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Criminal Revision No. 204 of 1963, decided on 14^th December 1967.

S. 439 read with Ss. 423(1)(a) & 417‑Revision against acquittal‑Order of acquittal not revealing a careful consideration of evidence or an examination of natural probabilities of case but placing defence plea in juxta position with prosecution case‑No appeal filed by State‑Case, held, proper one for ordering retrial‑Order of retrial, however, declined in view, of (i) lapse of 5 years since occurrence and (ii) accused having already undergone agony of trial and suspense besides detention for three years in jail.

Muhammad Siddiq v. Crown P. L D 1954 F C 112 eel.

Mazharul Haq v. Ishaque Sardar and 15 others P L D 1962 S C 480 distinguished.

‑Witness‑Credibility‑Evidence‑Mere fact that witness not found to have told truth in one or two particulars- Not sufficient to ignore whole of his statement.

Emperor v. Muzaffar Hussain A I R 1944 Lah. 97 rel.

Sardar Sami Hayat for Petitioner.

Sardar Muhammad Zafarullah for Respondents.

This Criminal Revision filed by Mir Muhammad com plainant is directed against the order of the Additional Sessions judge, Lyallpur at Jhang, dated 12th December, 1962, whereby he acquitted‑ Farid, Murad and Najabat respon dents and convicted Amir respondent under section 304 Part II of the Pakistan Penal Code, who were all sent up by Bhowana Police of Jhang district, under sections 460 and 302 of the Pakistan Penal Code, read with section 34 of the same Code, on allegations of lurking house trespass and the murder of one Ahmad of Chak‑No. 188/3. B., of that police station on the night between 24tb and 25th of February 1962, in the village. The State has neither filed an appeal against acquittal nor has it cared to 6ftipport or resist the revision petition.

2. The relevant facts giving rise to the case briefly are that on the night between 24th and 25th of February 1962, in the month of Ramazan at about midnight, while Ahmad deceased was sleeping under a thatched roof (chhappar) at his house in Chak No. 188/J. B. his wife was also sleeping on another cot in the same place, and his sister who was married in Chak No. 229 and happened to be on a visit to tier brother, was asleep in the adjoining room, the four respondents who lived in the same compound at some distance armed with sticks entered the house of the deceased having a free access, hurled abuses at him and started showering blows on him with their dangs. Mst. Jannat (P. W. 11) wife of the deceased and Mst. Daulan (P. W. 12) his sister raised alarm which attracted Mir Muhammad complainant (P W. 10) who is the present petitioner and the father‑in‑law of the deceased, living to the same compound, two neighbours Sanatta (P. W. 13) and Muhammad (P. W. 14), Allah Yar of Chak No. 229/J. B. (P. W. 15) who happened to be a guest of the deceased on the fateful night, Mahni (P. W. 16) and Allah Bakhsh (P. W. 17). Significantly enough, none of these witnesses, who, claim to have seen the occurrence and were mostly related to the deceased, had the courage to physically intervene in order to rescue him and confined themselves to malting entreaties to the respondent with folded hands to spare the deceased. Another significant fact, which was revealed to them at the time of occurrence, was that on an enquiry from the respondents as to why were they killing the deceased, the respondents allegedly told them that they had avenged themselves against Ahmad for having illicit connection with Mst. Jawai sister of Amir respondent. Having inflicted as many as twelve injuries on the deceased, the respondents left for their houses and shortly after their departure the witnesses heard the shrieks of Mst. Jawaee who was later found to be injured sustain ing one injury on the head with a blunt‑edged weapon. A lamp was also stated to be burning which facilitated the identification of the respondents. At early dawn what has been described as Dhamiwela, Ahmad deceased succumbing to the injuries expired. Mir Muhammad petitioner then left for the police station Bhowana at a distance of four miles from the spot and reaching there at about 6 a.m. lodged report Exh. P. C. giving a fairly elaborate account of the occurrence.

3. Rana Abdur Rehman, S. H. O., Police Station Bhowana, who recorded the F. I. R. reached the spot at about 8 a.m., prepared injury statement of the deceased Exh. P. H. and his inquest report Exh. P. J. and despatched the dead body for post mortem examination to the mortuary at Chiniot. He took into possession bloodstained earth from underneath the cot on which he saw the dead body lying under the thatched roof, recorded the statements of the witnesses, took into possession bloodstained shirt of Mst. Daulan and the bloodstained clothes of the deceased which were sent by Dr. Muhammad Ismail. In the course of the investigation, he also prepared injury statement Exh. P. K. of Mst. Jawaee showing an injury on the right side of the head with a blunt weapon. She was then referred to the lady doctor for medical examination, but no medico‑legal report in this regard is available. However, later on 2nd March 1962, her internal examination was also conducted by Lady Dr. A. R. Gillani (P. W. 2) who opined that she was used to sexual intercourse. The lady doctor also sent two vaginal swabs to the Chemical Examiner, which were found to be stained with semen, vide report Exh. P. O.

4. Having completed the investigation, the S. H. O. sent up all the four respondents to stand trial under sections 460 and 302 of the Pakistan Penal Code read with section 34 of the same Code.

5. The respondents pleaded not guilty to the charge and denied the allegations in toto. Amir respondent however, admitted before the Enquiry Magistrate that the deceased was carrying on with his sister Mst. Jawaee. The position taken up by him may better be reproduced in his own words: ‑

"I woke up on the night of occurrence at about midnight and saw my sister Mst. Jawaee missing. As I suspected her liaison with Ahmad deceased, I went to the house of Ahmad deceased and found them in a compromising position and on sudden provocation I inflicted injuries on the person of Ahmad deceased. The other accused were not present there."

In answer to another question, he admitted having given a beating to his sister, but asserted that it was done at the spot and not at the house, as alleged. At the trial he modified his stand, denied that his sister had illicit relation with the deceased and offered the following explanation for being implicated in the case:‑

"It was the month of Ramazan, on the day of occurrence, I offered my Isha prayer in the mosque. I wanted to have a huqqa smoke but there was no fire in my hearth. I had good relations with Ahmad deceased and I went to his chhappar to have some fire for my huqqa. On reaching the chhappar of the deceased I heard my sister Mst. Jawai saying to Ahmad deceased 'that her brother (Amir accused) had gone to say his prayers and he (deceased) should make haste. Under the chhappar of Ahmad deceased, fuelwood was burning and I picked up fuel stick from there and gave beating to Ahmad deceased and Mst. Jawai my sister. I gave beating to the deceased and Mst. Jawai under grave and sudden provocation on seeing them together on that odd hour."

No evidence was led in defence.

6. The learned Additional Sessions Judge placed no reliance on the testimony of the eye‑witnesses and, in fact, totally disbelieved the prosecution version mainly for the reason that none of them including six male members, of whom at least four were related to the deceased, had tried to physically intervene in order to rescue the deceased, sustaining not even a scratch. The learned Additional Sessions Judge was further influenced by the presence of semen‑stains on the loin‑cloth of the deceased detected by the Chemical Examiner and as such came to the conclusion that something must have transpired immediately before the occurrence, which afforded provocation to the accused. Yet another fact, which seems to have weighed with him in discarding the testimony of the eye‑witnesses, was the absurdity of the so‑called explanation given by them to explain a first degree burn in an area of 7" X 2" on the back of the right elbow joint and the lower part of the right arm of the deceased pealing off the epidermis. Although I have not been able to spot out or even spell out this explanation from the record, yet according to the learned trial Judge the P. Ws. stated that a fire had been lit by them near the cot of the deceased in order to keep him warm suggesting thereby that the burn had been caused in this manner. Having considered all the pros and cons, the learned Additional Sessions Judge acquitted respondents Nos. 3 to 5 and convicted Amir respondent No. 2 under section 304, Part II of the Pakistan Penal Code awarding him three years' rigorous imprisonment, on the basis of his own plea.

7. The learned counsel for the petitioner raised the follow ing contentions before me:‑

(i) that the learned Additional Sessions Judge had‑ wrongly discarded the testimony of the eye‑witnesses on grounds of their relationship and failure to take up cudgels to save the deceased. It was argued that at least there was no justification to disbelieve the two independent witnesses Sanatta (P. W. 13) and Muhammad (P. W. 14) and Mst. Daulan (P. W. 12) whose shirt was also found to be bloodstained;

(ii) that the learned trial Court's judgment was based on surmises and conjectures and the conclusions arrived at by it were not warranted by evidence which rendered the judgment unsustainable;

(iii) that under section 105 of the Evidence Act, the onus probandi had shifted on Amir respondent who had claimed benefit of Exception 1 to section 300, P. P. C., which had not been discharged by him particularly in view of the inconsistent pleas taken by him during the enquiry and the trial; and

(iv) that no finding whatever on charge under section 460, 'P. P. C. was given by the learned Additional Sessions Judge which omission was vitiative of the trial.

8. On the other hand, the learned counsel appearing on behalf of the respondents contended that in the absence of any State appeal against acquittal this Court should be slow in interfering with the trial Court's judgment in exercise of revisional jurisdiction unless it was perverse or foolish; that the trial Court which had the advantage of seeing and hearing the witnesses had entirely disbelieved the prosecution story, resting on the testimony of the eye‑witnesses who were all disbelieved, and had convicted Amir respondent solely on the basis of his own statement and as such there was hardly any occasion for this Court to interfere in exercise of its revisional jurisdiction.

9. The first contention raised by the learned counsel does not appear to be without substance. The absence of any evidence regarding the existence of a liaison between the deceased and Mst. Jawai, the failure of the P. Ws. to use force in order to rescue the deceased, and the accused having first hurled abuses before opening their assault on the deceased, are not sufficient grounds to discard the testimony of the eye‑witnesses. No doubt, the prosecution fails to disclose a convincing reason why the respondents should have chosen the time of midnight in the month of Ramzan for avenging an insult, and it appears' difficult to believe that there was no immediate motive which had provoked the alleged assault. The position is made further doubtful by the existence of semen‑stains on the loin‑cloth of the deceased and the simultaneous beating given by the respondents to Mil. Jawai. From this one is driven to the irresistible conclusion that something had transpired immediately, before the occurrence, which led to the attack. But nonetheless it appears to be going too far to disbelieve all the prosecution witnesses in toto. Mir Muhammad complainant‑petitioner undeniably lived in the same Ihata and would naturally have been attracted to the spot. For a similar reason the presence of the two ladies Mst. Jannat (P. W. 11) and Mst. Daulan (P. W. 12) at the relevant time cannot be denied. The existence of bloodstains on the shirt of Mst. Daulan who was on a visit to the house of her deceased brother, establishes beyond doubt her presence at the relevant time. Further, nothing material could be extracted from Sanatta (P. W. 13) and Muhammad (P. W. 14) in cross- examination, which could in any manner justify the rejection of their testimony. They appear to be disinterested witnesses who were attracted to the scene of occurrence on hearing the alarm. There is nothing improbable in their depositions that they entreated the assailants with folded hands not to kill the deceased. They even pushed them away, though none took up cudgels to rescue the deceased. The account given by the P. Ws. is quite consistent and devoid of any material discrepancies.

10. It does not stand to reason either that only one of the respondents, who were tenants of Mahni (P. W. 16) owning no land of their own, should have the courage to go single‑handed and shower as many as 12 blows on the deceased in his house. Besides the disproportionate number of injuries, there is yet another basic falsity in the inconsistent stand taken by Amir respondent that he had dealt the blows single‑handed to the deceased with a burning piece of wood. Neither the site of the solitary burn on the back of the right elbow and the lower part of the right arm, nor its area 7" x 2' would indicate that even this was caused by a burning piece of wood, not to speak of the remaining eleven injuries with no indication of any burning or scorching. The explanation of the burn given by the learned Additional Sessions Judge that the deceased got the burns after he had fallen on the fire, appears to be quite plausible and as such would completely falsify the version given by Amir respondent.

11. The view taken by the learned Additional Sessions Judge would be clear from the following observation made in para graph (16) of the judgment:‑

As I have already stated above there must have been some immediate action of the deceased to give provocation to the accused and as I have disbelieved the prosecution version, I have no alternative but to accept the statement of the accused."

As stated earlier, the reasons given by the learned Additional Sessions Judge to discard the entire testimony of all the eye witnesses are not based on a correct appreciation of the princi ples of administration of criminal justice, and as such the judgment of acquittal is open to serious question, notwithstanding the fact that in all probability, something had actually transpired which gave immediate provocation to the respondents. It may, however, be observed in this context that the evidence of the existence of semen‑stains as established by the Chemical Examiners report on examination of the vaginal swabs of Mst. Jawai taken on 2nd March 1962, i.e. seven days after the occurrence, would be simply worthless and of no consequence. Admittedly, the deceased was assaulted while sleeping under his chhappar, and in view of what has been said earlier there appear to be no good reasons at least to discard the testimony of Mir Muhammad, Mst. Jannat and Mst. Daulan despite their relationship with the deceased, inasmuch as they were natural witnesses and their testimony received corroboration from medical evidence and the beating given to Mst. Jawai. Mir Muhammad promptly lodged the report at the police station giving details of the occurrence and the part played by each accused. It may also be pointed out that the testimony of Mst. Daulan has been obviously miscons trued on a material point when she denied the suggestion in cross‑examination that the accused were carrying fuelwoods. She was confronted with her statement before the Committing Magistrate where she only stated that the accused carried "wood pieces". As such the impression given by the trial Judge in his note "confronted so recorded" is wholly erroneous. 1n short the, judgment does not reveal a careful consideration of the evidence, or an examination of the natural probabilities of the case, placing the defence plea in juxta‑position with the prosecution case as laid down in Muhammad Siddiq v. Crown (P L D 1954 F C 112). It also overlooks the well‑settled principle as held in Emperor v. Muzafar Hussain (A I R 1944 Lah. 97), that if a witness is not found to have told the truth in one or two particulars the whole of his statement cannot be ignored and the Court has to sift the grain from the chaff.

12. The upshot of the discussion is that in the absence of an appeal filed by the State, it would be a proper case for ordering, a retrial. But there is yet another important consideration, which cannot be lost sight of. The occurrence took place on the night between 24th and 25th February 1962, and the impugned judgment was passed on 12th December 1962. Five years have passed since then and in the meantime Amir respondent has already been released after having undergone the entire terms of a sentence of three years' R. I. It is not in accord with the convention of this Court to order a retrial of a case after the lapse of five years when the respondents nave already undergone the agony of trial and suspense besides the detention of Amir respondent for three years in jail. The only case in which their Lordships of the Supreme Court directed commitment of the accused for trial in a case under section 302, P. P. C. whose discharge by the Court of Committal was upheld up to the High Court, after a period of about four years is that of Mazharul Haq v. Ishaque Sardar and 15 others (P L D 1962 S C 480). But the position in that case was obviously distinguishable. Thus in spite of my inability to uphold the impugned judgment, I decline to order a retrial. The Criminal Revision is disposed of accordingly.

Order accordingly.

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