P L D 1954 Lahore 107 (PLP)

Jahandad, accused, was also examined by the doctor on the 29th of May 1952. He was found to bear five injuries of simple character caused by a blunt weapon. Some other members of both parties had also injuries on their persons and the result of the medical examination shows that on the side of the com plainants there were eight persons injured with a total number of 31 injuries between them, while on the side of the accused seven persons had been injured with 16 injuries between them. The injuries on the accused's side were all simple. The houses of the parties are opposite each other with an open space in between. Jahandad, accused's version in the trial Court was that he did exchange abuses with Muhammad Aslam on the riverside, but he suggested that at that place, Nazir, Jahandad, Walayat Khan, Dost Muhammad and Fazal Dad tried to attack him and even followed him when he ran to his house. Muhammad Aslam, according to him, was armed with a knife and with this he gave him a blow just above his hip. A knife blow caused an injury on his elbow also. Walayat Khan gave a dang blow on his back. He and some other members of his party threw stones at the attackers. His sister's two children, Munir Akhtar and Irshad Begum, also received injuries at the hands of Nazir and Jahandad. The rest of the accused denied their participation in the affair and assigned their implication in the case to their being relatives of Jahandad. A counter complaint of Jahandad implicated Muhammad Aslam, Dost Muhammad, Jahandad. Walayat Khan, Nazir Khan, Mst. Daulat Begum and Mst. Raj Begum, P. Ws., in a case under sections 452, 323 and‑324, P. P. C. In seems necessary at the outset to take note of a legal point raised in this case on behalf of the Crown. It was con tended that the accused ladies had been exempted from appear ing in Court under section 205, Cr. P. C., but at the stage of questioning the accused persons under section 342, Cr. P. C., the presence of the ladies was not enforced and only their counsel was asked to make statements on their behalf. It was suggested that this constituted an illegality which vitiated the trial. Reliance was placed in this connection on Ishwar Das v. Bhagwan Das (A I R 1934 All. 693), Adeluddin v. Emperor (A I R 1945 Cal. 482), and In re Nainamalai Konan (A I R 1921 Mad. 679). The Madras case is not very much in point, as all that was held by‑Spencer, J. in that case was that a written statement filed by an accused could not take the place of an examination under section 312, Cr. P. C. Where there was no proper examination of the accused under section 342, Cr. P. C., so that the accused had no opportunity to explain the evidence against him, it was held that the con viction should be set aside. In the Allahabad case, Bennet, J. pointed out that section 342, Cr. P. C., does not purport to be only in the interest of the accused persons. The purpose of the section, according to the learned judge, is to enable the accused to explain any circumstances appearing in the evidence against him and the intention is to further justice and to enable the Court to give a correct decision. Under section 342, Cr. P: C., it was held the statement should be the personal statement of the accused and not a statement made on his behalf by an advocate. In the Calcutta case, a Division Bench consisting of Lodge and Sen JJ. laid down that, section 540A of the Code did not permit the trial to proceed without the presence of the accused at stages where under the law the presence of the accused is imperative. One of these stages is when the accused is required to be examined in accordance with the provisions of section 342, Cr. P. C., and the accused's presence at that stage should not be dispensed with. Actually, there was a misdirection to the jury by the trial judge in that case and the conviction was set aside on that ground. The learned Judges also, added that the conviction of one of the accused would be bad inasmuch as he was not examined in accordance with the provisions of section 342, Cr. P. C. It appears that Kamaruddin, the accused in question, was produc ed before the trial Judge at the opening of the case. He was then segregated from the, other accused and was represented by a pleader throughout. He was ultimately produced before the Court to hear the verdict and receive the sentence. It was the pleader whose statement on behalf of the accused was recorded under section 342, Criminal Procedure Code. The contrary view was taken by a Division Bench of the Bombay High Court, consisting of Beaumont C. J. and Barlee, J., in Emperor v. Jaffar Cassum Moosa (A I R 1934 Bom. 212). It was held that section 342, Cr. P. C., must be read as subject to the provisions of section 205 and that the trial Magistrate is not bound to question the accused person under section 342, Cr. P. C., if the latter had been exempted from personal appearance and appears by a pleader. A similar view prevailed with a single judge of the Rangoon High Court in Mating Po Nyein v. Haka Singh (A I R 1927 Rang. 73). There is also an earlier D. B. judgment of the Bombay High Court reported as Dorabshah Bomanji Dubash v. Emperor (A I R 1926 Bom. 218), wherein it was ruled that the Court can act upon the plea given by the pleader of an accused whose attendance has been excused under section 342, Cr. P. C. That was a case tried under the summons case procedure and the relevant sections were sections 242 and 243, Cr. P. C., but the analogy seems to be apt. In Emperor v. Radha Raman Mittra (A I R 1930 All. 817), a single judge of the Allahabad High Court decided that if an error is committed while applying the provisions of section 540A, Cr. P. C., the trial is not vitiated, provided no prejudice has been caused to the accused. Apparently, however, in that case the stage for examination under sec tion. 342, Cr. P. C. had not yet arrived and, therefore, the autho rity is not pertinent to the question under discussion. In another Single Bench judgment of the Allahabad High Court reported as Bechu Chaube v. King Emperor (A I R 1923 All. 81), it was held that failure to apply the provisions of section 342, Cr. P. C., con stitutes an error and not an irregularity and if it does not prejudice the accused, may be condoned under the provisions of section

537. Cr. P. C., provided that it concerned matters of procedure rather than the mode of trial. The opinion was expressed in Emperor, v. Mst. Jamal Khatun (14 Cr. L J 272 (D B)), that the appearance by a pleader after an order is passed under section 205, Cr. P. C., involved the performance by the pleader of all acts which devolved upon the accused in the course of the trial. The preponderance of authority, therefore, seems to be in favour of the proposition that the provisions of section 342, Cr. P. C., are controlled by those of section 205 of the Code. Considering the language of section 205 of the Code, it is plain that throughout the trial, the Court need not insist upon the personal appearance of the accused unless for some reason it thinks otherwise. Reference in this connection may also usefully be made to the provisions of subsection (2) of section 366 of the Code of Criminal Procedure, which enacts that where the personal appearance of the accused had been dispensed with, during the trial and the sentence is one of the fine only or he is acquitted the judgment may be delivered in the presence of the pleader representing him. The conclusion is also strengthened by reference to the provisions of section 540A. We hold therefore, that there has been no illegality or even irregularity in the trial consequent on the pleader being examined on behalf of the women accused in this case under section 342, Cr. P. C. The contention raised on behalf of the Crown must be repelled as unsound. Coming now to the merits of the case, there can be no doubt that the incident took place on the day alleged in the course of which both sides received injuries. The learned Magis trate has observed that almost all the prosecution witnesses were related to Dost Muhammad or Muhammad Aslam and, therefore, were interested in deposing against the accused. As regards the incident at the river, he has referred to the evidence given by Karam Dad (P. W. 12) and Fazal Dad (P. W. 6). and remarked that Karam Dad had some bias against the accused as the wife he had divorced had now married Jahandad, accused. It was suggested that this Jahandad, accused, had illicit relations with the woman while she was married to Karam Dad but the latter denied this. He has, therefore, recorded the finding that none of the P. Ws. was independent or disinterested. He has further commented on the fact that although other villagers were admittedly witnesses of the occurrence, none of them was called for the prosecution. He has drawn the inference that there was no reliable evidence showing that the accused were the aggressors in the case or that the fight had in fact taken place in the courtyard of the house of Dost Muhammad, as the prosecution alleged. No blood spot was found on the ground in that courtyard. The learned Magistrate, therefore, did not rule out the possibility that the fight may have taken place in the courtyard of the accused's house. He was conscious of the fact that Dost Muhammad and his party were the first to reach Jhelum for medical examination and had lodged the report to the police whereas the accused had done no such thing, that Jahandad, accused, had been abused by Muhammad Aslam and had reason to be avenged and that the complainants received many more injuries than the party of the accused. These factors were, however, not in his opinion sufficient to establish the truth of the prosecution story. Great stress was laid by the learned Magistrate on the fact that the injuries caused to the accused party had not been properly accounted for by the prosecution witnesses. Although the medical evidence is to the contrary, he thought that the injury sustained by Jahandad, accused on his left hip was probably caused by a knife and not by a blunt weapon as the doctor thought. Some of the prosecution witnesses had merely admitted having thrown stones and none of them acknowledged to have given a knife blow to any of the accused persons. He, therefore, decided to give the benefit of the doubt to all the accused. We have gone through the evidence on record and heard arguments of learned counsel for both sides. After a careful review of the evidence, we are convinced that there has been a miscarriage of justice in this case and the conclusions reached by the learned Magistrate were not justified on that evidence. Out of the eye‑witnesses, Walayat Khan (P. W. 5) is a neighbour of Dost Muhammad, P. W., but he is otherwise unconnected with him. Jahandad (P. W. 6) also was not shown to have any bias against the accused or any relationship with the complainant party. The injured P. Ws. on the side of the prosecution were Dost Muhammad (P. W. 1). Muhammad Aslam (P. W. 2), Mst. Daulat Begum (P. W. 3), MA. Sultan Begum (P. W. 7), Mst. Fazal Begum (P. W. 8) Mst. Raj Begum (P. W. 9), Mst. Sardar Begum (P. W. 10; and Muhammad Ashraf (P. W. 11). Among the uninjured eye‑witnesses, besides Walayat Khan and Jahandad, there is Muhammad Nazir (P. W. 5) who is a first cousin of Mst. Faza Begum. He was also cited as an accused in the cross case in our opinion, the statements made by Jehandad and Walayat Khan, P. Ws., provide ample corroboration of the statements of the other witnesses in this case. It is also clear that there was no previous enmity of a serious character between the parties. The injured prosecution witnesses, therefore, should not be held to be interested merely because they are interrela ted. They apparently were not actuated by malice in deposing against the accused persons. The learned Magistrate was not justified in characterising all the prosecution witnesses as biased or interested. The number of persons injured and the number of injuries sustained by the complainant's side as compared with those on the accused's side, provide an indication as to which party was the aggressor. The grievance, as the learned Magistrate seems to have recognised, was on the side of the accused. It the defence story had been true that Jahandad, accused, was pursued from the river side by several persons who were armed, the tale of injuries should have been entirely different from what we find in this case. The learned Magistrate seems to have taken an erroneous view of the evidence when he formed the opinion that one of the injuries of Jahandad, accused, was caused with a knife blow. He seems to have assumed wrongly that the depth of this wound was 1 ". The actual dimensions of this particular injury of Jehandad, accused, were given as 1 " x " x ", so that the depth of the wound was only ". At the place in question the skin is spread tight over the bone as the doctor explained and sometimes an injury caused with a blunt weapon may simulate an incised injury in such circums tances. If, in fact, Jahandad, accused, had been attacked with a knife, as he alleged, it is not understandable why the accused party were not the first to approach the police. The dimen sions of the injuries sustained by the complainant party show that several of them were caused with lathi blows whereas most of the injuries on the accused's side were likely to have been caused with stones thrown at them. This provides circum stantial corroboration of the prosecution story. The mere fact that no blood was found in the compound of the complainant's house is a negative factor which need not detract from the truth of the prosecution story. The bleeding from the wounds of the P. Ws. may not have been profuse enough for the purpose. There was some delay in lodging the first information report in the case, but considering that the injured persons had first to go to Jhelum to get themselves examined by the doctor, undue weight cannot be attached to this circum stance. The fact that a large number of ladies on the side of the complainants were injured is also a tell‑tale factor in the case. The failure of the P. Ws. to account satisfactorily for all the injuries on the accused i5 understand able when we remember that some of the prosecution witnesses had been cited as accused in the cross case. They would then naturally try to minimise their own part in the affair. Only one or two women on the complainant's side admitted that they had thrown stones at the accused. The maxim falsus in ano falsus in Omnibus cannot be applied with full rigour to cases in this country without seriously prejudicing the administra tion of justice. The broad facts which seem to be established are that the accused had a grievance and thus were likely to take the initiative in the assault, that the complainant party got the worst of it, as is evident from the number and the nature of the injuries received by them, and that the complainants were the first to approach the police. The learned Magistrate seems to have adopted a wrong approach to the case by assuming that all the witnesses were interested against the accused. We do not find that Karam Dad (P. W.12) is really interested against the accused and, there fore, we have no reason to doubt his testimony about the first incident on the riverside which provides the motive for the assault. The other witness concerning that incident is Fazal Dad (P. W. 13) who was tendered for cross‑examination but no question was put to him. The defence evidence in the shape of the testimony of Muhammad Munir and Nek Alam, D. Ws. is extremely unim pressive. Muhammad Munir is the son of Pehlwan, accused, and he professed to be an eyewitness of the incident which he placed at the house of his maternal uncle, Jehandad, accused. He gave out the story that Muhammad Aslam gave a knife stab to Jahandad while others armed with sticks were also there who gave a beating to this witness Muhammad Munir himself and his sister. He alleged that he and his sister Irshad Begum had reached there before the complainants had arrived at the accused's house. The knife story is obviously an exaggeration. Nek Alain merely stated that he saw Jahandad and some others wrangling on the riverside. Jahandad, according to him, ran away because the persons there were ready to attack him. He does not say, however, that Jahandad was pursued from that place. This evidence does not succeed in rebutting the prosecution case. On the merits, therefore, we would have no hesitation in holding that the view taken by the learned trial Magistrate was not correct. It is likely, however that the incident started as the result of an exchange of abuses between the parties who lived close to each other. On this view the principle of joint responsibility could not be invoked and each accused would be responsible for his own individual act. The evidence concerning the part played by the women accused is con flicting and somewhat vague. Mr.. C. M. Sharif on behalf of the Crown agrees that in these circumstances no charge can be said to have been established against the women. The grievous hurt sustained by Muhammad Aslam; P. W. was specifically assigned to a blow by Jahandad , accused. This witness was also caused injuries by Karam Dad, Pehlwan and Muzaffar, accused. According to the prosecution witnesses, Dost Muhammad was similarly injured by Pehlwan and Karam Dad, accused. Mst. Daulat Begum's thumb was broken by a blow dealt by Karam Dad, accused and Jehandad, accused, also caused her simple hurt. On the facts established, there fore, Jehandad and Karam Dad should have been convicted under section 325, P. P. C. and Muzaffar and Pehlwan, accused, under section 323, P. P. C. In view of the above discussion we allow the Crown appeal and convict Jahandad and Karam Dad; respondents under section 325, P. P. C., and sentence the former to six months and the latter to three months' rigorous imprisonment. Muzaffar and Pehlwan, respondents are convicted ‑under section 223, P. P. C., and sentenced to pay a fine of Rs. 25 each or in default to suffer one month's rigorous imprison ment each. While imposing these sentences we have taken account of the fact that some injuries were caused to the accused's side also. The appeal is dismissed as against the female respondents. A. H. Appeal partly allowed.