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(a) Penal Code (XLV of 1860)‑‑

‑‑‑Ss. 304, Part I & 308/34‑‑Motive‑‑Motive far‑fetched, flimsy and not satisfactorily proved and reflecting adversely on ocular testimony‑‑Defence version appearing to be more plausible‑‑Dying declaration a verbatim copy of other statements and recorded in absence of doctor without a certificate that injured was fit to make a statement‑‑Parties pitched against each other‑‑Prosecution witnesses closely related to each other and deceased, trying to conceal material facts for which they offered no explanation‑‑Venue of grappling not certain‑‑Trial Court had not gone deeper into admitted facts in cross examination of eye‑witnesses and also did not try to reconstruct scene of crime and version put up by defence finding support from prosecution evidence‑‑Prosecution story being highly doubtful, accused given benefit of doubt and acquitted

(b) Penal Code (XLV of 1860)‑‑

‑‑‑Ss. 304, Part I, 308 & 34‑‑Both sides tried to conceal true facts and put up blame on each other‑‑Possibility of free fight could not be eliminated‑‑Circumstances of case showing that accused acted in defence, its benefit, held, would go to accused.

Kh. Muhammad Sharif for Appellant.

Kh. Ghulam Qadar for the State.

Dates of hearing: 11th and 12th November, 1986.

Ghulam Nabi (37), Muhammad Iqbal (24), Amanat (17), Javed (22) and Rasheed (20) were tried for the murder of Nazeer and Said. On 26‑9‑1984, Rai Muhammad Zafar Bhatti, Additional Sessions Judge, Sialkot, acquitted Amanat Ali but convicted the remaining four accused under section 304/34, Part 1, P.P.C. and sentenced them to imprisonment for life with a fine of Rs.5,000 each in default to undergo two years' S.I. Half of the fine, if recovered, was ordered to be paid to the legal heirs of the deceased. They were also directed to pay Rs.5,000 each as compensation in default to undergo six months' S.I. further. For injuries to Ashraf, all except Amanat were convicted under section 308/34, P.P.C. and sentenced to two years' R.I. each and on another count for injuries to Sharif, they were sentenced to two years' R.I. All the sentences were ordered to run concurrently. The convicts have come up in appeal.

2. The first motive for the crime in this case was that a few days before the occurrence in this case, Irshad a brother of the accused outraged the modesty of Nazeer deceased's daughter Mst. Ruqayya. He was reprimanded by Nazeer, consequently, Irshad left the village. As such the accused bore a grudge against Nazeer for having defamed their brother Irshad. According to the prosecution, this was one of the reasons for which the accused attacked the deceased. Muhammad Ashraf (informant) is the son‑in‑law of Muhammad Sharif, the injured and had come over from Pasrur to Sialkot to meet his in‑laws. In the evening on 19‑8‑1982, his wife's brother Tariq went over to the house of his neighbour Rasheed accused to get Rs.80 his wages from him. Rasheed refused to pay up. Tariq came back home. Muhammad Ashraf accompanied Sharif to the house of Rasheed and asked him why he was not making the payment. Rasheed again refused. They abused and grappled with each other. The matter was hushed up and the two went away. This was the second motive for the crime in this case. In the evening at 7‑30 p.m. Ghulam Nabi, Iqbal, Javed armed with knives, Rasheed with a dagger and Amanat armed with a stick came over to the house of Sharif and raised a Lalkara. Muhammad Sharif came out in the lane. The alarm also attracted Nazeer Ahmad and Said brothers of Muhammad Sharif. Iqbal raised a Lalkara that they should not be spared. Ghulam Nabi opened the attack with a knife on Sharif hit him on the right fore‑arm. Said went up to rescue him but Rasheed gave a dagger blow hitting him in the left flank and the right shoulder. Javed inflicted a Chhuri blow to Said who tried to resist the blow but was injured in the palm. Iqbal inflicted a chhuri blow to Sharif on the right leg. Amanat Ali inflicted stick blow each to Sharif and Said on their heads. Iqbal gave a chhuri blow to Said hitting him on the outer side of the left wrist. Rasheed gave a dagger blow to Nazeer on his head. Javed inflicted a dagger blow to Nazeer on the left side of his abdomen, thereafter, the accused continued inflicting injuries to Sharif, Said and Nazeer with their respective weapons. Ashraf tried to intervene but was injured by Iqbal on his right hand. He caught hold of his knife and his fingers were also injured. Munir and Muhammad Hussain also reached the spot. The accused fled away. Muhammad Ashraf and Muhammad Hussain took the injured to the Civil Hospital, Sialkot, but on the way Said expired. Nazeer and Sharif were admitted in the hospital.

3. P. W.1 Dr. Muhammad Hanif A.LM. Hospital, Sialkot on 19‑8‑1982 at 9‑25 p.m. medically examined Sharif and found four incised wounds, on his right shoulder, right lower leg, in mid chest and on the lower left index finger. He also bore a wound on the top of his head. His injuries were declared simple. The same day, Ashraf was examined and the doctor noticed five simple sharp‑edged weapon injuries on his thumb and on the four fingers of his right hand.

The doctor also examined Nazeer and found six incised sharp‑edged weapon injuries on him i.e., behind the left ear, left cheek, left shoulder, left armpit, left side of the head and on the left side of the abdomen. Since Nazeer died in the hospital on 21‑8‑1982, his autopsy was held by the same doctor at 10‑30 p.m.

who found the same injuries which he observed when Nazeer was alive. According to the doctor, the injuries in the armpit and in the abdomen were fatal.

P.W. 2 Dr. Muhammad Aslam held the autopsy on the deadbody of Said on 20‑8‑1962 and found the following injuries on it:‑‑

(1) Incised wound 8 x 3/4" x muscle deep over the top of right shoulder extending down to the right upper arm with a superficial cut about 5 inches on the lower edge.

(2) Abraided contusion 1 " x 3/4" over the left parietal region of the skull.

(3) Incised wound 6 x 1" over the left cubitus fossa, the underline muscles blood vessels and nerves were cut through and through but nodes were intact.

(4) Superficial cut 4 x 1/6" near injury No. 3.

(5) Incised wound 1 x 1/2" over the back and middle of left

fore‑arm.

(6) Abrasion 1 x 1/2" over the back of right wrist.

(7) Abrasion 3" x " back and middle of right fore‑arm.

(8) Incised wound 1 x 1/4" x muscle deep over the left hand including the front of left middle finger.

(9) Incised wound 1/2" x 1/2 over the tip of left little finger.

(10) Incised wound 1" x :" x bone deep over the left chest.

(11) Incised wound 3/4" x 3/4" over the left groin.

In doctor's opinion, injury No. 3 was sufficient to cause death in the ordinary course of nature. P.W. 11 Rehmat Khan, A.S.I. upon information went to the civil hospital and recorded the statement of Ashraf Ex. P.L. on 19‑8‑82 at 10 p.m. on the basis of which formal F . I . R . Ex. P . L / 1 was registered at Police Station Sadar Sialkot, the same evening at 10‑30 p.m. Police Station was at a distance of three miles from the place of occurrence. When Nazeer was alive, the A . S . I . recorded his statement under section 161, C r. P . C . after his death, his statement Ex. P.W. was used by the prosecution as a dying declaration.

4. On 29‑8‑1982, the A.S.I. arrested all accused. On 1‑9‑1982, Rashid got recovered his dagger P. 6, Amanat stick P.7 and the remaining accused got recovered their respective chhuris P.3 to P.5 which were taken into possession through memo. Ex. P.N. to Ex.P.R. attested by P.W.8 Abdul Majeed, P.W.11 Rehmat Khan, A.S.I. and Bashir Ahmad (given up as unnecessary). After completing the investigation, the accused were sent up for trial.

5. All accused denied guilt and ascribed the case to enmity. Explaining the defence case, Ghulam Nabi made the following statement: ‑‑

"I have heard the prosecution evidence. Ashraf P.W. is the son‑in‑law of Sharif P.W. Munir is son of Said (deceased). The sister of Muhammad Hussain P.W. was married to Nazar (deceased). Tariq P.W. is brother in law of Ashraf P.W. Trumped up allegation have been levelled against me and my co‑accused. The voucher of the prosecution contains merely of distorted version of the occurrence. Actual place manner and mode of occurrence have been suppressed by the complainant side. They have also concealed their own part in the incident who were the aggressors. As a matter of fact, Sharif, Ashraf, Nazir and Said had been offended gravely as to why Irshad had brought a bad name to Tariq and Mst. Ruqayya and with a view of revenge themselves had come down to our house. My wife Mst. Rashida opened the gate of the house. The complainant side asked her as to where Irshad and his wife were, because they wanted to teach them a lesson ‑ and take revenge of the disgrace offered to them by him. Thereafter, upon her reply that they were not in the house, they became out of laws and started uttering uncivilities. Nazir and Said started pulling her and Sharif gave her Sota blow. One of the injury had landed on her head. Besides this they started pulling her out. She raised hue and cry upon which, Iqbal accused, intervened who was also given injury by Sharif. PW Nazir and Said deceased persons started inflicting injuries upon him. Myself and Javed had also intervened. I myself, Javed and Iqbal acted in exercise of defence of Iqbal who was under a grave attack launched by the complainant side. Inflicting injuries upon Iqbal, they also endeavoured to take into their house. It is out of sheer good luck that Muhammad Iqbal survived after receiving more than dozen injuries upon his person. His injuries were located on most vital part of the body, like head, chest. His wounds were profusely bleeding. Had he not done so, then definitely, Muhammad Iqbal should have been killed. Other co‑accused were not there and they have been falsely involved My father, Muhammad Hussain was the first to report the matter to the police. The police investigation is partial and the evidence from our side has been dishonestly withheld so that the true picture of the case may not be before this honourable Court. The entire evidence against us was fabricated under the legal advice of an Advocate and Rtd. A.S.I. who was pulling the string from behind the curtain. The motive story is absolutely false. Irshad had not cut dirty joke to Mst. Ruqayya Bibi, it was Tariq who did so and was seen by Irshad and had made known to Nazir and others. The complainant side developed grudge against us as to why Irshad had published that information. Our father is a known person who was detained by the police and we were all apprehended excepting 1qbal, accused who was admitted in the hospital for his serious injuries. My wife Mst. Rashida had got herself medically examined at a later stage."

6. In defence, six witnesses were examined. D.W.11 Dr. Muhammad Aslam Butt examined Mst. Rahseeda wife of Ghulam Nabi accused and found a healing scar I" long in front and middle of the forehead across the hair margin. It was a simple injury caused by a blunt weapon within a period of two weeks. D.W.2 Mst: Rasheeda supported her husband's version. D.W.3 Dr. Muhammad Hanif who appeared as a prosecution witness in this case deposed that on 19‑8‑1982 at 9‑15 p.m., he examined Iqbal accused and found fifteen injuries on him:‑

(1) Contused swelling 2 " x 2" outer front upper left neck.

(2) Incised wound 1" x x subcutaneous deep, front left chest 1 " away from left nipple between 7 O'clock and 8 O'clock vertically oblique with upper and inner.

(3) Incised wound x 1/16" x muscle deep vertically oblique outer mid left chest

(4) Incised wound 1/8" x 1/16" x skin deep vertical outer lower left chest.

(5) Incised wound 1/8" x 1/16" skin deep outer front mid left chest.

(6) Incised wound 1/8" x 1/16" x skin deep outer front lower left chest.

(7) Incised wound 1 " x " x muscle deep vertically oblique outer below mid left arm..

(8) Incised wound 1" x 1/4" x muscle deep vertically oblique outer back upper left forearm.

(9) Incised wound 1" x " x bone deep transversely oblique outer back left forearm, 1 " below No.8.

(10) Incised wound 1" x " x bone deep vertically oblique inner front upper left arm.

(11) Incised wound 1/2" x 1/16" x subcutaneous deep transversely oblique front, upper right index finger.

(12) Incised wound 1/4" x 1/16" x subcutaneous deep transversely oblique front upper, right middle finger.

(13) Incised wound 1" x " x subcutaneous deep transversely oblique outer front upper left thigh.

(14) Incised wound 1 " x x muscle deep, transversely oblique outer front left thigh" below No. 13.

(15) Incised wound 1 " x " x muscle deep transversely oblique front upper left thigh."

Although, Muhammad Iqbal, who was in custody was advised x‑ray of his injuries but he was never got examined by a Radiologist. D.W. 4 Muhammad Irshad deposed that he never teased Mst. Ruqqaya. On the contrary, his version was that he had seen Tariq making love to Ruqqaya and he reported this to her father who took it ill and retaliated by saying that the witness had defamed his daughter. Further according to Muhammad Iqbal, on the day of occurrence at 4 p.m., Tariq had come to his house to avenge the insult because the witness had complained about him to Mst. Ruqqaya's father. Out of fear, he left the village. D.W.5 Muhammad Shabbir, Reader to the

Assistant Commissioner deposed about the special report. D.W.6 Muhammad Azam, Head Constable had brought Roznamcha of August, 1982 to show the departure of Rehmat Ali, AS[, from the police station which was 9‑15 p.m. in the evening. The evidence of the last two defence witnesses was produced in order to contradict the ASI about the time of his arrival in the hospital.

7. Assessing the evidence of the eye‑witnesses in this case, trial Court observed that in whatever way the quarrel may have originated, the subsequent conduct of the parties put them on equal footing and that 'the case was covered by Exception IV to section 300, P.P.C. For good reasons, it, however, did not rely on the evidence of recoveries because, besides the investigating officer, the other witness was a retired police official who lived at a distance of twenty miles away from the place of recovery. In this view of the matter I do not consider it necessary to go deeper into the evidence of recovery, except that according to the prosecution Iqbal accused was disarmed during the occurrence and his knife fell on the ground, soon after the occurrence the accused fled away, obviously the complainant part remained behind, yet the investigating officer was able to recover a blood‑stained knife from the house of Iqbal. To my mind this wound also adversely reflect on the investigation.

8. Criticising the finding with regard to the occurrence in this case, it was argued that realising the weakness of their case, prosecution has tried to put up two motives. Both motive stories did not improve the case because while describing the incident which occurred the same day when Rasheed accused refused to make the payment to Tariq son of Sharif P.W_ it is not explained by any witness as to why the payment was withheld and what was the real nature of the dispute. There are also no details of the altercation that ensued. It is too weak and vague a motive, moreover, there is no evidence to show that Tariq used to work for Rasheed. The accused has denied it. In so far as the second motive was concerned, there is no report to the police about the conduct of accused's brother Irshad who was said to have teased Mst. Ruqayya, P.W. Sharif's niece. It is noteworthy that under cross‑examination P.W. 6 Muhammad Ashraf informant, a son‑in‑law of P.W. Sharif, admitted that Irshad was married a few days before the occurrence in this case and that he did not know whether the couple was present in the house on the day of occurrence. It is in the evidence of P.W. Sharif that Irshad teased Mst. Ruqayya two/three days before the occurrence in this case. Irshad who had been married before the occurrence, would he go out to tease a woman of his village. The accused has given a different version which in the circumstances of this case appeared to be more plausible. Even otherwise, assuming that Irshad did tease Ruqayya even then, the motive to avenge the insult would be with the complainant party. On the other hand, Irshad's disappearance also indicated that the complainant party was after him. Had the accused been so assertive and aggressive then they would not have allowed Irshad to leave the village. Even otherwise, the motive is not satisfactorily proved because P.W. Ashraf claimed to have learnt about it from P. W. Sharif his father‑in‑law for the first time in the hospital A after the occurrence. It may be mentioned here that four or five days before the occurrence, Ashraf came from Pasrur to his father‑in‑law P.W. Sharif; absence of Irshad could have been easily noticed by him. P. W. 7 Muhammad Sharif was the only person who had the knowledge of this incident before the occurrence in this case. He too has failed to give its detail so much so that he too did not know whether his brother Nazeer, father of Ruqayya, had gone to the house of Irshad to protest. P.W. Sharif admitted that he did not go to protest. In my view, the second motive too was far‑fetched and appeared to have been put to show that the accused were the aggressors. Prosecution has failed to satisfactorily prove the two motives. On the contray, the defence version appeared to be more plausible.

9. Prosecution wanted to use the statement of Nazeer (deceased) Ex.P.W. as a dying declaration. Not only that it was a verbatim copy of other statements, it was recorded in the presence of the eye‑witnesses and in the absence of the doctor without a certificate that the injured was fit to make a statement. Under these circumstances, it loses sanctity and it cannot be used as a dying declaration. The prosecution case built on the two motives was not only too weak and flimsy, it also did not inspire confidence. It has adversely reflected on the ocular testimony. P.Ws. Ashraf and Sharifi are closely related to each other and the deceased, they have tried to conceal material facts for which they have no explanation, for example Iqbal accused suffered a contusion and fourteen incised wounds which remained unexplained in the F.I.R. and even at the trial, where it has been simply said that the two deceased had caused these injuries in their defence in the courtyard of Nazeer where the three went in grappling. There is nothing to indicate that the investigating officer took blood‑stained earth from within the house of Nazeer. The prosecution case is that the blood was taken from underneath the two dead‑bodies which were lying in the street. Thus the venue of grappling finds no support. Had the story of grappling inside the house of Nazeer been correct, there would have been some blood there too. It is in the cross‑examination of P.W. Ashraf that while grappling he and Iqbal went in the courtyard of Nazeer whereupon Nazeer and Said inflicted injuries with chhuris in their defence and that he did not mention this fact in the F. I. R. nor in his supplementary statement; instead in the supplementary statement he stated that .at the time of the occurrence Iqbal accused was slightly injured at the hands of the two deceased. Again, according to Ashraf, he had picked up the chhuri of Iqbal which fell on the ground but he hag not explained to whom he hand it over. He could not explain from where Nazeer and Said obtained Chhuris. However, he said that they may have snatched it from the accused persons or picked them up from the street. This admission obviously shows that he was trying to conceal the true facts. Under cross‑examination P.W. Ashraf admitted that before the arrival of Nazeer and Said, the accused had not inflicted any injury to anyone. This admission would clinch the matter because it is admitted that the two had Chhuris and the occurrence had not started till their arrival. This is exactly the defence case that the complainant party was the aggressor who came to their house, injured D.W. Mst. Rasheeda and thereafter. pounced upon Iqbal and that the accused acted in their defence. In cases where it is obvious that both sides were trying to conceal true facts and were trying to put the blame on each other and were in fact pitched D against each other to fight then it may turn out to be a case of free fight and where from the circumstances of the case it ca reasonably be deduced that the accused acted in defence, its benefit would go to him. In this case, it appears that the trial Court has not gone deeper into the admitted facts in the cross‑examination of the two eye‑witnesses and also did not try to reconstruct the scene of crime, because as analysed above, the version put up by the defence starting from the motive down to the last scene of the occurrence, finds support from the prosecution evidence. On the E other hand, the prosecution story was highly doubtful and its benefit, therefore, would go to the accused. I am not satisfied with the guilt of the appellants. I, therefore, give them the benefit of doubt and acquit them. They shall be released forthwith if not required in any other case.

M.Y.H./G‑47/L Appeal accepted.

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