P L D 1966 (W (PLP)

6. The learned trial Court took the view that by substituting the names of. Aslam and Nawab in the calendar of witnesses for those of Khalil Ahmad, Qudrat Ullah and Hanif mentioned as eye‑witnesses in the F. I. R. Agha Zakaullah, Inspector, C. I. A. who visited the spot one month after the occurrence had exceeded his powers and had arrogated to himself at once the role of an investigator and a Judge, and as such these wholly unwarranted proceedings reduced the investigation to a sheer mockery. It was further observed that it was beyond the competence of the Inspector to discard the statement of Khalil and Qudratullah on the basis of which Malik Muhammad Akram S. 1. had arrested all the appellants. Subsequently, this position was also accepted and endorsed by Ch. Sultan Ali, A. S. I. The trial Court disbelieved Nawab P. W., and discarded the investigation of Agha Zaka Ullah. On the contrary, the complainant's .version as given in the F. I. R. and supported by C. W. 1 and C. W. 2 was accepted resulting in the conviction of the appellants and acquittal of Latif, who was not mentioned in the F.

1. R.

7. The learned counsel for the appellants argued on the following lines:‑ (i) A serious objection was taken to the mode of trial in which the appellants' challan and the private complaint were amalgamated and it was argued that since the challan of the complainant put forth two distinguishable and mutually exclusive versions, there should have been two separate trials as provided in section 233, Cr. P. C. It was contended that the exception provided in section 239 (a), Cr. P. C. would not be applicable. Reliance was placed in this regard on P L D 1954 Lah. 183 and (1930) 21 1 C 1963. (ii) It was contended that there was considerable delay in the lodging of the F. I. R. as Ahmadnagar Police Station stood only at a distance of five miles from the place of occurrence. (iii) That Khalil Ahmad and Qudratullah were not to be believed as both were Arains and belonged to the caste of the complainant and Khalil also hailed from the original village of the complainant in Ambala District. Besides, Qudrat Ullah had shifted to Gujranwala and was residing there at the time of occurrence. Furthermore; Qudrat Ullah and Khalil were admittedly close associates having been convicted together in a case under the Opium Act.

8. Before the points raised by the learned counsel for the appellants are considered, it may .be stated at the out‑set that I fully agree with the learned trial Court in its rejection of the prosecution version as it is emerged as a result of the second enquiry held by the Inspector C. I. A. The conclusion arrived at by him is palpably wrong and his version cannot even for a moment stand the test of scrutiny. According to the Inspector's investigation only two persons Fayyaz and Latif armed with sticks (sotas) had assaulted Muhammad Siddiq and were responsible for his injuries. This appears to be wholly untenable as neither the nature nor the number of injuries sustained by Muhammad Siddiq warranted such an inference. One really wonders what earthly explanation could be given for the eight injuries found to have been inflicted by sharp‑edged weapon and how such a glaring inconsistency could have escaped the notice of an experienced police officer like the Inspector; C.

1. A. Nawab P. W., did not belong to this village. He never appeared before the police officers who investigated the case earlier and obviously appears to be a chance witness, designedly imported a month after the occurrence with a view to spoil the complainant's case. Again, it is nonetheless surprising that the Inspector insisted on the production of the complainant's own minor son as an eye‑witness. Assuming the boy was present, there was nothing to prevent the complainant to cite him as a witness and assuming he was the solitary witness present, the complainant might as well have added the names of some of his other party‑men as witnesses. There are often complaints of padding against subordinate police officials who if convinced would seldom hesitate to fabricate evidence but instances where a senior police officer would go out of his way to spoil a case are not very common if not hard to find. I have no hesitation in saying that this is one of such rare instances.

9. As regards the observations made by the learned trial Court that the "function of the investigating officer is simply to collect the evidence whatever is produced before him from either side and put it before the Court to judge" and that Agha Zaka Ullah, Inspector, C. I. A. in substituting two new eye‑witnesses in place of those mentioned in tile F. I. R. had exceeded his authority. I am definitely of the view that in the instant case there was certainly no justification for him to make the substitution but I find myself unable to agree with such an abstract proposition of law. In spite of the patently superficial mode of investigation, held by the Inspector leading to unsustainable results, the proposition as put forth by the learned trial Court would amount to restricting the powers of the investigating agency, which) has the right to sponsor a version it considers to be correct on the basis of its investigation, leaving it however to the Court to decide. No doubt the question of clearly defining the powers of an investigating police officer, strictly prescribing his functions and limits is not free from difficulty and while on the one hand he cannot be allowed to act merely as an agency for the collection of evidence laying the entire jumble before the Magistrate, he cannot on the other assume the role of a Judge. I am fully conscious of the Supreme Court authority in Moonda and others v. State (P L D 1958 S C (Pak.) 275) in this regard. In this case, 9 out of 15 accused were acquitted by the Sessions Judge in a murder case on the statement of the investigating officer, and the High Court set aside the order of acquittal. In appeal the matter came up before the Supreme Court and their Lordships observed as follows:‑ "The function of forming an opinion as to the guilt or innocence of persons accused in the case is confined on the trial Judges, and may not be shared with or delegated to any other person, least of all to the person who was responsible for the levelling of the accusations against the accused persons." But this authority has no direct bearing on the case. However, in a similar case in which the investigating agency was at logger heads with the complainant, the question was considered by Din Muhammad, J. one of our illustrious predecessors in this Court, in Jaimal Singh and another v. Emperor (A I R 1939 Lah. 523). The following observation of his Lordship fully explains the correct position in this regard. "Where definite allegations are made by aggrieved persons which they are prepared to support by positive evidence, apparently free from taint, it is generally not the function of the police to play the role of Judges and to pronounce their verdict on the truth or falsehood of those allegations. In such cases they are bound to send up the accused for trial and not to discuss the probabilities or the improbabilities of the case and come to a final decision of their own. But unfortunately in this country, as has been noticed so often, there is a tendency to implicate innocent persons along with the guilty whenever any occasion arises in that respect, and not only the Courts but the investigating officers must proceed cautiously when they are faced with that situation. To restrain them altogether from using their discretion in such cases would prove detrimental to the interests of the public and would lead to unnecessary harassment of persons who had absolutely no hand in the crime. A police officer in my view is in the same position as a Magistrate holding inquiry in cases triable by a Court of Session and there is a string of rulings which lay down that such Magistrate has power to discharge an accused person if the evidence against him is palpably false or legally insufficient." Where the investigating officers not being satisfied with the evidence against some of the accused felt that they were falsely implicated and did not send them for trial, it was held that they wer6 justified in doing so on that ground.

10. The first contention of the learned counsel for the appellants was a technical objection to the mode of trial whereby the complaint and the challan were amalgamated for purpose of trial. The learned counsel placed reliance on Alli and others v. The Crown (P L D 1954 Lah. 183). This was a judgment of S. A. Rahman, J. and his Lordship had also considered other relevant authorities on the point which are I L R 1925 Mad. 61, Azim‑ud‑Din v. Emperor (14 Cr. L J 563), Intaj Khan v. Emperor (A I R 1934 Rang. 193) and Nga Sar Kee v. The King (A I R 1939 Rang. 390). It was a murder case in which the F. I. R. was lodged against one set of the accused whereas the appellants who were altogether a different set of accused were challaned except that one Muhammad Asghar who was the main culprit according to the F. I. R. was. sent up by the investigating officer as an abetter. The committing Magistrate framed charges against both sets of accused and committed them for trial. The learned Sessions Judge proceeded to try both sets of accused jointly and eventually acquitted the group mentioned in the F. I. R. and convicted the group challaned by the police. In appeal the learned Judges upheld the objection that the joint trial‑ involved an illegality which vitiated the proceedings. I need hardly go into these authorities as besides their distinguish ability, the fact remains that no prejudice has been caused to the e appellants by the mode of trial resorted to by the learned trial Court which is invariably the governing principle in all such cases. Having summoned the appellants on the complaint filed by Muhammad Siddiq the learned counsel in order to avoid duplicity of proceedings examined the prosecution witnesses as P. Ws. and the complainant's witnesses as C. Ws. which provided an ample safeguard to the interest of both the parties, against any possible failure or miscarriage of justice. In Rahat Husain and others v. Emperor (A I R 1933 All. 582) where also the complainant and the investigating agency stuck to different versions, the Magistrate investigated the police challan of six accused and the complainant's case against 58 accused persons in the same proceedings. Similarly in A I R 1939 Lah. 535, referred to earlier it seems that the Magistrate recorded the evidence of both sets of witnesses in the same proceedings and yet no objection appears to have been taken to the mode of trial.

11. As regards the question of delay it may be straightway stated that in the first instance there is no delay as such. The occurrence took place at 4 p.m. the complainant was medically examined on the same night at 11‑15 p.m. and his statement was recorded on the next morning at about 10 a.m. But assuming, without conceding that there has been some delay it has been sufficiently explained. As the complainant had been seriously injured, the primary concern or the foremost consideration would naturally be to save his life. The existence of a dispensary at Ahmadnagar near the police station would not be a bar to have recourse to facilities of better treatment though available at a greater distance. I, therefore, agree with the view taken by the learned trial Court in repelling the argument.

12. Although I have fully endorsed the view taken by the trial Court in discarding the version sponsored by the Inspector C. I. A., the failure of this version does not necessarily lead to the success of the other. The guilt of the appellants is to be fully established by unimpeachable evidence. I have, however, no hesitation in saying that the motive has been established beyond doubt. Sh. Bashir Ahmad, Sub‑Inspector who appeared as P. W. 8 interrogated Baboo, Fayyaz, Shafi, etc. appellants and searched their houses on 21st of February 1962, in connection with the theft committed in the shop of Sadar Din, brother of Muhammad Siddiq complainant. The appellants plea that they have been falsely implicated in this case because Fayyaz appellant and his cousin Baboo had ejected Muhammad Siddiq from their land for non‑payment of batai holds no water. P. W. 1 clearly stated that it was Nawab, a cousin of Fayyaz appellant who had ejected Muhammad Siddiq from his land. Firstly, this would be hardly a ground to substitute innocent, persons in place of culprits who in a broad daylight assault inflicted 27 injuries on the complainant, eight being with sharp‑edged weapons. Secondly, this Nawab against whom alone the complainant could possibly have some grudge was not mentioned as an accused person. His name could have been easily included by Muhammad Siddiq, if he wanted to falsely implicate him: Evidently Nawab appellant is a different. person from that Nawab alias Babu, as is clear from his own statement. The former is a refugee from Patiala State where Fayyaz and Babu appellants are from Karnal District. The appellants never took the plea of alibi which was enthusiastically advanced on their behalf by the two D. Ws. This was clearly an after‑thought to help the appellants.

12. The medical evidence the number and nature of injuries fully corroborate the complainant's version. Eight sharp‑edged injuries were attributed to Fayyaz and Shafi who were armed with spears, the remaining 5 appellants inflicted nineteen injuries which are not out of proportion and rather fit in with the' account given by the eye‑witnesses.

13. Next, I come to the testimony of the two C. Ws. Khalil Ahmad and Qudratullah. Qudratullah from his own showing was running a shop in Satellite Town, Gujranwala, although when re‑called be tried to justify his presence by saying that the shop was run by his brother Allah Din. The suggestion was denied by him that he had mortgaged his land with Abdul Ghafur and Nasir Din and had left the village for Gujranwala. His doubtful presence coupled with the fact that he was also convicted under the Opium Act makes one more cautious. Since the complainant was also removed to Gujranwala where his statement was first recorded in the hospital, the testimony of Qudratullah has to be taken with a grain of salt, and it is not safe to rely on him. The case of Muhammad Khalil, however, stands on a different footing. Although he is also an Arain and hails from the original village of the complainant, and was convicted along with Qudrat Ullah in a case under the Opium Act, these facts would not per‑se warrant rejection of his testimony, particularly when there is nothing to render his presence doubtful at the relevant time. D. W. 1 has no doubt tried to discredit him but he appears to be over‑zealous to save the appellants, and cannot be relied upon.

14. The result is that I agree with the findings of the trial Court that the case against the appellants is established and they have been rightly convicted under sections 326/149 and 148, P. P. C.

15. As regards the sentence, as stated at the out‑set it is not clear under which section the sentence of fine is imposed and same is, therefore, set aside. It may be observed in this context that the omission is by no means vitiative of the judgment and is curable under section 537, Cr. P. C. So far as the substantive sentence of imprisonment is concerned, I reduce it to two years under section 326/149, P. P. C. in the case of Fayyaz and Shafi and to that already undergone in respect of Zilladar, Yaqub, Nawab, Ghulam Rasul and Nazir. The concurrent sentence of three months R. I. under section 148 awarded to all the appellants is also reduced to one already undergone. The appeal is accepted to this extent only. K. B. A. Appeal partly accepted.