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Criminal Appeal No. 115 of 1965, decided on 1st November 1967.
, S. 304 read with S. 100‑Private defence, right of‑Complainant party reluctant to contact police and police informed only at instance of attending doctor‑Accused party receiving large number of injuries‑Such injuries not explained by prosecution‑Prosecution witnesses related and interested Material discrepancies in statement of such witness‑Fact, not disclosing sudden fight‑Self‑defence though not specifically pleaded yet inferable from witness's cross‑examination‑Accused' s in circumstances, held acted in self‑defence‑Conviction set aside.
Malik Sardar Ahmad for Appellants Nos. 1 and 2.
Nasim Hass an for Appellant No. 3.
S. M. Zamir Zaidi for the State.
Dates of hearing: 26th, 30th, 31st October and 1st November 1967
In this appeal, Sardar Muhammad and Ghulam Haider have been convicted under section 304, P. P. C., and sentenced to five years' R. I. while Wali Muhammad has been convicted under section 323, P. P. C: He was sentenced to six months' R. I. by the learned Additional Sessions Judge, Multan, by his order dated the 1st of February 1965.
2. The prosecution story disclosed by Nawab P. W. is that on the day of occurrence, the deceased alongwith the complainant Nawab and Shah Muhammad had to go in order to purchase some manure from Bakhshishgarh, which is at a distance of If square from the house of Nawab P. W. They left for Mauza Bakhshishgarh. When they reached neat the Jawar field of Motu Kumhar, the present appellants alongwith the two acquitted accused, namely, Elahi Bakhsh and Charagh, came out of the Jawar field. They were armed with Dangs. Elahi Bakhsh, acquitted accused, shouted not to spare Nawab deceased. At his instigation, Dara appellant gave a Danda blow on the head of Nawab deceased, as a result of which he fell down. Haider appellant is alleged to have caused Dang injury to Nawab deceased when he was lying on the ground. Charagh, acquitted accused and Walla, caused injuries to Nawab, P.W. and others with Dangs. The occurrence took place on the 2nd June 1964, at Dopharwela, within the area of Bakhshishgarh, tebsil and district Multan. The deceased was carried to Qadarpur Rawan hospital for treatment, and the doctor told the persons accompanying the deceased that his condition was serious and that he should be taken to Nishtar Medical College Hospital, Multan, where he was shifted immediately. At the information oft he doctor in the Nishtar Hospital, Head Constable Allahditta (P. W. 15) came there and recorded the statement of Nawab son of Babu, Exh. P. A., at 7‑30 a. m. The formal F. I. R. Exh. P. A/1 was recorded by M. H. C. Abdul Hamid (P. W. 6), at Multan Saddar. Police Station. The distance between the place of occurrence .and the police station is 10 miles.
3. In support of the prosecution ease, Nawab (P. W. 11), Saleh Muhammad (P. W. 12) and Nazeer Ahmad (p. W. 13) have been produced as eye‑witnesses of the occurrence. Lashkar and Ahmad though mentioned in the F. I. R, were not produced at the trial.
4. Dr. Rashid Ahmad, A. M. O. Qadirpur Rawan (P. W. 1) examined Nawab son of Fateh Muhammad at 2‑30 p. m. and made the following observations:‑ ,
(i) A man of well built physique of about 27 years. He was unconscious.
(ii) A contused wound on the occipital bone on the left side of the middle line. His pulse was 110 per minute. His respiration was 37 per minute. His temperature was 106. His blood pressure was 180/110. His pupils were dilated. He was respirating with labour. The upper portion of the belly was distended very prominently. At that time, Muhammad Afzal, Chairman of Union Council Babuwala No. 181, and Member, Union Council Qadirpur Rawan No. 181, Haji Muhammad Alyas Khan were present, and they signed the doctor's report, Exh. P. B.
The doctor advised that the condition of the patient was serious and he should be removed to the Nishtar Hospital.
5. Dr. Naseer Ahmad, Casualty Medical Officer, Nishtar Hospital, Multan (P. W. 2) examined Nawab deceased on the 2nd of June 1964, at 4‑25 p. m. and found the following injuries on his person:‑---
(i) A contused wound 1"x 1/8, on the top of the roof of the skull.
(ii) A swelling 1 x l' on the left side of the head.
(iii) One contusion 3 x ", on the front and outer side of the left shoulder.
(b) He examined Salah Muhammad P. W. the same day, at 8m00 p. m. and found the following injuries on his person:‑
(i) A lacerated wound 2" x 1/8' x ", on the left outer side of the head, behind the parietal prominence.
(ii) A swelling 2'x 2", on the dorsal of the right hand.
(iii) A laceration on the front and inner side of right leg, measuring 1" x ", 4" above the ankle.
(iv) A laceration, 3" x 1/8, just below the right knee.
(v) A laceration 2 X , on the front of right leg in between ‑ injury No. 3 and 4.
(vi) Patient complained of pain between the right shoulder and neck.
(c) He also examined Nawab alias Babu; son of Fazal Din, and found the following injuries on his person:‑
(i) A bruise with swelling 2" x 2", at the back of right hand.
(ii) A bruise 2 x " on the lateral aspect of right fore‑arm.
(iii) A bruise, 2 " on the palmer aspect of, left fore‑arm.
(iv) A bruise 1 " x , on the left iliac rest.
6. Dr. Rashid Ahmad, A. M. O. Qadirpur Rawan (P. W: 1) examined Sardar Muhammad appellant on 2‑6‑1964, at 4‑00 p. m: and found the following injuries on his person:‑
(i) A contused wound on the right side of the head, 2" x "x scalp deep, parallel to the middle line, 2" away from it and, 3 " above the right eye‑brow with swelling around the wound measuring 2 ' X 4".
(ii) A contused wound obliquely behind the left ear, " x " x .
(iii) A bruise on the posterior border of the left ear, 2 above the pinna of the ear, measuring 1/10" x .
(iv) There is fresh bleeding through the external auditory measures of the left side.
(v) A contused wound " x " x bone deep virtically on the dorsal side of the third phalynx of the right ring finger.
(vi) Multiple bruises, 6" x 2" on the left knee joint and below the knee joint.
(vii) An incised wound virtically below the left knee cap, measuring 2" x 1/5".
(viii) A contused mark 2 ' x 1",‑obliquely on the medial upper angle of the left shoulder blade on the back.
(ix) A contused mark, 12" x 1", virtically parallel to the spinal column 1" below the injury No. 8, on the left side of the back.
(x) A contused mark, 10" x 1" obliquely on the right side of back starting from the inferior angle of the right shoulder blade to the lower and of injury No. 9.
Injury Nos. 1 and 2 were kept under observation which were found to be simple. Injury No. 7 was caused by a sharp‑edged weapon, and. the rest with blunt weapon.
(b) On the 4th of June 1964, at 11‑00 a. m. he examined Ghulam Haider appellant, and found the following three injuries on his person :‑
(i) An abrasion x ", on the outer side of lower end of the left fore‑arm, 1" above the left wrist joint.
(ii) An abrasion " x ", on the dorsal aspect of the third phalynx of the left ring finger.
(iii) An abrasion " x ", on the anterior aspect of the second joint of the left thumb.
(c) The same day, he examined Wali Muhammad appellant and found the following simple injury caused with blunt weapon on his person:‑
(i) A contusion 3 " x 1 ", on the left side of the neck, 2f, away from the left shoulder joint parallel to the medical line.
7. The learned Additional Sessions judge, partly disbelieved the prosecution story i. e. the purpose of purchase of manure from Bakhshishgarh by the complainant party. He held the matter as a sudden fight and convicted the two appellants under section 304, P. P. C. and the third under section 323,. P.. P. C.
8. The motives for the crime are given as under:‑
(a) About 40 or 45 years ago, one Pola who died 2 to 3 years earlier, bad enticed Mst. Fatima, wife of one Kanwal maternal uncle of Nawab P. W. when they were living in Jullunder district in East Punjab. He kept Mst. Fatima as his mistress who gave birth to Sardara, Walla and Charagh.
(b) Five or six years back, Walla and Darra assaulted Lashkar, uncle of Nawab P. W. in Mauza Madina. Two or three years after that, Nawab deceased was sentenced to three months' R. I. for causing injuries to Walla and Sardara, appellants.
(c) About a week or so before the occurrence. Nur Muhammad Patwari came to village Bakhshishgarh, at the Dera of Nawab P. W. for the preparation of list of voters. Nawab requested the Patwari to enter the name of Qadar Bakhsh in the list of voters, who is his cousin. Haider appellant objected to the inclusion of this name in the list of voters, because Qadar Bakhsh was not the resident of the locality and was residing in Montgomery district. At his objection, the Patwari deleted the name of Qadar Bakhsh from the list.
(d) Lastly a few days after the above incident, Nawab deceased and Nawab P. W. gave beating to Haider appellant, for raising the objection, as a result of which the name of Qadar Bakhsh was deleted from the list of voters.
9. Before the Committing Magistrate, all the appellants denied the assault. The injured appellants, however, explained that their injuries were caused by a large number of persons who attacked them. Sardara appellant, however, admitted that he gave Sota blows to Babu and Lashkar P. Ws. At the trial, Sardara explained that Muhammad Amin son of Bakhsh accused had taken away his plough. He, Hasna, Haqoo, Fazla, and Muhammad Amin were ploughing their land. During Martial Law regime, they had beaten Lashkar P. W. They had grievance against them. On the day of occurrence, they saw 30 or 35 people coming. On seeing them, they ran to the house of Bakhsha. The P. Ws. followed them and caused them injuries. They, however, produced two witnesses, Ashiq (D. W. 1) and Muhammad Afzal (P. W. 2), who were formerly the recovery witnesses, in defence.
10. Dang Exh. p. 8, was recovered from Haider appellant. Danda Exh. 9 was recovered from Sardara and a Sota from Walla. The recovery memos. are Exh. P. G and P. J, respectively. These recoveries were effected by A. S. I. Muhammad Anwar P. W. and were attested by Ali Akbar (P. W. 3) and Muhammad Bakhsh (P. W. 8) Muhammad Ishaq (P. W. 4) and Nazar Mohy‑ud‑Din (P. W. 9) are the formal witnesses, while Nur Muhammad (P. W. 6) prepared the site plan of the place of occurrence. The case was investigated by lqbal Shah, S. H. O. (P. W. 14).
11. Nawab (P. W. 11) is a cousin of the deceased, Saleh Muhammad (P. W. 12), and Nazeer Ahmad (P. W. 13) are related inter se as also with the deceased. There are material discrepancies in the statements of these witnesses, and the learned Additional Sessions Judge has rightly disbelieved the story that they had gathered at the house of Nawab with the intention to go to village Bakhshishgarh in order to purchase manure.
12. Sh. Nasim Hassan, the learned counsel for the appellant No. 3, raised the following contention:‑
(i) That no F. I. R. at the instance of the complainant was lodged,
(ii) P. Ws. are not only related to the deceased, but are also interested,
(iii) The prosecution witnesses having been partly disbelieved cannot be relied upon for the rest of the occurrence as there is no divisibility of credibility of the witnesses, and
(iv) Lastly, the injuries of the accused have not been mentioned in the F 1. R., and have also not been explained.
It was next pointed out by the learned counsel that from the circumstances of this case, the conclusion derived by the learned Additional Sessions Judge that the occurrence was in the nature of a sudden fight is incorrect.
13. It is admitted that in this case the complainant party1 remained for about an hour or so at Qadarpur Rawan Dispensary. The deceased was accompanied by his relations. None of them contacted the police, although the police post is close by. Even after reaching Multan, it was the doctor who informed the police and at the instance of this doctor, the Head Constable recorded the statement of Nawab P. W. It can obviously be inferred that the complainant party was reluctant in approaching the police. Even in the statement of Nawab P. W. he has not explained a large number of injuries caused to the appellants. There is a sharp‑edged injury on the person of Sardara appellant which goes to show that some one from the complainant party was also armed with a sharp‑edged weapon. Though the doctor in reply to the Ruqqa of the police has opined that this was a self‑suffered injury, yet I do not agree that such an injury can be self‑suffered. The injury being under the knee would obviously be not caused by a friendly hand, as there is likelihood of the permanent disability of the leg. A person causing injury to him self may cause such an injury on any other part of the body which is not so vital so as to avoid a permanent disability.
14. In support of his contention regarding the indivisibility of credibility of the witnesses, the learned counsel cited, Muhammad Fiaz Bakhsh v The Queen (P L D 1959 P C 24) and Muhammad and Sher v The Crown (P L D 1954 F C 84).
15. The injuries on the person of the accused have not been mentioned in the first statement of Nawab. Crudely, the witnesses have tried to mention some injuries at the trial, but that cannot be considered an explanation of the injuries of the accused persons. The prosecution has not come with clean hand in Court. The origin of the fight, therefore, cannot be determined. The recovery of blood from the place of occurrence is differently deposed by the investigating officer and the other witnesses. Even otherwise, .it is most unnatural for the complainant party to go by a pagdandi which passes hardly at s distance of 11 karams from the house of one of the appellants, with whom they have a long‑standing enmity, which is continued by a recent trouble on account of the deletion of the name of Qadar Bakhsh, a relation of Nawab deceased, at the instance of Haider appellant from the voters List.
16. The finding of the learned Additional Sessions Judge, is obviously incorrect. The occurrence cannot be described as a' sudden fight. The ingredients of a sudden fight are not present in the instant case. The witnesses having been disbelieved regard ing the presence of the complainant party near the house of one of the appellants creates a doubt in my mind that the occurrence has not taken place in the manner in which it has been described. It is unsafe to rely on the statements of the witnesses, who are interested, and there is no other corroboration forthcoming in this case. Independent witnesses could be produced at the trial, there being a well nearby, which is inhabited, and it is in the evidence of the witnesses that some of the persons including women‑folk came at the spot at the time of occurrence, but none of them has been produced.
17. Disbelieving the prosecution story, we are left with the statements of the appellants who have stated that some of them were ploughing their field and a large number of persons came including the complainant to attack them. They ran to the house of one of the accused, but they were followed and given injuries by those persons. Although they have not specifically taken the plea that caused injuries to the deceased in their self‑defence, but this can be inferred from the cross‑examination of the witnesses. A large number of injuries have been given to the appellants, and some of them are on the head. In the circum stances, the appellants did have the right to cause even the death of any of the aggressors. I would, therefore, accept this appeal, set aside the conviction and sentence of the appellants, and acquit them. I direct that they be set at liberty forthwith, if not wanted in any other case.
Appeal accepted.
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