This is an appeal by (i) Aziz Khan (ii) Nur A.I sons of Ghulam A.I, (iii) Muhammad Siddiq son of Lai Khan and (iv) Ilyas son of Nur A.I, residents of Village Jabu, Police Station, Islamabad District Rawalpindi, who have been convicted by the learned Sessions Judge, Rawalpindi, by means of his judgment and order, dated 9-7-1969, under section 302/34, P. P. C. And sentenced to transportation for life each and a fine of Rs: 1,000.00 each for the murder of Muhammad Ashraf nephew of Aziz Khan and Nur A.I appellants. In case of default of fine they are to undergo further rigorous imprisonment for six months each. Actually, there was another co-accused Rafiq son of Nur A.I who was also tried alongwith the aforesaid appellants but was, however, acquitted.
2. The facts of the prosecution case are that on 20-9-1968, at peshiwela, the cattle of Nur A.I, Aziz Khan and Siddiq damaged the charm crop of Sardar (P: W. 10). Those cattle were rounded up by Sardar (P. W. 10) alongwith his son Ghulam Mustafa who proceeded to take them to the cattle- pound. When they, reached near the water-tank, they were attacked by Nur A.I, Ilyas arid Rafiq accused. All of them at that time were armed with sotis. The assailants snatched their cattle and Sardar and his son Ghulam Mustafa ran back to their house. A little later, Aziz Khan, Noor A.I, armed with hatchets, Muhammad Siddiq Armed with a spear and Ilyas appellant and Rafiq acquitted accused, armed with sticks, launched and attack in the house of Sardar (P. W. 10), where in his courtyard they inflicted blows on Sardar and his sons Ghulam Ashiq (P. W. 13), Ghulam Mustafa (not produced) and Ghulam Hussain (also not produced). Aziz Khan inflicted a hatchet blow on the head of Sardar (P. W. 10) and Ilyas and Rafiq gave him stick blows. Mst. Razia Begun (P. W. 11) daughter of Sardar and Muhammad Ashraf (deceased) intervened to separate the parties.
Muhammad Siddiq appellant gave a. Spear blow in the abdomen of Muhammad Ashraf deceased and Mst. Razia Begum was given .a, hatchet blow from its blunt side on her head. The occurrence seas witnessed apart from injured persons by Mamraiz tongs driver (P. W: 12) (not believed). The complainant party it is alleged in the F. I. R., inn exercise of their right of private defence of person caused injuries to the accused with stones.
3. At this stage, it is to be mentioned that all the appellants had also---injuries on their person.
From their side, F. I. R. No. 212 was earlier lodged at 5-15 p.m, at Police Station Islamabad, which was at a distance of five miles from the place of occurrence in the form of Exh. D. A. By Aziz Khan appellant, in which a counter version of the incident was given. It was stated by appellant Aziz Khan in the said F. I. R. That at about 3 p.m., on 20-9-1968, the cattle-heads of Muhammad A.I (father of Muhammad Ashraf deceased) and Sardar son of Ghulam Muhammad had damaged his crop. Nur A.I brother of Aziz Khan and his son Ilyas rounded up; the said cattle and were taking them to the cattle-pond in Islamabad.
At a distance of one furlong on their way, they were attacked by Muhammad A.I and his sons Akram and Ashraf, and Sardar (P. W. 10) and his sons Ashiq, Ghulam Hussain and Ghulam Mustafa.
Ashraf (nephew of Aziz Khao) was armed with a hatchet and the others had lathis with them. At that time, Aziz Khan and his other nephew Siddiq also reached at that place. The seven assailants injured Aziz Khan and his party and left there--after leaving the cattle on the spot. Aziz Khan was given blows by Akram. Siddiq was given a barchhi blow by Ashraf (deceased). In that affair the other companions of Aziz Khan viz. Nur A.I and Ilyas also became wounded. In this F. I. R., it was stated that the other injured persons, namely, Nur A.I, and Ilyas, had gone to Civil Hospital, Rawalpindi. On the basis of this report, Sher Ahmad S. I. (P. W. 14) went to the Civil Hospital, Rawalpindi and finding Sardar (P. W. 10) also admitted in the said hospital, recorded his separate.
Statement in the form of Exh. P. J. On the basis of which a second formal F. I. R. (Exh. P. J./1) .Was registered in the police station. The version of Sardar (P. W. 10) was the same as has been reproduced in para of this judgment earlier. .
4. It is to point out that Muhammad Ashraf, who had also been admitted in the hospital, succumbed to his injuries on 11-9-1968. On coming to know of his death, the Sub-Inspector again went to the hospital and prepared the injury statement and inquest report of the deceased. He went to the spot and collected blood-stained earth from inside the courtyard of the house of Sardar (P. W. 10). He took into possession medico-legal reports of the injured persons. After completing the other necessary investi--gation, challan against the five persons, hereinbefore mentioned, was filed in Court which resulted in the conviction of the four appellants and the acquittal of the fifth co-accused Muhammad Rafiq. At this stage, it is pertinent to mention that the accused had been charged and tried for offences under sections 302/ 49, 307/ 149 and 148, P. P. C.
The conviction of the appellants was, however, made only under section 302/34, P. P. C. Pro--bably considering the minor offence as being part of and merged is the major offence.
5. Attending to the medical evidence, it is necessary to reproduce the injuries sustained by both sides.
Persons injured from tire side of the complainant:
(a) Muhammad Ashraf deceased had the following injuries on the person (See post-mortem report S & P/E):-
(1) One stitched incised wound, 2' x -- x (pleural cavity deep on the left outer side of lower chest. It was oblique.
(2) One stitched operation wound, 8' x -- ' abdominal cavity deep on the front of left upper abdomen and centre-of abdomen.
(3) One drainage tube was present in the lower end of the wound.
On dissection, left chest was cut between 7th and 8th ribs space. Left pleura was cut in the lower part, and cavity contained about 8 oz. Of fluid blood. Left lower lung showed a cut, 1 x -- ' x -- . Left lung was cut, 1' x -- ' x -- ' deep. The abdominal wall was cut along with peritoneum under the operation wound. Stomach contained about 4 oz. Of dark fluid. Intestines contained faeces, bladder was hall full of urine. All the other organs were healthy".
Death in the opinion of the doctor was due to shock and haemorrhage produced by puncture of left pleura and left lower lung which was the result of injury No. 1, which was fatal and could cause death in ordinary course of nature. This injury was due to sharp-edged weapon.
(aa) Sardar (P. W. 10) had the following injuries:-
(1) Lacerated wound, 2' x -- x -- ' scalp deep on left side scalp. X-ray skull advised.
(2) Incised wound, -- x 1/6' skin deep can the right hand.
(3) Abrasions, 4" x 1/6', on the right lower chest.
(4) Two abrasions half inch x half inch on the right lower forearm on the back.
Abrasion, 3' x 1/6' oblique on the front of left lower thigh. Contusion oblique, 18' x 2' on the left side lateral part thigh extending from buttock to knee. Its upper part shows abrasion, 1' x 1'.
Injury No. 2 was caused .By a sharp-edged weapon and rest by blunt on observation according to X-ray No. 6308, dated 20-9-1968 fracture right meta carpal middle was found therefore, injury No. 2 was grievous and other injuries were simple and were possible within three hours.
(b) Mst. Razia Begum (P. W. 11) had the following injuries:
(1) Lacerated wound, 1" x -- ' x scalp deep, right aide forehead.
(2) Lacerated wound, 3-- ' x 1/3 ', on the back scalp. X-ray skull was advised.
Injuries were caused by a blunt and were kept under observation and were possibly within three hours.
(c) Ghulam Ashiq (P. W. 13) had the following injuries:-
(1) Lacerated wound, 3 -- ' x 1/6" x scalp deep on the left side scalp.
(2) Abrasion, -- ' x -- ' on left arm.
(3) Complained of pain right middle finger.
According to X-ray report No. 6302, dated 20-9-1968 no bone injury was seen in X-ray skull. All the injuries were found simple and were caused by a blunt weapon and were possible within three hours.
(d) Ghulam Mustafa (not produced) had the following injuries:-
(1) Lacerated wound, 1' x 1/3' x scalp deep with swelling 2" circular round it on the left side scalp.
(2) Swelling, 2' x 2", on the back scalp.
(3) Swelling, 2' x 2', on right hand.
(4) Abrasion, -- ' x -- ', on the left elbow.
(5) Abrasion, -- ' x -- ', on the left knee.
(6) Swelling, 3' x 1', on back of waist.
(7) Swelling 3' x 1', longitudinal on back 1' below No. 6.
All the injuries were caused by a blunt weapon and according to X-ray report No. 6306, dated 20- 9-1968, all the injuries were fond simple and triple within three hours,"
(e) Ghulam Hussain (not produced), had the following injuries:--
(1) Abrasion curved, 4' x 3' on back of chest in the lower part middle.
(2) Contusion, 13' x 1", on the back right shoulder, chest, extending down to waist.
(3) Contusion, 3' x 1', on back of left upper forearm.
(4) Contusion, 2' x 1', on back of left middle arm.
(5) Abrasion, -- ' x -- ' on the front of right middle forearm.
(6) Contusion, 2" x -- ", in the front of right elbow and upper arm. Injuries were caused by a blunt weapon, but simple in nature and were possible within three hours."
Persons injured from the side of the accused.
(f) Noor A.I appellant had the following injuries:-
(1) Contused wound, -- x -- ', on the back of right hand.
(2) Abrasion, -- ' x -- ', on the back of left hand.
(3) Contusion, 1' x 1' on the right lawyer lip.
All the injuries were simple, were by blunt weapon and duration was within 3 hours.
(g) Ilyas appellant had the following injuries:-
(1) One abrasion, -- ' x -- ', on the back of left thumb.
(2) Contusion, -- ' x -- ' on the back of right thumb.
(3) One contused wound, -- ' x -- ' x -- ', on the back of left fore-arm in the middle.
(4) Abrasion, -- ' x -- ' on the back of chest, middle lower part. Com--plained of pain in the right elbow.
All the injuries were simple, were by blunt weapon and their duration was within 3 hours.
(h) Muhammad Siddiq appellant had the following injuries:-
(1) One punctured wound, -- ' x -- ' x -- ' on left outer lower chest. It was oblique. White bunyan and one boski shirt were cut opposite it. One blue jacket was also cut under the injury.
(2) Cane contused, 1' x -- ' x -- ', on the top of head.
(3) Swelling, 1" x 1' on the outer side of left elbow.
(4) Abrasion, 1 x 1" on the front of left knee.
All injuries were simple. No. 1 was by sharp-edged weapon, others were by blunt weapon. They were inflicted within three hours. The Doctor further stated that injury No. I on Muhammad Siddiq could not be self-inflicted though it could be by a friendly hand. In a later part of his statement, he further reported as follows:-- "I agree that the injury No. 1 on Muhammad Siddiq was on vulnerable part of the body under which lungs and heart are lying. When x say that this injury could be by a friendly hand that was only a possibility and not a probability, if anybody want to have an injury by a friendly hand, he would normally select a non-vulnerable part of the body. This injury could be due to a spear. The injuries on Noor A.I and Ilyas could be the result of a friendly hand or by self-infliction. The direction of the injury on Muhammad Ashraf deceased was from above downwards.
6. The above medical evidence clearly shows that Muhammad Ashraf deceased died as a result of assault. It further shows that various persons of both sides were injured. It also indicates that both sides had- used sharp---edged and blunt weapons.
7. The sole question to be determined in this case is as to which party was aggressor and how the occurrence took place. It is a common ground that the dispute took place on account of trespass, and rounding up of the cattle. The point to be determined is as to whose cattle bad trespassed and which party had rounded them up. My view is that it was the complainant party whose cattle bad trespassed and who took the initiative in illegally attacking the accused party when they were trying to take them to the pond. Various reasons in support of this view are available from the record and the over all circumstances of the case. If the fault was of the accused party, that there is no justification as to why the complainant party should not have lodged the F. I. R first. The record shows that the first report (Exh. D. A.) was given by Aziz Khan appellant in which he had indicated as to how the assault had taken place. No doubt, in that report, it was not described as to how the injuries were caused to the complainant party but then the same defect exists in the later F. I. R.
(Exh. P. J.) lodged by Sardar (P. W. 10) as well. Another fact to be mentioned is that whereas the F. I.
R. Of the complainant party provides no clue as to how and why Ashraf deceased came to the scene of occurrence, the F. I. R. Lodged by Aziz Khan appellant states that .The cattle-heads of Muhammad A.I father of Muhammad Ashraf deceased (had also) damaged the crop. This shows that the F. I. R. Of the accused party was more nearer the truth, because in that context it made the presence of Muhammad Ashraf on the spot quite natural for the reason mentioned therein. Again, it further stated that Muhammad Siddiq appellant was given a spear blow by Muhammad Ashraf deceased. Medical evidence supports this part of the earlier F. I. R. Inasmuch as there did exist one sharp-edged weapon injury on the person of Muhammad Siddiq appellant. The prosecution was aware of the significance of this injury and, therefore, the police asked the Doctor whether it could be self-inflicted, but the Doctor vide Exh. P. A./2, reported that it could not be self-inflicted. This injury was on the vulner--able part of the body of Muhammad Siddiq and obviously could not be self-inflicted. The Doctor further clarified that it could be due to a spear. This injury on Muhammad Siddiq is attributed in the earlier F. I. R. To Muhammad Ashraf deceased and it is obvious that if he caused such a spear injury, a similar spear injury could be caused to him as well. In this way if Muhammad Siddiq, appellant caused a spear injury to Muhammad Ashraf deceased, he cannot be said to have acted in any harsh or cruel manner and nor can be said that he had overdone in that respect because one injury against one injury was just the minimum. In the subsequent F. I. R. It was stated that the complainant party caused injuries to the accused party in exercise of their right of private defence by stones. Strangely enough from the Doctor, however, the prosecution did not get it established that injuries on the persons of the accused (particularly on Muhammad Siddiq appellant) were caused or could be caused by stones. It is further to point out that in the ocular evidence, the plea of causing stones was not solely relied upon and here and there the alleged eye-witnesses admitted that some blows were caused by blunt weapon to the accused party. The plea of self-defence taken up by the complainant party in the subsequent F. I. .R. Even otherwise is not available to them because of my finding that it was the complainant party itself including Muhammad Ashraf deceased (cattle of whose father had trespassed and were rounded up by the accused party and who had taken the law into their own hands for snatching back their cattle from the accused party). Sardar (P. W. 10) had stated, earlier in has F. I. R. As also in Court, that it was the cattle of the appellants which had been Impounded by the complainant party and that the appellants had succeeded in taking them back. If the appellants had taken their cattle back, then why should have they again come to attack the complainant party at their house. The boot in that context will rather be on the other side.
8. Coming to the ocular evidence as indicated earlier it consists of the statements of Sardar (P. W.
10), Mst. Razia Begum (P. W. 11), Mumrex (P. W. 12) (not believed) and Ghulam Ashiq (P. W. 13). The discussion hereinbefore made reflects very adversely on the general features of the testimonies of these witnesses. However, taking up these witnesses separate--ly, Sardar (P. W. 10), who had been in the scene throughout deposed very strangely that he could not state as to where the accused party took the cattle after they had released them from the complainant party. Before the committing Magistrate he deposed that he caused two dandy blows and 2/3 injuries to Aziz Khan and Nr A.I by throwing stones but in. Sessions Court denied so have made any such statement and rather took up the position that he was not sure if any of the accused were bit by the stones thrown by him. It appears that while making statement in Sessions Court, he was not certain ref the position he should adopt because sometime he said lie caused injuries and sometimes dented it.
He stated that all the five accused bad received injuries at their hands but as is clear Muhammad Rafiq acquitted accursed had no injuries on his person. He deposed that be had stated to the police that he was given a blow on the right band by Aziz Khan accused that his son Ghulam Ashiq had caused injuries to Nur A.I, Rafiq and Ilyas with the danda with which Ashiq had caused injuries to Nur A.I accused and his two sons Muhammad Ilyas and Rafiq were broken. He was confronted with each of these matters separately which, however, did not find mention in the statement before police. Various other similar matters which he stated, he had mentioned before the police were, in fact, not so stated as was successfully bought out by the cross-examiner from this witness. His evidence has not inspired my, confidence and I am of the view that he had not narrated the occurrence in a correct form and has with held the truth in material particulars.
9. As regards fist. Razia Begum (P. W. 11), she is daughter of Sardar (P. W. 10). She has made innovations in her statement in Court. She had stated that her father bad a small rafter in his band with which be struck Aziz appellant. The rafter broke down and could not be used again. This story she introduced for the first time in the Sessions Court. In. Committing Court her stand rather was that her father did not cause any stick blow to any accused. She denied that anybody from their side was armed which is quite incorrect in view of the various injuries on the person of the appellants.Similarly she said that Ashiq (P. W) had a stick with him with which he caused injuries Nur A.I but no such plea was taken by her before the committing Court. Again, as regards the part played by Ashiq P. W. Qua others, she was in a great contradictory position. Same was her position regarding the stage at which Ashraf deceased arrived at the scene of occurrence and the causing of injuries by Ilyas and Rafiq. My opinion is that the statement of this witness does not inspire confidence and she too has withheld the truth from the Court.
10. Coming to Ghulam Ashiq (P. W. 13), he is son of Sardar (P. W.10). He too denied that any man from their side had any sharp-edged weapon though the existence of injury No. I on Siddiq appellant falsifies this denial. I have gone through his statement and a general comment which I want to make is that many things which he stated he had stated before the police or committing Court did not exist there, and many things which he stated be had not so stated before the police or the committing Court did exist there. There is a long list of such matters (and as a matter of fact this is the general feature of the statements of the eye-witnesses) and I do not want to prolong this judgment by making mention of all of them in minute details and would conclude that he too seems to have concealed the truth. It is not safe to rely upon his testimony which suffers from the various defects hereinbefore mentioned.
11. Another thing to be noticed is that the investigation in this case has also not been quit; straightforward. Sher Ahmad S. 1. (P. W. 14) admitted that he lead received a copy of the earlier F. I R, fiat when he was on a patrol duty in Sector "GO" of Islamabad. From there he pro--ceeded direct to the spot on 20-6-1968y wherefrom he learnt that the witnesses were in hospital. In committing Court, however he had deposed that before going out of the police station (on patrol)' he had read the F. I R. Though now be tried to deny this fact for reasons best known to him. In the ha I. R. (Exh. D.
A.) copy of which was duly received by the Sub. Inspector ill was written that the injured accused- appellants had already left for the hospital but strangely enough the S. I.Did not go to the hospital but went straight to the site of occurrence. He was questioned as to why he had so done bull axis reply was:-- "It wanted to ascertain at the site whether or not this precise assertion in the report that the injured had already left for the hospital is correct or not."
This will show that he had duly started investigation of the case and in these circumstances, it is really doubtful as to whether later on the statement (Exh. P. J.) of Sardar (P. W. 10) which was recorded in the hospital could really constitute (another) F. I. R. Without going further into this matter, and continuing with the discussion of the statement of the said Inspector, he did not examine the site though he deposed that he had joined five or six persons in investigation and had examined them. He reached the village at 6-15 p.m,. And remained there for quite sometime. This shows that the F. I. R. (Exh. P. J.) which was later on recorded in the hospital was recorded after having gone to the spot and after making some investigation. If not for any other defect at least for this infirmity, F. I. R. (Exh. P. J.) A loses its evidentiary value. The Sub-Inspector examined Fatal Dad, Qadir Dad and Sparas Khan his none of them was produced as a witness in the case.Actually, in this respect the deposition of the S. I., reads as follows:-- 'Names of the persons who were examined by me in the village have however, been mentioned in Zimni No. 1 in this case. They are Fazaldad, Qadardad, and Sparas Khan. I had remained in the village for about half-an hour. I had reached the village at about 6-15 pm. The above-named persons had said to me that Sardar, his sons his daughter and Ashraf deceased had been injured and were bring in the hospital. I did not record a detailed statement of any of them for registration of case against the present accused. I had left for hospital to record statement of any witness in the case. It is wrong, that none had said to me at the spot as to who was injured and in what circumstances. I had slot made a statement before the learned committing Magistrate, at the spot nobody told me as to who was injured and under what circumstances'. (So recorded in U to D of statement of the witness before C. M. Confronted. The witness explains (the above statement might have been recorded as correct. He, however, maintains that truth of the-matter is that I was informed at the site that the complainant and the witnesses in the present case were lying injured ire the hospital. I had proceeded to the hospital with a two-fold object that 1 should examine both sides in the case. I admit that I had said to the Magistrate, 'I went to the hospital to record statement of the injured witnesses mentioned in F. I. R. No. 212. The fact that the witness had also to record statement of `both sides' is not mentioned specifically in his statement before C. M. I admit that after I had reached the hospital, I got engaged in the investigation of case registered under F. I.
R. No. 212, and I learnt during investigation of the said case that Sardar was tying with injuries ors biro. I had then recorded his statement in the hospital at about 9 p.m. I had arrived in the hospital at about 8 to 8-15 p.m. I could not examine Muhammad Siddique accused immediately on my arrival although it was in my knowledge that he was also lying injured in the-hospital."
This will show that the Sub-Inspector was in real difficulty on the point ors which he was being cross-examined and did hot know as to what position he should adopt regarding the main features of the earlier of Investigation made by him. He also conceded that when he went to the hospital at S or 8-IS p.m. He knew that Muhammad Siddiq appellant was lying injured there. But he did not record his statement nor he collected his medico---legal report. The other accused also produced their medico-legal reports bait he prepared no memos., in that respect. He conceded that while invest-gating the case regarding the earlier F. I. R., he first recorded state--ment of Sardar P. W., as an accused and then another statement which he termed as F. I. R. (Exh. P.J). Even though he was in village on 20-9-1968, he visited the site on the next day that is 21-9-1968. He has conceded that he had learnt of the death of Muhammad Ashraf deceased in the hospital when he was yet in the village on the Ist day i.e., 20-9-1968, but till he never collected the blood-stained earth from the front side of the middle room and south-westerns side of courtyard of the house of Sardar (P. W. 10). The recovery of blood-stained earth from these two places eras effected on 21-9- 1968. This recovery is thus greatly doubtful. Ire did not demand stick; from the prosecution witnesses which as alleged by the prosecution (or as alleged by accused) they wielded during the incident. Much stress was laid by the learned counsel for the State on the recovery of the blood-- stained earth from the courtyard of Sardar (P. W. 10) for the purpose of showing that the occurrence had actually taken place there and from that point of view, it were the accused who must be held to the aggressors. I must say I am not prepared to accept the genuineness of the recovery of the blood-stained earth and, as such, I cannot accept the contention of the learned State counsel. It is in evidence that the place where the earlier occurrence took place was only at a distance of 200 yards from the house of Sardar (P. W. 10). It is probable that after receiving injuries at that place, the injured P. Ws., or the persons injured from the side of the complainant, came back to the house of Sardar (P. W. 10) and the blood in this way fell in the courtyard etc., of Sardar. The presence of blood in the courtyard etc., of Sardar, in these circumstances, does not lend any support to the prosecution case that the occurrence took place there. Similarly the place of occurrence being only 200 yards away from the house of Sardar (P. W. 10) the possibility of Asst.
Razia having gone to that place on hearing the noise of fight between her relations and others cannot be ruled out and the plea that since she was a lady and was hurt showed that the occurrence must have taken place in the house of Sardar (P. W. 10) cannot be accepted. This is an additional reason which I have given for discarding the recovery of blood-stained earth from the courtyard etc., of Sardar (P. W. 10) though my main finding is that the said recovery was otherwise unreliable.
12. The upshot of the above discussion is that the prosecution case leas not been, proved against the appellants beyond a reasonable doubt. The circumstances suggest that it was the complainant party who was the aggressor and opened the attack. The complainant party was also armed with, weapons like spear and sticks. The circumstances further suggests that Ashraf deceased first caused a spear blow to Muhammad Siddiq appellant.' The accused party, in this context, therefore, had a clear right of self---defence, and if in that process they caused injuries to the complainant party they cannot be held guilty. The accused had 14 injuries on their persons whereas the injuries on the side of the complainant party in all were 25. Out of these Ghulam Mustafa had seven injuries and Ghulam Ashiq had three injuries. These persons have not been produced and, therefore) I can safely ignore the injuries on their persons with the result that before me this is a case of 14 injuries on one side and 14 or 15 injuries on the other side, which shows that there was no excess from the side of the accused and nor they can be said to have acted in any cruel or harsh manner and nor have they taken undue benefit of the situation. Giving the accused, therefore, the benefit of doubt, I accept their appeal and set aside their convictions and sentences.
They should be released forthwith if not required it any other case in accordance with law.