1. SHAFIUR RAHMAN, J.--Leave to appeal was granted by this Court to the four appellants, .Three of them brothers and the fourth their cousin, convicted of offences under sections 302/34 and 307/34, P.P.C. (six counts) to examine and to ensure that "the principles o appreciation of defence version in criminal cases have not been ignored by the learned Courts below".
2. The complainant as well as the appellants is the residents of Dera Malla Singh, at a distance of about four miles from Police Station Chuharkana, Tehsil and District Sheikhupura. They lived in adjacent houses. They were involved in serious criminal litigation and at the the of occurrence in June 1978, they were already prosecuting at least three pending criminal cases against each other.
3. On the 9th of June 1978, which was a Friday, Abdul Ghaffar deceased, Abdul Razzaq (P.W.12) and Shahzad Khan (P.W.14) were returning from their Dera to their house in order to offer the Friday prayers in the village mosque. As they approached near the house and the field of Inayatul Haq, acquitted accused, father of the three appellants and uncle of the fourth, the appellants and Inayatul Haq attacked them. Waseemul Haq was armed with a Datar, Nadeemul Haq with a gun, Tasleemul Haq with a hatchet, Arif with a Chhuri and Inayatul Haq, the acquitted accused was armed with a gun. Inayatul Haq called out to the others to kill every one of them and not to spare anyone and fired a shot in the air. This attracted Abdul Sattar (P.W.11) from the house alongwith one Haji Muhammad Aslam and Naseer Khan (both not produced) who came armed with sticks.
4. Waseemul Haq with Datar and Tasleemul Haq with a hatchet gave a blow each to the deceased on the head while Arif gave a knife blow to him and to Sattar. They thereafter attacked Abdul.
5. Razzaq (P.W.12 and Shahzad Khan (P.W.14). Sattar claimed to have inflicted blows with a Sotti on Waseemul Haq and Tasleemul Haq, appellants. Nadeemul Haq fired a shot but none of the complainant party was injured. Instead, three children playing in the chowk received pellet injuries and they were Meraj Deen alias Sira Deen (P.W.13), Maqsood Ahmad and Mst. Ruqayyia Bibi (both not produced). The appellants thereafter retreated. The injured were removed to the Headquarters Hospital, Sheikhupura where the deceased Abdul Ghaffar expired.
6. Dr.Manzoor Hussain Kazmi (P.W.2) attended to the injured. At 2.35 p.m. He examined. Shahzad P.W.14 and found on his person more than coven incised injures, five contusions, one laceration, one abrasion and to swellings. At 2.55 p .m. He examined Abdul Razzaq P.W.12 and found on his person five incised wounds, to contusions and one abrasion. Abdul Sattar P.W.11 was examined by Dr. Abdul Mujoob Khan at 7.30 p.m. On the same day and he found a stab-wound on the right arm, an incised wound on the left palm and an abrasion on his person. Mairaj Deen, Maqsood and Ruqayyia were already examined by Dr. Abdul Mujosb Khan who reported numerous fire-arm injuries on their person. Dr. Manzoor Hussain Kazmi (P.W.2) booked a call for S.H.O. Police Station Chuharkana and informed him of the medico-legal cases attended to by him. Abdul Ahad, Sub- Inspector (P.W.7) received the message, went to the hospital and recorded the report made by Satter P.W.11 at 7.50 p .m. On which a case was registered at the Police Station Chuharkana the same evening at 8.45 p.m.
7. The autopsy of Abdul Ghaffar revealed four incised injuries on his person and to contusion. The death was on account of the head injuries three of which were incised.
8. At 2 p.m. On 9th of June, 1978 Dr. Muhammad Anwar Khan, Medical Officer, Civil Dispensary, Chuharkana, had examined Waseemul Haq and found in all twenty injuries on his person of which three wore ultimately found to be incised, five were lacerated, six contusions, three abrasions, to swellings land one scratch, Muhammad Arif Khan appellant was examined on 18-8-1973 and had to lacerated wounds eight to ton days old.
9. The investigation of the case was taken up by Abdul Ahad P.W.17 who recovered the licensed gun of Inayatul Haq; the blood-stained Dattar of Wassemul Haq on 30-8-19781 the gun of Nadeemul Haq on 15-8-1878, the blood-stained hatchet at the instance of Tasleemul Haq on 21-8-1978 and the blood-stained Chhuri at the instance of Aril appellant on 18-8-1978. All the appellants except Waseemul Haq denied their presence or participation in the occurrence. Waseemul Haq made an elaborate statement with regard to the occurrence and stated as follows: - "The residential house of Abdul Ghaffar Khan deceased and Abdul Razzaq Khan P.W. Was contiguous to our house in Der& Malla Singh. We had three Kanals of land. On one and a half Kanals of land stands cue- house. The rest of one and a half Kanals of land had been enclosed by us by a fourwall. There we planted trees and kept our cattle and fuel. The drawing room of the house of Abdul Ghaffar Khan and Abdul Razzaq Khan was contiguous to the drawing room of our house. The children of Abdul Ghaffar Khan and Abdul Razzaq' Khan often eased themselves in front of our drawing room. At about 8 a.m. On the day of occurrence, after our sweepers had cleaned our house, I saw a child from the household of Abdul Ghaffar Khan and Abdul Razzaq Khan easing himself in front of our drawing room. I went out of my house and slapped him twice or thrice.
10. Thereafter, the mother and wife of Abdul Ghaffar Khan started abusing me. I went inside my house silently. Our servants, Arif and Booti, came with fodder at about 11 a.m. I told them to cut fodder before taking meals. I proceeded to urinate and told them to sharpen the Toka. When I was about to urinate I heard sound of feet. I turned around and saw Abdul Ghaffar Khan deceased armed with a hatchet, Shahzad Khan P.W. Arms-' with a Ghotna and Abdul Razzaq Khan P.W. Armed with a Dang coming on me. They attacked me. I started crying "Main Mar Gaya, Main Mar Gaya, Mainun Bachao". I called my servants. I ran a bit. Abdul Ghaffar Khan deceased, Shahzad Khan and Abdul Razzaq Khan surrounded me. Abdul Ghaffar Khan deceased gave a hatchet blow which I tried to ward of with both the hands. The handle of the hatchet fell on my hands and the blade of the hatchet struck my forehead and part of my head. My servants, Arif and Booti, also came there on hearing my noise. One of them had a hatchet and the other a Dang with him. When Abdul Ghaffar Khan deceased gave me second blow I clasped him from the waist. Shahzad Khan and Abdul Razzaq Khan started giving me blows with Ghotna and Dang. I received injury on the top of my head and losing senses I became unconscious. Arif and Booti gave blows to Abdul Ghaffar Khan deceased, Abdul Razzaq Khan and Shahzad Khan, P.Ws, in order to save me. When I gained senses I found myself in Civil Hospital, Chuharkana.
11. I request that the spot may be inspected. The complainant party is defaming us for nothing. We are gentlemen. We treated the girls of the family of Abdul Ghaffar Khan deceased and Abdul Razzaq Khan as our own sisters."
12. The trial Court held that the lodging of the F.I.R. Was delayed and the delay remained unexplained.
13. It noted it and observed as follows:- "it was possible for someone even from amongst the family members of the deceased and injured persons to have gone to the police station and reported the matter earlier than the police actually recorded the report, Exh. P.AA., in the evening. The fact of late reporting of the incident to the police has to be kept in view while judging the guilt or innocence of the accused."
14. This fact of late recording of F.I.R. Was not specifically adverted to subsequently.
15. As regards the veracity of child, witness Meraj Din (P.W.1) the trial Court observed as follows: "The testimony of Meraj Din alias Siraj Din (P.W.13) a by of five or six years, who was injured by a gunshot while playing alongwith similarly aged children, Mst. Ruqqayya Bibi and Maqsood Ahmad, is trustworthy only to the extent that while playing he and his companions received gunshot wounds. The account of what the accused did does not appear to be his own observation.
16. The prosecution and the defence versions were considered in juxtaposition and the conclusion drawn by the trial Court appears in the following words: "The version of the occurrence given by Waseemul Haq Khan accused, placed in juxtaposition to the evidence adduced by the prosecution, does not seem to be plausible because had he been attacked upon by Abdul Ghaffar Khan, Abdur Razzaq Khan and Shahzad Khan when he had been unarmed, he would have certainly received much more serious injuries and Abdul Ghaffar Khan, Abdur Razzaq Khan and Shahzad would not have suffered so serious injuries and also the complainant would not have let go Arif and Booti, the real culprits, unmentioned in the report. Again the story of Waseemul Haq Khan becoming unconscious at the spot does not appear to be acceptable to reason for had it been so he might have received worse treatment at the hands of Abdus Sattar Khan and his companions."
17. As regards, the presence of the complainant party in the field adjacent to the house of the appellants and their explanation for it the. Trial Court observed as follows:- "The mere fact that the accused and the complainant were not having good relations would not have prevented the members of the complainant party from using the beaten path through the fields to the Dera. Even the accused almost passed daily in front of the door of the house of the complainant party for going to other places of the village."
18. The trial Court also noted the fact that to disinterested witnesses who were shown to have participated in the occurrence viz. Haji Muhammad Aslam and Naseer were given up as won over and the prosecution case was confined only to interested testimony and disposed it of by observing as follows:- "It is true that no other person except these who were injured and are members of the complainant party came into the witness --box to bear testimony to the occurrence. The reason given by the prosecution was that Haji Aslam and Naseer Khan had been won over by the accused and that it being Jumma prayer's the residents of the village had gone to offer Jumma prayer at the the of occurrence. It was brought on the record that the complainant party belonged to the Pakistan Peoples Party whereas the accused were supporters of the Pakistan National Alliance. They had been fighting with each other for quite some the before the occurrence. Other residents of village might not have thought it fit to involve themselves in the affairs of the complainant and the accused so as to incur the wrath of any of them. The hard fact remains that the occurrence did take place resulting in the death of Abdul Ghaffar Khan and receiving of injuries by no fewer than six other persons."
19. The trial Court held the prosecution case proved against the appellants except for Inayatul Haq Khan who was even by the Investigating Agency placed in column No.2 was found by the trial Court also not to be involved directly in the case. Waseemul Haq was found guilty under section 302/34, P.P.C. Alongwith the other appellants. He was sentenced to death and a fine of Rs.1,000 or six months' R.I. In default. The other appellants were sentenced to life imprisonment and a fine of Rs.1,000 or in default six months' R.I. They were all convicted under section 307/34, P.P.C. (on six counts) and they were all sentenced to three years' R.I. And a fine of Rs.1,000 or in default six months' R.I. On each count.
20. On appeal and while seized of the question of confirmation of the death of Waseemul Haq the High Court re-appraised the evidence and disposed of the plea of Waseemul Haq with the following observations: - "The argument that the enmity would prevent the deceased and the P.Ws. From using the path even at day the is hardly of any substance. The defence version placed in juxtaposition to the prosecution evidence does not appear to be plausible. It is inconceivable that Wasimul Haq Khan would have got away with minor injuries if Abdul Ghaffar Khan, Shahzad Khan and Razzaq Khan had attacked him when he was wholly unarmed. It is equally difficult to understand how Abdul Ghaffar Khan could have suffered so serious injuries at the hand of unarmed Waseemul Haq. There is hardly any reason why the complainant would have allowed Arif and Booti, the real culprits to escape if they were fully armed and participated in the occurrence in the manner alleged by the defence.
21. As regards, the injuries of Waseemul Haq the High Court held as follows: - "We find that Arif received to simple blunt weapon injuries while all the injuries suffered by Waseemul Haq Khan were caused by blunt weapon of minor nature except injury No.12 which was suffered at the lower surface of right foot near big toe. This injury could not have been inflicted while he was standing. Moreover, had the eye-witnesses a sharp-edged weapon with them, they would have caused more harm to the accused and would have inflicted sharp-edged weapon injuries on vital parts of their bodies. The incised injury on the lower surface of the foot of Waseemul Haq appears to have been accidentally caused by a piece of glass or a Patri etc., during the incident or while escaping."
22. Finally, as regards the guilt of the appellants, the learned Judges in the High Court concluded as follows:- "The participation of Nadeemul Haq Khan is borne out by the fact that Mst. Ruqqayya. Maqsood, the to given up eye-witnesses and Mehraj Din P.W. Suffered fire-arm injuries.
23. Although the ocular evidence, except that of Meraj Din P.W., is of interested nature the circumstances of the case, as analysed above, clearly indicate the participation of the appellants." and their conviction and sentence was maintained.
24. Mr. M.B. Zaman, the learned counsel for the appellant has contended before us that the very fact that the occurrence had taken place closer to the house of the appellants and in their fields should have been a pointer that they were more likely a victim of aggression. This was further borne out, according to the learned counsel for the appellants, by the fact that Waseemul Haq had received- a large number of injuries which .He could not have received if he was, as alleged by the prosecution, armed with a Dattar and was himself the aggressor. According to the learned counsel, both the trial Court and the High Court have misread the medical evidence with regard to the nature of injuries caused to Waseemul Haq, appellant. The trial Court held that there was only one incised wound on the inner side of his foot and so did the learned Judges in the High Court and both the Courts explained it by reference to the presence of a Patri or glass at the spot where the occurrence took place. Not only such a conclusion was conjectural it was also against the weight of evidence because the Investigating Officer had been put a question whether any Patri or glass of such a description could be found there and he had replied in the negative, Besides, the doctor after getting further verification and observations had reported finally that injuries Nos.17 and 18 on the person of Waseemul Haq were also caused by a sharp-edged weapon and were not just wounds of indeterminate type. As there were three incised injuries on his person it could not be said that he was not himself the victim of aggression. There was nothing in the prosecution evidence to suggest or to show that any of the prosecution witnesses had brought a sharp edged weapon and used it on the appellant.
25. In view of the serious enmity that existed between the parties a more prompt First Information Report could be expected if the complainant party had been subjected to one-sided aggression.
26. None of the prosecution witnesses, or those concerned with them attempted at any stage to lodge a report about the occurrence. It was left to the doctor who contacted the police station and informed the S.H.O. About the occurrence. The report could be recorded at 7.50 p.m. When the S.H.0 himself contacted Abdul Sattar (P.W 11). In a case of one-sided attack and with such a background of enmity one can reasonably except a more prompt report.
27. The implication of Inayatul Haq by the witnesses appeared to the investigating agency as well as to the to Courts examining evidence to be an embellishment. The trial Court held that-- "he had been falsely implicated just on the basis of his relationship with tae other accused. His prep e t the scene of occurrence is not acceptable."
28. A conspicuous feature of the case is that both the Courts took it that Waseemul Haq appellant had only one incised injury caused on his person and that could be caused by a piece of glass or a Patri. Opinion to that effect was obtained from the doctor by making a specific reference to him by the investigating officer. The other to incised injuries on his person were not taken note of, were not explained and do not fit in the prosecution case. With regard to the injuries of this appellant it was stated that Sattar who had a stick gave blows to him. If Waseemul Haq was armed at the very beginning of the occurrence with a Dattar having a blade of about 13 inches he could not without his reacting against them receive twenty injuries on his person as' were found immediately after the occurrence.
29. Again it is hard to believe that in a one-sided attack by the appellants when they had the guns and hatchet the hatchet would be used from the blunt side and the guns that were fired would not injure anyone except those who had nothing to do with the occurrence, that is, the children playing elsewhere.
30. We are not satisfied with the explanation for the presence of these complainant party in the field belonging to the appellants in which no regular path to their house existed and they cannot explain their presence there except by saying that it was a shorter-cut to their house and they were using it in spite of it being bounded on to sides by a wall, it being exclusively in possession of the appellants and their being on such inimical terms with them. In a case where there are to versions the principle to be applied is the same as has been recognised in the case of Safdar Ali v. Crown PLD 1953 FC 93 in the following words:-- "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 reasonable doubt."
31. Applying the above test we find that the defence of the appellants is plausible and it makes the prosecution case against them doubtful. The appellants are not found to have exceeded the right of private defence of their person as Waseemul Haq had received numerous and serious injuries.
32. We, therefore, accept the appeal, set aside the conviction and sentence of the appellants and direct that they shall be released forthwith unless their detention is required in some other case.