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Criminal Revision No. 489 of 1975, hard on 9th February 1976.

‑‑‑‑S. 438.‑‑Revision‑Re‑trial‑-Evidence appreciation of‑‑Trial Court acquitting accused persons relying on factum of injuries sustained by one of accused persons, not proved according to law‑Court also discarding ocular account of injured eye witnesses for failing to point out specifically as to which of injuries suffered by prosecution witnesses inflicted by which of accused persons‑Accused party admitting occurrence and coming out with its own version: but Court not examining as to which of two versions more compatible with evidence‑Re‑trial ordered, in circumstance.‑[Revision (criminal)‑Evidence‑ [Retrail].

Pir Abdul Hamid v. Nabi Bakhsh arid oihers 1972 P Cr. L J 865 ref.

A. H. Syed for Petitioner.

Mian Qurban Sadiq Ikram for Respondent;.

Sh. Zia‑ud‑Din for the State.

Date of hearing: 9th February 1976.

The accused, on acquittal by M. Bashir Ahmad Rana exercising the powers of a Magistrate of the Ist Class in the District, were acquitted by Order dated 30-11-1974 of offences under sections 148, 452/149, 324/149 of Pakistan Penal Code.

The facts of this case are as follows:‑

That Mst. Zulaikhan P. W. lodged complaint Exh. P. A. with P. S. Mukhad that on 3‑11‑1972 at Rotiwela she was going to the well alongwith her bro ther's wife Mst. Sarwar Jan. When she reached near her parent's house her husband's brother Ghulam Nabi and father‑in‑law Muhammad Ramzan P. W. were standing there. 1n the meanwhile the respondents Gul Muhammad, Mian Muhammad, Sikandar, Aslam and Nek Bakhat reached there, Gul Muhammad respondent had a hatchet in his hand and rest of the respondents were armed with stones. They challenged the afore mentioned P. Ws. and injured Mst. Zulaikhan, Sarwar Jan and Muhammad Ramzan P. Ws. with their respective weapons. Ghulam Nabi P. W. ran away from the spot and as such was saved. The P. Ws. stated that they took refuge in the house of Mst. Sarwar Jan's father‑in‑law but the accused broke open the door and injured them again.

2. The motive for the alleged occurrence is that Ghulam Nabi P. W. who is a goldsmith had a dispute with Muhammad Aslam accused over the sale of some ornaments.

3. The P. Ws. were medically examined. There were five simple injuries on the person of Muhammad Ramzan, one on the head was by sharp-edged weapon and the rest by blunt weapon. Three simple injuries were found on the person of Mst. Sarwar Jan caused with blunt weapon. There were three simple injuries by blunt weapon on the person of Mst. Zulaikhan.

4. The prosecution examined five eye‑witnesses in support of its case. Mst. Zulaikhan P. W. 1, Mst. Sarwar Jan P. W. 2, Ghulam Nabi P. W. 3, Muhammad Ramzan P. W. 4, Nawab Khan, P. W. 7 gave the ocular account of the prosecution case. Dr. Muhammad Rafiq, P. W. g medically examined the injured P. Ws., Muhammad Ramzan, Mst. Sarwar Jan and Mst. Zulaikhan. Exh. P. C., Exh. P. F. and Exh. P. G. are the carbon copies of their medico‑legal reports. Malik Allahyar, A. S. I, recovered hatchet Exh. P. 1 from Gul Muhammad vide recovery memo. Exh. P. B.

5. The trial Court acquitted the respondents. The findings of the trial Court are based on the following considerations

(1) No specific injuries attributed to a specific accused.

(2) The evidence of injured P. Ws. cannot be accepted without a grain of salt.

(3) Nawab P. W. admits that he is not on good terms with the accused.

(4) No independent witness corroborated the prosecution version.

(5) Delay in the F. I. R.

6. As regards the observations of the trial Court that no Specific blow was caused by any specific accused. I find this observation to be the result of misreading of evidence. All the eye‑witnesses have clearly and in unambiguous terms stated about the specific role played by the respondents. Had the trial Court cared to read the evidence, he would have found ocular testimony crystal clear on this point.

7. Next I come to the findings of the trial Court about the statements of injured P. Ws. It is established that Muhammad Ramzan, Mst. Zulai khan and Mst. Sarwar Jan P. Ws. are injured. Their presence at the spot cannot be doubted. A mere conjectural verdict that their evidence cannot be accepted 'with a grain of salt' is not a judicial exercise of discretion.

8. The learned trial Court has further held that not a single independent witness has been produced. This also is against the facts. The trial Court in para. 8 of its judgment found Nawab P. W. 7 to be an independent witness but in para. 11 rejected his statement observing that this witness admitted that he was not on good terms with the accused. This observation is also based on misreading of evidence. This P. W. did not admit that he was not on good terms with the accused rather he denied this suggestion of the defence.

9. The trial Court held that the delay in recording the F. I. R. was used for roping in the innocent, persons. There is no doubt about delay in recording the F. I. R. and also in recording the statements of the P. Ws. under section 161, Cr. P. C. But the delay of lodging the F. I. R. by a lady ha: been explained by her. The delay in recording the statements of the P. Ws. has also been explained and was on account of transfer of investigation from one officer to another. Delay per se is no ground for rejecting the unim peachable creditability of independent and injured P. Ws. whose presence at the spot cannot be doubted. If the trial Court was of the view that some out of the respondents has been falsely implicated. It was his duty to have distinguished their case and give a clear finding on this subject. He has not pointed out as to who is the innocent and why The prosecution evidence consists of ocular testimony, recovery of incriminating articles and corroboration by the medical evidence. The trial Court has misread the evidence on the file and as such caused a miscarriage of justice. He has relied also on the medico‑legal report of Mohd. Aslam accused. This document is not admissible in evidence. The trial Court committed material irregularity in relying on this document as the doctor was not produced to substantiate its contents. M. L. R. can only be used by the doctor for refre shing his memory and cannot be admitted without producing its author.

10. The learned counsel for the respondents has relied on 1972 P Cr. L J 865 in which it was held that "trial Court's view neither perverse nor based on some gross and palpable error in reading of evidence interference in revision held not justifiable." Relying on the said authority I feel that the judgment of the trial Court should be interfered because it is perverse and based on gross and palpable errors in reading of two evidence.

11. The above observation would indicate that the order of the trial Court acquitting the respondents is not correct, legal or proper. It is based on misreading of evidence resulting in miscarriage of justice. As such the case is referred to the respected Lahore High Court under section 438. Cr. P. C. with a recommendation that re‑trial of the respondents be ordered.

This is a report made by the Additional Sessions Judge, Campbellpur, under section 438, Cr. P. C. for ordering a retrial of the accused acquitted by the trial Court.

2. (1) Gul Muhammad, (2) Mian Muhammad, (3) Sikandar, (4) Mst. Nek Bukhat and (5) Muhammad Aslam had been tried under sections 148, 452 and 342/149, P. P. C. by Magistrate 1st Class, Pindigheb for having attacked and caused injuries to Mst. Zulaikhan complainant, Mst. Sarwar and Muhammad Ramzan P. Ws. on 3‑11‑1972 at rotiwela Gul Muhammad was said to have been armed with a hatchet, Mian Muhammad, Sikandar and Aslam with sticks and Mst. Nek Bukhat with stone occurrence, Mst. Zulaikhan complainant and Mst. Sarwar each had received three simple injuries by blunt weapon while Muhammad Ramzan five simple injuries of which one at the head was caused by a sharp‑edged weapon and the remaining with blunt weapon. The prosecution case was supported by the said injured persons as well as ocular witnesses Ghulam Nabi (P. W. 3) and Nawab (P. W. 7). The stand taken by Gul Muhammad accused was that Sadiq and Dilpazir, the brothers of Ghulam Nabi P. W. along with their father Muhammad Ramzan (P. W. 1) had actually attacked Muhammad Aslam accused which had led to a free fight. in the course of which Adam had also received injuries. In support, Ghulam Muhammad had been examined as a witness for defence. The other accused had totally denied their involvement. The trial Court found that the F. I. R. had been filed belatedly and that the prosecution evidence was vague and far too insufficient, and as such acquitted the accused persons by his judgment dated 30-11‑1974. Tile present report had been made upon a revision brought by Muhammad Ramzan P. W. before the Additional Sessions Judge, Campbellpur, who has held the order of acquittal as "not correct, legal or proper".

3. I have gone through the evidence on record as well as the judgment of the trial Court and the report of the revisional Court. I find that the, reasons given by the learned Additional Sessions Judge merit consideration. In the first place, the factum of injuries sustained by Muhammad Aslam had not been proved according to law and yet the trial Court had, on the assumption that the same was in evidence, held the prosecution guilty of suppression of the injuries. Secondly, the trial Court was not justified n holding against the prosecution their failure to specifically point out as to which of the injuries suffered by the prosecution witnesses had been inflicted by which of the accused persons. In a tight involving many persons, particularly if it is a free fight as the accused wanted the Court to believed the prosecution is not expected to account for each and every blow received by the witnesses. Moreover, when the defence itself admits the occurrence but come, out with its own version, the Court has to examine as to which of the two versions was more compatible with the evidence. I need not go into the other points raised by the lower revisional Court as the same may come up for decision in the retrial of the case. The shortcomings pointed out are sufficient to justify the re‑trial of the case. I, therefore, accept the recommendation of the learned Additional Sessions Judge, set aside the acquittal of toe accused and direct that the case be retried against them. It is, however, clarified that none of the observations made in this order or i.e, the order of lower revisional Court should influence the finding of the trial Court. The record of the case shall be returned forthwith.

Revision allowed.

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