This is a revision against acquittal, tiled by Muhammad Aslam complainant against Muhammad, Dosa, Ali and Ghulain Ali, respondents. The four respondents were tried by the learned Additional Sessions Judge, Sargodha, for offences under section 302/323/34, P. P. C., for the murder of Muhammad Azam and for causing simple injuries to Muhammad Hayat P. W.
10. The learned trial Judge, however, acquitted them of the said offences vide his judgment dated 12-6-1971.
2. The facts of the prosecution case briefly are that a day prior to the occurrence the dog of Muhammad respondent fought with the dog of Muhammad Azam deceased, During the course of the fight, the deceased helped his dog, as a result of which his dog was able to overpower the dog of Muhammad, respondent. This resulted in a fight between the owners of the two dogs, who grappled with each other. Muhammad Azam deceased gave list blows to Muhammad respondeat and also abused him. The latter left the place threatening that he would take his revenge. On the next day when Muhammad Azam deceased was going to the dera of Machhralianwala, all the four respondents attacked him. At that time Muhammad Azam deceased was accompanied by Muhammad Hayat P. W. while Muhammad Aslam P. \V. 9, was following them at a short distance.
Muhammad, respondent, was armed with a spear while the remaining three respondents, were armed with dangs. Muhammad raised a lalkara whereafter Dosa respondent opened the attack by giving a sota blow to the deceased, who warded it off by raising his own lathi. Ali and Ghulain Ali, respondents, then followed by giving dang blows to the deceased but the latter also succeeded in warding off the blows with the help of his lathi. Muhammad Azam, deceased also gave dang blows to Ali and Ghulain Ali, respondents in self-defence. Muhammad, respondent, then gave a spear blow under the left armpit of the deceased as a result of which the latter fell down. Muhammad Hayat P. W. who was accompanying the deceased tried to intervene but was also beaten by the respondents. However he too succeeded in inflicting some blows with a lathi to Dosa and Ali, respondents, in self-defence. The occurrence was also witnessed by Muhammad Aslam P. W. 9, Muhammad Hayat P.W.10, and Muhammad Ashraf P. W.
11. A report was lodged with the police about this incident by [VOL. V Muhammad Aslam P. W. Two persons on the side of the complainant and three persons on the side of the respondents had been injured during the incident. It will be useful to reproduce here the injuries found on them.
3. The following injuries were found on Muhammad Azam, deceased, during the post-mortem examination:--
(1) A stab wound If"x"x going into the left side of the chest between 4th and 5th space cutting edges of both the ribs when opened left lung was punctured through and through left side of the chest cavity was full of blood.
(2) Swelling right leg on its front side 4" x 2". Stomach was full of semi-digested and digested food.
Bladder was empty and healthy. Both the intestines were healthy and large intestine was full of faeces.
Muhammad Hayat P. W. 10 was found to have sustained only one injury, which is described as follows :-- A small contusion i" x bluish in colour on the right side of upper part of occipital region of back of head.
On the side of the respondents, Dosa was found to have sustained the following injuries:--
(1) A contusion on the right side of neck 3" x 1".
(2) A contusion on the right cheek $" x J".
(3) An abrasion 8'x 1/8" on the back of left forearm.
(4) A contusion 2" x 1" on left shoulder.
(5) An abrasion x " on left knee.
(6) A contusion 2" x 1" on right hip.
(7) An abrasion 1" on the left lateral chest.
(8) A contusion 2" x 1" on the left hip.
Ghulain Ali respondent was found to have sustained the following four injuries on his person :--
(1) A lacerated wound l'x 1/5" on left temple with sorround- ing swelling.
(2) A contusion 4" x 1' on the back of the right side.
(3) A contusion 4'x 1" on the back of right shoulder.
(4) A contusion 1" x 1" on the right thumb.
(5) Ali respondent was found to have sustained the following three injuries on his person:--
(1) A contusion with marked swelling on lower half of right upper arm, with communited fracture of humerus bone. There was a penetrating elliptical wound in this swelling on the latteral aspect about one centimeter in size and about 1" centimeter deep.
(2) A contusion with swelling 4" x 3" over the upper part of the back of right shoulder.
(3) A contusion 2' x 2" in the inter scapular region.
Of the injuries on Ali respondent, injury No. 1 was found to be grievous.
4. Dosa, Ali and Ghulam Ali respondents admitted the occurrence but gave a counter-version, Muhammad respondent, however, pleaded alibi, but did not produce any evidence. The defence version was also put to Muhammad Aslam P. W. during the cross-examination, with some addition.
Briefly stated the version suggested was that in fact the dog of Dosa respondent (and not that of Muhammad respondent), had fought with the dog of Muhammad Azam deceased which had resulted in a fight between the owners of the dogs and this gave rise to the motive and further that on the day of the occurrence, it was Muhammad Azam deceased who along with four other persons including, Muhammad Hayat P. W. had attacked Dosa respondent due to the grievance resulting from the dogs' fight, that Muhammad Azam deceased was armed with a spear while the other four persons were armed with dangs. That on seeing Dosa respondent being beaten his father Ali respondent, and his brother-in-law Ghulam Ali respondent, who were present at the dera nearby, rushed to the spot to help him, but they were also assaulted by Muhammad Azam deceased and his companions, and that Ghulam Ali respondent gave a churri blow to the deceased in order to save his brother-in-law Dosa respondent.
5. The learned trial Judge appreciated the evidence on the record and placing the two versions also by side, considered as to which one of them was the correct, one. He came to the conclusion that there was a reasonable possibility of the defence version being correct. The main reason for his coming to this conclusion was that although, according to the prosecution version, three out of the four respondents, (namely, Dosa, Ali and Ghulam Ali respondents who were armed with dangs had attacked Muhammad Azam deceased and Muhammad Hayat P. W. yet they had succeeded in giving them only one injury each. As against these two injuries given to them, the deceased and Muhammad Hayat P. W. inflicted eight injuries to Dosa respondent, four injuries to Ghulam Ali respondent and three injuries to Ali respondent i. e., a total of 15 injuries, one of which, that is, injury No.l on Ali respondent, was grievous in nature. Yet, strangely enough, Muhammad Aslam P. W. 9 who was admittedly an eye-witness did not make any mention of these injuries in the F. I. R. lodged by him. The learned trial Court took serious notice of this omission and attached great weight to this conduct on the part of the complainant and concluded from this deliberate suppression that the complainant party was in fact the aggressor and he did not accept the explanation subsequently given by the P. Ws. about the injuries found on the person of the respondents caused by the deceased and Muhammad Hayat P. W. in self-defence.
6. In support of his revision against the acquittal of the respondents, the learned counsel for the petitioner contended, firstly, that Muhammad respondent had pleaded alibi but did not lead any evidence; that according to section 105 of the Evidence Act, the onus was on him to prove the plea of alibi and that since he failed to do so he should not have been given the benefit of the right of private defence along with the other respondents, who had pleaded it specifically. He referred to Government of Bombay v. Sukur (1) and Emperor v. Muzaffar Hussain (2) to argue that by virtue of the provisions of section 105 of the Evidence Act, the accused persons are as much under a duty to prove the plea of defence taken by them as the prosecution, which is required to prove its case beyond reasonable doubt. He urged that the quantum of proof required in both the cases is the same. He urged further that since Muhammad respondent did not produce .any witness in support of his plea of alibi, an advance presumption should be raised against him under section 114, illustration (g) of the Evidence Act.
7. I am afraid I cannot bring myself to agree with the learned counsel. The provisions of section 105 of the Evidence Act have been considered by the Federal Court of Pakistan in the famous case of Safdar Alt v. The Crown (3) and it is now almost axionatic that the burden of proof on the accused is much lighter as compared to that on the prosecution and that he is not required to prove his case to the hilt but is only required to show, from the material on the record, including the prosecution evidence, that there is a reasonable possibility of the defence version being correct.
Apart from this an accused person is not pinned down or fixed to a particular plea taken by him at one stage and if plea of self-defence or grave and sudden provocation etc. can be spelt out from the material available on the record, he can avail of the same and take the relevant plea at a later stage even though he had not taken it earlier. No adverse presumption can, therefore, be raised against Muhammad respondent for not having produced witnesses in support of his plea.
8. The leamed counsel for the petitioner also laid emphasis on the fact that the respondents had changed 1he defence version and the version put forward by them at the trial is somewhat different from the one given by them before the committing Magistrate; that the learned trial Court hasnot made any mention of this fact that it is, therefore, apparent that he omitted to consider this aspect of the case. I am afraid I am not persuaded to agree with this submission. As already observed the accused persons cannot be pinned down to any particular version and can take different plea at a subsequent stage. If the same can be supported by the evidence on the record.
The mere fact that the learned trial Judge has not mentioned the exact plea taken by the respondents before the committing Magistrate does not necessarily mean that he was obvious of the fact, that Muhammad respondent for in fact taken a differed plea earlier. He has only considered it enough to determine whether the plea taken by the respondents ultimately before him, in their statements under section 342, Cr. P. C. on the one suggested to Muhammad Aslam P.
W. may reasonably be true with regard to all the four respondents including Muhammad respondent.
(1) AIR 1947 Bom. 38 (2) AIR 1944 Lah. 97
(3) PLD 1953 FC 93
9. The learned counsel contended next that the judgment of the learned trial Judge was based upon wrong assumption of facts. In this contention he referred to a portion in paragraph No. 20 of the judgment wherein the trial Judge has observed that in his opinion the omission on the part of the complainant, as also the "prosecution", to mention or account for the injuries on the person of three of the respondent was very serious and showed that the complainant party was the aggressor. The learned counsel pointed out that it was only the complainant who had suppressed the injuries of the respondents by failing to mention them in the F. I. R. and not the "prosecution", because these injuries were mentioned by the Investigating Officer in the report submitted by him under section 173, Cr. P. C.
I think the learned counsel has attached undue importance on the word "prosecution" used by the learned trial Judge. Even if it be said that the investigating officer had not suppressed the injuries and had mentioned the same in his report under section 173, Cr. P. C. the fact remains that in the very first account of the incident given by the complainant he had completely omitted to mention the part played by the deceased and Muhammad Hayat P. W. and the numerous injuries suffered during the incident by three of the respondents. It is only after the result of the medical examination had been received that the version was modified and the Investigating Officer could not, therefore, help mentioning the injuries in the final report.
I think the above-noted omission in the F. I. R. is a very serious one and any belated attempt by the P. Ws. to explain, away the injuries suffered by the respondents are of no avail, as it can be said to be merely an after thought or an attempt to bring their statements in conformity with the medical evidence.
10. The learned counsel for the petitioner contended next that the respondents had exceeded the right of self-defence in causing a blow with a sharp-edged weapon when the deceased and his companions were armed only with dangs.
Even if it be assumed that the deceased and his companions were not armed with any spear or knife, as alleged by the respondents in the defence version, it cannot be argued that they i. e. the respondents had exceeded in the right of self-defence. It is well known that a dang can be a dangerous and formidable weapon of offence and a dang blow given with force can shatter one's skull into pieces. The number and nature of injuries inflicted on Dosa as well as Ghulain Ali and Ali respondents would show that......... respondents could reasonably apprehend a danger of death or at least of grievous hurt, at the hands of the P. Ws. Injury Nos. 1 and 2 on the person of Dosa respondent were clearly aimed on his head, so was injury No. 1 on the person of Ghulam Ali respondent. Injury No. 1 on the person of Ali respondent actually resulted in the fracture of bone of his right arm. They were, therefore, entitled even to cause death in defending their persons.
11. Having gone through the judgment as well as certain portions of the statements of the witnesses, I am of the view that the learned trial Judge has carefully considered the evidence and has properly appreciated the evidence. The conclusion reached by him cannot by any means be called perverse. The mere fact that another Court could reach a different conclusion is no ground for upsetting the judgment in question and ordering the retrial of the respondents. 1, therefore, reject the application.
Revision not allowed.