1996 P Cr (PLP)

Injury was simple and was caused with blunt weapon with a duration of three hours.

16. He also admitted to have examined Khan Muhammad accused at 4 p.m. on 5-11-1982 and found the following injuries on his person:-- (1) Contusion mark on the outer side of left shoulder 7 x 1-1/2 c.m. (2) Contusion mark on the top of left shoulder 4 c. m. x 1-1/2 c. m. (3) A contusion mark on the outer side of left scapula on back rear axilla 10 x 1-1/2 c.m. (4) Contusion mark on the back of chest on the left middle part 11 x 2 c.m. obliquely. (5) Contusion mark on the back of lumber region on left 5 x 1-1/2 c.m. obliquely. (6) Contusion on the top of right shoulder. (7) Contusion mark on the back of right scapula 8 x 1-1/2 c.m. He was advised X-ray of the back of chest and right shoulder. Injuries Nos.4 and 6 were kept under observation. Rest were declared simple and all injuries were caused with blunt weapon within .the duration of three hours. He also admitted that after examining the X-ray report he declared injuries Nos.4 and 6 as grievous.

17. He also admitted that he had also examined Muhammad Abdullah son of Hidayat Ullah at 4 p.m. on 5-11-1982 and found following injuries:-- (1) Contusion mark on the back of right shoulder on right scapula 6 x 3 c.m. obliquely. (2) Contusion mark on the back of chest on left 12 c.m. x 2 c.m obliquely. (3) Contusion mark on the vertex of the head on left 4-1/2 c.m. x 3 c.m.. All the injuries were simple, caused with blunt weapon within three hours. In cross-examination he admitted that Exh.D.A. and Exh.D.B. were the correct photo copies of the medico-legal reports of Mst. Saira Bibi and Ghulam Sarwar respectively, the original of which were in his hand and signed by him. The witness had compared the photo copies in the Court with the original and certified them to be correct. He also admitted that Exh.D.C. was the medico legal report issued by him regarding injuries of Khan Muhammad and Exh.D.D. was the medico-legal report issued by him regarding injuries of Abdullah. He also admitted that injuries Nos. l and 2 on the person of Saeed Ahmad, P.W. could be caused by a fall on hard substance and the possibility that the injuries were self-suffered could not be ruled out.

18. At the conclusion of the cross-examination of P.W.3 the Prosecutor made a request that either the witness be re-examined or the witness be declared hostile and he be allowed to cross-examine him. He got adjournment to address his arguments. On 29-3-1994 the Court declared P.W.3 as hostile and allowed the public prosecutor to cross-examine him. During the cross-examination of public prosecutor the witness was confronted with Ruqa Exh.P.K. from the police file and confronted the witness with the same. He admitted that Ruqa Exh.P.K. had his endorsement Exh.P.K./1 which was in his hand and signed by him. He also admitted that the accused party had come to him for medical examination as a private case, when the police was present in the hospital and the medical examination was in the knowledge of the police. He examined the accused party in a room whereas the police was in the premises of the hospital outside the room. He had not delivered the medico-legal certificates to the police but he had informed the police that he had also examined the accused party. He denied to have any knowledge of the police having prepared injury statements of four injured persons of the accused party. He denied the suggestion that Exh.D.A., Exh.D.B., Exh.D.C. and Exh.D.D. were fictitious documents which he prepared to create defence for the accused. He denied the suggestion that injuries Nos.4 and 6 on the person of Khan Muhammad could be self-suffered and self-inflicted.

19. I would observe here that the order of the trial Court declaring P.W.3 and P.W.12 as hostile was perverse and foolish. They had not deviated from the prosecution case but the Court unnecessarily caused harassment to the P.Ws. by declaring them hostile simply because P.W.3 admitted to have medically examined Khan Muhammad and Abdullah accused and Mst. Saira and Ghulam Sarwar, the members of their family and P.W.12 made no such admission. I take exception to the practice adopted by the trial Court which impeded administration of criminal justice. P.Ws.3 and 12 were the witnesses of the prosecution and their testimony related to their reports/opinion. So far as the reports were concerned, none of the two had given contrary evidence. Merely because P.W.3, in cross-examination, admitted to have medically examined the accused party, does not give right to the Prosecutor to cross-examine him and especially so when the Investigating Officer had admitted such examination and presence thereof on, the file of the case. None of the P.Ws. fit in the term of hostile witness. Declaring these P.Ws. as hostile amounted to causing harassment to the P.Ws. who were also public servants.

20. The Prosecutor was allowed to produce Dr. Muhammad Afzal Hashmi, P.W.12, Medical Superintendent, Civil Hospital, Multan whose name did not appear in the calendar of witnesses. An objection was rightly raised by the learned defence counsel that a witness could not be produced to rebut the opinion of another prosecution witness. His objection was overruled and the P.W. stated that on 12-1-1983 he examined Khan Muhammad accused under the orders of a Magistrate. He was brought to him on 3-1-1983 by S.-I. Muhammad Ashiq. The original medico-legal report and X-rays taken on 27-12-1982 were also produced before him. Khan Muhammad accused was referred to Radiologist of Nishtar Hospital, Multan for fresh X-ray of ribs and left shoulders. The X-ray results were brought to him on 8-1-1983 with the following result:-- "(1) An old fracture of ninth and tenth ribs of left side of chest, with callus deposits around the fracture line. (2) An old fracture of Acremen, process of the right scapula seen." According to the opinion of the Radiologist ribs Nos.9 and 10 were shown as fracture whereas in the previous opinion only rib had been shown as fractured. The S.H.O. was required by him to bring the injured alongwith the record of re- examination. Khan Muhammad injured accused was again produced before him on 12-1-1983. The original medico-legal report dated 5-11-1982, the X-rays and opinion of Assistant Professor were also produced and in his opinion the chance of these injuries causing fractures on the shoulders and ribs by self was most remote. He had forwarded the documents in original to the Magistrate. This witness was also declared as hostile by the trial Court at the request of the prosecutor and was cross-examined. Exh.P.W.12/1 was brought on the file by the prosecution which was not earlier available on the case file.

21. The Court summoned Dr. Solomon Elahi and examined as C.W.1 and Dr. Saeed Ahmad Malik who was examined as C.W.2. C. W.1 stated that on 3-1-1983 he was posted as Assistant Professor of Radiology at N.M.C., Multan and M.S., Nishtar Hospital, Multan referred Khan Muhammad to him. for X-ray examination of chest and right shoulder with note Exh.C.W.I/1. He took the X -ray examination of said person and gave the following opinion:-- "(1) There were old fracture 9th and tenth ribs, left side of chest with callus deposits around the fracture lines; and (2) Old fracture acumion process of right scapula, was sees " Exh.C.W.1/2 was the report which was in his hand which was based on X-ray Film Exh.C.W.1/3-6. Dr. Saeed Ahmad, C.W.2 stated that Khan Muhammad was X-rayed in his presence on 27-11-1982. The patient was brought by Muhammad Khan, Constable. Police Station Lodhran. According to the X-ray report there was a fracture of 10th rib on the left side of chest and of scapula at right shoulder joint. He brought on file the photo copy of report Exh.C.W.1/2.

22. The trial Court allowed a document to be placed on the file Exh.P.K. which was not in the notice of the accused persons as the same was not placed on the judicial file. If the prosecution is allowed by the trial Court to bring on record the pieces of evidence in their exclusive possession to which the accused were not presumed to have any access the nature of criminal jurisprudence would change entirely. The Court gave a free hand to the prosecutor not only to intimidate the witnesses but also to burden the case file with Exh.P.K. which had earlier been withheld by the prosecution.

23. The D.D.A. had tendered in evidence the report of the Chemical Examiner Exh.P.U. and that of the Serologist Exh.P.V. and had closed the case of the prosecution on 28-10-1984 after examining P.W.12. He had given up Ch. Nazir Hussain, D.S.P., Elahi Bakhsh and Allah Diwaya as unnecessary and gave up Alaf Din P. W. on account of his being won over by the accused on 14-4-1984.

24. The accused were examined under section 342, Cr.P.C. on 7-I1-1984. They claimed innocence and raised a plea of self-defence of person. They did not opt to make statement on oath under section 34,0(2), Cr.P.C.

25. I have heard the learned counsel for the appellant in both the appeals and the learned counsel appearing on behalf of the State and on behalf of the complainant and have gone through the entire evidence and proceed to record my findings.

26. The motive as alleged by P.Ws. 5, 6 and 8 to show that Khan Muhammad accused had given a beating, by slaps and fists etc. who was rescued by P.Ws. and Khan Muhammad was admonished who took it as insult. Saeed Ahmad, P.W. had himself appeared and was medically examined. I do not agree that injuries on the person of Saeed Ahmad P.W.5 were the result of slaps and I agree with the Medical Officer P.W.3 that the same could be self-suffered and fabricated. When seen with reference to the efforts made by the Investigating Officer to belie the plea of self-defence and the P.W.5 having not been examined on 5-11-1982 I am of the view that on 5-11-1982 Saeed Ahmad did not have injuries on his person or other wise he must have been got examined by the complainant party as the accused party was also getting all the injured persons of their family medically examined when, according to P.W.3 the complainant party as also the police were present within the hospital compound. Even if it be assumed that Saeed Ahmad P.W.5 was given beating by Khan Muhammad who was not given any beating in reply by the P.Ws. It was rather the complainant side who had a motive to cause injuries to Khan Muhammad as he had given a beating to their child. I disbelieve the motive part attributed to the accused and I am of the view, and as discussed hereafter, that it were the complainant party who had the motive to avenge the beating of Saeed Ahmad, P.W.5. Recoveries:

27. The recovery of blood-stained earth from the spot is of no help to the prosecution side. The defence has claimed that the blood-stained earth was secured from their cotton crop whereas the Investigating Officer and the witnesses had not pointed out the place from where the blood-stained earth according to their story was collected. There is no such point given in Exhs.P.A., P.A./1 and P.A./2 and in Exh.D.G. which could suggest the place of recovery of blood-stained earth. Alaf Din P.W., who had witnessed the recovery memo. was also the eye-witness, was the best available possible evidence to the prosecution as he was in a position ,to pin point the place in the Court wherefrom the blood-stained earth was collected. The prosecution has declared the witness as having been won over and it can safely be presumed under section 114 of the Evidence Act that the witness if produced in the witness-box was not to support the prosecution story. So far as the recoveries of Kulhari P.4, Sota P.5 and Phaora P.6 from Khan Muhammad, Khalid and Abdullah accused respectively is concerned the same were witnessed by Rahim Bakhsh P.W.7 and Ghulam Yasin P.W.9. Rahim Bakhsh was not resident of the locality. It was not on the road side that the accused were searched and the weapons were recovered from their possession and secured from the prosecution to plead that the provisions of section 103, Cr.P.C. were not applicable. Here was a case where the accused were under investigation and the search was to be conducted and in case of recovery, recovery memo. was to be prepared. The mandatory provisions of section 103, Cr.P.C. was violated in the present circumstances. The Investigating Officer was g obliged to associate two respectable of the locality to witness the search and sign the memo. P.W.7 was not a witness of the locality and was a chance witness as per his own admission because he was present there only in connection with showing his grief over the incident to the complainant party. I have all the reasons to disbelieve this witness. So far as Ghulam Yasin P.W.9 is concerned he is the cousin of Qadir Bakhsh and uncle of Muhammad Azam, deceased. He had a cause against Khan Muhammad of having firstly given beating to Saeed Ahmad P.W.5. and thereafter given alleged blows to the deceased. He was interested in the conviction of the accused who claimed themselves to have been injured at the hands of the complainant party. The only independent witness whose name was also mentioned in the F.I.R. was Alaf Din but he was given up as having been won over by the accused party and in view of the above discussion I am of the view that the prosecution has failed to prove the recovery of Kulhari P.4, Sota P.5 and Phaora P.6 from Khan Muhammad, Khalid and Abdullah respectively. I disbelieve the alleged recoveries. Investigation:

29. I am constrained to note that the Investigating Officer was deviated the medico-legal reports by the accused party on 7-11-1982, when they were arrested and the Investigating Officer has admitted in Court that he knew about the version of the accused till 26-11-1982 and he believed the same to be correct. Thereafter he proceeded to get Khan Muhammad accused re-examined. He did not obtain the remand of the said accused for re-examination but directly secured his person vide Exh.D.H. which shows the mala fides of the Investigating Officer. After a lapse of almost 20 days he was evidently sure that the injuries have healed, that is why he took up to get the accused medically examined and get an opinion and secure information whether he could discard the counter-version of the accused. I am of the view that the investigation was suffering from absolute patent mala fides. Counter-version:

30. There was counter-version in the case. The accused party also suffered injuries. Ghulam Sarwar and Mst. Saira suffered injuries who were not accused persons. Their injuries were not explained. Khan Muhammad accused suffered two grievous injuries. Two of his ribs were fractured and shoulder bone was also fractured. None of the injury could be self-suffered, and it is not believable that it dawned upon the Investigating Officer after a laps of two weeks that the injuries were self-suffered. The story of giving brick bats as explained by the prosecution witnesses is ridiculous ex facie.

31. When both versions are put in juxtaposition the version of the accused is reasonably plausible and as such I am of the view that a right of private defence of person had accrued to the accused which extended in the circumstances, to the extent of causing death. The apprehension of the accused cannot be weighed in golden scales. Fractures of ribs and shoulder bone were sufficient to give apprehension to the accused party that death may also be caused and, therefore, I hold that the accused party exercised the right of self defence of their person and did not exceed the same.

32. As a result of what has been discussed above the appeal is accepted and the conviction of appellants in Criminal Appeal No.2 of 1985 and Criminal c, Appeal No. 4 of 1985 as recorded by Additional Sessions Judge, Multan on 8-12-1984 is set aside and the appellants in both the appeals are acquitted of the charge. They are on bail, They are discharged of their bail bonds. N. H. Q./K-10/L Appeals accepted.