ASLAM RIAZ HUSSAIN, J.--Allah Yar, aged 55 years and his two sons Fazal-ur-Rahman, aged 26 years and Falak Sher, aged 24 years, were tried by Malik Gul Baz Khan, Sessions Judge, Lyallpur, for an offence under section 302/34, P. P. C. for the murder of Saifullah deceased. All three of them were convicted and sentenced to death by the trial Court by its judgment dated 26th December 1969. They have come up in appeal against their conviction and sentences. The matter has also been referred to us under section 374, Cr. P. C. for the confirmation of their death sentences.
Fazal-ur-Rahman, appellant, has also filed an appeal (Criminal Appeal No, 14 of 1970) against his conviction and sentence under section 13 of the Arms Ordinance awarded to him vide his order dated the 9th of October 1969, which was ordered by Mr. Justice Ataullah Sajjad on the 20th of April 1970, to be heard along with Criminal Appeal No, 785 of 1969.
We propose to dispose of the above-noted two appeals as well as the murder reference, by a single judgment.
2. The prosecution version about the murder as stated in the F. I. R. lodged by Ghulam Muhammad P. W. 11, is briefly, as follows:-- The land of the appellants, in square No, 74 of Chak No, 566/G.B is situated adjacent to the land of the complainant party in square No, 9 of Chak No, 567/G. B. A kacha road runs between the two squares, separating their lands. Killa Nos, 24 and 25 of square No, 74, belonging to the appellants, lie directly opposite to Killa Nos, 4 and 5 of square No, 9 belonging to the complainant party. On the 28th of July 1968, at about digerwela six or seven cattle belonging to Allah Yar appellant entered into the moonji crop of Ghulam Muhammad P. W.
11. His son, Saifullah, deceased, who was grazing his own cattle nearby, rounded up the cattle of Allah Yar appellant for taking them to the cattle- pound. The three appellants turned up there and told Saifullah to release their cattle. Allah Yar appellant was carrying a dang. Fazal-ur-Rahman, appellant was armed with a spear while Falak Sher appellant had a hatchet. Allah Yar appellant then struck three lathi blows, one after another, on the head of Saifullah (deceased). Fazal-ur-Rahman appellant gave a spear blow on his right arm, at the deltoid region, and Falak Sher struck a hatchet blow on his forehead, which landed between his eye-brows, cutting the bridge of his nose. Saifullah fell down and thereafter Allah Yar appellant gave some more lathi blows to him, which landed on his left shoulder, the right deltoid and the back. The appellants were shouting lalkaras that they shall do away with Saifullah. On the hue and cry raised by the deceased, Ghulam Muhammad, Abdur Rahman and Sher Khan P. Ws. reached the place of occurrence and witnessed the same. The appellants then left the place of occurrence and the above-mentioned witnesses took Saifullah to the Hospital at Jaranwala, in an injured condition, where he was examined by Dr. Abdul Ghafoor P. W. 1, at 10 p.m. After obtaining the medico-lega 1 report, Ghulam Muhammad P. W. 11 went to Police Station Lundianwala, District Lyallpur, and lodged the report Exh. P. A. at about 4-30 a.m. on the 29th of July 1968. Nazar Hussain Shah S. I. P. W. 15 was not present at the police station at that time. The report was recorded by Muhammad Hayat Muharrir Head Constable P. W.
10. He gave a copy of the F. I. R. to Ghulam Muhammad P. W. directing him to deliver the same to the S. H. 0. He further directed Ghulam Muhammad that if he failed to find the S. H. 0. he should remain present at the spot. Nazar Hussain Shah S. I. P. W. 15 received the information about the occurrence sometime on the 29th of July 1968, and reached the Civil Hospital, Jaranwala, at 6 p.m. Saifullah deceased was lying in the hospital in an injured condition. The inquired from the doctorvide ruqqa Exh. P. G. as to whether Saifullah was in a fit condition to make a statement. The doctor reported (vide Exh. P. G/1) that Saifullah was unconscious and was unable to make a statement. The S. I. thereafter went to the spot, reaching there at 9 p.m. on the same night. He recorded the statements of the eye-witnesses and took into possession the blood-stained vest Exh. P. 1, belonging to the deceased, which was produced before him by Ghulam Muhammad P. W.
11. On the 30th of July 1968, at 8-30 a.m. the S. I. visited the spot and wrote the `Spot Inspection Notes', on the same day. (This note is printed at page 22 of the paper-book as Exh. D. C.). One Khuda Yar, the uncle of Allah Yar produced before the S. I., the medico-legal report relating to injuries found on the person of Fazalur Rehman, appellant. The S. I. made repeated inquiries, on different dates, from the doctor as to whether Saifullah was in a fit condition to make a statement, but was informed that he was unable to do so. Saifullah remained unconscious throughout, till he died on the 6th of August 1968. On learning of his death the S. I. reached the hospital and prepared the usual documents. Thereafter he sent the body for post- mortem examination, which was performed by the same doctor (Dr. Abdul Ghafoor), who had treated Saifullah, while he was still alive. Nazar Hussain Shah S. I. arrested Fazal-urRehman and Falak Sher on the 31st of July 1968, from the hospital at Lundianwala. He could not, however, arrest Allah Yar appellant who had absconded. The S. I., therefore, obtained warrants of his arrest. On the 3rd of August 1968, Falak Slier appellant led to the recovery of blood-stained hatchet Exh. P. 2 which was buried in his chhapar at his dhari. The Investigating Officer (Nazar Hussain Shah S. I. (P. W. 15)) took it into his possession vide memo. Exh. P. C. On the same day Fazal-ur-Rehman appellant led to the recovery of blood-stained spear Exh. P. 3, from underneath a stack of bhoosa, near his dhari, which was taken into possession vide memo. Exh. P. D. (It may be mentioned that the two weapons were found by the Chemical Examiner, West Pakistan to be stained with blood and their scraping were, thereafter, sent to the Serologist at Islamabad, but it was found during the trial that the report of the Serologist had not been placed on the file and the origin of the blood could not, therefore, be determined). No blood-stained earth was taken from the spot as the deceased is said to have fallen, partly, in the watercourse and the blood was washed away.
3. The following injuries were found by the doctor on the person of Saifullah when he examined the latter on the 28th of July 1968 :-- (1)A contused wound 214" x /if x bone deep on top of head transverse.
(2)A contusion mark 2" x 1" on right temple.
(3)A contused wound a" X 1/8" x scalp deep on left side of head 4` above left eye-brow vertical in direction.
(4)An incised wound 24" x r x bone deep from inner end of left eye-brow downward and below the left eye. The nasal bone underneath was cut and fractured.
(5)A stab wound rx 1/8" X i" on right deltoid with a corres-ponding cut on bunian.
(6)Two scratches 1" x 1/8" and r x 1/8" on right deltoid, ly apart.
(7)A contusion mark 42' x 12" on back of left shoulder with 3 abrasions Z' x , x I" and 21" x 1/8".
(8)An abrasion vxr on back of left side of chest middle.
The same injuries were found by the doctor on the body of the deceased during the post-mortem examination except that some of the abrasions had healed.
During the post-mortem examination, the doctor also found that a small amount of blood was present in loose tissues of the scalp; right frontal bone was fractured 'from frontoparietal suture to right eye-brow'. Frontoparietal and interparietal sutures were open and a small amount of blood was present between the brain and the meninges, brain tissue was found to be contused at the site of the fracture. Stomach was empty. Rest of the organs were healthy. Injury Nos, 1 and 4 were grievous while injury No, 1 was also dangerous to life. Rest of the injuries were simple in nature. Injury Nos, 4 and 5 were caused by sharp-edged weapon and the rest of the injuries, including injury No, 1 had been caused with a blunt weapon. Death was due to concussion of the brain due to the injury No,
1. This injury was sufficient to cause death in the ordinary course of nature.
Probable time that elapsed between injury and death was about 9 days, and that between death and post-mortem examination was 12 hours.
4. In the meanwhile, on the 29th of July 1968, at 10 a.m., Fazal-ur-Rehman appellant had also got himself medically examined by Dr. Abdul Latif (P. W. 3), D. M. R. D. Student K. E. Medical College, Lahore, who was at that time posted as Medical Officer, Government Rural Dispensary, Lundianwala. Be found the following three injuries on his person:---- (1)A gunshot wound oval in shape 1/8" x 1/16". Traceable depth of the track made by the shot by 4" x 8". (In the original report it is written as 4/8"). Edges of the wound were inverted and lacerated on the outer aspect of the right leg 9' above the right outer malleolus of right ankle-joint. There was no scorching of the surrounding skin. Adjacent hair were not singed. There was no powder mark. The aperture was directed vertically. Track of the wound was downward and backward.
(2)A gunshot wound oval in shape r x 1 /16", traceable depth of the track made by the shot was 14- " on the lateral aspect of right leg, 6/8" below and behind injury No,
1. There was no scorching of surrounding skin. Adjacent hair were not singed and there was no powder mark. Edges of the wound were inverted and lacerated.
(3)A lacerated wound lrxr x bone deep horizontal on the left side of the head 4" above the left ear.
X-ray was advised for injuries Nos, 1 to 3 and the injuries were kept under observation. Injury No, 3 was caused by blunt weapon, while Nos, 1 and 2 with gunshot.
The injuries were simple in nature and their duration was given by the doctor as 24 hours.
5. After the completion of the investigation, the three appellants were challaned and were ultimately committed for trial before the Sessions Judge, Lyallpur, who convicted and sentenced all of them to death, as mentioned above.
6. At the trial two of the appellants, namely, Allah Yar and Falak Sher, pleaded innocence and stated that they were not even present at the spot. Allah Yar denied that he had absconded and stated that he was away at V. Kundal, District Mianwali, where, his nephew informed him about the incident on 4th August 1968, and that he had also been reported against, whereupon he (Allah Yar) presented himself before the S. I. on 7th August 1968.
Falak Sher denied the recovery of hatchet Exh. P. 2 at his instance. Fazal-ur-Rehman appellant also denied the recovery of the spear Exh. P. 3 at his instance. He, however, stated that he was taking his cattle for watering, at about 4-30 or 5 p.m. on the day of the occurrence. He was taking his cattle on the kacha road running between squares Nos, 74 and 9. Saifullah objected to his passing on that road. Fazal-ur-Rehman replied that he was going on a sanctioned road and that he (Saifulluh) had no right to stop him, whereupon the deceased abused him and struck him on the head with a stick. He (Fazal-ur-Rehman) was carrying a gandala at that time and caused injuries to the deceased with it. In the meantime one Amir Abdullah, a relative of the deceased, came with a gun and fired at him, hitting him on the right leg, whereupon he (Fazal-urRehman) fell down and became unconscious. The appellants did not produce any witnesses in defence.
7. In support of its case the prosecution has relied on the following pieces of evidence:-- (i)the ocular evidence of Ghulam Muhammad P. W. 11, the father of the deceased, Sher Khan P. W.
13 and Abdur Rehman P. W. 14, (ii)the recovery of blood-stained hatchet and spear at the instance of Falak Sher and Fazalur Rehman appellants respectively and the vest Exh. P. 1 which was being worn by the deceased at the time of the incident, (iii)the evidence of motive, (iv)the medical evidence.
8. We have heard the learned defence counsel as well as the learned Assistant Advocate-General appearing for the State. We have also gone through the entire record of the case.
The learned defence counsel pointed out that two of the eyewitnesses are related to the deceased. Ghulam Muhammad P. W. 11 is the father of the deceased and Abdur Rehman P. W. 14 is married to Mst. Maryam the daughter of the sister of Ghulam Muhammad P. W.
11. He, therefore, argued that they are interested witnesses. He also urged out that there was an inordinate delay in lodging the F. I. R. The occurrence is said to have taken place at digarwela on the 28th of July 1968, and the F. I. R. was lodged at 4-30 a. m., next morning. His main contention however was that the statement of the three witnesses, namely, Ghulam Muhammad, Sher Khan and Abdur Rehman, P.
Ws. were discrepant and that they had modified their statements in order to bring them in conformity with the medical evidence and explain the head injury on Fazalur Rehman, which tend to show that none of them was in fact present at the spot and that they had not seen the incident ; that the prosecution version has been concocted during the interval between the incident and the lodging of the F. I. R. and that the witnesses have made improvements in their statements to explain the delay in the lodging of the F. I. R. At the trial they have stated that they first took Saifullah to the hospital at Nankana in District Sheikhupura, but the doctor refused to examine him on the ground that the case pertained to Lyallpur district, whereupon they took him by truck to the hospital at Jaranwala. This was not mentioned in the F. I. R. or in their statements before the police and the committing Magistrate.
9. Before proceeding to consider the above-noted contentions we would like to mention that the defence has not denied the Incident. The occurrence itself is admitted, though a different version has been put forward i. e. that Saifullah had assaulted Fazalur Rehman, who alone was present at the spot, out of the three appellants and that the latter caused Injuries to the deceased with gandala, only in self-defence. The defence version has already been mentioned, in some detail.
Some of the facts which are admitted by both the sides are:-- (1)that the occurrence took place at digarwela between 4-30 to 5-00 p. m.; (2)that the cause of the incident related to the cattle of the appellants ; and (3)that the place of occurrence according to both the parties is, more or less, the same.
10.This would show that the occurrence admittedly took place at about the time and place mentioned by the prosecution, during which Saifullah deceased met his death at the hands of one (or more) of the appellants. The question to be resolved, therefore, is as to which of the two versions is the correct one. We have given our anxious thought to this question, keeping in view the various contentions raised by the learned defence counsel.
11.It is indeed correct as contended by the learned defence counsel that the F. I. R. was lodged by Ghulam Muhammad P. W. 11 at 4-30 a. m., on the morning of the 29th of July 1968, at Police Station Lundianwala, after about 11/12 hours of the occurrence. The detail about having taken Saifullah deceased first to the hospital at Nankana and then to the hospital at Jaranwala is also not given in the F. I. R. Nor was it mentioned by Ghulam Muhammad and Sher Khan P. Ws. in their statements before the committing Magistrate. Ostensibly, therefore, it appears that as contended by the learned defence counsel, a major improvement has been introduced by the P. Ws. with a view to explain the delay in lodging the F. I. R. On a closer scrutiny, however, we find that it is not of much significance. The reason for this view is as follows :- The time of occurrence is not disputed. According to the prosecution it took place at digarwela i. e. between 4 and p. m. Fazalur Rehman appellant has admitted in his statement that it took place sometime between 4-30 and 5-00 p. m. It is also evident from medical evidence that the injuries inflicted on Saifullah deceased were of a serious nature. It is in evidence that he had become unconscious at the spot, but he was still alive. It is, therefore, obvious that the first anxiety on the part of his father, Ghulam Muhammad P. W. 11, must, naturally, have been to take him to the hospital for treatment as soon as possible so that his life could be saved. It is on the record that Nankana is at a distance of 5/6 miles from the place of occurrence (per Ghulam Muhammad P. W. at page 27, L-17, of the paper-book). It is also on the record that while going to Jaranwala hospital Police Station, Lundianwala falls on the way. The distance between the place of occurrence and the Police Station Lundianwala is given as 10 miles in column No, 4 of the heading of the F. I. R. It is, therefore, obvious that the Jaranwala Hospital, which is admittedly situated beyond Police Station, Lundianwala, must be more than 10 miles away from the place of occurrence. In these circumstances, it was but natural for the father of the deceased to have taken him first to the nearest hospital. It is also on record that Dr. Abdul Gbafoor P. W. 1, examined Saifullah deceased, when he was still alive, at 10-00 p. m. on the same day. This means that the deceased was medically examined for the first time after about 5(1/2), hours of the incident. It is not conceivable that Ghulam Muhammad P. W. 11, the father of the deceased, would have tolerated any delay in taking his son (who had been severely injured and was lying unconscious), to the nearest hospital for treatment. It is, therefore, not possible that he would have either kept Saifullah deceased at the spot to concoct a story, or waited for the arrival of the police to seek its advice about the story to be narrated in the F. I. R. In view of the above-mentioned circumstances we feel that the P. Ws. must have taken Saifullah first to the nearer hospital at Nankana and then taken him to the hospital at Jaranwala only after the doctor at Nankana had refused to examine him. We do not think that this story is just an afterthought or that it has been invented merely in order to explain the delay in lodging the F. I. R. As regards the time taken in lodging the F. I. R. after the medical examination, the learned defence counsel did not raise any objection about it (The only objection was, as stated above, that the story about having first gone to Nankana was false). It is evident that the F. I. R. was recorded after Ghulam Muhammad had obtained the medical report, because it is mentioned in the last two lines of the F. I. R. that Ghulam Muhammad P. W. had produced the medico-legal report before Muhammad Hayat M. H. C. at the time of the lodging of the report.
Ghulam Muhammad P. W. has explained that after the completion of the medical examination he obtained the medico-legal report, but he could not find any conveyance and was, ultimately, able to hire a jeep and reach the police station only in the early hours of the next morning. We do not see any thing improbable in this statement and in any case, as already observed, the defence has not raised any objection to this part of Ghulam Muhammad's evidence. In view of the above discussion, we are inclined to agree with the observation of the learned trial Court that the fact the P. Ws, had not mentioned in their earlier statements about taking Saifullah deceased first to Nankana and then to Jaranwala hospital was merely an omission on their part and that probably, they did not consider this fact important enough to mention it specifically in their earlier statements. In this connection it might be mentioned that an F. I. R. is never supposed to be an exhaustive document giving all possible details of the incident and the fact that some of the details are not mentioned in it, does not detract from its correctness.
As already mentioned the learned defence counsel has criticised the conduct of the P. Ws. in not lodging the F. I. R. when they passed before the Police Station, Lundianwala while carrying Saifullah, from Nankana to Jaranwala Hospital. There is no force in this argument. As already observed, Saifullah was in a delicate condition and the first anxiety on the part of his father was to reach the hospital as soon as possible because each minute was precious and considerable time had already been wasted in going first to the hospital at Nankana. He could not, therefore, brook any further delay, which would inevitably have been caused by stopping at Police Station Lundianwala, to lodge the report or even by stopping the truck, for some one else to get down to lodge the report.
We are also aware that in such cases it is usual for the complainant to lodge the report after having obtained the medico-legal report. The conduct of the P. Ws. in proceeding straight to the hospital, without stopping at the police station was, therefore, in our view quite normal.
12.While considering the evidence of the eye-witnesses it must be mentioned at the outset that there was no prevous enmity, whatsoever, between the parties and in fact it has not even been suggested by the defence that Ghulam Muhammad or the other eye-witnesses had any enmity with the appellants, (except that a trivial incident about the throwing of banana plants on the kacha road running between the two squares, by Fazal-ur-Rehman appellant, was introduced at a late stage, which shall be discussed at the appropriate place.
13.We may first take up Abdur Rehman P. W.
14. He is related to the deceased inasmuch as he is married to the daughter of the sister of Ghulam Muhammad P. W. 11, the father of the deceased. His land is situated at a distance of 7 squares from the place of occurrence. He explained the reason for his being near the place of occurrence at the relevant time by saying that he had to size Rs, 60 from one Rab Nawaz Khan and had gone to his house to recover the said amount on the morning of the 28th of July 1969. Rab Nawaz Khan, however, did not return the amount. Abdur Rehman P. W. was, therefore, returning to his house without having received the payment, when he happened to pass near the place of occurrence and witness the incident.
Learned counsel for the appellants contended that Abdur Rehman P. W. was merely a chance witness ; that the story narrated by him as to the reason of his presence near the spot, exactly at the time of the occurrence, was merely a concoction and that it had been invented just to show that he was present there at the relevant time and saw the incident. We are inclined to agree with the learned defence counsel. The explanation given by Abdur Rehman P. W. for his presence at the spot is most unsatisfactory. In view of the fact that he is a close relative of the deceased and has not been able to give a cogent reason for his being present at the spot, we are inclined to feel that it will not be safe to rely on his evidence. We shall, therefore, exclude his evidence from consideration in arriving at a decision about the guilt or otherwise of the appellants.
14.Ghulam Muhammad P. W. 11, who lodged the F. I. R. is the father of the deceased. The learned defence counsel pointed out certain discrepancies in the F. I. R. lodged by him and his statement at the trial. For instance:-- (1)that while he stated in the F. I. R. that he and the other eye-witnesses, came to the place of occurrence on hearing the noise raised by Saifullah, at the trial he stated that he was standing nearby, grazing the same cattle as his son Saifullah and was, therefore, able to see the occurrence ; and (2)that he had not stated in the F. I. R. that the appellants had told the deceased to release the cattle otherwise he would meet with dire consequences but the deceased refused to do so saying that his crop was being constantly damaged, but he has made this improvement at the trial.
These differences in his statement at the trial and the F. I. R. appear merely to be omissions and not contradictions. In any case they are too trivial in nature to cast any doubt on his evidence. He owns the land near the place where the incident is said to have taken place according to the prosecution version. His dhari is, admittedly, situated in the adjacent killa, 1. e. Killa No, 4 of square No,
9. His presence at the spot, at the time of occurrence, therefore, is not improbable, but is on the other hand most natural and cannot be disputed. Therefore the fact whether he was already present and was grazing the cattle nearby, or had come up to the spot from his dhari on hearing the hue and cry is not of much consequence.
The fact that he did not narrate the conversation that took place between the deceased and the appellants before they opened the attack (i,e, that the appellants to the deceased to release the cattle or else he shall meet with dire consequences but the deceased refused to do so, saying that his crops were being constantly damaged) is a merely an omission. An F. I. R. is never supposed or required to be an exhaustive document, giving all the details of the incident.
Another criticism made against the statement of Ghulam Muhammad P. W. was that he made an improvement in the version in order to explain the delay in lodging the F. I. R. I. e. that he took Saifullah deceased first to the hospital at Nankana and from there to the hospital at Jaranwala.
This contention has already been considered and repelled by us.
Still another objection raised against his statement was that he had changed the earlier version given by him in the F. I. R. in order to explain the injury found on the head of Fazal-urRehman and to bring his statement in conformity with the medical evidence. The precise contention is that according to the F. I. R. Allah Yar appellant opened the attack by inflicting three stick blows, one after another, on the head of Saifullah deceased, whereafter Fazal-ur-Rehman and Falak Sher appellants gave one blow each to the deceased with their respective weapons and Allah Yar appellant again gave some stick blows to Saifullah after he had fallen down on the ground.
Subsequently however he changed the version and instead of stating that Allah Yar had given three blows on the head of the deceased In quick succession, one after another, he stated that, in the first instance, Allah Yar gave only two stick blows on the head of the deceased and the 3rd blow was given by him only after Saifullah deceased had inflicted a stick blow on the head of Fazal-ur- Rehman in self-defence because the latter i. e. Fazal-ur-Rehman was trying to inflict a spear blow on him.
The change in the statement appears to have been made in order to bring his evidence in conformity with the medical evidence. The medical examination of Fazal-ur-Rehman revealed subsequently that he had also suffered a head injury (with a blunt weapon), during the incident.
This had not been mentioned by Ghulam Muhammad in the F. I. R. On the other hand the post- mortem examination of Saifullah deceased revealed that injury No, 1, on his head, which was one of the three injuries attributed in the F. I. R. to Allah Yar appellant, had caused a fracture of the skull and Dr. Abdul Ghafoor P. W. 1, who had conducted the post-mortem examination, opined that the death of Saifullah was caused by concussion of the brain "due to the injury No, 1 caused by blunt weapon". But as already mentioned, the version given in the F.
1. R. was that the three initial blows of the attack were those inflicted by Allah Yar appellant with a dang on the head of Saifullah deceased, one after the other. The above-noted opinion of the doctor therefore posed a problem.
In view of the fact that injury No, 1 (which was obviously one of the above-noted three injuries inflicted on Saifullah deceased's head) had caused fracture of the skull and concussion of the brain, it was realised by the prosecution that it was not possible to stick to the version given in the F.
I. R. because Saifullah deceased could not possibly have inflicted a stick blow on the head of Fazlur Rehman appellant after receiving the above-noted injury on his own head. It was, therefore, found necessary to divide the injuries, alleged to have been inflicted by Allah Yar appellant on the deceased's head, in such a manner as to show that there was an interval between them, during which Saifullah deceased was, physically, still in a position to inflict a stick blow on the head of Fazlur Rehman. The prosecution, therefore, decided to alter the version so as to bring the prosecution story in conformity with the medical evidence. Hence the above-mentioned change in version given by Ghulam Muhammad and other eye-witnesses. The effect of this modification on the reliability of his evidence shall be considered presently.
15. Sher Khan P. W. 13, admittedly resides quite near the place of occurrence. His dhari is situated in Killa No, 13/2, of square No, 35, which is situated adjacent to square No, 9, towards the south. The incident, as we know, took place in, or near Killa No, 5 of Square No,
9. Sher Khan P. W. has stated that he was taking his buffaloes for watering, from his dhari, to the bridge on the khal situated near the place of occurrence, and when he reached the dhari of Majid Lambardar he witnessed the occurrence. He has fully supported the prosecution version including the story about the buffaloes of Allah Yar appellant entering into and damaging the moonji crop of Saifullah deceased; his rounding up the animals for taking them to the cattle pound ; the objection raised by the three appellants and the subsequent attack by them on Saifullah deceased. He is, admittedly, not related to any of the parties and is an independent person. He is not said to have had any previous enmity with the appellants. The only criticism levelled against his statement that he was present at the spot, at the time of occurrence, was that the bridge near the place of occurrence where he was taking his cottle for watering, is situated at a distance of about 7/8 killas from his dhari (on the eastern side), while admittedly, another watercourse runs at a distance of only 2i killas from his dhari, on the western side. The argument of the learned defence counsel was that it was unnatural for Sher Khan P. W. to have taken his cattle for watering at a distance of 7/8 killas, when he could easily have taken them for that purpose to a place much nearer to his dhari, i. e. to the above- mentioned watercourse running on the western side. Sher Khan P. W. has, however, explained the reason for this. He has stated that the land between his dhari and the western watercourse was cultivated and cotton, maize and moonji crops were standing thereon, and he could not, therefore, take his buffaloes through the crops. On the other hand, there was no crop on the lan on the eastern side, lying between his dhari and the bridge on the watercourse, where he was taking his cattle for watering, and the land was lying vacant. Sher Khan P. W. was then asked whether there was no bana along with killa lying between his dhari and the watercourse on the western side, to which he replied that there was a bana but he had 3 or 4 buffaloes with him, which could not be taken across the fields over the bana. This explanation appears to be reasonable because 3 or 4 buffaloes cannot be expected to pass through the fields over the bana, in single-file. We, therefore, do not find anything unnatural or improbable in Sher Khan P. W. being present near the spot, at the time of the occurrence. The fact that he did not mention the detail in his earlier statement, that the appellants told the deceased to let-off their buffaloes but the latter refused to do so, saying that his crop was being damaged too often and that he insisted on taking the buffaloes to the cattle pound, is not a very serious omission. It is quite possible that he did not regard it to be an important detail when he had already mentioned that the cattle of the appellants were damaging the moonji crop of Saifullah, who, after driving them out, was gathering them in order to take them to cattle pound. The only other serious objections raised against his statement are about the same discrepancies which were also raised with respect to the statement of Ghulam Muhammad P. W. 11, namely:--
(i) that he had not mentioned earlier about their having taken Saifullah deceased first to the hospital at Nankana and therefrom to the hospital at Jaranwala, and
(ii) that he had changed the sequence of blows said to have been given by Allah Yar appellant, on the head of Saifullah deceased, We have already disposed of these contentions in paras. Nos, 11 and 14 respectively and need not discuss them again.
16.The net result of the above discussion about the three eye-witnesses is that out of them, at least Ghulam Muhammad and Sher Khan P. Ws. have been found to be natural witnesses. They did not have any previous enmity with the appellants and deserve to be relied upon unless, of course, their deposition or a part thereof is found to be false, incorrect or unreliable. We have already seen that both of them modified their statements to bring them in conformity with the medical evidence. This is definitely a material improvement in their previous statements.
17.The question that arises, however, is as to the effect of this alteration or improvement made by the two eye-witnesses on the reliability of their evidence and the correctness of the prosecution version. Should their evidence be rejected outright or should it be shifted so as to accept what is found to be true and reject the remaining portion only? A similar question arose before the Supreme Court of Pakistan in Sultan Ahmad and another v. The State. In that case the two accused, one armed with a rifle and the other with a pistol, went to the house where Mst. Rabia deceased was residing and knocked at the door. When Mst. Rabia opened the door both of them immediately fired at her with their respective weapons, as a result of which she died. The accused then ran away.
The F. I. R. was lodged by an eye-witness. It was mentioned therein that the two accused had fired two shots each at Mst. Rabia, thus alleging that four shots had been fired at her. But subsequently, the post-mortem examination revealed that she had sustained only two fire-arm injuries, which had made two wounds of exit. The eye-witnesses, therefore, moulded their evidence to bring it in conformity with the medical evidence and stated at the trial that each assailant had fired only one shot at Mst. Rabia. In view of this improvement made by the eye-witnesses in their statements, the Supreme Court of Pakistan considered the question as to whether or not their evidence should be totally rejected. In this connection their Lordships were pleased to observe as follows : "The only criticism that has been repeated before us against their statements is that they have moulded their versions to bring them in conformity with the medical evidence. It was argued that according to the F. I. R. made by P. W. Nazar Hussain, both the appellants had fired two shots each at Mst. Rabia, but as the injuries on her person were found by medical evidence to consist of only two entrance wounds with corresponding exit wounds, the number of the shots fired at Mst. Rabia was reduced to two at the trial, one each by the two appellants. Viewing the circumstances of the case as a whole, we agree with the Courts below that this discrepancy is not of a nature which should result in the total rejection of the statements of these two eye-witnesses, name, Nazar Hussain and Talib Hussain whose account of the occurrence is otherwise true and has been rightly accepted by the Courts below,"
The facts and the circumstances of the present case are slightly different from those of the cited case but the principle enunciated by the Supreme Court of Pakistan in the above-noted case, applies to the case in hand, which is that in such cases the evidence of the eye-witnesses need not be rejected totally and that if, after sifting the evidence, it is found that the account given by them is otherwise true, the portion found to be false should be rejected but the rest may be accepted.
18.The principle relating to the appreciation of evidence in criminal cases has also been considered by the Supreme Court of Pakistan in Tawaib Khan and another v. The State . While considering whether or not the entire statement of a witness should be rejected on finding that some portion of it was manifestly false, their Lordships observed as follows;- "...........the matter of the administration of criminal justice, taking in view the present state of our society, the assessm ent of evidence, whether it is the statement of a witness or the statement of a person who is dead, is essentially an exercise of human judgment to evaluate the evidence so as1 2 to find out what is true and what is false therein."
Their Lordships also observed :- "The maxim yalsus in uno falsus in omnibus' has all along been discarded by the Courts in this country. Similarly, the rule that the integrity of a witness is indivisible, despite its moral virtue, has not been endorsed, by the superior Courts of this country without reservations and cannot be accepted as one of universal applications. In the last analysis, as stated in some of the eminent judicial decisions, 'the grain has to be sifted from the chaff' in each case, in the light of its own particular circumstances."
In the above-noted case the statement being considered was a dying declaration made by the deceased (while still alive) but the principle laid down would apply even to statements of witnesses made at the trial.
In view of the above-mentioned observations of the Supreme Court of Pakistan we think that, in the circumstances of the present case, the statements of Ghulam Muhammad and Sher Khan P. Ws. do not merit to be rejected in their entirety, on account of the above-noted improvements made by them in order to bring their statements in conformity with the medical evidence.
19.We now proceed to consider the evidence of the alleged motive. According to the eye- witnesses the cause of the attack was the trespass by the cattle of the appellants into the moonji crop of Ghulam Muhammad, resulting in damage to the crop.
It must be pointed out that there is no evidence to support this assertion of the eye-witnesses. The Patwari, who prepared the plan has not stated that he saw any moonji crop having been damaged at the place of the occurrence nor has Nazar Hussain Shah, the Investigating Officer mentioned it in his inspection report, Exh. D. C., which he prepared when he inspected the spot shortly after the occurrence. There is only the word of Ghulam Muhammad and Sher Khan, P. Ws., for this version without any other material on the record to support it. It can be argued that if there had in fact been any damage to the crops, the P. Ws. must have pointed it out to the Investigating Officer and he would surely have recorded this fact in his "site inspection" note. It cannot, therefore, be said that the version about the cattle of the appellants causing damage to the moonji crop of Ghulam Muhammad P. W. has been proved beyond reasonable doubt.
20. The prosecution has also relied on the evidence of recovery of hatchet Exh. P. 2 from Falak Sher and spear Exh. P. 3 from Fazal-ur-Rehman. Besides, the Investigating Officer, Nazar Hussain Shah S. I., the prosecution has produced two witnesses, namely, Muhammad Ismail P. W. 8 and Siraj Din P.
W. 9, in support of the said recoveries. According to Nazar Hussain Shah S. I. P. W. 15, on the 3rd of August 1968, Falak Sher appellant made a statement that he could lead to the recovery of bloodstained hatchet from his dhari where he had buried it. Similarly Fazal-ur-Rehman appellant made a statement that he could lead to the recovery of his spear from a stack of bhoosa near his dhari. The S. I. recorded their statements at the dera of Fazil Lambardar in Chak No, 566 and thereafter, he went along with the two appellants as well as Ismail and Siraj Din P. Ws., to the dhari of the appellants, where Falak Sher appellant dug out a blood-stained hatchet Exh. P. 2, which he had buried inside the dhari (i,e, Chhapper). It was found to be stained with blood and was taken into possession by the S. I. vide memo. Exh. P. C. Thereafter, Fazalur Rehman appellant led to the recovery of a spear Exh. P. 3, from underneath a bhoosa stack, near the dhari. This was also found to be stained with blood and was taken into possession by the S. I. vide memo. Exh. P. D. Both the memos. were attested by Muhammad Ismail and Siraj Din P. Ws. These two witnesses have fully supported the statement of the S. I. According to them Muhammad Ismail P. W. 8 had gone to Pir Da Chak for purchasing a buffalo. Siraj Din P. W. 9 had accompanied him to the said Chak. They were both returning from Pir Da Chak to their own village i,e, Chak No, 567 when they met the police party led by Nazar Hussain Shah S. I., which included certain persons from Chak No, 566. Fazalur Rehman and Falak Sher appellants were also present with them. After ascertaining that they were the residents of Chak No, 567, the S. I. joined the two P. Ws. in the investigation for becoming witnesses of the recoveries. Thereafter the S. I. sent back the persons from Chak No, 566. Each of the appellants then led to the recovery of their respective weapon, turn by turn, as stated by Nazar Hussain Shah S. I.
One of the objections raised by the learned defence counsel against the evidence of recoveries was that Nazar Hussain Shah S. I. has stated that when he recorded the statements of Falak Sher and Fazalur Rehman appellants at the dera of Fazil Lambardar. Muhammad Ismail and Siraj Din P.
Ws. were also present, but the two witnesses have stated that they met the police party on the way.
We noticed that the recoveries were made on the 3rd of August 1968, while the witnesses have made their statements in Court on the 6th of October 1969, nearly after a year and two months. It is, therefore, not surprising that due to passage of so much time there may be some confusion in the minds of the witnesses as well as the S. I., as to where exactly they, (Muhammad Ismail and Siraj Din P. Ws.) had joined the Investigation Officer. We do not think this is a major discrepancy, and it does not, to our mind, cast any doubt on the factum of recoveries and the presence of Muhammad Ismail and Siraj Din P. Ws. at the time of the recoveries.
Another objection raised against Siraj Din and Muhammad Ismail P. Ws. was that they were chance witnesses and that there was no reason for the S. I. to join them as recovery witnesses, instead of the persons who had accompanied him from the dera of Fazil Lambardar. We do not think there is much substance in this argument. The P. Ws. have explained the reason for their presence at the place where they met the S. I. and the latter has given a valid explanation as to why he preferred to take them as the recovery witnesses instead of those, who were accompanying him i e. that those persons belonged to the village of the appellants (i,e, Chak No, 566) and he was, therefore, apprehensive that they may be influenced or subjected to pressure, and may subsequently refuse to support the prosecution case. Ismail and Siraj P. Ws. on the other hand belonged to a different village i,e, Chak No, 567 and there was, therefore, no such apprehension about them. Suggestions were made that they were connected with the complainant party, which were repelled by the two witnesses. There is nothing to show that they were either inimical or hostile to the accused or were, in any manner, related to or connected with the deceased and in the absence of any discrepancy in their statements we see no reason to disbelieve them. We, therefore, hold that the recoveries of hatchet Exh. P. 2 and spear Exh. P. 3 have been sufficiently proved on the record.
Another recovery, which is important, is that of the bloodstained vest of Saifullah deceased which was produced by Ghulam Muhammad P. W. 11 before Nazar Hussain Shah S. I. at 9-00 p.m. on the 29th of July 1963, when the S. I. reached the Jaranwala Hospital on the learning of this incident. It was taken into possession by the S. I. vide memo. Exh. P. B. and was attested by Abdul Majid P. W. 6 and Ghulam Muhammad P. W.
11. Both of them have supported the recovery at the trial. No criticism has been made by the learned defence counsel against their evidence. We do not find any reason to disbelieve them. The recovery of the vest, therefore, stands proved. The importance of this recovery lies in the hole in the right sleeve of the vest, which is round in shape and which, though small in dimension, shows that the injury on the deltoid region of the right arm of the deceased could not have been caused by a gandala as asserted by Fazalur Rehman appellant, but had been caused by a pointed weapon like a spear.
21.It is necessary to mention here that after hatchet P. 2 and spear P. 3 were recovered, they were sent to the Chemical Examiner, who, vide his report Exh. P. Q., gave his opinion that the two weapons were stained with blood. The scrapings thereof were then sent to the Serologist, but it was found at the trial that the report of the Serologist was not available on the file of the case. The learned trial Court has discussed this aspect of the case in paragraph 8 of this judgment and, relying on 1968 P Cr. L J 495, 1968 P Cr. L J 707 and PLD 1965 SC 363, has held that the mere fact that the origin of the blood could not be determined due to disintegration, does not deprive the recoveries of their evidentiary value. He, therefore, relied on them as corroborating the evidence of the eye-witnesses. We also agree with the mere fact that the report of the Serologist is not available does not take away the evidenciary or the corroborative value of the recovery of the weapons of offence. The weapons were found buried or concealed by the appellants which is not something normal. On top of it they were found to be stained with blood. These circumstances go to show that the weapons are connected with the crime. Support for this view is found in State v.
Fateh Sher , wherein their Lordships considered the corroborative value of recovery of weapons which were found concealed and the origin of the blood on some of which could not be determined. It was held that such recoveries corroborated the ocular testimony in the case. The relevant observations are as follows :- "The blood on some of them had disintegrated but the fact that these implements were found concealed and do not ordinarily bear stains of blood--unmistakably connected them with the crime in this case."
22.At this stage it would be proper to consider the defence version. Since the defence has admitted the occurrence, though giving a different version of the same, it is the duty of the Court, as laid down by their Lordships in Safdar Ali v. The Crown , to place both, the prosecution as well as the defence version, in juxta position and consider, after the examination of the entire evidence on the record, whether there is a reasonable possibility that the defence version put forward by the accused might be true. For proper appreciation of the defence version, as put forward by Fazalur Rehmam appellant in his statement at the trial, it will be useful to reproduce it here in extensor:- "A road passes in between my land and that of the deceased. I had some banana plants in my land near that road. 4/5 days before the present occurrence, I uprooted those banana plants and threw them on that road. Ghulam Muhammad P. W. threw back those uprooted banana plants in my land.
On the following day when I went to my field, I found those banana plants in my land. I again threw those banana plants on the road. Ghulam Muhammad P. W. and Saifullah deceased came there.
They told me that the road belonged to them and that I should not throw those banana plants on the road. I insisted that I would throw those plants on the road. Ghulam Muhammad and the deceased told me that they would see me in case 1 threw the plants there. I returned to my dhari.
On the day of occurrence, at 4-30 or 5-00 p.m. I took my buffaloes for watering them. I had a gandala in my hand, because usually the Zamindars do keep gandalas with them. On the day of occurrence it was the turn of water of the cultivators of Chak No, 567. When I passed in between our Killa No, 24 and Killa No, 4 of Ghulam Muhammad, Saifullah deceased ran towards me from his dhari, which was in Killa No,
8. He was abusing and he had a stick in his band. When I reached in between my Killa No, 25 and Killa No, 5 of Ghulam Muhammad P. W., the deceased reached there and told me to take back my buffaloes. I told him that I was going on the sanctioned road, and told him that as to why he was stopping me. The deceased inflicted stick blow to me which hit me on the head. I had gandala with me. I had been causing injuries to the deceased with that gandala.
The deceased had been inflicting blows to me. Amir Abdullah son of Faiz Muhammad P. W. ran towards the spot armed with a gun. Faiz Muhammad son of Rajmir, Ghulam Muhammad son of Fateh Muhammad reached the spot on hearing our noise. They shouted that I was going to be fired at by Amir Abdullah. In the meantime, Amir Abduilah fired shot at me which hit me on the right leg. I fell down and became unconscious. I do not know what happened later."
23. It may be mentioned here that before the committing Magistrate Fazalur Rehman appellant had made no mention of the incident relating to the banana plants and had confined his plea only to what had happened on the day of occurrence, when he took his buffaloes for watering on the kacha road running between the two squares. It, therefore, sets one thinking as to why the story about the banana plants was introduced subsequently and what is its relevancy. To us the reason3 4 is obvious. The appellants had decided to take advantage of the injury on the head of Fazalur Rehman appellant by taking up the plea of self-defence. They could not, therefore, admit that their cattle had trespassed into the moonji crop of Ghulam Muhammad P. W., as that would have shifted the blame on them. Instead, they wanted to show that Saifullah was the aggressor and had started attack by giving a dang blow on the head of Fazalur Rehman appellant because he objected to the latter taking his cattle over the kacha road between the two squares. But in view of the total absence of any previous enmity between them, they realised that it would be difficult to make the Court believe as to why the deceased suddenly took objection to Fazalur Rehman taking the cattle over the road. It was, therefore, found necessary to invent some story which would show that the complainant party had always claimed the kacha road, running between the two squares, as belonging to them, i,e, the complainants. Hence the story about uprooting the banana plants and throwing them on the road. This is, however, a very flimsy attempt at concoction and it is too much to expect us to believe it. Firstly it was introduced at a rather late stage ; secondly there is no evidence on the record to support the assertion of the defence that the complainants had ever claimed the kacha road and no evidence has been led by the defence to prove it. Even the Patwari Halqa, who appeared as P. W. 12, was not asked any question about it. It does not stand to reason that the owner of a portion of one of squares should lay claim to a road running between two squares, which was evidently a sanctioned road provided by the relevant authorities, for public use.
In fact, the case of the appellants appears to have been, at one stage, that they normally used the road in question for taking their cattle to the bridge, situated at the right hand corner, between the two squares. This is indicated by the suggestion made to Ghulam Muhammad P. W. by the learned defence counsel during the cross-examination. The suggestion was that when the watercourse (which supplies water to the land of the appellants) was dry, the appellants used to bring their cattle for watering to the bridge which is near Killa No, 5 of square No,
9. A look at the plan, Exh. P. K. would show that the bridge mentioned in the suggestion can be reached through the kacha road running between the two squares. This suggestion was of course denied by Ghulam Muhammad P.
W. (Page 28 lines 26 to 28 of the paper book), yet it clearly indicates the stand of the appellants at that time, because if the suggestion was not put to the witness with a view to indicate the defence version, as it stood at that time, there was no conceivable purpose for making it.
The defence version is also contradicted by the medical evidence. The nature and the description of the injuries on the person of the deceased clearly show that they were inflicted by three kinds of weapons, i,e, weapons in the nature of dang, spear and hatchet. Injury No, 5, which is described as a "stab wound" could only be caused by a pointed weapon like a spear and not be a gandala (or a hatchet) because the blades of gandalas and hatchets are of an entirely different type. Again, it is not possible that Fazalur Reh man was carrying a gandala while taking his buffaloes for watering.
Villagers seldom carry gandalas when taking out their cattle for grazing or watering, because it is an instrument used for digging holes in the ground. It is matter of common knowledge that the villagers carry sticks to control the cattle when they take them out for watering.
We examined the vest Exh. P./1, which was worn by the deceased at that time and found that the cut corresponding to injury No, 5 at the right sleeve (on the deltoid region) was a small round hole, which clearly rebuts the assertion that the injury had been caused by gandala. It is correct that the dimension of injury No, 5 is rather small, considering that it is said to have been caused by a spear, but the dimension is not a decisive factor because it is not known as to how the deceased may have moved about, or shifted his position, during the assault on him and it is quite possible that, while so shifting or moving, he may not have received the full impact of the thrust of the spear.
24.In view of the above discussion we are of the view that the defence version put forward by Fazalur Rehman is merely a concoction made with a view to take benefit of the injury on his head, which was admitted by the eye-witnesses to have been caused during the incident by Saifullah deceased and thus make out a case of self-defence.
25.We might also deal here with the two pellet injuries on the right leg of Fazalur Rehman which are said to have been caused by a gunshot, fired at him by Amir Abdullah, a cousin of the deceased. The prosecution witnesses have not admitted that these injuries were caused by any one from the complainant's side and according to the prosecution, these were manufactured subsequently. According to the description of these injuries (i,e, injuries Nos, 1 and 2 on the right leg of Fazalur Rehman appellant), the track of the two gunshot wounds was running from above downward, in a vertical direction along the skin. A look at the X-ray picture of the said injuries would show that the pellets had not penetrated very deep into skin. One was lying at a depth of about 1/8' under the skin and the second was lying at a depth of less than half an inch. The direction of the injuries would show that had they been caused with a gunshot, the gun must have been fired from directly above the leg of Fazalur Rahman appellant with its muzzel facing downward. As there was no charring or burning, and the pellets had not penetrated very deep in the flesh, the shot must have been fired from a considerable distance. We are of the view that it is an impossible feat to shoot at the leg of a person, with a gun, from a pretty long distance and cause an injury running vertically, from above downwards, as in the present case. We, therefore, feel that as suggested by the prosecution these two injuries were manufactured subsequently and two small pellets were placed therein, to set up a plea of self-defence. Dr. Abdul Latif P. W. 3, who had examined Fazalur Rehman appellant, was asked some questions, in writing, by the Investigating Officer to which he gave the following replies vide Exh. P. 0./1 (1)My medical examination supplemented by X-ray report shows that injuries like Nos, 1 and 2 could also be by a sharp-pointed article like needle etc. (2)According to X-ray report and my examination of the X-ray photos, the foreign bodies are circular.
(3)On my examination, I found no cloth torn by the shots on the body of the injured person nor was such cloth presented to me.
(4)In injury No, 1 the track of wound runs downward and backward, which shows that the injury had been inflicted from above and anteriorly. Injury No, 2 could also be from the same direction.
These replies support our view that the injuries are self-suffered and manufactured subsequently to make out a case of self-defence. The falsity of the defence version is also indicated to some extent by the assertion of Fazalur Rehman appellant that after being hit by the two pellets in the leg, he "fell down and became unconscious". In view of the above discussion, we are unable to accept the defence version and reject it as false.
26. The net result is that we are left with the prosecution version as deposed by Ghulam Muhammad and Sher Khan P. Ws. We have already held that they are natural witnesses and had seen the occurrence and that their evidence ought not be totally rejected. because of the improvement made by them in the sequence of injuries inflicted by Allah Yar appellant. It has, however, to be decided as to how far they are telling the truth and if the sequence of blows inflicted by Allah Yar appellant on the head of the deceased is incorrect then what is the correct sequence? At what juncture did the deceased give the stick blow to Fazalur Rehman appellant, and whether a case of self-defence can be spelt out from the evidence on the record, despite the rejection of the defence version as put forward by Fazalur Rehman appellant. As mentioned above, we have already rejected the defence version as untrue. We have also found that the sequence of the injuries given by the eye-witnesses at the trial is not reliable since it was modified to bring it in conformity with the medical evidence. Nor has the motive or the immediate cause of the incident, as put forward by the parties, been proved beyond reasonable doubt. Under these circumstances, the course left open to us, in order to arrive at the truth is to consider the evidence on the record as well as the circumstance and the probabilities of the case, as a whole, and draw the inference that properly flow from them. The course open to the Courts in such cases was considered by the Supreme Court of Pakistan in Syed All Bepari v. Nibaran Mollah and others . That was a murder case, in which both the parties had admitted the occurrence but had come out with two different versions, each party alleging that the other was the aggressor. While considering the evidence the learned Court observed as follows :- "Here we may observe that in a case of this type the parties do not generally come out with the true story. It is a normal incident of an "adversary proceeding" to minimise one's own part in the incident. In such a case the Court must not be deterred by the incompleteness of the tale from drawing the inferences that properly flow from the evidence and circumstances."
This view was re-affirmed by the Supreme Court in Afsar Khan and others v. The State by a majority and it was observed as follows :- "Now I proceed to consider the extent to which these four appellants were responsible for inflicting injuries on Hanif and Nimbola. It was contended that as the prosecution attempted to shift the place of occurrence and also denied the incident relating to Mst. Badri Jamal it would not be safe to accept their evidence that these appellants were responsible for what happened on the evening of 11th May 1962. It was also argued that in any event Hanif was aggressor and that the accused party acted in and within the right of private defence.
It is true that there were certain infirmities in the evidence of the eye-witnesses. But while dealing with this type of cases this Court made the following observations in the case of Syed Ali Bepari v.
Nibran Mollah and others.
(These observations have already been reproduced above). The Court then proceeded to find the truth by considering the reasonable probabilities arising out of the evidence on the record. While considering the duty of the Courts in cases in which there is no direct evidence to show as to what exactly transpired during the incident, the Supreme Court of Pakistan observed as following in The State v. Manzoor Ahmad :- "Even in a case of this kind where there is no direct evidence to show as to in what precise manner the victim came to be killed the Court has yet to discharge its onerous duty of determining whether the death was caused by the felonious act of some other person and, if so, what offence, if any, has been committed by such a person. It is not sufficient in such a case to say that since there is no direct evidence to connect any one with the felonious act the guilt cannot be fixed. It is precisely in such cases that I conceive it to be duty of the Court to examine the probabilities in the light of the indirect evidence of the injuries on the deceased, the nature and condition of the place where the incident took place, the articles found there, the motive for the crime and the other surrounding circumstances proved. This is what I now propose to do."
The above-noted case rested entirely on circumstantial evidence but the principle enunciated by the Court would also apply to a case like the present one, where the direct evidence on the record is not true in its entirety, and circumstances and probabilities have to be depended on to some extent in order to ascertain the truth. In another case i,e, Abdul Majid v. Superin. tendent and Remembrancer of Legal Affairs, Government of East Pakistan Mr. Justice A. R. Cornelius, the then Chief Justice of Pakistan observed that :- "In considering a crime of violence, a Court is well advised to examine the circumstances of the act, and its result, for the purpose of gauging the natural probabilities."
27. Respectfully following the above-noted principles enunciated by our Supreme Court we proceed to consider the probabilities of the present case in the light of the evidence as well as of circumstances, taken together, and draw inference which flow naturally from the evidence on the record. The following circumstances are pertinent :- (1)that the defence admits that the incident did take place but gave a different version of the same i,e, that Saifullah died due to injuries caused to him, by Fazalur Rehman appellant alone, in5 6 7 8 self-defence.
(2)that we have held that defence version as narrated by Fazal-ur-Rehman appellant is false and that it is not correct that only one person caused injuries to Saifullah ; (3)that we have also found that the number and nature of injuries on the person of the deceased show that three persons, each armed with a different kind of weapon, had caused injuries to him ; (4)that the eye-witnesses admitted during the trial that Saifullah gave one stick blow on the head of Fazalur Rehman appellant, during the incident ; (5)that it is evident from the medical evidence that Saifullah could not have given this stick blow to Fazalur Rehman appellant, after he had received injury No, 1 on his own head, at the hands of Allah Yar appellant ; and (6)that the three stick blows on the head of the deceased are attributed by the P. Ws. only to Allah Yar appellant and the only variation in their statements, on this point, in with regard to the sequence of the blows.
28. The question to be resolved is as to at what stage did Saifullah deceased give the stick blow on Fazalur Rehman's head and whether he started the attack by giving a blow on latter's head or whether he struck back only in self-defence. Because in the circumstances of the present case this would indicate as to who was the aggressor and whether the appellants or any one of them had the right of private defence. In the light of the above-mentioned circumstances, the following are the only two possibilities :-- (i)that the three appellants came to the spot and attacked the deceased first, who gave stick blow to Fazalur Rehman appellant merely in self-defence, and (ii)that Saifullah deceased was the first to open the attack and give the stick blow on Fazalur Rehman's head and then the three appellants inflicted injuries on him with their respective weapons.
Since both the above-mentioned alternatives are possible, the one favourable to the accused appellants ought to be taken to be the correct one, in accordance with the well established principle that all doubts must be resolved in favour of the accused and if two explanations of any circumstance are possible then the one favourable to the accused should be adopted. In the present case the second possibility, mentioned above, is the one which appears to be favourable to the appellants because it is, to some extent, in line with the defence version. Therefore. taking this i,e, the 2nd alternative to be the correct on we proceed to examine probabilities of the case which arise naturally from the evidence and the circumstances on the record, to see if a case of exercise of the right of self-defence is made out in favour of the one or more of the three appellants.
29.Although a large number of possibilities about the manner or circumstances in which the deceased gave the first stick blow, may be available for consideration yet keeping in view the natural human conduct it cannot be conceived that Saifullah deceased had struck a stick blow on the head of Fazalur Rehman when the latter was accompanied by his two armed companions, namely, Allah Yar and Falak Sher, appellants. Nor can we assume that he struck the blow on Fazlur Rehman's head when he was armed with a 6 or 7 feet long spear. The probability therefore, is that the deceased gave a stick blow to Fazalur Rehman when the latter was alone and empty-handed.
Even if it be assumed that Fazalur Rehman, appellant, was carrying a stick with him for controlling his cattle, it can safely be inferred from the circumstances enunciated above, that he did not strike back at the deceased, because according to the eye-witnesses (whose statements are worthy of reliance, except for the portion with regard to the sequence of the blows given by the appellant), all the stick blows to the deceased were inflicted by Allah Yar appellant and no one else.
The nature of the injuries on the person of the deceased shows that he was injured by three kinds of weapons. He must therefore, have been attacked by three persons. But we have already ruled out the possibility that all the three appellants were present (armed with hatchet and spear etc.), at the initial stage, when the deceased is said to have given a stick blow on the head of Fazalur Rehman, appellant. The only reasonable possibility, therefore, is that they came subsequently. It can be inferred reasonably from the above-noted facts that on receiving the stick blow on his head Fazalur Rehaman appellant ran back to his dhari ; informed his relatives Allah Yar and Falak Sher ; whereafter all three of them immediately armed themselves with different weapons, as described above, and returned to take revenge from Saifullah deceased, and all of them then inflicted injuries on the latter with their respective weapons, which resulted in his death. As already observed, the fact that the deceased was injured with three different kinds of weapons, is fully borne out by the medical evidence, which is corroborated by the recoveries of the hatchet from Falak Sher and a spear from Fazalur Rehman, appellants.
30.The next question to be considered is whether, or not, under these circumstances, the three appellants, can be said to have caused injuries to Saifullah in the exercise of right of private defence. lf, as discussed above the three appellants came from their dhari, armed with deadly weapons, to wreak vengeance on the deceased for having inflicted a stick blow on the head of Fazalur Rehman, appellant, after the latter bad gone to inform his co-accused about it, then the right of private defence, which may have accrued to Fazalur Rehman appellant on receiving the stick blow, terminated when he left the spot to arm himself with a spear. It could be argued that he did not go back but his two companions, on seeing him being attacked by Saifullah deceased, came up with their weapons to rescue him, but the presence of injuries with three kinds of weapons i,e, the spear, hatchet and clang, on the person of the deceased, excludes this possibility. In that case there would have been injuries only with two kinds of weapons on the deceased, because the possibility of any one other than Allah Yar, appellant having caused dang blows to the deceased has already been excluded. As a result of the above discussion, we are of the view that the appellants had not acted in the exercise of right of private defence.
31. We have seen that the case is not covered by Exception to section 300 of the Pakistan Penal Code, but keeping in mind the character of the agricultural tribes of the Punjab, the infliction of an injury with a stick by Saifullah, deceased, on the head of Fazalur Rehman, appellant, without any proper justification, was an act of highhandedness which was sufficient to provoke him and his relatives into acts of violence by way of retaliation, and that on these facts plea of grave and sudden provocation could justifiably be raised on behalf of the appellants, notwithstanding the fact that the plea of self-defence taken by them, has been rejected. This view is supported by Nusrat and 4 others v. The State . The facts of that case, briefly, were that Mst. Fateh Mai wife of Abmad deceased had developed illicit intimacy with Nusrat accused. She agreed to elope with him and accordingly left her house at night in the company of Nusrat and his cousin Noora. They were, however, spotted in the way and brought back. Next day, her husband Ahmad, deceased, returned to the village and was told about what had happened. The latter along with three others went to the well of Noora, reprimanded him for his bahaviour and demanded that he should vacate the land of which he was a tenant. Some hot words passed and Abmad, deceased took up his stick and gave two blows to Noora.
One of the blows caused an injury 2" in length bone deep on, his head, and the other, a 5" long contusion on the left upper arm of Noora.
Ahmad, accused, the brother of Noora who was present at that time, slipped away on seeing what was happening and went to his own well situated at a distance of about 200 karams and related the matters to his brothers, Nusrat, Akram and Aslam accused. When Ahmad, deceased, and his companions returned to their own well, they were attacked by a group composed of five accused persons who had come running from their well, armed with clangs and started beating the deceased and his companions. Ahmad, deceased, sustained two injuries on his head which9 fractured the skull and as a result of which he died. Muhammad Bakhsh P. W. sustained 7 injuries out of which three were contusions and two were lacerated wounds on his head. Ghulam Qadir P.
W. received 15 injuries including two lacerated wounds on the head. Rana P. W. 12, another companion of the deceased received one lacerated wound on his right ear. Two of the accused, namely, Nusrat and Ahmad, sustained slight injuries.
The plea put up on behalf of Nusrat and Ahmad accused was that the complainant-party had attacked them (i,e, Nusrat and Ahmad accused), and Noora at the latter's well in an attempt to eject them forcibly from the land. Nusrat did not deny his illicit association with Mst. Fateh Mai.
On these facts the learned Judges of the Supreme Court took the view that the stick blows inflicted by Ahmad, deceased, on Noora was sufficient to cause grave and sudden provocation to his (Noora's) relations i,e, the five accused persons who were informed of the matter at their well and that the case was covered by Exception I to section 300 of the Pakistan Penal Code. Their Lordships, therefore, found the accused to be guilty of an offence, not under section 302 but under section 304-1, read with section 149, P. P. C. and sentenced them to 10 years' R. I. It shall be useful to reproduce here the relevant observations of their Lordships which would in our view, be applicable to the facts of the present case :- "On that view, the act of the complainants in applying force to Noora does not appear to have been covered with proper justification. If they had beaten him, when, as they alleged they saw him in the company of Mst. Fateh Mai, that would no doubt have been natural behaviour. But the beating was given on the 1st March 1963, two days later at a time when Noora had offered no offence to them. It could be said that they had taken it upon themselves to judge him and to inflict punishment on their own authority and that was an act of high-handedness which being accompanied by the infliction of serious injuries was of such a nature as to cause intense provocation to Noora's relations. The latter were by no means a weak body, and bearing in mind the character of the agricultural tribes of the Punjab, such conduct would be calculated to cause loss of control to the extent that the persons affected would be driven to acts of violence by way of retaliation. Between the injury to Noora and the final attack, the time that elapsed, bearing in mind the distances appearing from the plan, could not have been in excess of an hour, and may well have been within half an hour. That is which a passion of the kind described above could be expected to cool down.
Therefore, it appears plainly, that on the facts stated by the prosecution witnesses themselves, the plea of grave and sudden provocation could justifiably be raised on behalf of the accused persons.
They instead took the plea of self-defence, but regarding the case as a whole and bearing in mind the great disparity between the numerous and severe injuries received by the complainants and the few and slight injuries sustained by Noora, Nusrat and Ahmad accused, and the fact that blood was found at two places, namely, at Noora's well and at the scene of the crime, some 200 karams away, it is clearly not possible to accept the version of Nusrat and Ahmad accused, that the encounter took place at Noora's well only."
Considering the facts of the present case in the light of the above-noted observations, it will be noticed that in the present case also Saifullah, deceased, gave a stick blow on the head of Fazalur Rehman, appellant, resulting in a lacerated wound 1-r x 1/8" x bone deep, on the left side of the head 4r above the left ear. (The dimension of the nature of this injury is similar to injury No, 1 caused to Noora in the above-mentioned case). The father and the brother of Fazalur Rehman, appellant, namely, Allah Yar and Falak Sher, appellants, came running armed with their respective weapons either on seeing Fazalur Rehman being attacked with a dang by Saifullab, deceased, or on being told about it by Fazalur Rehman at their dera, which too according to the site plan is situated at a distance of about 200 karams (i,e, five Killas). It can, therefore, be said justifiably that bearing in mind the character of the agricultural tribes of the Punjab, they were driven to violence by the act of Saifullah, deceased, inflicted injuries on him under grave and sudden provocation, their case too is, therefore, covered by Exception I to section 300 and they must, therefore, be held to be guilty under section 304 (1) and not under section 302, P. P. C.
32. The next question to be considered is whether the appellants had a common intention to cause the death of Saifullah, deceased, or whether they had come merely to chastise the deceased.
Considering the fact that the appellants were armed with deadly weapons and two of them, namely, Allah Yar and Falak Sher had wielded their weapons ruthlessly goes to show that they at least had a common intention of causing the death of Saifullah. In this connection it may be noticed that Allah Yar not only gave a dang blow on the head of the deceased which caused the fracture of his skull but also inflicted several blows to the deceased even after he had fallen down on the ground. Falak Sher, appellant, who was armed with a hatchet gave a forceful blow with the sharp side of his hatchet. The blow was aimed at the face of the deceased and fell between the two eye-brows cutting the nasal bone. This injury was also declared as grievous. Considering the nature of the weapons and the force with which the blows were given as well as the location of the injuries inflicted by them, the intention of these two appellants is quite clear. They may have had this intention right from the time when they picked up the weapons and started from their dera or may have formed it sub-sequently, at the spot.
The injury attributed to Fazalur Rehman, appellant, is a minor one, described as a stab wound 3/8 x 1/8" x 1/2' on right deltoid. It was found to be a simple injury. Considering the nature, dimension and the location of this injury it could not be said with any certainty that Fazalur Rehman, appellant, also shared the common intention of causing death of the deceased with his two companions. Causing a simple injury with a sharp-edged weapon would normally amount to an offence under section 324, P. P. C. but when such an injury is caused under grave and sudden provocation, it would be covered by section 334 of the Pakistan Penal Code.
33.In view of the above discussion we find that while Allah Yar and Falak Sher, appellants, are guilty of an offence under section 304 (I) read with section 34, P. P. C. Fazalur Rehman, appellant is guilty only of an offence under section 334, P. P. C.
34.The next question to be considered is the sentence which shall meet the ends of justice in the circumstances of the present case in respect of each of the appellants.
Keeping in view that Allah Yar and Falak Sher wielded their weapons mercilessly causing serious and grievous injuries to the deceased, shattering his skull and cutting his nasal bone, it shall be proper to award them the maximum sentence of 10 years' R. I. each. They are also directed to pay a fine of Rs, 1,500 each as compensation under section 544-A, Cr. P. C., in default of payment of which, the defaulter shall undergo another three years' R. I.
35.Fazalur Rehman, appellant, is punishable to a maximum sentence of one month's R. I. under section 334, P. P. C. He has already undergone that sentence. He should, therefore, be released forthwith. He is not awarded any fine in view of the fact that he has been in prison for a pretty long time and has suffered more than he deserved. He also suffered an injury on his head at the hands of the deceased which is more serious in nature than the one he inflicted on the deceased. The death sentences awarded to the appellants are not confirmed.
This disposes of the appeal, which is accepted only partially as well as the murder reference under section 374, Cr. P. C.
37. We now proceed to deal with Criminal Appeal No, 14 of 1970, against the order of the learned Sessions Judge, lyallpur, dated 9th October 1969, whereby he convicted Fazaler Rehman appellant for an offence under section 13 of the Arms Ordinance, XX of 1965 and sentenced him to undergo two years' R. I.
38, The facts of the case are that during the investigation of a case, in which Fazalur Rehman appellant as well as his father and brother were accused of the murder of Saifullah deceased, the precept appellant (Fazalur Rehman) led to the recovery of a blood-stained spear Exh. P. 1. from underneath a stack of bhoosa, near his dhari. He had no licence for keeping the spear and was, therefore, prosecuted for keeping the same without licence. The case was tried by the learned Sessions Judge, Lyallpur, along with the main murder case, with the result already mentioned above.
39.The prosecution case with regard to the recovery of spear Exh. P. 1 (which is Exh. P. 3 in the murder case) is supported by Muhammad Ismail P. W. 1, Siraj Din P. W. 2 and Nazar Hussain, S. H. 0., P. W.
3. The learned defence counsel criticised the statements of Muhammad Ismail and Siraj Din on the ground that there is a discrepancy in their statements with regard to the place where they met Nazar Hussain Shah S. H. 0., P. W.
3. Whereas Muhammad Ismail and Siraj Din P. Ws. have stated that they were returning from Pir Da Chak to their own village, when they met the police party outside the village abadi, the S. H. 0. has stated that these two witnesses were present in the village at the dera of Fazal Lainbardar when he i,e, the S. H. 0. recorded the statement of the appellant.
We do not think this a serious discrepancy, keeping in view the fact that the witnesses were making the statements more than a year after the incident. There is no allegation 'that the witnesses are, in any way, inimical or hostile to the accused. They are not related or connected with the complainant party. There is, therefore, no reason to disbelieve their statements, specially when these do not suffer from any major discrepancy. We are, therefore, inclined to agree with the finding of the learned Sessions Judge, Lyallpur that the recovery of the spear in question from Fazalur Rehman appellant is fully established.
40.The next question is as to the sentence which shall be necessary to meet the ends of justice in this case. The judgment of the trial Court was pronounced on 9th October 1969. The appellant has been in jail since more than a year, we think that the period already undergone by him is sufficient punishment for keeping a spear without licence. He is, therefore, ordered to be released forthwith in this case, if he is not wanted in some other case. PLD 1970 SC 206 PLD 1970 SC 13 PLD 1970 SC 491 PLD 1953 FC 93 PLD 1962 SC 502 PLD 1964 SC 205 PLD 1966 SC 664 PLD 1964 SC 422 PLD 1967 SC 18