1979 P Cr.

L
J 1078
 
[Lahore]
 
Before Javid
Iqbal and Aftab Farrukh, JJ

MUHAMMAD HANEEF AND ANOTHER-Appellants

 
Versus
 
THE
STATE-Respondent
 
Criminal Appeal
No. 682 and Murder Reference No. 210 of 1978, decided on 5th
March, 1979.
 
(a) Criminal
Procedure Code (V of 1898)-
 
---Ss. 190(1)(c)
& 191--Contention that accused placed in column No. 2, summoned
by Sessions
Court, Court under statutory duty under S. 191 to inform accused
regarding
their entitlement to be tried by another Court and on such failure entire
proceedings in respect of such accused coram non judice, held, in correct-Such
requirement arises only when cognizance taken under S. 190(L)(c) by Magistrate
however accused summoned under cl. (b) and not cl. (c).
 
Abdus Sattar
Molla v. The Crown P L D 1953 F C 145; Falak Sher v
 
The State P L D
1967 S C 425 and Noor Mohammad and others v Mohammad Nawaz
and others 1969 S C
M R 271 rel.
 
(b) Criminal Procedure
Code (V of 1898)-
 
--- Ss. 190(3)
& 193-Contention that jurisdiction of Sessions Court under S. 193 barred
regarding direct summoning of appel lants placed in column No. 2 and as such
proceedings were with ` out jurisdiction, held, without force-Challan of
appellants sub
mitted in Court of Ilaqa Magistrate who sent same to Sessions
Court under S. 190(3)-
Such appellants can be summoned by Sessions Judge on his
taking cognizance.-
[Jurisdiction-Cognizance].
 
Mohammad Aslam
and others v. Natho Bibi P L D 1977 Lah. 535 distinguished.
 
(c) Words and
phrases
 
---Accused",
"offence" and "case"-Connotation. It cannot be argued that
the words
"accused", "offence" and "case" have
been used to connote the same meaning. The
word "case" or
"offence" has certainly much wider concept or connotation than the
word "accused" or "offender". The word "offence"
cannot be deemed to limit the
jurisdiction to only such accused as are sent up
to the Court of Session. Similarly, the
word "case" comprehends more
than the word "offence". "Case" may include the
matter of
even those against whom, according to the challan, no offence was made out.
For
instance, the case of those placed in column No. 2 and perhaps of those covered
by
clause (a) and clause (c) of subsection (1) of section 190, Cr. P. C.,
provided the
allegations extending to them arise out of the same transac tion
which is the subject-
matter of the case sent to the Court of Session under
subsection (3) of section 190, Cr.
P. C.
 
Mir Fateh Khan
Mir Pirbux Khan v. Emperor A I R 1942 Sind 161 ref.
 
(d) Criminal
Procedure Code (V of 1898)-
 
----
S.190---Cognizance-Principle that Magistrate takes cognizance of offence and
not
accused alone and hive within his competence to summon accused not
challaned held,
now equally applicable to Court of Session. [Cognizance].
 
Dedar Bakhsh v
Syamapada Malakar I L R 41 Cal. 1013 ; Girdhari Lal v. King-
Emperor 21 C W N
950 and Abdus Sattar Molla v. The Crown P L D 1953 F C 145
ref.
 
(e) Criminal
Procedure Code (V of 1898)-
 
-- Ss. 6, 193
& 204-Whether words "except as otherwise expressly provided by this
Code" appearing in S. 193 can be deemed to cover provisions of S.
204-Effect of
substitution of word "Court" for word
"Magistrate" in S. 704-Case sent to Court of
Session under S.190(3)--Competency
of direct complaint before Sessions Court cannot
be ruled out.-[Complaint].
 
Whether the
wording "except as otherwise expressly provided by this Code"
appearing
in section 193, can be deemed to cover the provisions of section 204,
Cr. P. C. as the
word "Court" has now been substituted for the word
"Magistrate" in the latter portion.
The word "Courts"
according to section 6 of Criminal Procedure 'Code includes Courts
of Session.
Giving effect to the altered wording and the scheme, High Court does not
think
that section 204 is complimentary to the provisions of section 200 and limited
to
the cases of private complaints before a Magistrate. Section 204 is placed
in a separate
Chapter (Chapter XVII) and is independent of Chapter XVI, which
includes sections
200 to 203. If the intention of the Legislature was to make
the two complimentary of
each other and restrict it to a complaint before a
Magistrate, there was no need far
substituting the word "Magistrate"
by the word "Court" in sec tion 204. Cr. P. C. Proper
effect of the
word "Court" has to be noted and a Court of Session is a class of
Courts,
possibility that a direct complaint before the Court of Session, be now
competent, in a
case sent to the Court of Session under subsection (3) of
section 190, Cr. P. C. cannot,
be ruled out.
 
(f) Criminal
Procedure Code (V of 1898)-
 
-- Ss. 190(3)
& 173(3)-Cognizance-Contention that Magistrate taking cognizance
having not
summoned accused placed in column No. 2, hence, Sessions Judge not
competent to
summon such accused, held, incorrect-Whole case is sent to Court of
Session.
(Cognizance).
 
(g) Words and
phrases-
 
----"Proceedings"--Meaning. According to the Shorter Oxford Dictionary,
"proceeding" means to move onward, to go on with an action, a discourse,
an
investigation". It further means "the investigation or carrying on
of an action at law, a
legal action of process, any act done by an authority or
a Court of law, any step taken
in a case by either party."
 
(h) Words and
phrases---
 
"Taking
cognizance"-Meaning.
 
A careful
perusal of the dictionary meaning and the cited cases shows that the term
"taking cognizance" is incapable of such a precise and allusive
definition as may cover
all the possible context and. situations in which this
term can be used. The term "taking
cognizance" is co. related to the
matter or case in hand. Generally speaking, it is a
matter of fact, dependent
upon the nature of the proceedings. An accused may be
produced before a
Magistrate under section 167, Cr. P.C. for obtaining remand. He is
taking
cognizance of the matter, or the case, for the purposes of allowing remand or
otherwise, but not taking cognizance of the matter or the case for the purposes
of
commencing, or holding a trial. An application may be made before a Magistrate
for
the Supardari of the case property pending the disposal of the case. The
Magistrate will
be taking cognizance of the application for the purpose of
dealing with Supardari and
yet not taking cognizance of the case for the
purposes of trial. A challan under section
307, P. P. C. may erroneously be sub mitted
in the Court of a Magistrate 11 Class who
on taking cognizance of the challan
may realize his incapacity and forward the case to
a Court of competent
jurisdiction for trial. 1n a converse analogy a challan for an
offence under
section 323, P. P. C. may be submitted in the Court of a Magistrate with
Section 30 powers who ott taking note of the matter, may forward it for trial
to a
Magistrate of II Class. In such a situation, the Magistrate with Section
30 powers may
be taking cognizance of the case for the purposes of forwarding
it to a Magistrate of
the II Class, yet not taking cognizance of the case for
trial. Therefore, keeping in view
all these situations and the essential
ingredients deliberated in the precedent cases, it
can be said that in the
context of criminal proceedings, a Magistrate or a Court can be
deemed to take
cognizance of a case when it consciously applies its judicial mind to
the facts
placed before it and then decides to proceed with the matter in accordance
with
the Criminal Procedure Code with the ultimate object of determining the guilt
of
the offender. Applying this principle, the High Court is of the view that
section 190
envisaged that a large number of challans will be submitted before
a Magistrate, which
he will notice, retain in his own Court those which can be
tried by him and the one that
he notices is triable exclusively by the Court of
Session, he will under subsection (3) of
sec tion 190 forward it to the Court of
Session.
 
Bhai
Kirpal-Singh v. Risaldar Ajai Pal Sings and others A I R 1928 Lah. 627; Syed
Wajih-ul-Hassan Zaidi v. Station House Officer, Police Station City, Jhelum
etc. P L D
1979 S C 49: Wazir v. The State P L D 1962 Lah. 405: Ghulam Rasul v.
Crown P L D
1949 Bal. 17; Badshah Mia and others v. State P L D 1958 Dacca 598;
Muhammad
Nawaz Khan v. Noor Muhammad and others P L D 1957 Lah. 174 and Ghulam
Muhammad and others v. State P L D 1970 Quetta 1 ref.
 
(i)
Interpretation of statutes-
 
--Act or Statute
to be regarded as a whole and read as such in its historical setting -
Effect of
holding otherwise.
 
If it is held
otherwise, it will mean that if a case was reported to the Police and the
accused was not challaned, the Magistrate no longer holding the commitment
proceedings will not be competent to summon him and on the case being forwarded
to
the Court of Session, the Sessions Court will not be competent to do
anything in the
matter. This, in turn, means that the ultimate Judge in the
case will not be Court, but
Police, which in fact, is only an Investigating
Agency. This proposition is untenable
and the Court cannot interpret the law,
which could lead to such an interpretation. This
interpretation will lead to
confusion, which cannot be subscribed to.
 
Muhammad Ishaq
v. The State 1979 P. Cr. L J Not96 at p. 63; Lincoln College (1595)
3 Co. Rep.
58(b); Canada Sugar fining Co. Ltd. v. R (1898) A C 735 and Shannon
Realities
Ltd. v. Vill de St. Michel (1924) A C 185 ref.
 
(j) Medical
jurisprudence--
 
--Receding a
step or two on receipt of injuries, held, not in consistent with stunning
nature of injuries-Staggering may be taken as recession-Reaction to receipt of
injuries-
Varies from person to person and situation to situation.
 
Modi's Medical
Jurispredence ref.
 
(k) Witness-
 
--Contention
that prosecution witness having admitted presence of other persons at
time of
occurrence and non-production of such witnesses as well as one named in F. I.
R.,
makes testimony of prosecution witness unreliable, held, had no force-People
generally reluctant to appear as witness for fear of repercussion.
 
Muhammad Iqbal
v. The State P L D 1976 S C 291 rel.-
 
(l) Witness-
 
--Mere fact of a
shopkeeper running his shop at a distance of 6/7 miles from place of
occurrence
and happening to witness occurrence by chance on his way home after
collection
of his out standing dues, held, does not make such witness not reliable.
 
State v. Fateh
Sher etc. P L D 1970 S C 491 ref.
 
(m) Criminal
trial-
 
--
Recovery-Witness-Sub-Inspector supporting recoveries against accused-Such
witness not shown as having any animus for planting recovered
articles-Testimony of
such witness, held, reli able.-[Recovery-Witness].
 
Muhammad Khan. Dost
Muhammad etc. P L D 1975 S C 607 fol.
 
Maqbul Ilahi
Malik, Raja M. Anwar and Jari Ullah Khan for Appellants.
 
Zafar Yasin for
A. G. for the State.
 
Ch. M. Abdus
Salim for the Complainant.
 
Dates of
'hearing: 4th, 5th,. 6th, 26th, 27tb, 28th February, 4th and 5th March, 1979.
 
JUDGMENT
 
AFTAB
FARRUKH, J.-The complainant, Noor Muhammad, brother
of Rana
Muhammad Yaqub deceased, lodged the F. I. R. (Exh. P. A.) naming
Muhammad Hanif
son of Rehmat Khan, aged 43 years, Mehdi Khan son of Subey Khan,
aged 66 years,
Muhammad Boota son of Nazir Ahmad, aged; 23 years, and Mahmood
Ahmad son of
Abdul Ghani, aged 23 years, for the murder of his brother Rana
Muhammad Yaqub. In
three successive investigations, Muhammad Hanif and Mehdi
Khan were found
innocent and their names were placed in Column No. 2, while
their co-ac used
Muhammad Boota and Mahmood Ahmad were challaned. The learned
trial Court vide
order dated 23rd April, 1978 summoned/ the two accused named
in Column No. 2 and
granted them bail before arrest. Mr. Muhammad Rafiq,
Additional Sessions Judge,
Sialkot, ho tried the four accused, vide judgment
dated 8th July 1978, convicted all the
four accused under section 302/34, P. P.
C. and sentenc ed Muhammad Hanif and
Muhammad Boota to death and Mehdi Khan and
Mahmood Ahmad to imprisonment
for life. No fine has been impose, nor any
direction for payment of compensation under
sec tion 5 4-A, Cr. P. C. has been
made. The convicts have filed two separate appeals
against their conviction and
the complainant has filed a revision petition for the
enhancement of the life
imprisonment of Mehdi Khan to death. All the four i.e. M. R.
No. 210 of 1978,
Cr. A. No. 682 of 1978, Cr. A. No. 708 of 1978 and Cr. R. No. 78 of
1979 are
being disposed of by this judgment.
 
2. The
occurrence took place at about 6 p.m. on 4th July 1976, on a path way near
village Maan at a distance of 3/4 mile from Police Station Qilla Sobha Singh,
Tehsil
Narowal District Sialkot. Noor Muhammad (P. W. 1) brother of the
deceased, lodged F.
I. R. (Exh. P. A.) same day at 6-30 p.m. which was recorded
by Ramzan Ali Shah Sub-
Inspector (P. W. 14). This report was initially under
section 307/34, P. P. C. and
subsequently on the death of Muhammad Yaqub on 5th
July, 1976 at about 12-45 p.m.
was altered to one under section 302/34, P. P.
C.
 
3. The injured
was medically examined in the first instance by Dr. Mrs. Fahmida
Sarfraz, W. M.
O., Civil Hospital, Narowal, at 8-30 p.m. on 4th July, 1976 and the
injuries
mentioned in the medico-legal Report printed at pages 8 and 9 of the paper
book
were noted. Same day at 9 p.m., the Police made query (Exh. P. D.) regarding
the
fitness of Rana Muhammad Yaqub for making a statement and the reply (Exh.
P.D./1)
was in negative. Since the condition was serious, the patient was
referred to Allama
Iqbal Memorial Hospital for better treatment, but
subsequently removed to Mayo
Hospital, Lahore, where he breathed his last as
men tioned above, at 12-45 p.m. on 5th
July, 1976.
 
4. On 6th July
1976, Dr. Tahir Anees (P. W. 15) performed the post-mortem
examination and
found the following injuries on the dead, dead body of Rana
Muhammad Yaqub: -
 
(1) A
lacerated wound 1/3" x 1/4" over left front outer lower part of chest
with
margins slightly blackened and inverted.
 
(2) Penetrating
lacerated wound 1/8" x 1/8" over outer front mid-left arm with
inverted blackened margins.
 
(3) Penetrating
lacerated wound 1/3" x 1/4" over inner back lower left arm with
everted margins communicating with injury No. 2.
 
(4) Incised wound
5/8" x 1/8", muscle deep over mid-left cheek.
 
(5) Incised wound .1
/2" x 1/8" muscle deep over mid-right lower eye-lid.
 
(6) Penetrating
lacerated wound 1/3" x 1/4" over left forehead with inverted
blackened margins.
 
(7) Stitched
incised wound 1 " long over front lower part of right arm,
horizontal.
 
(8) Stab 1 "
long partly stitched over mid lower abdomen.
 
(9) Stab 3/4"
long partly stitched over mid upper abdomen,
 
(10) Stitched
sharp-edged vertical wound 11" long over right side of abdomen.
 
 
Two metallic foreign
bodies marked `A' and `B' were recovered from the skull and
sealed in a phial,
which was delivered to the Police.
 
Injuries Nos. 1,
2 and 6 were inflicted by a firearm, injury No. 3 was exit of injury No.
2,
while injuries Nos. 4, 5, E, 8 and 9 were inflicted by a sharp-edged weapon.
Death
in the opinion of the doctor was due to coma resulting from injury No. 6
and shock and
bleeding caused by injuries Nos. 1, 8 and 9. These injuries were
sufficient to cause
death in the ordinary course of nature. Probable time
between injuries and death was
about 18 hours and between death and post-mortem
examina tion was about a day.
 
5. The
prosecution case succinctly stated is that the two brothers were proceeding to
Qilla Sobha Singh on cycles, and when they reached near the tube-well of Mehraj
Din
Arain in the area of village Maan at about 6-00 p.m., the four accused out
of whom
Muhammad Boota and Muhammad Hanif were armed with revolvers and the
other two
armed with daggers, ambushed them from behind the reeds. Muhammad
Hanif raised a
lalkara to Rana Muhammad Yaqub [ABB KHIDHAR JAA TAA HAIN ARAZEE
DAYY KAR BEHJAHHN GAYY] and Muhammad Boota and Muhammad Hanif fired
with their
revolvers on Rana Muhammad Yaqub who fell down one. the ground,
whereupon Mehdi
Khan and Mahmood Ahmed inflicted injuries with their daggers
while he lay on
the ground. Muhammad Tufail (P. W. 9) and Nazir Ahmad (given up as
having been
won over) also reached there and saw the incident.
 
The motive
alleged is that Muhammad Hanif had manoeuvred double allotment about
which the
deceased had given secret information to the authorities and he was pursuing
the case. At the trial, it has been clarified that in fact it was Abdul Salam
on whose
behalf Rana Muhammad Yaqub held the power of attorney, had given the
secret
information against the grandfather of Muhammad Hanif and this matter
was being
pursued by the deceased.
 
Another motive,
which is mentioned at the trial is strained relations on account of B.
D.
Chairman Elections held in the year 1959-60 between Rana Muhammad Yaqub and
a
brother of Mehdi Khan in which Mehdi Khan lost. No specific reason for
Muhammad
Boota or Mahmood Ahmad having joined in this attack has been given.
 
Muhammad Hanif
and Mehdi Khan, according to the prosecution, are related inter se,
while there
is no relationship between Muhammad Boota and Mahmood Ahmed with
any of the
accused.
 
There is Ro
incriminating recovery at the instance of Muhammad Hanif or Mehdi
Khan.
Muhammad Boota was arrested by Ramzan Ali Shah Sub-Inspector (P. W. 14)
on 6th
July, 1976, and on the same day blood-stained bayonet (Exh. P. 12) was
recovered at his instance and taken into possession vide Memo. Exh. P. N.
Ramzan Ali
Shah Sub-Inspector (P. W. 14) supports this recovery, while the
other attesting
witnesses Akbar Ali (D. W. 1) and Inayat Ullah were given up,
the former as
unnecessary and the latter as having been won over. On the same
day, at the instance of
Muhammad Boota, revolver (Exh. P. 5) and from its
chamber four empties (Exhs. P. 6
to P. 9) and two live cartridges (Exhs P. 10
and P. 11) were taken into possession vide
Memo. Exh. P. M, which, Memo. is
attested by the same witnesses. The Serologist
vide report (Exh. P. V.) found
the blood on the bayonet as human.
 
Mahmood Ahmed
was arrested on 8th July, 1976 and revolver (Exh. P. 13) with four
live
cartridges (Exh. P. 14/1-4) vide Memo. Exh. P. O. was taken into possession, on
the same day, which Memo. is attested by Ghulam Nabi (P. W. 11) and S. I.
Ramzan
Ali Shah (P. W. 14) besides Abdul Majid who was given up as won over.
The Firearm
Expert vide report printed at page 94 of the paper book, found lead
bullet to be
matching with the revolver marked `B': The learned counsel for the
accused challenged
the admission of this report into evidence on the ground
that it has not been formally
tendered in evidence. It is further pointed out
that on the evidence, as it is, it has not
been conclusively proved as to which
of the two revolvers recovered is the revolver
marked as `B' by the Expert.
 
6. All the four
accused in their statements have raised the plea of a denial simpliciter
and
their implication due to enmity.
 
7. Two law
points have been raised by the learned counsel appearing, on behalf of the
appellants-one that the appellants Muhammad Hanif and Mehdi Khan, who had been
placed in column No. 2, were summoned by the Sessions Court under section 190
(C),
Cr. P. C. and, therefore, is was a statutory duty of the trial Court to
inform the
appellants that they were entitled to have the case tried by another
Court and for this
reason the entire proceedings were coram non judice qua the
two appellants.
 
Secondly, it has
been contended that section 193, Cr. P. C. was a bar to the jurisdiction
of the
Sessions Court to the direct summoning of the it appellants and, therefore,
because of this reason too, the proceedings qua the two appellants Muhammad
Hanif
and Mehdi Khan were without jurisdiction.
 
8. The
requirement to inform the accused that he is entitled to have the case tried by
another Court arises only in a case when cogni zance is taken of an offence
under
subsection (1), clause (c) of section 190, Cr. P. C. by a Magistrate. In
Abdus Sattar
Molla v. The Crown (P L D 1953 F C 145.), it was held that the
jurisdiction exercised
in summoning an accused whose name had been placed in
column No. 2, is under
clause (b) of subsection (1) of section 190, Cr. P. C.
and not under clause (c). Falak
Sher v. The State (P L D 1967 S C 425). This
view has been reiterated in two recent
cases by the Supreme Court. These are Falak
Sher and others v. The State (2) and Noor
Muhammad and others v. Muhammad Nawaz
and others (1969 S C M R 271).
Therefore, the argument based on the requirement
of section 191, Cr. P.C. has no
substance.
 
9. As regards
the second point, the learned counsel has relied upon Muhammad Aslam
and others
v. Natho Bibi (P L D 1977 Lah. 535) decided by our brother Abdul Jabbar
Khan, J
in which a view has been taken that the "Court" of Session is barred
to take
cognizance of any offence directly as a Court of original jurisdiction
unless the same
has been sent to it under section 190(3), Cr. P. C."
 
The cited case
is distinguishable on facts being a case in which a private complaint was
filed
directly before the Court of Session. It was, in routine, forwarded to the
Additional Sessions Judge for disposal. The Additional Sessions Judge took
cognizance of that complaint under section 200, Cr. P.C. and after holding a
preliminary inquiry himself under section 202, Cr. P. C., found a prima facie
case, and
summoned the accused through non-bailable warrants: It is obvious
that the mandatory
condition that the cognizance is not to be taken
"unless the case has been sent to it
under section 190(3), Cr. P. C."
was violated . However, the position is quite different
in the case in hand.
 
Section 193 (I), Cr. P.C. reads as follows: -
 
"193.-(1) Except as otherwise expressly provided by this Code
or by any other
law for the time being in force, no Court of Session shall take
cognizance of
any offence as a Court of original jurisdiction unless the case
as been sent to it
under section 190, subsection (3)."
 
(The underlining is ours)
And subsection (3) of section 190, Cr.. P. C. reads as under: --
 
"(3) A Magistrate taking cognizance under subsection (1) of an
offence triable
exclusively by a Court of Session shall, without recording any
evidence, send
the case to the Court of Session for trial."
 
Bearing in mind
the submissions of the learned counsel of both the sides, and the
learned
Assistant Advocate-General, we are of the view that the two appellants
Muhammad
Hanif and Mehdi Khan who were placed in column No. 2 of the challan
submitted
in the Court of the Ilaqa Magistrate, and which was sent to the Court of
Session under subsection (3) of section 190, Cr. P. C. could be summoned by the
Sessions Judge on his taking cognizance of the offence. 1n taking this view, we
have in
mind the amendments made in the relevant law. Under the old law, in
cases triable by
the Court of Session, a Magistrate in the first instance, held
an inquiry. The scope of
such inquiry was limited to ascertaining whether or
not there was evidence justifying
the committing of the accused to the Court of
Session for trial. In the absence of a
prima facie case, the accused could be
discharged by the Inquiry Magistrate (section
209, Cr. P. C.). An order
cancelling the charge framed under section 210 and
discharging the accused
could also be passed by a Magistrate under subsection (2) of
section 213, Cr.
P. C. However, if there was evidence justifying the committing of the
accused
to the Court of Session for trial, he was so committed. Detailed evaluation of
evidence was then done by the trial Court, which prepared its own record of
evidence.
Previously, an order committing the accused for trial by the Nigh
Court or the Court of
Session was trade (section 213, Cr. P. C.) and by virtue
of section 220., Cr. P.C. the
accused was commit ted by warrant to custody for
a period until and during the trial.
The provisions relating to the commitment
proceedings have now been omitted. This
jurisdiction now stands substituted by
another, which has been introduced by the
addition of subsection (3) to section
190, Cr. P. C. quoted above and the existing
prescribed procedure is that the
Magistrate is to "send the case to the Court of Sessions
for trial".
The distinction is quite obvious. It is no longer now the accused who is
committed to the Court of Session for trial. Now it is the case that is sent to
the Court
of Session.
 
Similarly, the
words "unless the accused has been committed to it by a Magistrate duly
empowered in that behalf" appearing in section 193, Cr. P. C. have been
replaced by
the words "unless the case has been sent to it under section
190 (3), Cr. P. C." It cannot
be argued that the words
"accused", "offence" and "case" have been used to
connote
the same meaning. The word "case" or "offence" has
certainly much wider concept or
connotation than he word "accused" or
"offender". Reading the wording of section 193,
as it previously was,
it is clear that the Sessions Court took cognizance of and tried
only the
accused committed to it by the Inquiry Magistrate. However, the word
"offence" cannot be deemed to limit the jurisdiction to only such
accused as are sent up
to the Court of Session. Similarly, the word
"case" comprehends more than the word
"offence".
"Case" may include `he matter of even those against whom, according
to the
challan, no offence was made out. For instance, the case of those placed
in Column No.
2 and perhaps of those covered by clause (a) and clause (c) of
subsection (1) of section
190, Cr. P. C., provided the allegations extending to
them arise out of the same
transaction which is the subject-matter of the case,
sent to the Court of Session under
subsection (3) of section 190, Cr. P. C. In
our opinion, now that the Sessions Court is
seized of the case in its totality,
it can lawfully take cognizance even of allied matters.
 
10. The case Mir
Fateh Khan Mir Pirbux Khan v. Emperor (A I R 1542 Sind 161)
relied upon by the
learned counsel for the appellants, when analysed properly, in fact,
supports
the view taken by us in the light of the new changes. The view expressed in
that judgment by Weston, J. that
 
"a Court of Session has no power to try any person, save in
certain exceptional
circumstances such as when contempt is committed before it,
unless an order of
commitment has been made in respect of such
person is based on the reasoning
that: --
 
"the wording of this section, which may be said to be a
disabling section,
differs materially from that of section 190 which gives
jurisdiction to
Magistrates to take cognizance of offences. Section 190 does
not mention the
accused. and it has been held that a Magistrate takes cognizance
of an offence
and not of the offenders, and that a Magistrate therefore, may
add a person or
persons to those accused mentioned in the complaint or Police
report upon.
which the cognizance of the offence has been taken by him (17 S.
L. R. 150
..Section 193, on the other hand, shows that save when otherwise
expressly
provided by Code or by other law, the cognizance taken by a Court of
Session
is not merely cognizance of the offence, but is restricted to `the
accused' in
respect of whom an order of commit meat has been made by a
competent
Magistrate."
 
 
The view taken
in this case that cognizance was taken of the offence and not the
accused, has
also been taken in the cases reported as Dedar Bakhsh v. Syamapada
Valakar (I L
R 41 Cal. 1013) and Girdhari Lal v. King-Emperor (21 C W N 9501).
Both these
cases were referred with approval by Akram, J. in Abdul Sattar Molla v.
The
Crown (P L D 1953 F C 145). Following the principle enunciated in Mir Fateh
Khan Mir Pirbux Khan's case, we find that the view being taken by us is quite
consistent with it. The principle that a Magistrate took cognizance of the
offence and
not the accused alone, and it was within his competence to summon
such of the
accused also who had not been challaned, is now equally applicable
to the Court of
Session. While on this point, we would also like to indicate
that it deserves proper
examination and consideration whether the wording
"except as otherwise expressly
provided by this Code" appearing in
section 193, can be deemed to cover the
provisions of section 204, Cr. P. C. as
the word "Court" has now been substituted for
the word
"Magistrate" in the latter portion. The word "Courts"
according to section 6
of Criminal Procedure Code includes Courts of Session.
Giving effect to the altered
wording and the scheme, we do not think that
section 204 is complimentary to the
provisions of section 200 and limited to
the cases of private complaints before a
Magistrate. Section 204 is placed in a
separate chapter (Chapter XVII) and is
independent of Chapter XVI, which
includes sections 200 to 203. If the intention of the
Legislature was to make
the two complimentary of each other and restrict it to a
complaint before a
Magistrate, there was no need for substituting the word
"Magistrate"
by the word "Court" in section 204, Cr. P. C. Proper effect of the
word
"Court" has to be noted, and a Court of Session is a class of
Courts. We, therefore, do
not rule out the possibility that a direct complaint
before the Court of Session, be now
competent, in a case sent to the Court of
Session under subsection (3) of section 190,
Cr. P. C.
 
11. It has been
argued, reading section 190 (3) and section 173 (3) Cr. P. C. together,
that
when the Magistrate taking cognizance of case did not summon the two, accused,
the learned Sessions Judge could not have summoned them. We have held in the
early
part of this judgment that under the altered law, the whole case is sent
to a Court o t
Session. Subsection (3) of section 173, Cr. P. C. deals with the
disposal of the bond,
which is envisaged to have been executed under section
169, Cr. P. C. In the case in
hand, the appellants were never arrested and
never released on the execution of bonds.
Therefore, the occasion for the
matter being dealt under section 173 (3) did not arise.
 
The only point left for examination is the meaning of the words
"taking
cognizance".
 
According to the
Shorter Oxford Dictionary, "proceedings" means to move onward, to
go
on with an action, a discourse, an investigation". It further means "the
investigation
or carrying on of an action at law, a legal action of process,
any act done by an
authority or a Court of law, any step taken in a case by
either party''.
 
In a Full Bench
case of Lahore High Court reported as Bhai Kirpal Singh v. Risaldar
Ajai Pal
Singh and others (A I R 1928 Lah. 627) it has been held that the words
"suit
proceeding" and other words of similar connota tion have
different meanings in
different Statutes and it is not possible to lay down a
general rule of interpretation
which may be applicable to all cases. In each
particular case, the question has to be
decided in reference to the context and
that meaning is to be preferred, which will best
fit in with it.
 
The question as
to what amounts to "taking cognizance of an offence" has bean dealt
with by K. E. Chohan, J. in case reported as Syed Wajih-ul-Hassan Zaidi v.
Station
House Officer, Police Station City, Jhelum etc. (P L D 1979 S C 49) as
follows: -
 
 "As pointed out in R. R. Chari v. The State (A I R 1951 S C
207) what is taking
cognizance has not been defined in the Criminal Procedure
Code and I have no
desire to attempt to define it. It seems to me clear,
however, that before it can
be said that any Magistrate has taken cognizance of
any offence under section
190(l)(a), Criminal Procedure Code he must not only
have applied his mind to
the contents of the petition, but must have done so
for the purpose of
proceeding in a particular way as indicated in the
subsequent provisions of this
chapter proceeding under section 200 and
thereafter sending it for inquiry and
report under section 202. When the
Magistrate applies his mind not for the
purpose of proceeding under the
subsequent sections of this chapter but for
taking action of some other kind,
e. g. ordering investigation under section
156(3) or issuing a search warrant
for the purpose of the investigation he
cannot be said to have taken cognizance
of the offence'. To the same strain are
Badshah 'Mia and others v. The State P
L D 1958 Dacca 598 and Narayandass
Bhogwandas Madhavadas v. The State of West
Bengal A I R 1959 S C 1118. In
the later case it was held at page 1123 that as
to when cognizance is taken of an
offence will depend upon the facts and
circumstances of each case and it is
impossible to--attempt to define what is
meant by taking cognizance. Issuing
off a search warrant for the purpose of an
investigation or of a warrant of arrest
for that purpose cannot by themselves
be regarded as acts by which cognizance
was taken of an offence. Obviously, it
is only when a Magistrate applies his
mind for the purpose of proceedings under
section 200 and subsequent sections
of Chapter XVI of the Code of Criminal
Procedure or under section 204 of
Chapter XVII of the Code that it can be
positively stated that he bad applied his
mind and, therefore, had taken
cognizance."
 
In yet another
case of Lahore High Court, which is a Full Bench judg ment reported as
Wazir v.
The State (P L D 1962 Lah. 405) Kayani, C. J. was pleased to observe as
follows: -
 
"We are of the opinion that it would generally be a question of
fact whether at a
certain stage a Magistrate has taken cognizance of the case
when a police
challan has been presented before him."
 
In Ghulam Rasool
v. Crown (P L D 1949 Bal. 17) it was held that: --
 
"A Magistrate takes cognizance of an offence when he applies
his mind to the
suspected commission of offence."
 
In Badshah Mia
and others v. The State (P L D 1958 Dacca 598), which was a case
emanat ing
from a private complaint, it was held that: -
 
"A Magistrate takes cognizance of cases only if he applies his
mind to proceed
under section 200, Cr. P. C.
 
In Wazir's case
referred to above, it was held that:
 
"The police report by itself, when received by the Magistrate,
does not
constitute the taking of cognizance, and it is reasonable to expect
that
something more will be done to show that the Magistrate intends to
start-the
proceedings."
 
In Muhammad
Nawaz Khan v. Noor Muhammad and others (P L D 1967 Lah. 176) it
was held that:
-
 
"Before it can be said that any Magistrate has taken cognizance
of an offence
under section 190, Cr. P. C. be must have applied his mind to the
offence for the
purpose of proceeding in a particular way. The expression
`taking cognizance
 of an offence' means the Court deciding to proceed against
the offender with a
view to determine his guilt."
 
In Ghulam
Muhammad and others v. The State (P L D 1979 Quetta 1) after discussing
the
matter at length it was indicated that: -
 
'The word `cognizance' means taking judicial notice of an offence
and when a
Magistrate takes notice of an offence, he con sciously applies his
mind to the
facts of the case with a view to find if a case necessitating trial
of offender
exists or not."
 
A careful
perusal of the dictionary meaning and the above-cited cases shows that the
term
"taking cognizance" is incapable of such a precise and allusive
definition as may
cover all the possible context and situations in which this
term can be used. The term
"taking cognizance" is co-related to the
matter or case in hand. Generally speaking, it
is a matter of fact, dependent
upon the nature of the proceedings. Au accused may be
produced before a
Magistrate under section 167, Cr. P. C. for obtaining remand. He is
taking
cognizance of the matter, or the case, for the purposes of allowing remand or
otherwise, but not taking cognizance of the matter or the case for the purposes
of com
mencing or holding a trial. An application may be made before a
Magistrate for the
Supardari of the case, property pending the disposal of the
case. The Magistrate will be
taking cognizance of the application for the
purpose of dealing with Supardari and yet
not taking cognizance of the case for
the purpose of trial. A challan under section 307,
P.P.C. may erroneously be
submitted in the Court of a Magistrate II Class, who on
taking cognizance of
the challan may realize his incapacity and forward the case to a
Court of
competent j4risdiction for trial. In an converse analogy a challan for an
offence under section 323, P. P. C. may be submitted in the Court of a
Magistrate with
section 30 powers who on taking note of the matter, may'
forward it for trial to a
Magistrate of II Class: In such a situation, the
Magistrate with section 30 powers may
be taking cognizance of the case for the
pur poses of forwarding it to a Magistrate of
the II Class, yet not taking
cognizance of the case for trial. Therefore, keeping in view
all these
situations and the essential ingredients deliberated in the precedent cases, it
can be said that in the context of criminal proceedings, a Magistrate o a Court
can be
deemed' to take cognizance of a case when it consciously applies its
judicial mind to
the facts placed before it and then decides to proceed with
the matter in accordance
with the Criminal Procedure Code with the ultimate
object of determining the guilt of
the offender. Applying this principle, we
are of the view that reading section 190 w
envisage that a large number of
challans will be submitted before a Magistrate, which
he will notice, retain in
his own Court those which can be tried by him and the one that
he notices is
triable exclusively by the Court of Session, he will under subsection (3) of
section 19 forward it to the Court of Session.
 
For all these
reasons and the analysis of the entire scheme under the altered law, and
the
case-law, we affirm the view taken by our brother Muhammad Rafiq Tarar', J. in
Muhammad Ishaq v. The State (1979 P Cr. L. J Note 96 at p. 63). We have
examined
the entire scheme and the co-related sections as it is ones of the
settled principles of,
interpretation that an Act or a Statute has to be
regarded as a whole and read as such in
its historical setting. It was said in
the case of Lincoln College ((1595) 3 Co. Rep.
58(b)) "that the good
expositor of an Act of Parliament should 'take construction on all
the parts
together and not of one part only by itself', and then this principle was
re-
affirmed in Canada Sugar Refuting Co. Ltd, v. R. (1898 A C 73) and it was
held: -
 
"Every clause of a statute is to be construed with reference to
the context and
other classes of the Act, so as, as far as possible to make' a
consistent
enactment of the whole statute."
 
If we were to
hold otherwise, it ill mean that if a case was reported to the police and
the'
accused was not challaned, the Magistrate no longer holding the commitment
proceedings will not be competent of summon him, and on the case being
forwarded to
the Court of Sessions J the Sessions Court will not be competent
`to do anything in the
matter This in turn, means that the ultimate Judge in
the case will not be Court, but
Police which in fact, is only an Investigating
Agency. This pro position is untenable
and we cannot interpret the law, which
could lead to such an interpretation. This
interpretation, in our view, will
lead to confusion to which we cannot sub-scribe. In
saying so, we have the
support of the case reported as Shannon Realities Ltd. v. Ville
de St. Michel
(1924 A C 185) which sums up this principle as follows: -
 
"Where alternative constructions are equally open, that alterna tives
to be
chosen which will be consistent with the smooth working of the system
which
the statute purports to be regulat ing; and that alternative is to be
rejected which
will introduce uncertainty, friction or confusion into the
working of the
system."
 
We are,
therefore, of the opinion that both the appellants were rightly summoned by
the
trial Court.
 
12. We have
carefully perused the record and heard at considerable length the learned
counsel appearing for the parties.
 
It has been
contended, that the occurrence took place much earlier than 6 p. m:. The
incident was unwitnessed, and to cover the delay in the F.I.R. it was being
shown as at
6 p.m. We have: been referred to the observation of Dr. Mrs.
Fahmida Sarfraz (P: W.
2), who examined the injured at 8-30 p.m. and she had
opined the injurers to be of the
duration of 4 to 6 hours. It was, therefore,
contended that the incident appeared to leave
taken place between 2 and 4 p.m.
Such observations by a doctor are usually a matter of
conjecture. A margin of
an hour or two on either side is an acknowledged fact. At the
trial the time of
occurrence was not disputed. In the month of July, there would be
more light
for identification at 4 p. m. than at 6 p. m. We do not see any advantage for
the prosecution in shifting the time of occurrence from 4. p. m. to 6 p. m.
 
The learned
counsel have referred to the following portion of the cross-examination of
Noor
Muhammad P. W.: --
 
"The Police people recorded the statements of the witnesses at
the hospital and
then went away, whereas we left for the ' Sialkot
Hospital."
 
We have to read
this portion in the context of the entire statement. Noor Muhammad
had
proceeded to the hospital after having the case registered. The above portion
cannot
mean that Noor Muhammad lodged the F. I. R. at the hospital. The question
leading to this answer does not disclose the specific witnesses being referred
to.
 
Similarly, the
learned counsel have referred to an apparent contradiction between the
statement
of Noor Muhammad and Ramzan Ali Shah Sub-inspector (P. W. 14).
According to
Noor Muhammad, he got a cot at the spot, placed the injured on it and
sent it
to the metalled road for onward transmission to the hospital, while he himself
rushed to the police station and returned to the metalled rood with the Police,
whereas
according to the investigating Officer, on recording the F. I. R. he
accompanied the
complainant to the spot from where he despatched the dead body
to the Hospital.
According to the Investigating Officer, he remained at the
spot till 9 p.m. We are aware
of the tendency with the Police of taking
unnecessary credit, as well as their desire of
showing vigilance. This appears
to be a case like that. The Investigating Officer is
attempting to take credit
for the prompt despatch of the injured from the scene of
occurrence. His claim
of being free at 9 p. m. is only a rough estimate of time, or
deliberate
concession. From the testimony of Dr. Mrs. Fahmida Sarfraz (P. W. 2) it is
clear that while in the hospital at 9 p.m. Ramzan Ali Shah Sub-Inspector (P. W.
14)
made an inquisition in writing regarding the state of fitness of the
injured.
 
We, therefore,
believe the time of occurrence to be about 6 p. m. and the F. I. R. to be
prompt.
 
We have positive
evidence of Dr. Mrs. Fahmida Sarfraz (P.W. 2) that she examined
Rana Muhammad
Yaqub in the Narowal Civil Hospital at 8-30 p.m. He had been
brought by Noor
Muhammad (P. W. 1) the complainant. We have in evidence that
Narowal Civil
Hospital is at a distance of 14/ 15 miles from the place of occurrence.
Calculating the time backwardly, allowing fair margins, the recording of the F.
I. R. at
6-30 p. m. at Qilla Sobha Singh, at a distance of 3/4 miles from the
place of
occurrence, works out to be very prompt. The timings in these
circumstances are
consistent with the incident having taken place at about 6 p.
m. and the F. I. R. being
recorded at 6-30 p. m.
 
We do not agree
with the learned counsel that the incident was unwit nessed. Had the
occurrence
not been witnessed, the F. I. R. could not be lodged so promptly, nor could
the
injured be conveyed to the hospital for medical treatment with such
promptitude.
All this indicates that the incident was witnessed. The place of
occurrence is an
established path passing through cultivated fields. The area
of Narowal is fertile and as
such generally thickly populated, People do move
about practically all the time. The
presence of Noor Muhammad and Muhammad
Tufail P. Ws. in such circumstances
appears to be very natural. If the incident
was not witnessed, the complainant could not
have mentioned four different
kinds of weapons which assertion was corroborated by
the nature of injuries
found on the person of Rana Muhammad Yaqub deceased. The
firearm injuries are of
two different dimensions, which indicate that the pistols or
revolvers used
were of different bores. The other injuries are caused by sharp and
sharp-pointed weapons.
 
13. The learned
counsel have stressed that Noor Muhammad (P. W. 1) and Muhammad
Tufail (P. W.
9) were chance, interested and incredible witnesses. According to the
learned
counsel, their testimony was intrinsically untrustworthy.
 
In this, regard
the defence refers to the testimony of Akbar Ali (D. W. 1) who was cited
as a
recovery witness but given up as unnecessary. . His field was at a distance of
one
and a half killa from the place of occurrence. According to Akbar Ali he
found Rana
Muhammad Yaqub lying murdered, brought a cot, placed him thereupon
and sent the
information to Noor Muhammad complainant through his nephew
Muhammad Sharif.
He further stated that before the arrival of Noor Muhammad and
others, Muharrir of
Police Station Qilla Sobha Singh had come to th: spot. In
cross-examination, he made
further concession that he could not identify the
assailants from their backs and also
that they had muffled their faces.
According to him, the Muharrir recorded the
statement at the spot then and
there and the S. H. O. came only next morning.
 
No doubt, the
witness had been given up as unnecessary. The Public Prosecutor or the
complainant for that Matter may not have been aware that in fact he had been
won
over. Therefore, giving up as unnecessary or as won over, did not make any
material
difference. We have to judge his testimony on its intrinsic worth or
we would say, we
value his statement intrinsically and in the background of the
overall circum stances.
Akbar Ali (D. W. 1) was cited as a recovery witness and
at no stage he was referred to
as an eye-witness. Presumably, be had not even
claimed so at any stage of the
investigation. His appearance for the defence
reflects upon his integrity adversely. He
willingly accepted the defence
suggestions in cross-examination. He had gone out of
his way to help the
defence and discredit the prosecution by conceding
 
(i) that he sent
information to Noor Muhammad through his nephew ;
 
(ii) before
the arrival of the complainant a Muharrir from Qilla Sobha Singh
came there ;
  
(iii) the
assailants had muffled their faces and could not be identified ; and
 
(iv) exclusion of
the presence of the eye-witnesses.
 
Such outright
concessions satisfy us beyond any shadow of doubt that Akbar Ali was
making
deliberate concessions for motives other than telling the truth. His statement
did not fit in the over-all picture. We, therefore, rule it out of
consideration.
 
Similarly,
Abaidullah (D. W. 2) had deposed that he was in the village Lala when a
person
on horse back reached the dera of Rana Muhammad Yaqub and disclosed about
the
incident. Abaidullah 'was given up as won over. He on his own admission had
strained relations with Rana Muhammad Yaqub deceased. A bare reading 'of his
statement shows that his only object was to discredit the deceased and the
version of
the prosecution. We rule his testimony too out of consideration. We
cannot discredit
the eye-witnesses on the basis of the deposition of such
untrustworthy witnesses.
 
According to the
complainant side, under the patronage of the then Government, the
Police was going
out of its way to damage the case for the prosecution and for helping
the
accused, In the absence of evidence on record, we cannot record any such
finding.
Suffice it to say, that citing Akbar Ali, Abaidullah and Inayat Ullah
as witnesses for the
prosecution, is suggestive of such a possibility.
 
The learned
counsel have drawn our attention to yet another portion from the
testimony of
Noor Muhammad (P. W. 1):-
 
"The accused with the revolvers had fired 3/4 times each, from
close quarters,
that is to say, from 3/4 yards;"
 
In this regard
the learned counsel have drawn our attention to .the medical evidence,
which
indicated that the injuries had burnt margins, Therefore, the learned counsel
contended that Noor Muhammad had not seen the incident. We do not agree with
the
contention of the learned counsel. Noor Muhammad had seen the incident from
a
distance or one killa. Four persons were attacking the deceased with
different kinds of
weapons. The deceased had been ambushed and delivered a
fairly large number of
injuries. In such a confused situation, we would not
expect. Noor Muhammad, a scared
person, to be able to measure the distance
between the assailants and the victim with
photographic precision. His
assertion that the firing was from "close quarters", in our
opinion,
is a truthful statement.
 
The learned
counsel have also referred us to the evidence of Noor Muhammad at the
trial to
the effect that on the receipt of fires the deceased fell down from the bicycle
and receded a bit thereafter. According to the learned counsel, this was an
improvement at the trial, and the same was contradicted by the medical
evidence.
According to Ur. Tahir Anees (P: W. 15), injury No. 6 would stun the
victim.
 
We do not
consider this as a variation. If it is so, it is insignificant.
 
Receding a step
or two, on the receipt of injuries, is not inconsistent with, the stunning
nature of injuries as asserted by the learned counsel. One does stagger, which
may be
taken as recession. Reaction to the receipt of injuries varies from
person to person and
situation to situation. Modi Medical Jurisprudence, has
recorded instances which
would, in his ordinarily be not believed. Therefore,
much does not turn on this.
 
It has been
argued that Noor Muhammad P. W. admitted the presence of Mst. Sharifan
at the
time of occurrence and also that of other persons who gave a chase to the
assailants, and none of them had been produced as a witness. Nazir Ahmad, the
only
independent witness cited in the F. I. R., had not been produced.
Therefore, the learned
counsel contend that no reliance could be placed on the
testimony of door Muhammad
or Muhammad Tufail. People are generally reluctant
to appear as witness for fear of
repercussions. The Supreme Court has been,
pleased to take note of this aspect in
Muhammad Iqbal v. The State (P L D 1976
S C 291). The learned counsel, have also
relied on the testimony of Inayatullah
P. W., another hostile witness, for discrediting
the presence of Noor Muhammad
complainant and Muhammad Tufail P. Ws. He too
has made several deliberate
concessions. We will ignore the testimony of Inayatullah in
this regard.
 
We are satisfied
that the version of Noor Muhammad complainant that he was
accompanying his
brother Rana Muhammad Yaqub deceased from Qilla Sobha Singh
to their village
Lala, is the truth and there is nothing, whatsoever unusual about two
brothers
returning home. We believe the presence of Noor Muhammad at the spot at
the
time of occurrence.
 
Similarly, the
mere fact that Muhammad Tufail P. W. is a shop keeper running his shop
at a
distance of 6/7 miles from the place of occurrence and happened to witness the
occurrence, by chance, on his way home after the collection of his outstanding
dues,
does not persuade us to disbelieve his presence. The Supreme Court in The
State v.
Fateh Sher etc. (P L D 1970 S C 491) has taken a view that by passers
on road are
natural witnesses, and with respect we follow this view.
 
14. We are
satisfied that Noor Muhammad and Muhammad Tufail P. Ws. saw the
incident. Noor
Muhammad was brother of the deceased. Mehdi Khan appellant had
appeared as
witness against Allah Ditta, brother of Muhammad Tufail P. W. Therefore,
by way
of abundant caution, in the particular circumstances of this case, we would
apply the rule of caution and sift the grain from chaff, and look for
corroboration qua
each of the appellants.
 
There is no
incriminating recovery against Muhammad Hanif and Mehdi Khan
appellants. They
were placed in column No. 2 on being found innocent in three
successive
investigations, which include the investigation held by Ghulam Dastgir
Inspector and Mirza Ghulam Haider Inspector Crimes Branch. Noor Muhammad P. W.
admitted in cross-examination that he had no complaint against the
investigation of
Ghulam Dastgir Inspector, nor did he make any complaint
against the investigation of
Mirza Ghulam Haider Inspector. It is the case of
the prosecution that the relations
between the deceased and Mehdi Khan
appellant were highly strained, as the deceased
had given information regarding
double allotment obtained by Muhammad Hanif
appellant and was pursuing the
proceedings vigorously. According to the prosecution,
Muhammad Hanif was the
nephew of Mehdi Khan appellant. At the trial, Noor
Muhammad P. W. admitted that
 
"I am still litigating with Muhammad Hanif accused in the High
Court in
connection with that information about the double allotment which was
conveyed by my deceased brother."
 
It is the case
of the prosecution that Rana Muhammad Yaqub had contested against the
brother
of Mehdi Khan for the office of Chairman Union Council. The complainant
had
asserted in his statement that on 6th July, 1976, he came to know that the
accused
had murdered his brother with the connivance of the Police. At the Bar
too it had been
vehemently contended that the appellants had the blessings of
the then Government
and it was for that reason also that the Police went out of
its way to damage the case of
the prosecution Indications, howsoever strong in
this direction, cannot take the place of
a legal proof, for which reason, we
refrain from recording any such finding. We are of
the opinion that strong
corroboration for recording a conviction on a capital charge
against Mehdi Khan
and his nephew Muhammad Hanif appellants is lacking, therefore,
giving both of
them the benefit of doubt, we allow their appeal (Cr. A. No. 682 of
1978), set
aside their convictions and sentences and acquit them. They shall be set at
liberty forthwith if they are not wanted in any other case.
 
15. Mahmood Ahmad
appellant was arrested by Ramzan Ali Shah Sub Inspector (P. W.
14) and at the
time of his arrest, revolver (Exh. P. 13) along with four live cartridges
(Exh.
P. 14/1-4) was found on his person and taken into possession vide memo. Exh. P.
O. Ghulam Nabi (P. W. 11) and Ramzan Ali Shah Sub-Inspector (P. W. 14)
supported
this recovery at the trial, while Abdul Majid, the other attesting
witness, was given up
as having been won over. According to the Forensic
Expert's report, one of the lead
bullets recovered from the dead body had been
fired through this weapon. The
prosecution presses this recovery into service
for maintaining the conviction and
sentence of Mahmood Ahmad appellant.
However, this recovery does not advance the
case of the prosecution for maintaining
the conviction on the charge of murder, as
according to the F. I R. and the
evidence at the trial, Mahmood Ahmad appellant at the
time of incident was
armed with a khanjar and he used the same weapon and none
other. Therefore, we
extend the benefit of doubt to Mahmood Ahmad appellant too and
allow his
appeal. We set aside his conviction and sentence and acquit him. He shall be
set at liberty forthwith if not wanted in any other case.
 
16. The case of
Muhammad Boota appellant is distinguishable. He was arrested on 6th
July, 1976
by Ramzan Ali Shah Sub-Inspector (P. W. 14) and on the same day he led to
the
recovery of blood-stained bayonet (Exh. P. 12) from the sugarcane field of
Muhammad Malik, nearby the place of occurrence and the other recovery made at
his
instance at the same time was of loaded revolver No. A 6942 (Exh, P. 5). In
its
chamber were four empties (Exhs. P. 6 to P. 9) and two live cart ridges
(Exhs. P. 10 and
P. 11). The bayonet and the revolver were taken into
possession vide memos. Exhs. P.
N. and P. M., respectively. These recoveries
were attested by Akbar Ali (D. W. 1)
(given up as unnecessary) and Inayat Ullah
(P. W. 10) (who was declared hostile)
besides-Ramzan Ali Shah Sub-Inspector (P.
W. 14). According to the report (Exh. P.
W.) of the Serologist, the bayonet was
stained with human blood. After bearing the
learned counsel for the parties, we
have permitted by a separate order passed in
Criminal Miscellaneous No.
218/M-79 the formal tendering and admission to evidence
the report of Forensic
Science Laboratory Expert, at the request of the learned counsel
for the State
and the learned counsel for the complainant. (This report is printed at page
94
of the paper book, The same can be read into evidence under section 510, Cr. P.
C.
and it appears that the Public Prosecutor while tendering documents into
evidence had
inadvertently missed to mention this report while making the
formal statement). We
have heard the learned counsel for the appellants again
after the admission to record of
this document,
 
The learned
counsel for Muhammad Boota appellant has vehemently challenged- these
recoveries at the instance of this appellant and relied upon the concessions
made by
Inayat Ullah (P. W. 10). In the earlier part of the judgment, we have
dealt at length with
the testimony of Akbar Ali and ruled it out of
consideration. Inayat Ullah (P. W. 10) in
his examination-in-chief deposed: --
 
"Boota accused while in Police custody, led to the recovery of
revolver P. 5,
with four empties, and two live cartridges from a sugarcane crop
at a distance
of one killa from the place of occurrence. The revolver is Exh.
P. 5 and the
empties are Exh. P. 6 to Exh. P. 9 and the live cartridges are
Exh. P. 10 and Exh.
P. 11. The revolver, the empties, and the live cartridges
were sealed into three
parcels. The memo. which was prepared at the time was
Exh. P.
M....................................................Boota accused had
also led to the recovery
of chhura Exh. P. 12 from inside the same sugarcane
crop. This was blood-
stained and was sealed into a parcel vide memo. Exh. P.
N."
 
There are only
two recovery memos. (Exh. P. N. and Exh. P. M.) prepared by the
Investigating
Officer. These Memos are attested by Inayat Ullah P, W. He had attested
them
after the same were read over to him. It is not his case even at the trial that
be
signed the blank sheets or that the same were not read over to him. These
two recovery
Memos. talk only of two parcels. Therefore, his statement that
"the revolver, the
empties and the live cartridges were sealed into three
parcels" was a deliberate
concession to help the accused which was
contradicted by the documentary evidence
comprising Exhs. P. M. and P. N. We
rule the concession oat of consideration, being a
deliberate lie, and believe these
recoveries as genuine.
 
In his
cross-examination he accepted the suggestions of the defence and made
deliberate concessions going out of his way for demolishing the case of the
prosecution. The Public Prosecutor sought permission to examine him, and the
same
was rightly granted. The citation of witnesses like Akbar Ali, Inayat
Ullah and others
and some other admissions by the Investigating Agency, raise
gravely adverse
suspicions in our mind concerning the Investigating Officer. We
have already observed
that there were indications apparent on the record
lending support to the assertion of
the prosecution that the Police was out to
help the accused. Was it so under the
patronage and blessings of the then
Government in power, or entirely on their own for
any other considera tion, we
are unable to judge.
 
Recoveries
against Muhammad Boots appellant are in any case supported by Ramzan
Ali Shah
Sub Inspector (P. W. 14) who is not shown to behaving any animus
whatsoever for
planting these recoveries falsely on Muhammad Boots appellant. The
Supreme
Court in Muhammad Khan v. Dost Muhammad etc. (P L D 1975 S C 607),
has relied
upon the testimony of the Investigating Officer alone. We will with respect
follow the principle enunciated by the Supreme Court. All the Investigating
Agencies
found Muhammad Boots appellant and Mahmood Ahmad guilty while they
were
declaring the other two innocent.
 
In these
circumstances, we find the statements of Noor Muhammad and Muhammad
Tufail P.
Ws, sufficiently corroborated qua Muhammad Boots appellant. The case
against
him is proved beyond any shadow of doubt. We dismiss his appeal, maintain
the
conviction and sentence recorded against him by the trial Court and confirm the
death sentence.
 
The learned
trial Court had not imposed the sentence of fine, nor awarded
compensation
under section 544-A, Cr. P. C. Since we are confirming the death
sentence, at
this stage, we would not like to-add another sentence i.e. of fine, after so
many years.
 
The result is
that Cr. A. No. 682 of 1978 filed by Muhammad Hanif and Mehdi Khan
appellants
is accepted, while Cr. A. No. 708 of 1978 filed by Muhammad Boots and
Mahmood
Ahmad appellants is partly accepted.
 
Appeal partly
accepted.
 
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