This is an appeal preferred by Naurans from his conviction under section 302, P. P. C. And sentence of life imprisonment plus a fine of Rs. 2,000 or in default of payment thereof, rigorous imprisonment for a further period of one year. Half of the amount of fine, if realized, was ordered to be paid to the heirs of the deceased. Six of the co-accused tried in the same case were acquitted on the benefit of doubt.
2. The case of the prosecution was that deceased Khan Muhammad accompanied by Dulla complainant and Falaksher P. W. Had been returning at about noon on 11-7-1975 from the bhaini of Rajab Ali where they had gone to purchase a buffalo and that when they were passing by the bhaini Muhammad Yar alias Mahmoon, co-accused, they were invited to smoke huqqa whereupon they entered the courtyard of that bhaini. Soon thereafter, Naurang appellant, Machhia, Lakhmir, Noora and Gulsher armed with sotas and Gama empty handed came and raising a lalkara started belabouring the deceased. They continued beating him even after he had fallen on the ground.
Dulla and Falaksher, who tried to rescue the deceased, also received blows. Many other persons came but they were kept of by the threats extended by Gama and Muhammad Yar. After some deliberation the assailants removed the body of the deceased, who had already died, to the bhaini of Allah Dad, who had appeared as a witness against the accused party in a murder case. The matter was reported to the Police at 5-30 p.m. The same day by Dulla. The motive stated in the F. I.
R. Was that the accused had suspected the existence of illicit intimacy between the deceased and Mst. Nooran were of Muhammad Yar and sister of the appellant.
3. In the course of the investigation, sofas P. 3 to P. 7 were recovered from Machhia, Naurang Lakhmir, Gulsher and Noora in that order.
4. The post-mortem examination of the deceased held the next day disclosed the presence of as many as 22 injuries mostly contusions and some abrasions. The death was due to shock resulting from the injuries to the vital organs. The injuries which had been caused by blunt weapon, were sufficient to cause death in the ordinary course of nature.
5. The medical examination of the two injured witnesses disclosed the presence of two bruises and one abrasion on the person of Dulla and two bruises on that of Falaksher. The injuries were simple in nature and had been caused by blunt weapon.
6. In support of its case the prosecution, besides the Medical Officer, examined Falaksher (P. W. 5) and Dulla complainant (P. W. 6). Sooba (P. W. 4) proved the recoveries of the sofas P. 3 to P. 7 from the accused party as well as mud-stained shirt P. 1 and mud-stained chadar P. 2 of the deceased.
7. The accused persons pleaded not guilty to the charge. Machhia stated that he had been acquitted of the murder of one Khadim Hussain, a relative of the deceased, for which the complainant party nursed grudge against him. The other accused had alleged that they had been roped in on account of their relationship with Machhia. Only Gama accused produced evidence of Ch. Ikramul Haq (D. W. 1) and Allah Dad (D. W. 2). Ch. Ikramul Haq, who is an Oath Commissioner, proved an affidavit (Exh. D. B) made by Dulla during the pendency of the case, in which he had exonerated all the accused. Allah Dad D. W., who is the same person at whose bhaini the body of the deceased had been left by the accused, stated that he had rushed to his bhaini on hearing noise and on reaching there had seen Nauranq appellant, Khan deceased and Me. Nooran present there and Naurang giving kick blows to Khan deceased. According to the witness some other persons attracted by the commotion had also come and belaboured the deceased but he had not seen any of the other accused persons there.
8. The learned trial Judge found the ocular evidence produced by the prosecution to be suffering front many discrepancies and contradictions. Both the eye-witnesses, namely Dulla and Falakaher, were related to the deceased. Their story that the deceased and they had gone to the bhaini of Muhammad Yar at the latter's invitation, did not accord with the motive ascribed. Dulla had attributed his injuries in the F. I. R. To Lakhmir and Machhia but in his evidence, to Gulsher, Noora and Machhia. Similarly the injuries to Falaksher had been caused by Naurang and Noora according to the F. I. R. And the statement under section 161, Cr. P. C., but by Naurang and Lakhmir according to his evidence in the trial. They bad failed to explain the contradictions when confronted with. The place of occurrence according to these witnesses was under the shisham tree in the courtyard of Muhammad Yar but the draughtsman had shown the place to be 21 karams away from that tree.
The learned Judge also found it unacceptable that the ocular witnesses who were related to the deceased had not first gone to his bhaini to inform his relatives but had instead gone to another Chak, i.e.. 40/WB. No mark of struggle had been noted by the Investigating officer at the place of occurrence nor, of course, there had been the recovery of any bloodstained earth. The learned Judge, therefore, felt that "it cannot be said definitely that the occurrence had taken place in the courtyard of Muhammad Yar". As for the injuries sustained by them, the learned Judge observed that their injury statements bad been prepared the next day and that they were not only minor injuries but in the opinion of the doctor the possibility of their being self-inflicted could not be ruled out. He also felt that Saeed and Ghulam Qadir P. Ws., who were stated to have come to the scene and seen the occurrence and who appeared to be independent persons, were not examined and were given tip as having been won over. But the more important fact detracting particularly from the evidence of Dulla complainant is the affidavit Exh. D. B made by him on 25-4-1977, i.e., during the pendency of the case, in which he had exonerated all the accused including Naurang. This affidavit was not totally denied by Dulla who admitted that "the affidavit Exh. D. B bears my thumb- impressions Exhs. D. B/1 and D. B/2". He had also admitted to have purchased on 25-4-1977 the stamp-paper on which the affidavit was written. This affidavit had been filed in the Court of A. D. C.
(G), Vehari, on 28-4-1977 and when the question was put to Dulla, he evaded an answer by saying ---I do not remember . . . . . . The learned Judge therefore, held that the eyewitnesses were neither present at the time of the occurrence nor their account could inspire confidence. However, in view of the statement of Allah Dad (D. W. 2) which he found corroborated by the motive, he held Naurang appellant alone guilty of the murder and accordingly, while acquitting all the co-accused, convicted and sentenced Naurang as aforesaid.
9. On examining the evidence of the two eye-witnesses, namely, Dulla and Falaksher, I find myself in agreement with the learned trial Judge that a conviction on their testimony, which is full of discrepancies and improbabilities, would not be warranted. Dulla certainly merits no credibility in view of the affidavit Exh. D. B. Proved against him, in which he had not only exonerated all the accused persons but had explained away his F. I. R. By saying that the police had obtained his signatures on some papers on the bass of which the F. I. R. Had been prepared and that he himself had not seen Khan Muhammad being murdered. It is surprising that the same witness when appearing later before the trial Court, i.e. On 21-9-1978, had again gone back to his F. I. R. Version.
The evidence of Falaksher, too, is not deserving of any better respect, not only because he is related to the complainant, his sister being married to Lakhmir, brother of Dulla, but also because he had stated that they had all gone to the bhaini of Muhammad Yar at the latter's invitation although in view of the motive such a thing was not probable.
10. The prosecution story having thus been rightly disbelieved, the question arises whether the Court could base the conviction upon the defence evidence itself. It is to be noted that Naurang appellant had himself made no admissions but had totally denied the allegations and had alleged that his involvement was on account of his relationship with Muhammad Yar co---accused. It is also to be noted that Allah Dad (D.W.2) had not been produced by the appellant but by his co- accused Gama, though it is true that this defence witness had not been cross-examined by or on behalf of the appellant.
11. The fundamental principle of criminal jurisprudence is that the prosecution must prove its case against the accused and that there is no such burden on the accused to establish his innocence.
The onus lies entirely on the prosecution. The prosecution must stand on its own strength and cannot seek support from any weakness of the defence. Any explanation offered by the accused or his witnesses is only meant to see if the same rebuts the case of the prosecution or even creates a reasonable doubt therein. In Major Robert Stuart Wauchope v. Emperor (AIR 1933 Cal. 800A I R 1933 Cal. 8001935 A C 462) it was laid down that "In criminal cases the onus of proving the general issue never shifts". Viscount Sankey in Woolmington v. Director of Public Prosections (1935) (1935 A C 462) observed: "But while the prosection must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt, he is not bound to satisfy the jury of his innocence."
Following these principles, the Allabad High Court in Ram Kala v. Em--peror (AIR 1946 All. 191) held that: ". . . . The prosecution must, even though there may be some lacuna in the defence, not strictly consistent with the innocence of the accused, still prove his guilt beyond all reasonable doubt."
The same view was taken in Muhammad Yaqoob v. The Crown (PLD 1954 B J 9) wherein the Division Bench expressed the following view: "As far as the statements of defence witnesses are concerned I am not quite sure that in the absence of any credible evidence produced by the prosecution such statements can form basis for conviction. The initial burden of proving the guilt of an accused person is on the prosecution.
This burden can be discharged by direct or circumstantial evidence. But if no such evidence is forthcoming, then basing con--conviction on the statements of defence witnesses would in my opinion amount to requiring an accused person to prove his innocence, which is against all accepted principles of criminal law. If however credible evidence is produced by the prosecution then defence evidence can be taken into consideration as corroborating it. But assuming for the sake of argument that in the absence of credible prosecution evidence conviction can be based on defence evidence, which as stated above cannot and should not be done, then such evidence should be taken into consideration in its entirety and not only inculpatory parts of it."
12. Reverting to the evidence of Allah Dad (D. W. 2), it is more than apparent that the same does not explain the occurrence nor the number of injuries found on the person of the deceased. Although the witness had stated that other persons who had come had also belaboured the deceased but he had again stated: "I had only seen Naurang beating Khan and no other person had given him any such beating". The injuries are too numerous to have been inflicted by one man particularly if he was unarmed as Naurang, according to the witness, was. The witness was unable to name any of the other persons who had also arrived. Then he stated that Naurang had been apprehended at the spot but he failed to name the person who had appre--hended him. He had also not given his account to the police although he had appeared before them. He stated: "police had only enquired from me the killa number and square number of my bhaini and had not asked me about the occurrence. Otherwise I was neither examined by the police nor did I offer myself to get my statement recorded". His evidence, therefore, does not inspire confidence and cannot be made the basis for recording a conviction under section 302, P. P. C. It must be kept in mind that it is open to an accused to take a false plea or adducing false evidence but the falsity of defence, while it may help to strengthen or rebut or create a doubt in the prosecution evidence, cannot by itself be made a basis of conviction. The accused is in a state of anxiety and in order to save himself may take recourse to a false plea or false evidence but he may all the same be innocent.
13. On the above view of the matter, the conviction and the sentence of Naurang appellant cannot be maintained and as such the same are set aside and he is acquitted. He shall be set at liberty forthwith if not wanted in any other case.