P L D 1958 (W (PLP)

(15) Multiple contusion marks in an area of 7" x 7" over left buttock. (16) Back part of left leg is bluish brown in colour in an area of 9" x 5". (17) Two contused wounds 1 " x " x " and " x " x " over outer surface left leg lower most part with the under lying left fibula fractured into many parts. (18) One punctured wound " x " x " over hind part or right leg middle 1/3". (19) One punctured wound " x " x 1" over inner surface right leg lowermost part the underlying right tibia and fibula were fractured. (20) One contusion mark 1" x " over back part of right leg middle 1/3". On dissection, the doctor found that both the parietals were fractured into many pieces and the frontal bone was also fractured. Left fourth to seventh ribs were fractured at the back. Stomach contained one pound of semisolid food matter. In the opinion of the doctor, death was due to shock and haemorrhage leading to compression of brain due to the frac tures of the skull caused by injuries Nos. 2 to 4 inflicted by blunt weapons. These injuries were fatal individually and collectively and were sufficient, in the ordinary course of nature, to cause death. Injuries Nos. 18 and 9 were caused by sharp‑pointed weapons like balams and the rest were caused with blunt weapons.

6. On the same day at 8 p.m. the doctor performed the post‑mortem examination on the dead body of Nadir and found the following injuries on the body:‑ (1) One contusion mark 4 " x " in front of right chest upper " starting from right nipple and going upward and to the left. (2) One contusion mark 4" x 1 " in front of abdomen left half starting 3 " below left nipple and going downward and to the right to a point 3" above umbilicus. (3) Five abrasions each about 1/3" x " above right shoulder joint near each other. (4) Five contusion marks vary from 6" to 3" in length and " to " in breadth behind right chest lower half. (5) Two abrasions 1" x " and 1 " x " over right buttock upper and inner quadrant 3" apart. (6) One contusion mark 2 " x 1 " over outer surface right elbow. (7) One abrasion " x " over outer surface right elbow distal to injury No. 6. (8) One punctured wound " x " x 1 " over dorsal surface right forearm distal to elbow with fracture of under lying right ulna upper . (9) One contusion mark 2" x 1" over dorsal surface right forearm middle 1/3 with underlying radius fractured. (10) Two contusion marks each 2" x " over dorsal surface right hand with right second metacarpal fractured. (11) Two punctured wounds 1/3" x " x 1" and " x " x " over ventral surface left arm lower with fracture of under lying left humerus lower . (12) One contusion mark 3" x " over inner surface left leg middle 1/3 traverse in direction. (13) One punctured wound " x 1/8" x 1" over inner surface left leg 1 " above left ankle with underlying left tibia and fibula fractured over that lower . (14) Four contusion marks each about 1 " x " in front of right thigh middle 1/3. (15) An abrasion 1" x " in front of right of thigh lower 1/3. (16) Three abrasions each about " x " in front of right knee. (17) Three punctured wounds 1" x ' x " x " x " x " and " x " x " in front right leg middle 1/3" x " apart. On dissection, the doctor found the depressed fracture of right parietal bone and the opening up of the left frontal parietal suture. Stomach contained one ounce of pinkish liquid. Injuries described under Nos. 8, 11, 13 and 17 were caused with sharp‑pointed weapons and the rest by blunt weapons. Injuries Nos. 8, 9, 10, 11 and 13 were grievous. The doctor expressed the opinion that a blow had been given on the head with a blunt weapon which had resulted in the fracture of the skull but that blow had not left any visible mark on the outside of the scalp. In the opinion of the doctor, the cause of death was shock and haemorrhage leading to the compression of brain as a result of the fracture of the skull caused by blunt weapon.

7. On the 15th of April 1956 at 6‑15 p.m. Doctor Muhammad Ali (P. W. 2) examined Jalal (P. W. 10) and he found the following injuries on his person:‑ (1) Contused wound in the centre of head upper part 3 " x " x " in forward direction. (2) Swelling 2" x 2" on the right side of face just below the level of ear. (3) An abrasion 1 " x 1/6" on the left cheek. (4) Contused wound " x " x 1/6" on the outer side of right arm just above the level of elbow joint. (5) Contused wound " x " x 1/8" on the outer side of right forearm. (6) A contusion 3" x " on the outer side of right forearm just above the wrist joint. Ulna was fractured at the lower end. (7) Contusion 12" x " on the back of right shoulder in downward direction. (8) Contusion 6 " x " across the back bone at the level of lower ribs. (9) Contusion 6" x 1" on the back of left shoulder. (10) Contusion 7" x 1" from the left to the right shoulder in downward and to the right, (11) Contusion 9" x 1' on the back of left shoulder in downward and outward direction. (12) Contusion 8' x 1" close and parallel to injury No. 11 and on its outer side. (13) Contusion 15' x 7' on the back of both the shoulders and in the middle area across the back bone. (14) Blister 2' x 1" on the front of left shoulder joint. (15) Contusion 4' x 1' on the outer side of left arm in downward and outward direction in the middle part. (16) Contusion 5' x 1' on the left side of chest 2" above the nipple in downward and outward direction. (17) An incised wound 3" x 1/3" x " on the back of left forearm in downward direction on the middle part. (18) Contused wound " x " x 1/8" on the inner side of left leg middle part. (19) Contused wound " x 1/6" x 1/6" on the front of right leg 6" below the knee joint. (20) Contusion 3" x " on the outer side of left thigh in its middle in downward direction. Injury No. 6 was grievous Injury No. 17 was caused with a sharp‑edged weapon and the others were caused with blunt weapons. He also expressed the opinion that injury No. 17 could be caused with a sharp‑edged pointed weapon like a balam if it had been used like a dang.

8. At the trial twelve witnesses were examined in support of the prosecution case. All the accused denied the commis sion of the offences with which they were charged and pleaded that they had been falsely implicated on account of previous enmity. They, however, did not call any witness in their defence.

9. The learned Sessions judge, relying upon the evidence of the three eye‑witnesses, convicted and sentenced the six appellants as stated above. He, however, acquitted the remaining nine accused mainly because, Sub‑Inspector Mehr Allah Bakhsh (P. W. 12) had stated in reply to a Court ques tion, that he could not swear about the participation of these nine accused in the occurrence.

10. Mr. Saleem, who argued the appeal on behalf of the convict appellants, and also the case on behalf of the four respondents to whom notice had been issued to show cause why they should not be convicted and sentenced, raised a preliminary objection that the trial was vitiated, because the Additional Public Prosecutor who was in charge of the case, had allowed the Investigating Officer to perform certain duties, which under the law, the Public Prosecutor alone could have legally performed. He invited our attention to the following passage in the statement of Sub‑Inspector Mehr Allah Bakhsh (P. W. 12):‑ "I give up other witnesses. I tender in evidence all documents mentioned above. I tender in evidence the statements of 15 accused of the Committing Court . . . . . . I finally close the prosecution case." He contended that section 270 of the Code of Criminal Proce dure clearly provides that in every trial before a Court of Session the prosecution shall be conducted by a Public Prose cutor, and section 287, Criminal P. C. makes it obligatory on the Prosecutor to tender in evidence the statement of the accused made before the Committing Magistrate and duly recorded by him. In the present case, however, the Investi gating Officer was allowed to play the role of the Public Prosecutor. It was he who gave up certain witnesses and closed the case for the prosecution and in fact he tendered in evidence the statements of the accused made before the Com mitting Magistrate. He accordingly maintained that as this was done in direct contravention of the mandatory provisions of law, the trial was illegal and stood vitiated. The point raised is one which does not appear to have been discussed before in any reported case and calls for some comment. We are not sure whether the Public Prosecutor was really to blame. In almost all the cases tried by this learned Sessions judge, which we had occasion to deal with, we found that this practice was being invariably followed. It may be that all the Public Prosecutors while appearing in his Court begin to follow this objectionable practice, but we are inclined to think that they are influenced by the opinion of the learned Sessions judge in this matter, because as soon as they appear before some other Sessions judge, they give up this practice altogether. It is to be regretted that the learned Sessions judge permits the Investigating Officer to make such statements which under the law he is not permitted to make.

11. However, the question is whether this amounts to a mere irregularity which is curable, or does it amount to an ille gality, which should be considered to have occasioned a failure of justice. In support of his contention that the trial stood vitiated, learned counsel for the appellants relied on Adan Haji clama and others v. The King (1948 A C 225; P L D 1947 P C 381), where their Lordships of the Privy Council set aside the convictions and sentences and acquitted the appellants on the ground that in the absence of the Public Prosecutor, the trial judge himself had undertaken the duties of the prosecution and had examined the prosecution witnesses. That case, however, is distinguishable in many respects and is not helpful in deciding the precise point involved in the present case. It is clear from the record that the case was in fact conducted by the Additional Public Prose cutor and he had remained in charge of the case throughout. As such section 270 of the Code of Criminal Procedure was not contravened at all. As regards the giving up of certain prose cution witnesses, it appears that after the statement of P.W. 12 the Additional Public Prosecutor had made a statement that he finally closed the prosecution case, which meant that he did not wish to examine the remaining prosecution witnesses. Although the Investigating Officer should not have been allowed to make a statement as regards the giving up of some of the prosecution witnesses, yet we are of the opinion .that it amounted to a mere irregularity which did not occasion any failure of justice. Similarly the Investigating Officer was not authorised by law to tender in evidence the statements of the accused made before the Committing Magistrate, and they should have been tendered by the Public Prosecutor as required by section 287 of the Code of Criminal Procedure, but whoever had tendered them in evidence, the fact remains that they were transferred to the Sessions file and were admitted in evidence at the trial. After carefully considering the argument of the learned counsel for the appellants we have reached the conclusion that the procedure adopted in this connection, was not warranted by law, but in our opinion it did not occasion any failure of justice f and was at the most a mere irregularity which was curable under section 537 of the Code of Criminal Procedure. It was held by their Lordships of the Federal Court of Pakistan in Qadardad v. Sultan Bibi and the Crown (P L D1956 F C 129) that "illegalities of a petty nature, which do not go to the root of the trial are treated as mere irregularities and do not vitiate the trial or render it ineffective." We accordingly hold that the trial was not vitiated.

12. Turning now to the merits of the case, Owe find that the case for the prosecution is founded on the direct evidence of the commission of the offences, furnished by Niaz Ali (P. W. 9), Jalal (P. W. 10) and Rehmat (P. W. 11). No incriminating article connected with the crime was recovered from any of the accused, and there is no other evidence to connect the accused with the offences. The fate of the six appellants and the four respondents, therefore, hangs in the balance on the oral testimony of these three eye‑witnesses which requires careful scrutiny. Learned counsel for the appellants addressed us elaborate arguments and subjected the evidence of these witnesses to a severe criticism on several grounds which we propose to examine seriatim.

13. It was contended that these three witnesses are related inter se, and are also close relations of the three deceased. This is so. Niaz Ali and Jalal P. Ws. are uterine brothers. Mst. Rani widow of Ali deceased is the sister of Niaz Ali P. W. Rehmat P. W. is the husband of the sister of Ali deceased, and is also a first cousin of the mother of Ali deceased, Mst. Sardar Begum widow of Nadir deceased is a first cousin of Niaz Ali (P. W. 9) and is the daughter of a sister of Jalal (P. VG. 10). Nadir and Haider deceased were first cousins and Ali deceased was the son of the maternal uncle of Nadir deceased. Jalal P. W. is a maternal uncle of Haider deceased. The other three eye‑witnesses, who were given up at the trial, were also closely related to the deceased. In view of this relationship it was urged that the evidence was interested and as such no reliance should be placed on it. It has been repeatedly held that in criminal cases mere rela tionship of the witnesses with the deceased is no ground for e rejecting their testimony, unless the witnesses have a cause to falsely implicate the accused. Such a relationship is often a sure guarantee of the truth of the evidence of such witnesses. Close relations of the deceased are not likely to substitute innocent persons for the real culprits. It was conceded before us that there was no previous enmity between the parties except the one when at the instance of Raja accused. Haider and Ali deceased and Wali brother of Ali deceased were prose cuted under section 325, P. P. C., but were acquitted. None of the other accused had appeared as a witness for the prose cution in that case. In the circumstances of the case we are not prepared to accept the suggestion that the prosecution witnesses could have falsely implicated the sixteen accused, thirteen out of whom are residents of the neighbouring villages. They could have had some animus against Raja accused but it is difficult to believe that in his absence, the remaining accused, who had no motive of their own, could have joined in the attack. We, therefore, see no reason to treat the evidence of the eye‑witnesses as tainted evidence.

14. It was next urged that there was no guarantee that these three witnesses had seen the occurrence. It was contended that only five sickles were recovered from the field of Jalal which suggests that only five persons had been working there. But the case for the prosecution is that nine persons had gone to the field of Jalal for the purpose of harvesting the wheat crop, and five of them had commenced cutting the wheat crop and the remaining person: had started collecting it, and had been tying it into bundles, when they were attacked. There is nothing unusual or improbable in this story. Besides, five bundles of cut wheat crop were also found by the police in the field in question which is a strong circumstance favouring the belief that nine persons as alleged by the eye‑witnesses were working in the field when the culprits had opened the attack. The injuries on the person of Jalal (P: W. 10), bear eloquent testimony to his presence at the scene of the crime. Niaz Ali P. W. was the person who had lodged the report at the police station, in which the names of all the accused and the P. Ws. were given. While dealing with the question whether Niaz Ali P. W. was present at the time of the occurrence, it was urged that there was delay in the making of the report, by at least four hours. The occurrence had taken place at chhahwela and the report was made at 1 p.m., thana being at a distance of five miles. It was admitted by Niaz Ali P. W that he had immediately left for the police station on foot after looking at the deceased. Chhahwela is not a fixed time, and none could be sure what time is actually meant, when the word 'chhahwela' is used. It was the month of April and chhahwela might have meant any time between 8 and 9 a.m., or even later. The occurrence must have taken at least about half an hour. The field of Jalal P. W. is at a distance of three‑fourths of a mile from the village abadi and a word must have been sent to the village and after the arrival of the people from the village Niaz Ali must have left for the police station. The Sub‑Inspector was not at the police station, and in his absence the Muharrir Head Constable had to write the report and he might have taken some time to prepare the report. Rehmat Ali P. W. was not cross‑examined to explain, that if he had started for the police station imme diately after the occurrence, then how did he reach the police station at 1 p.m, Three persons had been murdered and Jalal P. W. had been seriously injured. It must have taken some time for Niaz Ali P. W. to make the necessary arrange ments. In the circumstances of the case, we do not think that there was any delay in making the report. For fixing the time of the occurrence another argument was advanced that. it was the month of Ramzan and semi‑soiled food was noticed by the doctor in the stomachs of Haider and Ali deceased, which suggests that they had been murdered within two or three hours of their Sehri meal, but there is no evidence whether the two deceased were fasting or had taken their meals while going to work in the field. There is, therefore, no data for raising a presumption that the occurrence must have taken place within two or three hours of the Sehri meal. Niaz Ali and Rehmat P. Ws. being near relations of Jalal P. W. would have willingly joined to help him in cutting his wheat crop. In the inquest reports prepared by the Sub‑Inspector we find that the statement of Rehmat P. W. was written in detail, to which repeated reference was made by the learned counsel for the appellants. This clearly shows that Rehmat P. W. was the first eye‑witness to be examined at the spot by the Investigating Officer. After taking into consideration the various points raised on behalf of the appellants, we feel satisfied that the three witnesses produced at the trial were present at the time of the occurrence, and had witnessed it.

15. It was vehemently argued that even if these witnesses were present, they could not have identified all the sixteen assailants in the melee and confusion that must have resulted with the opening of the assault. The occurrence took place in broad daylight. As the plan of the spot shows the assail ants had got up from a field shown at No. 7 in the plan, which is about 70 or 80 karams from the field of Jalal P. W. There is no suggestion on the record that Niaz Ali and Rehmat P. Ws. did not know the accused. On hearing the lalkara, the witnesses must have seen the accused, and on seeing them approach, they must have tried to run away from the spot. It is claimed by the witnesses that they had run towards the west and by the time they had covered a distance of about 50 or 60 karams, their four companions, the three deceased and Jalal P. W. had been overtaken by the assailants. It was but natural for these witnesses to have turned round to see the assault on their companions, After all they were closely related to the deceased and Jalal P. W. Four persons were assaulted at four different points shown in the plan approximately at a distance of 20 to 30 karams from each other, and the assailants had divided themselves into four groups. It was a continued and prolonged attack and must have taken sufficient time to finish. The witnesses, therefore, had ample opportunity of identifying all the sixteen assailants. It is not a case of a momentary glimpse of the culprits. The magnitude of the attack can be judged from the number of injuries inflicted upon the three deceased and Jalal P. W. The number of injuries noted by the doctor does not give a correct idea of the number of the injuries inflicted upon the unfortunate victims. In each case a number of injuries have been described by the doctor collectively under one number. In fact Haider deceased had received as many as 45 injuries out of which nine injuries were punctured wounds. His right parietal, right temporal, frontal and occipital bones had been fractured. The left ulna bone, both bones of right forearm, right fibula bone and the left tibia and fibula bones were also fractured. About 40 injuries were found on the body of Ali deceased, out of which two injuries were punctured wounds. His both parietals had been badly fractured into many pieces. The fourth to seventh ribs on his left side of the chest, left fibula and right, tibia and fibula bones had also been fractured. About 35 injuries were found on the body of Nadir deceased, out of which six were punctured wounds There was a depressed fracture of his right parietal bone and the left frontal parietal suture had been opened up. The right ulna and radius bones, and the right second metacarpal bone of his right hand, left humerus, and left tibia and fibula bones were also fractured. Jalal P. W. had 20 injuries on his person out of which one was an incised wound, and his right ulna bone was fractured. It will, thus, be seen that the three deceased and Jalal P. W. had received about 140 injuries out of which 17 injuries were punctured wounds and one injury was an incised wound. It was undoubtedly a prolonged attack. In these circumstances the witnesses could have easily identified the culprits though they were sixteen in number. Jalal P. W. could have also identified the culprits, because he was the nearest to the three deceased and in spite of the large number of injuries received by him he had remained conscious throughout.

16. Another point, which was strongly urged, was that although seven out of the sixteen assailants had barchhis, yet the number of punctured wounds was much smaller than the injuries which had been caused with blunt weapons, and that the punctured wounds were found only on the non‑vital parts of the bodies. It is, however, stated by the eye‑witnesses that the barchhis had also been used like Bangs. It is difficult to guess as to why did they do so. It is impossible to probe into the inner working of the minds of the culprits. May be that they inflicted a few stab blows on the non‑vital parts of the bodies and then used them effectively as Bangs, to raise the plea at the trial that if they had been armed with barchhis they would have killed their victims straightway by giving a few spear blows each. An attempt was also made to show that the punctured wounds might have been caused by the complainants themselves after the death of the three deceased This argument was based on the admission of the Sub‑Inspector that when he had reached the spot he had seen blood oozing out of some of these wounds. The doctor was not cross-examined at all to show that these injuries could have been post‑mortem. A large number of people must have assembled at the spot after the occurrence, and it is impossible to believe that anyone could have given spear blows to the deceased thereafter. But what could have been the object of doing so 7 Three men had already died as a result of numerous injuries inflicted upon them. It would have made the least difference if the injuries were caused only with dangs. This argument has, therefore, no substance in it. It was also contended that if Sardara Mirasi was armed with a rifle, why did he not fire at the victims. It appears that he had fired the rifle when the accused had shouted the lalkara. He might have missed his target or it may be that his object was to strike terror and disarm all opposition and in this he had succeeded. After the attack had commenced, he could not have taken the risk of hitting one of his own companions. There is nothing on the file, to suggest even remotely, that he could have been falsely roped in.

17. Another point, on which special emphasis was laid, was that the witnesses had given the names of the accused at the trial in the same order as were given in the F. I. R., and that even in matters of detail, the same story was repeated by each one of them. It was suggested that this was not humanly possible unless the witnesses had memorised the details. The learned Assistant Advocate General contended that as the number of the accused was large, the learned Sessions judge in order to facilitate his work might have noted down the names of the accused and the details as given in the F. I. R., and after hearing the account from the witnesses might have dictated the names and the details in the same order, This explanation appears to be plausible and cannot be ruled out of consideration. Another explanation, which was offered by the counsel for the State, was that the witnesses might have memorised the names and details in the same order as given in the F. I. R., to withstand the cross‑examina tion of Hakim Chiragh Ali, an eminent counsel of the Gujrat Bar, who is well‑known for his lengthy cross‑examination. Whatever may be the reason, the question is whether it is sufficient to cast a doubt on their testimony. These witnesses were cross‑examined at length and except in very minor details they were not confronted with their police statements as regards the number and identity of the culprits. Jalal P. W. in his statement made it perfectly clear that he was not able to identify six persons out of the sixteen assailants as he did not know them. They were Mota, Mian Khan, Chiragh, Sardar, son of Walia, Niaz Ali son of Allah Ditta and Sardara Mirasi. In all probability this witness was examined by the police at the spot, before he was sent to the hospital. He was employed in the police department and was not permanently residing in the village. Due to his occasional visits to the village during the period of his service he would not have been in a position to know all the people , of the Ilaqa. Thirteen out of the sixteen accused belonged to the neighbouring villages and the witness was, therefore not expected to identify them all. This strengthens our belief that the F. I. R. was not lodged after consultation. Had it been so, Jalal P. W. would have also named all the sixteen accused. We are, therefore, riot impressed by the argument of the learned counsel for the appellants that the witnesses had been tutored.

18. Some minor discrepancies were also pointed out in the statements of these witnesses. And the most important of them was, that before the police, Jalal P. W. had stated that Muhammad had given him the first blow on his head where upon he had fallen and then some other blows were given. At the trial, the witness stated that Raja accused was the first to give him a blow on his arm and the second blow was given by Muhammad as a result of which his right arm was broken. The witness denied having made the statement, referred to above, before the police. The fact, however, remains that both Muhammad and Raja accused were named by him as his assailants before the police as is clear from the note of the learned Sessions judge in this regard. The witness had received a large number of injuries and he had no motive to falsely implicate Muhammad and Raja accused as his assailants. It is significant that it was Raja accused alone out of all the accused, against whom the prosecution witnesses could have had some sort of grudge, but in spite of this he was not attributed the important role of attacking any of the three deceased. This clearly shows that the eye witnesses had given a true version o: the occurrence.

19. Lastly, it was argued that in view of the relationship of the witnesses, it would not be safe to place complete reliance on their testimony in the absence of any confirmatory circumstance. In this connection we were surprised to find that somehow the learned Sessions judge relied on the alleged recoveries of spears from Raja and Niaz Ali, and a dang from Muhammad and a rifle from Sardara Mirasi although these weapons were not proved to have been used in the crime. We have not been able to appreciate his line of reasoning. However, in the circumstances of the present case, we do not think it is necessary to look for any confirm atory circumstance. We have given our anxious thought to this aspect of the case. The rule requiring confirmatory circumstance in support of the testimony of a witness is applicable only when the evidence is somewhat tainted, and does not apply to the evidence of witnesses whom the Court believes to be truthful witnesses. Moreover, this rule is only a rule of prudence which is meant for the guidance of the Courts in cases where the Courts have a lurking suspicion that the evidence of the witness might not be true. We have already pointed out that the relationship of the witnesses with the deceased is no ground to reject their testimony. Although in assessing the value of evidence, the relationship the ill feeling or the enmity are matters which must always be borne in mind, but they cannot serve as a substitute for a critical examination of the evidence itself on its merits. The whole basis of the administration of justice is to try to arrive at the truth by a scientific investigation of the evidence given and not by a series of excathedra assumptions. We have subjected the evidence of the eye‑witnesses to a careful scrutiny and we have not been able to discover any valid reason to discard their testimony. Their evidence finds full support from the medical evidence. The number and nature of injuries found on the four victims of the attack, make the prosecution case, so extremely probable, that a prudent man would act on the assumption that the sixteen accused must have participated in the crime. The motive alleged by the prosecution was not challenged before us. It appears that on account of the harvesting season the sixteen accused had assembled in the field of Niaz Ali appellant, and on seeing the complainant party working in the field of Jalal, they decided to take revenge and after fully arming themselves went to attack them. After giving due consideration to the very forceful and able arguments which were addressed to us by Mr. Saleem, we feel satisfied that the convictions of the appellants for the various offences committed by them were fully justified. We do not find any mitigating circumstance in the case. It was a ferocious attack which was carried out in a brutal manner and they richly deserve the supreme penalty of law. We, accordingly, confirm the sentences of death imposed upon the six appellants and dismiss their appeal.

20. We now take up the appeal filed on behalf of the Provincial Government against the acquittal of Moonda, Siraj, Lal and Sardara son of Fazal Ilahi respondents. The case against them also rests on the testimony of the three eye witnesses. According to these witnesses, Moonda had partici pated in the attack on Haider deceased with a dung and Siraj had caused injuries to Ali deceased with a Ballam, and Nadir deceased had been attacked by Lal with a stick and by Sardara son of Fazal Ilahi with a spear.

21. The learned Sessions judge, acquitted these four respondents and five others mainly because of the opinion of the Investigating Officer. To a Court question Mehr Allah Bakhsh, Investigating Officer, had replied as follows:‑ "If I am called upon to swear about the participation in this occurrence of the following nine persons, I cannot take the oath as I am not definite about their participation as a result of my investigation," Below the statement the names of the nine accused including the names of the four respondents were noted down. In the judgment the learned Sessions Judge while dealing with the case of these nine accused remarked as follows:‑ "To my mind participation of these nine persons mentioned above by S. H. O., is doubtful. When the Police Officer, who is the S. H. O. of the Thana concerned and who conducted investigations at the spot, is not definite about the participation of these nine persons in this occurrence, it is impossible for a Court of law Ito register their conviction. In the circumstances I find that case against Chiragh and Siraj sons of Sharfu, Mota son of Bahadur Moonda son of Shah Muhammad Mian Khan son of Rehmat Lal and Sardara sons of Fazal Ilahi, Sardara son of Wali, and Niaz Ali son of Allah Ditta is doubtful. Mr. Asad Ali Rizvi, Additional Public Prosecutor, while finally putting the case before the Court and the assessors, did not claim the conviction of these accused persons. The case was tried with the assistance of four Assessors. They think other wise. Disagreeing with them, I give benefit of doubt to these nine persons and I acquit them."

22. It has now been firmly established that in an appeal against acquittal the High Court has full powers to review the evidence and to reach the conclusion that the order of c acquittal should be reversed. This power, however, has to be exercised with care and caution and subject to the well recognised principles laid down in Sheo Swarup v. K. E. (A I R 1934 P. C. 227). While dealing with this question their Lordships of the Privy Council observed as follows:‑ "But in exercising the powers conferred by the Code and before reaching its conclusions upon fact the High Court should and will always give proper weight and considera tion to such matters as (1) the views of the trial judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses". We have carefully read the judgment of the learned Sessions Judge and have tried in vain to find out, if his decision requires the application of the principles laid down in the aforesaid ruling. The order of acquittal of the respondents is not based on any judicial determination of the points involved. The learned Sessions judge felt as if he was helpless in the matter. It is matter of regret that he allowed his mind to be influenced by the opinion of the Investigating Officer, which F in our view was irrelevant and. was not admissible under any of the provisions of the Evidence Act. While investiga ting a case an Investigating Officer is within his rights to hold any opinion about the guilt or innocence of an alleged offender, and he can either grant bail to such an offender in the exercise of his powers under section 169 of the Code of Criminal Procedure or can move in the matter to get him discharged. But after the challan is put in Court, then it is entirely the function of the Court to determine the guilt or innocence of the accused on the basis of legal evidence produced before it. We have not been able to find any provision of law or any authority under which the opinion of an Investigating Officer as regards the guilt or innocence of an accused could have been brought on the record. No opinion about the fact to be proved is relevant unless the opinion is of a person and is about the matter mentioned in sections 45 to 51 of the Evidence Act. Surely, an Investigating Officer is not one of the persons mentioned in these sections, and his opinion regarding the guilt or innocence of an accused does not relate to any matter specified therein. The learned Sessions judge ought to have realised that the opinion of the Investigating Officer was not legal evidence and no Court of law could have based its finding on it. We have already pointed out that in this case the Investigating Officer was allowed by the learned Sessions judge to assume the role of a Public Prosecutor. The case appears to have been conducted and tried with little regard for the rules of evidence, and of procedure prescribed by law.

23. We wish to emphasise that we cannot permit our judicial officers to allow their judicial conscience to be moulded by the opinion of the Investigating Officers. The guilt or innocence of an accused must be judged according to accepted rules of law. It will be extremely hazardous to place reliance upon the opinion of police officers. And to make it a cornerstone of one's decision is to allow oneself to be a tool in the hands of the police. This is likely to shake the very confidence of the people in the judiciary. We need not remind that the judiciary is under a solemn pledge to keep the fountain of justice pure and clear. We strongly hope that in future the learned Sessions judge will act and judge, strictly in conformity with the law.

24. Mr. Saleem frankly conceded before us that the opinion of the Investigating Officer was irrelevant and should not have been taken into consideration while determining the guilt or innocence of the accused. He, however, maintained that on the evidence in the record there was room for a reasonable doubt about the complicity of the four respondents. We have already dealt with the criticism levelled by him against the evidence of the eye‑witnesses. He could not point out any distinguishing feature as regards these four respondents. His grievance, however, was that there was no independent evidence in the case, but there is no indication on the record that such evidence was, in fact, available. The evidence of the witnesses, which we consider as reliable, is unanimous that these four accused had also taken part in the attack on the three deceased. Even Jalal P. W. knew them and had identified them. These witnesses had no motive to falsely implicate them. For the aforesaid reasons we are fully satisfied that the four respon dents had also participated in the crime: We have, therefore, no hesitation in holding that the order of their acquittal was H manifestly wrong and had resulted in a grave miscarriage of justice. We, accordingly, accept the appeal filed on behalf of the Provincial Government, set aside the order of the acquittal of the respondents, and convict them under sections 302/149, P. P. C., on three counts and sentence them to death on each count. They shall be hanged by the neck till they are dead. We also convict them under sections 325/149 and 148, P. P. C., but in view of the sentences of death imposed upon them, we do not think it is necessary to impose separate sentences for these offences.

25. In the result, we dismiss the appeal of the six convict appellants and confirm the sentences of death imposed upon them, and accept the appeal filed on behalf of the Provincial Government and convict and sentence Moonda, Siraj, Lal and Sardara son of Fazal Ilah: respondents as stated above. All these ten accused shall now be hanged by the neck till they are dead. A. H. Appeal dismissed. State appeal accepted.