P L D 1967 Lahore 425 (PLP)

ABDUL GHANI KHATTAK, J.‑The State has come in appeal against the acquittal of Muhammad Hussain, aged 17 years, Allah Ditta, son of Habibullah, aged 25 years, Faiz Rasul, aged 16 years, Muhammad Ramzan, aged 20 years, Allah Ditta, son of Ilahi Bakhsh, aged 19 years and Muhammad Nawaz, aged 20 years, who were tried for offences under sections 302/149, 324/149 and 148, P. P. C. and were acquitted on the 29th of February ,1964, by the learned Sessions Judge, Multan.

2. Karim Bakhsh (P. W. 14) and Abdul Aziz deceased ran a shop jointly. Two days before the occurrence, Abdul Aziz had stopped Muhammad Hussain, respondent, from standing in front of his (Abdul Aziz's) house. On the refusal of Muhammad Hussain, Abdul Aziz slapped him. On the day of occurrence at deegarwela; Abdul Aziz and Karim Bakhsh (P. W. 14) were present at their shop. The deceased was then sitting on the thara of the shop. In the meanwhile, six persons, Muhammad Hussain, Muhammad Ramzan, Allah Ditta, son of Habibullah, Faiz Rasul and two other persons, not in the report, and subsequently found as Allah Ditta, son of Illahi Bakhsh, and Muhammad Nawaz, came armed with knives and sotis. Muhammad Hussain, Muhammad Ramzan, and Allah Ditta, son of Habibullah were having knives while the other three persons were carrying sotis. Muhammad Hussain challenged Abdul Aziz that he was there to take the revenge of his having been beaten by him earlier and plunged his knife in the abdomen of Abdul Aziz followed in quick succession by a blow by Allah Ditta, son of Habibullah at the head of Karim Bakhsh P. W. In the meanwhile, Muhammad Hussain, respon dent, gave another knife blow to the deceased. After the assault had been opened, Ghulam Murtaza (P. W. 15) reached and attempted to intervene in order to rescue the victims. He was attacked with knife by Muhammad Hussain and was struck ‑ on his head. Another blow with' knife was given to Ghulam Murtaza. P. W. by Ramzan, respondent, on his left arm. Ghulam Murtaza gave a lathi blow to Muhammad Hussain as a result of which the knife fell from the hand of Muhammad Hussain. In the meanwhile Qadir Bakhsh (P. W. 16) armed with lathi, Muhammad Shafi (not produced) and Ramzan (P. W. 17) empty handed arrived at the scene. A fight ensued between the witnesses on one side and the six respondents on the other. Having' had some blows from the witnesses with sticks, all the respondents made good their escape leaving behind Muhammad Hussain, respondent, who was held by Ghulam Murtaza. The knife of Muhammad Hussain was picked up by Ghulam Murtaza P. W. and was given by him to Karim Bakhsh (P. W. 14). In the mean while many persons collected round the victims. When Abdul Aziz was being attended to by the witnesses. Muhammad Hussain managed to slip away. The sun had set by then and Abdul Aziz was removed from the spot in a rickshaw to the hospital.

3. Muhammad Nawaz, Head Constable (P. W. 19) received ruqqa Exh. P. M. at about 9 a.m. on 9th 'August 1962 from the A. M. O. Bosan Dispensary intimating about the condition of Abdul Aziz, then alive. The injured person was not in a condition to make statement. Muhammad Nawaz (P. W. 19) proceeded to the spot where he found Ghulam Murtaza and Karim Bakhsh. Karim Bakhsh made his statement Exh. P. U. recorded by Muhammad Nawaz on which the case was formally registered vide Exh. P. K. by Ghiasuddin M. H. C. (P. W. 6) on the 10th of August 1962, at 2 a. m. The knife Exh. P. 1 was recovered vide Memo. Exh. P. A. It was bloodstained. Blood was recovered from the thara of the shop of Abdul Aziz vide memo. Exh. P. D. The injured witnesses were sent for medical exami nation to Bosan hospital. Abdul Aziz was removed to Nishtar Hospital where he died.

4. Dr. Abdul Qayyum Khan (P. W. 1) whose statement before the committing Magistrate was transferred to Sessions file conducted the post‑mortem examination on the dead body of Abdul Aziz, deceased, on the 12th of August 1962, at 5‑30 p.m. and found the following injuries on his person (1) An incised wound 5 " x 1" going in the abdominal cavity eutting the left side of the abdomen 4" below the umblicus running downwards and inwards. (2) An incised wound 2" x " going into the abdominal cavity crossing injury No. 1 about its middle at right angle running from above downwards. (3) An incised wound 1" x 1/2" bone deep on the middle of the chest in front in its middle. (4) A linear scratch 3 " long on the left side of the chest in front 3" below the nipple. (5) A linear scratch 5" long on the left side of the chest and abdominal 2" inner to injury No.

4. The peritoneum was injured under injuries Nos. 1 and 2 and was congested. The stomach was healthy and empty. The small intestines showed two cuts 1" long under injuries Nos. 1 and 2, they were containing digested food material sticking to the mucous memberanes. The sternum showed a cut through and through under injury No.

3. The cause of death, in the opinion of the doctor, was due to shock and haemorrhage due to injuries Nos. 1 and 2, resulting injury to the abdominal wall peritonium and small intestines proving fatal in the ordinary course of nature being antemortem in nature and were caused by sharp‑edged weapons. Injury No. 3 was grievous, antemortem and was caused by sharp‑edged weapon. Injuries Nos. 4 and 5 were simple antemortem and were caused by sharp‑pointed weapon. The probable time between injury and death was about 2 to 3 days and between death and post‑mortem was about 6 hours.

5. To appreciate the evidence of this witness, it is pertinent to mention the injuries of Abdul Aziz found on him, when alive, by Dr. Abdul Hameed (P. W. 2) A. M. O., Bosan Hospital, on the 9th of August 1962, at 9 p.m. (1) An incised wound 1" x 1/4" x deep cavity over the intestine and faeces are coming out. (2) An incised wound 1" x 1/4" x deep into lumen over the intestines and faeces are coming out. (3) An incised wound 2" x 1" x deep into abdominal cavity. (4) An incised wound 1" x 1/6" x 1/6" over the front of chest in the middle. The doctor opined that these injuries were caused by a sharp -edged weapon, and injuries Nos. 1, 2 and 3 were dangerous to life, and injury No. 4 was simple, and probable duration was 4 to 5 hours. On the same day, at about 7‑40 a.m. the same doctor examined Ghulam Murtaza (P. W. 15) and found seven simple injuries on his person, out of which three were incised wounds, three contusions and one abrasion. Injuries Nos. 1, 2, 3 and 7 were caused by sharp‑edged weapon and the rest were caused by blunt object, within 12 to 16 hours of duration.

6. Muhammad Hussain, Allah Ditta, son of Habibullah, and Faiz Rasul, respondents, were apprehended in the hospital on the 12th of August 1962, and Ramzan, respondent, was arrested on the 16th of August 1962. They had injuries of the following description, observed by Dr. Mushtaq Ahmad, Medical Superintendent (P. W. 3) Allah Ditta son of Habibullah. (1) Contused wound on the scalp 2 " x ", scalp deep bone visible, 8" from. the right ear. (2) Bluish swelling on the right shoulder 9 "x 7" spread over the detoid and the scapular area. (3) Contusion mark on the, back 6" x 1 " near the middle line vertical place. (4) Contusion mark 9" X 1 " on the right side of the back of chest lower and middle part near the middle line. (5) Contusion mark 6" x 3/4" on the right side of the chest and abdomen above the right crest of illum. (6) Contused wound " x 1/4" on the back of right hand, base of the right thumb. (7) Contusion mark 2" x 1/6" on the right side of the lower jaw. (8) Contused wounds on a swelling l " x 1", 1/4" x 1/8'' at the back of left elbow. (9) Abraded area 4" x 1" on the left forearm middle. (10) Abraded area "" x " on the right of right elbow. The injuries were simple, caused by blunt weapon, of about 12 to 24 hours duration. Faiz Rasul, respondent. (1) Contused wound 1"x 1/4" on the top of scalp skin deep I" above the left ear. (2) Abraded area on the right shoulder 1 " long. Both injuries were simple, caused by blunt weapon; within 12 to 24 hours' duration. Muhammad Hussain, respondent. (1) Contused wound scalp 24"x 1/4" skin deep, bone visible on the top slightly to the left, and 5" above left ear. (2) Abraded area on the back of the right forearm 3 " x 1/4" on the lower third. (3) Swelling on the back of right hand 3'' x 3 ". (4) Arbaded area 1/2" x 1/4" on the back of the index finger. (5) Contused wound 1/2" x 1/4" on the front of left leg, bone visible. (6) Contused wound 1/2"x 1/2" on the front of right leg middle. (7) Contusion mark 8 " x 3/4" on the back of right arm ver tically place. (8) Contusion mark 4" x 3/4'' on the right shoulder. top and deltoid. (9) Contusion mark 5 " x 3/4" on the back of left chest. (10) Contusion mark 3 "x 1" on the back of neck, lower part. (11) Contusion mark 2 " x 3/4" on the back of left shoulder. All the injuries were simple, caused by blunt weapon, within 12 to 24 hours' duration. Ramzan, respondent. (1) Abraded contusion on the right shoulder back 2 "x 3/4''. (2) Abraded contusion on swelling 2" x 1 3/4", abraded area being 1/2" x 1/4" on the back of right elbow. (3) Abraded areas on the back of forearm, 1 " x 1/4"and 1/2" x 1/4" place 1 " apart. (4) Contusion mark on the right thigh front 3" X 3/4" on the middle. (5) Contusion mark on the right of chest axillary line 3 " x 1/2" in the middle opposite 11 rib. All the injuries were simple, caused by blunt weapon, of about 12 to 24 hours' duration.

7. Allah Ditta, son of Elahi Bakhsh and Ramzan, respon dents, were not mentioned by name in the report made by Karim Bakhsh P. W. In the test identification parade held under the supervision of Khan Safdarullah Khan (P. W. 5), both the respon dents were identified by all the eye‑witnesses including Muhammad Shafi.

8. The prosecution examined at the trial, three witnesses besides Karim Bakhsh, in support of the motive part of the occur rence, Ghulam Ali (P. W. 10) was examined two or three days after the incident. His evidence is that he had seen Muhammad Hussain being slapped by Abdul Aziz, deceased, and that Rahim Bakhsh Kotwal (P. W. 11) was then accompanying him and that they had intervened and separated them. Rahim Bakhsh did not make mention of Ghulam Ali's presence with him at that time. Rahim Bakhsh (P. W. 11) was available to Muhammad Nawaz, Investigating Officer on the day of the occurrence, yet he was examined three days after. Implicit reliance cannot be placed on the testimony of both of them. Similarly Rahim Bakhsh (P. W. 12) cannot be believed as to the earlier incident. It appears that the motive for the occurrence is inspired one. Since the police officer came to the spot of his own motion, therefore motive for the fight was sought to be coined. We are not convinced about the motive story of the prosecution version. Abdul Aziz died, the only survivors to disclose the respondents or any one of them. We, therefore, proceed tee examine as to how far the version of the defence inspires con fidence and whether or not it is in confirmity with the circum stantial evidence. The defence version. is reproduced verbatim, as stated by Faiz Rasul, respondent, in his statement before the C. M.‑ "On the day of the occurrence I and Ramzan accused were coming to bus stand at about 4 p.m., when we came near a tibbi closed to Eid Gah, Lutfabad, Abdul Aziz deceased and Ghulam Murtaza P. W. came up. Abdul Aziz caught me and dragged me to a nearby field, to commit sodomy upon me. I resisted and Ramzan accused came to my rescue but they beat both of us. We raised hue and cry upon which Muhammad Hussain accused and Allah Ditta, son of Habib accused came up and a fight commenced in which we four accused and Ghulam Murtaza, Karim Bakhsh P. W. who had also turned up later and the deceased received injuries. Other persons including Rahim Bakhsh Kudden came up and rescued us. It was mutually decided that the parties did not make a report at the police station. Abdul Aziz was taken from near the tibbi to his shop and we went to Multan for treatment in the hospital where Muhammad Nawaz H. C. came to us on the following day and saw our injuries." This story too cannot be relied upon. The shop of the deceased is far away from the Eid Gah, Lutfabad. Nothing can be gleaned from the evidence to substantiate this plea. No blood is said to have been recovered at this spot nor a trial of blood from the Eid Gah to the shop of Abdul Aziz is stated to have been found. No evidence in support of this plea was produced in defence., Therefore, the plea of the defence did not proceed beyond mere assertion. We are, therefore, convinced to hold that the venue of the occurrence is the shop of Abdul Aziz and no other place. We, however, observe that we are not morally satisfied as to the cause of the incident. As such the case has to be scrutinized on its broad‑features which are these:‑ (a) Excepting Allah Ditta, son of Elahi Bakhsh, and Muhammad Nawaz, the remaining respondents bore the stamp of participation in the fight. The former two, that is, Allah Ditta, son of Elahi Bakhsh and Muhammad Nawaz, were not named in the report. Their complicity in the violence is only based on the identification of them by the witnesses. As an abundant precaution, we give them the benefit of doubt and discharge them. (b) Direct evidence: Besides Karim Bakhsh, the supporting evidence of Ghulam Murtaza (P. W. 15), Qadir Bakhsh (P. W. 16) and Muhammad Ramzan (P. W. 17) leads us to the conclusion that the fight took place in the manner offered by the prosecution. Nothing could be urged against the witnesses to impeach their verasity. Even if it is assumed that Murtaza was interested in Abdul Aziz and Karim Bakhsh, ‑it has not‑been shown that he is inimical to the respondents. By no stretch of imagination, the scene of occurrence is conceivable to have been somewhere else. This being so, the defence has not been able to put off its burden and shift the venue to some other place. Under the circumstances, we do not agree with the finding of the learned trial Court in para. 36 of the judgment and accept as true the perpetration of crime by the four respondents referred to earlier, at the shop of the deceased. (c) The circumstantial evidence in the nature of injuries on the respondents and witnesses does not leave us in doubt about the credibility of the witnesses and the participation of the respondents in the crime.

9. It maybe mentioned that Ch. Nazir Ahmad Khan, learned counsel for the respondents, greatly emphasised the delay in making the report. However, we are not convinced as to how for the delay in this case, under its peculiar circum stances, where the participation of the respondents is an established fact, should be considered as fatal to the prosecution case. The receipt and recording of F. I. R. is not a condition precedent to the setting in motion of a criminal investigation. If the police have their own knowledge or credible information which leads them to the belief that a cognizable offence has been committed, they can of their own motion undertake an investigation. The instant case is exactly on the similar lines. It appears that Muhammad Nawaz H. C. (P. W. 19) came to the spot before the witnesses could make up their mind whether or not the matter should be reported to the police. At least this much is quite clear that the report has not been delayed with a view to falsely implicate someone or to make out a false case against the respondents. It is also probable that with the intervention of third persons the complainants had abandoned the idea of reporting the matter to police, because Abdul Aziz was then alive. In any case, the delay in the particular circum stances of the case does not reflect on the overall result of the case.

10. As regards the finding of the learned trial 'Court in allowing the benefit of doubt to the four respondents, he has erred in coming to that conclusion. The acquittal of the respondents, on being given to them the benefit of doubt, is manifestly wrong and it is not just a question of our taking a view different from the one taken by the learned trial Judge. The evidence in the case as a whole has been misread, and there is a likelihood of a manifest failure of justice. I1: As regards sentence, we consider that of the four respondents Muhammad Hussain alone delivered the knife blows to Abdul Aziz which caused his death, for which he alone is responsible. As we are not legally certain as to what exactly preceded the unfortunate incident, therefore, we are not inclined to impose on Muhammad Hussain the extreme penalty of death. He is, accordingly, convicted and sentenced under section 302; P. P. C. to transportation for life. Muhammad Hussain, Allah Ditta son of Habibullah and Muhammad Ramzan are guilty of causing simple hurts to Karim Bakhsh and Ghulam Murtaza P. Ws. They are convicted under section 324, P. P. C. and sentenced to two years' R. I. each. In the case of Muhammad Hussain the sentences shall run concurrently. Faiz Rasul, respon dent, is guilty of causing hurt with blunt means to the witnesses he is convicted under section 323, P. P. C. and sentenced to nine months' R. I. Muhammad Hussain, respondent, is ordered to pay a fine of Rs. 1,500 to be paid to the heirs of Abdul Aziz deceased. The remaining three respondents, namely, Allah Ditta, son of Habibullah, Muhammad Ramzan and Faiz Rasul are ordered to pay Rs. 300 each to be paid to Karim Bakhsh and Ghulam Murtaza P. Ws. as compensation in equal shares. An already recorded, Allah Ditta, son of Elahi Bakhsh and Muhammad Nawaz, respondents, are discharged. They shall be set at liberty forthwith if not required in any other case. K. M. A. Appeal accepted.