Muhammad Munir Faruk.ee, J.--The three appellants, Manuel, his brother Samuel am1 their brotker- in-Law Manuel (son of Hassan Masih) were tried by Shah Abdur Rashid, then Additional Sessions Judge, Rawalpindi, for committing the murder of Hidayat Masih and causing simple injury with a sharp-edged weapon to Nawab Masih (P. W. 11) ia furtherance of their common intention on. the 26th of June 1966, at about 2-30 p.m. in the area of Christian Colony, Islamabad, who found Manual (son of Nathu) only guilty for the murder of Hidayat Masih deceased and sentenced him to transportation for life under section 302, P. P. C., Manuel (son of Hassan Masih) was found guilty of causing simple injury to Nawab P. W. and was sentenced to rigorous imprisonment for two years under section 324, P. P. C. while Samuel (son of Nathu) was convicted under section 324/34, P. P. C. for having facilitated the causing of this injury to Nawab Masih P. W. with a sentence of one year rigorous imprisonment;only. They have preferred this appeal to question the correctness of this order.
2. The prosecution case in brief is that Manual (son of Nathu) and his brother Samuel appellants lived in one of the quarters of the Christian Colony in Islamabad. Manuel (son of Hassan Masih) is the brother of the wife of Samuel appellant who was employed in the Army at Multan and had come on leave during the days of this occurrence. Manual (son of Nathu) appellant was suspected of having illicit relations with Mst. Mukhtar, daughter of Allah Rakha, Christian, his neighbour and Hidayat Masih deceased is said to have taken exception to it and complained about it to Manual and Samuel appellants two or three days earlier which is said to have offended them.
3. On the eventful day Nawab Masih P. W. had invited Hidayat Masih deceased to lunch and after taking their meals in the quarter of the former both of them proceeded towards the main road by a kacliha path at about 2-30 p.m. As they reached near a hut situated on the same path the three appellants emerged from therein and confronting Hidayat Masih deceased Samuel appellant shouted at him that he had wrongly defamed his brother and they would not iet him go alive on that day. Samuel was empty-handed while the other two appellants carried a knife each. Hidayat Masih and Nawab Masih retreated towards 1he quarters'of their colony raising an alarm when Manuel (son of Nathu) overtaking him plunged a knife in his abdomen. Samuel appellant stopped Nawab Masih P. W. and Manuel (son of Hassan Masih) inflicted a knife blow on his buttocks. In the meanwhile Abdul Qayum (P. W. 13), Muhammad Saecd (P. W. 14) and one Taj Masih arrived there and separated the parties. Nawab Masih P. W. remained lying injured on the spot while Hidayat Masih in spite of the abdominal injury is said to have rushed to Police Station Islamabad to lodge his report.
During those days this Police Station Islamabad had not yet started functioning and the cases in respect of Islamabad were registered at Golra Police Station, so Akhtar Ali Sub-Inspector recorded the statement Exh. P. K/l of Hidayat Masih on a plain paper and forwarded the same to Golra Police Station for the formal registration of the case against the appellants. He then drew out injury statement Exh. P. V. in respect of Hidayat Masih and sent him for medical examination to the hospital under the escort of Foot Constable Muhammad Bunaras (P. W. 6) and then proceeded to the spot but met Nawab Masih P. W. on the way. He found him injured and after recording his statement about this occurrence he drew out his injury sheet Exh. P L and also sent him to the hospital for medical examination. He then proceeded to the spot and reaching there at about 3-45 p.m. the same evening inspected the scene of the occurrence. During inspection he secured blood-stained earth from there and sealed it into a parcel vide Exh. P. F. in the presence of Abdul Qayum and Muhammad Saeed P. Ws. who were present there along with aforesaid Taj Masih. He also recorded their statements at the spot. The three appellants were present in their quarters and on being sent for they appeared before the Sub-Inspector who arrested them. In the course of his interrogation Manual (son of Nathu) is said to have led to the recovery of blood-stained knife (P. 6) after digging it out from the courtyard of his quarter. It was scaled into a parcel vide Exh. P. G.
Manuel (son of Hassan Masih) was found to have an injury on his head, so the Sub- Inspector prepared his injury statement Exh. P. O. about it. Muhammad Bunaras, Foot Constable P. W. brought back from the hospital blood-stained bunyan (P. 2) of Hidayat Masih, with a cut mark over it, and it was taken into possession by the Sub- Inspector vide Exh. P. B. He had also produced before him blood-stained shirt (P. 4) of Hidayat Masih with a similar cut over it which was taken into possession vide Exh. P. C. Muhammad Bunaras, Foot Constable, also produced before the Sub- Inspector Dhoti (P. 3) of Nawab Masih P. W. with a similar cut mark which was taken into possession vide Exh. P. D. At about 9 p.m., the same evening the Sub-Inspector visited Hidayat Masih in the hospital and enquired from the doctor vide his application Exh. P. K. if he was in a fit condition to make a statement, but Dr. Niaz Ahmad replied in the negative and endorsed his opinion about it at Exh.P. K/l. On the next day, i. e., the 27th of June 1966, he sent Manuel (son of Hassan Masih) appellant for medical examination. He also visited Hidayat Masih (then alive) in the hospital on that day and contacting the doctor Incharge enquired from him about his fitness to make a statement.
The opinion of the doctor was in the negative which was endorsed at Exh. P. K/2.
On 28th June 1966, Sub-Inspector Akhtar Ali P. W. received a telephonic message from the hospital that Hidayat Masih had expired, so he went there and after his inquest vide Exh. P. N. despatched the dead body to the mortuary under the escort of Feroze-ud-Din and Muhammad Shah Constables, where Dr. Mehtab Akhtar (P. W. 1) held autopsy over it at 5 p.m., the same day vide Exh.
P. Q. The Sub-Inspector got prepared site plan Exh. P. E. with its duplicates Exh. P. E./l and P. E/2 and putting his notes in red ink thereon signed it in token of its correctness. The sealed parcel containing blood-stained earth and blood-stained knife were sent to the Chemical Examiner in due course, who found. them to be stained with blood vide report Exh. P. U., but due to the disintegration of blood its origin could not be traced by the Serologist, Exh P. T. is his report about it.
4. On 26th June 1966, at 5-15 p.m., Dr. Niaz Ahmad (P. W. 2) examined Nawab Masih P. W. and found a stab wound f'xj'xlj horizontal on the upper part of right buttock. Injury was kept under observation and X-ray was advised, but was later on declared simple. It was caused by a sharp-edged weapon.
On the same day at 5-40 p.m. the same doctor examined Hidayat Masih (then alive) and found a stab wound 2" x not probed oblique on the right side of belly 8" from and at the level umbilicus. It was caused by sharp-edged weapon.
5. On 28th June 1966, at 5 p.m. Dr. Mehtab Akhtar (P. W. 1) performed post-mortem examination on the dead body of Hidayat Masih and found the following injuries vide Exh. P. Q :--
(1) Stitched wound J" in length in right side of abdomen 5" from umbilicus.
(2) Stitched would 5" in length on the right side of the abdomen 2" from the umbilicus (Produced by incision for operation).
On opening the body it was found that there were five through and through cuts and one muscle deep cut in small cut. There was another cut in cocum. All the cuts were stitched during operation.
Peritoneum was cut by injury No. 11. The cause of death was shock and haemorrhage as a result of injury to the small intestines and cocum caused by injury No. 1 which was sufficient to cause death in the ordinary course of* nature. Injury No. 1 was caused by some sharp-edged weapon and was antemortem. Probable time that elapsed between injury and death was about 36 to 40 hours and that between death and postmortem was about 13 hours.
6. On 27th June 1966, at 9-30 a.m. Dr. Ali Javed Hussain (P. W. 3) examined Manuel (son of Hassan Masih) accused (appellant) and found a lacerated wound l$'x Y skin deep on the left side of the head. The injury was simple in nature and was caused with blunt weapon.
7. The above evidence of the medical witnesses was transferred to the Sessions file under section 509 of the Criminal Procedure Code to prove that the death of Hidayat Masih and the injury to Nawab Masih were the result of violence which, however is not in dispute in this case.
8. The three appellants had denied all the allegations made against them and averring their innocence stated that they had been falsely implicated in this case on account of enmity. Manuel (son of Hassan Masih) explaining the injury found on his person had stated before the committing Magistrate that he was beaten by the deceased while at the trial he made the following statement to clarify it further:-- "I am employed in the Army as a Sweeper at Multan. I was on two months leave. On the day of the incident at about 12 noon, I was present in my brother's house whose name is Denial. There was an alarm and I ran to see what it was. Several persons had collected there and they were pulling each other. They were talking about some woman. In that confusion some body hit me with a stick."
They however, led no evidence in defence.
9. The prosecution had relied for its case on the statement Exh. PK/1 of Hidayat Masih (deceased) recorded by Akhtar Ali, Sub-Inspector immediately after the occurrence as his dying declaration, supported by the ocular testimony supplied by Nawab Masih (P. W. 11), Abdul Qayum (P. W. 13) and Muhammad Saeed (P. W. 14) and corroborated by the recovery of the bloodstained knife at the instance of Manual (son of Nathu) appellant, but the learned trial Judge did not accept their evidence about the alleged motive, the origin of the fight and the existence of any common intention between the three appellants for the assault on the deceased, but acting on the account of the occurrence supplied by them he came to the conclusion that it was not a concerted attack by the three appellants in furtherance of their common intention either Hidayat Masih deceased or Nawab Masih P. W. and each of them was responsible for their own acts, ln respect of Manual (son of Nathu) who gave the fatal knife blow in the abdomen of Hidayat Masih deceased he had held that he had no intention to murder him. He had, however, relied on the testimony of Abdul Qayum and Muhammad Saeed as independent witnesses of the occurrence and recovery of the blood- stained knife (P. 6). This finding has been assailed before us on the following grounds:--
(1) That having disbelieved the evidence of the three prosecution witnesses in respect of such important features of the case learned trial Judge should have discarded their entire evidence including the dying declaration, especially when Nawab Masih (P. W. 11) was admittedly a close relative of Hidayat Masih deceased and Abdul Qayum and Muhammad Saeed were chance witnesses imported from different locality to the exclusion of the witnesses from the vicinity of the crime ;
(2) that having found that in fact the deceased had a motive to attack Manuel (son of Nathu) appellant for his illicit relations with his niece Mst. Mukhtar, he should have given the benefit of doubt to the appellants about the right of private defence, especially when Manuel (son of Hassan) had an injury on his person which the prosecution had failed to explain;
(3) that the recovery of knife (P. 6) at the instance of Manual (son of Nathu) appellant was also not free from doubt.
10. After having gone through the record with care, we find that the statement of Hidayat Masih deceased Exh. P. K/l which was pressed in service as his dying declaration had no doubt come on record from the mouth of a person who was certainly not gifted with clear conscience and purity of mind as depicted by the learned trial Judge himself and before it could be acted upon it required close scrutiny like the testimony of any other interested witness to find out if it was corroborated from any independent source as held by their Lordships of the Supreme Court in Tawaib Khan and another v. The State {1) In the present case the learned trial Judge has regarded it as exaggerated and disbelieved it in respect of the motive adding that it was rather the deceased who had a motive to attack Manual (son of Nathu) appellant for his illicit relations with his cousin Mst. Mukhtar.
This observation of the learned Judge was based on the statement made by Nawab Masih P. W. at the trial that Hidayat Masih had been trying to dissuade Manual (son of Nathu) from carrying on this affair and even used to get annoyed over it, which rather betrayed feelings of acute jealousy; a rancour which he could never have shed at the time of making this statement before the Sub- Inspector. [7] Hidayat Masih had reached the police station his statement should have been recorded in the daily diary which was being admittedly maintained at Islamabad Police Station during those days and a copy of the same should have been sent to Golra Police Station for the formal registration of the case, but no such entry had been proved at the trial nor a copy of the same had been placed on record which would give rise to a legal presumption that no such entry was made in the daily diary.
It appears that on receipt of some information about this occurrence the Sub-Inspector reached the spot and after making a preliminary enquiry drew up Exh. PK/1 and sent it to Golra Police Station where it was received at 5-30 p.m. It had taken three hours to cover only eight miles and this delay in its despatch also points in the same direction. l2. As regards the evidence of Abdul Qayumand Muhammad Saeed P. Ws. we are inclined to agree with the learned counsel that they were not natural witnesses of the occurrence and had admittedly appeared on the scene just by chance and that their depositions bristled with inconsistencies, self-contradictions and material discrepancies which indicated that they were got up witnesses and had neither witnessed the occurrence nor the recovery of the knife (P. 6) at all.
Abdul Qayum P. W. stated that he and Muhammad Saeed P. W. were going towards the quarters of the Sweepers when they saw Nawab Masih and Hidayat Masih- coming from the side of those quarters while Muhammad Saeed (P. W. 14) had stated that he and Qayum were coming from the side of the Sweepers Colony when they saw Hidayat Masih and Nawab Masih coming out of the quarters which had changed the direction of their arrival at the spot from the opposite side.
About the appellants Abdul Qayum P. W. stated at the trial that they came from the side of the hut of the labourers while in his statement before the police (copy Exh. D. D.) he had deposed that he saw the accused coming out of the hut. Muhammad Saeed (P. W. 14) had also stated at the trial that he saw the -three appellants coming from the hut while in his statement under section 164, Cr.
P. C. (copy Exh. PR/1) he had got recorded that they came out of the hut. They had made no mention of the purposes of their going in that direction in their police statements and the pretext put forth by them at the trial was apparently false. Abdul Qayum P. W. stated that they were going to join the marriage of a friend named Saeed Painter of CDA but he could neither give the name of his father nor his caste and residence. Abdul Qayum P. W. did not mention this purpose even before the committing Magistrate, but Muhammad Saeed had belied him by saying that the marriage which he was to attend was that of the brother of Saeed Painter and not of his own adding that Saeed Painter was already married and had children. Abdul Qayum P. W. had stated that after the occurrence they went to the quarter where the marriage had to take place and returned again on being called on the arrival of the police at about 3-30 p.m. He had, however, stated before the committing Magistrate that he, Saeed P. W. and Taj Masih remained standing at the spot for ten minutes within which time the police arrived there. Muhammad Saeed gave altogether a different version about it by deposing that after the accused had run away he went to attend the marriage and did not know where Abdul Qayum P. W. had gone. He further stated in his cross-examination that when he returned from the house of Saeed Painter he (Qayum) was already present at the spot with the police. The excuse invented by these two witnesses for their presence at the place of the occurrence was apparently false and fabricated to strengthen their evidence.
13. They had also made a false statement about the recovery of knife (P. 6). According to Abdul Qayum P. W. the police left the spot for the police station after one or one and a half hours of their arrival taking the accused along with them and came back to the spot thereafter for the recovery of knife (P. 6) at about 6 p.m. and in the meanwhile he had gone to the Food Market from where he was again joined by the police on their way to the spot. Muhammad Saeed P. W. had however, stated that he and Qayum P. W. had gone to the police station along with the police and the appellants and then returned to the spot with the police at about 6 p.m. for the recovery of the knife at the instance of Manual (son of Nathu) appellant. He further added that Abdul Qayum P. W. remained with the police throughout, i. e., from the time of their arrival for the first time at the spot till the evening. He had thereby contradicted Abdul Qayum P. W. about it. The Sub-Inspector Mian Akhtar Ali had given a lie to both of them by deposing that he had reached the spot at 3-45 p.m. and remained there till about 9-30 or 10-00 p.m. during which period the accused were arrested and all the recoveries were made including that of knife (P.6) at the instance of Manual (son of Nathu appellant). He emphatically denied that he first took the accused (appellants) to the police station and then again brought Manual (son of Nathu) to the spot for the recovery. Abdul Qayum P.
W. had given the time of the recovery of the knife as 4 p.m. which was inconsistent with the time of recovery given by Muhammad Saeed P. W. and the Sub-Inspector. He had stated that Manual (son of Nathu) while in police custody produced knife (P. 6) from his house without mentioning that it was dug out from the courtyard of his quarter. All these contradictions and discrepancies in their statements had created grave doubts about the presence of Abdul Qayum and Muhammad Saeed P: Ws. at the spot at the time of the occurrence, and in this conclusion we are fortified by the admissions made by Nawab Masih (P. W. 11) before the committing Magistrate, where he had stated in unequivocal terms that Muhammad Saeed, Taj Masih and Abdul Qayum came to the spot after the occurrence. He, however, disowned this admission of Abdul Qayum and Muhammad Saeed P. Ws. at the spot at the time of the occurrence had also rendered the recovery of knife (P. 6) as extremely doubtful in view of the brazenface lies told by them about it at the trial.
14. Nawab (P. W. 11) had admitted that about 10 or 15 yards away from the place of the occurrence is a locality known as Abtr Para, where there is a Market, a school and residential houses. He had stated before the committing Magistrate that many persons from Abb Para might have witnessed the occurrence and that a number of persons residing near the hut witnessed it. It was strange that none of the residents of the locality had been ciled as a witness in this case which betrayed the endeavour of the prosecution to shut out the evidence of independent witnesses residing in the vicinity of the crime. Even none of the other residents of the Christian Colony had appeared as a witness in this case. Taj Masih was one of them who had been named in the first information report as an eye-witness, but even he was not put in the witness-box.
15. We are thus left with the testimony of Nawab Masih P. W. about tne occurrence itself and its perusal had revealed that it also suffered from the same infirmity. He had tried to attribute to Samuel appellant some overt acts with a view to show his active participation in the alleged assault on the deceased. He had even tried to put a knife in his hand, but he later corrected himself and added that it was Samuel appellant who came in front of the deceased and stopped his way when Manual (son of Nathu) gave a knife blow in his right flank. He had made no such assertion in his police statement (copy Exh. D. A.) or in his statement under section 164, Cr. P. C. (copy Exh. P. R/I) or before the committing Magistrate with which he was duly confronted at the trial, even the lalkara attributed to Samuel appellant that he would not spare them on that day was not found mentioned in his police statement Exh. D. A. or in Exh. P. R. his statement under section 164, Cr. P. C. or his statement before the committing Magistrate.
16. We have already pointed out the anxiety of Nawab Masih P. W. to import Abdul Qayum and Muhammad Saeed P. Ws. as eye-witnesses of the occurrence. He could not mention the name of Abdul Qayum P. W. as one of three eye-witnesses at the trial although he was given considerable time to recollect his name when he confessed that he did not remember the name of the third person, who came there. He had stated that these three persons (Muhammad Saeed, Abdul Qayum P. Ws. and Taj Masih) came when Hidayat Masih had run away and he was lying injured on the spot, but he turned round and stated that they saw the occurrence although he had stated before the committing Magistrate in very clear terms that they had come to the spot after the occurrence.
17. We have referred above to that part of the statement where in Nawab Masih P. W. had claimed that he remained lying at the spot in injured condition till the arrival of the police and that he was not taken to the police station from the spot but was directly despatched to the hospital which was empathically contradicted by Abdul Qayum P. W. and the Investigating Officer, Abdul Qayum P. W. had strongly refuted that Nawab was lying injured on the ground when the police arrived and was sent to the hospital by the police from the spot while the Sub- Inspector had stated that he had met him on his way to the spot near the police station where he recorded his statement under fsection 161, Cr. P.C. and then despatched him to the hospital pnder the escort of Foot Constable Muhammad Bunaras P. W. He had made no mention of the copper-shod stick in his hand at the time of this occurrence in any of his earlier statements which he had to concede at the trial as Manuel (son of Hassan) appellant was found to have an injury on his bead during the investigation of this case. He had likewise refused to acknowledge any relationship with Hidayat Masih deceased although the latter had stated in clear terms in his statement Exh. PK/1 that he was accompanied by his relative Nawab Masih at the time when he was intercepted near the hut by the appellants.
There was a set purpose behind this suppression so that he could be regarded as a disinterested and independent witness. Nawab Masih P. W. is thus found to have exaggerated the occurrence, suppressed his relationship with Hidayat Masih deceased and in spite of the fact that he had conceded the presence of copper-shod stick in his hand which he had suppressed in his earlier statement he did not explain the injury received by Manuel (son of Hassan Masih) appellant. It is apparently on account of this lacuna in the prosecution case that the learned trial Judge came to the conclusion that the circumstances in which the occurrence had started remained shrouded in doubts and that some mitigating circumstances were there in favour of the accused (appellants) meaning thereby that it could not be found how this occurrence had originated and who had set the ball rolling in the affair. The learned Judge had, however, given an indication by observing that it could be safely argued that in fact Hidayat Masih deceased had the motive to attack Manual accused (son of Nathu) who had illicit relations with his cousin, Mst. Mukhtar. Keeping in view this inference of the learned Judge and the presence of an injury on Manuel (son of Hassan) it could be urged that the complainant party were the aggressors and they were at pains to suppress their aggression.
Nawab P. W. had towed the same line about the motive of the appellants as adopted by Hidayat Masih deceased in bis statement Exh. PK/I, the alleged dying declaration which (motive) the learned trial Judge had disbelieved. It is true that it is not necessary for the prosecution to prove any motive in such cases nevertheless where a motive is attributed to the accused and it is found to be absent or untrue it is held that the Courts should have been very much on their guard to accept the story of the prosecution of which the motive was an important constituent and which depended for its acceptance on the statement of a single witness who supported that story including the motive as observed by their Lordships of the Supreme Court in Habibullah and others v. The State (1).
It will not be out of place to reproduce here the overall assessment of the prosecution case by the learned trial Judge in tha concluding paragraph of his Judgment, which is as under:-- "As already stated by me there might not be truth about the motive for the attack. It can be argued that the motive was for the deceased to attack Manual accused son of Nathu, j who had illicit relations with the cousin of the'deceased, but thcM absence of motive or the fact of motive being different cannot J destroy the whole prosecution case. It may be that something^ happened when the attack was made and which the two^ independent witnesses did not see. There may be some ^ mitigating circumstances, but the act of the accused is not protected by any general or special exceptions of the Pakistan Penal Code. The law provides that whoever pleads any exception for doing an act which, but for that exception, would be unlawful, is bound to bring on record such material as would raise a reasonable doubt in the mind of the Court that the accused acted in good faith by exercising the right provided in that exception."
He had finally concluded with the remark that the circumstances in which the occurrence started had not been brought to light without some sort of doubt, it has clearly demonstrated that the prosecution had wilfully suppressed the ' mitigating circumstances which had provoked this attack on Hidayat Masih deceased then the appellants were not bound to plead any protection afforded under the law for their act, especially when it was clear that the deceased had a motive to attack Manual (son of Njtthu) appellant coupled with the presence of injury on the head of the other appellant as an indication of aggression. After having arrived on these findings the learned Judge could not have convicted any of the appellants for any offence whatsoever and Radhe Sahi and others v. King-Emperor (1) is an authority on thp point wherein that it was laid down as under:-- "In the absence of prosecution presenting a true account how that person was killed it is not necessary for the accused to that plead private defence and show that they had not exceeded right." % The same view was expressed in a lijtcr judgment of the same High Court in Anant Singh v. Hari Charan (2). In this case the trial Magistrate had come to the conclusion that the accused had no doubt assaulted the complainant but was quite satislied that the circumstances under which the assault had taken place had not been truly laid before him and giving the benefit of doubt had acquitted him. On a petition under section 439, Cr. P. C. it was held that in these circumstances the acquittal of the accused was quite proper.
18. In a similar case Re: Qazi Abdul Jaleel V. The State (3) where the whole case was found encircled with doubts from the very outset their Lordships of the Supreme Court observed that the least that might have been expected is that the: Court would take into account that aspect of the matter which was favourable to the defence.
19. In the present case not only the motive was found! false and the origin of the fight, indeed- the aggression of the/1 complainant itself, had been suppressed, but the two alleged, eye-witnesses of the occurrence had been clearly demonstrated as imported from a different locality to the exclusion of the witnesses from the vicinity of the crime. The recovery of the crime weapon knife (P. 6) was also not free from grave doubts, even the sanctity of the alleged dying declaration Exh. PK/1 had been tarnished as the same motive and the same persons Abdul Qayum and Muhammad Saeed had been mentioned therein as eye-witnesses of the occurrence. There was thus no evidence of such quality from which a legitimate inference of guilt of any of the appellants could properly be drawn as observed by their Lordships of the Supreme Court in Sultan Khan v. Ahmad and others (1). We have therefore, no option but to give the benefit of doubt to the appellants and accepting the appeal set aside their conviction and sentences with a direction that the three appellants shall be set at liberty forthwith, if not wanted in any other case. .
(1) 1969 P Cr. L J 55