1. The four appellants----Iltaf Hussain, Badaruddin, Muhammad Sajjan and Wahid Bux were convicted under section- 302, P. P: C. For the murder of Sultan and under section 326, P. P. C. For causing grievous injuries to P. Ws. Saifal and Sarwar and sentenced to life- imprisonment and fine of Rs. 5,000 each or in default R. I. For 2 years on first count and R. I. For 5 years and fine of Rs. 1,000 each or in default R. I. For 6 months on second count vide Judgment dated 31-8-1982 of the 1st Additional Sessions Judge, Khairpur (Mr. Khadim Hussain Junejo). This judgment had been called in question in the present appeal.
2. The facts giving rise to this case may briefly be stated as follows. On 21-3-1973, at sunrise time, the complainant Illahi Bux and his three brothers, namely Ghulam Sarwar, Sultan and Saifal were standing near `Alam' behind their house, when all the four accused carrying hatchets came there.
3. They started calling names to the complainant and his brothers and exhibited their annoyance over the beating of accused Iltaf by the complainant party on the question of gambling three days prior to the occurrence. After giving vent to their feelings, the accused attacked the complafnant's three brothers and dealt them hatchet blows. On cries of the victims, amongst others, Gaman and Allan were attracted. The accused ultimately fled away. On the advice of Wadero Ghulam Hyder Rind, the complainant lodged F. I. R. At Police Station, Kot Diji on the same day at 12-15 p.m. The distance between the Vardat and the police station as mentioned in the F. I. R. (Exh. 32) is 15 miles.
4. The A. S. I. Atta Muhammad, who registered the F. I. R. Was given up vide statement (Exh. 50) of the A. P. P. Incharge of the prosecution case, as the said A. S. I. Was reported to be absconding in some criminal case. The prosecution, however, examined S. H. O. Ghulam Muhammad (Exh. 44), who had done good deal of the investigation. He effected arrest of accused Iltaf, Badaruddin and Muhammad Sajjan in presence of Mashirs Abdul Sattar and Sain Bux vide memos Exh. 17, Exh. 18 and Exh.
19. In presence of same mashirs, S. H. O. Secured shirt and banyan, both stained with blood, from person of accused Muhammad Sajjan and sealed the same. Thereafter, all the three accused one by one led the S. H. O. To the hedge in front of their house and procured one hatchet each from there and produced the same before the S. H. O. The hatchets being blood-stained were secured and sealed by the S. H. O. And the Mashirnamas of the recoveries were prepared by him vide Exh. 20, Exh: 21 and Exh.
22. The S. H. O. Then examined Inayat Ali, Bashir Ahmed and Ghulam Shabir and refdrred accused Muhammad Sajjan, who had injuries on his person, to the Medical Officer, Kot Diji for examination and certificate. Further investigation was entrusted by him to the A.
5. S. I. Atta Muhammad, who was also incharge of the investigation of the counter-case. The S. H. O.
6. Sent blood-stained articles to the Chemical Examiner whose report he has produced as Exh.
15. The accused were ultimately placed on trial which led to their convictions, as stated above.
7. The medical evidence, given by Dr. Abdul Sattar (Exh. 9), has proved the injuries on the person of deceased Sultan as also on persons of P. Ws. Ghulam Sarwar and Saifal beside accused Muhammad Sajjan. According to the doctor, the deceased Sultan was first examined, when he was brought alive in the injured condition. The dector found five injuries on his person, all incised wounds caused with sharp cutting weapon. After the deceased Sultan breathed his last in the hospital, the same doctor conducted autopsy of his dead body. On his external examination, he noted the following injuries :--
(1) Incised wound 5" x --" x bone broken on right parietal region of skull.
(2) Incised wound 3" x --" x bone broken crossing the fracture under Injury No. 1 on right parietal region.
(3) Incised wound 1" x --" x bone cut above the right ear on the skull.
(4) Incised wound 3" x --" x bone broken at the mid of upper part of back.
(5) Incised wound 4" x --" x bone broken on left forearm above the wrist joint.
8. As stated by the doctor, these injuries were antemortem and caused by sharp cutting weapon. The internal examination of the dead body revealed that the skull was broken at the site of injuries Nos.
9. 1, 2 and 3 and membrance and brain-matter were found cut under the same three injuries. He also noticed that 6th and 7th ribs were cut on sides of chest on back of thorax-pleurae were congested and were full of blood clots. The doctor was of the opinion that the death of the deceased had resulted from shock and haemorrhage caused by the aforesaid injuries which were individually sufficient to cause death in ordinary course of nature.
10. On the person of P. W. Ghulam Soarwar, the same doctor found following injuries, both caused with a sharp cutting weapon, such as axe :- (1)Incised wound 4" x 2" x bone broken at the top of the right shoulder.
11. (2)Incised wound 1" X --" x scalp deep on right side of forehead.
12. The said doctor came across a solitary injury namely incised wound 3" x 1" x bone broken on left side of aforehead on the person of P. W. Saifal. This injury in the doctor's opinion was grievous in nature and was caused by a sharp cutting weapon such as axe.
13. From the medical evidence, it is established that the deceased Sultan had died of the injuries found on his person and his two brothers Ghulam Sarwar and Saifal were also injured. This fact is not denied by the accused persons.
14. The crux of the case, however, is whether the said injuries were inflicted by the accused. The prosecution case in this connection rests on ocular evidence, corroborative evidence of the ' witnesses who came to the Vardat immediately after the occurrence, recovery of blood-stained clothes and hatchets, presence of injuries on persons of two of the accused and evidence of motive.
15. As disclosed in the F. I. R. Beside complainant Illahi Bux (Exh. 31), Ghulam Sarwar (Exh. 34), Saifal (Exh. 35), Gaman (Exh. 33) and Allan (Exh. 36) were eye-witnesses to the incident. According to the complainant, all the accused came armed with hatchets, expressing that they would not spare Sultan, who had fought with them some days prior to the occurrence. Accordingly to him, they attacked deceased Sultan and gave him hatchet blows. He has further stated that in course of same incident P. W. Saifal received hatchet blows at the hands of accused Iltaf while accused Wahid Bux and Badaruddin gave hatchet blows to Ghulam Sarwar.
16. The complainant's evidence to the above effect finds full support from other eye-witnesses, namely, Gaman, Allan, Ghulam Sarwar and Saifal, excepting to the extent that the last mentioned witness has implicated only accused Badaruddin in respect of injuries caused to Ghulam Sarwar.
17. The evidence of aforesaid eye-witnesses, is, however, at variance with regard to the certain details of the incident, particularly as to which witnesses were already at Vardat and which came afterwards. As against his earlier version in the F. I. R. That he alongwith his brothers Sultan, Saifal and Ghulam Sarwar was standing at the Vardat when the accused came and other two witnesses, namely: Gaman and Allan came afterwards on cries, the complainant in his evidence in Court has given slightly different story. According, to his Court evidence, Gaman and Allan were standing with him and Sultan, when the accused had arrived. As for Saifal and Ghulam Sarwar, he had stated before the Court that they came afterwards. According to Gaman, he was attracted on cries, when he had left his house and was going to purchase gunny bags. He has stated that Allan had reached the Vardat before hire while complainant, Ghulam Sarwar and Saifal came afterwards.
18. Again the evidence of Ghulam Sarwar shows that he heard cries in his house and when be went to Vardat, Gaman, Saifal and Allan had already arrived there. Although he is not clear if Ghulam Sarwar and complainant lllahi Bux came before or after him, it can very well be gathered from his evidence that they had come after his arrival at the Vardat. Contrary to what above eye-- witnesses have said, Allan's statement is that complainant had arrived before him while other eye- witnesses come afterwards. The learned counsel for the appellants has made the above contradictions the target of his attack, arguing that excepting P. Ws. Ghulam Sarwar and Saifal whose presence at the Vardat cannot be denied in view of the injuries found on their persons, no other eye-witness had seen the incident. There is no doubt that besides deceased Sultan, the other persons, who sustained injuries at the time of occurrence, were P. Ws. Ghulam Sarwar and Saifal.
19. Consequently, the learned counsel is correct in pointing out that their presence at the time of incident cannot be denied. However as pointed out above, their evidence too is not free from inconsistencies. They have also made contradictory statements as to which witness came first and which came afterwards. Despite the contradictions found in their evidence, if their presence at Vardat.4 cannot be denied, there would be no justification to hold the other witnesses absent at the time of incident only on the ground of similar contradictions noticed in their evidence. I am inclined to feel that the contradictions of above kind are but natural in the case in which the witnesses had been called for evidence after lapse of over 9 years from the incident.
20. As has been indicated in the site-plan of the Vardat, preparedby Tapedar Imdad Ali Shah (Exh. .
21. 23), the Vardat situates at the distance of 8' from the house of deceased, 6' from the house of P. W.
22. Saifal, 66' from the house of complainant Illahi Bux, 87' from the house of Gaman and 100' from the house of Allan. Thus all these witnesses lived close to the Vardat. They are also closely related to the deceased. Thus they appear to be natural witnesses and I have no doubt that they all had witnessed the incident. There is nothing to show that their evidence is inspired by any animosity or ill-will against the accused. The accused in their statements under section 342, Cr. P, C. Have taken a plea that the witnesses are not only interested but are also inimical towards them. No doubt, they are inter-related but there is no material on record, justifying the inference that they are inimical towards the accused party. The only enmity the accused have referred to in their statements under section 342, Cr. P. C. Is that the injured accused Muhammad Sajjan had lodged counter, complaint at the Police Station, Kot Diji against tree complainant party. However, they seem to have abandoned this plea while the prosecu--tion witnesses were subjected to cross-examination by their counsel. The trend of the cross-examination indicates as if the accused were not sure about their defence. On one band, they have attempted to show that they have been falsely implicated at the instance of Ghulam Hyder with whom they have dispute over land while on other band, they have, pleaded strained relations between the parties over matrimonial affairs, So far the counter- case is concerned to which they have made reference in their statements under section 342, Cr. P.
23. C. It is not denied that the F. I. R. In the instant case was filed before the F. I. R. Of the counter-case.
24. Therefore, it does not lie in the mouth of the accused to argue that the instant case is counter-blast of the accused's counter-case. On the contrary, the accused's case could be appropriately designated as an action taken by the accused in retaliation. It has been categorically denied by the P. Ws. That Ghulam Hyder is the moving figure behind this case. Similarly, the accused's allegation that they have been implicated on account of matrimonial dispute does not find support from any quarter. Thus, the accused have not been able to show that the witnesses have deposed falsely against them. Accordingly, I have no reason to doubt or disbelieve the ocular evidence given by above witnesses. Although the eye-witnesses are related inter se, yet the accused have failed to substantiate their allegation that they are inimical too. Thus, they cannot be regarded a interested witnesses being in the need of any corroboration.
25. Nevertheless the ocular evidence has been corroborated by evidence of motive. The motive proved on the record is that the deceased Sultan had given a beating to one of the accused namely Iltaf over gambling some days prior to the occurrence. According to the complainant, the beating was given to Iltaf three days prior to the murder of Sultan. He is corroborated by P. W. Saifal in this respect. However, P. W: Ghulam Sarwar has stated that the accused had fought with the deceased over matrimonial affairs. It would appear that deceased Sultan was actually the target of the accused's wrath and consequently he was inflicted as many as five injuries, all with sharp cutting weapon such as hatchet, mostly on vital parts of his body. I am accordingly convinced that the deceased must have fallen out with the accused party prior to the occurrence over beating of accused Iltaf by him and that is why he was made the target of their attack.
26. The ocular evidence finds further corroboration from the fact that- at least two of the accused, namely; Wahid Bux and Muhammad Sajjan had sustained injuries in course of the incident. The presence of injuries on their persons is proved by medical evidence given by Dr. Abdul Sattar and Dr. Muhammad Ali Shah. Dr. Abdul Sattar, who examined accused Wahid Bux, found two injuries on his person, both being incised wounds caused with sharp-cutting weapon like hatchet. Dr. Muhammad Ali Shah had examined the accused Muhammad Sajjan who was found by him to have one injury caused with some blunt substance. The injuries on these two accused prove their participation in the incident.
27. The next piece of evidence relied upon by the prosecution is recovery of blood-stained articles. To prove the recoveries, the prosecution has examined two Mashirs, namely: Abdul Sattar (Exh. 16) and Sain Bux (Exh. 25), besides S. H. O. Ghulam Muhammad (Exh. 44). According to the S. H. O. Blood-- stained clothes were secured from the person of accused Muhammad Sajjan, beside one blood- stained hatchet each from accused Muhammad Sajjan, 11taf and Badaruddin, who turn by turn led the police to their house and procured the hatchet from the hedge thereof and produzed the same before the S. H. O. It is in evidence of the S. H. O. That all blood-stained articles were forwarded to the Chemical Examiner and he has produced the Chemical Report (Exh: 45) which is positive.
28. On the point of recoveries, the statements of the Masbirs are slightly different. According to Mashir Sain Bux, accused Muhammad Sajjan and Iltaf produced the hatchets before police at the Vardzt and so far accused Badaruddin is concerned, his statement is that his mother had thrown one hatchet from the accused's house. The Mashir also did not see, if the hatchets were blood-stained.
29. Similarly the evidence of other mashir Abdul Sattar does not tally either with evidence of S. H. O. Or with that of Mashir Sain Bux. Accord--ingly, the learned trial Court has excluded the evidence of recoveries from consideration as being unworthy of credit. I am, however, not influenced by his reasoning. In my opinion, the evidence of S. H. O., which stands unshaken, cannot be discarded only because some discrepancies nave been noticed in the evidence of above two Mashirs. I feel, these contradictions are the result of weak human memory. The variations have occurred in their statements due to efflux of time. More than nine years had passed since the recoveries before they were called to give evidence to that effect. Moreover, it is now well-settled that the evidence of police officer is not to be denied credence only because he happens to be police officer or is associated with investigation of the case. In absence of any material reflecting on his evidence, the testimony of police officer is entitled to as much weight as is given to any other witness. In the instant case, the S. H. O. Does not have any reason to depose falsely against the accused. His evidence which is supported by the chemical report proves the recovery of blood-stained articles from the accused, which provides further support to the ocular evidence. Even if the evidence of recovery is ignored, as has been done by the trial Court, the ocular evidence corroborated by the evidence of motive and the presence of injuries on the persons of two of the accused is enough to establish the complicity of the accused with the commission of the crime.
30. At this stage, I may refer to the contention raised by learned counsel for the appellants that implication of accused Iltaf and Badaruddin is not free from doubt and as such they are entitled to acquittal on the benefit of doubt. His contention is based on the fact that unlike co-accused Muhammad Sajjan and Wahid Bux, these two accused had no injuries on their persons. I regret, 1 cannot agree with this view. It is not always the case that all those, who have participated in the fight, should sustain injuries. Merely because accused Iltaf and Badaruddin escaped unhurt cannot by itself prove their absence from the Vardat. His further conten--tion was that the only evidence against these two accused is of interested character which cannot be safely made the basis for their conviction in absence of independent corroboration which is lacking. This argument too appears to be without force. As has been discussed above, although the witnesses are inter- related they are not shown to have any motive to falsely implicate the accused. If it be assumed that these two accused were not involved in the fight, I cannot persuade myself to believe that the injuries caused to three persons on the complainant's side could be the act of only two accused.
31. The p occurrence had admittedly taken place close to the houses of complainant party. It is difficult to believe that only two accused, namely Muhammad Sajjan and Wahid Bux could have dared to go to the Vardat and in presence of so many persons belonging to the complainant party committed violence resulting in death of Sultan and injuries to other two persons. I am, therefore, convinced that all the four accused had participated in the fight.
32. It was next contended by the learned counsel for the accused that if the accused are held to have inflicted the injuries to the deceased Sultan and two others, they have done so in their self-defence.
33. In support of this argument, the learned counsel for the appellants referred to the counter-case filed by the accused, wherein the deceased Sultan and two injured P. Ws. Ghulam Sarwar and Saifal figured as accused persons. The learned counsel submitted that it is the evidence of Ghulam Sarwar and Saiful that deceased Sultan was armed with a lathi at the time of occurrence and he gave lathi blows to accused Muhammad Sajjnn. He further referred to the evidence of P. W. Gaman, pointing out that according to this witness, the deceased Sultan gave one blow to accused Sajjan and one blow to accused Wahid Bux. Developing his argument further, the learned counsel expressed the opinion that if the nature of injuries on the person of deceased Sultan was kept in view, it could not be believed that after being totally incapacitated by such injuries he would still be able to have caused injuries to accused Sajjan and Wahid Bux. The learned counsel therefore thought that deceased had been first to inflict the injuries to the said accused, who had only retaliated in their self-defence.
34. The learned counsel has placed reliance on the following cases, reported as Safdar All v. The Crown (PLD 1953 FC 93), Jumo v. The State (1975 P Cr. L J 248), Baradi v. The State (1975 P Cr. L J 396), Gul Zaman v. The State (1975 P Cr. L J 623), Jan Muhammad alias Janan v. The State (1975 P Cr. L J 673) and Aludo alias Ali eux v. The State (1976 P Cr. L J 329).
35. In the case of Safdar Ali,. It was held that section 105 of the Evidence Act has been enacted in order to make it clear that it is not the duty of the prosecution to examine all possible defences that might be taken on behalf of the accused and to prove that none of those defences would be of any assistance to him. It was further held that the principles laid down in the Woolmington's case are applicable with full force in Pakistan in spite of the provisions of section 105 of the. Evidence Act. It was also held :- "In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reason--able doubt."
36. In case of Jumo, the accused and the deceased picked up quarrel over use of water of a community tap. The deceased, who was young man of 20, knocked out two teeth of the accused by giving him fist blow. The accused though an old man apprehending further injury from the deceased gave the latter a stick blow on his head, resulting in his death. The conviction of the accused was held unjustified and was, therefore, set aside.
37. In the case of Baradi, which is a D. B. Decision of the Sind High Court Karachi, it was held :- "It seems to me that in judging the possibilities of how the injuries were sustained and their sequence the Judge is really speculating. Even if what he holds is the more probable version of the matter that does not suffice to convict the appellant. It is well established that upon the question of the right of private defence if there be any reasonable doubt at all then the benefit of that doubt must be given to the appellant: In the case of Gul Zaman, it was observed :- "In all these cases it has been persistently held that the plea of private defence, if substantiated on the prosecution evidence itself, must be accepted and the benefit of this plea be given to the accused notwith--standing the fact that the accused has not expressly taken up this plea in his statement and, further, if the Court is -in doubt whether the right of private defence was exceeded, the benefit should still go to the accused as it is not expected of a parson to measure in golden scales the degree of threat held out to him when he exercises the right of private defence under stress of self-preservation."
38. In the case of Jan Muhammad, the origin of the fight was not disclosed and the witnesses suppressed the injuries on person of the accused. It was held :- "The inference therefore to be drawn has to be against the version put forward by Ali Murad, and it cannot be said that the injury given by the appellant to ward off the danger to his own life which has got to be accepted in view of the reticence of Ali Murad on the subject was in excess of the right of private defence. In this view of the matter, the conviction and the sentence awarded to the appellant cannot be sustained."
39. In the case of Alludo, the parties were admittedly on inimical terms and the deceased armed with a hatchet chased the accused alongwith prosecution witnesses. The accused apprehending imminent danger to life, fired fatal shot at the deceased. It was held :- "The determined effort on the part of the prosecution witnesses and the deceased to apprehend the appellant when the deceased himself was armed with a hatchet in the context of the background of enmity, leaves no room for doubt, to conclude that the appellant must have apprehended imminent danger to his life. It is not necessary that he should have received any injury before such apprehension could have been entertained as has been observed by the trial Court, for the law does not place such limitation on the exercise of the right of self-defence.
40. Therefore, the appellant was justified in killing the deceased who was armed with a hatchet and who could have used it any moment. He is thus entitled to the benefit of section 100, P. P. C."
41. The above-cited cases are distinguishable from the instant case. First of all the accused have not brought on record a copy of the F. I. R. Filed by them in the counter-case. In its absence; it is difficult to appreciate the counter-version of the incident as put forth by the defence. Furthermore, as pointed out above, the F. I. R. Of the counter-case was admittedly registered after the F. I. R. Of this case and, therefore, it was the accused's case which was counter-blast of the instant case and not vice versa. It may also be noticed that the counter-defence version did not find favour with the learned trial Court and consequently the counter-case has ended in acquittal and no appeal seems to have been filed from the said acquittal. It may further be noted that on complainant's side not only casualties were more in number but also the injuries received by them were far more serious, so much so that one of them namely the deceased Sultan, lost his life. It may be pointed out that for purpose of examining the question involving the exercise of right of self-defence by the accused, the injuries on---the person of deceased alone cannot be taken as a guiding factor. It is a question which has to be gone into by taking into consideration the entire scene as bad presented itself at the relevant time. Besides the deceased, two other witnesses had sustained injuries on the complainant's side. Even as regards the injuries of the deceased, it was not necessary that all the injuries were caused to him in quick succession one after the other leaving him hardly any time to retaliate. May be after receiving initial blow, he might have found time to deal blows to the accused. Even if the deceased had opened the attack by giving blows to the accused, still he would not be held to have committed the aggression, as has been discussed below. The incident admittedly having occurred in the close proximity of the houses of complainant party, and the accused having come all the way from their houses armed with deadly weapons with set purpose to avenge the beating of the co-accused Iltaf, it was not expected that the deceased would stand as a mute spectator until the accused party had hit him first. Since the accused had come determined to commit the aggression, it was immaterial which party struck fist blow. Viewed the case in this context, even if the deceased had struck the first blow, it was obviously in his self-defence and by that reason, the right of self-defence would not b available to the accused. Thus, there is no manner of doubt that the accused had committed aggression.
42. Consequently, the plea of self-defence raised on their behalf is devoid of any substance.
43. For above reasons, there is no merit in appeal which is dismissed. I would, however, direct that while computing the sentence of imprisonment, I the Jail authorities would take into account the period of accused's detention as under trial prisoners.