1996 P Cr (PLP)

7. The same day he medically examined Nazir Ahmad son of Kabir Khan and fond 5 simple injuries on his person. Exh.P.C. was the correct carbon copy of his M.L.R. All the injuries on his person were simple in nature, as opined by him, vide Exh.P.C./1.

8. The same day at 9-20 p.m. he medically examined Ali son of Elahi Bukhsh and found 2 injuries, two lacerated wounds and, six bruises, on his person, all were caused within 2 to 4 hours and Exh.P.D. was the correct carbon copy of his M.L.R. He had opined that Kabir Khan, Nazir Ahmad and Ali were fit to make statement vide Exhs.P.E., P.E./1 and P.E./2. He also produced X-ray report of injury No. l on the person of Kabir Khan which was declared grievous.

9. Dr. Muhammad Arshad, M.O. D.H.Q. Hospital, Dera Ghazi tan stated that on 1-2-1979 at 3-30 p.m. he medically examined Elahi Bukhsh accused and found 2 abrasions on his person which were simply caused by blunt weapon within the probable duration of 2 days. Exh.P.F. was the carbon copy of his M.L.R.

10. On the same day he also examined Ghulam Shabbir accused and found in all 3 injuries, one abrasion and two contusions, on his person. All the injuries were simple in nature, caused by blunt weapon within the probable duration of 2 days. Exh.P.G. was the correct carbon copy of the M.L.R. He also examined Munir Ahmad accused on the same day and found three injuries on his person caused by blunt weapon within a duration of 48 hours. Exh.P.F. was the correct carbon. He also examined Saeed Ahmad accused and found three injuries on his person caused by blunt weapon within the duration of 48 hours. Exh.P.J. was the correct carbon copy of the M.L.R. It is not understandable why the trial Court allowed this witness. to be cross-examined by Public Prosecutor he excluded the likelihood of any injury on the persons of the aforesaid accused as having been caused by friendly hands. Ghulam Qadir, Inspector P.W.3 stated that he had partly investigated the case while he was posted Inspector, C.I.A., Dera Ghazi Khan in July, 1979. He verified the investigation conducted previously and had directed that the accused in the case shall be challaned. The accused in the counter-case were found innocent by him and he recommended that they be got discharged. In cross-examination he had admitted that he had recorded statement of any witness under section 161, Cr.P.C. and that the record of the cross-case was not before him. He admitted that he did not remember the details of the cross-case, the names of the accused, names of P.Ws. and even the place of occurrence. He also did not remember whether before recommending the discharge of the accused in the cross-case he had made any inquiry from M.O. and could not give the reasons for which he had recommended the discharge of the accused in the cross case. Fateh Muhammad F.C. P.W.4 had escorted the dead body of the deceased to the mortuary and after the post-mortem examination the doctor handed over to him the last-worn clothes of the deceased namely Chaddar P.1, Kurta P.2, turban P.3 which he produced before the Investigating Officer who secured the same vide memo. Exh.P.K. On 18-3-1979 Muhammad Siddique H.C had handed over to him three sealed parcels which he delivered intact on 20-3-1979 in the office of the Chemical Examiner, Lahore. Muhammad Siddique H.C. P.W.5 was the Moharrir at the relevant time of Police Station Jampur. Shakir Ali, A.S.-I. handed over to him one sealed parcel on 1-2-1979 and two sealed parcels on the following day which he transmitted to the office of the Chemical Examiner, Lahore through Fateh Muhammad P.W.4. The witness also stated that Shakir Ali, A.S.-I. has since died and he was familiar with his handwriting and signatures. F.I.R. Exh.P.L. was in his hand, Exh.P.M. was also scribed by the said A.S.-I. Exh.P.O., Exh.P.E., Exh.P.E./1, Exh.P.E./2, Exh.P.P., Exh.P.Q., Exh.P.R., Exh.P.S. were recorded and signed by the said-A.S.-I. Exh.P.T., Exh.P.T./2, Exh.P.U., Exh.P.V., Exh.P.W., Exh.P.X., Exh.P.Y., Exh.P.Y./l, Exh.P.Z., Exh.P.Z./l, Exh.P.AA./l, Exh.P.BB., Exh.P.BB./l, Exh.P.CC., Exh.P.CC./l, Exh.P.DD., Exh.P.DD./l, Exh.P.EE., Exh.P.EE./l, Exh.P.FF., Exh.P.FF./1 the red notes on Exh.P.GG. and its duplicate Exh.P.GG/1-2 were in the hand of said Shakir Ali, A.S.-I. He admitted in the cross-examination that all the documents prepared by the A.S.-I. Shakir Ali deceased, referred to above by him, were not prepared in his presence nor did he accompany him to the spot for investigation purposes. P.W.6 Muhammad Nawaz, Patwari prepared site plan Exh.P.GG. and its duplicate Exh.P.GG./1-2 at the instance of police and on the pointing out of the P.Ws. in the scale of 40 Karams to an inch and all the drawings and writings were in his hand.

11. Mehr Ali P.W.7 stated that in his presence the Investigating Officer recovered the dead body of Muhammad Sharif deceased from the Dera of Ahmad Bukhsh (deceased accused) vide memo. Exh.P.T. which he signed. Blood stained earth was also collected in his presence, sealed into a parcel and secured. The memo. was signed by him. P.W. also identified the dead body at the time of post-mortem examination. Khair Muhammad Shah P.W.8 was also the marginal witness of Exh.P.T. Pahelwan P.W.9 stated that he was associated with the investigation of the case. In his presence Sotas P.4, P.5, P.6, P.7, P.8, P.9, P.10 and P.11 were recovered from the accused by the A. S.-I. and secured vide memo. Exh.P.Y., Exh.P.Z., Exh.P.AA., Exh.P.BB., Exh.P.CC., Exh.P.DD., Exh.P.EE. and Exh.P.FF. Chandi P.W.10 was also the marginal witness of recovery memo. alongwith Pehalwan P.W.9. Both of them were closely related to Allah Ditta. Allah Ditta P.W.11 was the first informant who narrated almost the same story that he had mentioned in Exh.P.L. In his presence the statements of the injured were recorded and Investigating Officer and taken into possession blood-stained shirt P.4/1 and Chaddar P.5/1 from the person of Ali P.W, and secured vide memo. Exh..P.P., Blood-stained shirt P.6/1, was removed in the presence, of Kabir P.W. which was secured vide memo. Exh.P.R. and similarly shirt P.7/1 was removed from the person of Nazir P.W. and taken into possession vide memo. Exh.P.Q. He also narrated the relationship of the accused inter se and factum of going to the spot of the Investigating Officer. Ali P.W.12, Nazir P.W.13 and Kabir Khan P.W.14 were the injured P.Ws. They narrated the occurrence in their own manner and the improvements made by them were confronted with their previous statements.

12. On 16-2-1980 Additional Public Prosecutor tendered in evidence report of Chemical Examiner Exh.P.HH. and that of the Serologist Exh.P.JJ. Allah Dawaya, Lal Khan and Rahim Bukhsh P.Ws., Additional P.P. gave up as unnecessary. He also gave up Nafis Ahmad, S.-I., Amir Bukhsh and Rasul Buksh P. Ws. as having been won over and closed the case of the prosecution.

13. The accused were examined under section 342, Cr.P.C. They claimed innocence. Ahmad Bukhsh accused stated that unlicensed gun was recovered from Muhammad Sharif and he and Mumtaz accused witnessed the recovery and Allah Wasaya had moved the application for apprehension of breach of peace and that the complainant party challenged them. They ran towards to the sugarcane crusher and complainant party consisting of Ali, Allah Ditta, Shamla, Kabir, Nazir and Muhammad Sharif deceased, armed with Sotas, while Allah Dawaya armed with pistol followed them and opened attack. His sons Munir Ahmad, Shabbir Ahmad and Saeed Ahmad, who were working at the sugarcane crusher, felt a danger at the hands of the complainant party. They all picked up the sticks and gave injuries to the complainant party in their self-defence. The accused party ran away leaving Sharif deceased, in an injured condition, at their sugarcane crusher. The complainant party in collusion with one Sardar Nasrullah Khan Darishak, a former Provincial Minister, falsely got involved all the male members of their family in the case. Allah Wasaya, Ghulam Qadir, Hazoor Bukhsh and Allah Bukhsh were not present at the spot.

14. The accused in their defence produced Fazal Hussain D.W.1, Jan Muhammad D.W.2 and closed their defence. Both the D.Ws. supported the version of the accused that the complainant party had trespassed into the lands of the accused party and were caused injuries in retaliation and they ran away leaving Muhammad Sharif deceased at the spot.

15. I have heard the learned counsel for the appellants, learned counsel appearing on behalf of the State and learned counsel appearing on behalf of the complainant. Learned counsel for the appellants contended that the dead body of Muhammad Sharif was' recovered from the place owned by them and that injury No.5 on his person was a fabrication and that the complainant party was the aggressors and the version of the accused was not only plausible possibly true. In view of the fact that some of the accused were injured; the head injury was given to Muhammad Sharif by Ahmad Bukhsh deceased accused, there is nothing to show that there was some common object of roiting and that they found unlawful assembly offence under section 148, P.P.C. was not made out and provisions of section 149, P.P.C. were not applicable; the offence under section 342, P.P.C. was not made out and the accused, if at all found guilty were responsible for individual act attributed to them.

16. Learned counsel appearing on behalf of the State, as supported by the learned counsel for the complainant, controverted the pleas raised by the learned counsel for the appellants. It was contended that the accused having taken up the plea of self-defence were bound to prove the same and in such circumstances the occurrence shall be presumed to have taken place as narrated by the P.Ws. He submitted that the accused were aggressors and they caused as many as 24 injuries to the complainant side, of which head injury of Sharif deceased was grievous and fatal which was attributed to Ahmad Bukhsh the deceased accused and one injury on the arm of Kabir Khan was also found grievous which was attributed to Allah Wasaya and the other accused also having the specific role of rioting and giving injuries to the P.Ws. and deceased, the offence under section 148/342 were also made out and similarly the provisions of section 149 were applicable.

17. Vide judgment under appeal the Sessions Judge, Rajanpur had recorded the conviction under section 325/149, P.P.C. of all the accused and had also convicted under section 148, P.P.C. and under section 342/149, P.P.C.

18. The trial Court failed to appreciate that the Investigating Officer had not appeared as witness in Court, may be out of his sad demise but his non appearance in the witness-box has caused tremendous prejudice to the accused. There was a counter-version which was also investigated by Shakir Ali, A.S.-I. the Investigating Officer of this case. P.W.3 Ghulam Qadir, Inspector had stated that he had recommended for discharge of the complainant party from counter case. He had failed to record any reason for the same as such he also failed to state counter-version. I shall give benefit of doubt to the accused in the present case. I am, therefore, of the view that the prosecution has failed to prove the formation of any unlawful assembly and commission of rioting and further commission of offences in furtherance of the common object. I would proceed further to discuss the conviction and sentences.

19. As a result of my view expressed above the conviction of the accused under section 148, P.P.C. is set aside. They are acquitted of the charge. The C prosecution has failed to prove the charge under section 342, P.P.C. and accordingly the accused are acquitted of the charge.

20. Coming to conviction under section 325/149, P.P.C. it would suffice to say that I have acquitted the accused from the charge under section 148, P.P.C. and, therefore, the provisions of section 149, P.P.C. shall not apply and accused shall be responsible for the act committed by them individually.

21. Injury No.2 on the person of Muhammad Sharif deceased was found grievous and fatal the same was attributed to Ahmad Bukhsh who has since E expired and conviction cannot be recorded against a deceased. None of the injury on the persons of the P.Ws. except injury No.2 on the person of Kabir Khan P.W.14 has been specifically attributed to any of the accused. Injury No. l of P.W.14 which was found to be grievous was attributed to Allah Wasaya accused/appellant. All the other accused are extended to the benefit of doubt and are acquitted of the charge under section 352, P.P.C. 21 As Allah Wasaya was attributed specific grievous injury on the person of Kabir Khan his conviction under section 325, P.P.C. is upheld. He is facing the protracted trial since 1979 and had been in jail for the long time. The sentence awarded to him by the trial Court is reduced to the sentence already undergone by him. He is on bail. He is discharged of the bail bonds.

22. The appeal is accordingly disposed of. N.H.Q./G-16/L Order accordingly,