P L D 1962 (W (PLP)

The injuries, which were simple in nature, had been caused with a blunt weapon. The doctor further opined that the injuries could be self‑suffered by a fall. (iii) Mamoon appellant (1) A contused wound, 2" x " x skin deep, on the right side of the head. (2) A contused wound, " x 3/4" x skin deep, on the front side of the head. (3) An Abrasion, " x ", on the left side of the head. (4) A contusion, 2" x 3/4", on the left shoulder. (5) A contusion, " x 1", on the left elbow joint. (6) A contusion, 1 " x 3/4", on the left forearm. (7) A swelling, 1" x 1", on the left palm. (8) An abrasion, " x 1/4", on the right elbow‑joint. (9) A scratch, 1" x 1/10", on the right forearm. (10) An abrasion, 1/4" x 1/8", on the right thumb. (11) An abrasion, 1/5" x 1/8", on the right little finger. All the injuries, according to the doctor, were simple and had been caused with a blunt‑hard weapon. The doctor was also of the opinion that all the injuries could not be self- inflicted or could not have been caused by a fall.

8. The appellants pleaded not guilty and completely denied all the allegations of the prosecution. They not only denied their participation in the assault on the deceased and Uris P. W. they also denied their having received any injuries on their persons, Mamoon appellant denied that the shirt and the hatchet produced in Court belonged to him or that he had used the hatchet for giving a blow on the head to the deceased or for causing any injury to Uris. Similarly, Bachu appellant denied that the bunyan and the loin‑cloth produced in Court belonged to him or that he had joined Mamoon appellant in causing injuries to Uris and Aru deceased. They further denied that they had gone to the ;house of Muhammad Siddiq P. W. after the alleged occurrence or that they had been sent to the medical officer for the examination of their injuries. While Mamoon appellant ascribed the case against them to the enmity of the prosecution witnesses on account of matrimonial affairs, Bachu appellant professed ignorance as to the reason why they had been implicated in this case. He however described the prosecution witnesses as interested witnesses.

9. While Uris and Mst. Sajjan P. Ws. have been put forward as eye‑witnesses regarding the assault on Uris P. W., four persons have been produced by the prosecution as eye‑witnesses of the assault on Aru deceased. They are Uris (P. W. 2), Mst. Sajjan (P. W. 3), Nur Muhammad (P. W. 4) and Sawan (P. W. 5), Muhammad (P. W. 7) has been produced as a person who had arrived at the spot immediately after the occurrence and after the departure of the accused from the spot. He stated that Mst. Sajjan informed him that Mamoon and Bachu had killed Aru and injured Uris on account of the barking of the dogs. We are not satisfied that Mst. Sajjan, Sawan and Nur Muhammad are eye‑witnesses of any part of the occurrence and that Muhammad P. W. had been informed by Mst. Sajjan about the occurrence as related by him in Court. It is significant that neither Mst. Sajjan P. W. nor Sawan P. W. has been mentioned in the first information report lodged by Uris P. W. as either having been drawn to the spot or having witnessed any part o the occurrence. Their testimony has, therefore, to be ruled out altogether from consideration. As regards Nur Muhammad, although he has .been mentioned in the F. I. R. as having arrived at the spot, attracted by the outcries, he has not been mentioned therein as having arrived at the spot in time to see the accused making assault on Aru deceased. He is described in the F. I. R. as having reached the spot when the accused were running away towards their house. In the circumstances, therefore, only Uris P. W. can be treated as an actual eye witness of the occurrence. He has not only lodged the F. I. R. as an eye‑witness of the occurrence but bears the signs of his presence at the occurrence on his person in the shape of the injuries that he received. We are, however, inclined to discount his version as regards Bachu appellant's part in the assault on the deceased. It is only in Court that this P. W., for the first time, mentioned that Bachu caught hold of the deceased when Mamoon gave a hatchet blow on his head. In the F. I. R. he has not ascribed this rule to Bachu appellant. Besides, it appears to us to be rather improbable that Bachu should have considered it necessary to hold the deceased for enabling Mamoon to give a hatchet blow. A person who seeks to catch hold of the victim of an assault with a hatchet runs some risk of being injured himself because in view of the frantic and convulsive moments that a person so held in the grasp of another person is likely to make, the possibility cannot be excluded that a blow, or some of the blows, aimed at the object of the assault, might fall on such a sympathiser. We are, therefore, of the view that Bachu has been credited with the role of catching hold of the deceased merely to satisfy Uris's feelings of revenge against the family of Mamoon appellant who alone was responsible for the killing of his father. But we have no manner of doubt that Mamoon gave the hatchet blow which resulted in the death of Aru deceased.

10. As already noticed, Uris P. W. certainly was present at the time of the occurrence and had engaged in a fight with the two appellants in which fight he received blows from, and gave blows to, the appellants. The medical evidence shows that not only Uris P. W. bore injuries on his person but the two appellants also had between them about 13 injuries on their persons. It is but natural that the outcries raised by Uris P. W. should have attracted his father Aru. The injury caused to the latter, therefore, must have been witnessed by Uris P. W. as he was yet engaged in fight with the two appellants when his father appeared on the scene. The presence of the two appellants at the spot at the time of the occurrence is clear from the injuries that they bore on their persons. From the evidence of Muhammad Siddique P. W. it transpires that Uris P. W. had told him when he met him that the two appellants had fought with him because his bitch had barked at them. The version of the appellants that they were not present at the time of the occurrence and that they had neither received injuries during the occurrence nor had they been examined by the doctor is wholly untenable The two appellants were examined by the doctor on the very day the dead body of the deceased was examined post‑mortem, and the doctor found, as already mentioned, two injuries on the person of Bachu and eleven simple hurts on the person of Mamoon appellant. The absence of explanation of these injuries on the part of the appellants shows that they could not be explained away and had to be accepted on the version given by Uris P. W. to Muhammad Siddique Headman P. W. viz. that they were caused during the fight.

11. What we are left with to examine in this case is what offence or offences have been committed by the appellants in the present case. We have no manner of doubt that the injuries received by Uris P. W. were so received by him at the hands of the two appellants; for both of them bear injuries on their persons, and since this part of their assault has been consistently mentioned both in Uris P. W.'s statement in Court and the F. I. R., we see no good basis for discounting this part of his version, especially when the appellants have not helped the Court by any counter version of the occurrence. But we do not think that when Mamoon appellant can be convicted for an offence under section 326, Pakistan Penal Code, as none of the injuries on the person of Uris P. W. appears to us to be a grievous hurt, to say nothing of it having been caused by a sharp‑edged weapon. Although from the doctor's evidence it appears that Uris P. W. remained in the hospital for about 23 days in connection with the contused wound on his head, we do not feel sure that he could not have been discharged earlier from the hospital, or that he could not have performed his ordinary pursuits during all that period of 23 days. We, therefore, consider that both Mamoon and Bachu appellants are guilty of an offence under section 323, Pakistan Penal Code, so far as the injuries of Uris P. W. are concerned. As regards the assault on Aru deceased, it is clear to us, as already mentioned, that only Mamoon appellant was responsible for this injury. We are unable to accept the suggestion of the appellant's counsel that Uris P. W. had possibly substituted Mamoon for Bachu and that since in view of that possibility the authorship of the fatal injury becomes doubtful both the appellants are entitled to the benefit of doubt. We do not think that with regard to the solitary fatal injury Uris P. W. could have had recourse to the suggested substitution. The very fact that this principal role was assigned to Memoon appellant and a comparatively minor role was attributed to Bachu appellant makes it clear to our mind that Mamoon was the actual and real assailant of Aru deceased. It is difficult for us to believe that Uris P. W. could have found it in his heart not to have ascribed the fatal blow to its real and actual author. In any case, it was for the appellants to lay the foundation in the course of the trial for any such plea of substitution, which they have altogether failed to do, they having contented themselves with a bare denial of the prosecution allegations and with the position that they were not present at the time of the occurrence.

12. Nor do we see any good ground for thinking that the assault on Aru deceased was in exercise of right of private defence of persons of the appellants. From the prosecution version‑we have no other version on the record‑it transpires that Aru appeared on the scene when Uris P. W. was being beaten by the two appellants and that Aru had merely remonstrated with them for their beating Uris P. W. There is nothing on the record to suggest that Aru had gone out armed with a weapon or that he had given some blows to the appellants before he was given the fatal injury by Mamoon. In the circumstances, there fore, it is clear to us that Mamoon was guilty of murder of Aru deceased. And as we do not accept the version that Bachu had caught hold of Aru when Mamoon gave him a hatchet blow, we do not think that Bachu had anything to do with Aru's murder.

13. We do not think that the version given by Uris P. W. in Court that five days before the occurrence the two appellants had broken the back of their dog when it had barked is correct. For one thing, this earlier incident is not mentioned by Uris P. W. in the first information report. Secondly, although the back of the dog has been described as broken by the appellants during that incident, curiously enough‑ in the F. I. R. apparently this very dog has been mentioned as having barked on the night of the murder of Aru instead of the bitch that has been mentioned in Court. It appears to us that the earlier incident had been mentioned by Uris P. W. in order to indicate that the appellants had come to the house of Uris P. W. fully prepared for a fatal assault. But it appears to us that no such incident, as described by Uris P. W. in Court, took place five days before the occurrence and that the two appellants had engaged in a remonstrance and a fight with Uris P. W. for the first time while passing near the house of Uris P. W. and Aru deceased. They had, therefore, not come there with any common intention. The occurrence in which Uris P. W. was given blows arose spontaneously out of mutual recrimination, but Aru deceased appeared on the scene later and without any pro vocation on his part Mamoon appellant gave him the fatal hatchet blow on the head.

16. It was urged by the learned counsel for the appellants that the trial in the present case was vitiated on account of the Sessions Judge not having put all heads of charge to the assessors while inviting their opinion. In this connection, Abdul Majid v. The State (P L D 1960 Lah. 80), Tooh v. The State (P L D 1960 Kar. 1), Muhammad Sajjad and another v. The State (P L D 1961 S C 13) and Noor Hassan v. The State (P L D 1961 Lah. 175), have been cited before us. " We do not think that there is any force in the contention of the appellants' counsel. The: latest legal position as regards the non‑compliance with the requirement of section 309, Criminal Procedure Code, has been enunciated in Muhammad Sajjad and another v. The State. Their Lordships of the Supreme Court in the penultimate paragraph of their judgment observed as follows:‑ "The judgments cited upon section 309, Criminal Procedure Code were delivered in relation to the particular facts of each case, and the only principle which we think can safely be extracted is that non‑compliance with the relevant provision in section 309, although, it might have the full aspect of illegality if no opinions at all were obtained from the assessors on any of the charges, yet if the non‑compliance is in respect only of a ' minor, part of the case as we find it to be here, the contravention would amount ordinarily to an irregularity, and as to an irregularity of procedure, the principle is clear, namely, that it does not vitiate a conviction unless there has been consequential prejudice to the person convicted. In the present case, we find that the failure of compliance is directly connected' with the formation of a correct opinion as to the credibility of the evidence given by the two women witnesses, and upon the answer to that question, the decision in the whole case must naturally turn. Therefore, the prejudice from the failure to question the assessors with respect to the charge under section 323/34, P. P. C., is, perfectly plain." It is clear from the foregoing that the non‑compliance, with section 309, Criminal Procedure Code, has the full aspect of illegality only if no opinion at all were obtained from the assessors on any of the charges, otherwise it is an irregularity even if a minor part of the case has not been put to the assessors for their opinion, which irregularity would not vitiate a conviction unless there had been consequential prejudice to the person convicted. In the case before the Supreme Court it was patent on the record that one of the charges viz., under section 323/34 P. P. C. regarding the injuries caused to two of the witnesses had not been put to the assessors for their opinion. The opinion of the assessors had been invited as regards the guilt of two of the accused for murder of the deceased and regarding the third accused having abetted the murder. In these circumstances, it was that their Lordships of the Supreme Court came to the conclusion that failure to invite the opinion of the assessors on the charge under section 323/34, P. P. C. was "directly connected with the formation of the correct opinion as to the credibility of the evidence given by the two women witnesses, and upon the answer to that question the decision in the whole case must naturally turn. Therefore, the prejudice from the failure to question the assessors with respect to the charge under section 323/34, P. P. C. is perfectly plain."

17. On the strength of the above‑mentioned view of the Supreme Court in Ahmad Khan and others v. The State (P L D 1961 Lah. 543) it was held "Non‑compliance with the relevant provision in section 309 of the Criminal Procedure Code, 1898, although, it might have the full aspect of illegality if no opinions at all were obtained from the assessors on any of the charges, yet if the non-compliance is in respect only of one of the several charges a trial cannot be held to have been vitiated and the contravention would amount ordinarily to an irregularity curable under section 537 of the Code unless there has been consequential prejudice to the person convicted. It is only in exceptional circumstances that omission to question assessors with regard to an offence for which the accused person had been tried would not be curable under section 537 of the Code." The above was a case in which the seven accused were tried under sections 302/149 and 148 of the Pakistan Penal Code and the Sessions Judge at the end of the trial took the opinion of the assessors only with regard to the offence under section 302/149, P. P. C. and not with regard to the charge under section 148, P. P. C.

18. In the present case, there is nothing on the record to warrant the hypothesis that the opinion of the assessors was not invited with reference to all the charges or that the assessors had not given their opinion with respect to any one of the charges. In P L D 1960 Kar. 1, which is a Full Bench case, it was held that "it is not necessary that the opinion of the assessors should be ascertained separately on each charge. The form of questions and answers is not material in this regard, so long as the opinion of each assessor is obtained on all charges without exception." And further: "The provision of law is that the opinion of `each' assessor should be taken on "all' charges. The word `all' is not a synonym of `each' and as both words have been used in one phrase a distinction is to be drawn in their effect. The distinction is that the opinion of each assessor is to be taken separately, but it may be obtained on all charges collectively. The word `all' refers to all the charges that there may be without exception, but does not imply that they must be dealt with one by one either by the Court or by the assessors." The aforementioned judgment dealt with a case in which the accused had been tried for offences under sections 302, 324 and 379 of the Pakistan Penal Code and the opinion of the assessors was invited in the following form :‑ "Q. What is your opinion ?" One of the assessors gave the opinion that the accused was not guilty on all counts. Another contented himself with the opinion : "Accused is guilty", and the other two assessors gave their opinion in the following words:‑ "The accused is not guilty." The objection of the counsel for the State was that the trial had been vitiated as the Additional Sessions Judge did not ask questions regarding each charge separately and that the opinion of the assessors had not been given in respect of every one of the charges distinctly.

19. In the light of the view expressed in the above authority, we do not think that in the present case all the charges were not put to the assessors at the time when their opinions were invited. The‑opinion of the assessors was invited by the Sessions Judge with the following question:‑ "What is your opinion ? Whether the accused are guilty or not?" The assessors' reply was that both the accused were guilty. We fail to understand how it can be inferred from this reply of the assessors that they were not expressing the opinion with respect to all the charges. Nor can it be said that all the charges against the appellants were not present to the mind of the assessors when they gave their opinion, for the notes of the arguments recorded by the Additions 1 Sessions Judge show that the Additional Public Prosecutor in his address had mentioned all the charges against the accused. The opinion of the assessors, therefore, must be considered as having reference to all the charges brought up against the appellants.

20. In view of the above discussion, we uphold the conviction of Mamoon appellant under section 302 of the Pakistan Penal Code but alter his conviction under sections 326 to 323, P. P. C. The conviction and sentence of Bachu appellant under section 323, P. P. C. for the injury of Uris P. W. is upheld but his conviction under section 302/34, P. P C. is set aside and he is acquitted of this offence.

21. It, however, remains to be examined as to what sentence can be awarded to Mamoon appellant for his offence under section 302 P. P. C. There is nothing on the record to suggest any previous enmity except the mention of the previous incident alleged to have taken place five days before the occurrence. We have, as already noted, not believed the reality of that incident. It, therefore, appears to us that the occurrence which culminated in the fatal hatchet blow being delivered by Mamoon appellant to Aru deceased was not the result of any premeditation or any such intention previously formed. It seems to us that Aru deceased must have appeared to Mamoon appellant as being extremely unreasonable in trying to defend, albeit orally, the conduct of Uris P. W. who had not only told the appellants that they could hale a cause of complaint against the barking of the bitch only if she had bitten them but had also started grappling with them during which is even caused them injuries. Although Mamoon appellant cannot be held note to have intended to cause death of the deceased by the assault or the blow that he delivered to him but since we are not sure that it could not be urged in mitigation of his fatal blow that it was somewhat provoked, we consider it safer to award to him D the lesser penalty provided under the law. We, therefore, alter his sentence from that of death to that of transportation for life. His death sentence is, therefore; not confirmed. For his offence under section 323, P. P. C. he is sentenced to one year's rigorous imprisonment which shall be concurrent with his sentence of transportation for life, under section 302 of the Pakistan Penal Code. A. H. Order accordingly.