This judgment disposes of Criminal Appeal No. 476 of 1979, filed by the appellants Vnd Cr---mrnal Revision No: 462 of 1979, filed by Abdul Majid complainant for the enhancement of the sentence of the appellants. This revision petition has been directed to be heard along with Cr. A. No. 476 of 1979.
2. Fateh Mtrhammad, Muhammad Salim, Bashir Ahmad and Nazir Ahmad have beeri<-convicted and sentenced by Malik Muhammad Afzal, Additional Sessions Judge, Sheikhupura, by his judgment dated 11-4-1979, as follows:- Under section 304, Part I,Bashir Ahmad to seven years' R., I.
P. P. C. Muhaminad Salim to five years' R. I. and a fine of Rs. 500, or in default to two months' R. I.
Under section 323, P. P. CFateh Muhammad, Bashir Ahmad and Nazir Ahmad to one month's R. I. each on four counts and to pay Rs. 500, each as compensation or in default to two nionths' R. I. Each.
Out of the amount of compensation, if realised, Rs. 1700, were directed to be paid to the heirs of the deceased and Rs. 300, were directed to be paid in equal shares to the three injured P. Ws. The sentences on each count were ordered to run concurrently.
3.. The occurrence took place at 7 a. m. On 9-8-1976 in Mauza Walipur $oora. Report (Eich. P. G,) was lodged at 6 a. m. On 10-8-1976 by Abdul Majid (P. W. 5) which was recorded by Abdul Majid Sub-Inspector, Police Station, Manawala (P. W. 10) after the complainant obtained the medico- legal certificates.
The conviction is based on the testimony of Abdul Majid (P. W. 5), Niamat A.I (P. W. 7) and Noor Ahmad (P. W. 8) none of whom is related, but they are injured witnesses. Abdul Majid (P. W. 5) suffered three simple blunt weapon injuries, while Niamat A.I (P. W. 7) suffered one simple blunt weapon injury and Noor Ahmad (P. W. 8) suffered two simple blunt weapon injuries. Abdul Hamid deceased had seven injuries out of which three were found to be grievous that is to say that there were 13 injuries in all on the; complainant side. On the appellant side Fateh Muhammad had six injuries, while Muhammad Salim had five injuries and Bashir Ahmad had nine injuries on his person.
All the injuries were simple in nature. With the exception of two injuries on the person of Bashir Ahmad all were suffered by blunt weapon.
4. The case for the prosecution, succinctly stated, is that during the rainy season lot of rain water collected in the deh of the complainant and the accused party who belongs to Walipur Boora had raised embankment to stop the flow of water and, therefore, the entire water collected there. On the day of occurrence at about 6 a, m., Abdul Hamid deceased accompanied by Abdul Majid, Niamat A.I and Noor Ahmad P. Ws. Went to the pacca road towards the Bund in order to see as to why the drainage of water was not proper. Hamid deceased was armed with a kassi, while the P.
Ws. Were empty handed: When they reached near the dera of Amir Ahmad, they saw the appellants sitting in ambush. Muhammad Salim accused was armed with a hatchet and the others with dangs. Muhammad Salim questioned as to where the P: Ws. And the deceased were proceeding and when told that they were going to see the drainage of .Water, Salim forbade them from proceeding further as they had raised the embankment to stop the flow of water. The appellants held out a threat of murder in case the complainant party proceeded towards the Bund.
On this the quarrel started. This spot was at a distance of 7/8 miles from the Bund. Muhammad Salim appellant raising lalkara called upon his co-accused to teach the complainant party a lesson as they were going to destroy the Bund. Thereupon Muhammad Salim gave a blow with hatchet from its blunt side on the head of Abdul Hamid deceased. Then Bashir Ahmad appellant gave a dang blow on the head of the deceased who fell down and thereafter Nazir Ahmad, Bashir Ahmad and Fateh Muhammad appellants gave further dang blows to the deceased. Abdul Majid, Niamat A.I and Noor Ahmad P. Ws. Attempted, to intervene, but all the appellants gave them injuries with their respective weapons. On the alarm raised by the P. Ws. Noor Muhammad and A.I Sher were attracted to the spot. It would be pertinent to note that the injuries to the accused side had been completely suppressed by the prosecution and to be more specific in the F. I. R. Though at the trial in cross-examination 'a vague attempt has been made to explain an injury or two despite the fact that the appellant side had been admitted to the hospital prior to the arrival of the complainant party and it is established that the appellant side received as many as 20 injuries as against 13 injuries received by the complainant party.
5. Dr. Muhammad Akhtar Husain Chatha (P. W. 6) medically examined Noor Ahmad (P. W. 8) and found one simple blunt weapon injury on his person. Niamat A.I (P. W. 7) had one simple blunt weapon injury, while Abdul Majid (P. W. 5) had two contusions and one abrasion all simple blunt weapon injuries.
6. Dr. Manzoor Husain Kazmi (P. W. 3) performed the post-mortem examination on the dead body of Abdul Hamid and found the following injuries on it:-
(1) A contused wound 3!4' x 1/8' deep to bone in the central .Region of back of head.
(2) Swelling all over the right temporal region..
(3) A contusion 3" x 1' on the back of left elbow joint with swelling of the whole elbow joint.
(4) Fracture of the upper bone of the left index finger.
(5) A swelling 4' x 4" just above the right knee joint.
(6) A contusion 3' x 1" on the back side of left shoulder joint.
(7) A contusion 8' x 1" crossing the middle line of lower back at :the lumbar region. .
All the injuries were: caused by blunt weapon. Injuries Nos. 1, 2 and 4 were grievous and the rest ware simple in nature. Death in the opinion of the doctor was due to severe shock and haemorrhage and respiratory failure.
Injuries Nos. 1 and 2 were individually as well as collectively sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was within 24 hours while between death and post-mortem examination it was 18 hours.
The same doctor on the same day medically examined Fateh Muhamm$d appellant and found six injuries on his person out of which two were on the head, all simple blunt weapon injuries.
Muhammad Salim had five injuries on his person out of which one was grievous on the head, while the rest were simple blunt weapon injuries. Bashir Ahmad appellant had nine injuries out of which two were incised wounds, all simple in nature.
7. Except Nazir Ahmad appellant the other three appellants, namely, Fateh Muhammad, Muhammad Salim and Bashir Ahmad, did not deny the incident. Fateh Muhammadappellant raised the following plea:- "On the day of occurrence, Bashir, Salim and I were present on the Bund raised by the people of village Walipur Boora as the rain water was feared to damage life and property of village Walipur Boora Bashir and Salim were armed with dandas, when deceased Hamid, Majid, Niamat A.I and Noor Ahmad came there with a kassi and dangs and started demolishing the Bund. When we asked them not to do so, they opened attack and gave the first injury to accused Salim and then we caused injuries in retaliation in exercise of right of private defence of person and property."
The case of the remaining appellants, namely, Muhammad Salim and Bashir Ahmad is also to the same effect.
8. Since no one was present on behalf of the State, I have called upon Malik Muhammad Akbar, Advocate--- to assist this Court. I have gone through the record with the assistance of the learned counsel for the appellants, Ch. Hafeez Ahmad, _ learned counsel for the complainant, and Malik Muhammad Akbar, learned counsel for the State.
Admittedly the F. I. R. Is delayed by nearly 23 hours and to be more particular, witnesses had been examined by the doctor at 12-40 p. m. And, therefore, there is no plausible explanation for the delay in the lodging of the F. I. R. Thereafter. Abdul Hamid succumbed to his injuries on the same day at I I p. m. And surprisingly even then the F.
1. R. Was not lodged promptly and the same was lodged at 6 a. m. Next morning. The Police Station is situated nearby and in fact it is accepted that proceeding from the spot to the hospital the Police Station fell en route, and the relevant portion from the statement of Abdul Majid (P. W. 5) is quoted below:- "P. S. Mananwala is three miles away from the place of occurrence. It is correct that pucca road leads from the place of occurrence to P. S. Mananwala. The deceased Abdul Hamid was taken on a truck to Civil Hospital, Sheikbupura. We passed from P. S. Mananwala. . . ."
This delay in itself is fatal to the prosecution case. I also note that in the F. I. R. The injuries to the appellants have been completely suppressed. Except for one injury neither there is any mention nor any explanation for the'same. It is accepted by Abdul Majid (P. W. 5) that the appellants had reached the hospital and examined by the doctor before their arrival and yet there is no explanation for the same in the F. I. R. Which adversely reflects upon the prosecution case.
It is accepted by Abdul Majid P. W.
"The deceased Hamid was armed with a kassf."
It is further accepted by him:- "This embankment has been raised by the people of Waiipue Boora to protect their crops from being spoiled by the rain water . . . . : .
It is correct that the accused had told us that if we tried to dismantle the Bund, they will not spare us. It is correct that on this the quarrel of accused Salim started with deceased Hamid . . . . . . . We were not taking kassi with us to dismantle the Bund. We had brought the-kassi as we had a round of our fields. Accused Salim had said that we should be taught lesson for dismantling the Bund."
The last sentence would imply that the Bund had in fact been dismantled by the complainant party.
Similarly, Niamat, A.I (P. W. 7) admits:- "We had gone with the intention of causing of drainage of water after dismantling thb embankment as our houses were being damaged by the water . . . . . It is correct that after exchange of abuses the deceased Hamid and accused Salim started grappling with each other. At that time accused Salim was armed with hatchet and deceased Hamid was armed with kassi. It is correct that at the time of grappling, the accused Bashir had declared that we should be taught lesson for dismantling the embankment . . . . . . . . We passed from Mananwala while going to civil hospital, Sheikhupura . . It is correct that the injured accused had reached the Civil Hospital, Sheikhupura, before our arrival and they were already examined by the doctor . . . . . The Bund was raised by the people of Walipur Boora to protect their standing crops by damage from water."
9. From the above quoted admissions it is clear that due to rainy season the water was flowing and the people of Walipur Boora had raised the embankment for stopping the flow of water to their fields and village and it was the complainant party which proceeded with the intention. Of dismantling the Bund, which it appears they in fact started dismantling and when Muhammad Salim appellant desisted them from doing so, exchange of abuses and grappling betwcen the deceased and Muhaw, -nad Salim appellant preceded the actual causing of injuries. Muhammad Salim appellant had a hatchet and the deceased had a kassi, but Muhammad Salim used the hatchet from the blunt side and only one blow is attributed to him.
10. Following the chain of rulings, starting from Woolmington's case (LR 1935 AC 462down to Rehmat's case PLD 1977 SC 515), the judicial consensus is that burden to prove the general issue is always on the prosecution; the whole of the evidence has to be looked into in its entirety and not merely special pleading of accused irrespective of prosecution evidence; there is no conflict between section 105 of the Evidence Act and the principle laid down in Wilmington---s case, if after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case, despite the provisions of section 106 of the Evidence Act, the onus in criminal cases rests on the prosecution to prove the guilt of the accused beyond reasonable doubt. Section 106 cannot be construed to mean that this onus at any stage shifts on the accused to prove his innocence or o make up for inability and failure of the prosecution to produce evidence to establish guilt of the accused. An accused failing to prove special pleading but succeeding in raising reasonable doubt is entitled to acquittal. In the circumstances, the accused is entitled to the benefit of doubt, not as a matter of grace, but as of right
11. In this view of the matter, the appellants version gets reasonable support from the prosecution evidence itself and the possibility of their version being true, under no circumstances, can be ruled out. They acted in exercise of their defence of person as well as of property, therefore, by way of abundant caution -I would like to give the benefit of doubt to the appellants, allow the appeal and set aside their convictions and sentences and acquit them.
Ahmad appellant shall be set at liberty forthwith if not wanted in any other case. Fateh Muhammad, Muhammad Salim and Nazir Ahmadl appellants are on bail. Their bail bonds shall stand discharged.
12. The result is that Criminal Appeal No. 476 of 1979, is accepted, while Criminal Revision No. 452 of 1979, is rejected.