsh and Imam Bakhsh. The sixth, Muhammad Sadiq alias Bhola, is the son of Imam Bakhsh. The seventh, Muhammad Shafi son of Ranjha, is married to a daughter of the aforesaid Bassa. In the attack which they were alleged to have jointly made, Sadiq alias Bhola was said to have been armed with a revolver, Muhammad Sharif had a knife, and the other five had dangs. The attack was made on the family of the deceased Boota, in the course of which Boota and his sister Mst. Natho's son Rashid were killed each as a result of a single gunshot. In addition, Boota's sister, Mst. Natho, and her son Latif, P. W. 13, were wounded, and Boota's sons, Latif, P. W. 18 and Rahmat, P. W. 17, were also injured. Rashid deceased had a single gunshot wound, but Boota besides the fatal gunshot wound had a large contusion over the right eye indicating a blow with a blunt weapon. Mst.‑ Natho had a cut on the left cheek received allegedly at the hands of Muhammad Sharif accused, and a contusion on her abdomen. , Latif, P. W. 13, had a large lacerated wound on the head and an incised wound on his hand. Latif, P. W. 18, had three. contused wounds on his head and two abrasions. Rehmat, P. W. 17, had three lacerated wounds on the head and neck, with a large c6ntusion and an abrasion also on the neck, a laerated wound and a contusion on the left shoulder and arm, and a contusion on the right abdomen. The three appellants in this case and Sadiq alias Bhola also were found, when arrested shortly after the occurrence, to have injuries on their persons. Muhammad Sharif had two lacerated wounds and a swelling on his head, a contusion on his right leg and three minor injuries. Muhammad Shab had a lacerated wound and an abrasion on' his head, a lacerated wound on his left forearm, and an incised wound and two contusions on hi, back. Karam Bakhsb bad a lacerated wound on his head, : small cut on the right wrist and three minor injuries elsewhere. Sadiq alias Bhola had an abraded swelling on his forehead, con tusions on the left wrist joint and the right knee, and two swellings on his left leg. The injuries of the accused persons are explained by the prosecution witnesses as being the result of brick‑bats thrown at them as well as blows with sticks picked, up on the spot, delivered by some of the eye‑witnesses, in particular Latif, P. W. 13, and his brother Bashir, P. W. 19, who escaped injury. One other person besides those injured gave direct evidence of the occurrence, namely, Karim Bakhsh, P. W. 16, who is quite unrelated to the others and whose evidence covers practically the entire incident. The incident occurred on the evening of the 3rd November 1963, at about 7 p.m. The prosecution attempted to make out that there being no previous trouble between the parties, a mere exchange of abuses between Rehmat P. W. 17, on the one side and the accused Muhammad Sharif and Muhammad Shafi on the other in which Rehmat's maternal uncles were described as eunuchs; led to a very violent attack upon the family of Rehmat. From the statements made by the accused persons it appears that the matter went somewhat deeper. Their version was that Imam Bakhsh accused was first married to a Mst. Aisha, sister of Maula Bdkhsh, who is maternal 'uncle to Mst. Natho and the deceased Boota, and was thought to be the head of their family. Imam Bakhsh had later married another wife, Mst. Hamida and had undertaken to pay Mst. Aisha; Who was separated from him a monthly allowance. This he had failed to pay for a period and three days before the occurrence, a question had been raised by Maula Bakhsh and his group that Imam Bakhsh should divorce .Wst. Hamida and reinstate Mst. Aisha. Imam Bakhsh said he put them off by saying that he would give a reply in three days, but when that day arrived he was away searching for a lost cow. Perhaps he sought thereby to avoid complicity in the case, but the evidence of P. W. 22, Fazal Ahmad, S. I. shows that the incident having been reported to him at 7‑30 p.m. he reached the spot at about 8‑0, and the sane night he raided the ha veli of the accused persons and arrested all of them at once except Sadiq and Elahi Bakhsh. This would show that Imam Bakhsh was at no great distance from the scene of the occurrence at the relevant time. The further case for the accused persons is that the whole incident took place in their own haveli, which is at a considerable distance from the haveli of the complainants, and can only be reached by going down a katri (a side lane) about 15 yards to a main road, then down the main road for about 40 yards and again going off the main road for a distance of some 15 yards. Their case was that Maula Bakhsh together with his relations, including all the injured persons came to their house and demanded to see Imam Bakhsh; when they were told that he was not there, the assault immediately started. Latif son of Mst. Natho had a gun and he fired a shot at Sadiq, which accidentally hit and killed his own brother Rashid. Thereafter, the complainant party be laboured the accused persons with dangs and a knife, and did not desist until one Noor Bhayya came to the assistance of the accused and fired two shots with a pistol, one of which killed Boota, who was armed with a hatchet. The other .shot hit a passerby named, Muhammad Ali, P. W.

14. Thereafter, according to the accused' persons, the complainants carried away their injured persons to their own house. Except for the gunshots, no other injury on the side of the complainants was explained by the accused persons. The prosecution case, however, was that following the abuse between Rahmat on the one side and Muhammad Sharif and Muhammad Shafi on the other, Rahmat returned to his house. The altercation had taken place in the main bazar at a distance of about 26 3 ards from the entrance to the aforesaid katri leading to the house of the complainants. On the way he was joined, by a number of his relations. He had not yet entered the katri for which he had to turn to the right, when the accused party appeared on the spot shouting abuses. Sadiq with his pistol fired a shot which hit the aforesaid Muhammad Ali. Thereafter, the accused persons in a body pursued Rahmat and his companions down the katri. Boota looked back, and Sadiq fired at him hitting him in the chest so that he fell down in the courtyard of his house. Mst. Natho fell over him, to save him, and was struck on the cheep with a knife i.e Sharif. Just then her son Rashid front a room Sadiq fired at him from close quarters. He fell down inside the room. Rehmat was given dang blow, by Muhammad Shafi son of Bassa and Muhammad Shad son of Ranjha. The latter also gave blows to Latif, P. W.

18. The account of the incident is supported substantially by the evidence of Muhammad Latif, P. W. 13, Mst. Natho, P. W. 15, Rehmat, P. W. 17 Latif, son of Boota, P. W. 18 and Bashir, P. W.

19. Mst. Natho quickly became unconscious and could not give an account of the whole occurrence. Rehmat also lost consciousness, which he only recovered on the following day. He spoke only of he use of dangs by himself and his companions in self‑defence. But Muhammad Latif, P. W.. 18, said that he and his brother Basher climbed to the roof of the house while the attack was on and pelted the assailants with brick‑bats. This witness said that only brick‑bats were used in self‑defence. The allegation of brick‑batting was also supported by Bashir P. W. 19, who, however, also said that some pieces of firewood that they picked up were used as lathis. Karim Bakhsh, the dis interested witness, who does not belong to .the caste of the parties, but is a tell, living somewhere in the neighbourhood, who knew all the persons involved, was passing close the main road, when the , assault commenced. He saw Muhammad Ali being hit by a bullet, and the complainant being chased down the katri by the accused per. He followed them, and he saw Boota, Natho, Rashid, Latif son of Boota Latif son of Natho and Rehmat being injured, He said that the assailants were struck by brick bats thrown in self defence by some of the injured persons, and did not mention any blows with lathis or pieces of firewood The assailants ran away to their own house. Karim Bakhsh remained on the spot until the arrival of tire Police at 8 O' clock, and even thereafter, witnessing the arrest Muhammad Sharif, Muhammad Shafi, Imam Bakhsh, Karan: Bakhsh and Shafi, son of Ranjaha accused from their haveli, and of Sadiq from a place known as katcha bagh a short distance away Three of the accused persons produced dangs, that is to say Karam Bakhsh, Muhammad Shafi sons of Bassa and Muhammad Shafi son of Ranjha, Muhammad Sharif produced a dagger and Sadiq at the time of his arrest was found to have on his person a revolver loaded with six cartridges. This witness also saw the recoveries made by the Police from the courtyard of the complai nants' house including blood‑stained earth from two places, and two empty revolver cartridges, which had been left on the spot. Ordinarily, independent witnesses are sought for verification of such recoveries, but in this case no disinterested person who harl9 seen the occurrence or the recoveries would come forward for the. purpose. The reason is obvious. The recoveries were being made while the sensation of this terrifying occurrence had not sub-sided, and men were naturally fearful of becoming involved in so" serious an affair. The recovered articles were all duly sealed by the P, lice as proved by S.

1. Fazal Ahmad, P. W. 22, as were also the dangs recovered from three of the accused persons as welt as the revolver recovered from Sadiq. The parcels were handed over by the Thanedar to the Moharrir Head Constable Barkat Ali, P. 'NV. 7, on the 4th November whose evidence shows that while alt, parcels containing blood‑stained articles were sent off to the Chemical Examiner on the 5th and the 6th November 1963, the parcels containing the crime cartridges and the revolver were wily handed over to a Foot Constable for delivery to the Forensic Expert on the 18th December 1963. No explanation was offered by Barkat Ali, for this delay except that he was acting under the instructions of the Investigating Officer, but Barkat Ali was clear that the parcels were not interfered with so long as they retrained in his custody. In the very lengthy cross‑examination of the Thanedar Fazal Ahmad, which extended over two days and covers some 2500 words, no question appears to have been put to him seeking an explanation for the delay in the despatch of these important exhibits to the Forensic Expert. The latter witness, namely, Mr. Shah Jahan Khan, P. W. 3, gave evidence to the effect that the marks on the crime cartridges caused by the explosion matched exactly with marks created on two similar test cartridges which he had used. This witness too was cross‑examined at inordinate length. His cross‑ examination covers some 2500 words, and shows no indication of any clear purpose behind the concentrated questioning to which he was subjected. The same is true of the treatment by the cross‑examining counsel, who was Mr. Barkat Ali Saleemi himself; of the eye witnesses, Muhammad Latif, P. W. 13, Mst. Natho, Karim Bakhsh, Rahmat Ali, Muhammad Latif, P. W. 18, and Bashir. The last‑mentioned witness was cross‑examined on three separate days. The cross‑examination of Muhammad Latif, P. W. 13, overs about 3200 words, and that of Karim Bakhsh about 2700. that of tire other three covers in each case about 2000 words. This was a case in which there was no denial of a clash and ,e variations from the prosecution story were confined to the question firstly who took the aggressive, and secondly where did not clash took place. We indicated to Mr. Barkat Ali Saleemi in lie course of the agreement that, we could not see what purpose le could possibly have had in lengthening out his cross‑examinati on of these probably illiterate witnesses (they are Gujjars and silk sellers by profession) to such an inordinate length. The purpose of cross‑examination is to assist the Court in bringing the truth to light by disclosing or clarifying matters which witnesses may wish to conceal or confuse from motives. If artisan ship. The partisan nature of all these witnesses with the exception of Karim Bakhsh was pain, and in view of the nature of the defence set up, the points on which concealment was to be accepted were also well‑defined. Effective cross‑examination could be confined within a narrow compass. Here, the questioning went beyond all reasonable limits. There is a regrettable practice among class of lawyers to use prolonged cross‑examination for the purpose of leading a witness to error after his alertness has been reduced through fatigue and ,is resistance to suggestions made in the form of leading questions as thereby been reduced. Such a practice is plainly designed not or the disclosure of truth, but for the manipulation of error, and .e take this opportunity of expressing our entire disapproval of lie use of such methods. Mr. Barkat Ali Saleemi himself agreed hat when he studied the case for the purpose of the present appeal, he felt that he bad gone too far in taking up the time of i;e Court and by subjecting each of the witnesses to a prolonged ordeal. He undertook to avoid such a practice in the future. As the record stands, however, it would seem that the witnesses stood up to the ordeal very successfully. Mr. Barkat Ali aleemi was able to point to very little that could be of any assistance as providing even indirect support to the defence version of the incident, and those slips were, as was expected, only be found at the fag end of the cross‑examination of one or two witnesses. The relations between the parties being what they ,ere, if the aggression had been by the complainant party, and the injuries including those to Boota. and Rashid deceased had been caused in the courtyard of the accused persons, there can be no doubt whatsoever that they would not have allowed these persons in particular as well as the two other injured persons who not consciousness, to be removed from their courtyard. For the presence of these persons in their courtyard would by itself have furnished sufficient proof that the accused persons were not the aggressors, and that they had to use force to beat off an attack made on them in their own house. The fact, however, is that 'When the Police arrived the injured persons of the complainant party were found in their own courtyard, and it was there that blood‑stains were found and the crime cartridges were also Nothing to indicate that there had been a clash in the accused persons courtyard was seen or found by the Investigat ing Officer nor was any such material shown to him when he visited the courtyard within perhaps two hours of the occurrence. Moreover, when asked in cross‑examination by Mr. Barkat Ali Saleemi whether the accused persons had given him their own version of the occurrence on the spot, he replied that no such version was put to‑him. The fact that the innocent passerby Muhammad Ali was hit in the main bazar is proved by the evidence of a number of witnesses including himself. He had been hit in the head, and it is clear that when he was examined, he was still in a dazed condition and had no recollection of what happened except that he was hit by a bullet which lodged in his brain. The place where he was hit is also clearly shown on the plan. It is a place, which cannot be reached by a shot fired from within the courtyard of the accused persons. It was said by several of the accused persons that Noor Bhayya's second shot fired inside their court yard struck Muhammad Ali, who was an innocent passerby. No person passing by on the main road at the point where Muhammad Ali fell could conceivably have been hit by a shot fired from within the courtyard. It is plain then that the version put forward by‑ the accused persons cannot be accepted. It becomes plain too that they were outside their courtyard and in the main street, when the shot was fired, which hit Muhammad Ali. This circumstance is fully explained by the prosecution story, which gains considerable strength thereby. The discovery in the court yard of the complainants of spots of blood, where the two persons, who had been shot, fell down, is material evidence of the greatest value to establish that these men were shot and killed while they were in their own courtyard. This makes it plain that there was aggression by the accused persons. Four of them namely Sadiq, Sharif, Shafi, 'son of Bassa and Karam Bakhsh admitted their involvement in the affair. It was pointed out in argument that there was inconsist ency between the various prosecution eye‑witnesses as to the manner in which the injuries of the four accused persons were caused. These injuries came under examination within a few hours of the occurrence, and the fact that they were received contemporaneously with those of the complainant party is there fore undeniable, The accused party being the aggressors, it was natural that there should be some resistance by the complainants, who had a number of able‑bodied men on their side. It was pointed out that neither any lathis nor any pieces of firewood nor any brick6bats were produced before the Police, acid the Investigating Officer stated that no brick‑bats were shown to him in the courtyard of the complainants. The omission does not appear to us to be material. At the time of the first visit by that officer, the complainants were mainly concerned with their own injuries. Their injured people had yet to be taken to the hospital. They were not concerned to explain the injuries 1967 to the other side. Shortly after, the brick‑bats, etc., in the courtyard would have been cleaned up. The Courts below have been careful to confine the convic tions to those of the accused persons', who bore injuries on their persons at the time of their arrest: At the same time, they have accepted to full, the evidence of the non‑partisan witness Karim Bakhsh, which would appear to have been a sufficient guarantee the truth of the statement made by tile partisan witnesses. The length of the attacking party, as stated by the prosecution witnesses, was by no means disproportionate to the requirements, view of the presence of a number of able bodied men in the complainants house. The intention in using a firearm was clearly to cause death, and therefore, the two deaths which have been used can be rightly herd to be the result of a joint attack by the our persons before us thus attracting the application of section 34, P. P. C., which has been employed. Yet, it would have been simpler and in fact,, not in any way in contravention of either fact or law, to hold that these four persons with other ho had not been indentified beyond doubt, carried out the attack which case the liability would be extended to all of them under section 149, P. P. C. For these reasons, we dismiss the appeal and we also dismiss Sadiq's petition for special leave to appeal. Appeal and Petition dismissed.