Find a Lawyer

Criminal Appeal No. 235 of 1974, decided on 26th May 1976.

‑‑‑‑ S. 302 read with S. 100‑‑Murder‑‑Benefit of doubt‑Free fight‑[Cross‑case]‑Private defence, right of‑Parties engaging in free‑fight resulting in death of one on complainant's side and injuries to accused persons‑Complainant deliberately suppressing injuries sustained by accused persons‑Motive for attack lying with complainant party and possibility that complainant party was aggressor while accused persons acted in exercise of their right of self‑defence, not excluded‑Accused given benefit of doubt and acquitted in circumstances.‑[Private defence, right of‑Benefit of doubt].

Miran Bakhsh v. Niaz and others 1975 S C M R 337; Muhammad v. Ghous 1972 S C M R 264 and Ahmed Din v. Faiz Ahmed 1972 S C M R 549 ref.

S. Nasiruddin for Appellant.

Jaluddin Baloach for the State.

Date of hearing : 26th May 1976.

.‑‑The two appellants, Lal Khan and Ahmad Khan, were tried, alongwith their third brother, Ghulam Mustafa, by a learned Additional sessions Judge, Karachi, on the charges of committing. in furtherance of their common intention, the murder of one Anwer Beg and attempting to commit the murder of Aurangzeb and Lal Beg. The fourth brother of the appellants, namely Mohammad Khan, who was also implicated in the said offences, was said to be absconding. The learned Additional Sessions Judge, by his judgment delivered on 29‑8‑1974, acquitted Ghulam Mustafa, convicted appellant Ahmed Khan of an offence under section 324, P. P. C. and sentenced him for the said offence to R. I. for one year, while appellant Lal Khan was convicted of an offence under suction 302, P. P. C, and sentenced to imprisonment for life.

2. The prosecution case, shortly stated, is that on 27‑11‑1970, at about 7‑30 p.m., deceased Anwer Beg, accompanied by his brothers, Lal Beg, Aurangzeb and Khan Beg, was coming out of Inam Hotel, near Mohajir Camp No. 3, after taking their meals therein, when they were attacked by the two appellants, Ghulam Mustafa and Mohammad Khan, all of whom were armed with knives, and who caused injuries with knives to Anwar Beg and Lal Beg. They also wanted to cause injuries to Aurangzeb, but he grappled with his assailants and escaped with abrasions and scratches. The motive for the attack on Anwar Beg and his brothers is said to be the fact that they were inciting their niece, Mst. Taj Bibi, who is married to absconder Mohammad Khan, against her husband. A report of the incident was lodged the same night at 8‑30 p.m. by Lal Beg at Chakiwara Police Station, which is at a distance of six miles from the place of incident. The report was recorded by S. H. O. Khalid Anwar, who sent the injured to the Civil Hospital for treatment, inspected the scene of offence, and after recording the statement of witnesses and completing his investigations. challaned the two appellants and Ghulam Mustafa. Anwar Beg in the meanwhile laid succumbed to his injuries at the hospital on 5‑12‑1970, despite an operation having been performed on him. The autopsy on the deceased was performed by Dr. Umar Police Surgeon, who found, excluding the operation incisions, the following 3 external injuries on his person, which in his opinion were caused with a knife and were sufficient to cause death ire the ordinary course of human life:‑

Injury No. 1. Scar ran right middle finger at phalynx transverse in direction and 1' long.

Injury No. 2. Incised wound snitched and partly healed on left side chest at 8th intercostal space transverse 1 " x " cavity deep.

Injury No. 3. Incised wound stitched and partiy healed at 9th intercostals space on left chest oblique in direction 1" x " cavity deep.

3. The Police Surgeon also produced the it4odical Certificates in respect of the injuries found on the persons of Aurangzeb and Lal Beg by Dr. Basharat Ali Qureshi, who had issued the certificates. The said Dr. Qureshi could not be examined as he had gone abroad and according to Dr. Umar was not likely to return within one to two years. According to these certificates the following injuries were found on Lal Beg and Aurangzeb:‑

Lal Beg:

1. Lacerated wound frontal; bone 4' x 1 x bone deep.

2. Contusion left upper arm 2" x 1'.

3. Abraded contusion left tibia 1' x ".

Aurangzeb

Two abrasions, left elbow joint, each " x ".

4. The injuries on Lal Beg as well as Aurangzeb were according to the medical certificates issued by Dr. Basharat Ali and the Opinion of Dr. Umar, caused with a hard and blunt object.

5. The two appellants, in their statements at their trial, denied that they had assaulted the complainant party or caused any injuries to theta. According to them, it was the complainant party who had in fact assaulted them, for which they had lodged a report under section 307, P. P. C. No evidence in de‑fence, however, was led by the appellants.

6. The case against the appellants rests on ocular testimony, evidence of motive and their admission that they were present at the scene of offence.

7. Now, so far as evidence in support of motive is concerned, according to complainant Lai Beg, the relations between absconder Mohammad Khan and his niece Mst. Taj Bibi, were riot cordial and she had complained icy him and his brothers that Mohammad Khan and the appellants used to tease and beat her, but in spite of this fact, he had sent bar back to her husband, Mohammad Khan, who was living alongwith the two appellants and the acquitted accused, Ghulam Mustafa. His evidence indicates that the aggrieved party was the complainant party and thus there could have been no cause for the appellants to attack or assault the complainant party over this issue.

8. The ocular evidence in the case consists of the testimony of the 3 brothers, Lal Beg, Khan Beg and Aurangzeb, as well as that of one indepen dent witness. Abdul Ghaffar. The evidence of Abdul Ghaffar, however, was not relied upon by the learned Additional Sessions Judge, firstly, because he was a chance witness. who admittedly was residing at a distance of 4 to 5 miles from the place of incident and had given no cogent reasons for his presence at the scene of offence, and secondly, because his name does not transpire in the F. I. R. The version of the incident given by the 3 brothers Lal Beg Khan Beg and Aurangzeb, does not inspire‑confidence, because of the following reasons :------

(i) According to the F. I. R. as well as the evidence of P. W. Aurangzeb, the appellants and their two companions were armed only with knives and caused injuries to deceased Anwer Beg arid two others with knives only. This evidence stands contradicted by the medical evidence, which has already been referred to above and which indicates that only the injuries on deceased Anwer Beg had been caused with knives, while tae injuries on Lal Beg send Aurangzeb had been caused with hard and a blunt substance. Realising this difficulty. complainant Lal Beg and P. Ws. Aurangzeb and Abdul Ghaffar deposed that the appellants were armed with knives as well as Dandas. Their testimony on this point cannot be accepted because it is unlikely that the same persons would be armed both with knives and Dandas and used both the weapons. Furthermore, this testimony is in conflict with the F. I. R.

(ii) The testimony of the 3 brothers suggests that the appellants and their two brothers had made a premeditated and planned attack on the com plainant party, but according to complainant Lal Beg, he and his brothers had no previous appointment to meet at the hotel, indicating thereby that it was by chance that the four brothers met at the hotel. As such, the appellants could not have known that the complainant party world be at the hotel so as to be ready to attack them as soon as they got out from the hotel.

(iii) According to P. W. Abdul Ghaffar, he had found some of he accused bleeding. Furthermore, it is an admitted position that the appellants had filed a report under section 307. P. P. C. against the complainant party, and on the basis of that report complainant Lal Beg and Aurangzeb were arrested by the police and detained, first at the police station, and later on in the jail for a number of days. The complainant and his brothers, however, deliberately suppressed the fact that injuries had been caused to the accused party. The fact that the injuries on the accused party, as stated by the independent witness, Abdul Ghafar, were bleeding injuries, suggests that the complainant party also were armed with some sharp cutting weapons, probably knives, and had used there. This, in turn, involves the question as to how the fight started, with were the aggressors and whether the appellants and their companies could be said to have any rights of self‑defence.

9. It is true that there is no direct evidence to indicate that the appellants and their companions had acted in the exercise of their right of private defence of their person, and in fact they have not set up specifically any such defence and on the contrary have denied having caused any injuries to the deceased or his brothers, but as pointed out by their Lordships of the Supreme Court to Miran Bakhsh v. Niaz and others (1975 S C M R 337).

"It was not necessary for the accused persons to set up any defence case. It was sufficient if they could manage to cast a doubt on the prosecu tion case and in the facts and circumstances of the present case such a doubt had certainly been cast."

In the instant case, se already pointed out, there were bleeding injuries on the persons of some persons from the accused party and in respect of this incident they had lodged an F. I. R. under section 307, P. P. C., in connec tion with which complainant Lal Beg and his brother Aurangzeb were arrested by the Police and detained in custody for a number of days. These circumstances suggest to us that there was a fight between the two parties, in which it is quite possible that the complainant party was the aggressor since, it was they who had a grievance against the accused party rather than the latter having any motive for attacking the complainant party. A further circumstance, which casts a doubt on the testimony of the eye‑witnesses, is the deliberate suppression on the part of the complainant party to admit their having caused any injuries to the accused party. It was held by their Lordships of the Supreme Court in Mohammad v. Ghouse (1972 S C M R 264) that in case of a fight between two parties, which has resulted in murder, if there are two versions, each side claiming the other to be the aggressor. the mere fact that complainant party suffered greater number of injuries, would not by itself be sufficient for holding the accused party to be the aggressors, and the accused would be entitled to the benefit of doubt if there was reasonable possibility of the defence version being true. We might also refer to the case of Ahmad Din v. Faiz Ahmad (1972 S C M R 549) where it was found that an injury hart been received by the accused also and on a vital part of the body, but the prosecution had failed to explain the injury and further the motive lay with the complainant party in making the attack. It was held in that case that the mere fact the deceased received 3 injuries while accused only got one, did not by itself show that accused had exceeded the right of self‑defence and that such a right cannot be modulated step by stop nor can it be weighed in golden scales.

10. Taking all toe circumstances of the case into consideration, specially the deliberate suppression on the part of the complainant party to admit having caused injuries to the accused party, which apparently were of a serious nature in view of the fact that a case under section 307, P. P. C. had been registered against them, together with the fact that the medical evidence in regard to the injuries on the persons of P. Ws. Aurangzeb and Lal Beg is in conflict with the ocular evidence we are of the opinion that the reasonable possibility of the appellants having acted in the exercise of their right o private defence cannot be excluded. We would accordingly give them the benefit of doubt, accept their appeal and acquit the appellants. If appellant Lal Khan is not required in any other case. he should be released, forthwith. So far as appellant Ahmad Khan is concerned, he presumably must have long ago served out the sentence ref one year R. I. which was imposed on him on 29‑8‑1974.

Appeal allowed

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.