' This revision application is directed against the judgment and order of acquittal of the respondents in case of double murders of Abdul Jabbar and Abdul Ghafoor and attempted murders of Abdur Rchman and Abdul Qayyum residents of Mohallah Jogian, Dcra Ismail Khan City.
2. The occurrence in this case took place on 12-9-1984 at `Digar Qazawela' near Choudhry Ice Factory on D.I. Khan, Bannu Road at a distance of 4/5 furlongs from Police Station City, D.I. Khan. The occurrence was reported the same evening at 7-00 p.m. Through statement (Exh.P.A./1) made by Abdur Rehman (P.W.8) aged about 19/20 years in injured condition in the D.H.Q. Hospital, D.I. Khan, which was taken down by Faizullah Khan, A.S.I. (P.W.14). Formal F.I.R. (Exh.PA.) was recorded by Allah Bakhsh, A.S.I. (P.W.3), at Police Station City D.I. Khan at 7-45 p.m.
3. Motive, is alleged to be an earlier altercation between the accused and the complainant party over carrying the passengers in tongas in that the parties are tonga-drivers.
4. The facts disclosed in the statement Exh.PA./1 of Abdur Rchman (P.W.8) are that on 12-9-1984 at `Digar Qazawela' he alongwith his uncles Abdul Jabbar and Abdul Ghaffar and his cousin Abdul Qayyum (P.W.8) son of Abdul Jabbar were proceeding from Topanwala Bazar towards their house in their own tonga. When they reached near Choudry Ice Factory they were confronted by Fida Hussain and Altaf Hussain sons of Sultan Ahmad Shah residents of Chah Nai Wala, D.1. Khan City armed with Chhuris in their brother Mushtaq Hussain with a `Kirch'. They stopped the complainant's tonga and launched a concerted attack with their respective weapons. Resultantly Abdur Rehman (P.W.8) was injured on his head his uncles and Abdul Qayum (P.W.9) sustained injuries on their person. The occurrence was stated to have been witnessed by the shopkeepers of the adjoining shops and other pedestrians. The accused after the occurrence decamped from the spot.
5. Faizullah Khan, A.S.I. (P.W.14) then attacked to Police City D.1. Khan, on receipt of a telephonic message that some injured persons have reported in the hospital, rushed to D.H.Q. Hospital. After taking down the report Exh.PA./1 at the behest of Abdur Rehman (P.W.8). Faizullah Khan (P.W.14) prepared the injury sheets Exh.P.E. And Exh.P.C. Of the Abdur Rehman and Abdul Qayyum (P.Ws. 8 and 9). He further prepared the injury sheets and inquest reports Exh.P.D., Exh.P.D./1 and Ex.P.E. And Exh.P.E./1 of the two deceased, namely Abdul Jabbar and Abdul Ghaffar. He arrested Mushtaq Hussain and Altaf Hussain accused who were also lying injured in the same hospital. He reached the spot before the arrival of Hakeem Khan (P.W.10) S.H.O. Police Station City D.I. Khan. He conducted the spot inspection and secured blood through wet cotton P.1 a blood-stained piece of brick, P.2, a piece of shingle P.3 and sealed them into parcel. He also took into possession a `Danda'
P.4 and two sticks P.5 bloodstained, a pair of Chappal P.6 vide memo. Exh.P.F. He also secured into parcel some clothes of the two deceased. A tonga and a mare were also taken into possession.
Lastly he prepared the site plan Exh.P.I. He arrested accused Fida Hussain Shah on 11-11-1984 and challaned the accused to the Court. He had also registered the same evening a cross-case vide F.I.R. Copy Exh.P.W.10/1 which had been partly investigated by Hakcem Khan (P.W.10) in which he had prepared the site plan copy Exh.P.W.10/2.
6. Dr. Muhammad Ali Khan (P.W.12) examined the two deceased and P.Ws. Abdur Rehman and Abdul Qayum.
7. Deceased Abdul Jabbar had the following injuries on his person:-
(1) An incised wound on the left arm upper 1/3rd lateral aspect, size, 1" x 1/2" x 2" deep.
(2) An incised wound on left posterior chest 1" lateral to mid-line, cavity deep, size 1" x 1/2' between 10th and 11th intercostal space (as this incised wound was stab wound).
(3) Three incised wounds on the occipital varying from size 1" length 2" length x 1/2" width scalp deep each.
8. His death had occurred due to injury to left lung and main blood vessels resulting in excessive bleeding and shock.
9. Abdul Ghafar deceased had the following injuries on his person:-
(1) A stitched wound on the left side of chest anterior axillary line between 7th and 8th intercostal space 1-1/2" in length.
(2) A stitched wound on the right side of anterior chest 1-1/2" medial to the nipple 1-1/2" in length.
(3) An incised wound on the right side of the abdomen 4" lateral to the umblicus 1-1/2" x 1/2" cavity deep.
(4) An incised wound on right shoulder, 2" x 1/2" x 2 c.m. Deep.
(5) An incised wound on left posterior chest scapula region 2" from the posterior auxiliary line 1" x 1/2" x 1" deep.
10. His death was also due to injuries to vital organs, excessive bleeding and shock.
11. Abdur Rehman (P.W.8) had the following injuries:--
(1) Lacerated wound 2" long scalp deep on right parietal region.
(2) Lacerated wound 1/4" in length scalp deep on the top of the skull.
12. Similarly the following injuries were found on the person of Abdul Qayum (P.W.9).
(1) One incised wound on the neck front left side in an oblique direction about 1" x 1/2" going deep and air is coming out from the wound with surgical emphsema around.
(2) One incised wound on the left side of chest about 3" below wound No,1 in a direction skin deep is 1" x 1/2"
(3) One stab wound on the left chest below the nipple half inch x 1/4".
(4) One incised wound, on the left ear cutting the lobule and pinny of the left ear about half inch x 1/4".
(5) One incised wound on the anterior aspect of left forearm 3" below the elbow joint in a verticle direction about 4" x 2" skin deep.
(6) One incised wound on the inner aspect of the left thigh (in the middle) in a verticle direction about 1-1/2" x 1/2" x 1".
13. The same doctor had also examined Altaf Hussain accused in injured condition and found on his person the following injuries:-
(1) Discovery:- Plus 120/min B.P.80/60.
(2) 1/2" in length skin deep lacerated wound on the right frontal region of the skull.
(3) Haematima on the right frontal region.
(4) 1/4" in length lacerated wound right parietal region.
(5) Bogginess on the right temporal region.
(6) Swelling of the right eyebrow.
(7) 1-1/2" incised wound skin deep on the left plan.
(8) 1" Partial thickness of skin deep on incised on the left.
(9) 1/3" incised wound skin deep on posterior aspect of the left forearm.
14. Similarly Mushtaq Hussain had the following injuries:-
(1) 2/3" lacerated wound scalp deep on the left frontal region.
(2) 1/3" lacerated wound on the left parietal region (with swelling).
(3) 1/3" lacerated wound with swelling on the left parietal region near the mid-line of the skull.
(4) Haematima on the left parietal occipital junction.
(5) Haematima on the left occipital region.
(6) 1/5" lacerated wound on the top of the skull.
15. The accused-respondents controverted the prosecution case when they were examined under section 342, Cr.P.C. Mushtaq Hussain accused-respondent when asked as to whether he had lodged F.I.R. Exh.P.W.10/2 in the cross-case, he answered in the affirmative. He also admitted that a day or two prior to the occurrence the complainant party were annoyed with the accused party over the latter's charging the passengers at reduced rates and on the day of occurrence the same motive enraged the two deceased and the two injured P.Ws. He maintained that at time of occurrence he alongwith his co-accused Altaf Hussain Shah were on their way back on foot towards their house after having done with their day's tonga driving. The were confrbnted by Sheikh Abdul Jabbar and Abdur Rehman armed with `Dandas' Sheikh Abdul Ghaffar armed with 'Lore', Abdul Qayum with an iron bar having pointed 'nose' and while Muhammad Ayub armed with an axe all of whom had waylaid them. After throwing a challenge all of them launched an attack upon the accused-respondents with their respective weapons. In consequence, the accused- respondents sustained multiple injuries. During the scuffle that ensued the accused-respondents snatched some weapons from the complainant party and apprehending danger to their lives they also dealt blows to the complainant party in self-defence. Almost the same statement was adopted by Altaf Hussain accused-respondent. Fida Hussain accused-respondent, however, pleaded alibi and he explained his absence from 12-9-1984 to 11-12-1984 as under:- "I did not abscond, I had left for Punjab even prior to the day of alleged occurrence, where I learnt about my false involvement in present case and on account of fear of the police, I hesitated to appear before the police for sometime, where after I was assured that I would not be harmed by police and on that assurance, I surrendered myself, I did not participate in the transaction and, therefore, the question of my abscondence does not arise. I have falsely been roped by prosecution being brother of my two co-accused, so that the number of the accused be increased."
16. As noticed above there were two different versions of the occurrence before the trial Judge.
According to the prosecution versin Abdul Jabbar and Abdul Ghaffar the two deceased and Abdul Rehman and Abdul Qayum (P.Ws.) were attacked by the accused-respondent when they were returning towards their houses. The defence version, on the other hand, is that the two deceased, two injured P.Ws. And one Muhammad Ayub had attacked Mushtaq Hussain Shah and Altaf Hussain Shah when they were going after finishing their tonga driving.
17. The learned Sessions Judge has almost accepted the defence version, as according to him, the prosecution has failed to explain the injuries sustained by the two accused. He was further of the view that 'both the accused as per medico-legal reports received a large number of injuries on different parts of their bodies including the vital parts'. He went on to state that 'there was a free fight between the two parties (and) in the mellee (melee) both deceased received fatal injuries and the P.Ws. Were also injured and similarly accused party, on the other hand, sustained injuries."
18. In the concluding paragraph of his judgment the learned Sessions Judge observed that 'prosecution failed to establish its case beyond any reasonable doubts and as such by extending the benefit of doubt in favour of accused and by giving them benefit of exercise of right of private defence, they all are acquitted'.
19. Mr. Zafar Abbas Zaidi, the learned counsel for the petitioners, contended that as the learned trial Judge, after appraising the entire evidence brought on the file, had come to a definite conclusion that there was free fight between the parties, therefore, the principles laid down by the Supreme Court in Syed Ali Bcpari v. Nibaram Mollah and other PLD 1962 SC 502 were applicable to the case in hand and that the accused were not all entitled to the exercise of the right of private defence of their person.
20. Now before adverting to the contention of Mr. Zaidi it would be worthwhile to reproduce the following paragraph from the judgment of the Supreme Court in Ali Bepari's case:-- "Moreover the learned Judge's conclusion that the right of private defence was a 'possibility' cannot at all be reconciled with their finding of mutual fight. They while accepting the defence suggestion of free fight have used the expression 'mutual fight'. In our view of their finding 'that there is no material to show which of the two parties took the initiative 'it cannot be said that they used the expression 'mutual fight' to convey the meaning different from that of 'free fight', which both parties enter into and engage in, of their free volition, thus excluding the possibility of pleading self- defence later."
21. In this monumental judgment their Lordships of the Supreme Court had elaborated 'free fight' as one 'in which both the parties go to the spot enforce their right or supposed right... And for this purpose they arm themselves in full expectation of an armed conflict. Each party anticipates resistance from other and are, therefore, determined to have a trial of strength'. Their Lordships further observed that in such circumstances it is impossible to say that the accused party were acting in the right of private defence of person or property... And common object stated in the charge having failed each person is held responsible for his individual acts.
22. After re-appraising the evidence brought on the record and looking to the admitted position qua the respective weapons wielded and used by the parties it cannot be conclusively held that the parties had gone duly armed in full expectation of an armed encounter. I am, therefore, clear in my mind that the principles enunciated in Ali Bepari's case are not attracted to the facts of the present case. The learned trial Judge had perhaps employed the term 'free fight' without realising as to what it conveys in legal parlance. The use of the term 'free fight' by the learned trial Judge was perhaps under misconception of which the petitioners are not entitled to derive any benefit.
23. It will be seen that the case of prosecution rests on:-
(a) the ocular testimony of Abdur Rehman (P.W.8), Abdul Qayyum (P.W.9), Khuda Bakhsh (P.W.11) and Manzoor Hussain (P.W.13);
(b) the recovery of one `Danda' P.4, two sticks (P.5) blood-stained; and
(c) the abscondence of accused Fida Hussain from 12-9-1984 to 11-12-1984.
24. The presence of two star-witnesses of the prosecution case, namely Abdul Rchman and Abdul Qayum at the spot is not only established because they were bearing the stamp of injuries on their person but is also admitted by the two accused in their statements recorded under section 342, Cr.P.C. Nonetheless the learned trial Judge had disbelieved their version of the occurrence, and rightly so, because they have not only given one-sided version but had also suppressed the injuries sustained by the two accused. Additionally I find that their evidence even otherwise is replete with grave doubts and material discrepancies the benefit of which cannot 4re denied to the accused respondents. The learned trial Judge has not properly addressed himself to discard the evidence of Khuda Bakhsh and Manzoor Hussain. Apart from inherent ifirmities noticed by the trial Court in their statements they were admittedly recorded respectively after five days and eight days of the occurrence. In Jalal v. State PLD 1973 Kar. 643 with regard to a witness who was examined after two days of the occurrence a Division Bench of Karachi High Court observed that the very fact that he was examined by the police two days later is enough to look askance at his evidence and that apparently he is not a witness of truth. This being so no implicit reliance can be placed on their evidence.
24-A. The upshot of the above discussion is that the prosecution had failed to prove that the occurrence had taken place in the manner stated by it. The defence version, on the other hand, appears more plausible that Mushtaq Hussain Shah and Altaf Hussain Shah were first attacked by the two deceased and the two P.Ws. And it was in exercise of their right of private defence that these two accused aforesaid had caused injuries to them. They were obviously entitled to the statutory benefit of section 100, P.P.C. Which was ultimately extended to them although not in these clear terms. Fida Hussain accused-respondent was not present as noticed above.
25. The learned counsel appearing on behalf of the accused-respondents maintained that the High Court should not interfere with the judgment of the learned trial Court in revision against acquittal where the State has not preferred an appeal unless non-interference would involve an endorsement of patently unfair order. It was urged that in the case in hand no interference is called for as the view taken by the Court below in the ultimate analysis is reasonably possible on consideration of the whole facts and circumstances. Reliance was placed on Feroze Khan v. Capt.
Ghulam Nabi Khan and another PLD 1966 SC 424 and Fida Muhammad Khan, Advocate v.
Muhammad Zaman Khan and 5 others PLD 1975 Pesh.
38.
26. Having considered the controversy involved I am of the view that the contention raised on behalf of the accused-respondents had force. It has been held by the Supreme Court in PLD 1966 SC 24 at page 431, as under:-- .................................................................................................................................... " In particular in cases of revision petition from an acquittal where the State has not thought it fit to challenge the acquittal by an appeal the Courts would be very slow to interference, unless non-interference would involve an endorsement of a patently unfair order, or one which leads to miscarriage of justice. If the view taken by the Courts below pies reasonably possible on a consideration of all the facts and circumstances of the case, then the entertainment of a feeling that an alternative view of the evidence might have been taken, would not justify the superior Court in setting aside an order of acquittal."
27. I am in respectful agreement with the rule laid down by the Supreme Court reproduced above.
There can be no two opinions as regards the principle that provisional jurisdiction of the High Court under section 439, Cr.P.C. Is not meant to substitute findings of the Courts below by appreciation of the evidence on record. In the case in hand, neither any instance of misreading of evidence by the learned trial Judge nor any error of law in the impugned judgment has been pointed out.
28. I have gone through the whole of judgment of the trial Judge and have found that the conclusion arrived at by him are reasonably possible and can in no manner be said to be fanciful or arbitrary.
29. In view of the foregoing discussion I find no merit in this revision which is accordingly dismissed.