P L D 1961 Supreme Court 200 (PLP)

CORNELIUS, C. J.‑The appellants Ibrahim, aged 20 and Muhammad Sharif, aged 17, are brothers, sons of one Nathe Khan; and the third appellant Ghulam Qadir, aged 19, is a friend of theirs. They were tried along with Moodi another son of Nathe Khan, aged 14, and Nathe Khan himself who is aged 75 on a charge of murder for causing the death of one Irshad Khan, and charges of attempted murder in respect of injuries to Irshad Khan's brother Adalat Khan and his servant Sardara. It Js important to note that Irshad Khan and Adalat Khan are brothers to the mother of Muhammad Sharif and Moodi, two of the sons of Nathe Khan. Their brother Ibrahim is the son of another wife of Nathe Khan, who died many years ago. In view of‑ this relationship, and the difference of age‑Irshad Khan was aged 45 and his brother Adalat Khan is presumably of about equal age -significance attaches to the number and nature of the injuries which were inflicted. Irshad Khan had no fewer than 29 separate injury marks on his body, of which no less than 10 were contused and incised wounds on his head and face, besides a number of large contusion marks on the arms and the body. He was obviously subjected to a very severe and prolonged beating. Adalat Khan in addition to two contused wounds on the right leg, a contusion on his left eye and another on his left arm, sustained a deep incised wound 6" in length on the head cutting through the bones into the skull, and resulting in permanent injury to his brain as a result of which he is no longer able to speak. The third man Sardara who was a servant received 20 injuries. These is some difference between the opposing versions as to the time of the occurrence. The prosecution story is that although it was dark, it was only a short time after sunset when the‑three injured persons and one Muhammad Afzal son of the deceased Irshad Khan, aged 21, went out to Nathe Khan's Dera in the fields, having been told that the sons of Nathe Khan were engaged in distilling liquor illicitly. They bad Nathe Khan with them. The story proceeds that when Irshad Khan saw the young men, or rather boys, working a still inside a kotha at the Dera; be reprimanded them for doing an evil thing, whereupon Ibrahim with a kulhari, Ghulam Qadir with a dang, Moodi with a kulhari, Muhammad Sharif with a gandhali attacked him, and continued the attack on Adalat Khan and Sardara while Nathe Khan, standing by, encouraged them. The opposite version is that Muhammad Afzal with the complainant party numbering 8 or 9 persons went out at night to the Dera of Nathe Khan where the young accused persons Ibrahim, Muhammad Sharif and Moodi were sleeping, and made a deliberate attack on them, from which they escaped with difficulty sustaining a number of injuries. Ghulam Qadir denied that he was present at the time. The defence version leaves the injuries of the complainants entirely unexplained, but it seems clear that the explanation offered by the prosecution for the assault and beating given to Irshad Khan, while it may have been sufficient had the illicit distillers been criminals of a hardened type who owed no obliga tion of any, kind to those who had surprised them in their illicit activity, is totally insufficient to explain such behaviour by three young nephews. There was no serious trouble between the parties prior to the occurrence. The prosecution case is that the complainants had lost some mollasses out of their drum in the fields, and bad suspected the sons of Nathe Khan, and making investigations, they found that these boys were given to distilling liquor. Apart from the suspicion of theft, no other trouble between the parties is alleged on the complainants' side, but the accused's version is that on the evening prior to the occurrence there had been some trouble over Ibrahim accused catching a ram belonging to Irshad Khan which was damaging his crop, which led to an altercation and exchange of abuse. Ibrahim also said that a reason for his being involved in the matter was that he was in love with a daughter of Irshad Khan, who would of course be a cousin of his. What seems impossible however is that the young nephews of Irshad Khan knowing who he was and having been caught in an act of wickedness by him, should in the presence of their father, have carried the attack on him in so heavy and determined a manner. If they had others with them who were strangers to Irshad Khan, the beating he received might be explained as the work of those others, or, it could be that Irshad Khan's identity did not become known to them until after the incident was over, and this indicates a possibility that the whole truth has not been told as to the manner in which the out‑break of violence took place. In other words, the probability is that the incident occurred late at night, and that the deceased and his brother did not disclose their identity before the attack was commenced upon them. Delay in reporting the occurrence is plain, for although the Thana was only six miles away, it was not until 6‑45 the following morning that the report was made, and the explanation that the injured persons had to be taken to the Thana is by no means sufficient. But there can be little doubt of the participation of at least four of the accused persons, namely, Ibrahim, Muhammad Sharif, Moodi and Ghulam Qadir, for, when the Police arrived, these men were caught without delay and all of them were found to have injuries on their persons, in sufficient number to indicate that they were received in a fight, although they were much less serious than the injuries inflicted to the complainant party. Ibrahim had three abrasions, Muhammad Sharif had nine abrasions, Moodi had three abrasions and Ghulam Qadir had a contused wound on the head and seven other minor injuries. Another person Faqiria who was said to have been working the still in the kotha at the Dera along with the young accused persons, but was not said to have joined them in the beating, was found to have six injuries, five of which were contusions. The direct evidence in the case for the prosecution was given by Sardara who was beaten, and by the aforesaid Muhammad Afzal who escaped injury by running into a sugarcane field. Sardara declared that no member of his party caused any injury to the accused persons, and so did Muhammad Afzal. Some supporting evidence, was given by threw other persons Bashir Ahmad, Allah Ditta and Rulia who gave different reasons for being out in the fields at the time of the occurrence. The accused persons contended themselves with the single statement of facts made by Ibrahim to which reference has been made above, but produced no evidence in their defence. The Sessions Judge did not accept the evidence of any of the eye‑witnesses except Sardara whose statement he accepted with qualification on the basis that he had tried to improve upon the original version. As a result, he declined to convict Moodi on account of his extreme youth or Nathe Khan on account of difficulty felt in believing that he had encouraged his sons to such violence, and accordingly acquitted them. He also acquitted Ghulam Qadir on the ground that there was no "earthly reason" why he should have been there, and as for his injuries, Ghulam Qadir had said that he received them at the hands of the police, but Ibrahim and Muhammad Sharif were found guilty of offences under section 304, Part II, on the basis that they had acted in self‑defence after having first been attacked themselves, and had gone to excess. The State appealed against the total acquittal of Ghulam Qadir, as well as the acquittal of Ibrahim and Muhammad Sharif of the charge of murder. Ibrahim and Muhammad Sharif also appealed against their conviction. In the High Court, the appeals were heard by a Division Bench of two Judges who were agreed as to the merits, that Ibrahim, Muhammad Sharif and Ghulam Qadir were all guilty under section 302/34, P.P.C. but were at variance on another point, namely, whether the conviction was not bad by reason that the accused persons, after having been charged by the Committing Magistrate were not asked, as required by section 211 of the Criminal Procedure Code, to give a list of witnesses whom they wished to call in their defence. Mr. Justice Shabir Ahmad was of the opinion that a failure on the part of the Committing Magistrate to put such a question after framing a charge was at the most an irregularity, and no miscarriage of justice had resulted thereby. The other learned Judge Mr. Justice A. R. Changez was of the opinion, following an earlier decision of the High Court to which he was a party that the non‑compliance with section 211 of the Criminal Procedure Code, was not a mere irregularity, but was an illegality which could not be cured under section 537 of the Criminal Procedure Code, and therefore the entire trial was vitiated. He was therefore of the opinion that the conviction should be set aside and the case should be sent back to the Committing Magistrate to be taken up from the stage of the framing of charges. The case was then laid before the Chief Justice to be referred to a third Judge and was in due course taken up by the Chief Justice himself, who in a Judgment in which a large number of earlier relevant decisions have been gathered and examined, agreed with Shabir Ahmad, J. that the non‑compliance in the case was merely a curable irregularity, and there had been no prejudice to the accused persons thereby. Accordingly, the order of the High Court was that Ibrahim, Muhammad Sharif and Ghulam Qadir stood convicted under section 302/34, P.P.C. for, which they were each sentenced to undergo transportation for life, as recommended by Shabir Ahmad, J. The appeal came to this Court as of right, there being reversal of acquittals by the High Court on appeal. On the merits, we see no reason to disagree with the conclusion reached in the High Court. Although the injuries found are not fully explained by the version put forward by either side, to which we may add that no convincing discovery of anything connected with the distillation of liquor was made in the course of the investigation, yet, there need be no difficulty in holding that Ibrahim, Muhammad Sharif and Ghulam Qadir participated in the beating given to Irshad Khan, Adalat Khan and Sardara. In the absence of explanation, and there being no indication that these three boys were pursued or beaten either before or after the beating sustained by the others, the natural probability is that they were beaten in the course of the same incident, and that the injuries they caused were by way of retaliation. Then disproportion between the injuries they received which indicate a short‑lived attack delivery with no great force, and the injuries which their party caused which clearly prove that the attack was sustained and carried out with great determination and without regard to the consequences, is enough to negative the plea of self‑defence. It is clear that their reaction was of retaliatory nature, and not only the severe belabouring of Irshad Khan, but also the very heavy blow with a hatchet on the head of Adalat Khan, establish that the causing of death was a positive intention, which was only prevented by chance and prompt medical aid from taking effect in the case of Adalat Khan as well. Therefore, the conviction under section 302/34, P. P. C. is not open to question, and the award of the lesser penalty is a concession appropriately made in a case where the possibility of attack having been provoked by some action of the other party is sufficiently clear. As to the other question, namely, the failure of compliance with section 211 of the Criminal Procedure Code, a point which is strictly relevant is that when questioned by the committing Court prior to the charge, whether he would produce defence, each of the five accused persons made the same answer in the following words :‑ "Yes, in the Sessions Court, if necessary". The answer is relevant to the possible application in the present case of certain observations made by this Court in the published case of Moonda ((1958) 1 P S C R 291 =P L D 1959 S C (Pak.) 275), as to the meaning and purpose of section 211, Cr. P. C. It was there held that the production and examination of witnesses for the defence in compliance with section 208 of the Code:‑ "does not by any means constitute compliance with the duty imposed upon the Committing Magistrate by section 211 of the Code which duty must be interpreted as a concommitant of a right vested in the accused to obtain cancellation of a charge framed by a Committing Magistrate by invoking the discre tionary power of the Magistrate to receive evidence for the accused persons under section 212 of the Code." That observation however is without relevance to the present case for the reason that each of the accused persons when questioned before the charge had made it clear that he did not wish to produce any defence evidence at any stage earlier than the trial in the Sessions Court. In other words, each of the accused persons was prepared to go to trial on the charge which the Magistrate was proposing to frame, and there was therefore no question of his claiming a right to obtain cancellation of the charge by the Committing Magistrate himself. It may assist for the better understanding, in a general sense, of the observations made by this Court in the case of Moonda if we repeat what has often been said in regard to judgments of Superior Courts, namely, that everything said in such a judgment is to be evaluated in relation to the particular facts and circums tances of the case thereby decided. The case of Moonda was of a wholly exceptional, not to say unique, character. Nine out of the fifteen accused persons had been acquitted by the trial Court upon a mere statement of the investigating Officer that if he were called upon to swear whether they were guilty, he could not take the oath as he was not definite about their participation. This was made a sufficient ground by the trial Court for the acquittal of these persons, and later when the State moved an appeal against the acquittal of four of them, the acquittal was set aside and they were convicted of the offence of murder. It was at that stage that the case came before the Supreme Court, and the view was reached that these four' persons were entitled to a retrial of their case from the stage of defence, since it was possible that in view of the strong opinion expressed in their favour by the Investigating Officer, they may have been led into the belief, that they were going to be acquitted, and there was no case against them which needed to be met by the production of defence evidence. As to the remaining six persons who had been convicted at the trial and whose conviction bad been upheld by the High Court, the argument was put forward that the case against all the accused persons was a single case, and therefore they should‑receive the same treatment as the other four appel lants. This Court accepted the view that there was a 'single case against all the 15 accused persons and ; "that any aspect of the evidence whether for the prosecution or for the defence which might go in favour of one or more of the accused persons, would necessarily have a bearing upon the question of the guilt or innocence of each of the other accused persons." This was said in favour of the view that these six appellants should also have the right of meeting the prosecution case by production of witnesses in defence on a level with the other four accused persons. An additional reason was found in the fact that the Committing Magistrate had failed to comply with the provisions of section 211, Cr. P. C. but nothing was said in that case as to whether such failure was an irregularity of curable nature or an illegality. We do not find it necessary in this case to say anything further on that point, since we find that it does not arise for discussion here. As has been observed, the circumstances of the present case are different, inasmuch as the accused persons had made it clear before the charge that they would only produce defence evidence, if they thought it necessary, in the Sessions Court. For these reasons, we dismiss this appeal. K. B. A. Appeal dismissed.