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Criminal Revision No. 231 of 1981, decided on 24th April,1982.

‑‑S. 326‑‑Opinion of Investigating Officer‑‑Accused declared innocent by Investigation Officer‑‑Magistrate acquitting accused on basis of such opinion‑‑Held, trial Court should not have been influenced by opinion of Investigating Officer as he was required to form his own opinion based on evidence on record.‑‑[Investigation].

Zafar Iqbal Chaudhry for Petitioners.

Ashfaq Ahmad for the State.

Date of hearing: 24th April, 1982.

Bagh Ali and Munir Ahmad were tried alongwith Muhammad Siddique, Karamat Ali and Rafiq by Mr. Munir Mubarik, Magistrate Section 30, Okara, who by his order, dated 19‑5‑1981 giving benefit of doubt acquitted Karamat, Rafiq and Muhammad Siddique but convicted Bagh Ali and Munir Ahmad petitioners under section 326, read with section 34, P.P.C. and sentenced them to four years' R.I. each and a fine of Rs.1,000 each. In default of payment of fine to undergo further R.I. for six months. Both the sentences were ordered to run concurrently. Their appeal failed before the learned Additional Sessions Judge, vide his order, dated 21‑10‑1981. Being aggrieved the petitioners have challenged their conviction and sentence through this revision.

2. The incident had taken place at 9 a. m. on 9‑12‑1980 near Chah Shareenwala in the vicinity of village Kanipur.

3. Brief facts of the case are that on 9‑12‑1980 at morning time Muhammad Sadiq complainant P.W.3, Manzoor Ahmad P.W.1, Noor Jamal P.W.4, Ahmad Din P.W.2 and Muhammad Shakir (not produced) were going to Mauza Sherkot to offer condolence to bereaved family of late Noor Muhammad. At about 9 a.m., when they reached near Chah Shareenwala, they were surprised by Muhammad Siddique (acquitted accused) armed with pistol, Muhammad Rafiq (acquitted accused) armed with a dagger, Karamat (acquitted accused) armed with a Sota while Bagh Ali petitioner had a Toka and Munir Ahmad petitioner a pistol in his hand. All of them raised Lalkara that they would not allow Muhammad Sadiq to go alive and simultaneously launched attack on him. Muhammad Siddique was the first to fire at him which hit him in his left flank as a result of which he fell down. Karamat gave him Sota blows on the head. The companions of Muhammad Sadiq complainant attempted to intervene but Munir Ahmad petitioner started firing at threatened them that, whosoever came near, shall be murdered. Karamat took Muhammad Sadiq complainant in his grip while Bagh Ali petitioner caused numerous injuries on his right leg with Toka.

4. The motive behind the occurrence was stated to be the prolonged litigation between Muhammad Sadiq complainant and the accused.

5. Muhammad Sadiq (injured) was removed to Civil Hospital where he was provided medical aid. Capt. Dr. Arshad Rashid, Medical Officer Baseerpur P.W.5 examined him at about 12 noon and noticed the following injuries on his person:‑--

(1) An incised wound 6" x 2" on the lateral aspect of lower 1/3rd of right leg alongwith cutting of bone/osteries and nerves in severe bleeding.

(2) Incised wound 7" x 2" on the right leg lower 1/3" about 4" above injury No.1 with cutting of the bone nerves and arteries (Tibia and Fabula).

(3) Incised wound on the lateral aspect of the right leg almost in the middle 2" x 2".

(4) Incised wound 1/2" x 1/8" on the lateral aspect of the right leg 1 " blow the knee joint.

(5) Incised wound 3" x 4" on the right cheek.

(6) Incised wound on the right thumb upper phalanx with one bone cut.

(7) Total cut of upper phalanx of middle finger of right hand.

(8) Incised wound on the dorsal aspect of right index finger 1" x " bone deep.

(9) Incised wound 3" x 1 " on the dorsal aspect of right hand.

(10) Lacerated wound 2" x 2" on the head almost in middle.

(11) Small Incised wound on the dorsal aspect of left thumb 2" x ".

(12) A circular wound " in a diameter with lacerated inverted margin on the lateral aspect of trunk left side 5" below the axilla with corresponding holes on the shirt and sweater. Point of entrance penetrating wound with no exit.

In the opinion of the doctor injuries Nos.1, 2, 6 and 7 were grievous and the rest were simple, injuries Nos.1 to 9 and 11 were caused with sharp‑edged weapon, whereas injury No.10 was caused with blunt weapon and, No.12 was caused by projectile. According to him the injuries were of six hours duration. He issued medico‑legal report Exh . P. M . Having admitted the complainant in the hospital he sent a Rukka Exh.B.L to the S.H.O. about his arrival in an injured condition in the hospital. In response thereto, Hafiz Samiullah S.I (P.W.6) reached the dispensary and recorded statement of Muhammad ‑Sadiq which is Exh.P.L. He sent this statement for formal registration of the case and started the investigation.

6. During the investigation Bagh Ali petitioner's blood‑stained shirt P.1 and Chaddar P.2 were taken into possession, vide memo. Exh.P.A. and likewise the shirt P.5 and Shalwar P.6, both stained with blood belonging to Munir Ahmad petitioner were also taken into possession, vide memo. Exh.P.C. in the presence of the witnesses, namely, Manzoor Ahmad P.W. 1 and Muhammad Hassan P.W.2.

7. Munir Ahmad petitioner while in police custody led to the recovery of pistol P.10 from his residential Kotha which was seized under memo. Exh.P.F, Bagh Ali petitioner got recovered Toka P.9 at his pointation from his house which was secured vide memo. Exh.P.E. These memos. were attested by Manzoor Ahmad P.W.1 and Muhammad Hussain (not examined) and the Investigating Officer.

8. At the trial the prosecution relied on the testimony of Muhammad Sadiq the injured witness (P.W.3) corroborated by the three eye‑witnesses, of the occurrence, namely, Manzoor Ahmad P.W.1, Ahmad Din P.W.2, Noor Jamal P.W.4. Recovery of weapons of offence was deposed to by Manzoor Ahmad P.W.1 and Samiullah S.I., P.W. 6, and the medical evidence was furnished by Capt. Dr. Arshad Rashid P.W.5.

9. All the accused persons including the petitioners when examined under section 342, Cr.P.C. denied the allegation and claimed to be innocent, except Karamat (acquitted accused) who examined Shajwara D.W.1 in his defence and also produced documents Exh.D.E. and D.F. The remaining accused declined to lead any defence evidence. Shajwara D.W. stated that his wife Mst. Sakina was abducted by Muhammad Sadiq the injured P.W. about 20/25 years before the occurrence. He had constantly been making effort for getting her back from him through Panchayat, etc. but could not succeed. A few months prior to the occurrence Muhammad Sadiq complainant promised that he would return his son Munir Ahmad as well as Mst. Sakina to him. Next morning at about 7/8 a.m. Munir and Sakina were going when Sadiq, Shakir and Liaqat came there and forcibly snatched Mst. Sakina. A fight took place wherein he injured Sadiq P.W. He admitted in cross‑examination that he was a bad character of Bundal. He also admitted that during the investigation he did not disclose these facts 'before the Investigating Officer.

10. The learned trial Magistrate while analysing the evidence on record observed that since the medical officer has expressed doubts about the injury found on the flank of Muhammad Sadiq being caused by a fire‑arm, therefore, he acquitted Muhammad Siddique one of the accused who allegedly was armed with a pistol at the time of occurrence. He further thought it proper to discard the testimony of Manzoor P.W.1 and Ahmad Din P.W. on the ground of their being relatives of Muhammad Sadiq and also being inimical towards the accused persons. He further observed that these witnesses had made certain improvements upon their statement, made before the police, therefore, he did not think it safe to believe their evidence.

11. As far as Karamat and Rafiq co‑accused of the petitioners are concerned they were acquitted by the learned trial Magistrate mainly on the ground that during investigation of the police, they were found to be innocent. However, in his opinion the participation of Bagh Ali and Munir Ahmad petitioners in the incident was established beyond doubt and therefore, convicted and sentenced them as indicated above.

12. Learned counsel appearing on behalf of the petitioners has assailed the findings of the two Courts below on various grounds. In the first instance, he submitted that all the witnesses produced at the trial are related inter se and are thus interested. He maintained that they cannot be believed without any independent corroboration. He next contended that P.W.1 Manzoor Ahmad and P.W.2 Ahmad Din have been disbelieved by the learned trial Magistrate and Muhammad Sadiq (injured) P.W.3 has also been disbelieved qua three co‑accused namely, Karamat, Rafiq and Muhammad Siddique, therefore, there is no guarantee that they had spoken truth qua the petitioners. He further contended that participation of Munir Ahmad petitioner is highly doubtful, because he was allegedly armed with a pistol and also resorted to firing at the time of occurrence yet nobody was injured as a result of his firing. Also no empties whatsoever were recovered from the place of occurrence to prove if any fire‑arm was ever used during the occurrence. Recovery of pistol from Munir petitioner is also of no evidentiary value in the absence of recovery of any empty from the spot as observed earlier.

13. Learned counsel appearing on behalf of the State have vehemently argued that order of conviction passed by the lower Courts must be maintained as they had sifted grain from the chaff and granted every possible benefit of doubt arising in favour of the co‑accused but convicted the two petitioners only against whom the case had been proved to the hilt, through ocular evidence supported by motive and the incriminating recoveries.

14. I have carefully considered material available on record in the light of the arguments advanced by the learned counsel for the parties.

15. As far as the participation of Bagh Ali petitioner is concerned, it has been established through consistent and convincing account of the occurrence given by Muhammad Sadiq the injured witness. He admitted the suggestion that both the parties had filed hurt cases against each other. It would mean that the petitioner had a motive to attack Muhammad Sadiq P.W. He caused several injuries with a Toka on the leg of Muhammad Sadiq, out of which two were found grievous. It has amply been supported by the medical evidence also. It is a day‑time occurrence and there is no question of his mistaken identity. I, therefore, hold that charge against him has been successfully proved through reliable evidence:

16. I find myself unable to agree with the learned counsel when he says that the evidence which has been disbelieved qua acquitted accused cannot form basis for conviction of the petitioner. He must know that the principle of "indivisibility of testimony" has been consistently rejected by the superior Courts of the country and instead the principle of "Sifting Grain out of Chaff" is strictly being followed. Again the Courts of criminal jurisdiction generally insist on the quality of evidence and not on the quantity. It is too well known to be repeated that the evidence has to be weighed and not to be counted'. In this case, if all the ocular and circumstantial evidence is ruled out of consideration, yet there would remain the statement of Muhammad Sadiq, the injured witness which deserved full credit. I must way here, the acquittal of Karamat and Rafiq accused is not based on sound reasoning. The learned trial Magistrate appears to have been influenced by the opinion of the Investigating Officer who declared them innocent during the investigation. It is surprising that the learned Magistrate knowing full well that he was required to form his own opinion as to the guilt or otherwise of the accused, based on legal evidence, independent of the conclusion arrived at by the Investigating Officer, has succumbed to the opinion of the Police Officer. Since there is no State appeal or revision before me against the acquittal of these two accused persons, therefore, I refrain from discussing their case any more.

17. The finding of the Courts below that Bagh Ali while armed with a Toka did attack Muhammad Sadiq at the eventful time and caused him grievous injuries is well‑founded. His conviction under section 326, P.P.C. and the sentence awarded to him is also appropriate and not excessive in the circumstances of the case. Consequently I find no reason to disturb the same.

18. As far as Munir petitioner is concerned, he was allegedly armed with a pistol but admittedly nobody was injured by his firing. There is no evidence that he had fired by taking aim at Sadiq complainant or the witnesses. No empty was recovered from the spot either. In these circumstances, by way of abundant caution, I feel inclined to acquit him. He is already on bail. He is discharged of the bail bond. This revision petition is, therefore, accepted to the extent of Munir Ahmad petitioner and is dismissed in respect of Bagh Ali. However, I allow benefit of section 382‑B, Cr.P.C. to Bagh Ali. It is directed that for the period he remained in jail as under‑trial that shall be counted towards his sentence.

H. A. K./4267/L Order accordingly.

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