1. HAMOODUR RAHMAN, C. J.-This is a direct appeal arising out of a judgment of a Division Bench of the High Court of West Pakistan, Lahore seat, in an appeal filed by the State under sec--tion 417, Cr.
2. P. C. Against the acquittal of the appellants herein and five others. The complainant in this case had also filed a Criminal Revision No. 339 of 1966 to have the orders of acquittal set aside. The High Court heard both the appeal and the revision together, set aside the order of acquittal in respect of the five appellants now before us, convicted them under sections 302/149, 307/149, 326 and 324/149 and 148 of the Pakistan Penal Code, sentenced them to transportation for life under section 302/149 and to various terms of rigorous imprisonment on the other charges concurrently. The appeal and revision were dismissed in respect of the remaining five accused persons.
3. The prosecution case was that on the 26th September 1964, at about degarwela, while Allah Bakhsh (P. W. 12) was taking his cart loaded with earth towards his house the cart got stuck in the mud when it reached the chowk of village, Chak No. 357 J. B., P. S. Gojra, District Lyallpur. Allah Bakhsh called out by name to Ghulam Rasul (P. W. 14), Ali Mohammad (P. W. 13), Akbar Ali (P. W. 17) and the deceased Talib Hussain who were then present in the chowk, for help. While they were engaged in extricating the cart Abdul Ghani son of Fazal Din, Abdul Ghani son of Gul Mohammad, Barkat Ali and Ghulam Hazur came out of the baithak of Abdul Ghani son of Fazal Din variously armed and raised a lalkara whereupon Niamat Ali, Hakim Ali, Yousaf Ali, Ghulam Nabi, Mohammad Khan and Haji came out of the baithak of Niamat Ali, situated on the opposite side, and both parties fell upon Allah Bakhsh, Ghulam Rasul, Talib Hussain, Ali Mohammad and Akbar Ali raising a lalkara that they should not be spared.
4. Out of these ten accused, Abdul Ghani son of Fazal Din and Yousaf Ali were armed with guns, Abdul Ghani son of Gul Mohammad and Ghulam Nabi were armed with pistols, Barkat Ali, Niamat Ali and Hakim Ali had dangs, Ghulam Hazur and Mohammad Khan were armed with spears and Haji had a hatchet.
5. They first opened fire and hit Ghulam Rasul and Akbar Ali then Allah Bakhsh was given a spear blow by Ghulam Hazur and a lathi blow by Hakim Ali. Ali Muhammad was given lathi blows by Niamat Ali and Hakim Ali. Talib Hussain was given two spear blows by Muhammad Khan, two hatchet blows by H Haji and a Bang blow by Barkat Ali. Allah Bakhsh, it is said, S. During the incident managed to snatch the spear from Ghulam Hazur and inflicted injuries with it on Hakim Ali and Yousaf Ali H in self-defence. Similarly, Ali Mohammad claims that he snatched the dang from the hands of Niamat Ali and gave him a ,blow with it.
6. The assault lasted for about two or three minutes but during this time no one came to the rescue of the victims out of fear in spite of the fact that the victims were raising outcries. The accused departed from the place after assaulting all these persons. After the accused had left, Abdul Ghani son of Hayat Mohammad, the informant, Akbar Ali, Allah Rakha and Mohammad Tufail came up to the injured persons and carried them to the hospital. They reached the hospital at about 8 p. m.
7. Ghulam Rasul (P. W. 14) was examined first and with his medico-legal report Abdul Ghani (P. W. 11) proceeded to the Gojra Police Station to lodge the first information report. This was recorded at 9 p. m.
8. Talib Hussain succumbed to his injuries at about 3-40 p. m. Of the 27th September 1964. He had, according to the doctor who first examined him at 8-40 p.m. Of the 26th September 1964, three incised wounds, two contused wounds, a contuse mark, and two stab wounds one on the abdomen which ha pierced the peritoneum and out of which the momentum and intestines were protruding out and the other on the palm of the left hand which had been pierced through and through.
9. After recording the first information report Malik Muhammad Afzal, the Sub-Inspector In-charge of Gojra Poll Station proceeded first to the hospital, obtained the medico-leg 1 reports of the other injured persons and recorded their respective state--ments. Talib Hussain, who was then alive and in his senses, also gave a statement (Exh. P. W. 20/A) to the police officer.
10. It appears that a dying declaration of Talib Hussain was again recorded by the Naib-Tehsildar Makhdum Mohammad (P. W. 15). This was, however, lost during the commitment proceedings. The prosecution alleged that it had been deliberately removed from the record. An attempt was, therefore made to prove the statement of Talib Hussain (Exh. P. W. 20/A recorded by the Sub- Inspector of Police at the hospital but the same was not accepted by the trial Court on the ground that statement recorded by the Investigating Officer under section 161, r. P. C. Cannot be admitted in evidence by reason of the prohibition contained in subsection (1) of section 162 of the said Code.
11. Apart from the deceased, prosecution witnesses Ghulam Rasul and Akbar Ali had fire-arm injuries, Allah Bakhsh had an incised wound and an abrasion and Ali Mohammad had two contusions and an abrasion. Out of the six injuries found on Ghulam Rasul, two were on the abdomen, two on the back of left fore-arm, one on the outer-side of the right little finger and another on the epigastrium.
12. The edges of the wound on the right side of the abdomen were found burnt but no blackening or scorching was found on any of the other wounds.
13. Akbar Ali's wounds were on the medial surface of the left foot near the root of the big toe and on the outer-side of the right thigh. The wound on the thigh was burnt and blackened.
14. From amongst the accused three persons were found to have injuries upon them. The prosecution witness Allah Bakhsh (P. W. 12), it was said, had injured Yousaf Ali and Hakim Ali by the barchhi he snatched from Ghulam Hazur and Ali Mohammad (P. W. 13) claimed to have injured Niamat Ali with the ding he snatched from Niamat Ali. No injury was, however, found on Niamat Ali and he was not sent up for medical examina--tion. Yousaf Ali had only one incised wound on the back of his Chest near the left shoulder-joint which was of a simple nature and had been caused according to the medical evidence by a sharp-- edged weapon. Similarly, Hakim Ali had one stab wound on the chest which according to the doctor could have been caused by a sharp-edged weapon like a barchhi. In addition to these two the accused Barkat Ali son of Gul Mohammad had four incised injuries on his person. One on the right fore-arm, which had fractured the bone underneath and another on the left hand, which had completely cut the little and ring fingers as also cut the middle finger at different levels. These were said to have been caused by a sharp edged weapon but the description of the weapon was not given. Having regard, however, to the nature of these injuries, it appears that they could have been caused by hatchet blows. The prosecution, however, made no attempt to explain these serious injuries on Barkat Ali. None of the prosecution witnesses claimed to have caused any injuries to Barkat Ali although the informant in his first information report had vaguely suggested that Allah Bakhsh and others from amongst the victims had in self-defence injured Yousaf Ali, Hakim Ali and others. The names of the others were not given nor did any of the witnesses even at the trial claim to have caused any injury to Barkat Ali.
15. The prosecution case from the F. I. R. Stage was to the effect that both) the groups of the accused were waiting in ambush in the respective baithaks of Abdul Ghani son of Fazal Din and Niamat Ali and they came out shouting lalkaras yet neither Allah Bakhsh nor the deceased nor any of the injured witnesses made any attempt whatsoever to escape from the place although the evidence of Allah Bakhsh (P. W. 12) is that the first batch, which came out of the baithak of Abdul Ghani son of Fazal Din, shouted lalkara from a distance of 18/20 karams, and on hearing the lalka a they felt apprehensive about their safety. They claimed, nevertheless, to have stuck to their ground in spite of the fact that none of them was armed in any way. The accused side were, on the other hand, armed with two guns, two pistols, two burchhis, a hatchet and dangs and were attacking from two sides.
16. The motive alleged by the prosecution for this incident was rivalry over the office of Lambardari which had fallen vacant as a result of the death of the father of Niamat Ali accused. Nine persons were candidates for this post alongwith accused Niamat Ali, Yousaf Ali and Abdul Ghani son of Fazal Din. The dispute with regard to this appointment was pending at the time of the incident yet the only injured person who was himself a candidate for this post was not killed Apart from this there was, it is alleged, rivalry over the B. D. Elections with Lal Din (P. W. 6) who had successfully non-tested the same both in 1959 and in 1964 against relations of accused Ghulam Nabi and Abdul Ghani son of Fazal Din.
17. It may be mentioned here that from the side of the complainants only Ghulam Rasul (P. W. 14) was a candidate for the Lambardari. The deceased Talib Hussain was not a candidate himself but his brother Hussain Bakhsh and a cousin Barkat Ali were candidates. Neither Hussain Bakhsh, Barkat Ali and Lal Din were present at the time of incident nor were they assaulted. Allah Bakhsh (P. W. 12), who was only a cousin of Lal Din, was attacked by Abdul Ghani (P. W. 11), a real brother of Lal Din was spared although he claims that he was standing in the open about 14 or 15 karams away, and from there he could see the accused and they could see him.
18. The accused in their defence denied that the incident had occurred in the manner alleged by the prosecution. Barkat Ali stated that his brother Abdul Ghani son of Gul Mohammad had entered into partnership business with Lal Din. During the subsistence of this partnership a theft took place in the house of Abdul Ghani in which articles worth Rs. 5,000 were stolen. Mohammad Tufail (P. V4'. 19) a brother of the deceased, and Barkat Ali son of Tai Din (a first cousin of the deceased) were suspected to be the thieves. There was a salish over this and Lal Din stood surety on behalf of the suspects undertaking to pay the sum of Rs. 5,000 if the said persons were found guilty. It was subsequently proved that they were the actual thieves and Abdul Ghani realized Rs. 5,000 from Lal Din by deducting the same from his capital investment in the partnership business. He also obtained a bond (Exh. D. J.) from Lal Din. This led to bad feelings with Lal Din who thereupon dissolved the partnership and charged Abdul Ghani son of Gul Mohammad of having defrauded him of Rs. 15,000. He also instituted a criminal case against Abdul Ghani and Barkat Ali under sections 406 and 420 of the P. P. C. They were granted bail before arrest in that case. Then in November 1963 Lal Din also got Abdul Ghani and Barkat Ali challaned in a case under sections 107 and 151 of the Cr. P. C. Both these cases were, however, ultimately dismissed. Failing in these attempts Lal Din started threatening them. Due to this enmity Lal Din attacked him first at the shop of his son, Mushtaq, in the village chowk rendering both his hands useless. It was upon his outcry that Yousaf Ali and Hakim Ali alongwith some others turned up to rescue him from the clutches of Lal Din, the deceased and the injured prosecution witnesses and inflicted injuries upon them in self-defence. Yousaf Ali and Hakim Ali supported the version of Barkat Ali, Ghulam Hazur claimed that he had been falsely implicated. Mohammad Khan set up an alibi that during the time of the occurrence he was actually in Sind where he had fallen ill due to renal colic. He produced a certificate of his illness from a doctor. The others also set up the defence that they were not present at the time of the incident.
19. During the course of investigation the Investigating officer visited the place of incident, six miles away from the police station, in the morning of the 27th September 1964, alongwith Yousaf Ali accused whom he had taken from the hospital. He took into possession blood-stained earth from the spot and two empty cartridges which had been picked up by Mohammad Aslant (P. W. 10). It is said that Yousaf Ali also led to the recovery of his licensed gun (Exh. P. 15) alongwith four live cartridges and his licence from inside his residential quarters. The officer arrested Hakim Ali and Barkat Ali at the hospital on the 27th September 1964, but Ghulam Hazur and Ghulam Nabi were arrested on the 2nd October 1964, and Muhammad Khan on the 11th October of 1964. Ghulam Hazur led to the recovery of a spear (Exh. P. 21) from inside his kotha and Ghulam Nabi led to the recovery of a pistol (Exh. P. 23) alongwith two live cartridges from his kotha. Mohammad Khan also led to the recovery of a spear (Exh. P. 22) from over the roof of his kotha and Abdul Ghani son of Fazal Din on the 16th October 1964 produced his licensed gun (P. 18) alongwith three cartridges.
20. The empties recovered from the spot (Exhs. P. 14/1 and P. 14/2) have since been found by the Ballistics Expert to have been fired from the gun (Exh. P. 15) produced by Yousaf Ali. The spears recovered at the instance of Ghulam Hazur and Mohammad Khan (Exhs. P. 2 1 and P. 22) have also been found by the Serologist to be stained with human blood. The blood-stained earth seized from the site of the incident has also been found to be stained with human blood.
21. The prosecution sought to establish its case by the direct oral testimony of as many as seven eye- witnesses, the recoveries above--mentioned, the evidence of motive and the statement (Exh. P. W.
22. 20/A) of the deceased Talib Hussain. Out of the witnesses four, namely, Allah Bakhsh (P. W. 12), Ali Mohammad (P. W. 13), Ghulam Rasul (P. W. 14) and Akbar Ali (P. W. 17) were injured. These were the persons who, according to Allah Bakhsh (P. W. 12), had been called by him alongwith the deceased to assist him in getting the cart out of the mud. The injured eye-witnesses are Abdul Ghani (P. W. 11), Allah Rakha (P. W. 18) and Muhammad Tufail (P. W. 19). Abdul Ghani was the informant in this case.
23. He did not mention the names of Allah Rakha and Tufail as witnesses of the incident in his first information report. But in his evidence in Court he added them as eye-witnesses of the incident. He is a real brother of Lal Din and Allah Bakhsh is his mother-sister's son. He was according to his own version, only passing that way by chance from the Ahata of the Gujjars towards his own house.
24. According to the site plan the place from where he saw the incident was 81 feet away from the place where the cart is said to have got stuck in the mud. But he was standing in the open and was visible to the accused persons, yet none of the accused persons attempted to assault him although according to him the main enmity was between the accus--ed persons and his own brother Lal Din. It is not also without significance that out of the injured persons the only two, viz. Allah Bakhsh and Ali Muhammad, who were closely related to Lal Din escaped with minor injuries. In his evidence he mentioned that Allah Bakhsh had snatched the barchhi from Ghulam Rasul, even though be had not mentioned this important fact in the first information report. Apart from this he did not see any of the other prosecution witnesses giving any blow to any other accused persons or snatching any weapon from any of the accused persons. It is also the consistent case of the prosecution that neither the deceased nor any of the injured witnesses were armed with any kind of weapon at all.
25. This story regarding Allah Bakhsh snatching the barchhi from Ghulam Hazur and Ali Muhammad snatching a dang from the hands of Niamat Ali in order to cause injuries to the accused persons, have been deposed to by Ali Muhammad (P. W. 13), Ghulam Rasul (P. W. 14), and Akbar Ali (P. W. 17).
26. Abdul Ghani (P. W. 11) only mentions about Allah Bakhsh snatching a barchhi from Ghulam Hazur but Allah Rakha (P. W. 18) and Tufail (P. W. 19) did not say anything about this. Curiously enough Allah Bakhsh (P. W. 12) who is said to have snatched the spear from Ghulam Hazur does not say that he did so and none of the witnesses, as already pointed out gave any explanation as to how Barkat Ali received so many serious injuries from a sharp-edged weapon. None of the injuries found on Barkat Ali could have been self-inflicted or caused by a friendly hand.
27. As regards the motive, the prosecution witnesses have uniformly maintained that the main reason for this pre-planned attack was enmity over the Elections and the candidature of Lal Din and Ghulam Rasul, for the Lambardari. They did not accept the defence suggestion that the motive was not as suggested by the prosecution but Lal Din (P. W. 6) who was examined to prove the motive admitted that since seven or eight months after the elections of 1959 he and Abdul Ghani son of Gul Muhammad had started a partnership business of commission agency known as Sultania Commission Shop in Gojra market by executing a regular partnership deed (Exh. D. I. Dated 26th May 1960). He also admitted that sometime after this a theft took place in the house of said Abdul Ghani although in the next breath he tried to retract therefrom and pleaded ignorance of this fact.
28. He also denied the rest of the defence suggestions regarding their version of the motive. It was, however, extracted from him that the partnership was dissolved on the 10th August 1961 and he was only paid Rs. 7,500 although he claimed a much larger amount and was unsuccessfully trying to recover the balance of his dues from the accused Abdul Ghani son of Gul Muhammad. It was also elicited from him that failing in this attempt he had lodged an F. I. R. (Exh. D. N.) at Gojra Police Station on the 25th March 1962 charging Abdul Ghani and his brothers under sections 406 and 420, P. P. C.
29. In this report, he stated that he had contributed Rs. 15,000 towards the partnership and that two or three months after the starting of this firm a theft had occurred in the house of Abdul Ghani for which his relations Muhammad Tufail and Barkat Ali were suspected. He also stated therein that Barkat Ali accused and Muhammad Hussain had fraudulently obtained from him a Zamanat Nama for the sum of Rs.5,000 representing a part of his capital in the partnership business and that subsequently another fraudulent writing was obtained from him purporting to acknowledge that he had received the balance of Rs. 10,000 of his share capital from the business, although he had not received anything and he had been defrauded of the entire amount of Rs.15,000 but this case, after prolonged investigation, was not challaned by the Police. He further admitted that towards the end of 1962 Abdul Ghani son of Gul Muhammad and his brother Barkat Ali were challaned, along with others, under sections 107 and 151 of the Code of Criminal Procedure and in that case both he and Talib Hussain deceased had appeared as witnesses against them but this case was also ultimately dismissed.
30. It will be observed from the above that the defence version of the enmity was substantially admitted by Lal Din and it indicates that it was Lal Din, who was nursing a grievance on this account, for, even, after the dismissal of both the said criminal cases he continued in his efforts to recover the balance amount of the capital contributed by him in the partnership business from the accused Abdul Ghani son of Gul Mohammad and his brothers. Some of these facts are also supported by documentary evidence such as the partnership deed (Exh. D. L.), the receipt with regard to the deduction of Rs. 5,000 (Exh. D. G.), the first information report (Exh. D. N.) with regard to the case under sections 406 and 420 against Abdul Ghani son of Gul Muhammad and his brothers, the order (Exh. D. K.) releasing Abdul Ghani and his brothers on bail before arrest and the order (Exh. D. O.) dismissing the case under sections 406 and 420, P. P. C.
31. In addition to these admissions obtained by cross-examination of Lal Din (P. W. 6) the defence has also examined six witnesses. Syed Irfan Ahmad (D. W. 1) is the Assistant Medical Officer of the Government Dispensary, Halani, District Nawab Shah, who granted the medical certificate (Exh. D.
32. M.) to Mohammad Khan accused certifying that he had treated a private patient of that name on the 25th September 1964, i.e. a day before the alleged incident, at Halani in the District of Nawab Shah for renal colic and had issued a certificate personally to that person after obtaining his thumb-impression thereon on the 27th September 1964. The certificate was also entered in his register on the 27th September 1964. The entry in the register also bears the thumb-impression of one Mohammad Khan son of Taj Din.
33. Mohammad Sadiq (D. W. 2) produced the first information report (Exh. D. N.) in respect of the case under sections 406 and 420, P. P. C. He also produced the final report (Exh. D. O.) showing the cancellation of the said case. Mohammad Ismail (D. W. 3) the reader of D. S. P., Toba Tek Singh proved the cancellation report (Exh. D. D.), dated 18th January 1964.
34. Faqir Ullah (D. W. 4) Chairman, Union Council, Boudha Goraya, Gujranwala, proved the receipt (Exh.
35. D. P.) in respect of the sale of a camel for Rs. 700 by Sher Mohammad, a brother of Abdul Ghani son of Gul Mohammad to Abdul Ghani son of Fazal Din on the 26th September 1964. This was to establish the alibi of Abdul Ghani son of Fazal Din, who according to this witness, was present before him at Boudha Goraya at the time of sale. This receipt was written out by Zafar Ullah (D. W.
36. 5), a Supervisor in the Family Planning Department at Gujranwala. It was suggested to them that this receipt was brought into existence after the incident but both the witnesses denied the suggestion. Sher Mohammad (D. W. 6) is the vendor of the camel. He too supported the other two witnesses.
37. Upon a consideration of this evidence the Additional Sessions Judge, Lyallpur, who tried the case, took the view that :---
(i) The motive alleged by the prosecution had not been proved.
(ii) There was a delay of more than four hours in the lodging of the first information report which had not been satisfactorily explained.
(iii) The recoveries in question were highly doubtful as the evidence of the recovery witnesses is discrepant and the recovered articles had not been connected with the offence in question.
(iv) The unsigned dying declaration (Exh. P. W. 20/A) recorded by the Sub-Inspector on the 26th September 1964, was not admissible in evidence. '
(v) Mohammad Tufail (P. W. 19) not having been named in the first information report could not be accepted as an eye--witness of the incident.
(vi) The prosecution had not put forth the real facts regarding the manner in which the alleged occurrence had taken place.
(vii) The alibies of Mohammad Khan and Abdul Ghani son of Fazal Din had been satisfactorily established by independent and trustworthy witnesses.
38. Upon these findings he was not only unable to accept the prosecution case but was also of the view that in such circum--stances the version of the accused party was more acceptable. He was inclined, therefore, to hold that the complainant side were the aggressors and that the accused had acted only in the exercise of their right' of self-defence. All the accused were, accordingly, acquitted.
39. The High Court, however, took the view that Exh. P. W. 20/A was admissible in evidence as the prohibition under subsection (1) of section 161, Cr. P. C. Was inapplicable to any statement falling within the provisions of section 32(1) of the Evidence Act, 1872, Py reason of the provisions of subsection (2) of section 162, Cr. P. C.
40. The mere fact, therefore that this document was not signed by the maker was of no consequence.
41. As regards the motive, the High Court agreed with the trial Court that the elections were not the cause of enmity, for, after the 1959 elections, Lal Din had actually entered into a partnership with Abdul Ghani son of Gul Mohammad on the 26th May 1960 and the elections of 1964 were -held after the alleged incident.
42. The Lambardari was also not, in the opinion of the High Court, the real cause of enmity, for, nine persons had applied for that post and out of these only three were accused in this case. The dispute over the theft of Rs. 5,000, the obtaining of the surety bond for the sum of Rs. 5,000 and the division of the assets of the partnership firm after its dissolution was, in the opinion of the High Court, the more likely cause for "active enmity between the parties" although this may have been accentuated when Lal Din became a candidate in 1963 for the post of Lambardar.
43. The learned Judges of the High Court were not inclined to reject the recoveries because Mohammad Aslam (P. W. 10) who picked up the empty cartridges (Exhs. P.14/1 and P. 14/2), was not shown to have any direct enmity with the accused persons. The fact that his father Master Allah Ditta had been cited as a witness in the first information report (Exh. D. N.) in respect of the case under sections 406 and 420, P. P. C. Against Abdul Ghani son of Gul Muhammad was not considered to be sufficient to make him an interested witness. The recovery of the spears, proved by Mohammad Asghar (P. W. 9), another son of Master Allah Ditta, was also accepted for the same reason. The strange coincidence that both the sans of Master Allah Ditta, who was a witness cited by Lal Din, should have come forward to pick up the empties and to adduce evidence of the recovery of the barchhis was not noticed.
44. The High Court rejected the defence version because no blood marks were found at the shop of Mushtaq, the son of Barkat Ali where, according to the defence, the initial assault had taken place and because, the nature and the number of the injuries suffered by the complainant-party "irresistibly" suggested that the accused, who were the aggressors, had not told "the whole truth."
45. So far as the prosecution evidence is concerned the High Court could not overlook the fact that the prosecution witnesses were not independent witnesses, they too had not disclosed the real and immediate cause of the fight and had not been consistent either as regards the manner of the attack or as to the exact part played by each accused person yet their version, it thought, could still be accepted provided it was corroborated by some other independent evidence. Such independent corroboration was readily found so far as Barkat Ali, Yousaf Ali and Hakim Ali are concerned by the presence of injuries-on their persons. As regards Yousaf Ali it was further confirmed by the matching of the empties recovered from the site with the gun recovered at his instance. Similarly, in the case of Mohammad Khan and Ghulam Hazur, the recoveries of the barchhis at their instance which were found to be stained with human blood were held to be sufficient. The alibi 9f Mohammad Khan was not accepted merely because the doctor admitted that he did not know Mohammad Khan personally. It was, therefore, felt that someone masquerading as Mohammad Khan might well have obtained the certificate fraudulently from the doctor. Unfortunately, in so holding the learned Judges of the High Court overlooked the statement of the doctor (D. W. 1) that he would be in a position to identify the patient who actually appeared before him. He was not asked if the said patient was amongst the accused nor was any attempt made to compare the thumb-impression of the accused Mohammad Khan with the thumb- impression on the register that he produced in Court.
46. Learned counsel appearing in support of this appeal has contended that the learned Judges of the High Court had misdirected themselves into thinking that since the accused persons had not told the whole truth, the prosecution version must be correct because some of the weapons recovered at their instance had been matched with the empties recovered from the site and others had been found to be stained with human blood. It is argued that even if it is assumed that the recoveries were made the accused Yousaf Ali admitted- producing his licenced gun and the empties recovered from the site did match the gun produced by Yousaf Ali and the barchhis recovered at the instance of the other two accused were stained with human blood, it does not necessarily follow that the incident occurred in the manner alleged by the prosecution. The story of ambush, it is said, is totally false because there is no evidence that the accused knew that Allah Bakhsh would be passing that way, his cart would get stuck in the mud and he would by name call the deceased and the other injured witnesses to come and assist him. The place chosen for the ambush was also not a likely place because no one would choose a bazar where other people are likely to be present for such a purpose.
47. The evidence furnished by the informant Abdul Ghani (P. W. 11) shows that the nearest route from the place from where Allah Bakhsh was carrying the earth was from the street of the Christians but Allah Bakhsh chose a route which was longer by two squares. He also admitted that apart from the street of the Christians there was another kutcha-road connecting the house of Allah Bakhsh with his lands. It is, in the circumstances, difficult to accept that the accused persons knew that Allah Bakhsh would be passing that way, his cart would get stuck in the mud and. The deceased alongwith the other injured witnesses would be available there to assist him in extricating his cart from the mud. We are of the opinion that there is force in these contentions. If there was any truth in the story of the ambush set up by the prosecution the complainant-party would have received far more serious injuries, for, according to the prosecution, the accused party had at least two guns and two pistols with them.
48. Learned counsel has also, in our view, rightly pointed out that the recoveries even if accepted did not establish the prosecu--tion case, for, they were in no way inconsistent with the defence version.
49. That the accused persons came out armed to rescue Barkat Ali when he was seriously assaulted by Lal Din and his associates. The prosecution has made no endeavour at all to explain the injuries on Barkat Ali. It is clear from this that the incident did not take place in the manner suggested by the prosecution nor was it motivated by the reasons alleged by it. Indeed, the High Court itself did not accept the prosecu--tion story, for, it came to the categorical finding that "Allah Bakhsh, Ali Mohammad and others were also armed" and there was "an open fight between the two parties in an open public place". The High Court also doubted the presence of the prosecution witnesses Abdul Ghani and Mohammad Tufail, for, had they been present, they would certainly not have been spared if the motive was as alleged, by the prosecution. Abdul Ghani is the real brother of Lal Din and Mohammad Tufail was a real brother of the deceased Talib Hussain.
50. If as found by the High Court both sides came out armed prepared for a fight and engaged in a free fight in a public place, then, in our opinion, the High Court clearly misdirected itself in taking the view that because the complainant side got the worst of the fight the accused must have been the aggressors and, therefore, they should be held to be guilty. This was, in our opinion, a completely wrong approach. In such cases as pointed by this Court in the case of Syed Ali Bepari v. Nibaran Mollah (PLD 1962 SC 502) although no question of either side claiming the right) of private defence arises yet the culpability of the participants in the fight has to be assessed on an individual basis. Each person participating in such a fight is responsible for his own individual acts.
51. In the circumstances of this case, I however, we are not called upon to assess the individual responsibility of the participants, for, upon the High Court's own findings the prosecution had completely failed to establish its own case. The onus in a criminal case always lies on the prosecution. It never shifts to the accused. It is wrong, there--fore, to think that because "the accused persons did not tell the whole truth" the prosecution must succeed. The prosecution has always to succeed upon the strength of its own case and not the weakness of the defence case. It is not necessary for the defence to establish the innocence of the accused persons. It is enough for it if it has succeeded in casting a serious doubt upon the prosecution case. The benefit of that doubt must go to the accused.
52. In the presentcase the High Court did not accept the motive set up by the prosecution because, according to it, the immediate cause which led to the occurrence in question remained undetermined. Having come to this conclusion it did not take the trouble to examine if the defence version of the motive had received any support from the evidence. The evidence of Lal Din, practically admitting the- defence version of the motive, unfortunately, remained unnoticed even though it was abundantly supported also by documentary evidence. It may be that the learned Additional Sessions Judge went a little too far in holding that the accused had acted in the exercise of their self-defence" but even if that finding be not justified it cannot be said, that the motive set up by the defence was totally false. When the High Court agreed with the trial Court that the motive alleged by the prosecution could not have been the motive of the crime was true. It was sufficient that the defence versions appeared v. More probable. It is not necessary for the prosecution to set up a motive in every case but where the prosecution has set up g, a motive 'and failed to establish it then it is the prosecution which must necessarily suffer on that account and not the defence.
53. If the prosecution failed to establish the motive set up by it, as also failed in establishing that the incident occurred in the manner alleged by it then it is difficult to see as to what remained of the prosecution case.
54. In the present case, apart from the above infirmities, the, prosecution had,, we find, been also guilty of :-
(i) Falsely implicating five persons, who have been acquitted by both the Courts below, (ii)Deliberately suppressing the manner in which one of the accused persons, vie., Barkat Ali received such serious injuries with a sharp-edged weapon,
(iii) Deliberately suppressing the fact that the complainant side also came out armed and its story of the, accused persons waiting in ambush was wholly improbable,
(iv) Giving an untrue version of the manner in which the injuries were caused to the accused as Allah Bakhsh himself did not state that he snatched any spear from the hands of anyone of the accused persons or caused any injuries to any--one of the accused persons, and
(v) Giving false evidence with regard to the injury caused to one of the accused.
55. Allah Bakhsh himself should have been the best person to describe the manner in which he managed to snatch away the ballam from Ghulam Hazur and to cause injuries with it to Hakim Ali and Yousaf Ali. If he does not say that he did so then how can the version of the other witnesses that it was he who snatched away the barchhi and caused injuries with it to two of the accused persons can be accepted. Again if the presence of Abdul Ghani be doubtful then how can the version of Ali Mohammad and Ghulam Rasul with regard to this fact be accepted. Furthermore, although the High Court did notice that Niamat did not bear any injuries on his person and that the absence of such injuries entitled him to be acquitted yet the evidence of Ali Mohammad was relied upon to convict the appellants. We are unable, therefore, to appreciate how the High Court could have come to the conclusion that the version given by the prosecution witnesses was true.
56. Having examined the evidence with care with the assistance of the learned counsel we have come to the conclusion that the High Court had wrongly interfered with the acquittal of the appellants by the learned Additional Sessions Judge, Lyallpur. There were abundant cogent reasons, for, the acquittal of these persons as has been confirmed by the fact that the High Court itself did not find it possible to accept the major portion of the prosecution story. Merely, because, there were certain recoveries which appeared to confirm the participation of some of the accused persons in the incident and the complainant side had got the worst of the fight, it cannot be said that the accused persons were the aggressors. If there was a free fight and both sides were armed then the matching of the empties recovered from the site with some of the weapons recovered from some of the accused persons and the presence of human blood on some others could not have by themselves established that the accused were the aggressors. The question which merited consideration was as to whether this evidence was inconsistent with the defence set up. If not then did not a serious doubt arise as to the truth of the prosecution version and who should get the benefit of that doubt.
57. There is one other matter which it is necessary to notice. This concerns the statement (Exh. P. W.
58. 20/A) which has been accepted by the High Court as a dying declaration. This was recorded under section 161 of the Criminal Procedure Code by the Investigating Officer but when the dying declaration recorded by the Magistrate was lost and could not be found, the unsigned statement recorded by the Investigating Officer was sought to be proved as a dying declaration. The trial Court held it to be inadmissible presumably on the ground that subsection (1) of section 162, Cr. P.
59. C. Debarred the admission of any statement recorded by any Police Officer in the course of an investigation. The trial Court did not notice the provisions of subsection (2) of the said section which clearly makes the provisions of subsection (1) inapplicable to a statement falling within the provisions of clause (1) of section 32 of the Evidence Act or of section 27 of the said Act. The High Court was, therefore, in our view, right in holding that the statement was admissible in evidence but even so we cannot agree with the High Court that it was of any value at all, for, where a proper dying declaration has been recorded by a Magistrate secondary evidence should have been led of the contents of that document after proving that the original was lost. The statement recorded by the Police Officer though admissible as a dying declaration could not, in the circumstances of this case, have been of much value. If it was recorded in the presence of the other prosecution witnesses then its reliability would be seriously suspect. We have made no mention of this dying declaration earlier in this judgment, because even if it is accepted it does not remove the infirmities in the prosecution case to which we have already alluded nor does it render the prosecution story acceptable.
60. For the reasons given above we have no manner of doubt that the prosecution had hopelessly failed to establish its case and the benefit of doubt was rightly given to the accused persons and not to the prosecution by the trial Court. We, accordingly, allow this appeal, set aside the convictions of the appellants and acquit them of all the charges levelled against them. They should be set at liberty forthwith as already directed in the short order made on the 12th May 1971.
…and 53 more citing cases