TUFAIL ALI A. RAHMAN, C. J.-The appellant in this case was convicted by the learned Sessions Judge, Hyderabad under section 302 of the Pakistan Penal Code and sentenced to transportation for life.
2. At the end of the hearing of the appeal both my learned brother and I, having come to the conclusion that the conviction could not be sustained announced judgment allowing the appeal and acquitting the appellant; I now proceed to record my reasons for doing so.
3. The appellant, two other persons who were tried with him but acquitted, namely Haji and Khamoon are all related inter se while the deceased and the eye-witnesses are also related. In fact the parties are, as between each other, also related but are nevertheless, as the learned Judge has concluded, on somewhat hostile terms and this is on account of the fact that Mst. Perhi who is the sister of the deceased Mohammad Siddiq and the first informant Dost Mohammad who are brothers inter se, is the wife of appellant Baradi whose own sister Soomri is the wife of the first informant Dost Mohammad. According to the prosecution case, and this part of the case is not seriously denied, there was trouble between each of the couples and, although each side claims to be in the right, the fact remains that the two ladies were, at the time of the incident, living with their brothers and not their husbands. The prosecution party reside in Deh Patar Tendo Saindad in District Hyderabad and have a field, which is presumably close by to their village and in this village live also others of their case but, although it is not very clear upon the record, it would seem that the appellant and the two co-accused who were acquitted do not live in this village but nevertheless fairly near. It is the case of the prosecution that following the disputes between the two couples a 'faisla' had been performed by one Wadero Jumo who directed that Mst. Perhi should return to her husband, that is to say, the appellant Baradi, provided he furnished surety that she would not again be maltreated. The appellant, however, declined to give any surety and, on the contrary, held out threats that he would kill his wife if she did not return to him. This, according to the prosecution, is the motive of the present crime.
4. On the 19July, 1970 at about 6-00 p.m. The deceased Mohammad Siddiq and his brother the first informant Dost Mohammad were, according to the latter, cutting grass in their field which was about a thousand feet south of their own houses when the appellant Baradi accompanied by his brother Khamoon and cousin Haji (who are the co-accused who were acquitted) were coming along the track which passed by the side of this field. Of them Baradi had a hatchet while the others were armed with lathis. The accused persons are said to have challenged the two brothers saying that they would not spare them and Mohammad Siddiq, therefore, tried to run on to the track towards Tando Mohammad Khan and the accused went after him. Dost Mohammad followed in an attempt to rescue his brother but Baradi, it is said, was able to overtake Mohammad Siddiq and dealt him a blow with the sharp side of the hatchet on account of which Siddiq fell down and died. Thereafter, it is claimed that Dost Mohammad grappled with Baradi whose hatchet fell from his hands and that both rolled on the ground. While they were thus rolling the other two accused persons are said to have given blows to Dost Mohammad to separate him from Baradi and Dost Mohammad indeed was hurt. However, the appellant Baradi also has sustained injuries and, although the witnesses do not admit inflicting any injuries upon him, this story of the rolling according to the prosecution explained the injuries upon the appellant. The appellant was then over--powered and the two other accused persons ran away. Baradi was then left in the custody of the witnesses Jurio and Mir Mohammad who along with Hussain had, in the meantime, come running from their houses; all these persons are stated to have witnessed the crime but of them Mir Mohammad and Jurio alone have been examined at the trial. The first informant then went to inform his zamindar Amir A.I Khawaja who lives about half a mile away from the scene and, on the latter's direction proceeded to the Math Police Station where his report was recorded at 7-30 p.m.
The S. H. O. Yaqoob Khan then visited the scene of offence and carried out an investigation and about this investigation all that particularly needs to be pointed out is that Baradi was arrested at the scene itself having already been secured there by the witnesses and from his person a blood- stained shirt was recovered and a blood-stained hatchet which according to the prosecution was used by him, and had been secured by the witness Miro who was also taken posses--sion of by the police. Subsequent examination by the chemical examiner has revealed that both these articles were stained with human blood. The other two accused persons were arrested from their village and in due course all the three were sent up for trial and while the appellant was convicted the other two were, as I have already stated, acquitted.
5. The learned trial Judge took the view, quite rightly I think, that despite the close relationship between the parties there was hostility and although, therefore, he relied upon the evidence of the prosecution witnesses felt that he could not convict any individual accused person unless there was corroboration as against that individual. Upon that basis, finding no corroboration against any of the accused except the appellant Baradi be acquitted them, against Baradi of course there was ample corroboration including the fact of his apprehension at the scene and the fact that he was wearing blood-stained clothes. The learned Judge has also thought that the recovery of the hatchet was a circumstance which corroborated the case but the hatchet was in any case at the scene and was not recovered from, the appellant in the sense that it was recovered from his house or at his pointing out and I do not think therefore, that this circumstance ought really to have been taken into account. Nevertheless, this is immaterial because Baradi's presence and indeed participation in the crime are not only amply proved by the prosecution evidence but is admittedth by Baradi himself. The nature of the injury on the deceased is such that clearly, unless one of the Exceptions applies, the offence committed would clearly be one of murder.
6. The appellant's own statement while it did not precisely plead the right of private defence certainly alleged facts which put such a plea in issue. In his statement under section 342 he stated: "I was going to my village from Tando Mohammad Khan. On the way I was attacked by Mohammad Siddiq, Dost Mohammad Maroo and Urs. They were hiding by the side of the track.
Mohammad Siddiq and Dost Mohammad had hatchets and they dealt me blows with sharp side on my back and head. I fell down and went un--conscious. When I regained senses I found that I had been kept there in the hospital, at Math."
It is an admitted position that there was only one injury, though of course serious, upon the deceased and it was described by the doctor in the following terms: "An incised wound 3--' x 2--' x 2--' deep on the right side back of neck oblique cutting the bones underneath, from the right to the left at the lower part of the neck. The injury was ante-mortem and appeared to have been caused by some sharp cutting weapon such as hatchet."
On the other hand, the appellant Baradi also had as many as four injuries and these were: "(1) A lacerated wound oblique 1-1/4--- x ----- x ----- deep on the right parietal region 4--- from right ear.
(2) An abrasion 2/3--- x ----- deep on the right eyebrow lateral side.
(3) A contusion 2--- x 1--- on the right side back.
(4) A contusion 3--- x 1--- on the left side back.
Now, the learned Judge having come to the conclusion that he could not convict any of the accused persons without corroboration, then goes on to consider the case of the appellant Baradi and holds that there was such corroboration. That part of his findings is clearly un-assailable. But in the course of this discussion, as he rightly points out, "the nature of injuries on accused Baradi suggests that these injuries could not be caused by accident while Baradi was rolling on the ground." Now if they could not be caused by accident, it is hardly likely that the co-accused would have caused them.
7. Later in the judgment, the learned Judge finally deals with the question of the right of private defence and observes: "The only question that remains to be decided is whether accused Baradi had acted in exercise of the right of private defence. The injury in this case has been caused to the deceased on the back of his neck. The blow must have been inflicted from behind while the deceased was trying to get away. This blow could not have been inflicted by accused Baradi after he had been given the blows on his head and over the eye. The blow on his head though with a lathi has resulted in a lacerated wound and the blow over the eye has just missed the right eye. The probabilities are that the deceased and his brother on finding the accused by the side of their field apprehended trouble at his hands and a quarrel must have ensued. The accused being their cousin it could not have been expected that he would make use of the hatchet resulting in infliction of a fatal injury. But when accused Baradi was found to be in a desperate mood aiming the hatchet blow Mohammad Siddiq must have run for his life. Accused Baradi must have pursued Mohammad Siddiq as is alleged and dealt him the hatchet blow from behind. Dost Mohammad brother of the deceased must then have tried to grapple with the accused and snatch the hatchet from him. Accused Baradi must have been given blows on his head and other parts of the body either by Dost Mohammad or by other witnesses to overpower him and catch him. The theory suggested by the defence appears to be inconsistent with the "actual facts and circumstances and the medical evidence. Therefore, after weighing the probabilities, death of Mohammad Siddiq does not appear to have been caused as aresult of the exercise of the right of private defence by accused Baradi".
Now, this is the part of the reasoning of the learned Judge with which, with all respect, I have not been able to persuade myself to agree. It seems to me that in judging the possibilities of bow the injuries were sustained and their sequence the Judge is really speculating. Even if what he holds is the more probable version of the matter that does not suffice to convict the appellant. It is well established that upon the question of the right of private defence if there be any reasonable doubt at all then the benefit of that doubt must be given to the appellant. I am unable to agree that the theory suggested by the defence is inconsistent with the actual facts for, by the expression "actual facts" the learned Judge in the context is really referring to the conclusions that he has drawn as to what must have occurred. It seems to me that the opposite version is as probable or at least that it cannot without doubt be said to be untrue.
8. For these reasons I had come to the conclusion that the conviction in this case could not be maintained.