' MUHAMMAD MUNIR KHAN, J.-This Criminal Appeal No, 857 of 1979 and the connected Murder Reference No, 285 of 1979 under section 374 of the Code of Criminal Procedure arise from the judgment of the learned Additional Sessions Judge, Vehari, whereby, he, on 9th June, 1979, convicted Bashir Ahmad aged, 30 years, Wazir Ahmad, aged 24/25 years, and Nazir Ahmad, aged 27/28 years under various sections of the Pakistan Penal Code. Convicted Bashir Ahmad and Wazir Ahmad under section 302/34, P. P. C. And Bashir Ahmad sentenced to death and a fine of Rs, 2,000 or, in default thereof to further R. I. For two years, Wazir Ahmad sentenced to life imprisonment and a fine of Rs, 1,000 or in default thereof to further R.
1. For one year. The learned trial Court, convicted Nazir Ahmad and Bashir Ahmad, appellants under section 307/34, P. P. C. For murderous assault upon Bashir Ahmad, Shera and Noora P. Ws. And sentenced each of them to seven years' R. I. And a fine of Rs, 500 each or, in default thereof to further R. I. For six months. The trial Court also directed that the fine, if recovered, shall be paid to the legal heirs of the deceased under section 544-A, Cr. P. C. Mushtaq Ahmad co-accused of the appellants was, however, acquitted of the charge.
2. The occurrence took place on 31st July, 1975 at 5-30 p. m. In the chowk of Chak No, 53/W. B. Of Police Station Vehari. F. I. R. Exh. P. M. Is the statement of Bashir Ahmad P. W. 6, recorded in the Civil Hospital Vehari at 11-45 p. m. On 31st July, 1975 by A. S.-I. Mehmood Ahmad P. W.
11. The distance between the place of occurrence and the Civil Hospital, Vehari is about three miles.
On the basis of the statement Exh. P.M. Of Bashir Ahmad P. W. 6 formal F. I. R. Exh. P. M./1 was recorded at the Police Station, Vehari at 11-50 p. m. On the same day by Aziz-ur-Rehman M. H. C. P.
W.
3.
3. The parties are inter-related. The three appellants namely Bashir Ahmad, Wazir Ahmed and Nazir Ahmad are real brothers. Mst. Sardaran wife of Bashir Ahmad appellant, is the real sister of Mst.
Sahib Bibi, mother-in-law of Bashir Ahmad P. W.
6. The wives of Malla deceased and Bashir Ahmad are real sisters.
4. The occurrence took place in Chak No, 53/W. B. The deceased and the eye-witnesses of the case namely, Bashir Ahmad P. W. 6, Sher Muhammad P. W. 7, Noor Muhammad P. W. 8 and Haq Nawaz P.
W. 10 are residents of Chak No, 49/W. B. Whereas the appellants are the residents of Chak No, 53/W.
B. The distance between the place of occurrence and the place of the residence of the deceased and the eye-witnesses except Shameera P. W. 9, is I miles. The houses of the appellants are at a distance of two kanals from the place of occurrence.
5. Motive.-It is alleged that two months before the occurrence Mst. Sardaran got annoyed with her husband Bashir Ahmad, appellant and left his house and went to the house of her parents in Chak No, 71/W. B. But Bashir Ahmad levelled an allegation that she had been enticed away by Malla deceased. The immediate cause of the incident as stated in the F. I. R. Was that five days before the occurrence at about 9 a. m. Latif son of Saleh Bhatti (given up P. W.) came to the house of the deceased and started peeping into the house. When checked and questioned by Hag Nawaz P. W.
10, Latif disclosed that Bashir Ahmad, appellant had sent him to note the presence of the family members and the place where they slept. Saleb Muhammad (father of Latif) was sent for and Latif was handed over to him with a warning that Latif should not come to Malla's house in future.
Thereafter, Malla deceased asked Bashir Ahmad appellant to swear about the matter and the same was fixed for 31st July, 1975.
6. Occurrence.-The prosecution case is that at the eventful time Malla deceased, Bashir Ahmad P.
W. 6, Sher Muhammad P. W. 7, Noor Muhammad P. W. 8, Shameera P. W. 9 and Haq Nawaz P. W. 10 got together in the chowk of Chak No, 53/W. B in appellant was summoned through Gul Muhammad Chaukidar to take oath. Bashir Ahmad, appellant armed with a spear came there, abused and declared that he would decide the matter on that day. It is alleged that on his lalkara. Nazir Ahmad, appellant armed with a spear, and Wazir Ahmad appellant armed with hatchet alongwith Mushtaq Ahmad and Iqbal son of Shera with their father Shera son of Wahab, came there. Mushtaq and Iqbal were armed with hatchets whereas, Shera son of Wahab, was armed with a gun. Bashir Ahmad gave a spear blow on the back of Malla deceased. Wazir Ahmed inflicted hatchet blow on the bead of Malla deceased on which the latter fell down. Nazir Ahmad appellant gave spear blow to Shera P. W. Mushtaq and Iqbal inflicted injuries with blunt side of the hatchets on the person of Shera P. W. Bashir Ahmed, appellant also injured Noora P. W.
8. Nazir Ahmad appellant gave spear blow on the right arm of Bashir Ahmad P. W.
6. Shera son of Wahab (father of Mushtaq and Iqbal) fired a shot but it did not hit anyone. It has been alleged that Shera son of Wahab was also raising lalkara that nobody should be spared.
People collected on the spot and the appellants ran away with their respective weapons. Malta expired at the spot. The injured P. Ws. Were removed to Civil Hospital, Vehari for medical treatment.
The dead body of MaIla remained on the spot. The Medical Officer sent information to the Police. A.
S.-I. Mehmood Ahmad P. W. 11, came to Civil Hospital, Vehari and recorded the statement Exh. P. M.
Of Bashir Ahmad P. W.
6. It may be mentioned that the police did not challan Mushtaq and Iqbal sons of Shera and their father Shera Bhatti, although they were named in the F. I. R. And specific role had been attributed to them.
7. Medical. x x x x)
8. Investigation.-After recording the statement of Exh. P. M. Of Bashir Ahmad P. W. 6 the investigating officer P. W.-11 Mehmood Ahmad A. S.-I. Reached the spot. He prepared the injury statement Exh. P. V, inquest report Exh. P. Y. And sent the dead body to the mortuary under the escort of Alam Sher F. C. P. W.
2. He arrested the appellants on 2nd August, 1975. Bashir Ahmad, appellant got recovered blood- stained spear P-8 and blood-stained shirt P-7 from a sugar-cane field which were taken into possession vide memo Exn. P. S. On the same day Nazir Ahmad. Appellant got recovered blood- stained spear P-9, blood-stained bunyan P. 10 and blood-stained chadar P. 11 from the same field which were taken into possession, vide memo. Exh. P. T. Wazir Ahmad, appellant got recovered blood-stained hatchet P-12 blood-stained kurta P-13 from the sugarcane field which were taken into possession vide memo, Exh. P U. The Chemical Exminer's report Exh. P. X. And Serologist's Report Exh. P. Z. Are positive.
9. Defence case.-The appellants when examined under section 342, Cr. P. C. Denied the incriminating evidence against them. On the point of motive, Bashir Ahmad appellant stated that "I had myself kicked out Mst. Sardaran because of her undesirable conduct and Malla deceased being her brother-in-law felt annoyed with me on that account. I did not level any allegation against Malta."
' As regards the main occurrence, the version given by Bashir Ahmad appellant is as follows :- "No Panchayat was held and no oath was demanded. The complainant party had come armed to attack me for turning out my wife Mst. Sardaran from my house. They attacked me in ftont of the house of Jaffar when I happened to pass through the chowk. I was all alone at that time and on my cries my three brothers (Wazir Ahmad, Nazir Ahmad appellants and Mushtaq Ahmad acquitted co- accused) came later on to rescue me and we acted in self-defence. In answer to question No, 10, he stated that we have lodged a counter-complaint against them in which they are under trial and they have deposed falsely."
10. It may be noted that the counter-complaint lodged by the appellants' party against the complainant party of this case has been dismissed after trial and that no appeal or revision stands pending against that decision as informed by the learned counsel for the parties. The other appellants namely, Wazir Ahmad and Nazir Ahmad adopted the same statement. The appellants, however, did not lead any evidence in defence.
11. In order to prove its case, the prosecution examined as many as 12 witnesses. P. W. 1 Dr. Akh tar Hussain Jafari.-He conducted the post-mortem examination on the dead body of Malla, also examined the injured witnesses and the appellants. P. W. 2 Alam Sher F. C.-He escorted the dead body to the mortuary for post-mortem examination. P. W. 3 Azizur Rehman M. H. C.-He recorded the formal F. I. R. Exh. P. M./1 and Kept intact malkhana seven sealed parcels pertaining to the case. P. W.
4 Muhammad Nawaz.-He identified the dead body of Malla at the time of post-mortem examination. P. W. 5 Muhanrnad Shafique.-He is a draftsman. He prepared the site-plan Exh. P. N./1- 2 on the pointation of the witnesses. P. W. 6 Bashir Ahmad.-He is an injured eye-witness. He made statement Exh. P. M. The F. I. R. Of this case. He reiterated the same version as given by him in the F. I.
R. He supported the motive and the story of the prosecution. He is son-in-law of the deceased. P. W.
7 Sher Muhammad alias Shera.-He is an injured witness. He is brother of Bashir Ahmad P. W.
6. He has supported the statement of Bashir Ahmad P. W. 6 on all material particulars. P. W. 8 Noor Muhammad alias Noora.-He is an injured eyewitness. He is also brother of Bashir Ahmad P. W. 6 and has supported the prosecution case and has given almost the same statement as given by P.
W.
6.
P. W. 9 Shameera.-He is not injured. He is also son-in-law of the deceased. He blongs to Chak No, 53/W. B. Where the occurrence had taken place. He has supported the statement of other eye- witnesses and also supported the recoveries of clothes and weapons of offence from the appellants. P. W. 10 Haqnawaz. -He is son of the deceased. He is not injured. He is an eye-witness of the occurrence and has supported the statement of P. W. 6 on the points of motive and occurrence. P. W. 11 Mehmood Ahmad A. S.-I.-He recorded the statement, investigated the entire case, effected the recoveries from the appellants and prepared the challan. P. W. 12 Murad Ali F. C.- He took intact seven parcels for onwards transmission to the Office of the Chemical Examiner, Lahore.
It may be noted that Latif and Saleh Muhammad witnesses as to the immediate motive and Jaffar, Ditta son of Yara, Gul Muhammad Chaukidar and Khan Muhammad witnesses of the alleged Panchayat and of the actual occurrence were given up as unnecessary by the learned A. P. P. Vide his statement, dated 24th May, 1979.
12. Since the appellants have admitted their presence and participation in the occurrence the alleged recoveries of blood- stained cloths and weapons have lost significance and as such it is unnecessary to dilate on the evidence of recoveries.
13. The above statement of facts would show that it is a case of two versions ; the time of occurrence, the place of occurrence, the presence of the three appellants, the presence of three injured eyewitnesses namely, Bashir Ahmad P. W. 6, Sher Muhammad P. W. 7 and Noor Muhammad P. W. 8 and the fact that the deceased, injured P. Ws, and the injured appellants received injuries in the same incident are the.......Defence and throwing the blame of aggression on the opposite.
14. The learned counsel for the appellants contends that the prosecution has failed to prove its case beyond reasonable doubt and in any case the appellants having acted in the exercise of the right of self-defence have committed no offence.
' As against this the learned counsel appearing for the State has seriously supported the impugned judgment.
15. Keeping in mind the guiding principles laid down by the superior Courts for the appreciation of the case of two versions especially where the right of self-defence has been pleaded, we consider it appropriate to discuss the prosecution case and its evidence first in order to come to an independent findings on the turth or falsehood of the case and the credibility of its ocular testimony. It is well-settled that if the Court disbelieves the prosecution evidence then the statements of the appellants shall have to be accepted in toto. In case, the ocular testimony is not discarded, we will then examine the two rival cases placing in juxta-position and will review the entire evidence and the circumstances at the close before arriving at a conclusion regarding the turth or falsehood of the defence plea and will assess its total effect on the following question :- ' Is there a reasonable possibility that the plea might be true so as to cast a reasonable doubt upon the prosecution cage ?
16. While discussing the prosecution case we start with the motive. The prosecution case that Mst.
Sardaran wife of Bashir Ahmed appellant left the house of her husband of her own accord and went to the house of her parents, stands falsified by Sher Muhammad P. W. 7 and Noor Muhammad P. W. 8, as both have categorically stated that it is correct that Bashir Ahmad appellant had turned out his wife Mst. Sardaran from his house about two months prior to this incident". To our mind, this admission on the part of the two prosecution witnesses is sufficient to shake the entire structure of the motive. Inasmuch as, if Bashir Ahmed appellant had himself turned out his wife, there was no occasion and fun to send Latif son of Saleh to the house of Malla deceased to note family members and the place where they used to sleep. Having himself turned out his wife it does not appeal to reason that Bashir Ahmed appellant would have levelled the allegation against Malla deceased that the latter had enticed away his wife or that his wife had left his house at the instance or prompting of Malla deceased. In the circumstances, the question of holding a Panchayat for the taking of oath by Bashir Ahmad, appellant does not arise. Latif and Saleh, witnesses of the immediate motive although examined by the Police under section 161, Cr. P. C. Yet have not been produced to prove the alleged motive. The independent witnesses of the alleged Panchayat and fight namely, Jaffar, Gui Muhammad Chaukidar and others have also been withheld by the prosecution. The admission on the part of two witnesses that Bashir Ahmad appellant had turned out his wife Mst. Sardaran rather lends support to the version of Bashir Ahmad appellant wherein he stated that he had himself kicked out Mst. Sardaran because of her undesirable conduct and that Malla deceased being her brother-in-law felt annoyed with him on that account. The motive must, therefore, be held to be on the side of the deceased.
17. Taking up the ocular evidence we find that the eye-witnesses P. W. 6 to P. W. 10 are closely related to the deceased, Bashir Ahmad P. W. 6 is son-in-law of the deceased, Sher Muhammad P.
W. 7 and Noor Muhammad P. W. 8 are real brothers of P. W. 6, Shameera P. W. 9 is son-in-law of the deceased, Haq Nawaz P. W. 10 is the son of the deceased. Haq Nawaz and Shameera P. Ws. Are not injured. Had they been there, they would have participated in the fight. There is no circumstantial evidence of their presence. Bashir Ahmad, Sher Muhammad, Noor Muhammad and Haq Nawaz P.
Ws. Were accused in the counter-case under section 307, P. P. C. Filed by the appellants' party and they were under-trial. They had, thus, a motive to involve the appellants in order to save their skin in the countercase. There was no alternative for them except to throw the blame of aggression on the appellants. They are not truthful witnesses, P. W. 6 that they in their self-defence bad injured the accused with sotas. He stated that "on the day of occurrence we three brothers had come to the spot from Chak No, 49/ W. B. And we were armed with sticks".
' Sher Muhammad P. W. 7 stated that "I and my brothers Noora and Bashir Ahmad P. Ws. Had come to the place of occurrence from our Chak to attend the Panchyat. None of us (three brothers) carried any weapon. Shameera and Haq Nawaz P. Ws. Were also empty-handed, I alone picked up a stick from the spot and gave blows to some of the appellants but I cannot say as to which accused was hit and at what part of his body by me". Noor Muhammad P. W. 8 had not explained the injuries at all. He rather stated that "I and my brothers P. Ws, had come empty-handed to the place of occurrence. Malla deceased, Haq Nawaz and Shameera were also empty-handed".
Shameera P. W. 9 stated that "none of the three brothers namely, Noora, Shameera and Bashir Ahmad P. Ws. Had any weapon. They were empty-handed". Haq Nawaz P. W. 10 stated that "I did not interfere to rescue my father or other relatives. I did not receive any injury in the incident". In his statement recorded under section 164, Cr. P. C. He did not explain the injuries of the appellants.
18. To our mind, the prosecution case is not in consonance with probabilities, does not materially fit in with the other evidence and circumstances of the case and as such fails to inspire confidence. It is highly unsafe to sustain conviction on the evidence of these interested witnesses without independent corroboration as to the story of the prosecution and the manner of the occurrence as alleged by the witnesses. Bashir Ahmad P. W. 6 had stated that several persons of the Chak were present at the time of occurrence and were witnessing the same but not a single independent witness has been examined to support and corroborate the statement of the alleged eye- witnesses.
19. The ocular evidence in this case having been disbelieved by us, the version of the appellants is in the field and statements of the appellants in the absence of any other evidence or circumstance falsifying its exculpatory part must be accepted or rejected as a whole.
20. All the three appellants are injured. There are injuries on their heads. Dr. Alchtar Hussain Jafary has stated that Wazir Ahmad appellant had a head injury of a serious nature requiring careful observation and treatment. The deceased alongwith Bashir Ahmad, Sher Muhammad, Noora and Haq Nawaz came to the place of occurrence from a distance of miles. They came armed with sticks. As it has been held by us in para. 16 of this judgment that the motive was on the side of the deceased, the eye-witnesses have not come forward with the whole truth the possibility of the deceased and his companions having opened the attack on Bashir Ahmad first cannot be excluded in the circumstances of the case. Since there is a reasonable possibility that the plea of the appellants might be true so as to cast reasonable doubt upon the prosecution case, the benefit of doubt has to go to the accused.
' On this view of the matter the appellants have to be held to be entitled to the right of self-defence.
Since injuries were inflicted on the head of each appellant the appellants naturally had a reasonable apprehension that grievous hurt if not death would be caused to them and as such they cannot be held to have exceeded the right of self-defence.
21. For the reasons given above, the appeal is accepted. The conviction and sentences are hereby set aside. The appellants are acquitted and shall be released forthwith if not required in any other case. The sentence of death is not confirmed. .