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Criminal Appeal No. 484 of 1963, decided on 10th January 1966.

Ss. 154, 156 & 157‑Investigating agency at loggerheads with complainant Police investigating officer has right to sponsor version he considers correct and cannot be constrained to produce all evidence produced before him.

Moonda and others v. State P L D 1958 S C (Pak.) 275 distinguished.

Jaimal Singh and another v. Emperor A I R 1939 Lah. 523 ref.

Ss. 233,239(a), 173, 154 & 4(h)‑First Information Report lodged against one set of accused Investigating agency sticking to different version and putting up challan against different set of accused‑Joint trial of both sets‑Not bad.

(1930) 211 C 1963; Ali and others v. The Crown P L D 1954 Lah. 183; Azim‑ud‑Din v. Emperor 14 Cr. L J 563; Intaj Khan v. Emperor A I R 1934 Rang. 193; Nga Sar Kee v. The King A I‑R 1939 Rang. 390 and Rahat Hussain and others v. Emperor A I R 1933 All. 582 ref.

Ss. 32, 386 & 537 Fine, sentence of‑Magistrate failing to mention offence under which fine imposed‑Sentence of fine set aside although omission, held, curable under S. 537.

Mahmood Zaman for Appellants.

Nemat Ullah Khan for A.‑G. for the State.

Date of hearing: 26th November 1965.

This is an appeal against the order of Mr. Saadat Nawaz Khan, Magistrate Section 30, Gujranwla, dated the 16th of August 1963, whereby he convicted the appellants under sections 326/149 and 148, P. P. C. He sentenced Fayyaz and Shafi appellants to four and a half years R. 1. each under section 326/149, P. P. C. and three months' R. I. each under section 148, P. P. C. The rest, namely, Zilledar, Muhammad Yaqub, Ghulam Rasul, Nawab and Nazir were sentenced to one year's R. I. each, under section 326/149, P. P. C. and three months' R. I. each under section 148, P. P. C. The sentences were, however, to run concurrently. A fine of Rs. 20 each, or seven days' further R. I. in default of payment thereof was also imposed though the section under which it is given is not clearly indicated.

2. The facts giving rise to this appeal are that on the 22nd of March 1962, at 4‑00 p.m. Muhammad Siddiq complainant who appeared as P. W. 2 was proceeding from chah (well) towards the village carrying fodder. When he reached near the graveyard all the appellants emerged from the wheat field of Babu Rajput. Shaft and Fayyaz were armed with spears while the rest bad sticks with them. Nazir and Shafi exhorted their companions to have done with Muhammad Siddiq who threw away the bundle of fodder. Shafi appellant gave him a spear blow which hit him on the outer aspect of the right arm above the elbow and Fayyaz gave him a spear blow on his left arm. Jamadar hit him with a stick on his head which felled him. Then all showered blows on him. On his alarm, Khalil, Qudrat Ullah and Hanif reached the spot from the village and saw the occurrence. The alleged motive for the assault was that about three months and a half earlier the shop of Sadar Din, brother‑in‑law of Muhammad Siddiq was burgled and the matter was reported to the Police. The houses of Fayyaz, Shaft, Ghulam Rasul and Nawab were searched as suspects: A few days prior to this occurrence, Muhammad Shafi appellant abused Muhammad Siddiq complainant for having mentioned his name as a suspect in the theft case and threatened him with dire consequences.

3. Having sustained 27 injuries, Muhammad Siddiq was removed to Gujranwala. He was examined by doctor Muhammad Yusuf (P. W. 1) A. M. O., Civil Hospital, Gujranwala, on the same night at 11‑30 p.m. Out of the 27 injuries found on his person injuries 5, 6, 14, 16, 24, 26 and 27 were found to be inflicted with sharp‑edged weapons while the rest with blunt weapons. Injury No. 5 was held grievous while injuries 1, 14, 16, were kept under observation of which No. 16 was subsequently found to be dangerous. The doctor forwarded the medico‑legal report to the Officer In charge Police Post, Civil Lines, Gujranwala, along with ruqqa Exh. P. B. for necessary action. It was also mentioned therein that Muhammad Siddiq was not fit to make a statement. On receipt of this information, Muhammad Shafi Head Constable (P. W. 7) proceeded to Civil Hospital and recorded the statement of Muhammad Siddiq Exh. P. D. who was found at that time fit enough to make a statement. He also took into possession blood‑stained shirt of Muhammad Siddiq vide memo. Exh. P. H. Since the occurrence took place in the jurisdiction of Ahmadnagar police station, the same was forwarded to Mr. Muhammad Akram, S. H. O., Ahmadnagar, who on the same day formally registered the case vide Exh. P. D/1. Thereupon, S. 1. Muhammad Akram (P. W. 9) proceeded to the place of occurrence. He took into possession blood‑stained earth from the spot, made it into a sealed parcel, and also prepared the site plan Exh. P. J. On the following day, Nawab appellant produced before him a dang which was also taken into possession vide memo. Exh. P. G. Having arrested all the appellants on the 24th of March 1962, he handed over the investigation to A. S. I. Sultan Ali (P. W. 10) and himself proceeded on leave. Ch. Sultan Ali completed ‑the investigation and submitted the challan. It appears that while the challan was being checked and scrutinised by the prosecution branch, the Superintendent of Police ordered re‑investigation of the case and deputed Agha Zaka Ullah, Inspector, C. I. A. who completed the investigation and submitted the challan on 24th April 1962, only against Fayyaz appellant and one Latif who was acquitted by the trial Court. The rest of the appellants who had already been bailed out on the 18th of April 1962, were mentioned in column 2. , In the calendar of witnesses, the names of Muhammad Aslam, son of Muhammad Siddiq and Nawab Khan of village Hasan WAR were substituted for those of Khalil Ahmad, Qudrat Ullah and Muhammad Hanif, who were mentioned in the first information report as eye witnesses.

3. Simultaneously with the challan Muhammad Siddiq complainant also filed a complaint Exh. P. E: reiterating the account given by him in the F. I R. He further alleged that the police had deliberately spoiled his case at the instance of Farzand Ali, a cousin of Ghulam Rasul appellant who being a Member of the Union Council, was very influential and, friendly with the police. It was also stated that his son Muhammad Aslam, aged 7 or 8 years, was not present at the time of occurrence while Nawab of village Hasanwali was inimical to him. On this complaint, the learned Magistrate. recorded the statement of Muhammad Siddiq on the 3rd of May 1963, and summoned all the other appellants mentioned in the F. I. R., along with Fayyaz and Latif against whom the challan was put in.

4. Both the challan and the private complaint filed by Muhammad Siddiq were amalgamated for purposes of trial. An interesting situation arose when Nawab Khan (P. W. 3) was produced in the Court. The learned counsel for Muhammad Siddiq complainant objected to his examination on the ground that the name of the witness did not appear in the F. I. R. and he being inimical to the complainant would not tell the truth as a relation of the latter had appeared as a prosecution witness against the sot. of the former in a rape case. The P. S. I. conducting the case on behalf of the State was equally adament and insisted on the production of the witness claiming to have unfettered discretion in the matter. The learned Magistrate resolved the conflict by examining Nawab Khan and Muhammad Aslam, son of the complainant who both were cited by the Investigating Inspector as prosecution witnesses and Khalil Ahmad and Qudratullah as C. Ws. They were examined as C. W. 1 and C. W. 2 respectively, there being no reference to Muhammad Hanif, the third witness mentioned in the F. I. R. Nor is there anything on the record to indicate why it was not considered necessary to examine him.

5. The appellants pleaded not guilty. Their co‑accused, Latif denied the charges and further added that Fayyaz appellant and his co‑accused Baboo had ejected the complainant from the land for non‑payment of batai and feeling aggrieved, he had brought a false case against all of them. Two witnesses were also produced in defence. Farzand Ali D. W. 1, a local member of the Union Council stated that Qudratullah C. W. along with his father and brother had gone from village Durveshke eight years before and had settled in Gujranwala leaving their land in the supervision of Abdul Ghafur, Isman and Nasir‑ud‑Din. He further stated that Khalil C. W. had no land in village and mostly stayed away. He also supported the appellants version that Nawab, a cousin of Fayyaz had ejected the appellant from the land for non‑payment of batai. He introduced the plea of alibi on behalf of all the appellants, a plea which was not taken by any one of them, saying that on the 22nd of March 1962, Le: on the day of occurrence the Tahsildar, Qanungo and Patwari remained present in the village in connection with consolidation work till 7 or 8 p.m. and the accused also remained present there throughout with them. He further stated that he joined the investigation. In cross‑examination he was constrained to admit what he had denied earlier that he was a cousin of Ghulam Rasul appellant. Ghulam Qadir who was also a member of the Union Council was a resident of adjoining village Amirpur. He supported Farzand Ali (D. W. 1) by stating that he had been summoned by the Girdawar and Patwari in connection with consolidation work and all the appellants and D. W. 1 were there till about 7 or 8 p.m. He added, that he had joined investigation of the case and had brought this fact to the notice of the police. In cross‑examination he denied enmity with the complainant and admitted that his brother‑in‑law Ali Muhammad was arrested in a murder case of Allah Din.

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.

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