1987 P Cr (PLP)

(4) A red contusion 2" x 1" on the right side of forehead. (5) The upper and lower eyelids of right eye were swollen. (6) A red contusion 3‑1/2" x 3/4" on the left thigh. (7) An abrasion 2‑1/4" x 1/4" on the front of left leg. (8) A red contusion 2‑1/2" x 3/4" with abrasion 3/4" x 1/8" on the left thigh outer side. (9) An abrasion 1/2" x 1/4" on the left elbow. In the opinion of the doctor the cause of death was shock and brain haemorrhage. Injuries Nos. 1, 2, 3 and 4 were fatal and were sufficient to cause death in the ordinary course of nature. Siraj Din was also examined by the said doctor and following 7 injuries were noticed:‑‑

(1) An abrasion 1/4" x 1/4" on the bridge of nose. (2) A lacerated wound 1/4" x 1/8" x skin deep on the left elbow. (3) An abrasion l/3" x 1/4" on the right forearm. (4) A red contusion 1‑1/2" x 1" on the back of left chest. (5) A red contusion 3‑1/2" x 1/2" on the left side of back of chest lower part. (6) A red contusion 4" x 1/2" below injury No. 5. (7) A red contusion 2‑1/2" x 1/4" on the left knee.

6. Similarly, Bashir Ahmad was also examined and following 6 injuries were noticed:‑‑ (1) A lacerated wound 2‑1/4" x 1/2" x bone deep on the right side of head. (2) A red contusion 6" x 1/4" on the back of right side of chest. (3) A red contusion 2 x 1/2 on the back of left shoulder. (4) A red contusion 2‑1/2" x 1/2" on the back of right shoulder. (5) A red contusion 1‑3/4" x 1/4" with swelling 4‑1/2" x 4‑1/2" on the back of left hand. (6) A red contusion 5" x 3/4"with abrasion 1/4" x 1/8" on the right arm. Injury No. 5 on the person of Bashir Ahmad was declared grievous. The other injured eye‑witnesses namely, Boota, Muhammad Ali, Shaban were also examined by the said doctor. On the person of Muhammad Ali two simple injuries caused with a blunt weapon were noticed. On the person of Shaban also two simple injuries caused with blunt weapon were noticed. With the help of the learned counsel for the appellants Malik Muhammad Qasim, Advocate and learned counsel for the complainant namely, Mr. Muhammad Akram Sheikh, Advocate, and counsel for the State, I have carefully perused the entire evidence on the record. Learned counsel have also been heard at length. It was submitted by the learned counsel for the appellants that if the occurrence has taken place at 5 p.m. as alleged by the prosecution, then the F.I.R. was lodged with considerable delay, because the police station was situated at a distance of three furlongs from place of occurrence. It was also contended by the learned counsel for the appellants that the F.I.R. was not a genuine document, because it is mentioned therein, that some of the accused during this scuffle had also received injuries, whereas in fact none of the accused received any injury. It Was thus, contended that the F.I.R. was conjectural in nature and was based on speculations and furthermore, no sanctity can be attached to it because as many as four innocent persons were named in it by the complainant. Learned counsel for the appellants also urged that the evidence of the eye‑witnesses has been disbelieved qua the acquitted accused, therefore, no reliance can be placed upon such testimony for convicting the appellants without strong corroboration. It was also argued that the corroborative evidence in this case does not help the prosecution, inasmuch as, such Sotas are usually found in every house and since none of the Sotas was blood‑stained, therefore, such recovery cannot be used to corroborate the ocular testimony. Learned counsel for the appellants also assailed the evidence as to motive.

7. On the other hand, Mr. Muhammad Akram Sheikh, Advocate, contended that the testimony of the injured eye‑witnesses cannot be thrown aside because of the injuries borne by them. Their presence and the attack on them cannot be disbelieved. Siraj P.W. 3 had received 7 injuries out of which one was grievous, while Bashir P.W. 2 had received 6 injuries, out of which one was grievous. Mr. Muhammad Akram Sheikh, further argued that the principle of falsus in uno falsus in omnibus is not known to our jurisprudence and, therefore, the grain has to be sifted from chaff. According to the learned counsel for the complainant the evidence has been sifted and the appellants were rightly convicted.

8. I have carefully examined the contentions raised by both the sides. The acquittal of the co‑accused is mainly based upon the opinion of the Investigating Officer. No doubt, the same is not binding on Courts but nevertheless Court if chooses to accept it, then such course of action can hardly be assailed unless it is done previously. I have gone through the impugned judgment and also the statement of Shaukat Javaid, A.S.P., Pakpattan and considered the case from all angles. In my view the learned trial Judge rightly found the acquitted co‑accused as innocent but nevertheless this would not mean that the entire prosecution evidence should be rejected in toto. No hard and fast rule can be laid down because the appraisal of evidence is the most intricate subject in the administration of justice. Much has been said about it, I need not repeat it, but suffice it would be to mention, that golden principle of giving due weight to the findings of the learned trial Judge, who had the opportunity to see, hear and notice the demeanour of witnesses should be adhered to.

9. In the instant case, careful examination of the evidence would reveal that the learned trial Judge had sifted the grain from the chaff very carefully and I see no reason to reverse the findings arrived at by the learned Additional Sessions Judge. My attention was drawn to certain discrepancies such as P.W. 4 Asghar eye‑witness, his statement under section 161, Cr.P.C., had named the appellants Shah Muhammad, Abdul Ghafoor alias Phiddi, Arshad alias Achhu as culprits but did not name Allah Yar appellant as one of the assailants. Another discrepancy was also pointed out, being the variance in the F.I.R. and the statement of the complainant recorded under section 161, Cr.P.C. I have considered these discrepancies and in my view these are not material. All the appellants were named in the F.I.R. and the accumulative effect of the entire ocular testimony is, that all the appellants had in fact participated in the occurrence.

10. However, I am not convinced about the version of the prosecution, that the incident occurred on two places. Such split is not comprehensive. If the story of the split is believed, then in my view, the occurrence near the Bungalow of Mufti Sahib could not have taken place insmuchas. allegedly the appellants had escaped away from the first place of occurrence and the complainant side was proceeding for taking medical aid and admittedly they were accompanied by many other persons. In such situation, it is against the course of human conduct, that the assailants in presence of a large number of people would again dare to attack. The blood‑stained earth was collected from near the Bungalow of Mufti Sahib. In this view of the matter, I reject the prosecution story to the extent of the occurrence having taken place at two different scenes. As far as motive is concerned the evidence on this score is too feeble. In my view, both sides confronted with each other and the attack commenced. That is why, the complainant has also mentioned in the F.I.R. that some accused had also received injuries. In my view, it was not a manipulation, so as to avoid the future blame of suppressing the injuries received by the accused side during the trial. Thus, it is not known that, what actually preceded the occurrence. The carrying of Sota is not an unusual circumstance because in our society in the rural areas, Sota is usually carried by every individual. That being so, Manzoor and Atta appellants cannot be held constructively liable for the murder of Khadim Hussain deceased, because their case is distinguishable from the other four appellants who S had given blows on the head of the deceased with their Sotas. Accordingly, I set aside the conviction and sentence of Manzoor and Atta Muhammad appellants under section 302 read with section 149, P.P.CJ Their sentence under section 148, P.P.C. is also set aside. The appellant Atta Muhammad was taken into custody on 16‑11‑1982, his sentence was' suspended by this Court on 31‑7‑1985. He has undergone the sentence of' about two years and eight months. In my view the sentence already undergone would be sufficient to meet the ends of justice for his conviction on the charge under section 307, P.P.C.

11. Similarly the conviction of Manzoor, appellant under section 307, P.P.C. is not open to exception. He has suffered sentence for about 4 years. In this case also the sentence already undergone would be sufficient to meet the ends of justice. He will be released forthwith if not required in any other case. The sentence of fine in the case of Manzoor and Atta Muhammad appellants would be treated as one under section 307, P.P.C. and the same is hereby maintained. Atta Muhammad appellant shall pay the fine and in the event of default in payment of fine he would be taken into custody to undergo the imprisonment in default of payment of fine. However, I allow him a period of one month to deposit the fine.

12. Coming now to the case of Shah Muhammad, Allah Yar, Abdul Ghafoor alias Phiddi ad Arshad Mahmood alias Achhu, all these appellants had caused one injury each on the vital part i.e. head of the deceased Khadim Hussain causing brain haemorrhage. They had acted in furtherance of their common intention which was formed at the spur of moment, to cause death of Khadim Hussain deceased, therefore, their conviction is altered to one under section 302 read with section 34, P.P.C.1 and the sentence awarded to them on the said charge is hereby maintained.

13. The upshot of the above discussion, is, that the appeal of Manzoor and Atta appellants is allowed to the extent, that their conviction under section 302/148/149, P.P.C. is set aside and their conviction is altered to one under section 307, P.P.C. The appeal of other co‑appellants namely, Shah Muhammad, Allah Yar, Abdul Ghafoor alias Phiddi and Arshad Mahmood alias Achhu is allowed to the extent that their conviction and sentence on the charge under section 307, P.P.C. is set aside. As far as their conviction and sentence in the charge under section 302, P.P.C. is concerned, the same is maintained, however, their conviction and sentence under section 148, P.P.C. is hereby set aside. M.Y.H./S‑24/L Order accordingly.