Ch. Muhammad Yunus, Additional Sessions Judge, Lahore, tried the case against Barkat appellant and seven others, namely, Khuda Bakhsh, Dullah, Mushtaq alias Kala, Nazir Ahmad, Rahim Bakhsh, Nawab and Allah Rakha for the alleged offences under sections 302/307/ 49 and 148. P.P.C. In respect of the murder of Muhammad Ali and Injuries to Nazir (P. W. 9), Bashir Ahmad (P. W. 10) and Ibrahim (P. W. 11). Barkat appellant was convicted under sections 304, Part I. P.P.C. And sentenced to suffer seven years' rigorous imprisonment and to gay a fine of Rs. 2,000 in default whereof one year's further rigorous imprisonment was directed. He was further convicted under section 323 P.P.C. For causing injury to Nazir (P. W. 9) and sentenced to pay a fine of Rs. 100 or in default to suffer one month's simple imprisonment.
Allah Rakha accused was convicted under section 324, P.P.C. On two counts for causing injuries to Nazir (P. W. 9) and Ibrahim (P. W. 11) and sentenced to pay a fine of Rs. 100 on each count or in default to one month's simple imprisonment on each count.
Mushtaq accused was convicted under section 323, P.P.C. On two counts for causing injuries to Nazir (P. W. 9) and Bashir Ahmad (P. W. 10) and sentenced to pay a fine of Rs. 100 on each count or in default to suffer one month's simple imprisonment on each count.
Nawab accused was convicted under section 323, P.P.C. For causing injuries to Nazir (P. W. 9) and on each count sentenced to pay a fine of Rs. 100 or in default to suffer one months simple imprisonment, in each count.
Rahim Bakhsh accused was convicted under section 323, P.P.C. For causing injuries to Bashir Ahmad (P. W. 10) and sentenced to pay a fine of Rs. 100 or in default to suffer one month's simple imprisonment.
The learned Additional Sessions Judge, however, acquitted Khuda Bakhsh, Dullah and Nazir Ahmad accused of all the charges.
As Allah Rakha, Mushtaq, Nawab and Rahim Bakhsh had paid the fine, the learned Additional Sessions Judge released them forth--with.
Barkat has filed the present appeal impugning the judgment of the learned trial Court dated 12th May 1976.
2. I issued notice for enhancement suo motu taking the view that if the conviction under section 304, Part I, P.P.C. Should be maintained, the sentence may call for enhancement. The appellant has accepted the notice and both the matters (Cr. A. No. 732 of 1976 and Cr. R. No. 421 of 1979) are being disposed of together by this judgment.
3. The occurrence took place on 2nd August 1974, at 11 a. m. In the area of village Barahmanabad, Police Station Barki. Shah Din (P.W. 12) made statement (Exh. P. B.) before Sh. Zahoorul Haq Sub- Inspector (P. W. 13) on the basis of which .F. I. R. (Exh. P. B./I) was reduced into writing by Hassan Muhammad A.S.I. (P. W. 6) at 6-30 p. m. The same day. The case was initially registered under sections 307/149 and 148, P.P.C. But on the death of Muhammad Ali at 4-45 p. m. On 4th August 1974, the offence was converted to one under section 302, P. P. C.
4. The case for the prosecution, briefly stated, is that Shah Din (P. W. 12) and his cousin Ibrahim (P.
W. 11) jointly owned 20 marlas of land near the house of Nawab alias Babu accused situated in village Brahmanabad. They wanted to build their houses on the plot and for this purpose they had built a katcha wall on a portion of the said plot and the rest of the plot was open. Nawab accused wanted to run a drain through it on which complainant Shah Din (P. W. 12) and Ibrahim (P. W. 11) objected. Mst. Fatima, wife of Nawab accused, and Mst. Alam Bibi, wife of Dullah accused, admonished them. The two ladies reported the matter to the police.
On the fateful day, at about 11 a. m, when Bashir Ahmad (P. W. 10) cousin of Shah Din complainant, had gone out of the village with his herd of sheep, Barkat appellant armed with an iron bar along with Mushtaq alias Kala, Nawab and Rahim Bakhsh armed with dangs, Nazir Ahmad and Allah Rakha accused armed with takwas, Khuda Bakhsh accused armed with a pistol and Dullah accused empty handed appeared at the scene of incident. Dullah and Khuda Bakhsh accused raised a lalkara and all the accused made an assault on Bashir Ahmad P. W. And inflicted injuries.
When Ibrahim (P. W. 11) tried to save his brother Bashir Ahmad (P. W. 10), he too was injured by the assailants. There after, the assailants went to the village, entered the house of Muhammad Ali deceased and inflicted injuries to him. When Nazir (P. W. 9) tried to save him, he too was injured by the assailants. Muhammad Ali succum--bed to his injuries in the hospital subsequently.
5. Dr. Sabir Ali P. W. On 5th April, 1974 at 10-30 a. m. Conducted the post-mortem examination on the dead body of Muhammad Ali and found the following injury on it:-- (1)Contused swelling (defused) 4--" x 4' on the right side of the head mainly on the temporal region extending to parietal region.
In the opinion of the doctor, the injury was caused by some blunt weapon and was sufficient to cause death in the ordinary course of nature. The cause of death was compression of the brain, intra cranial haemorr--hage and shock. Probable time between injury and death was about 2 days and between death and post-mortem examination about 18 hours.
6. Dr. Abdul Khaliq P. W. On 2nd August 1974 medically examined Nazir Ahmad (P. W. 9) and found the following injuries on his person :- (1)One contused wound 2' x --" x bone deep on the interior part of middle of head.
(2)One incised wound 3--' x --' x skin deep on the back of upper part of right shoulder blade.
(3)One swelling 2--' x 2' on the back of right hand, (4)Linear abrasion 1' x 1/8' on the right elbow.
All the injuries were simple in nature. Injury No. 2 was caused by a sharp-edged weapon, while the rest were caused by a blunt weapon, within the duration of 12 hours.
7. Barkat appellant has denied the allegations. According to him, he was involved in the case due to enmity of Ibrahim (P. W. 11) and others with his relatives like Nawab and others and also to prevent him from helping the co-accused.
8. The learned counsel for the appellant has pointed out that there is seven hours delay in the lodging of F. I. R., whereas the distance between the Police Station and the place of occurrence was two miles and connected by a metalled road. It has been further pointed out that Nazir (P. W. 9) was the solitary witness as regards the injuries inflicted upon Muhammad Ali deceased and in view of the discrepancies and conflict with the medical evidence,' the assailant of the fatal injury cannot be determined beyond reasonable shadow of doubt. The learned counsel for the appellant as well as for the State have taken me through the evidence and it has been pointed out that according to Nazir (P.W. 9) Barkat appellant gave a blow with iron bar on the head of the deceased, while Khuda Bakhsh co-accused have a blow from the butt side of his pistol on the head of the decease, whereas according to the medical evidence, the deceased had only one injury on his head.
Nazis (P. W. 9) is further criticised for the reason that his account of the incident is not supported by the medical evidence nor by other circumstances. I have noted that Nazir P. W. Has got four injuries on his person, all simple in nature. Three are with blunt weapon, but the fourth, i. e. Injury No. 2, is by a sharp-edged weapon. Nazir P. W. Has specifically stated that he was given a blow with a hatchet on the bead by Nazir Ahmad accused, but from the medico-legal report I find the injury on the head of Nazir P. W. As simple which would not be the case if a blow with a hatchet had been delivered on his bead in a fight. The case of Nazir P. W. 9 is that he fell unconscious on the receipt of the injuries and regained consciousness in the hospital, but in the F. I. R. It has been stated that he and Muhammad Ali deceased accompanied the complainant towards the police station and in this regard I have also noted that Sh. Zahoorul Haq (P. W. 13) while submitting the injury statements of Nazir P. W. And Muhammad Ali deceased (Exhs. P. J. And P. K.) has not mentioned the condition of both the injured, i.e. Whether they were conscious or unconscious. Nor is it mentioned in the F. I. R.
(Exh. P.B/1) that both the injured were unconscious. Nazir P. W. Stated that he bled at the spot, but he has been contradicted on this point by, Sh. Zahoorul Haq, Sub-Inspector (P. W. 13) when he stated that he found no blood at either of the two alleged places of occurrence. Nazir P. W. Earlier stated that nobody saw the occurrence, but con--fronted with his statement recorded in the Committing Court, it becomes clear that according to him, Sharif, Ismail, Ghulam Muhammad and Khiwana had intervened during the fight.
These persons were cited as witnesses, but were given up by the complainant. Similarly, he admitted that his wife was present at the scene of incident and she made a state--ment before the police, but she has not been cited as a witness. Accord--ing to Nazir P. W. Barkat appellant gave an injury with an iron bar on the head of Muhammad Ali deceased. According to the medical evidence, the above referred injury is described as follows :- "Contused swelling (defused) 4-- x 4' on the right side of the head mainly on the temporal region extending to parietal region."
I doubt very much if an iron bar would cause an injury of such dimensions. Dr. Sabir Ali P. W. Stated in cross-examination that this injury could be caused by a brick or a piece of a brick. Similarly, Dr. Abdul Khaliq P. W. Who had medically examined Muhammad Ali deceased stated that possibility of this injury having been caused by a brick could not be ruled out. The dimension of this injury being 4--' x 4" I am inclined to agree with the opinion of the two doctors and would prefer it over the direct evidence of Nazir (P. W. 9).
9. The learned trial Court on good reasons has disbelieved the F.I.R. The recoveries and the motive as alleged by the prosecution. The learned trial Court has also not accepted the prosecution version as to the incident having taken place at two different places, i. e. One in which Bashir Ahmad (P. W. 10) and. Ibrahim (P. W. 11) were assaulted separately at a distant place in the fields, whereas Muhammad Ali deceased and Nazir (P. W. 9) were assaulted in the house of the deceased.
The learned trial Court in paragraph 25 also observed -- "In view of my findings that both the occurrences did not take place as stated by the eye- witnesses, the natural consequence should have been that the prosecution failed to prove its case beyond reasonable doubt and benefit of which should go to the accused but, I am not inclined to hold so."
This observation is a contradiction in its own terms. The benefit of doubt, if any accruing, should have been given to the accused.
In a criminal case whenever the prosecution version suffers from such general doubts as to make the reliability of the version doubtful, benefit of this doubt has to be extended to the accused. The extension of this benefit of doubt is given to the accused as a matter of right and is not an act of grace on the part of Criminal Courts. In contra-distinction to civil cases where the comparative preponderance of the weight of evidence led by the parties is a material and deciding factor, in criminal cases the burden of proof is always on the prosecution and it has to discharge its onus effectively and beyond all reasonable doubt and has to prove its case in a manner that leaves absolutely no doubt in the mind of the Court about the guilt of the accused. The prosecution has to prove its case in a manner, so as to exclude every possibility of the innocence of the accused.
Whenever the prosecution evidence falls short of this standard, it is a case in which benefit of doubt has to be extended to the accused. This is a view that has been consistently followed by l superior Courts in Indo-Pakistan Sub-Continent and though it originated as a rule of prudence, it has now developed into a rule of law.
The learned trial Court in the same paragraph has concluded his findings as follows :- "I would rather say that this occurrence did take place on the day and at time alleged by the prosecution. But it took place where disputed wall was being raised and was demolished by Barkat accused. This proposition spells out from the prosecution evidence and the circumstances as discussed above. It looks that the complainant party had tried to raise walls on the disputed land which were demolished by Barkat, because it obstructed flow of rain water from their haveli which resulted in the present occurrence. So it will be treated as a free fight in which each person will be held responsible for his own act and all the accused cannot be vicariously held responsible for the acts of their co-accused.
10. The above referred findings recorded in paragraph 25 by the learned trial Court have been accepted by the State as well as the com--plainant,, as neither of the two has challenged the same by way of State appeal against acquittal under section 302, P. P. C. Or by way of a private revision by the complainant. That being the case, and the conclusions arrived at by the learned trial Court being based on good evidence, not being unreasonable, and the learned trial Court also having the advantage of watching the conduct and demeanour of the witnesses, it would be proper to adhere to the same at the appellate stage even though a con--trary view be possible, and more particularly so when neither the State nor the complainant challenges the view taken by the learned trial Court.
In this view of the matter, the issue clinches to determining beyond reasonable shadow of doubt the assailant of the fatal injury.
I have already observed in the preceding paragraph that the F. I. R. The recoveries and the motive have been rightly disbelieved by the learned trial Court. I have also observed earlier that Nazir (P.
W. 9) is not supported by the medical evidence qua his on injury, much less to say, regarding the injury on the head of the deceased. He has attributed the fatal injury to Barkat appellant and that too by an iron bar, whereas accord--ing try the doctor's opinion as well as, as is apparent from the dimen--sions, it, appears very likely to have been suffered by a brick or a Bang of wider dimension than an iron bar. I have already pointed out other discrepancies, variations and contradictions apparent qua the statement of Nazir (P. W. 9).
In this view of the matter, in the absence of any strong incriminating corroboration, I do not find it safe to place any reliance on the testi--mony of Nazir P. W. 9 when he proceeds to attribute the fatal injury with an iron bar to Barkat appellant. I, therefore, by way of abundant caution, giving the benefit of doubt to Barkat appellant, allow his appeal set aside his convictions and sentences and acquit him of the charges under section 304, Part I, P. P. C. As well as under section 323, P.P.C. He shall be set at liberty forthwith if he is not wanted in any other case.
Consequently, the notice for enhancement issued to Barkat appel--lant vide orders dated 16-5- 1979, is discharged and the suo motu revision (Cr. R. No. 421 of 1979) stands dismissed.