' GHULAM MUJADDID MIRZA, J.-Anwarul Haq, Wali Muhammad, Iqbal son of Karim Bakhsh, Iqbal son of Fazal, Fateh Muhammad and Muhammad Hussain were tried for the murder of Muhammad Aslam and for causing injuries to Allah Ditta, Akram Shafique, Mushtaq, Taj Din and Jamal by the Sessions Judge, Gujranwala. The trial Judge acquitted all the accused by his judgment dated 10-7- 1972.
The State filed appeal against the aforesaid judgment. Abdul Ghani challenged the acquittal of the respondents by means of Criminal Revision No, 139 of 1973. Both were admitted to regular hearing.
These shall be decided by this judgment.
2. The case against the respondents under section 307/149/148, P. P. C. Was registered at Police Station, Sadar Wazirabad on the statement of Muhammad Aslam which was recorded by Muhammad Yousuf Khan, Sub-Divisional Magistrate on 9-8-1969, at 8-33 p. m. In Civil Hospital, Wazirabad, where Muhammad Aslam was admitted. As the injured expired on 11-8-1969, it became a case of murder.
' Muhammad Aslam's version was that on 9-8-1969, at Laudewela, he was coming from the tube- well to his village- Rakh Bharoke. On the way the respondents lay in ambush. Anwarul Haq and Wali Muhammad had guns, Iqbal, the other Iqbal and Fateh Muhammad pistols and Muhammad Hussain a sota. All of them attacked him. Anwarul Haq fired at Allah Ditta. Muhammad Aslam was fired at by Wali Muhammad. He was hit and fell down.
' The motive for this attack was that on 4-8-1969 Allah Ditta had rounded up the cattle of the accused which were found grazing in his field and were damaging his crop.
3. The case was partly investigated by Ishtiaq Muhammad Khan A. S. I. And partly by Ghulam Raza, Station House Officer. The latter took over the investigation from the former on 10-8-1969. He took into possession four empty cartridges P. 4 to P. 7, vide memo. Exh. P. J. He also took into possession wooden manger vide memo. Exh. P. K. Because it had pellet marks. Two pellets were picked up from the sourthern side of the Awi and one from the southern side of Khurli vide memo. Exh. P. L. A few pellets were embedded in the wall of the Awi. Two wads and 15 cardboards of crime empties were taken into possession from the spot, vide memo. Exh. P. M. The officer also took into possession blood-stained earth from near the Awi. He then proceeded > to the moonji crop of Allah Ditta and found that it had been damaged. He also noticed some hoof marks of buffaloes.
4. The accused respondents were arrested on 15-8-1969. Wali Muhammad produced gun P. 23, revolver P. 24 and their respective licences. These were taken into possession vide memo. Exh. P.O.
Anwarul Haq produced gun P. 22 with its licence for which memo. Exh. P. R. Was prepared.
5. Fateh Muhammad in his statement before the trial Court admitted that Anwarul Hag was his brother, Wali Muhammad and Iqbal son of Karam Bakhsh, first cousins but said that they were at dagger's drawn with him because he had divorced their cousin sister. Similarly he admitted that Muhammad Hussain was his cousin, but even he was inimical towards him because his real sister had been divorced by him.
' Fateh Muhammad further admitted that 8/10 years ago, Allah Ditta P. W. Appeared against him and his father in a criminal case for beating Khushi Muhammad, but said that he falsely deposed against them. The accused were eventually acquitted.
' When questioned "how do you explain your injuries"? Fateh Muhammad gave the following statement :- "Abdul Ghani, the father of the deceased, had purchased a piece of land from Rukayya etc. In the village. Muhammad Rafique got a decree for pre-emption. The Patwari and Girdawar of the area had come in the village to deliver possession of the said land in pursuance of the said decree. I was called by the Patwari and the Girdawar at the time of handing over the possession to Muhammad Rafique. The piece of land is situated near the Primary School. Muhammad Ahmad, the son of the judgment-debtor was present at the time of the possession or proceedings. After the possession proceedings, I asked the Patwari and the Girdawar that Muhammad Rafique did not pay his land revenue. They should intervene in the matter. Muhammad Ahmad intervened and stated that I had taken the land revenue of the disputed piece of land from him, then why I was demanding the land revenue from Muhammad Rafique. I replied that they were stronger people and they could pay the land revenue any time they liked, but I had to recover the land revenue from Muhammad Rafique on whose behalf I had paid the land revenue to the Government. Thereafter, Muhammad Ahmad caught me by the neck and gave me two slaps. He then called out Shafiq, Akram, Aslam, Ashraf for his help. They arrived armed with dangs and gave me dang blows. That is how I was injured. It were Shafique, Akram and Ashraf who gave me dang blows. I hereafter, other persons present on the spot rescued me and separated me. The blood started bleeding from my wound and I started going back home. There was a girl named Ghafuran who saw my blood and started weeping.
When I reached near the Awi, a gunfire was effected at me by Aslam deceased from behind. I, however, took shelter behind the Awi and was saved. Ghafuran who was walking beside me was hit by that gunfire. Allah Ditta, Jamal, Taj Din and Mushtaq had also arrived near the spot because of the noise. The second fire of Aslam hit these persons and they were injured. Iqbal son of Karam Bakhsh then arrived on the spot and raised the noise that the Lambardar was being killed. It should not be done. Muhammad Ahmad and Aslam fired at him. Muhammad Ahmad fired his pistol. He was injured in the hand and he also fired his gun. He fired his gun towards Aslam, etc."
' Fateh Muhammad pleaded not guilty, declined to produce any evidence in defence and said that the case was due to enmity. He tendered certified copies of judgments Exhs. D. G. And D. H. And certified copies of statements Exhs. D. I. And D. J.
' The remaining accused denied the allegations and said that they had been implicated due to enmity.
6. Prosecution produced Allah Ditta P. W. 13, his son Muhammad Akram P. W. 14, Jamal Din P. W. 15 and Muhammad Ahmad P. W. 16, as eye-witnesses. The first three were injured. Reliance was also placed on the recoveries as well as the medical evidence.
7. Fateh Muhammad respondent admitted to have fired as a result of which Aslam died.
Nevertheless, he gave reasons why he had to resort to firing. He denied to be the aggressor. His plea was that he had to fire in the right of private defiance. Thus there are two versions of the incident. Hence the prosecution case is to be examined side by side the defence version. Allah Ditta P. W. Said that on the day of occurrence at about Laudewela, he went to his field of Moonji. There he saw the cattle of Fateh Muhammad and Anwarul Haq damaging the crop. He rounded up the cattle and started for Kot Jafar to leave them in the cattle-pond. He had a sota in his hand. He walked 57 karams when from the Haveli of Khurshid, Fateh Muhammad accused came. He asked him where was he taking the cattle and was told that he was taking the cattle to Kot Jafar. The witness told him not to do' so, , but he insisted. Fateh Muhammad abused Allah Ditta. Both then grappled.
' Allah Ditta gave two sofa blows to Fateh Muhammad. Fateh Muhammad went to the kikri trees which were in the land of Khurshid at a distance of about 20 karams towards south-west. Allah Ditta continued his journey to Kot Jafar. At a distance of 10/12 karams, there was a Awi of Kumhats from the place where he gave beating to Fateh Muhammad. When the witness reached near the Awi, from behind the Kikris the respondents appeared. They took their position behind the band of a Nall and shouted "the cattle would not go to the pound but your dead body would go to the police station". Wali Muhammad and Anwarul Haq bad guns ; Muhammad Hussain a sofa and the rest were armed with pistols. Anwarul Haq opened the attack. The shot hit the right side of chest, arm and thigh of Allah Ditta. He fell down. In the meanwhile Muhammad Aslam arrived from the western side, He told the accused that their cattle had damaged their crop on which Wali Muhammad came forward and fired at him. He was hit and fell down. Taj Din, Jatnal, Mushtaq, Sharif, Sadiq, Muhammad Akram and Muhammad Ahmad came to the spot and saw the occurrence. Sharif was also injured. Muhammad Ahmad had a narrow escape, because he took shelter. The accused after firing ran away with their respective weapons saying thereby that both the swines had been killed and the cattle would graze there.
' Allah Ditto was then taken to Wazirabad Hospital from where he was shifted to Mayo Hospital.
While in Wazirabad hospital, he was examined by Dr. Manzur Ahmad Qureshi, who noticed two gunshot wounds of entrance with inverted margins and a lacerated wound on his person.
' Muhammad Akram P. W. Son of Allah Ditta said that he came to the place of occurrence after hearing some noise and saw Fateh Muhammad going toward kikkar trees. When he was close to the kikkar trees there emerged five persons. Those were the respondents. They came forward and when they reached near the Nall, then shouted "we will teach you a lesson for taking away the animals". The witness then described how the accused were armed and his version was the same as that of Allah Ditta. According to Muhammad Akram, his father was then goading the animals to Kot Jafar. When he was near the Awi of Kumhars, Anwarul Haq shouted and fired at him, He received injuries and fell down. In the meanwhile Aslam turned up and told the accused that their animals had damaged the crop and they had beaten Allah Ditta. Wali Muhammad fired at Aslam, who fell down. The accused then ran away. The witness also said that Muhammad Ahmad, Sharif, Taj, Mushtaq and Jamal Din also came to the spot.
' Jamal Din P. W. Noticed Allah Ditta taking the animals towards Kot J rfar near the Awi of Kumhars.
He saw Fateh Muhammad running towards the kikkar trees. When Fateh Muhammad overtook Allah Ditta near the trees, he was then accompanied by the accused. The accused party had come out from behind the grove of kikkars. Muhammad Hussain was armed with a sota, Anwarul Haq and Wali Muhammad with guns and the rest with pistols. The witness said that Fateh Muhammad was also armed with pistol. The accused party sat near the Nali and then stood up, walked forward, raised lalkara and said that they would teach Allah Ditta a lesson for taking away the animals Anwarul. Haq fired at Allah Ditta. He was hit and fell down. Aslam came running and when he was at a distance of 3/4 karams he told the accused not to kill and also said "you have damaged his crop and now you were going to kill him." Anwarul Haq stepped forward and fired at him. He was hit and injured. Wali Muhammad also fired at Aslam.
' The last witness is Muhammad Ahmad, brother of the deceased. He said that Allah Ditta was hit by a shot fired by Anwarul Haq and Aslant was hit by Wali Muhammad. Then the accused party fired.
Taj, Jamal Mushtaq, Akram came to the spot. They were injured and so was his brother Shafique.
However, Muhammad Ahmad escaped because he took shelter behind a khurli.
8. Mst. Ghafuran and Shafique were examined as court witnesses.
' Mst. Ghafuran, aged 10/12, resident of Rakh Bharoke said that at about leudewela, she was returning from the fields after serving meals to her brothers who were working there. When she reached near the garden, she saw Muhammad Ahmad beating Fatah Muhammad respondent with fists. Shafique, Akram and Aslam also arrived there armed with dangs. They started beating Fateh Muhammad. He was injured. When other people came to the spot, they separated and rescued Fateh Muhammad. Fateh Muhammad started walking to the village. It was then that Aslant arrived from the school. He had a gun. He fired his gun. Fateh Muhammad took shelter behind the Awi. The shot hit Mar. Ghafuran. She was injured. She fell down and became unconscious. The utensils which she was carrying, fell on the ground. She did not see anything else than that. She said that she did not see any animal nor did she see anybody with gun firing till the time she became unconscious.
' Shafique brother of the deceased was present in his baithak when he heard some noise from the school side. He went to that side and saw Anwarul Haq holding a single barrel gun and Wali Muhammad "a double barrel. Iqbal had a pistol and other Iqbal a pistol. Fateh Muhammad had a pistol and Muhammad Hussain a sota. These persons were standing near the Aad. Allah Ditta was standing near the Awi at a distance of 12/13 kararnt. Anwarul Haq fired at Allah Ditta. Muhammad Aslam was coining from the school to the Awi. He was fired at by Mali Muhammad. Then all the accused started firing as a result of which, Shafique, Akram, Jamal Din, Taj Din and Mushtaq were injured. Thereafter they left the spot raising lalkara. The witness said that he did not see Mst.
Ghafuran but he saw 4/5 animals there.
9. Learned counsel appearing on behalf of the State argued that all the four eye-witnesses implicated the accused respondents. He submitted that at least presence of three witnesses cannot be doubted under any circumstance, because they were injured. Hence there was no reason to disbelieve them. Learned counsel submitted that if some corroboration was required that was available from the recoveries made at the spot, which according to Sh. Muhammad Din P. W.
12, Examiner Fire Arms, Forensic Science Laboratory matched with the respective weapons recovered from the accused.
' Learned counsel further submitted that it was a broad daylight occurrence. There was no possibility of mistaken identity or of substitution. ' It was submitted that even the venue was admitted by both the parties.
10. Mr. Batalvi appearing on behalf of the complainant supported the counsel for the State. He submitted that the defence version was not plausible. He further submitted that if the same was to be rejected, then the Court has no option but to accept the prosecution story which had been proved beyond any doubt by the ocular evidence. For this submission learned counsel pressed into service the doctrine of juxtaposition.
' Learned counsel submitted that the evidence of the eye-witnesses was so "strong and independent" that it did not require any corroboration. Nevertheless, if the rule of prudence was to be applied then there was sufficient corroborative evidence on the record.
' In support of this reliance was placed on Syed All Bepari v. Nibaran Alollah and others (1).
11. Mr. D. M. Awan, learned counsel for the respondents contended that the mere fact that three of the eye-witnesses were injured, was no guarantee of their being truthful witnesses and their evidence was still subject to the test of credibility and veracity. Learned counsel argued that if from the other evidence on the record it was proved that the witnesses had not told the truth then their evidence was to be outright rejected. It was submitted that once the eye-witnesses were disbelieved then there was not sufficient evidence in law to justify I he conviction of the respondents.
' Regarding the doctrine of juxtaposition, Mr. Awan contended that no doubt the prosecution case is to be examined side by side with the statements of the accused, but that did not mean that the prosecution is entitled to fill in lacunae in its case by utilizing the statement of an accused to the extent to which it is helpful to the prosecution. He submitted that still the onus remains on the prosecution to prove its case beyond reasonable doubt.
' In support of the aforesaid contention, reliance was placed on Safdar Ali v. Crown (2), where it had been observed :- "It is the main principle of criminal law that an accused person must be presumed to be innocent unless and until it is established by the
(I) PLD 1962 SC 502 (2) PLD 1953 FC 93 prosecution beyond reasonable doubt that he or she, as the case may be, is guilty. Section 105 of the Evidence Act has to be read not as contradicting this principle but consistently with it. That provision of law was enacted obviously to relieve the prosecution from the necessity of proving the absence of facts which might bring the case within a general or special exception. But the burden cast on the accused under that section cannot be as heavy as the burden that rests on the prosecution. The plea of the accused may be established and yet it may create a reasonable doubt with regard to his guilt. It cannot be said that because under section 105 the burden of proof is on the accused and he has not discharged that burden but has only raised a reasonable doubt, the Court has to convict him in spite of the existence of such a doubt. The decision has to be taken on the entire evidence not on the special pleading. The decision in Woolmington's case L R 1935 A C 462 is, therefore, applicable in this country and far from being inconsistent with section 105, it serves as a valuable guide for its interpretation. In the present case, the question whether the accused acted in the exercise of the right of private defence arises on the case of the prosecution itself. To secure a conviction for murder, the prosecution had to establish in this case not only that the appellant inflicted on the deceased the injuries of which he died, but also that he was the aggressor and acted with the intention or knowledge requisite for the offence of murder. If in determining whether this burden was discharged by the prosecution the version of the accused appears to be reasonably possible, then a reasonable doubt pervades the whole case and the appellant becomes entitled to an acquittal."
' Reliance was also placed on the following observation in Sultan Muhammad v. The Crown (1) : "The principles governing the correct procedure for appraisement of the evidence and circumstances, and the requirements for a conclusion adverse to the accused, in cases of this have stated with clarity in the well-known case of Woolmington L R 1935 A C 462 which this Court has considered and approved in the recent case of Safdar All v. Crown PLD 1953 FC 93 and Muhammad Aslam v. Crown PLD 1953 FC 115. In such a case, even if an act by the accused resulting in death is admitted, there can be no presumption that the act was voluntary and intentional, and these elements must be established by the prosecution, like any other element of the offence charged. Further, it is not correct to say that the accused must be found guilty if he fails to show the circumstances necessary to establish the accident pleaded by him. The final question for the jury, and equally for a Court which has to decide the matter without the aid of a jury, is not whether the accused has established his plea, but is the fundamental question whether the Crown has succeeded in establishing the general issue of the accused's guilt. For this purpose, it is necessary that the whole case namely all the facts and circumstances adduced for the prosecution and the like facts and circumstances adduced for the defiance, should be placed side by side, and after full consideration of their effect upon each other, if there still remains a reasonable doubt whether, even if the accused's special pleading be not accepted, the act of killing might be unintentional, the benefit of such reasonable doubt must go to the accused person."
(1) P L D_1954 FC 29 ' Learned counsel then cited Muhammad Fazlul Karim v. The State (1) where it was observed :- "But it must be remembered always that in a criminal case, the onus is on the prosecution to prove their case, and that the accused cannot be convicted merely on proof of his having told an untruth in relation to one or more of the facts alleged against him."
' Learned counsel also cited Rehmat v. The State (2), where while dealing with section 106 of the Evidence Act, it was observed "Section 106 must be considered in a common sense way ; and the balance of convenience and the disproportion of the labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the case with which the accused could prove them, are all matters that must be taken into consideration. This section cannot be used to undermine the well-established rule of law that, save in a very exceptional class of cases, the burden is on the prosecution and never shifts."
12. Learned counsel then referred to the evidence of Mst. Ghafuran and Shafique C. Ws., and submitted that the latter was the real brother of the deceased, yet he was not examined by the prosecution. This created a great deal of doubt about the prosecution story and the only legitimate inference which could be drawn from his absence was that his statement did not suit the prosecution or that the prosecution story was different than the one told by the eye-witnesses.
Learned counsel submitted that Mst. Ghafuran was a disinterested witness. Her statement completely falsifies the entire prosecution case. According to the learned counsel there was not another important flaw which was fatal to the prosecution and that was that was that none of the prosecution witnesses explained the injuries of Mst. Ghafuran C. W., Fateh Muhammad and Muhammad Iqbal accused respondents. Learned counsel contended that there was no explanation of the file as to what was the reason for not examining Mst. Ghafuran and Shafique by the prosecution.
13. First of all, we would like to deal with the contention of Mr. Batalvi pertaining to the principle of juxtaposition. We are unable to agree with him that if a specific plea is taken by an accused and that is no established or accepted by the Court, then the accused must be made t suffer for that. If this interpretation is to be accepted then it would ruin A the centuries old principle of administration of criminal justice that the onus lies on the prosecution to prove its case beyond reasonable doubt.
' The principle laid down in Safdar Ali's case has been consistently observed by the Courts. It is still the law of the land.
' So a question arises what is the effect of a plea taken by the accused. The answer to that is to be found in the dictum of the Supreme Court in Sultan Muhammad's case and that is: "It is necessary that the whole case namely all the facts and circumstances adduced for the prosecution and the like facts and circumstances adduced for the defiance, should be placed side by side, and after full consideration of their effect upon each other, if there still
(1) PLD 1964 SC 792 (2) PLD 1977 SC 515 ' remains a reasonable doubt whether, even if the accused's special pleading be not accepted, the act of killing might be unintentional, the benefit of such reasonable doubt must go to the accused person".
' So it is in the light of the above that we would examine the entire case.
14. No doubt, three of the eye-witnesses were injured, which prima facie is proof of their presence at the spot, but this fact alone does not guarantee that they were telling the truth, unless their evidence is considered along with the other relevant testimony. In this sequence we do not think the evidence of Mst. Ghafuran and Shafique can be ignored. Mst. Ghafuran was a child aged about 10/12. She was injured. She gave evidence with full confidence and also stood the test of cross- examination very well. We are much impressed by her testimony. Her version alone falsifies the ocular testimony and is sufficient in law to disbelieve the prosecution story.
Shafique is real brother of the deceased. His version is also different to that of the eye-witnesses.
Whatever little is left with the prosecution, stands completely demolished by the fact that none of the eye-witnesses mentioned about the injuries of Mst. Ghafuran, Fateh Muhammad and Muhammad Iqbal. In such state of affairs we are of the view that the prosecution story is not trustworthy.
' The result is that both the appeal and the revision must be dismissed and we order accordingly.