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Petitioner: ATTA MUHAMMAD VS Respondent: ILAM DIN and 9 others
Court Name: Lahore High Court Judge(s): Shahid Hameed Dar Title: ATTA MUHAMMAD vs ILAM DIN and 9 others Case No.: Criminal Appeal No,568 of 1994 Date of Judgment:2015-07-03 Reported As: 2016 YLR 1938 Result: Appeal dismissed
JUDGMENT
JUDGMENT SHAHID HAMEED DAR, J.---This judgment shall dispose of criminal Appeal No,568 of 1994 instituted by Atta Muhammad (complainant/appellant) against acquittal of respondents Nos.1 to 9, namely Ilam Din, Akbar, Liaqat, Asghar alias Akbar, Akram, Aslam alias Ashraf, Muhammad Din alias Manna, Shaukat and Muhammad Ramzan, vide judgment dated 2.12.1992, pronounced by learned magistrate section 30,. Sheikhupura, on conclusion of their trial in private-complaint under sections 325, 326, 452, 148, 149, P.P.C., which pertained to an occurrence, that oozed from the statement of Atta Muhammad (P.W.3), rendered by him on 7.2.1989 before the investigating officer during investigation of case-FIR No,45/1989, dated 1.2.1989, under sections 307, 452/34, P.P.C. Read with sections 325, 324, P.P.C. (added during investigation on 7.2.1989), registered at Police Station Farooqabad, District Sheikhupura. 2. The FIR case (supra) got registered by Ilam Din (respondent No,1 herein) with the contention that he purchased Ehata measuring 6/7 marlas, situated in village Jhandianwali, for Rs,12,000/- from Bashir Ahmad about nine months before; Muhammad Anwar (P.W.2 herein) occasionally attempted to grab the possession thereof, but he failed to do so; he instituted a civil suit against Muhammad Anwar before the learned Civil Judge Sheikhupura and obtained an injunctive order qua the said Ehata; Muhammad Anwar also filed a suit about the said place before the Senior Civil Judge, Sheikhupura; it was at about 7.30 p.m. On 1.2.1989, he was present at the Ehata when Muhammad Anwar (P.W.2 herein) armed with .12-bore gun, Munir Ahmad, armed with .12-bore gun and Muhammad Sarwar, armed with carbine scaled on the wall of his haveli and forcibly entered therein; they thrashed and befell him onto the ground; on hearing the noise, his paternal nephew Shaukat Ali (respondent No,8 herein) reached there to rescue him; Muhammad Anwar fired by
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means of his gun and hit right jaw of Shaukat Ali, who instantly fell onto the ground; in the meanwhile, Muhammad Akbar (respondent No,2 herein), armed with hatchet also reached there to help him; Munir Ahmad fired through his gun, which landed at left wrist of Muhammad Akbar; his son Muhammad Aslam (respondent No,6 herein) rushed to the spot and he was fired at by Muhammad Sarwar, which injured his right hand; many a people of the village raised alarm in the street, but the intruders kept firing; Atta Muhammad (P.W.3 herein), while standing at his house, exhorted loudly and induced his companions to finish Ilam Din and others; the womenfolk entreated the accused and they ran away; he along with his companions shifted the injured to Sheikhupura hospital, where Shaukat Ali's condition was serious; the attack was carried out by the accused with a grudge, as to purchase of the said Ehata by him. ' During investigation of the above-said case, Atta Muhammad (P.W.3) made statement before the investigating officer on 7.2.1989 and attempted in vain to setting up the cross-case, which, as per report under section 173, Cr.P.C., was found false by the police. Being aggrieved of the conduct of the police, he filed private-complaint against respondents Nos.1 to 9 on 9.12.1989, about ten months after the alleged occurrence, with the contention that he along with his son Muhammad Anwar (P.W.2) was present at his house on 1.2.1989 when Ilam Din armed with sota, Akram armed with gun, Liaqat armed with gun, Asghar alias Akbar armed with sota, Akram armed with hatchet, Aslam alias Munna armed with hatchet, Aslam alias Ashraf armed with sota, Ramzan armed with sota and Shaukat armed with sota (respondents Nos.1 to 9) jumped over the outer wall of his house and forcibly entered therein; Ilam Din (respondent No,1) raised lalkara that Anwar be taught a lesson for having filed an application before the police whereon Asghar alias Akbar (respondent No,4) inflicted a sota blow on the head of his son Muhammad Anwar, Aslam (respondent No,6) also dealt a sota blow on his head, due to which he fell on the ground; Ilam Din (respondent No,1) gave a sota blow at the left calf of Muhammad Anwar, whereafter all the intruders jointly injured his fallen son; on hearing the noise, his other son Muhammad Sarwar reached the spot, who attempted to snatch gun from Liaqat (respondent No,3) and in this scuffle it suddenly went off and the fire hit Shaukat and Akbar Ali (respondents Nos.8 and 2); the trespassers kept firing with their guns and shouted loudly, if anyone drew near they would kill him; in the meanwhile, Abdul Hameed (P.W.4) and Muhammad Saleem PW (not produced) reached the spot, who beseeches the invaders and rescued his injured son from them; Muhammad Anwar was shifted to DHQ Hospital, Sheikhupura for treatment of his injuries, hereafter he was referred to Services Hospital Lahore, as his condition turned serious; he had suffered seventeen (17) injuries during the occurrence. 3. Learned trial court took up the trial of both the episodes, i.e, the FIR-case and the complaint- case, side by side inter-se and continued it till 2.12.1992, when it pronounced the impugned verdict of acquittal in favour of the respondents (Nos.1 to 9) in the complaint-case and separately delivered a verdict of guilt against all four inductees of the challan-case by holding that they had committed the aggression against the complainant side of the FIR-case. 4. Insofar as the complaint-case is concerned, learned trial court indicted the respondents for offences under sections 325, 326, 452, 148, 149, P.P.C. And asked the complainant-side/prosecution to adduce evidence against them, in obedience thereof, they produced five witnesses in all, including Dr. Abdul Bari (P.W. 1), Muhammad Anwar injured (P.W.2), Atta Muhammad (complainant/P.W.3), Abdul Hameed (P.W.4) and Mehmood Ahmad Khan Inspector/I.0. (P.W.5), to establish the charge against them. Astonishingly, it was the complainant and not the public- prosecutor, who pronounced the complaint-case closed on 13.2.1991 by submitting attested copies of the injury-statement (Exh.PA) of Muhammad Anwar injured and that of a couple of civil suits, under objection of the other side. 5. It was the respondents turn then to depose under section 342, Cr.P.C., which they did, one after the other, by professing their absolute innocence in the matter. They denied all the charges against
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them being false and pressed their innocence in the matter by contending that they had been falsely involved in this case due to previous enmity and party-friction. They did not opt to depose under section 340(2), Cr.P.C., but they intended to lead evidence in defence, which they probably didn't, as no such material is available on the record to verify it. The impugned judgment, however, tells that someone from them was examined under section 340(2), Cr.P.C. On 18.8.1992, but it cannot be known from the record as to who he was. Whosoever he might be, the impugned judgment revealed that he also tendered report under section 173, Cr.P.C. (Exh.DH) and closed the defence evidence. Learned trial court must have borne in mind that report under section 173, Cr.P.C. Was merely a gist of the investigation, which could not be proved being inadmissible in evidence. 6. On conclusion of the trial in the complaint-ease, learned trial court held all the respondents innocent and acquitted them of the charge, by holding that they had acted in self-defence at the crucial hour. The challan-case, however, ended in conviction of the quartet, as noted earlier. 7. Learned counsel for the appellant, has strongly submitted that respondents Nos.1 to 9 being armed with lethal weaponry had committed aggression against the complainant-party, when they attacked him at his house and almost killed his youthful son Muhammad Anwar by inflicting seventeen (17) extensive wounds on his body; the disputed Ehata was in the possession of the appellant since long and acquitted-respondents had no concern with it; the accused of the FIR- case, who had been convicted and sentenced by the learned trial court on 02.12.1992 had been acquitted in appeal by the learned appellate court (Additional Sessions Judge, Sheikhupura) vide judgment dated 6.7.1998, whereby it was held that the complainant-party of the FIR-case had sparked off the aggression; learned Additional Sessions Judge, Sheikhupura also observed that respondent Shaukat Ali had been accidentally injured, when Sarwar PW (not produced) attempted to snatch gun from respondent Liaqat and in this struggle it suddenly went-off and discharged pellets hit him, besides his aide Akbar; the respondents did not say a word in their statements under section 342, Cr.P.C. As to how Shaukat Ali and Akbar had received firearm injuries nor they pleaded right of self-defence, which virtually meant that they had accepted the prosecution case true; the impugned judgment did not contain a single argument or reason as to on what/which material learned trial court had acquitted the respondents and dubbed the complainant-party as aggressors; the impugned judgment is frail by all means and it does not fit in with the settled principles of the law on the subject nor could it be considered a judgment either, within the scope of section 367, Cr.P.C.; the impugned judgment being illegal may be knocked-down and the case may be remanded to the learned trial court for a decision afresh. In support of his contentions, learned counsel has relied on Abdul Rashid Munshi and 3 others v. The State (PLD 1967 SC 498), Sahab Khan and 4 others v. The State and others (1997 SCMR 871), Ashiq Hussain and others v. The State and 2 others (2003 SCMR 698), Muhammad Osman v. The State (1992 PCr.LJ 88), Ghulam Hussain and others v. The State (1996 PCr.LJ 514) and Abdul Qayum v. The State (1996 PCr.LJ 1427). 8. In rebuttal of the above, learned counsel for the acquitted respondents has vehemently argued that the place of occurrence exclusively belonged to the respondents and they were in its possession being owner thereof for many months; the investigating officer, Mehmood Ahmad Khan, Inspector (P.W.5) categorically stated in his testimony that the occurrence had not taken place at the house of Atta Muhammad appellant and it was the haveli of Ilam Din (respondent No,1) where Shaukat, Akbar and Aslam had sustained injuries at the hands of their adversaries; the appellant and his companions being armed with deadly weapons attacked the respondents at their haveli so as to roguishly usurp possession thereof and they badly wounded Shaukat, Akbar and Aslam in the wake of their unlawful act; the trespassers were resisted bravely by the respondents, hence, they committed no wrong if Muhammad Anwar had received multiple injuries on his body during the occurrence, as against several firearm and blunt-weapon injuries to three persons of the latter-side; the right of exercise of self-defence directly flowed from the
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prosecution-case, so it was immaterial that the respondents had not taken a specific plea in this regard when they deposed under section 342, Cr.P.C.; the acquitted respondents have been facing the agony of protracted criminal litigation since year 1989, hence, setting aside the impugned judgment on technical ground S and remitting it to the learned trial court for a verdict anew would be too cumbersome for the respondents to endure; the judgment given by the learned Additional Sessions Judge, Sheikhupura, as the appellate court, in the FIR-case is hardly relevant being incompatible with the circumstances involved herein; the impugned judgment, even if vulnerable a bit, may not be reversed nor should it be asked to be rewritten after so many years had elapsed since pronouncement thereof by the learned trial court, as it may be put in writing with all the requisites in sight by this court; the acquittal of the respondents through a judicial verdict had imparted double presumption of innocence to them, therefore, it ought to be kept intact without being scratched by any alien factor. Learned counsel preferred reliance on Latif v. The State (1980 PCr.LJ 1101), Sultan Khan and 3 others v. The State and 2 others (1987 SCMR 237), Askar Ali and others v. The State (PLD 1959 Supreme Court (Pak.) 251). And Phulail Khan v. The State (1972 SCMR 95). 9. Learned Deputy Prosecutor General Punjab has chipped-in with the argument that the result drawn by the learned trial court through the impugned judgment was unexceptionable, hence, it merited to be retained. 10. The present case is not less than an antique as it was converted into an appeal in year 1994. Initially, P.S.L.A. No,6/1993 was admitted to regular hearing on 10.7.1993 without making any order, if special leave to appeal had been granted to the petitioner (appellant) or not. This issue was taken up again by this court on 16.11.1994 and after hearing the learned counsel for the parties, special leave to appeal was granted to the petitioner mainly on the ground, "that the trial court did not record any independent judgment in the complaint case and acquitted the respondents on the sole ground that the petitioner as well as three others (the complainant party) were convicted in the challan case. " The office was directed to allot a number to the appeal and fix it for final hearing on 18.12.1994, but it could not be heard for another twenty one (21) years for a variety of reasons. It was noticed on 3.12.2012 that record of the complaint-case, wherein the impugned judgment was passed, had not been produced before this court till then, so it was ordered that the requisite record be immediately produced. The Deputy Registrar (Judi.) of this court was directed on 6.2.2013 to ensure availability of the relevant record, who submitted a report on 5.3.2013 stating therein that "as per information provided by the learned District and Sessions Judge, Sheikhupura the relevant record could not be traced and he has requested for extension in time to trace out the record; further that If the record could not be traced out a judicial officer will be directed to reconstruct the record from the all available sources. " It transpires from the record that learned District and Sessions Judge, Sheikhupura directed Mr. Hassan Abbas Syed, Civil Judge First Class cum Judicial Magistrate, section 30 Sheikhupura on 18.3.2013, to reconstruct the missing judicial record from all available sources, within the provisions of rule 5 of Chapter 19-A of High Court Rules and Order Volume-IV and bound him to complete the process of reconstruction by 18.4.2013 without fail. Learned Judicial Magistrate made hectic efforts and succeeded in reconstructing the missing file/record, but not in complete terms, as it did not include the charge- sheet and the statement of one of the respondents (not decipherable) under section 340(2), Cr.P.C. In parallel to it, learned District and Sessions Judge, Sheikhupura got a preliminary inquiry held by Mr. Muhammad Aamir Habib, Additional District and Sessions Judge, Sheikhupura in the matter, who fixed the responsibility on Liaqat Ali, Ahlmad, in this context. Whereafter, a regular inquiry was initiated against him by Mr. Hassan Abbas Syed, Civil Judge First Class cum Judicial Magistrate section 30 Sheikhupura, the inquiry officer, which is still pending. Isn't surprising, yes it is. An aide- memoir be issued to the learned Sessions Judge, Sheikhupura with the direction to take up the (probably) forgotten matter instantaneously without further delay under intimation to the Deputy
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Registrar (Judicial) of this court. The process of inquiry be concluded latest by 30th September, 2015. ' The requisite reconstructed record has however, been found sufficient for adjudication of this case. 11. Main line of attack against the impugned judgment, as preferred by the learned counsel for the appellant is that it was not passed on any argument or reason whatsoever, hence, it could not be considered a valid judgment within the definition of section 367, Cr.P.C. He maintained that the specific procedure as conditioned by the law should have strictly been followed without any short cuts and this is what, that has not been remembered by the learned trial court while passing the impugned judgment, which being bereft of any rationale may be annulled and directed to be rewritten by it within the potentialities enjoined. There may be no cavil to the said proposition of the law, as envisaged by the learned counsel, but this is such a rare case which necessitates compulsive departure from it mainly for the reason that its has already touched the limits of almost being scandalous. Bearing in mind niceties of the subtle issue involved herein, it is straightaway observed that the impugned judgment did not contain discussion of evidence and reasons for the decision made. To say the least it looks, for better part of it, unsatisfactory, shabbily crafted and not a valid judgment in the eye of law. Of the nine pages that it is consisted of, about 8-1/2 pages thereof have been devoted to mere narration of facts and statements of the witnesses. The finding of innocence qua the respondents (Nos.1 to 9) was recorded in remaining half of page No,9 with a frank observation, ".... During the trial of both the cases, it was proved beyond doubt that although the complainant and PWs of this complaint received injuries but they were the aggressors who attacked upon the complainant of the state case and his companions while they were present in a Ehata under their possession... that the complainant of the state case Ilam Din and his companions acted in their self-defence in this fight. This is established principle of law that even if the aggressors are harmed during the fight, they have no case and the persons who acted in their self-defence, cannot be punished for that." ' Learned trial court attached a copy of the judgment, passed by it in the challan-case, with the impugned judgment through a written direction made therein. Evidently this judgment did not satisfy necessary requirements of the law. The main requirement of section 367, Cr.P.C. is that the judgment must be lucid, should contain discussion of evidence, reasons for the decision and not merely the conclusion. A judgment written without discussion of evidence of witnesses or the effectiveness of corroborative evidence, if any and without giving any cogent reason is not a proper judgment, as held by this court in Latif v. The State (1980 PCr.LJ 1101). It was however found improper by this court on the said occasion to remand the case to the learned trial court for rewriting the judgment and thus prolong agony of the accused, who had awaited the final judgment at the trial for a long period of about five years. ' The question raised by the learned counsel for the appellant as to vulnerability of the impugned judgment can be decided by this court by taking into account the material available on the record. In an identical situation, like the one in hand, the Hon'ble Supreme Court of Pakistan in Sultan Khan and others's case, reported as 1987 SCMR 237, observed as under:-- "In Ajodha v. The State 1982 PSC 307 a Privy Council decision, it was held that where long time had elapsed between the commission of offence and the hearing of the appeal, retrial was not proper and it was not allowed. In Phulail Khan v The State and Shah Wali v. The State 1972 SCMR 95 the accused was acquitted of murder charge by the. trial Court and the High Court setting aside the acquittal had ordered retrial. Supreme Court however, set aside the order of retrial on finding that considerable time had elapsed between the date of occurrence as well as since the date of his acquittal and there was therefore, no likelihood of witnesses being available and
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retrial in the circumstances was likely to be an exercise in futility. In that case the time that had elapsed was about 5 years between his acquittal by the trial Court and Order of retrial. In the light of these authorities we are of the considered view that after almost 21 years in the instant case to set aside the acquittal and to order retrial would be a futile exercise. In that view of the matter the impugned judgment of the learned Single Judge of the Lahore High Court is hereby set aside and the appeal is allowed." ' It was yet another case of alike nature, when this court, in its appellate jurisdiction dismissed criminal appeals filed by Askar Ali and others through a judgment, which did not contain examination of facts or legal issues and it simply agreed with the judgment of the learned trial court, completely ignoring arguments contained in sessions judge's judgment, in favour of acquittal of the accused. The Hon'ble Supreme Court of Pakistan considered it a matter for regret, "that learned Judges in the High Court did not see fit to take into consideration the grounds upon which the Sessions Judges had found it possible to deliver a considered judgment, which was practically a judgment of acquittal." The view expressed and observations made by the apex court in Askar All and others v. The State (PLD 1959 Supreme Court (Pak) 251), as to afore- noted proposition of law, are advantageously reproduced hereunder:-- "It has often been said in judgments of Superior Courts that it is important that justice should not only be done but that it should be manifestly seen to be done. Among the most important of the persons by whom justice should be seen to be done are persons who have been convicted of criminal offences at judicial trials. It is evident that to the convicted persons in the present case, the summary judgment of the High Court, containing no examination or statement of the facts or the legal issues arising out of the case and merely declaring that the judgment of the trial Court was in all respects satisfactory and worthy of agreement, but ignoring entirely the arguments upon which the Sessions Judge had based the acquittal of the accused persons on practically all the charges levelled against them, cannot have given the impression of being a judicial act in the proper sense. It was in our opinion requisite in the present case, when the learned Judges in the High Court had formed a view unfavorable to the appellants, that they should have themselves explicitly examined the facts and circumstances and expressed their reasons for disagreeing with the views formulated thereon by the Sessions Judge, in his acquitting order. In the absence of such treatment by the High Court, it becomes necessary for us to go into the evidence and in the light of our own conclusions to consider the arguments which led the Sessions Judge to the conclusions he recorded." The all important question if the respondents could be held innocent and acquitted of the charge on the evidence examined at the trial can be taken up and decided by this court herein. There is no need to remand the case to the learned trial court for rewriting the judgment, as endless agony of the parties may have already crossed the limits of forbearance by now, being it a case, more than quarter of a century old. The judgments, Abdul Rashid Munshi and 3 others v. The State (PLD 1967 SC 498), Sahab Khan and 4 others v. The State and others (1997 SCMR 871), Ashiq Hussain and others v. The State and 2 others (2003 SCMR 698), Muhammad Usman v. The State (1992 PCr.LJ 88), Ghulam Hussain and others v. The State (1996 PCr.LJ 514) and Abdul Qayum v. The State (1996 PCr.LJ 1427), relied on by the appellant's learned counsel, being distinctive on facts lend little strength to the hard-pressed argument. 12. It has unarguably been established on the record that Muhammad Anwar (P.W.2) and respondents Nos.2, 6 and 8, namely, Akbar, Aslam and Shaukat had been injured during the same incident, which, as per contents of the complaint (Exh.PB) took place at the residential house of Atta Muhammad (P.W.3), who is real father of Muhammad Anwar injured. The acquitted respondents persisted with their stance, as mentioned by them in the FIR-case, that the occurrence had taken place at their haveli/Ehata, which had been purchased by respondent Ilam Din for Rs,12,000/-
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about 8/9 months before and it was in their possession on the fateful day. The appellant contended in his testimony that the Ehata belonged to his paternal uncle Mehr Din, who had handed over it to one Lal Din about ten years ago for temporarilyresidingthereinand respondents with intent to unlawfully grab it had trespassed on his house and injured Muhammad Anwar. His attention was drawn to his cursory statement, which he recorded on 10.12.1989 in this context, but it was not so…
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