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Criminal Appeal No. 780‑of 1964, decided on 23rd September 1968:
S. 307‑--Attempt to murder ---Difference of opinion between two Doctors with regard to injuries found on persons of accused and complainant party‑--Benefit to go to accused rather than to prosecution‑Accused acquitted on benefit of doubt.
S. 307‑--Version of accused supported by unchallenged testimony of eye‑witnesses fitting in with circumstances of case‑--Reasonable possibility that version of accused might be true‑--Conviction and sentence of accused set aside.
Safdar Ali v. The Crown P L D 1953 F C 93 and Muhammad Siddiq v. The Crown P L D 1954 F C 112 rel.
Sardar Ataullah Qureshi for Abdul Majid Asghar for Appellants.
Kh. Saeed‑ul‑Hassan for A: G. for the State.
Muhammad Ashraf son of Ahmad Ali and Zulfiqar Ali appellants were convicted under section 307, P. P. C. and sentenced to five years' rigorous imprisonment each for the attempted murder of Muhammad Tufail (P. W. 13) by the learned Additional Sessions Judge, Lahore. Muhammad Akbar appellant was convicted under section 304, Part II, P. P. C. and sentenced to five years' rigorous imprisonment for causing the death of Fateh Muhammad deceased Muhammad Asghar, Muhammad Ashraf son of Shah Din, Muhammad Iqbal and Muhammad Ashiq, who were also tried alone with the appellant were however acquitted. Zulfiqar Ali and Muhammad Akbar appellants against their convictions and sentenced have preferred a joint appeal (Criminal Appeal No. 780 of 1964), while Muhammad Ashraf has filed a separate appeal (Criminal Appeal No. /31 of 1964). Since both these appeals arise out of the same judgment they will be disposed of together by this order.
2. Some of the appellants and the acquitted accused are related inter se. Muhammad Akbar is the son‑in‑law of Zulfiqar Ali appellant. Muhammad Iqbal, acquitted accused is the son of Zulfiqar Ali. Muhammad Asghar, acquitted accused, is also related to Zulfiqar Ali appellant, but the exact relationship is not disclosed on the record. Muhammad Ashraf son of Ahmad Ali is alleged to be an associate of Zulfiqar Ali appellant.
3. About a year prior to the occurrence under consideration a daughter of Zulfiqar Ali appellant and Mst. Shakila, daughter of Dil Muhammad (P. W. 10), one of the brothers. of Fateh Muhammad deceased, had a quarrel. On the same evening at about 8 O'clock Zulfiqar Ali and his wife came into the house and gave a beating to Mst. Haleema Bibi (P. W. 9), another daughter of Dil Muhammad P. W., who raised an alarm, which brought her mother and Muhammad Sharif (P. W. 14) shopkeeper and others to the spot and they intervened and stopped the fight. Dil Muhammad P. W. made a report about this incident to Superintendent of Police, Lahore, who forwarded it to the local Police. Thereafter the Sub‑Inspector, who was conducting the inquiry, hushed up the matter to the non‑satisfaction of Dil Muhammad P. W. Since then their relations became strained.
4. The houses of Fateh Muhammad deceased, Dil Muhammad P. W. and Zulfiqar Ali appellant are close to each other situated in Kabudpura. Only a lane intervenes between the houses of the deceased and Zulfiqar Ali appellant. Two months prior to the occurrence under consideration Noor Muhammad (P. W. 11) another brother of Fateh Muhammad deceased, who used to reside in Mozang had taken his cattle to Kabudpura to the houses of his brothers, Fateh Muhammad deceased and Dil Muhammad P. W. On the 29th of July 1962, at about 12 noon, there was a dispute between Muhammad Riaz (P. W. 12), a nephew of the deceased and the appellant Muhammad Ashraf son of Ahmad Ali. Noor Muhammad P. W. intervened and separated the parties. Thereafter Muhammad Ashraf son of Ahmad Ali ran into the house of Zulfiqar Ali appellant. On the same day at about 3 p. m. Fateh Muhammad deceased and his brothers Noor Muhammad (P. W. 11) and Muhammad Tufail (P. W. 13) and one Munir son of Noor Muhammad P. W. were busy in milching buffaloes when they heard an uproar of the appellants and the acquitted accused. Muhammad Riaz P. W. went ahead while Noor Muhammad, Muhammad Tufail P. Ws. and Fateh Muhammad deceased followed him. They saw Muhammad Akbar, Muhammad Asghar, Zulfiqar, Muhammad Iqbal and Muhammad Ashraf son of Ahmad Ali standing in front of their house close to the corner of the house of Dil Muhammad P. W., Zulfiqar Ali was armed with a hatchet, Ashraf son of Ahmad Ali with a knife and Asghar, Iqbal and Akbar with lathis. Zulfiqar Ali appellant gave a lalkara exhorting his companions to attack Muhammad Riaz P.W., which Muhammad Akbar gave him a dang blow. Muhammad Tufail P. W. then came to the rescue of Muhammad Riaz, when Muhammad Ashraf son of Ahmad Ali gave a knife blow on his thigh. Zulfiqar Ali gave a hatchet blow on his head and felled him down. While he was lying down Zulfiqar Ali gave another hatchet blow, which hit him on his jaw. At that juncture Fateh Muhammad deceased went forward in order to rescue Muhammad Tufail P. W., Zulfiqar Ali exhorted his companions not to spare Fateh Muhammad. Thereafter he gave a hatchet blow with its blunt side on the thigh of the deceased. After that Muhammad Akbar, Muhammad lqbal and Muhammad Asghar gave him lathi blows. Muhammad Iqbal also gave a dang blow to Noor Muhammad P. W. Muhammad Akbar gave a dang blow to Muhammad Riaz P. W. Besides the injured P. Ws. the occurrence was also witnessed by Muhammad Sharif shopkeeper (P. W. 14), Muhammad Sharif, Milk‑seller (P. W. 15), Ahmad Din (P. W. 16), Ashiq Hussain (P. W. 17) and Muhammad Latif (P. W. 18). After that the five assailants went away to their respective houses. The aforementioned version of incident is given by Noor Muhammad, Muhammad Riaz, Muhammad Tufail, Muhammad Sharif shopkeeper, Muhammad Sharif Milk‑seller and Ahmad Din. They did not mention the presence of Muhammad Ashiq and Ashraf son of Shah Din, who were also tried along with the aforementioned five accused persons. They also did not mention the presence of Ashiq Hussain (P. W. 17) and Muhammad Latif (P. W. 18) who are also alleged to have witnessed the occurrence.
5. Ashiq Hussain and Muhammad Latif P. Ws. have given a totally different version of the incident: Besides the five aforementioned accused‑persons they have also implicated Muhammad Ashiq and Muhammad Ashraf son of Shah Din. According to their version on the 29th of July 1962, Ashiq Hussain P. W. was present at his shop along with Muhammad Riaz P. W. while Zulfiqar Ali was sitting in front of his house, when Ashraf son of Ahmad Ali, Ashraf son of Shah Din, Muhammad Ashiq and one Roshan, drum‑beater, came to his shop. Zulfiqar Ali enquired from Muhammad Ashraf son of Ahmad Ali as to where he was going and he replied that they were going to take part in the urs of one Faqiria Pehlwan being held in Kabudpura. Thereafter all the four persons proceed ed to the Mazar and Muhammad Riaz P. W. followed them. When they reached in front of the shop of Muhammad Sharif Milk‑seller, Muhammad Ashraf son of Ahmad Ali and Muhammad Riaz started exchanging abuses. The house of Muhammad Riaz P. W. is adjacent to the shop of Muhammad Sharif milk‑seller. On hearing the row, the mother of Muhammad Riaz P. W. came out took Muhammad Riaz into her house. The aforementioned four persons then dispersed. At about 4 p. m. on the same day .Muhammad Latif P.W. came to the shop of Ashiq Hussain P. W., when Muhammad Akbar, Muhammad Asghar and their driver Muhammad Ali were sitting with Zulfiqar Ali outside his house, in front of the shop of Ashiq Hussain P. W. A short while later Ashraf son of Ahmad Ali, Ashraf son of Shah Din and Muhammad Ashiq returned from the side of the Mazar and threw a challenge. From the opposite side Muhammad Riaz, Noor Muhammad, Muhammad Tufail, Dil Muhammad P. Ws., V‑h Muhammad deceased and one Mehraj Din Machhi came out. Muhammad Riaz P. W. had a knife, while the rest of the members of his party were armed with lathla. Muhammad Ashraf son of Ahmad Ali was armed with a knife, while his companions were empty handed. The party of Muhammad Riaz P. W. and the party of Muhammad Ashraf son of Ahmad Ali then started a fight. Muhammad Ashraf son of Shah Din and Muhammad Ashiq picked up some pieces of wood from in front of the shop of Ashiq Hussain P. W. and then both the parties assaulted each other. Zulfiqar Ali tried to separate the parties, upon which Muhammad Riaz and Muhammad Tufail P. Ws. exhorted their companions to deal with Zulfiqar Ali and not to spare him. Muhammad Riaz P. W. gave a knife blow to Zulfiqar Ali on his right shoulder. Muhammad Iqbal son of Zulfiqar Ali appellant seeing the fight, brought sotas from the house and distributed them among the companions of Muhammad Ashraf son of Ahmad Ali. Muhammad Iqbal also gave a hatchet to his father Zulfiqar Ali. Muhammad Ashraf son of Ahmad Ali then gave a knife blow to Muhammad Tufail, who gave a sofa blow, to Zulfiqar Ali. Zulfiqar Ali then struck a hatchet blow on the head of Muhammad Tufail P. W. Muhammad Akbar and Muhammad Iqbal gave a sota blow each to Fateh Muhammad deceased. Muhammad Latif, who was sitting at the shop, tried to intervene, but also received injuries. Muhammad Tufail and Zulfiqar Ali fell down and the rest of the assailants ran away.
6. Muhammad Tufail and Fateh Muhammad were taken on a rehra to Police Station Baghbanpura, which is at a distance of about 1 miles from there. According to Noor Muhammad P. W. the Police refused to record any report. After that Noor Muhammad and his companions took both Muhammad Tufail and Fateh Muhammad to Ganga Ram Hospital and got them admitted there. Assistant Sub‑Inspector Muhammad Ali (P. W. 21) went to Ganga Ram Hospital at about 11‑30 p. in. on the same day and recorded statement Exh. P. A. of Noor Muhammad and sent it to the Police Station for the registration of the case. Moharrir Head Constable Barkat Beg at 12‑10 a. m. on the 30th of July 1962 drew up formal first information report Exh. P. A/1 on the basis of statement Exh. P. A. Assistant Sub- Inspector Muhammad Ali after sending statement Exh. P. A. to the Police Station, proceeded to the place of occurrence and recovered blood‑stained earth as well as four pieces of wood lying there. While he was at the scene of offence, he learnt about the death of Fateh Muhammad deceased. He accordingly went back to Ganga Ram Hospital and after preparing injury statement Exh. P. H/ 1 and inquest report Exh. P. F. of the dead body of Fateh Muhammad deceased, sent it to the mortuary for post‑mortem examination. He had also prepared injury state ments of Noor Muhammad and Muhammad Riaz P. Ws. and Muhammad Ashraf son of Shah Din, acquitted accused, whom he had arrested. He got statement Exh. P.W. 13/1 of Muhammad Tufail P. W. recorded at Ganga Ram Hospital by Raja Nasrullah Khan Magistrate (D. W. 1) Except Muhammad Ashraf son of Shah Din, all the rest of the accused were arrested by Sub-Inspector Fazal Ahmad (P. W. 25). He prepared injury statements of Muhammad Ashraf son of Ahmad appellant Muhammad Latif P.W. and got them medically examined.
7. On the 30th of July 1962, Dr. A. H. Nizami (P. W. 1) performed post‑mortem examination of the dead body of Fateh Muhammad deceased and found the following injuries:--
(1) A surgical dressing was present on the left elbow. On removing the dressing there was a swelling 1" x " on the back of left elbow.
(2) A scabbed abrasion, " x ", on the dorsum of right thumb.
(3) An oblique contusion, 2 " x " on the right side of chest upper part in front.
(4) A contusion, " x " on the right side of back oblique, 2" from the mid‑line at its middle.
(5) A contusion mark, 2" x 1", on the back side of left lower chest at the posterior axillary line transverse.
(6) The lower abdomen was discoloured (bluish) and distended in lower half portion.
On dissection of injuries Nos. 4 and 5 it was found that there was extra vascation of blood in the tissues as ribs fractures under both the injuries. On the right side, 10th and 11th ribs and on the left side 9th, 10th and 11th ribs were found fractured. Liver was ruptured on the right side, " x " x ". Death, in the opinion of the doctor, was due to shock and haemorrhage as a result of the rupture of the liver and spleen on account of injuries Nos. 4 and 5, which were sufficient in the ordinary course of nature to cause death.
On the same .day the doctor examined Noor Muhammad P. W. and found the following injuries on his person:
(1) A contusion mark, 4" x 1" on the back of left shoulder near the middle line.
(2) A contusion mark, 3" x " on the right back lower part. Both the injuries were simple and had been caused by a blunt weapon.
On the same day the doctor examined Muhammad Riaz P. W. and found a superficial incised wound, " x 1/8" with a small tail on the left palm near the root of the left thumb. The injury was simple and had been caused by a sharp‑edged pointed weapon.
8. On the 4th of August 1962, at 7‑30 a. m., Doctor Ghulam Haider Shah, Medical Officer, Police Surgeon Office, Lahore (P. W. 2) examined appellant Muhammad Ashraf son of Ahmad Ali and found the following injuries on his person:‑
(1) A semi‑healed wound, " x " on the anterior upper part of the right upper arm.
(2) A scabbed abrasion, 2" x 1/10" on the back of left forearm, about 4" from the wrist joint.
(3) An abraded, abrasion " x 1/8" in front of right knee joint.
All the injuries were simple and had been caused by a blunt weapon.
On the 2nd of August 1962, at 8‑30 p .m., the doctor examined Muhammad Latif P. W. and found the following injuries on his person:‑
(1) An abrasion, " x ", on the right side of the top of head.
(2) An abrasion, " x ", on the right knee joint.
(3) A bluish contusion, 3" x ", on the anterior lower part of the left thigh.
All the injuries were simple and had been caused by a blunt weapon on the 5th of August 1962, at 9‑30 p. m., he examined Muhammad Ashraf son of Shah Din, acquitted accused, and found an abrasion " x " on the outer part of right elbow joint. The injury was simple and had been caused by a blunt Weapon.
9. The appellants denied their guilt. Zulfiqar Ali appellant before the Committing Magistrate made the following statement:
"I am a resident of Sargodha. I am living in Kabudpura because of service in Lahore. I had no enmity against the complainant party either to attack them or to kill anybody. There was some quarrel between the complainant and the local party. On the day of occurrence the complainant party attacked that local party in front of my house at about digerwela. I went forward to separate the parties. I was attacked by the complainant party and was given blows. In the meantime, my sister's son Akbar came there on a tractor with his driver to fetch a tarali from Lahore in compliance with a letter which I hereby produce. The letter is Exh. P. D. He saw me being attacked by the complainant party. He came forward to rescue me. He was also attacked by the complainant party. Asghar and Iqbal accused were not present at the time of the occurrence. I and Akbar were empty handed. We did not give any blow either to the deceased or to any of the P. Ws. The case against me is false and concocted and I am innocent."
At the trial he made the following statement:‑
"On the day of the occurrence I was sitting in front of my own house. There was a quarrel between two local parties. I went forward to separate them, empty handed. I was given blows. At that very time my sister's son Akbar had arrived on his tractor. He saw me being beaten. He came forward to save me and was beaten. I did not give any blow to any body. I have been falsely implicated."
Muhammad Akbar at the trial made the following statement:‑
"On the day of occurrence at about evening I came on my tractor with my driver only. When I reached the house of my maternal uncle Zulfiqar accused, I saw him being actually beaten in a fight which was previously going on between local parties. I was empty handed. I went forward to save my maternal uncle Zulfiqar and I was beaten there. Iqbal and Asghar were not there. All the allegations against me are false."
Muhammad Ashraf son of Ahmad Ali pleaded alibi by stating that he was not present at the spot. He stated that he had been falsely implicated due to enmity with, the P. Ws. In their defence they examined Raja Nasrullah Khan Magistrate (D. W. 1), Dr. S. Siddique Hussain, Medico legal Surgeon West Pakistan, Lahore (D. W. 2), Dr. S. Azhar Ali (D W. 3) and Doctor Amin Ahmad (D. W. 4). Raja Nasrullah Khan D. W. stated that on the 30th of July 1962, when he was posted as Magistrate with section 30 powers Lahore, he recorded statement Exh. P. W. 13/1 of Muhammad Tufail P. W. when he was fully conscious and was in a fit condition to make a statement, which fact was also certified by the doctor. Doctor S. Siddique Hussain D. W. stated that on 3rd August 1962, at 9‑15 p. m. he medically examined appellant Muhammad Ashraf son of Ahmad Ali P. W. and found no mark of injury on his person. Doctor S. Azhar Ali D. W. stated that the medico‑legal reports Exhs. D.M. and D. N. on the file of the cross‑case "State v. Muhammad Riaz etc. under sections 324/149 and 148, P. P. C." are in the handwriting of Doctor Amin, who had been transferred. He also identified the handwriting Exh. D. W. 3/1 as that of Doctor Muhammad Ayub Khan. Doctor Amin Ahmad D. W. stated that on 29th of July 1962, he examined Zulfiqar Ali appellant and found the following injuries on his person.
(1) An incised wound, " x 1/6" on the left arm upper.
(2) A lacerated wound on the scalp, " x 1" on the frontal region.
(3) A lacerated wound, 1" x " mandibular joint below right ear lobule.
(4) A linear abraded wound, 2" x 1/10" over the right leg.
(5) Laceration of superficial tissue under tongue 1 x ".
(6) An incised wound, " x " over the little finger.
(7) A contusion, 2" x " over the left lower thigh back side.
(8) A contusion, " x " below the right lobule. All the injuries were simple and had been caused by sharp and blunt weapons.
On the same day he also examined Muhammad Akbar appellant and found the following injuries:‑
(1) A lacerated wound, 1 " x " over the skull.
(2) A contusion " x " on the right shoulder tip.
Both the injuries were simple and had been caused by a blunt weapon.
10. The prosecution case against the appellant rests on the testimony of the alleged eye‑witnesses, namely, Noor Muhammad (P. W. 11), Muhammad Riaz (P. W. 12), Muhammad Tufail (P. W. 13), Muhammad Sharif son of Muhammad Din Shopkeeper (P. W. 14), Muhammad Sharif son of Akbar Ali, milk‑seller (P. W. 15), Ahmad Din (P. W 16), Ashiq (P. W. 17) and Muhammad Latif (P. W. 18). The learned Additional Sessions Judge did not place reliance on the testimony of the last five eye-witness. The learned Additional Sessions Judge relied on the evidence of Noor Muhammad, Muhammad Riaz and Muhammad Tufail P. Ws. so far as the appellants were concerned because they had injuries on their persons, showing that they had taken part in the commission of the offence. He did not place reliance on their testimony so far as the co‑accused were concern ed because they were uninjured and, therefore, according to him it had become doubtful as to whether they had taken part in the commission of the offence.
11. The appellant Muhammad Ashraf son of Ahmad Ali was examined by Doctor S. Siddique Hussain, Medico‑legal Surgeon West Pakistan, Lahore '(D. W. 2) on the 3rd of August 1962, and it was found that he had no mark of injuries on his person. He was arrested by the police on the 4th of August 1962 and on the same day at 7‑30 p. m. he was examined by Doctor Ghulam Haider Shah, Medical Officer, attached to the office of the Police Surgeon Lahore. The said doctor found the following injuries on his person:‑
(1) A semi‑healed wound, " x " on the anterior upper part of the right upper arm.
(2) A scabbed abrasion, 2" x 1/10" on the back of left forearm about 4" from the wrist joint.
(3) An abraded abrasion, " x 1/6" in front of right knee joint.
The learned Additional Sessions Judge relied on the evidence of this doctor and not on the evidence of Doctor Siddique Hussain and that is why he came to the conclusion that aforementioned appellant had also taken part in the commission of the offence. It Was, however, contended by the learned counsel for the appellants that before his arrest he was found not to have been injured by not less a person than a police surgeon and, therefore, the evidence of Doctor Ghulam Haider Shah P. W. should not have been accepted in preference to the evidence of the other doctor. From the above it is clear that there is difference of opinion between the two doctors and so it is difficult to say as to which of the two doctors is correct and, therefore, in my opinion the benefit should go to the accused rather than to the prosecution. I, accordingly, giving benefit of doubt to Muhammad Ashraf son of Ahmad Ali accept his appeal, set aside his conviction and sentence and acquit him. He should be released forthwith if not wanted in any other case.
12. Now I am left with Zulfiqar Ali and Muhammad Akbar appellants. They have injuries on their persons and have admitted their presence at the time of the occurrence. They have given a counter version which is in accordance with the version given by Ashiq Hussain and Muhammad Latif P. Ws., who were not declared hostile by the prosecution. The evidence against them is that of the three eye‑witnesses, namely, Noor Muhammad, Muhammad Tufail and Muhammad Riaz. These witnesses have suppressed the truth. They have not
Muhammad Iqbal, who have been found innocent by the learned Additional Sessions Judge. The version given by these two appellants which is supported by the two eye‑witnesses as already stated above, also fits in with the circumstances of this case and as such there is a reasonable possibility that this version might be true. In case Safdar Ali v. The Crown (P L D 1953 F C 93) it was held:,
"In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the' defence. If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt."
In Muhammad Siddiq v. The Crown (P L D 1954 F C 112) it was observed:‑
"It is the duty of the Court in cases of this kind to review the entire evidence and circumstances at the close, before arriving at a conclusion regarding the truth or falsity of the defence plea. All the factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence, and the total effect should be estimated in relation to two questions, viz.:‑
(1) Is the explanation of the accused satisfactorily established by the evidence and circumstances appearing in the case
(2) If the answer to question (1) be in the negative, is there yet a reasonable possibility that his explanation might be true, so as to cast a reasonable doubt upon the prosecution case."
There is more than a reasonable possibility that the version given by the two aforementioned appellants is true because it is supported by two of the eye‑witnesses, whose testimony basic gone unchallenged. I, therefore, accept the appeal, set aside the convictions and sentences of Zulfiqar and Muhammad Akbar appellants and acquit them. Zulfiqar appellant is on bail and should be discharged from his bail bonds. Muhammad Akbar appellant has already served out his sentence.
Appeal accepted.
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