1. MUHAMMAD AFZAL ZULLAH, J.-- This appeal through special leave is directed against judgment dated 26-2-1975 of the Lahore High Court whereby the respondent's appeal from conviction and sentence of death, on a charge of murder, was allowed and he was acquitted. Muhammad liyas, a young man, the deceased in this case allegedly, was carrying on au illicit liaison with the sister of respondent Ejaz Anwar. On 11th August, 197;2 at 9-3U a.m., it is the prosecution case, the respondent was accompanied by his brother Nadim Anwar and his friend Riaz also acquitted by the High Court, but leave to appeal was not granted against their acquittal. While the other two caught hold of Ilyas the respondent gave him chhuri blows and then all of them fled away. The occurrence was witnessed by Abdul Hamid Siddiqui, Taj Din, Sakhi Muhammad and Abdul Aziz P. Ws. All of them supported the prosecution case at the trial to the fullest. Muhammad Ilyas was taken by Abdul Hamid P. W. To the hospital but after a short time, be expired. In the meanwhile, Sakhi Muhammad and Abdul Aziz bad tried to pursue the culprits up to the house of the respondent which is near the place of occurrence. Abdul Aziz P. W. While pursuing them went towards the backside of the house and from above a wall, about 415 feet high, saw Nadeem Anwar accused trying to attack one of his sisters with a knife exclaiming that she would be killed because of her bad character. Eiaz Anwar grappled with Nadim Anwar and snatched the knife from him. During this process, Ejaz Anwar received injuries on his hands.
2. The motive for the attack was that the deceased Muhammad Ilyas was, openly as stated earlier, carrying on illicit liaison with a sister of Ejaz Anwar, in an absolutely shameless manner.
3. The F.
1. R. In this case was lodged within half an hour of the occurrence by Abdul Hamid Siddiqui P.
4. W. Except for what happened in the house of the accused or for that matter their pursuit by the two eye-witnesses, all the main features of the prosecution case including the names of the accused and the witnesses ; as also, the motive are mentioned in the F.
1. R. The weapon of crime -a chhuri was recovered from Ejaz Anwar respondent which was found to have been stained with human blood. As against the afore--mentioned ocular, motive and the recovery evidence Ijaz Anwar, raised the following almost parallel plea :--T "A false version has been set up. Nadim and Riaz are not involved in the incident. The deceased intruded in our house. I was attracted by shrieks of my younger sister Phakhara, and I acted in grave and sudden provocation as well as the right of self-defence as the deceased on being surprised by me drew out chhuri P. 1 and attacked me. In my defence I received injuries on my hands. I wrested the chhuri from him. He attempted to take back the same and caused hurt to me and thus received injuries at my hands. He ran out and collapsed near the house of Santosh Kumar. All the friends of Mirza Inayat Ullah an old resident of Muslim Town have volunteered to be false witnesses in sympathy for his son. All the evidence for prov--ing the occurrence as having taken place inside the house was being suppressed and on the 12/13th August my mother sent telegram to the higher authorities to that effect. The investigation was transferred to the C. I. A. Who took into possession from inside my house, the blood, blood-stained table cloth, blood-stained chadar, blood-stained dopatta of my sister as well as got the photographs from the photographer.
5. The P. P. Has given up those witnesses, here and has not even produced before this Court, the report of the serologist which may kindly be perused."
6. Regarding the injuries on his hands the respondent replied/explained that Mst. Gul Shahzadi, who was according to prosecution case going to be attacked by. Nadim Anwar when the respondent intervened, was not in the house ; and it was subsequent to his complaint through a telegram during the investigation that a false explanation had been introduced in Zimini No. 1 in the statement of Abdul Aziz P. W. a friend of Mirza Inayat Ullah father of the deceased. He did not deny that the police had arrested him on the same day from his house with blood-stained clothes. He also clearly pleaded self-defence by asserting that "he received the injuries in self-defence while snatching the chhuri from the deceased". He also admitted the production of the chhuri which he asserted belonged to the deceased and he had snatched it from him during the occurrence. With regard to the eye-witnesses: as to why they had deposed against him, the respondent's plea was that they were the friends and neighbours of the father of the deceased.
7. The learned trial Judge relying on the prosecution evidence and accepting the explanation given by the P. Ws. For the injuries on the respondent, found all the accused guilty of murder of Muhammad Ilyas. Ejaz Anwar was awarded sentence of death while the other two were awarded life imprison--ment. A learned Division Bench in the High Court on the other hand accepted the defence version as more probable and accordingly acquitted the accused. They held that the main occurrence took place inside the house of the respondent where blood was found at various places. In this behalf, the statement of Inam Ali Shah P. W. Draftsman who had deposed having seen the trail of blood from the place of occurrence to the house of the accused, was relied upon.
8. The explanation offered by the P. Ws. Regarding the injuries on the hands of the respondent that he suffered them when snatching the knife from Nadim Anwar, was rejected. The character of 11yas deceased was brought under doubt. His prosecution under section 324, P. P. C. Was noticed, keeping in view this and some other aspects of the case, the learned Judges purported to put the defence plea in juxtaposition with prosecution evidence and held that it was reasonably true. Thus relying on the rule laid down in the well-known case of Safdar Ali v. Crown (1), the accused were acquitted on extension of benefit of doubt. As earlier noted leave to appeal was granted, to "appraise the evidence afresh".
9. Although non-bailable warrants of arrest were issued against Ejaz Anwar respondent, now absconder, he has remained fugitive from law and Court, for nearly five years and has not yet surrendered. Two learned counsel appeared in the Court fromhis-side to state that they have been instructed to remain present to assist the Court. After noticing their presence and the circumstances about the absence of the respondent, we feel satisfied that his non-surrender is intentional and is, in the defiance of Court process. Therefore, he has lost right of hearing as was held in this Court judgment in the case of Hayat Bakhsh and others v. The State (2). We accordingly proceeded to hear the appeal against acquittal. The learned counsel were told that they had no right to represent the respondent and we on our part did not feel it necessary to seek their assistance in the disposal of the appeal.
10. With the assistance of the learned counsel for the appellant and the learned Assistant Advocate- General who (both) remained very fair we have gone through the evidence. There are some broad features of the case, the effect of which cannot be ignored when deciding this appeal: All the four eye-witnesses are absolutely disinterested.- -They had not reason either to offer themselves as false witnesses in a case which could result in the capital punishment or to falsely depose against l-`'t any of the three accused. Not only this, they are also natural witnesses. And above all, except for that part relating to the`
(1) PLD 1953 FC 93(2) PLD 1981 SC 265 deposition of Abdul Aziz P. W. In which he claims to have seen the second incident, wherein the respondent is alleged to have suffers the injuries on his hands, the entire prosecution evidence is consistent and without any flaw-visible or inherent.
11. The eye-witness account finds ample support from the recovery of the blood-stained chhuri which was used by the respondent as weapon of attack on the deceased.
12. The motive evidence which was also furnished by reliable witnesses further supports the prosecution case that the respondent was the most likely person to attack the deceased for the reason that the latter was -openly insulting his family by pursuing illicit liaison with a young lady of the family. An example of this open insult is that according to P. Ws., including the first informant, hardly two days prior to the occurrence when the deceased was standing on a Ration Depot, a small girl approached him, pulled his shirt from behind and told him in the presence of his father that he was being called by his fiance -sister of the respondent. The father of the deceased on that occasion, it seems had also reprimanded his son and the said girl.
13. There were two investigations in the case the first one normal and the second by a special police Branch at the instance of the accused. There is not much difference between the results achieved in either of them except that the crimes branch differed with the first investigator regarding the extent of 'blood found in the house of the accused. The first investigator, it appears, paid attention to only that part of blood found in that house which was enough to fit in with the prosecution explanation for the injuries suffered by the respondent on his hands ; while the crimes branch noticed, obviously on the asking of the accused party, each place where the blood was shown to them. In the latter investigation, the blood was found on more articles and at more places and the spattering was extensive. Some of the blood was also found on the upper inner latch of a door of a room and 9 large number of spots of blood were found on the floor of a room.
14. As noticed earlier the draftsman admitted in cross-examination that when he visited the spot, there was a trail of blood connecting the place of occurrence with the house of the accused.
15. Although the witness had not shown this trail in the site plan prepared by him; but his explanation that he -had done so on the asking of the police, seems to have been accepted by the High Court without any hesitation. While insistence from the prosecution side was that the witness had made an obliging statement in cross-examination.
16. The places where the deceased fell down after receiving numerous injuries in front of the house of Mr. Santosh Kumar, no doubt is the place of occurrence as deposed by the eye-witnesses. . Except for Abdul Aziz P. W. Who deposed about an additional incident (after the main occurrence) in the house of the accused, the other eye-witnesses could not say as to whether anything happened there prior to or after the occurrence. They did not claim to have been in the position of seeing any such thing. It is also clear that the place where the victim fell down after the attack, is beyond the point from where, if fleeing from the house of the accused after having been injured, he would immedi--ately turn to his own gall and house. While this supposition supports the prosecution case that the deceased was coming from a direction other than that of the house of the accused, towards his own house when he was suddenly attacked by the accused ; nonetheless this by itself would not show that the deceased had not run out of the house of the accused in an injured condition ; and while being chased by his attacker's, the latter would not let him go towards his own house and would thus block his way towards any other direction and would finally give him the last blows at the place where he fell down. This possibility which could be ruled out in the circumstances of the case seems highly probable and also does not directly negative the account given by the eye-witnesses. It also gets support from the location of some of the injuries which seem to have been inflicted when the deceased exposed his back-a reasonable probability could not be excluded that some of the injuries might have been inflicted on him when he was running for his life.
17. The nature of the injuries on the fingers of hands of the respondent is such that it was very unlikely that he would have suffered them by snatching the crime weapon-chhuri from an attacking adversary. They are in reality two wounds each one of them being multiple. Their width and direction tends to show that neither the defence version that the appellant suffered them when snatching the chhuri from the deceased nor the prosecution version that he sustained them when snatching a knife from his brother Nadim Anwar, is true. It is highly probable (and this aspect gets support from the nature and location of the injuries) that the accused suffered them when giving reckless heavy blows (16 in number) with the crime weapon-it has long 7J' blade. The slipping of the hand over the blade of the chhuri during infliction of seventeen wounds on the deceased is also, not at all an impos--sibility.
18. On re-appraisal of the evidence it is not difficult to agree with the learned trial Judge on the question of appreciation thereof. Had it been an appeal against conviction, there would no' have been any impediment in upholding the conviction on re-appraisal of the evidence ; but a question of principle regarding re-appraisal of evidence in an appeal against acquittal has put us on caution. Mere difference of opinion on appreciation of evidence ordinarily is not considered enough for setting aside a judgment of acquittal. There should be additional strong reasons including the one : the manner of appraisal of evidence by the Curt acquitting the accused is not permissible by law and that gross miscarriage of justice has taken place. This of course, C is apart from the question of misreading or ignoring of relevant important pieces of evidence.
19. With respect it is pointed out, the High Court misread some evidence. For example it was assumed that all the articles bearing group `B' blood could not be connected with deceased's blood and that it was necessary to send his clothes for examination. According to prosecution, the blood on the clothes of at least two accused who had no injury on their bodies was of the deceased. It was assumed that the telegram containing the defence plea was sent next day therefore it was prompt. On the contrary there is no evidence that it was sent next day. It was also assumed that the respondent had not been medically examined by them. This is contradicted by the doctor's statement. He examined him on the very day of his arrest. The draftsman---s admission about trail of blood was read only in one context that it must be that of the deceased but it could as well be of the respondent, who came to his house chased by the P. Ws when his hands were bleeding. Ex. P. W. 15-D the inspection note was clearly misread as if there were marks of struggle found in the house of the accused. It merely read that a spot was stated to be when some alleged struggle took place. The investigating officer found blood spots but in reality no mark of struggle was noted. Again the "fresh" blood found in the house of accused some hours after the original occurrence could be of bleeding wounds of the respondent who was an inmate of the house and not of the deceased who had, much earlier, been taken to the hospital. On the one hand it was thought that the F. I. R. Was recorded at the spot after deliberation ; while on the other hand the absence of explanation therein about the injuries on the respondent was considered as if this omission indicated promptness of F. I. R. This circumstance was not read in another more important context that Abdul Hamid Siddiqui the first informant did not want to support this part of prosecution case, so he did not include it in his report even if it was drawn up after deliberations. An important piece of evidence was ignored altogether in this context. Learned Judges thought that the particulars in detail of Riaz could not be mentioned in the F.
1. R. If it was promptly lodged. Sakhi P. W. Had desposed that he had all these particulars earlier noted on a paper (about Riaz accused) which were made use of in identifying and describing the said accused. That part of Sakhi's statement it seems, was not read.
20. Further, it seems, learned Judges ignored some important elements in the case. The self-defence plea was that the respondent was able to `wrest' the chhuri from deceased's hands after he had received the blows on his hands from the deceased who then made an attempt to resecure the chhuri from the respondent and this attempt caused 'hurt' to the latter. It was not noticed that in this so-called cross attempt to secure the chhuri, only one-sided results ensured; namely, injuries to the hands of the respondent-it was not considered why in the same circumstances no such injury was found on the hands of the deceased. `the depth and width of the injuries on the palmer side or the right hand of the accused were also ignored. It indicated as if they were the result of slipping over the sharp edge of the weapon if violent blows were inflicted on the victim-some piercing across the body/limb and others meeting bone resistance and yet cutting through it.
21. Salient features about the place of occurrence and the conduct of the public were also ignored. For example, it is clear from evidence that the house/gali of the deceased is much nearer to run to from thehouse of the accused than the place where the injured fell down but it has been ignored.
22. Likewise, the effect of the public stoning the house of the accused and surrounding it on hot-chase immediately after occurrence ; as also, the fact that all the three accused with blood--stained clothes (one an outsider and not an inmate of the house) were arrested from the very house, was ignored. Instead notice was taken of an irrelevant fact that a cousin of the deceased was some time ago killed in a police encounter as he was a bad man and, further that the deceased was earlier prosecuted in a 324 case and thus might have carried the chhuri, with respect to the learned Judges, was an absolutely irrelevant consideration.
23. Apart from the infirmities in impugned judgment about the reading of evidence, we notice that the approach regarding appreciation of evidence, is also not in accord with the principle laid down in the case of Safdar Ali ; which was only purported to have been followed though in reality it was not followed. The learned Judges thought that ; 'it would not be necessary to advert' (what they called) 'in detail to the case of the prosecution, if the defence is able to make out a case of self-defence as envisaged in the case of Safdar All'. Then they devoted their attention to defence plea. Thereafter when the prosecution evidente in the eye-witness account (which was admittedly from unimpeachable sources) came up for discussion, only two eye-witnesses' statements were noticed. Sakhi and Taj P. W's were passed over with the remarks that the criticism of Siddique and Aziz's statements, mutatis mutandis applied to those of Sakhi and Taj. Apart from the fact that these statements were ignored, in reality the said criticism was not even relatable to Sakhi arid Taj.
24. This was an illegal approach to the question of appreciation of evidence. The two parallel pleas should in reality have been put in juxta--position to each other in order to discover whether, notwithstanding the strength of the prosecution case, the defence plea was no convincing that it created a reasonable possibility of its being true. This exercise was not done in reality. Those elements in the prosecution case which have either been misread or ignored, if are taken into account with care and ignoring the irrelevant considerations, the plea of exercise of private defence, would be clearly negatived. There is no need repeating what has already been said earlier in this behalf: The next question is, what, in view of the salutary principles laid down by this Court in a number of decided cases regarding upsetting of judgments of acquittal, should be the result of the re- examination of the entire case, in this appeal from acquittal. As already noted in different context ; in our view, the plea of self-defence, is negatived by many factors, inter alia, the chhuri Ex. P. B. a formidable weapon of attack was not with the deceased. Had it been so and if he would have gone to respondent's house to do ' something in the nature of forcible abduction, as suggested by defence, the respondent would not have suffered minor injuries and that too on his hands only. The results would have been totally. Different. Without conceding, but assuming for argument sake, that the deceased had the chhuri and the respondent succeeded effectively in snatching it from him, there was no justifi--cation then to inflict so many severe blows to him. And further, it does not explain or mitigate, on any hypothesis plea of self-defence, the brutal infliction of injuries on an empty-handed victim even when he had run nearly 100 yards away from the place of the commencement of the occurrence.
25. The other more reasonable possibility, however, as visualised .By the learned Judges of the High Court, and already indicated by us, cannot be ruled out by putting the two versions in juxtaposition to each other. This reasonable possibility emerges truly from the admitted facts by both or either of the. Parties. It is (as partly visualised by the High Court) that the deceased encountered a determined resistence by the, respondent when this time he entered their house to pursue some shameful activity. He tried to turn back and. Run away but was injured by the respondent in the house, on the way out, as also ultimately, at the place where he fell down, 100 yards away. It is very likely that the other two accused assisted the respondent in cornering the deceased to the place where he fell down. That is why he was unable to go to his own nearby house. The blows dealt to the deceased by the respondent were many in number and as the results show, very power--ful.
26. All this explains the blood in the house of the respondent, on the way in the form of a trail and at the place where he fell down ; after receiving those blows which were also seen by the prosecution eye-witnesses. As the last part of the attack took place at an open place in day time in the very presence of the people who (had not seen what had happened inside the house and were then oblivious of the part played by the deceased) seeing only the gravity of the brutal attack outside, chased and ghariod the accused's louse )n sympathy with the deceased as a victim. But despite all this, the accused can legitimately take benefit of the motive asserted from the prosecution side as well as of the very strong possibility, as a consequence of that motive, that the deceased was found by them in their house in the background of a shameful activity qua their family. It is highly probable that the deceased by his conduct provoked gravely, the accused. The respondent amongst them lost all self-control and started giving blows with a chhuri to him ; and, then as the High Court thought, he "continued stabbing him in a fury" even when he was running away and had reached some distance, where, as found by the High Court, the eye-witnesses also saw the `last' but undoubtedly the most brutal part of the entire occurrence. The learned Judges unnecessarily looked for the excuse for this brutality in the assumption that the respondent might have apprehended that the deceased might snatch back the weapon. In fact, he had lost the battle, if it is so assumed, in the house of the accused. There was no turning of events thereafter neither in fact nor in imagination. Instead, the respondent, it is absolutely clear, was still acting like a mad man. Having lost self-control in his house, he had not been able to regain it when chasing the deceased up to the end. The provocation was undoubtedly grave and sudden. We, therefore, giving benefit of exception 1 of section 300, P. P. C. To him, hold that the respondent was not guilty under section 302, P. P. C. But under section 304(1), P. P. C. Accordingly, while setting aside the High Court judgment qua him we convict him under section 304-1, P. P. C. And sentence him to ten years' R.
1. He shall be taken into custody to serve this sentence. We have refrained from awarding compensation or sentence of fine because the deceased was mainly responsible for this tragedy as he despite reprimand by his father, continued ruining respondents' family.
27. Leave to appeal was refused regarding the other two accused, we, therefore, refrain from making any further comment on their role and its con--sequences.