Appellants Muhammad Ashiq aged 20 years, his brother Abdul Aziz alias Abdul, sons of Karam Elahi, resident of Sargodha City, were tried by the Additional Sessions Judge, Sargodha, on a charge under section 302/34, P.P.C. For the murder of Muhammad Yaqoob son of Gulab Khan, also a resident of Sargodha; vide judgment, dated 7-10-1976, they- have been convicted and sentenced to ten years' R.I. And a fine of Rs.500 each or in default, further rigorous imprisonment for one year, under section 304, Part I, P.P.C. The amount of fine, if realized, was to be paid to the heirs of the deceased as compensation.
2. They have appealed.
3. The occurrence allegedly took place at 6-00 p.m. On 16-1-1971 on the back of octroi post No. 1 on Khushab Road. Statement Exh. P.E. Of Muhammad Saleem P.W. 8 was recorded in Civil Hospital, Sargodha at 7-30 p.m. The same evening by Faiz Muhammad A.S.I. (P.W. 10); this formed the basis of formal F.I.R. Exh. P.E./1 recorded by S.I. Muhammad Afzal P.W. 2 at 7-45 p.m.
4. Facts of the prosecution case can briefly be noticed thus: The deceased Muhammad Yaqoob during the days of occurrence was working in the Tea Stall of Bashir Ahmad P.W. On daily wages. On the fateful evening the deceased and his brother Muhammad Saleem P.W. Were present in the hotel, when Abdul Aziz appellant came there and demanded back woollen Chaddar which he had earlier pawned with Bashir Ahmad P.W. He was prepared to pay back the amount. The deceased told the appellant that owner of the hotel was not present and that he could get back the Chaddar on his (owner's) return. Appellant Abdul Aziz left the hotel abusing the deceased and leaving a threat that he (the deceased) would be taught a lesson for not returning his Chaddar. At 6-00 p.m. The deceased was passing through the field on the back of the octroi post No. I while going to his house in Block No. "8, when he was surprised by the two appellants. Muhammad Saleem complainant was following the deceased at a distance of about 5/6 Karams. Appellant Abdul Aziz had a Chhuri while Muhammad Ashiq appellant was armed with a knife. Abdul Aziz began to abuse the deceased and stopped him saying that he (the deceased) would be taught a lesson for not returning his Chaddar. Simultaneously with this he gave the deceased Chhuri blows on the chest and face. Appellant Muhammad Ashiq gave blows in the abdomen and on the hands. The deceased fell down and became unconscious. The assailants threatened Muhammad Saleem P. W. Not to come near or he would be dealt in the same way. Deceased had a razor with him. He also, in his defence, gave injuries to appellant Abdul Aziz. The alarm raised by the deceased and Muhammad Saleem P.W. Attracted inter alia, Bashir Ahmad P.W. To the spot. On seeing them the appellants left for their houses. Complainant Muhammad Saleem with the help of others, took the deceased to the hospital where as noticed above, ht-, statement was recorded by Faiz Muhammad A.S.I. Who had reached there on receiving a Ruqqa from the Doctor- Faiz Muhammad A.S.I. After recording the statement of Muhammad Saleem P.W. Sent the same to the Police Station for registration of the case. Deceased Muhammad Yaqoob had expired by then. He held inquest into his death, drew up a report Exh. P.J. And injury statement Exh. P.H. He learnt that appellant Abdul Aziz had also been admitted in the hospital. He also prepared his injury statement Exh. P.K. And got him medically examined. He was put under arrest. He then went to the spot. He inspected the spot on the following morning i.e. He did not find any blood on the spot. He arrested appellant Muhammad Ashiq on the same day. He was also found injured. The A.S,I. Prepared his injury statement Exh. P.K. As well and got him medically examined. Blood-stained Shirt P.6, Salooka P. 7 and Shalwar P. 8, were got removed from the person of Muhammad Ashiq appellant and taken into possession and made into a sealed parcel vide memo. Exh. P.M. Appellant Muhammad Ashiq, on the same day, led to the recovery of blood- stained knife P. 9 from inside his residential Kotha in Block No. 16. Knife was found lying underneath a pillow of a cot. The same was taken into possession and made into a sealed parcel vide memo.
Exh. P.N. He got site plan Exh. P.A. And its duplicate Exh. P.A./1 prepared from Shah Din Draftsman.
6. Dr. Ghulam Ahmad P.W. 1 conducted post-mortem examination on the dead body of the deceased on 17-1-1971 at 10-00 a.m. He found the following injuries on his person:- (1)Incised wound 1 -- " x -- " x skin deep from above downwards, just in front of left ear.
(2)Incised wound -- " x 1/3" x skin deep from above downwards, just lateral to outer angle of left eye.
(3)A stabbed wound -- " x -- " on the front of right chest in fourth intercostal space, wound had pierced the chest wall and right lung through and through.
(4)A stabbed wound -- " x -- " on the left side of chest in lateral part of front of left second intercostal space pierced the chest wall and pierced the left lung upto half of its thickness.
(5)A stabbed wound -- " x -- " on the front of right upper abdomen 2" away from midline. The wound had pierced the abdominal wall, pierced the ascending colon through and through and also injured the mesentery. The wound was from above downwards.
(6)Incised wound -- " x -- " x skin deep on the palmer surface of upper part of left hand from above downwards.
(7)Incised wound -- " x -- " x skin deep on the back of lower part of left forearm.
(8)An abrasion -- " x -- " on the back of upper part of left forearm.
(9)A stabbed wound -- " x -- " x --" on the back of upper part of left forearm.
(10)A stabbed wound -- " x -- " x 2" on the lower part of left buttock.
Both pleural cavities contained blood. The peritoneum was cut under injury No. 5. Large intestine was injured under injury No. 5 Death in the opinion of the doctor, occurred due to shock and haemorrhage caused by injury Nos. 3, 4, and 5 to both lungs and intestines. These injuries were sufficient to cause death in the ordinary course of nature. Injury No. 8 was caused with blunt weapon while the rest with sharp---edged weapon. Time between injuries and death was about one hour and between death and post-mortem was 15 hours.
He examined Abdul Aziz appellant also on 16-1-1971. He was found to have suffered the following injures:- (1)Incised wound 4 -- " x -- " x bone deep starting 1" away from middle of chin and going along the border of left mandible and backward.
(2)Incised wound 1 -- " x--" x muscle deep on the front of right shoulder.
(3)Incised wound -- " x --" x skin deep on the postero-m9dial aspect of middle or right forearm; (4)Incised wound 4" x -- " x muscle deep on the front of right chest transverse in direction starting 1 -- " below the right nipple and going medially.
(5)Incised wound 3" x -- " x bone deep or, the front of left chest transverse in direction at the level of injury No. 4.
(6)Incised wound 1 -- " x -- " x bone deep on the front right chest, transverse in direction 1 --" below injury No. 4.
(7)Incised wound 2" x --" x bone deep on the front of lateral part of left chest 2" above the lower dorsum costal margin.
(8)Incised wound 2" x --" x skin deep on the right groin.
The shirt and Shalwar were cut under the injuries. Injuries Nos. 1, 2, 3 and 8 were simple in nature.
Injuries Nos. 4, 5, 6 and 7 were kept under observation and found simple subsequently. All the injuries were caused with a sharp-edged weapon within the duration of three hours.
Muhammad Ashiq appellant was found to have sustained the following injuries:- (1)Incised wound --" x -- " x skin deep on the dorsum of medial part of left hand in upper part.
(2)A linear curved abrasion on the left side of forehead 4" in length.
(3)A cut -- " x 1/6 " x quite superficial on the middle of left costal margin.
All the injuries were simple caused with a sharp-edged weapon within the duration of 20 hours.
7. Appellants at the trial admitted that they are brothers inter se. They pleaded not guilty.
Muhammad Ashiq appellant gave his own version of the occurrence stating:- "In fact Muhammad Yaqoob deceased came to our 'house and attacked and injured my brother Abdul Aziz accused with a razor. I asked him to desist but he caused injures to me also. I picked up a Chhuri from my house and caused injuries to the deceased in self-defence and in order to save my brother. I was thus injured by the deceased before I injured him."
He admitted that blood-stained clothes were got removed from his person.
Abdul Aziz appellant admitted that the deceased was an employee of Bashir Ahmad P.W. He added that he (Bashir Ahmad) was his close relation. He denied if he had pawned woollen Chaddar P. 5 with Bashir Ahmad P.W. And stated that Muhammad Yaqoob deceased had borrowed it from his brother Muhammad Ashiq appellant. He denied if he had gone to the hotel of Bashir Ahmad P.W. Asking for the return of Chaddar P. 5 on payment of Rs.40 as a pawn money and that the deceased refused to return the same. He stated that he asked the deceased to return the Chaddar which he had borrowed from his brother Muhammad Ashiq appellant. The deceased refused at which he (appellant) abused and slapped him. The deceased had threatened him to take revenge of this insult. According to him the main occurrence had taken place thus.
"In fact the deceased came to our house, while he was armed with razor and attacked me. He caused serious injuries to me on various parts of my body. My brother Ashiq accused tried to save me but the deceased injured him also with razor. Thereupon, Ashiq accused picked up a Chhuri from our house and caused injuries to the deceased in order to save me and himself from the hands of the deceased. I thus went to the police station and reported the occurrence to A.S.I. Faiz Muhammad, but he did not record my report and later on when Yaqoob died in the hospital, the A.S.I. Recorded the report of the complainant and falsely involved me and my brother Ashiq accused by twisting the actual facts."
8. Prosecution at the trial relied on the ocular evidence given by Muhammad Saleem P.W. 8 and Bashir Ahmad P.W. 9; the motive; the recoveries and finally the medical evidence.
9. The learned trial Judge formulated the questions which according to him, required determination as to whether the accused were attacked in front of their house, or that the deceased was attacked while he was passing on a thoroughfare on the way to his house or that it was a case of free fight." He found that:- "The defence has not refuted the proposition that the deceased did not return the Chaddar on the request of the accused. The exchange of abuses must have aggravated the situation, and infuriated them. The abuses to the deceased must have boiled his blood. In this background a fight soon thereafter, would necessarily lead to conclusion, that it was a case of mutual fight. Normally in such cases, both the parties do not come to the Court with a complete version, and try to minimise their parts. In PLD 1962 SC 302 in a similar situation, it was held that the Court is not to be deterred by the incompleteness of the conflicting versions, and that the Court is to come to its own conclusion about the genesis of the fight. It looks that in the present case, the accused and the deceased got annoyed with each other. The deceased passed from near the house of the accused armed with a razor fully concious of an armed encounter, for going to his house. He has another route and by adopting it, he could have avoided the risk of passing from near the house of the accused. He passed this way to measure his strength. The accused who had challenged the deceased at his hotel on seeing the deceased attacked him alongwith his brother while armed with Chhuri and knife respectively. This is a case in which a legitimate conclusion can be drawn both the parties armed themselves in full expectation of an armed conflict and each party was determined to have a trial of strength. In these circumstances, both the parties were prepared to fight and very trivial incident was sufficient to bring them into conflict. Hence in this case there was no question of right of private defence, and contention of defence on this point is without substance. ---
10. I have heard the learned counsel for the parties and have gone through the record of the case carefully with their help.
11. The duty of a Court in case of this kind is to review the entire evidence and circumstances at the close, before arriving at a conclusion regarding the truth or falsity of the defence plea. All these factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence, and the total effect should be estimated in relation to two questions, viz.-- (1)Is the explanation of the accused satisfactorily established by the evidence and circumstances appearing in the case?
(2)If the answer to question (1) be in the negative, is there yet a reasonable possibility that his explanation might be true, so as to cast reasonable doubt upon the prosecution case.
The case when examined in the light of the above proposition admits of only one answer that the plea of defence is reasonably plausible. Even the learned trial Judge in his conclusion has observed that the deceased had chosen to pass near the house of the appellants armed with a razor fully conscious of an armed encounter. He had another route and by adopting it, he could have avoided the risk of passing from near the house of the appellants. He had passed by that way to measure his strength. If once it is accepted that the deceased had gone to the house of the appellants armed with a razor, it would necessarily give support to the defence version. There are number of circumstances which tend to show that the appellants, in all probability, acted in the defence of their persons to ward of the attack. Appellant Muhammad Ashiq had sustained two incised wounds and an abrasion on the forehead. Appellant Abdul Aziz had eight incised wounds including inter alia, an incised wound 4 -- " x -- " x bone deep starting 1" away from middle of chin and going along the border of left mandible; an incised wound 4" x -- " x muscle deep on the front of right chest transverse in direction starting 1 -- " below the right nipple; an incised wound 3" x -- " x bone deep on the front of left chest transverse in direction; an incised wound 1 -- x -- " x bone deep on the front of right chest and another wound 2" x -- " on the front of lateral part of left chest. He had only miraculously escaped his death. The position taken up by appellant Abdul Aziz that he had gone to the Police Station to report the matter but the A.S.I. Faiz Muhammad did not register the case at his instance and concocted the whole version has basis. According to Faiz Muhammad A.S.I. When he went to the hospital, he learned that appellant Abdul Aziz had already been admitted in the hospital. However, reference to Exh.P.D., the medico-legal report of appellant Abdul Aziz, would show that he was brought to the hospital by Ghulam Muhammad F.C. The Investigating Officer tried to conceal the actual place of occurrence. He came out with the explanation that he did not take the blood-stained earth into possession as no blood was dropped on the ground because whole blood had fallen on, the clothes of the deceased". Three persons had sustained as many as 21 injuries, yet, as foolishly claimed by the Investigating Officer, the entire blood had, fallen on the clothes of the deceased.
It has been stated by Muhammad Saleem P.W. In the F.I.R. That his brother Muhammad Yaqoob deceased had razor with him and in the defence of his person he had also caused injuries to the appellant Abdul Aziz. ,Injuries on the person of Muhammad Ashiq appellant, have, altogether, been suppressed. Razor is not the type of weapon which a person would normally carry with him. No explanation whatsoever has been given as to why the deceased was carrying razor on him. This would show that the deceased had pre-determined notions to attack the appellants. There is nothing wrong in the explanation given by the appellants that in the process appellant Muhammad Ashiq pick up a dagger and injured the deceased.
Under section 100, P.P.C. The right of private defence of the body extends, under the restriction mentioned in section 99, P.P.C. To the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions inter alia, that such an assault as may reasonably cause the apprehension that death or grievous hurt otherwise will be the consequence of such assault. The appellant having been attacked by the deceased when he was armed with a razor and having in fact caused as many as eight injuries to appellant Abdul Aziz and three injuries to appellant Muhammad Ashiq, could reasonably apprehend such a result at the hands of the deceased. There is nothing on the record to show that the deceased was even caused injuries after he had been rendered incapacitated at any point of time. No case, therefore, for exceeding this right even is made out.
12. For all that has been stated above, I accept this appeal, set aside the conviction and sentences of the appellants and acquit them. They shall be released forthwith if not required in any other case.