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Criminal Appeal No. 80 of 1984, decided on 5th April, 1987.

‑‑‑Ss. 302 & 323/34‑‑Ocular evidence, appreciation of‑‑Both sides receiving injuries‑‑Counter‑cases registered‑‑Injuries on persons of accused suppressed by prosecution‑‑Witnesses denying having seen any injury on person of accused‑‑Even injured witness denying accused to have received any injury during incident‑‑Complainant though accused in counter‑case, not receiving any injury nor explaining injuries to accused‑‑Presence of such witness at spot found doubtful‑‑Evidence of complainant and three other witnesses, being unreliable and infirm for several reasons, held, was rightly kept out of consideration and discarded for cogent reasons by Trial Court in circumstances.

‑‑‑Ss. 302 & 323/34‑‑Defence version‑‑Self‑defence, right of Except injured witness none stating as to how incident started Witnesses claiming to have reached after occurrence started‑‑No clear acceptable evidence as to how incident developed and who started aggression at spot‑‑ Counter‑ case registered at instance of accused‑‑Counter‑version given by accused in their statements under S. 342, Cr.P.C.‑‑Injuries of accused noted by Investigating Officer at time of their arrest‑ Mashirnama of Vardat showing damage to lucern grass of accused by some cattle‑‑Injuries of accused, not explained by prosecution Defence version given by accused, held, was plausible and prosecution case was doubtful‑‑Accused would be entitled to benefit of doubt not as a matter of grace but as matter of right‑‑Acquittal ordered in circumstances.

P L D 1965 Quetta 33; P L D 1966 Lah. 8; 1973 S C M R 264; 1973 SCMR 26; 1985 S C M R 510; Ghazi Khan and another v. The State P L D 1965 Quetta 33; Nadeemul Haq Khan and others v. The State 1985 SCMR 510; Muhammad v. Ghos and 4 others 1972 S C M R 264 and Gul Muhammad and 4 others v. The State 1980 P Cr. L J 40 ref.

Imam Ali G. Kazi for Appellants.

M.A.I. Qarni for the State.

Date of hearing: 2nd March, 1987.

The appellants Muhammad Ali son of Must4fa and Zargul son of Alam Khan were tried alongwith Azmat Khan and Mushtabbar Khan under section 302 read with section 34, P.P.C. for committing murder of deceased Muhammad Sharif under section 323 read with section 34, P.P.C. for causing injuries to Ibadat Ali before the learned Additional Sessions Judge, Sanghar, who by his judgment, dated 29‑9‑1984 has convicted the appellants under section 302 read with section 34, P.P.C., and sentenced them to imprisonment for life and to pay fine of Rs.10,000 each, in default of payment of fine they were to suffer R.I. for two years more. Both the appellants were directed to pay compensation of Rs.10,000 each to the heirs of the deceased Muhammad Sharif. In case of default, they were to undergo R.I. for six months more. While the co‑accused were acquitted. This appeal is directed against the above judgment of conviction.

The prosecution case in brief is that on 27‑4‑1979 Ibadat Ali brother of the complainant had gone for grazing their cattle in their land. At about 5‑00 p.m. the complainant was cutting grass from the land of his uncle, P.W. Muhammad Siddique also came there for taking grass. They heard cries of Ibadat Ali and his father. They saw that the accused were causing injuries to Ibadat Ali and his father at a distance of 2 Acres. The complainant and P.W. Muhammad Siddique rushed to the Vardat and found that accused Muhammad Ali and Zargul were giving hatchet blows, while Azmat Ali and Mushtabbar were giving Lathi blows to the father of the complainant. Accused Azmat Khan and Mushtabbar also caused Lathi blows to Ibadat Ali. On seeing complainant and Muhammad Siddique the accused went away to their house. The complainant found that his father had Lathi and incised injuries and was bleeding. On inquiry, the complainant was informed by his father that he was going to his land, when P.W. Ibadat Ali met him on the way and told him that the accused had fought with him while he was grazing the cattle. That he had come alongwith Ibadat Ali to the accused to inquire from them as to why they had fought with Ibadat Ali, on that account accused abused and caused Lathi and sharp side hatchet injuries to him. Thereafter he went unconscious. P.W. Ibadat Ali informed them that accused had asked him as to why his cattle was damaging their lucern grass and they will take the cattle to the cattle pond, on which he told them that their lucern grass was not damaged by his cattle. The complainant then took the injured to Police Station, Sanghar and lodged his F.I.R. which was recorded by S.H.O. AAi Muhammad at 8‑00 p.m.

2. That about 45 minutes thereafter, accused Zargul also lodged counter F.I.R. at the same police station alleging therein that he and Muhammad Ali were on their land on rotation of water, while Ibadat Ali was grazing cattle in his land, when at about 5‑30 p.m. his cattle trespassed and caused damage to lucern grass. They were taking the cattle to cattle pond, when‑ Ibadat Ali went running and brought Muhammad Sharif, Liaquat Ali and Shaukat Ali. It was further alleged that Muhammad Sharif and Liaquat were armed with hatchets, while Shaukat Ali and Ibadat Ali were armed with Lathis. They came and abused the complainant and Muhammad Ali. Muhammad Sharif inflicted sharp hatchet blows on the head of Muhammad Ali, Liaquat Ali caused hatchet blows to complainant/Zargul and Muhammad Ali, Shaukat Ali and Ibadat Ali also gave them Lathi blows. It was further alleged that the complainant and Muhammad Ali also caused injuries to accused in their self‑defence. On cries Mushtabbar and Alam came running to the Vardat, on seeing them accused went away to their houses with their cattle. Injured Muhammad Ali was taken to P.S. where the complainant lodged his report which was recorded by S.H.O. Ali Muhammad.

3. That Muhammad Sharif died in Civil Hospital Sanghar on 28‑4‑1979 hence the section was changed in to one under section 302, P.P.C. S.H.O. Ali Muhammad prepared Mashirnama of injuries of injured, inspected the Vardat, secured blood‑stained articles and also prepared inquest report of the dead body. He arrested accused, secured crime weapons and sent the same to the Chemical Examiner. After necessary investigation the present appellants alongwith co‑accused were challaned. The counter‑case State v. Liaquat Ali and others was also sent up for trial under section 323, 324 read with section 34, P.P.C.

A formal charge was framed against the appellants and the co- accused under sections 302 and 323 read with section 34, P.P.C. to which the accused pleaded not guilty.

At the trial the prosecution examined P.W. I complainant Liaquat Ali, P.W. 2 Muhammad Siddique P.W. 3 Ibadat Ali injured, P.W. 4 Imam Bux, P.W. 5 Habib (All eye‑witnesses), P.W. 6 Fateh Muhammad, he had acted as Mashir of injuries on the person of injured Muhammad Sharif and the Mashirnama has been produced as Exh. 17. The police had also prepared another Mashirnama of injuries on the person of deceased after his death in his presence and the same has been produced as Exh. 18. The police had also prepared inquest report of the person of deceased in his presence and the same has been produced as Exh. 19. P.W. 7 Muhammad Din acted as Mashir alongwith one Jan Muhammad. He acted as Mashir of Vardat and the Mashirnama has been produced as Exh. 21, P.C. Sono Khan had produced a blood‑stained loin cloth of deceased before the police, such Mashirnama was prepared in his presence, and the same has been produced as Exh. 22. The police had seen injuries on Ibadat Ali and prepared such Mashirnama in his presence which has been produced as Exh. 23. The police arrested accused Muhammad Ali, and Zargul in his presence and Mashirnama has been produced as Exh. 24. Accused Muhammad Ali produced blood‑stained hatchet from the roof of his house, the Mashirnama was prepared in his presence which has been produced as Exh. 25. Accused Zargul produced blood‑stained hatchet from the roof of his house, the Mashirnama is produced as Exh. 26. In his presence police arrested accused Azmat Khan and Mushtabbar and he has produced Mashirnama as Exh. 27. Accused Azmat Khan produced Lathi before the police the Mashirnama has been produced as Exh. 28. Accused Mushtabbar produced blood‑stained Lathi before police which were secured and sealed in his presence, the Mashirnama has been prepared and produced as Exh. 29. P.W. Dr. Hadi Bux had conducted post‑mortem on deceased Muhammad Sharif and he has produced post‑mortem report as Exh. 32. He had also examined injured P.W. Ibadat Ali, the injury certificate has been produced as Exh. 33. On 27‑4‑1979 he examined accused Zargul and Muhammad Ali and issued such certificates, which were produced in counter‑case.

P.W. Sono Khan P.C. had handed over the dead body to Liaquat son of deceased, P.W. Amir Ali A.S.I.P. was examined to prove handwriting and signature of S.H.O. Ali Muhammad, who had expired before he could be examined P.W. Ghulam Haider is a Tapedar and had prepared sketch of Vardat which has been produced as Exh. 37, the report of Chemical Examiner has been produced as Exh. 39.

After close of the prosecution case, the statements of the appellants and co‑accused were recorded under section 342, Cr.P.C. in which they denied the allegations, appellant Muhammad Ali has further stated that he is innocent and has not committed this offence. On the day of incident he and co‑accused Zargul were supervising water rotation when the cattle of Ibadat Ali trespassed into their lucern cultivation and damaged it. He and Zargul took out the cattle for impounding. Ibadat Al ran and brought Muhammad Sharif, Shaukat Ali and Liaquat Ali from hi; village. Sharif and Liaquat were armed with hatchets while Shaukat Ali and Ibadat Ali were carrying Lathies. Muhammad Sharif gave him hatchet blows with it's sharp side on his head which cut his cap and caused injuries on his head. Muhammad Sharif and Liaquat Ali again caused injuries with sharp side on him and Zargul. Ibadat Ali and Shaukat Ali caused Lath blows to them and rescued cattle from them. They acted themselves in self defence. The police prepared Mashirnama of his injuries. He has produced certified copy of Mashirnama as Exh. 41. The appellant Zargul has further produced the photo copy of certified true copy of his report lodged by him in the counter‑case as Exh. 43. He has also produced certified copy of Mashirnama of Vardat of the counter‑case as Exh. 44. He has further stated that his further statement is same as that of Muhammad Ali, but no evidence was led in defence.

The learned trial Judge while relying upon the ocular evidence of P.W. Ibadat Ali, injuries on the persons of the appellants, recoveries of blood‑stained articles, motive, and chemical report, has convicted the appellants as described above, while co‑accused were acquitted.

The evidence of Dr. Hadi Bux who conducted the post‑mortem on deceased Muhammad Sharif son of Rehmat Ali shows that the deceased had following injuries on his person:‑‑

(1) Incised wound 2" x 1/2"brain deep on right side forehead.

(2) Incised wound 1‑ I/2" x 1/2" x bone deep on right parietal region of skull.

(3) Contusion 2" x 2" on right temporal region.

(4) Abrasion 3" x 2" on middle of vertex.

(5) Contusion 3" x 2" on anterior aspect of right shoulder.

(6) Incised wound 2" x 1/2"muscle deep on right upper arm.

(7) Contusion 4" x 2"around right nipple.

(8) Lacerated wound 2" x 1/2" x bone deep on right thigh.

(9) Contussion 3" x 2" on right thigh.

(10) Contusion 3" x 2" on the middle of right leg.

(11) Contusion 2" x 1" on back of left hand.

(12) Contusion 3" x 2" on the left shoulder.

(13) Abrasion 2" x 1" on left clavicle.

(14) Incised wound 2‑1/2" x 1/2"bone deep on middle of left scapula.

According to him, injuries Nos. 1, 2, 6 and 14 appeared to have been caused by some sharp cutting weapon such as hatchet, while rest of the injuries appeared to have been caused by some hard blunt substance such as Lathi or back side of hatchet. Injuries Nos. 1, 2 and 4 individually, and all collectively were sufficient to cause death in ordinary course of nature. All the injuries were anti‑mortem. The probable time between injuries and death will be 10/14 hour, while the time between death and post mortem was about 2 hours. He has produced post‑mortem notes as Exh. 32.

That on 28‑4‑1979, he had examined P.W. Ibadat Ali and found the following injuries on his person‑

(1) Contusion 3" x 2" on lateral side of left thigh.

(2) Contusion 4" x 2" on the back of chest on right side.

According to him the injuries were simple in nature and appeared to have been caused by some hard and blunt substance such as Lathi or back side of the hatchet.

He has further stated that on 27‑4‑1979, accused Zargul and Muhammad Ali were referred to him by Sanghar Police and he had found the following injuries on their persons.

Zargul son of Alam Khan:

(1) Incised wound 3/4" x 1/4" bone deep on the back of left thumb circular in direction.

(2) Incised wound 1" x 1/4" x bone deep on the tip of left index finger.

Both the injuries were simple in nature and appeared to have been caused by sharp cutting weapon such as hatchet.

Muhammad Ali son of Mushtabbar:

(1) Incised wound 2" x 1/2" x skin deep on right forearm.

(2) Incised wound 2" x 1/2" x bone deep on the middle of vertex.

(3) Incised wound 1/2" x 1/4" x muscle deep on the tip of left index.

According to him, all the injuries were simple in nature and appeared to have been caused by some sharp cutting weapon such as hatchet.

Mr. Imam Ali G. Kazi. learned counsel for the applicant has contended that the appellants Muhammad Ali and Zargul were injured and the injuries on their persons have not been explained by the prosecution. That the cattle belonging to Ibadat Ali had damaged the lucern grass of the appellants and they were taking the same to the cattle pond when the complainant party came and snatched away the same therefore, they had committed theft. That the appellants had right of private defence of their person and that of the cattle which they had impounded. In support of his contentions he has relied upon cases: P L D 1965 Quetta 33, P L D 1966 Lah. 8, 1973 S C M R 264, 1973 S C M R. 26 and 1985 S C M R 510.

Mr. M.A.I. Qarni, appearing for the State has contended that enmity was there, and, therefore, the appellants. had motive to attack the complainant party. That the appellants had exceeded the right of private defence and, therefore, their sentence may be reduced.

I have considered the contentions of the learned counsel appearing for the appellants as well as for the State, and have also gone through the evidence.

In order to appreciate the contentions of Mr. Imam Ali Kazi, the learned counsel for the appellants it is necessary to look at the evidence produced by the prosecution in this case as well as the defence version.

The trial Judge while discussing the evidence of complainant Liaquat Ali, P.Ws. Muhammad Siddiq, Imam Bux and Habib in paragraphs 25, 26 and 28 has observed that all the witnesses without exception have tried to supress as to who caused the injuries to accused Muhammad Ali and Zargul. Even injured witness Ibadat Ali has stated that accused Muhammad Ali and Zargul had not received injuries in the incident. The prosecution witnesses Imam Bux and Habib when asked to account for the injuries to accused, they said that they did not see any injury on their persons as they ran away from the Vardat. In such a situation, the evidence of P.W. Muhammad Siddiq, Imam Bux and Habib cannot be given any importance because their presence at the Vardat appears to be doubtful for several reasons. In para. 26, the learned Judge has observed that similarly, the complainant Liaquat Ali when asked to clarify the position about the injuries to Muhammad Ali and Zargul came up with reply that he did not see the injuries on their persons as they ran away from the Vardat. Since the complainant has supressed the incised injuries on the person of the accused, his evidence cannot be relied upon. The presence of complainant Liaquat Ali at the time of incident appears to be doubtful though in counter‑case; The State v. Liaquat Ali and others; it is said by Zargul and other witnesses that Liaquat Ali had participated in the incident, and caused hatchet injuries to Muhammad Ali and Zargul. But complainant Liaquat Ali had not sustained any injury in the incident, therefore, his participation and presence at the relevant time, is not free from doubt. In para. 28 it has been observed by the learned trial Judge as discussed above, the evidence of complainant, and P.Ws. Muhammad Siddiq, Imam Bux and Habib being unreliable and infirm for several reasons has been discarded' and kept out of consideration'.

The above finding of the learned trial Judge, shows that the evidence of complainant, and P.Ws. Muhammad Siddiq, Imam Bux and Habib has been discarded and for cogent reasons. Now we are left with the evidence of P.W. Ibadat Ali only. The learned trial Judge while considering the question as to how the fight started, and as to who was aggressor, has observed in para. 25, that except P.W. Ibadat Ali none has said as to why the incident started or as to who took the lead in the fight. Complainant Liaquat Ali P.Ws. Muhammad Siddiq, Imam and Habib have said that they went running on commotion and saw accused causing blows to Muhammad Sharif and Ibadat Ali, but none has said as to what was said or exchanged by the accused and the deceased Muhammad Sharif before he was given blows. In para. 27, the learned trial Judge has observed that there being no clear acceptable evidence as to how it all developed and who took the lead at the place of incident, the reasonable inference which could only be drawn would be that dispute had taken place between the accused Muhammad Ali and Zargul on one hand and P.W. Ibadat Ali on other hand, over the cattle trespass just before the incident, and that Ibadat Ali informed his father Muhammad Sharif, about the said dispute, he get infuriated and came to Vardat where exchange of harsh words probably followed by abuses had taken place between him and accused Muhammad Ali and Zargul as a result of which the fight ensued, and Muhammad Ali and Zargul caused sharp and blunt side hatchet blows to Muhammad Sharif a person aged about 60 years.

Now coming to the defence version, the F.I.R. lodged by accused Zargul, the copy of which has been produced as Exh. 43, shows that:

"Accused Muhammad Ali and Zargul were on water rotation, while P.W. Ibadat Ali was grazing cattle in his land. It was 5‑30 p.m. that the cattle of Ibadat Ali and party came to their lucern crop, he and Muhammad Ali drove the cattle in order to impound, whereupon Ibadat Ali went running and called his relative and narrated the story to Muhammad Sharif and Liaquat Ali who were armed with hatchets, Shaukat Ali and Ibadat Ali were armed with Lathies. On their coming they started abusing and accused Muhammad Sharif (deceased) gave blow to Muhammad Ali on his head with the sharp side of hatchet and he started bleeding, meanwhile Muhammad Sharif and Liaquat Ali gave blunt and sharp side blows to him and Muhammad Ali, accused Shaukat Ali and Ibadat Ali gave Lathi blows on their persons. They also inflicted blows to Muhammad Sharif and their party in defence. Their cries attracted Mushtabbar and his father Alain, seeing them coming, accused persons abusing them, drove cattle to their houses"

Even the statement of accused Zargul and Muhammad Ali recorded under section 342, Cr.P.C. are to the same effect. The appellant' Muhammad Ali has produced Mashirnama of injuries noted by the Investigating Officer at the time of his arrest as Exh. 41, the appellant Zargul in addition to the copy of F.I.R. has also produced Mashirnama of Vardat prepared by the Investigating Officer. In counter‑case as Exh. 44. This Mashirnama shows that:‑‑

"In north of scene of offence, at two block distance there is land of Zargul Pathan in which there is standing crop of lucern, which was seen, pointed out by the complainant in which foot prints (hoof marks of the cattle) lucern crop grass/damaged by the cattle visible."

From the evidence of Dr. Hadi Bux, and the documents Exhs. 41, 43 and 44 it is clear that the lucern grass of the appellants was damaged by the cattle and that they had received injuries in the incident.

Now coming to the question of right of private defence, the case of prosecution as well as of the defence has to be kept in juxtaposition, and after examination of the whole evidence, if the Court is of the opinion that there is 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 a matter of right, because the prosecution has not proved its case beyond reasonable doubt. Reliance is placed in this regard on case of Ghazi Khan and another v. The State P L D 1965 Quetta 33 and Nadeemul Haq Khan and others v. The State 1985 SCMR 510.

In Muhammad v. Ghaus and 4 others 1972 S C M R 264 it was held that:‑‑

, S.302‑‑Murder‑‑Fight between two parties‑‑Two opposite versions, each side claiming other to be aggressor‑‑Mere fact that complainant party suffered greater number of injuries, would not relieve it of the initial act of aggression‑‑Possibility of defence version being true‑‑High Court, in circumstances, held, right in acquitting accused:"

In Ghulam Muhammad and 4 others v. The State 1980 P Cr. L J 40 it was held that:‑‑

"Sections 100 & 103, P.P.C. read with Cattle Trespass Act (I of 1871) S.10‑‑Private defence, right of‑‑Occurrence taking place when accused rounded up sheep and on way to cattle pound‑ Complainant party trying to effect rescue by attacking with a hatchet‑‑Accused, held, could act in defence of their person even to extent of causing death as contemplated in S.103, P.P.C."

In view of the above factual as well as the legal position, it is clear that the appellants had also received injuries caused with sharp‑cutting weapon which have not been explained by the prosecution. The stand of the appellants that the cattle of P.W. Ibadat Ali had trespassed in their Lucern grass and the same were impounded by them is supported by Mashirnama of Vardat Exh. 44 which shows that Lucern grass of the appellants appeared to have been damaged by cattle, the circumstances of the case, even by the observations of the learned trial Judge in para. 27 of his judgment.

After giving a careful thought to the entire evidence in the case, I am of the considered view that the defence of the appellants is plausible and it makes the prosecution case against them doubtful.

I, therefore, while giving benefit of doubt to the appellants accept the appeal, set aside the conviction and sentence of the appellants, and direct that they shall be released forthwith unless required in any other case.

S.A./M‑89/R Appellants acquitted.

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