P L D 1952 Lahore 388 (PLP)

MUHAMMAD MUNIR, C. J.‑Fazal Ilahi, Fateh Haider, Akbar, Dost Muhammad, Khuda Bakhsh, Ghulam Abbas and Painda Khan were tried by the Sessions Judge, Jhelum, on charges of rioting, murder and causing grievous hurt ;with the exception of Akbar, who was acquitted, they were all convicted. On the charge of murder Fazal Ilahi, Fateh Haider and Painda khan were sentenced to death and the others to transportation for life. For causing grievous hurt and rioting they were all sentenced to undergo four years' and two years' rigorous imprisonment respectively. The convicted persons have appealed and the sentences of death have been referred to this Court for confirmation. There is also a petition for revision in which Bashir Ahmad, a relation of the murdered man asks for enhancement of the sentence of transportation for life to that of death. Fateh Haider is the son and Akbar, Dost Muhammad and Ghulam Abbas the sister's sons of Fazal Ilahi. Khuda Bakhsh is the sister's son of Akbar and Dost Muhammad. Painda Khan is only distantly related to Khuda Bakhsh. In the transaction which was the subject‑of the trial, Abdul Aziz was killed and Fazal Dad and Muhammad Khan were injured. Fazal Dad is the son of a sister of the father of Abdul Aziz while Muhammad Khan is a son of the maternal uncle of Fazal Dad. The eye‑witnesses in the case are the two injured persons and Mirza whose deceased wife was the sister of the wife of Abdul Aziz. The parties belong to village Arrar, seven miles distant from police station Choah Saidan Shah in the district of Jhelum. The occurrence took place late in the afternoon of 26th May, 1951, and the first information report at the police station was` lodged by Fazal Dad at 10‑15 p. m. the same day. The incident has a background of enmity between the parties. About 21 months before the occurrence, Khuda Bakhsh and Akbar appellants and one Muhammad Ali killed a she‑ass of Muhammad Khan The matter was reported to the police and a case about it was pending on the day of the murder. Muhammad Khan had also made a report under section 107 of the Code of Criminal Procedure against Akbar, Khuda Bakhsh and Fazal Ilahi appellants and one Dost Muhammad, and only a few days before the occurrence Abdul Aziz deceased arid Fazal Dad and Muhammad Khan prosecu tion witnesses had beaten Akbar and Ghulam Abbas appellant. The prosecution case is that Abdul Aziz, Fazal Dad and Muhammad Khan were attacked by the appellants and Akbar when they were returning to their village from Khokhar Bala where they had gone to condole with the relatives of one Ayub who had died two days before. When they were at a distance of some 100 or 150 yards from the abadi of the village, they saw the seven accused assembled on the roof of Fateh Muhammad, a relation of theirs. Apprehending danger the deceased and his companions left the road and took an indirect route to their houses. The accused, however, descended from the roof and advanced towards them in order to attack them. The intended victims started to run, throwing stones at their pursurers. They were, however, soon overtaken. Fazal Ilahi and Ghulam Abbas had hatchets, Painda Khan a spear and the others sticks. Abdul Aziz was surrounded and beaten by Fazal Ilahi, Fateh Haider and Painda Khan; Fazal Dad by Dost Muhammad and Ghulam Abbas, and Muhammad Khan by Akbar and Ghulam Abbas. All these were badly injured and the assailants left' only after Abdul Aziz had been thoroughly thrashed. The wounded men were taken to the police station but Abdul Aziz died on the way. The medical evidence recorded at the trial ‑showed that Abdul Aziz had fourteen injuries, some of which were multiple injuries. Five of the injuries were on the head and the skull was fractured under one of these injuries and the left humerus under another. Only two injuries were caused with a Sharpe‑edged weapon like a spear. The peritoneum and the stomach contained blood and there was a tear fiver the right end of the diaphragmatic surface of the liver caused by blows on the back of the chest. The death was due to shock and haemorrhage caused by fracture of the skull and the left humerus, the fractures being sufficient in the ordinary‑ course of nature to cause death. The two incised wounds were caused by a spear while the five injuries on the head were caused by a stick; the blunt side of a hatchet or stones. Fazal Dad had eighteen injuries, all except one simple and caused by a blunt weapon. The grievous injury was a fracture of the left fibula. Muhammad Khan had five injuries, all being simple and caused with a blunt weapon. With the exception of Paindia Khan, the appellants also were all injured. Fateh Haider had an incised wound, one contused wound and an abrasion. The incised wound which was on the upper' part of' the left leg was fairly serious, being 3 " deep. A fourth injury was detected later and this was the fracture of the left tibia. Fazal Ilahi had only one contused wound ; Dost Muhammad two abrasions and one contusion ; Ghulam Abbas a slight swelling over the upper surface of the right foot and Khuda Bakhsh two scratches and one contusion. Ghulam Abbas was examined on 28th May, 1951, and his injury was described by the doctor to be pro bably 24 hours old. These injuries are clear proof that the injured appellants did take part in the transaction in which Abdul Aziz was killed. On a comparison of the injuries of both parties it will be quite clear that the damage to Abdul Aziz and his two com panions was, out of all proportion to the injuries suffered by the appellants' party and that Abdul Aziz was subjected to a savage and determined attack. The resultant injuries are quite inconsistent with the defence taken, namely, that Akbar was chased by Fateh Muhammad, Fazal Dad, Muhammad Khan and Abdul Aziz deceased, that he ran in the direction of his thrashing floor where Khuda Bakhsh, Fateh Haider and Dost Muhammad appellants were working, that there was stone throwing between the two parties, that Fateh Haider appellant was speared by Fazal Dad‑ P. W. and that there after there was general confusion caused by both parties throwing stones at each other. There are, however, two points in the medical evidence which require some explanation on the part of the prosecution. Fazal Ilahi and Ghulam Abbas are alleged to have been armed with hatchets but he injuries caused with a hatchet were found on anyone of the injured persons. The explanation given is that the hatchets were used from the blunt side, and such use of hatchets has now become quite a familiar phenomenon. One of the pro secution witnesses admits that anyone of them was armed with a sharp‑edged weapon but Fateh Haider appellant had an incised wound which could not have been caused by a stone but only by a sharp‑edged weapon, its depth being 1 ". It is, therefore, reasonable to presume that one or more members of the prosecution party were carrying sharp‑edged weapons with them. The eye‑witnesses of the occurrence are Fazal Dad (P. W. 3), Muhammad Khan (P. W. 4) and Mirza (P. W. 6). They are all related to the deceased Abdul Aziz but the first two were injured very badly and there can be no doubt about their having witnessed the occurrence. And they could cer tainly not be mistaken about their own assailants. Fazal Dad states that he was beaten by Dost Muhammad and Ghulam Abbas, and the number of injuries that he received shows almost conclusively that he must have been attacked by at least two men. In the same way Muhammad Khan who had several injuries mentions Akbar and Khuda Bakhsh as his attackers. With the exception of Painda Khan all the ap pellants had injuries, including Fazal Ilahi and Fateh Haider who are stated to have assaulted Abdul Aziz, the former with the blunt side of a hatchet and the latter with a stick. Painda Khan also is alleged to have struck Abdul Aziz deceased with a spear and there were two injuries on the deceased which, according to medical evidence, were caused with a spear. The other injuries to the deceased which numbered more than a dozen must accordingly be held by a process of elimination and otherwise to have been caused by Fazal Ilahi and Fateh Haider. It is, therefore, proved beyond any manner of doubt that all the appellants actively participated in the assault on the deceased and his two companions. To this extent the prosecution case admits of no doubt what soever. The defence is to be found in the statement of Akbar, the acquitted accused, which is also the defence of Khuda Bakhsh, Fateh Haider and Dost Muhammad. It is to the effect that several months before the occurrence Akbar had abducted Mst. Bhagbhari, a niece of Fateh Muhammad who is a Sub -Inspector of Police at Lahore. A day before the fight this Fateh Muhammad was sitting in the house of his son‑in‑law Abdullah when Akbar passed by and coughed tauntingly. This was taken ill by Abdullah and Fateh Muhammad. On the day of the occurrence Fateh Muhammad, Fazal Dad, Muhammad Khan and Abdul Aziz deceased were sitting in the house of Muhammad Khan, ‑ son‑in‑law of Fazal Dad. Akbar again passed by but this time he was challenged. He ran in the direc tion of his thrashing floor and raised an alarm which brought Khuda Bakhsh, Fateh Haider and Dost Muhammad from the thrashing floor and then there was mutual stone throwing between the parties. Afterwards, some more villagers collected and they also joined in stone‑throwing. No evidence was produced in support of this defence which is quite incompatible with the actual result of the fight, if fight there was any. There is no explanation in this version of the numerous injuries which were caused with weapons other than stones to the three injured persons including Abdul Aziz deceased. It is impos sible to imagine that so many injuries could have been caused to, the deceased and his two companions merely by stone throwing. The extensive bruises on the back of the chest, on buttocks and several other parts of the body of Abdul Aziz and contusions on Fazal Dad, some of which were from 3" to 10" in length, could not possibly have been caused by stones whatever their dimensions. The theory of self‑defence or of sudden indiscriminate stone‑throwing propounded by the defence must, therefore, be rejected. The prosecution case is that the appellants and Akbar were lying in wait for Abdul Aziz deceased and Fazal Dad and Muhammad Khan. This allegation is based on the circumstance that when Abdul Aziz and his two companions neared the house of Fateh Muhammad, they saw the appellants assembled on the roof of that house. While it seems to be perfectly clear that the appellants were at the house of Fateh Muhammad by design, I think that in the circumstances of the case it will be safer not to accept the theory that their intention in collecting at the house of Fateh Muhammad was to murder Abdul Aziz:' There can, however, be no doubt that they were with a view to attacking Abdul. Aziz and his companions. They were, therefore, members of an unlawful assembly and must have known that the attack was bound to result in grievous hurt to one or more of their victims. In this view of the matter the conviction of those who did not take part in the assault on Abdul Aziz should have been under section 325 read with section 149 and not under section 302, P. P. C. Painda Khan who was one of the persons who attacked Abdul Aziz caused only two injuries with a spear and in his case it seems difficult to apply section 34, P. P. C. to make him liable for murder. The case of Fazal Ilahi and Fateh Haider, however, stands on different footing. They subjected Abdul Aziz to a prolonged attack causing him numerous injuries including fracture of the skull and left humerus, a tear of the diaphragmatic surface of the liver, and congestion of both lungs. Some of the bruises noticed by the doctor were the result of multiple injuries and the deceased seems to have been mercilessly thrashed while he lay on the ground. During the hearing of the appeal, one of the points taken by Mr. Saleem was that section 34 was not applicable so as to make Fazal Itahi and Fateh Haider punishable for murder. This contention was based on the evidence of the doctor who had stated that the death of Abdul Aziz was due to shock and haemorrhage caused by the fracture of the skull and the humerus. Mr. Muhammad Sharif contended that on the medical evidence the death must be held to have been cumu lative result of all the injuries caused to the deceased. Since the medical evidence, as it stood, was clear on the point, we did not accept this contention on behalf of the Crown. Mr. Muhammad Sharif then made a request that we should recall the doctor and examine him on this part of the case. By our order, dated the 25th April, we held that the Crown itself was not entitled to recall the witness but that it was a fit case in which on the omission in the medical evidence being pointed out by the learned counsel for the Crown we should exercise our powers under sections 540, 428 and 375 of the Code of Criminal Procedure. We accordingly recalled the doctor and his evidence now is that the shock was accelerated and aggravated by the other injuries on the deceased, that the tear in the liver even in the absence of the two fractures, would in all probability have caused death and that the blood in the pleural cavity had come from the lungs and in the peritoneal cavity from the liver. Mr. Saleem complains that the defence had been conducted on the assumption that the injuries other than the two fractures had nothing to do with the death and that since now according to the medical evidence the other in juries also are alleged to have contributed to the death, and this may affect the Court's opinion regarding the applicability of section 34 to the case of the two appellants, he is entitled to a retrial. Though ha has not expressly so stated, it is obvious that his claim to a retrial is based on the Federal Court decision in the case `of Ali and Bashir v. The Crown in which the right to contradict the evidence recorded in appeal claimed by him was rejected by the High Court but succeeded before the Federal Court. As the claim for a retrial includes in it the right to contradict and both depend on the circumstances in, and the purpose for which evidence is taken in appeal, it is necessary to examine the whole position with special reference to the facts of and the principles deducible from the Federal Court judgment in Ali and Bashir v. Crown 1952 P L D F. C. 71 in order to decide on Mr. Saleem's claim for a retrial. In the case mentioned one Amir Ali was alleged to have boon murdered by some persons at a distance of about half a mile from the town of Nankana. According to the prosecution, Amir Ali had come to Nankana from his village, Kot Amir Ali, which was at a distance of about two miles, in the morning, accompanied by Muhammad Sadiq, Saidu Naul, Nawab and Ibrahim. They all stayed at the Mandi anal after attending to some business left for their village at 3‑30 p.m. One Saidu Kharal also joined them when they came out of the Mandi. They had hardly gone half a mile from the town when Amir Ali was shot down by one of the two horsemen who had some accomplices also with them. At the time of the incident Amir Ali and Saidu Naul were riding while the other two were coming a little behind. The murder was reported by Muham mad Sadiq at 5 o'clock at the police station which was at a distance of three‑quarters of a mile from the spot. Three of the eye‑witnesses to the murder of Amir Ali were Muhammad Sadiq, Saidu Naul and Nawab. Their evidence related to their arrival at the Mandi with Amir Ali, to Amir Ali's visit to the Tahsil in their company and thereafter to the house of the Tehsildar in the morning, their departure from the Mandi at 3‑30 p.m. and the murder at 4‑30 p.m. One of the witnesses produced by the prosecution at the trial was Ch Muhammad Ashraf, Tehsildar, who in his examination‑in‑chief stated that Amir Ali had come alone to his house at 9 or 10 o'clock in the morning to present an application and he heard of Amir Ali's murder in the evening. In cross‑examination he was asked whether Amir Ali had come a second time to him in the afternoon and he stated that he had done so at 4 or 5 p.m. and that he was then alone. The general account of other movement given by the eye‑witnesses was that they left the Mandi in the company of Amir Ali at 3‑30 p.m. and that Amir Ali was attacked and murdered when they had gone about half a mile from the town. They made no reference to Amir Ali's second visit to the Tehsildar in the afternoon. In the arguments following the trial the defence said nothing about this alleged discrepancy between the statements of the eye‑witnesses and the statement of the Tehsildar, nor did the Sessions judge say anything about it. The trial ended in the conviction of two of the accused persons who were both sentenced to death. When the case was argued before the High Court in appeal, Mr. Saleem, who represented the appellants, took up the point that the evidence of the eye‑witnesses, who had stated that they had accompanied Amir Ali from their village in the morning, that they had left the Mandi with him in the afternoon and that they were with him at the time of his murder, was con tradicted by the Tehsildar who had stated that Amir Ali had come to him alone between 4 and 5 p .m. The case was argued by Mr. Saleem at length on the 1st and 2nd November before a Bench of which Mr. Justice Jan who wrote the judgment and I were members. Mr. Saleem emphasized the alleged discre pancy between the statement of the Tehsildar and that of the eye‑witnesses but since even in the rule relating to self‑con tradiction there is a fundamental distinction between a mere omission and a contradiction, we were inclined to take the view that because the eye‑witnesses had not been specifically asked whether Amir Ali had gone to the Tehsildar's house between 4 and 5 p.m. or whether he had been out of their sight even for a few minutes the Tehsildars's evidence regarding Amir Ali's second visit to him could not be considered to be a contradiction of the eye‑witnesses' evidence that they had left the Mandi at 3‑30 p.m. with Amir Ah and were near him whet, he was killed. Mr. Saleem then suggested that we should recall Muhammad Sadiq, saidu Naul, Nawab and Muhammad Ashraf Tehsildar and question them more specifically on the point. After hearing full arguments in the case for two days we took time to consider our judgment, and on 13th November 1950, referring to Mr. Saleem's argument about the alleged contra diction, we ordered these four witnesses, along with Dil Muhammad, at whose shop in the Mandi Amir Ali and his companions had stayed during the day, and Ch. Miran Bakhsh, the Investigating Officer, to be recalled. Mr. Saleem had not included Ch. Miran Bakhsh in his request for a recall but the reason for our recalling him was obvious and was directly connected with the object with which the eye‑witnesses were summoned. After a two‑day argument the appeal had been narrowed down to the short issue whether the four eye witnesses were the deceased when he was killed or whether in the state of evidence on record we could accept as possible Mr. Saleem's contention that nobody saw the murder which had been committed on the outskirts of the town of Nankana and that the police coming to know of the murder and without entering any report about it either in the register of first information reports or in the daily diary came to the scene, ascertained the identity of the murdered man, sent for three persons from one village two miles away and the fourth person from another village four miles away, and in conspiracy with them invented a highly involved story connecting four ascertained and two unascertained persons with the murder, and at 11 p.m. recorded a first information report incorpo rating this story and showed it in the register of first information reports as having been received from Muhammad Sadiq at 5 p.m. Therefore, on the issue raised by Mr. Saleem that the eye‑witnesses were not with Amir Ali deceased when he went to see the Tehsildar between 4 and 5 p.m., or when he was killed at 4‑30 p.m., it became necessary to examine Ch. Miran Bakhsh with reference to the entries in his diary relating to the presence of the eye‑witnesses on the scene immediately after the murder. We considered this recall to be expedient in the interests of justice with a view to giving the defence an opportunity to show that the omission referred to above, in the circum stances, amounted to a contradiction. That order was made by us at the suggestion of the learned counsel for the appellants and solely in the interests of the persons convicted because on the evidence as it stood it was possible for us to accept Mr. Saleem's contention that the omission in the eye‑witnesses' evidence to Amir Ali's second visit to the Tehsildar amounted to a contradiction of their evidence by the Tehsildar. . In pur suance of our order, the witnesses appeared before us on 24th November, 1950. We re‑examined Ch. Muhammad Ashraf, Tehsildar, and Muhammad Sadiq. It became clear to us from the re‑examination. of Muhammad Sadiq that the Tehsildar's house was on the way from the Mandi to the path which the; deceased and his companions intended to take for Kot Amir Ali and that the witness was admitting that he and Nawab had lost sight of Amir Ali for a few minutes when he went to see the Tehsildar at his house, the witness and two of his companions having stopped for a drink of water at the water post in a flour‑mile We, therefore, declined to re‑examine the other witnesses except Ch. Miran Bakhsh stating in our order of 28th November 1950 that the point that needed explanation, namely, whether the omission in the eye witnesses' account of Amir Ali's second visit to the Tehsildar, on which full arguments had already been heard, was a contradiction, had been clarified by the further examination of Muhammad Sadiq. But since the witnesses had been recalled at the request of Mr. Saleem, we made a note that he was at liberty to cross‑examine them on the point to explain which they had been recalled. Mr. Saleem examined Nawab but as he gave the same explanation as Muhammad Sadiq had given, Mr. Saleem declined to cross‑examine Dil Muhammad and Saidu Naul and claimed an opportunity to contradict the evidence of Nawab and Muhammad Sadiq that on the day in: question they had stopped‑at the flour‑mill: for a few minutes for a drink of water. We declined that opportunity to him saying that there was no occasion for a rebuttal. In the result we dismissed the appeal and confirmed the death sentences. In the judgment delivered by the Federal Court an assump tion is repeated several times that the case for the prosecution was that the eye‑witnesses had never let the deceased go out of their sight from the time that they had started from Kot Amir Ali till the time when he was killed. This will be apparent from the following passages in that judgment‑ "The basis of the case for the prosecution is that three of these eye‑witnesses never let the accused out of their sight from the time that they started from Kot Amir Ali till the time when he was killed." Apparently the word "accused" here is a mistake for the word "deceased." "As the Tehsildar's statement completely falsified the claim of Muhammad Sadiq and Saidu Naul, that they had never let the deceased out of their sight on the day in question, it was open to the prosecution to elucidate this point from the testimony of the remaining eye‑witnesses." "The prosecution, after the statement of the Tehsildar, could no longer claim that Muhammad Sadiq, Saidu Naul and Nawab never let the deceased out of their sight." "Their story was that the party had left in a group from Dil Muhammad's shop at 3‑30 p.m. and had proceeded in a group continuously up to the scene of the occurrence, without having either jointly or separately engaged in any other activity except walking or riding. together at a slow pace." If the position had been as set out above by the Federal Court, and we have taken the evidence of Muhammad Sadiq, Saidu Naul and Nawab to mean that they had not lost sigh of the deceased even for a single minute from the time of their departure from Kot Amir Ali up to the time he was killed, we should not at all have ordered a recall because in that case we should have taken the Tehsildar's evidence as being in conflict with the evidence of the eye‑witnesses and it would then have been a question for us to determine which of these. two conflicting statements we were to accept. It was precisely because the witnesses had said nothing of the kind and the evidence, on the contrary, was that even in the morning Amir Ali was alone with the Tehsildar for some time that we decided to recall them at the suggestion of Mr. Saleem in order to discover whether their omission to refer to Amir Ali's second visit to the Tehsildar was or was not consistent with the Tehsildar's evidence. The action was, therefore, taken at the suggestion of Mr. Saleem and in the interests of the convicted persons though we did not say so expressly in our order, the reason for it being that the witnesses could be recalled in appeal not because Mr. Saleem asked for their recall but because we considered such recall necessary in the interests of justice. That the recall was suggested by Mr. Saleem and that it was in the interests of the convicted persons appears further from the fact that though after the examination of Ch. Muhammad Ashraf and Muhammad Sadiq we did not consider the re‑examination of the other witnesses necessary, Mr. Saleem did cross‑examine Nawab at length. And when the petition for special leave to appeal, which was not signed by Mr. Saleem, came up for hearing, Mr. Saleem does not appear to have made any grievance of this recall and the special leave to appeal did not purport to have been granted on that ground. Commenting upon this aspect of the case, the Federal Court took this order of recall as an invitation by the High Court for perjured evidence and as an attempt to clear glaring contradiction between the statements of the eye‑witnesses and the statement of the Tehsildar. How a step taken at the request of the defence counsel and in the interests of the convicted persons with the sole purpose of ascertaining whether an argument which otherwise was not available to them could be put forward by their counsel on their behalf amounted to an invitation by High Court for perjured evidence or to an attempt to fill up the‑gaps in the prosecution case is, I say with the greatest respect, beyond my comprehension. After Muhammad Sadiq was re‑examined, the High Court on 20th November recorded the following order :‑ "As the point needed explanation has been clarified by the further examination of Muhammad Sadiq,, we .do not wish to take any additional evidence except that of Ch. Miran Bakhsh. Mr. Saleem, however, is at liberty to cross- examine the witnesses on the point to explain which they were called." In pursuance of the aforesaid order Mr. Saleem called Nawab and cross‑examined him at length, but finding himself unsuc cessful in the attempt, expressed his desire not to cross‑examine Dil Muhammad and Saidu Naul, and claimed the right of being given an opportunity to contradict the evidence of Nawab and Muhammad Sadiq that on the day in question they went to the flour‑mill for a drink of‑water. We rejected his claim saying there was no occasion for rebuttal. As to this the learned Chief Justice of the Federal Court, after observing that the High Court had refused a fundamental right to the accused, proceeded to say :‑ "In my opinion the High Court did not exercise its dis cretion properly in refusing to grant an opportunity to the defence to rebut the evidence of Nawab, Muhammad Sadiq and Saidu Naul. This constituted a violation of the principles of natural justice and seriously prejudiced the case of the appellants." Here again, I speak with profound respect, the facts were entitled different. Mr. Saleem never asked for an opportunity to rebut the evidence of Saidu Naul because he was not at all re‑examined by us and in his evidence at the trial fie had made no reference to Muhammad Sadiq and Nawab having stayed at the flour‑mill for a drink of water. As regards Nawab, the High Court had not re‑examined him at all and had expressly stated in the order that his re‑examination was not necessary. It was Mr. Saleem, who called him and examined him at length. I know of no rule where an accused person may himself recall a witness and examine him in appeal and then claim as of right an opportunity to rebut his evidence. If any such claim were to be recognised, as founded on any rule of law or principle of natural justice, once an accused person succeeded in having a witness recalled, he could prolong indefinitely the proceedings by calling witnesses ad‑infinitum, each to rebut the other. And as regards Muhammad Sadiq, the position was that he had been recalled by the High Court, though at the instance of the learned counsel for the defence, and was examined by the Court and cross‑examined by the defence. An accused, person is not as of right entitled to rebut all evidence that may, be taken by the appellate Court in exercise of its powers under sections 428, 375 and 540 of the Code of Criminal Procedure. The fact to which the re‑examination of Muhammad Sadiq was directed was not in itself an incriminating fact but merely introductory to his evidence about the main fact and the defence had had full opportunity at the trial to show that he was not in the company of the deceased on the day of the murder. If evidence is taken by an appellate Court as to a new relevant fact and the proof of that fact enhances the incriminating evidence against an accused person, it is only fair that he should have a right to rebut the evidence so taken. In such circumstances he has as clear a right to rebut the addi tional evidence as the right to produce defence evidence in contradiction of the prosecution evidence. But where a pro secution witness is recalled by the appellate Court only to have a point in his evidence clarified, the position is governed by different principles and neither the accused nor the prosecu tion can as of right claim rebuttal, though even here an appeal to the Court's power to call a witness in the interest of justice may sometimes succeed. In the case I have been referring to, for instance, if we had allowed the defence to rebut what Muhammad Sadiq had stated as a Court witness, a similar right to the prosecution to rebut the evidence called for the defence had to be conceded, with the result that we would have found ourselves hopelessly involved in an inquiry into a subordinate fact, not relevant per se, namely, whether there was a water- post in the flour‑mill, who were the persons present at the flour‑mill, how they happened to be there and what opportu nities they had of observing those who came for a drink of water at the water‑post. From what I have said above it will be apparent that the implications of the Federal Court judgment are far‑reaching and that the rule laid down there may lead to results which were never intended by their Lordships. The principle laid down' therein must therefore be confined to the assumption on which that judgment was rendered, and that principle is (1) that it is an improper exercise of power on the part of an appellate Court to recall partisan evidence merely to have gaps in the prosecution case filled up or discrepancies in the prosecution evidence removed ; and (2) that where fresh evidence is taken in appeal by the Court suo motu or at the instance of the prosecution, not at the request of the defence counsel, the accused is entitled to rebut that evidence if it relates to a new relevant fact. But as to (1) above, it must be borne in mind that the mere fact that a witness is a partisan is no ground for not recalling him if the appellate Court considers such recall in the interests of justice. If, for instance an important witness, thoroughly biased against the accused, has not been questioned in the trial Court about a statement made in the course of investigation, which statement is in favour of the accused, the appellate Court will be acting rightly and justly in recalling him to enable the accused person to rely on a self‑contradiction. Similarly, it often happens that owing to the negligence of the 'prosecution counsel a witness is not questioned in the trial Court on a material point. In such a case the appellate Court will be within its rights to recall such witness to avoid a possible miscarriage of justice. In the case before us, for instance, the prosecution had the opportunity to re‑examine the doctor on the point on which we have examined him. If the omission had been allowed to stand, the consequence might have been that neither of the appellants could have been convicted of murder of which we are finding them guilty and the result must have been a miscarriage of justice. Besides, it must be remembered that there is a funda mental distinction between filling up gaps in the prosecution evidence and removing discrepancies in such evidence. The former implies that evidence was lacking as to a fact which was a necessary constituent of the offence charged and the appellate Court filled up the gap by taking additional evidence whereas the latter means that the appellate Court resolved an apparent conflict in the evidence not in the interests of justice, but merely to be able to maintain the conviction. The powers to be exercised by an appellate Court under section 428 are subject to two overriding considerations :‑ (1) That the additional evidence is considered to be necessary by the appellate Court in the interests of justice ; and (2) that the accused is not denied his right to a fair trial. While exercising these powers Courts of Criminal Appeal in this country should never overlook the basic position that the duty of a Criminal Court is fundamentally different from that of a Court of Civil Appeal. While the latter is a tribunal inter parties the Court of Criminal Appeal always has a third party before it namely, society, and its discretionary powers are not controlled by rules of estoppel, waiver, etc. Therefore negli gence, laches, even admissions by counsel are not a bar to the Court's exercising the power to take further evidence, provided the power is intended to be exercised in the interests of justice and the accused is not prejudiced in his defence on the merits. So far as the right to contradict is concerned, the govern ing principle is that if the evidence taken by the appellate Court relates to a new relevant fact, which was not before the trial Court, both parties, namely, the prosecution and the accused, are entitled to lead evidence on that point. But if the evidence does not relate, to use an easily understandable but somewhat uncommon expression, to a substantively relevant fact and merely affects the credibility of a witness, the position is different and is governed by entirely different rules. In the light of these principles, I now proceed to examine Mr. Saleem's claim for a retrial in the present case. I have already indicated that the right to a retrial includes in it the right to contradict the additional evidence. If the ‑contention put forward on behalf of the two appellants were to be accepted the accused will not only be entitled to contradict the addi tional evidence but a retrial would be a necessary result when ever the appellate Court acted under section 428 or the Code of Criminal Procedure. This has never been held before and as far as I know is not the law. I must say that my opinion about the application of sec tion 34 has been strengthened by the medical evidence recorded by us in appeal ; but that fact alone does not in the circum stances of this case entitle the appellants affected by the additional evidence to claim a retrial. Fazal Ilahi's de fence is that he was not at all present at the transaction which resulted in Abdul Aziz's death, while Fateh Haider does not admit the truth of the prosecution case and sets up a case which is not at all affected one way or the other by the additional evidence recorded by us. I can not therefore accept Mr. Saleem s contention that the omission in the medical evidence which has now been supplied has in any way prejudiced these two appellants or that their defence would have been different if the evidence recorded by us had been taken at the trial before the eye‑witnesses were examined. But both on general principle and the authority of Federal Court judgment as explained above, Mr. Saleem was entitled to rebut the medical evidence that we had taken in ‑appeal but this right he expressly refused to avail himself of. On the evidence recorded in appeal there can be no diffi culty in the application of section 34 to Fazal Ilahi and Fateh Haider in order to make them liable for the murder of Abdul Aziz. According to the medical evidence the deceased had five contused wounds on the head under one of which the skull had been fractured. The humerus was found fractured under a bruise 4 inches x 4 inches on the left upper arm. The entire back of chest on both sides had a bruise extending over an area of 18 inches x 12 inches, and this bruise was the result of multiple injuries which had also caused a tear in the liver and congestion of the lungs. There was blood in the peritoneum which had come from the liver and in the pleural cavity which had come from the lungs. The total number of injuries was fourteen, but several of the bruises which described by the doctor ac single injuries, were the result of multiple blows. The death `vas due to shock and haemorrhage caused by the frac ture of the skull and the left humerus but the chock was accelerated and aggravated by the other injuries. Even the tear of the liver would, in all probability, have caused death had it not occurred earlier by shock. There can, therefore, be no doubt that if all these injuries had been caused by a single man, he would have been guilty of murder. The question is whether these injuries, with the exception of two incised wounds, having been caused by Fazal Ilahi and Fateh Haidar appellants, they can both be convicted of murder. If all this damage can be said to have been caused in furtherance of the common intention of the two appellants, section 34 would immediately be attracted to make them both liable for the total, damage and thus for murder. The appellants acted in concert and were present with the others near the place of murder by design. They subjected tile deceased to a concentrated, merciless and long‑continued assault and the result was death. There is nothing to show that any of the injuries found on the body of the deceased were the result of an unpremediated act done by one of the appellants and not intended by other. The crimi nal act in this case was the entire beating administered to the deceased in furtherance of the common intention of both the appellants and this unity of criminal behaviour resulted in death, for which if it had been caused by only one of the appel lants, he would have been liable for murder. It may be that when death has been caused by ‑a single blow out of large number of blow given to the deceased, the Court may, in the circumstances of a particular case, hold the fatal blow to be an act premediated by all the assailants but that is not the position here. I would, therefore, maintain the conviction of Fazal Ilahi and Fateh Haider under section 302 of the Penal Code, but since killing might not have been their original or direct inten tion, I would alter the sentence of death into that of transpor tation for life. The remaining appellant's conviction is altered to one, under section 325 and the sentence reduced to seven years' rigorous imprisonment. The sentence under section 325 for the injuries to Fazal Dad and for rioting are maintained but as directed by the trial Judge shall run concurrently with the main sentence. KAYANI, J.‑I agree, generally, and to the order proposed to be made. Since Fazal Ilahi and Fateh Haider were causing injuries N the deceased simultaneously, each of them must be held to have also intended the injuries which were being caused by the other. As regards the taking of additional evidence, I think we have power to take it on any point bearing upon the guilt or' innocence of the accused, that is to say, it may bear on his guilt or it may bear on his innocence. For the interests of justice are not always identical with the interests of the accused, and if in the present case we were told that we filled gaps for the prosecution, we should accept the accusa tion only if we thought that our function was not to do justice to the accused and to the person whom he is alleged to have killed, but to find a pretext for acquitting the accused. In that case, we would be doing in justice to the deceased person and the society for the reason that the society was inefficiently represented at the time of the trial. For the same reason, I amp not impressed by the argument that questions put by the Court of Appeal should not be in the nature of cross‑examination. If the power to call in evidence lies with the Court, and the Court exercises it, I do not understand why it should some times have to say to the prosecutor; "I am not going to cross -examine the witness lest I should betray an anxiety to bring out the truth," if indeed the object of cross‑examination is to bring out the truth. I think it is the moral fear of confessing to others our anxiety to punish the guilty that has brought us to this deplor able state‑to identify the interests of justice in all cases with the interests of the accused. A. H. Order accordingly.