P L D 1964 (W (PLP)

SHAKIRULLAH JAN, J.‑Muhammad Khan, aged 25 years, son of Allah Ditta, Ghulam Ali, aged 60 years, son of Bahawal Bakhsh, Sardar Muhammad, aged 30 years, son of Bahawal Bakhsh, Rahmat Ali, aged 30 years, son of Allah Ditta, Inayat aged 40 years, son of Ghulam Qadir, Aman Ullah, aged 20 years, son of Inayat, and Muhammad Ali, aged 20 years, son of Ghulam Ali, have been convicted under sections 302/149, 148, 323/149 and 324/149, P. P. C. on the allegation that, after arming them?selves with deadly weapons, they committed rioting, and in prosecution of the common object of their unlawful assembly, they committed the murder of Allah Ditta, son of Fateh Muhammad, on the 25th of May 1961, at about peshiwela, in Chak No. 141 /Murad, and caused simple injuries with blunt weapons to P. Ws. Said Muhammad and Nazir Ahmad and simple injuries with sharp‑edged weapons to Fateh Muhammad, at the same time and place. Muhammad Khan has been sentence to death and the remaining six appellants have been sentenced to transportation for life under section 302/149, P. P. C. All of them have been sentenced to three years' rigorous imprisonment under section 148, one year's rigorous imprisonment under section 323/ 149 and two years' rigorous imprisonment under section 324/149, P. P. C. by the learned Sessions Judge, Bahawalpur, by his order dated the 13th of October 1962. All the convicts have preferred a joint appeal against their convictions and sentences. The reference for the confirmation of the death sentence is also before us and we propose to dispose of the appeal and the reference by this judgment.

2. According to the prosecution, Ghulam Ali appellant, aged about 60 years, is the elder brother of Sardar Muhammad appellant and the father of Muhammad Ali appellant. Inayat appellant is the son of the maternal uncle of Ghulam Ali appellant and Aman Ullah appellant is the son of Inayat. Muhammad Khan, also known as Muhammada, and Rahmat Ali, who are brothers inter as, were cultivating the land of Ghulam Ali during the days of occurrence. All these accused are residents of Chak No. 165, where the deceased lived. The prosecution case is that Bahawala, a brother of Muhammad Khan and Rahmat Ali appellants, is a beggar (malang) and earns his living by begging. Bahawala was suspected of having illicit connection with Mst. Rasool Bibi, who originally belonged to Chak No. 141 but lived during the days of occurrence with her husband at Chak No.

165. Bahawala is said to have been turned out by the residents of Chak No. 165 on account of his illicit relations with Mst. Rasool Bibi. The residents of Chak No. 141 also did not want Bahawala to visit that Chak. Allah Ditta deceased saw Bahawala in Chak No. 141 on the 21st of May 1961 and gave him a shoe‑beating for having visited it, in spite of the fact that he was warned not to visit it in future. On the same day in the evening, P. W. Rahmat, a brother of Allah Ditta deceased, was returning on a mare from Chak No. 179 when he was attacked and beaten by Muhammada, Rahmat Ali and Inayat appellants near the abadi of Chak No.

165. This matter was not reported to the police.

3. There is no kharas (flour‑mill) in Chak No. 165 but there are, however, two flour‑mills in Chak No. 141 belonging to Mistri Muhammad Husain and Mistri Muhammad Ali. The residents of Chak No. 165 take their grain for grinding to these two flour?mills. Inayat appellant had taken some corn for grinding to the kharas of Mistri Muhammad Ali and had taken his two bullocks while Ghulam Ali and Muhammad Ali had brought two camels and corn to the kharas of Mistri Muhammad Husain and were grinding their corn at about peshi time. Allah Ditta deceased had gone to find out if the kharas of Mistri Muhammad Husain or Mistri Muhammad Ali was vacant as he also wanted to grind some corn. Fateh Muhammad (P. W. 9) had gone to Chak No. 141 to get his sangal from Mistri Muhammad Khan. On reaching the shop of Mistri Muhammad Husain, which is across the street and opposite the kharas of Mistri Muhammad, Fateh Muhammad P. W. stopped there. He heard the voices of his son Allah Ditta and Inayat appellant inside the enclosure around the kharas of Mistri Muhammad Ali and on going there he heard his son Allah Ditta telling the above‑mentioned accused that since they had beaten his brother Rahmat, they should not visit their Chak. At this Inayat appellant is said to have shouted a lalkara, and Aman Ullah, Sardar Muhammad, Rahmat Ali and Muhammad Khan accused stood up from near the south‑western corner of the compound of Mistri Muhammad Ali's kharas, Ghulam Ali and Muhammad Ali being already present with Inayat appellant. Inayat was armed with a wahola, Muhammad Khan and Sardar Muhammad appellants had ballams, and the remaining four appellants were carrying lathis. Ghulam Ali appellant dealt a lathi blow to the deceased, hitting him on the head. Inayat appellant then wounded the deceased with the wahola on his right shoulder. Muhammad Khan appellant inflicted a ballam blow on the left wakhi of the deceased. Allah Datta fell down and Muhammad Ali accused gave him a lathi blow on his back. Fateh Muhammad P. W. tried to rescue his son but Aman Ullah appellant gave him a dang blow on the head and he also fell on the ground. Inayat appellant then gave him a wahola blow on the left leg. He was also given a third blow but did not see who had dealt it. The alarm raised by him attracted Said Muhammad (P. W. 11), Nazir Ahmad (P. W. 12) and Khera (P. W. 13). Nazir Ahmad P. W. tried to intervene but was also injured by Inayat and Ghulam Ali appellants. Said Muhammad P. W., a brother of Fateh Muhammad P. W., was injured by Sardar Muhammad and Rahmat Ali appellants. The accused then left. Allah Ditta succumbed to his injuries on the spot. Accompanied by Abdullah, Fateh Muhammad P. W. left for Police Station Dahranwala, at a distance of about five miles from the spot, where his report Exh. P. A. was recorded at 6 p.m. by Ch. Fazal Din, Sub‑Inspector (P. W. 16).

4. After recording the report, the S. H. O. deputed Allah Ditta constable to go to guard the dead body while he himself left for the spot at about 10‑30 p.m., reaching there at midnight. P. Ws. Said Muhammad and Nazir Ahmad were brought to the Police Station, and the S. H. O. prepared the injury sheet Exh. P. S. of Fateh Muhammad, Exh. P. T. of Nazir Ahmad and Exh. P. U. of Said Muhammad and sent them to the civil hospital for medical examination. At the spot he found the dead body of the deceased lying in the street in between the two kharases on a cot. He prepared the injury statement Exh. P. V. and the inquest report Exh. P. W. and sent the dead body to the mortuary for post‑mortem examination. From near the kharas, he took into possession bloodstained earth and sealed it into a parcel vide memo. Exh. P B. He took into possession wheat weighing one maund and fourteen seers from the kharas of Mistri Muhammad Husain per recovery memo. Exh. P. C. He also took into possession more wheat from the kharas of Mistri Muhammad Ali per recovery memo. Exh. P. D. and six seers of flour from the kharas vide memo. Exh. P. D. From the kharas of Mistri Muhammad Ali he took into possession two bullocks vide memo. Exh. P. E. and two camels were taken into possession from the kharas of Mistri Muhammad Husain per recovery memo. Exh. P. F. On the 27th of May 1.961, Inayat, and Muhammad Khan appellants were produced before him by one Sultan Zamindar. Inayat appellant produced before him the wahola Exh. P. 1, which he took into possession per recovery memo. Exh. P. G. Muhammad Khan appellant produced the ballam Exh. P. 2 which he took into possession per recovery memo. Exh. P. H. The above‑mentioned appellants had brought their weapons with them at the time they appeared before the S. H. O. Sardar Muhammad appellant was also arrested on the 27th of May 1961. Ghulam Ali, Muhammad Ali, Rahmat Ali and Aman Ullah were arrested on the 28th of May, and led the S. H. O. to their field of loosan from where they produced four lathis Exhs. P. 6 to P. 9 which were taken into possession per recovery memo. Exhs. P. K. From the statement of the S.H.O. it appears that Rahmat Ali and Muhammad Ali appellants had injuries when they appeared before him and so he prepared their injury statements and sent them to the civil hospital.

5. The autopsy on the dead body of Allah Ditta was held by Dr. Abdul Ghani (P. W. 1) on the 27th of May 1961 at 8‑30 a.m. The deceased had: (1) A lacerated wound, 13/8" x 1/6" x 1/6", on the right side of the scalp, 41/3" upward from the right ear. (2) A lacerated wound, 3/4" x 1/6" x 1/6", on the right side of the scalp, 3" upward and backward from the right ear. (3) An incised wound, 1/2" x 1/10" x 1/6", on the back of the right forearm, 5?" below the elbow. (4) A punctured wound, ?" x 1/2", depth going in the body, on the lateral part of the back of the left side of the trunk, with clean cut and inverted margins. Death, in the opinion of the doctor, was due to shock from the wound of the left lung as a result of injury No. 4 which was caused with a sharp‑edged and pointed weapon. Injuries Nos. 1 and 2 were simple and were caused with a blunt weapon. Injury No. 3 was grievous and was caused with a sharp‑edged weapon.

6. Doctor Inam‑ul‑Haq (P. W. 2) medically examined Fateh Muhammad, Said Muhammad and Nazir Ahmad P. Ws. on the 26th of May 1961. Fateh Muhammad P. W. had: (1) A lacerated wound, 3/4" x 1/4" x 1/4" on the right back of the scalp, 4" away from the left ear. (2) An incised wound, 1?" x 1/4", bone deep, in the middle of left leg. (3) A contusion, 2" x 3/4 ", on the left shoulder. All the injuries were simple. Injuries Nos. 1 and 3 were caused with a blunt weapon while injury No. 2 was caused with a sharp-?edged weapon. Said Muhammad P. W. had: (1) A lacerated wound, 1" x 1/2" x 1/2", on the back of left hand. (2) A lacerated wound, 1" x 1/4" x 1/2", on the left ear. (3) A lacerated wound, 3/4" x 1/4" x 1/4", on the root of the left ear. (4) A contusion, 1" x 4", on the back of right chest, on the shoulder blade. (5) A scratch, 1" x 1", on the back of the left shoulder joint. All the injuries were simple and were caused with a blunt weapon. Nazir Ahmad P. W. had: (1) A lacerated wound, 1?" x 1/2" x 1/2", in the middle of the head, front side.? (2) A lacerated wound, 2" x 1/2", bone deep, on the left side of the head. (3) A scratch, 1" x 3/4", below the left eye on the face. All the injuries were simple and were caused with a blunt weapon.

7. The accused, when examined, pleaded not guilty. Rahmat Ali appellant admits his presence at the spot at the time of the occurrence and made the following statement :‑ "I was not member of an unlawful assembly. At peshiwela on 15th May, 1961, 1 visited Chak No. 141 for purchasing some oil from a kohlu, but I do not know the name of the teli who owned that kohlu. I could not get any oil and while returning to my Chak I passed near the kharases of Mistri Muhammad Ali and Muhammad Hussain. Muhammad Ali accused was grinding his corn at the kharas of Muhammad Husain and Inayat accused was grinding his corn at the kharas of Mistri Muhammad Ali. Sardar and Ghulam Ali accused also were present there. 1 found Muhammad Ali, Inayat, Ghulam Ali and Sardar accused exchanging blow with Allah Ditta deceased and P. Ws. Fateh Muhammad, Nazir Ahmad and Said Soi. On seeing them fighting, I tried to intervene and sustained an injury on my right elbow. Then I left the spot and ran away." He concluded that he was examined at the Civil Hospital, Hasilpur. His medico‑legal report is Exh. P.BB and X‑ray report is Exh. P.DD. Muhammad Ali appellant made the following statement: "On the day of the alleged occurrence, I had taken my two camels to the kharas of Mistri Muhammad Husain and was grinding my corn there, but my father was not with me. On the other kharas of Mistri Muhammad Ali, Bashir Teli was grinding corn, but Inayat accused was not there. At peshiwela I heard raula in the bazar which passes in between the kharases of Muhammad Ali and Muhammad Husain. I went towards the spot and saw Rahmat accused being attacked and beaten by the residents of Chak No. 141, Allah Ditta deceased, his father P.W. Fateh Muhammad, his brother P. W. Rahmat, his uncle Said Soi, P. W. Nazir Ahmad, and others were beating Rahmat accused. When I reached near them, P. W. Nazir Ahmad inflicted a barchha blow on my left forearm. Owing to my injury I left the spot and ran away to my Chak. I was not member of any unlawful assembly and bad not attacked or injured Allah Ditta deceased." He concluded that he was medically examined on the 26th of May 1961 in Civil Hospital, Hasilpur, and his medico‑legal report is Exh. P. O. and the X‑ray report Exh. P.CC.

8. The appellants examined Sultan Ahmad (D. W. 1), who stated that on the third day after the occurrence he had produced Ghulam Ali, Sardar Muhammad, Inayat, Aman Ullah and Muhammada alias Muhammad Khan before the S. H. O. in Police Station, Dahranwala. Inayat and Muhammad Khan accused had no weapon with them at the time when they were produced by him, nor had they produced any wahola or ballam before the S. H. O.

9. The prosecution version is that as the deceased had given a shoe‑beating to Bahawala, a brother of Rahmat Ali and Muhammad Khan appellants, therefore the appellants had com?mitted the murder of Allah Ditta deceased and caused simple injuries to Fateh Muhammad, Said Muhammad and Nazir Ahmad P. W. to avenge the above‑mentioned beating. A reference to the statement of Abdul Qayyum Patwari (P. W. 5) of Chak No. 167 would show that the kharas of Mistri Muhammad Ali, which was the scene of occurrence, is at the southern end of the abadi of Chak No. 165 and the house of Allah Ditta deceased and his father Fateh Muhammad P. W. is on the northern side of the abadi. The distance between the house of the deceased and the spot is five acres. The appellants are residents of Chak No. 165, which is separated from the kharas of Mistri Muhammad Ali by a thoroughfare, eight karams wide as shown in the plan Exh. P.NN, and so it is obvious that the kharas which is the scene of the occurrence is nearest to the Chak where the appellants live, whereas the house of the deceased is at some distance. The recovery of the corn, flour, two bullocks and two camels from the kharases clearly shows that the appellants had gone to the kharases for grinding their corn and not with view to commit the murder of the deceased. There is no evidence on the record to suggest that the appellants had gone to the kharas in anticipation of the arrival of the deceased with a view to commit his murder. Fateh Muhammad P. W., father of the deceased, in his first information report stated that Bahawala Malang was told by his son Allah Ditta deceased not to visit the Chak and consequently a few days later Allah Ditta gave him shoe beating. He further stated therein that on the day of the occurrence at peshi time he, accompanied by his son Allah Ditta, by chance passed by the kharases and saw two bullocks belonging to Inayat appellant, harnessed in the kharas of Mistri Muhammad Ali, and two camels, harnessed in the kharas of Mistri Muhammad Husain by Muhammad Ali and Ghulam Ali appellants who were grinding their corn. On seeing Inayat appellant, Allah Ditta told him that they had beaten his brother and now they had come to the Chak in spite of the fact that they had warned them not to visit it. At this, Inayat appellant is said to have raised a lalkara which attracted the rest of the accused. A plain reading of the first information report would show that some of the appellants were present in Chak No. 141 for the perfect legitimate purpose of grinding their corn in the kharas as there are no kharas in their Chak. The complainant‑party, including the deceased, went to the said kharases and in these circumstances the accused would not be anticipating their arrival. In view of these facts the theory that the accused had gone to the kharases with a view to attack the deceased has not been established. The recovery of grain, flour, two bullocks and two camels from the kharases also shows that the appellants had gone there for grinding their corn. In order to show that the deceased and Fateh Muhammad had gone separately to the kharases the latter at the trial deposed that Allah Ditta deceased had gone to find out as to whether the kharas of Mistri Muhammad Husain or Mistri Muhammad Ali was vacant as they wanted to grind some corn, whereas he himself had gone to get a sangal from Mistri Muhammad Husain, but the latter portion of his statement is not mentioned in the first information report. Taking the evidence on the record into consideration, we are of the opinion that the prosecution has failed to prove that the seven appellants, being members of an unlawful assembly, in prosecution of the common object of that assembly committed the offence with which they have been charged.

10. The record shows that two appellants had injuries on their persons and the prosecution failed to show how they had been received. The eyewitnesses stated that none of them was armed with any weapon and so it is obvious that the prosecution suppressed material evidence relating to the injuries of the two appellants. It is true that the doctor who had examined Rahmat Ali and Muhammad Ali appellants was not produced, but there is material on the record to suggest that the injury sheets of these two appellants can be taken into consideration. Muhammad Ali appellant in his statement at page 58 of the paper book relies upon three documents, namely, statement Exh. P. R. medico‑legal report Exh. P. O. and X‑ray report Exh. P. CC. The learned Sessions Judge excluded all these documents from consi?deration. Mr. Mahmood Ali Qasuri, learned counsel for the appellants, frankly conceded that so far as Exh. P. R. is concerned, which is the statement of Muhammad Ali appellant before the police, was rightly excluded by the learned Sessions Judge He, however, urges that the medico‑legal report Exh. P. O. and the X‑ray report Exh. P. CC. were wrongly excluded. Ch. Fazal Din, Sub‑Inspector (P. W. 16) in cross‑examination stated that "Rahmat Ali and Muhammad accused had injuries at the time of their appearance before me and I had prepared their injury statements. Again said, I had not prepared their injury statements but they were sent for X‑ray examination, vide my ruqqa Exh. P. BB. The X‑ray results were received in due course and are P. CC and P. DD". In our opinion, the S. H. O. is making a false statement saying that he had not prepared injury statements of these two appellants because they were sent for medical examination and were medically examined. Exhibit P. CC at page 25 of the paper book is the X‑ray report, which shows that there was a fracture of the ulna bone of Muhammad Ali appellant and no fracture was found in the forearm and right elbow joint of Rahmat Ali appellant, vide Exh. P. DD. Learned counsel contends that the X‑ray report and the medico‑legal report are admissible in evidence under section 35 of the Evidence Act.

11. At page 302 caption `Hospital registers and certificates' in Munir's Principles and Digest of the Law of Evidence it is laid down that:-- "Entries in the prescription register of a Government dispensary, made by a compounder, are relevant and admissible under this section though the compounder is not called. An entry of the parentage of an illegitimate infant made three years after the birth in a vaccination register is admissible under section 35". Exhibits P. CC and P. DD are entries in the register of the X‑rays Expert and, therefore, they fall within the purview of section 35 of the Evidence Act and as such are admis?sible. Exhibit P. S/1 shows that the medico‑legal report regarding the injuries of Muhammad Ali and Rahmat was received and was sent along with the case to the police station concerned. The prosecution and the accused‑appellants have factually accepted these documents, i.e., Exhs. P. CC, P. DD and P. S/1 because the prosecution has put them in evidence and the defence relies upon them. Therefore, there is no legal objection to the documents being brought on the record and so we hold that they are admissible in evidence.

12. The learned Sessions Judge at page 69, line 57th of the paper book, observed that "the injuries are not alleged to be grievous and though the incident had taken place within the area of Police Station, Dahranwala, but the injured accused did not appear at the said police station for lodging any report and did not get themselves examined through the police of Dahranwala. Thus I am of the view that the accused had fabricated superficial injuries with a view to create the story of their having acted in self‑defence. There is no basis for this finding of the learned Sessions Judge because the X‑ray report Exh. P. CC clearly shows that there was a fracture of the shaft of the ulna bone and so we are unable to come to the conclusion that these injuries found on the person of the accused were self-inflicted.

13. Ch. Fazal Din, S. H. O. stated that on the 27th of May 1961, Inayat and Muhammad Khan appellants were produced before him by Sultan Zamindar. Inayat had produced the wahola Exh. P. 1 and Muhammad Khan had produced the ballam Exh. P. D at the time of their arrest. This Sultan Zamindar was examined as D. W. 1 who deposed that Inayat and Muhammad Khan had not produced the wahola and the ballam before the police in his presence. Salah‑ud‑Din (P. W. 10), the only marginal witness of the recovery memo. relating to the taking into possession of the wahola and the ballam, stated that Inayat appellant bad appeared before the S. H. O. on the 27th of May 1961 and was formally arrested in the village Chowk and then taken to his dera outside the village abadi, from where he produced the wahola and was brought to the Chowk where the memo. Exh. P. G was prepared. Muhammad Khan appellant, who had also appeared before the police on the same day, had produced the ballam in the village Chowk. The statements of Salah‑ud‑Din (P. W. 10) and the S. H. O. regarding the manner in which the wahola and the ballam were produced are conflicting and so we hold that these two appellants did not produce the weapons mentioned above.

14. The evidence on the record shows that some of the accused had gone to the kharas for grinding their corn when they were attacked by the complainant‑party on account of the incident of beating to Rahmat, brother of Allah Ditta deceased, by Muhammad Khan. Inayat and Rahmat Ali appellants. The accused not only apprehended that grievous hurt would otherwise be the consequence of such an assault but actually grievous injury was inflicted as fracture of the shaft ulna bone of Muhammad Ali appellant was caused and the case is covered by the second clause of section 100, P. P. C. The appellants were entitled to the right of self‑defence and the prosecution failed to show that they had exceeded it.

15. As a result of the foregoing discussion, we accept the appeal, set aside the convictions and the sentences of the appellants and acquit them. The sentence of death passed upon Muhammad Khan appellant is not confirmed. K. B. A. ??????????? Appeal accepted.