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Criminal Appeals Nos. 251, 30.3 and 304 of 1984 and Criminal Revision No.514 of 1984, heard on 1st November, 1986.

---S. 302/109--Self-defence--Plea of--Six sharp-edged and one blunt weapon injury on person of one accused and two sharp-edged injuries on other--Out of these injuries six being on arms and palm of hand- Deceased receiving seven sharp-edged and one blunt weapon injury- Defence claiming to be attacked by deceased and receiving injuries while warding off attack--Prosecution alleging deceased to have received injuries at hands of accused and thereafter by snatching dagger from one of accused, causing injuries to them--Injuries on accused persons found to be received whilst warding off injuries directed against them- Deceased found unlikely to be able to inflict nine injuries on two accused after receiving such injuries as on his person--Evidence on record and surrounding circumstances, suggested defence version to be more reasonable, probable, and reasonably true reacting on whole prosecution case--Accused, held, was entitled to benefit of plea of self-defence and acquitted of charge in circumstances.

Safdar Ali's case P L D 1953 F C 93 ref.

(b) Penal Code (XLV of 1860)---

---S. 302/109--Ocular account, appreciation of--Complainant brother of deceased and two other eye-witnesses not intervening physically though deceased snatched dagger from one accused--Complainant and two witnesses lifting deceased to put him in tonga--Clothes not stained with blood--Explanation for presence of witnesses not convincing- Witnesses not admitting number of cases pending against them Witnesses interested and belonging to deceased party Investigating Officer not mentioning names of witnesses and accused in his inspection notes- Presence of eye-witnesses at spot was not free from doubt and implicit reliance could not be placed on their testimony--Probability of their not seeing occurrence could not be entirely excluded--Story narrated by witnesses, held could not be treated in circumstances.

---S. 302/109--Abetment--No legal evidence on record showing abetment of offence by one accused--One of accused allegedly alighted from car of co-accused 'A' driven by him long after occurrence--Accused friends and challaned together in gambling case--No allegation of abetment against accused 'A' in F. I. R.--Allegation levelled against another person--Accused 'A' involved later--In absence of evidence showing that he engineered crime or knew about it, held, it could not be presumed that he was accessory after fact and even if it be presumed, Ss. 107 & 109 would not apply--No agreement or common intention to prove abetment by conspiracy could be established in circumstances.

Bhutto's case P L D 1979 S C 53 ref.

Dilawar Mahmood and Syed Ehsan Qadir Shah for Appellant (in Criminal Appeal No. 251 of 1984).

Kh. Shaukat Ali for the State (in Criminal Appeal No. 251 of 1984).

M.B. Zaman for the Complainant (in Criminal Appeal No.251 of 1984).

Aftab Farrukh and C.M.Latif Rawan for Appellant (in Criminal Appeals Nos. 303 and 304 of 1984).

Kh. Shaukat Ali for the State (in Criminal Appeal No.303 of 1984).

Kh. Shaukat Ali for A.-G. for the State (ir. Criminal Appeal No.304 of 1984).

M.B. Zaman for Appellant (in Criminal Revision No.514 of 1984).

Date of hearing: 1st November, 1986.

-Taj Muhammad alias Taja and Tariq Mahmood alias Tara were tried under section 302/ 34, P. P. C. for the murder of Hussain Mehndi, deceased and Allah Yar was tried under section 302/109, P.P.C. for having abetted the said murder, by the learned Sessions Judge, Sargodha. Taj Muhammad alias Taja and Tariq Mahmood alias Tara were convicted under section 302/34, P.P.C. and both were sentenced to death, subject to confirmation by this Court, and to pay a fine of Rs.2,000 each or in default thereof to undergo rigorous imprisonment for one year each, if their death sentences were not confirmed. Allah Yar, accused, was convicted under section 302/109, P. P. C. and sentenced to imprisonment for life and to pay a fine of Rs.5,000 or in default thereof to undergo one year's R.I., which was ordered to run consecutively. It was also ordered that half, of the, total fine recovered would be paid to the legal heirs; of Hussain Mehndi, deceased, as compensation. The three appeals (Criminal Appeals Nos. 251, 303 and 304 of 1984) preferred by Allah Yar, Taj Muhammad and Tariq Mahmood, convicts, against their conviction and sentences, the Murder Reference (M.R. No.102 of 1984 sent up by the learned trial Judge for the confirmation of the death sentences awarded to Taj Muhammad and Tariq Mahmood, convicts, and the private revision (Crl. Revision No. 514 of 1984) filed by Mushtaq Jafari, complainant, for, the capital punishment to be awarded to Allah Yar, convict; are how before us for disposal.

2. The brief facts of the case are that on 28-7-1983 at about 8 P.M., Mushtaq Jafari, complainant P.W.9 alongwith his younger brother Hussain Mehndi, deceased, was going from his house towards shopping Centre in Urdu Bazar. When they passed in front of Rashid Book Depot, Urdu Bazar, all of a sudden Taj Muhammad alias Taja and Tariq Mahmood alias Tara, accused, armed with daggers, came in their way and shouted a Lalkara that they had come to teach him a lesson for getting the case registered against them. Simultaneously, Taj Muhammad, accused, attacked Hussain Mehndi with his dagger and gave a dagger blow in front of his chest. Tariq Mahmood, accused, then gave a blow with his dagger, hitting him on his abdomen towards front side. Taj Muhammad accused, again gave a dagger blow which hit him on his right side of the abdomen. Tariq Mahmood, accused, again gave a dagger blow to Hussain Mehndi, which landed towards the front side of his right shoulder. Taj Muhammad accused, also gave another dagger blow, which hit him on his back. During the scuffle, Hussain Mehndi, deceased, snatched the dagger from Taja, accused, and gave two blows with it to him in order to save his life. Thereafter, the deceased fell down and both the accused fled away alongwith their daggers. The complainant then transported his brother Hussain Mehndi to the Civil Hospital in injured condition with the help of the people, but the deceased succumbed .to his injuries on reaching the hospital. Nazir Ahmad son of Ali Muhammad and Faiz Ahmad son of Ahmad Khan, P.Ws., residents of Kalyar Town, Sargodha, who were present near the place of occurrence in Urdu Bazar, witnessed the occurrence.

The motive behind the incident was that two months prior to the occurrence, Tariq Mahmood, accused, alongwith Amir Khan had injured Hussain Mehndi, deceased, with Sota and dagger and the deceased had got a case registered against them under section 324/506, P.P.C. A dagger had also been recovered from Tariq Mahmood, accused, in that case and a separate case was registered against him under section 13 of the ,firms Ordinance. Both the cases were pending for decision in the Criminal Court. Tariq Mahmood, accused, used to compel the complainant and his brother to patch up the matter and affect a compromise, but they did not agree to his proposal. The police had also initiated security proceedings qua both the parties. On account of this grudge, Tariq Mahmood and Taj Muhammad had murdered Hussain Mehndi, deceased, with daggers

4. Mushtaq Jafari P . W. 9 then proceeded to Police Station, 'City, Sargodha, where he lodged F.I.R. Exh. P.H. at 9-10 p.m. which was recorded by Muhammad Rashid, Inspector P.W. 12.

5. The Police Officer then proceeded to Civil Hospital, Sargodha, where, after preparing the necessary papers, he made arrangements for the autopsy to be conducted. He then went to the spot and collected blood-stained earth vide memo. Exh. P.J.

6. On 29-7-1983 at 7 a.m. Dr. Muhammad Saeed P.W. 2 conducted the post-mortem examination on the dead body of Hussain Mehndi, deceased, and found the following injuries on the dead body:--

(1) Stab wound 1 " x 3/4" on front of left upper chest 4 " medial and slightly upward to left nipple close to sternum;

(2) Stab wound 1 " x 3/4'' on right side of front of abdomen upper part close to mid line 4" above umbilicous;

(3) Stab wound 1 " x 1/2" on front of right side of abdomen 3 lateral to umbilicous;

(4) Incised wound 1 " x " muscle deep on front and outer side of right shoulder;

(5) Incised wound " x " muscle deep on back of left side of chest close to mid tine;

(6) Incised wound 1/2" x 1/4" with scab formation on the back of left lower chest outer side;

(7) Incised wound 1" x 1/2" x skin deep with scab on back of left upper arm 1" above elbow; and

(8) Contusion 2" x 1 " on back of left shoulder.

Third left rib, pericordium and left ventricle of the heart were cut under injury No. 1. Peritoneum, mesentry and liver were found cut under injury No. 2. Mesentry was found cut under injury No.3 Injuries Nos. 1, 2 and 3 were declared grievous and sufficient to cause death in the ordinary course of nature. All the injuries, except injury No. 8, were found to be caused by sharp-edged weapon. Injury No. 8 was found to have been caused with blunt weapon. Probable time between injuries and death was within a few minutes and that between death and post-mortem examination about 11 hours.

7. On the same day i.e. 29-7-1983, Taj Muhammad and Tariq Mahmood, accused, were arrested by Muhammad Rashid. Inspector P. 12. Taj Muhammad, accused, led to the recovery of a blood-stained dagger P. 6 which was taken into possession vide memo. Exh. P.R, the presence of Ashiq Hussain Jafari, P.W. 10, Muhammad Rashid Inspector P.W. 12 and Mahboob Akhtar (given up P.W.).

8. On 29-7-1983 at 2 p.m., Taj Muhammad, accused, was medically examined by Dr. Muhammad Saeed P.W. 2, who found the following injuries on his person:--

(1) Incised wound 4 c.m. x 1 c.m. x muscle deep on outer side of left upper arm;

(2) Incised wound 4 c. m. x 1 c. m. x muscle deep on back of left fore-arm middle third;

(3) Incised wound 3 c.m. x 1 c.m. x muscle deep on inner side of right upper arm lower half;

(4) Incised wound 4 c.m. x 1 cm. muscle deep on outer side of left side of upper arm;

(5) Incised wound 3 c.m. x 1 c.m. x muscle deep on inner side of left thigh lower part;

(6) Incised wound 2 c.m. x 1 c.m. x muscle deep on back of left thigh lower part;

(7) Contused abrasion 8 c. m. x,1 c. m. on inner side of left thigh just above knee.

All the injuries were simple and caused by sharp-edged weapon, except injury No. 7 which was caused by blunt weapon. All the injuries were found to have been inflicted within a duration of 20 hours from the medical examination.

9. On 30-7-1983 Dr. Muhammad Farooq Khawala P.W. 14 medically examined Tariq Mahmood, accused, and found the following injuries on his person:--

(1) An incised wound 2 c. m. sx 1/8 c. m. x skin deep on the palm of right hand and

(2) An incised wound 3 c.m. x 1/8 c.m. x skin deep on the palm of right hand 1 c.m. lateral to the injury No. 1.

Both the injuries were simple and were held to have been caused by sharp-edged weapon within 36 hours of the medical examination.

10. On 5-8-1983, Tariq Mahmood, accused, led to the recovery of a blood-stained dagger P. 5, which was taken into possession vide memo. P.F./1 in the presence of Najamul Hassan P.W. , Muhammad Akram Inspector P.W. 13 and Muhammad Asghar (given up P.W.).

11. At the trial, Taj Muhammad accused, in his statement under section 342, Cr. P. C. admitted his participation in the occurrence, but pleaded self-defence. His statement in this connection may be reproduced here with advantage:-----

At the time of occurrence, I, alongwith my co-accused Tariq Mahmood, was going in Urdu Bazar when the deceased met us there. He had a dagger with him. He first slapped Tariq Mahmood, accused, and then attacked him with his dagger. Tariq received the injury on his hand and he tried to ward off the attack and was consequently injured on his palm. I tried to rescue Tariq, but the deceased attacked me with his dagger. I fell down. The deceased was injured in self-defence. I had become unconscious at the spot. The police recorded one-sided version, due to the influence of the complainant and challaned us."

Tariq Mahmood also admitted his participation in the occurrence and pleaded self-defence. His statement in this connection may be reproduced herewith advantage:--

"At the time of occurrence Taja and myself were coming in Urdu Bazar, Sargodha, after having purchased sweet meets and when we reached near Rashid Book Depot, Hussain Mehndi assaulted me and slapped me and thereafter, he attacked me with his dagger. I warded off the blows on the palm of my hand. When Taja accused tried to interfere, the deceased attacked him and thereafter they grappled with each other and I slipped away from the place of occurrence."

Both the accused denied the recoveries alleged to have been affected at their instance. Allah Yar accused denied all the accusations that were levelled against him.

12. The learned trial Judge, placing in juxtaposition the case of the prosecution and that of the defence, found the case of the prosecution to be proved. He, therefore, convicted and sentenced Taj Muhammad and Tariq Mahmood, accused, under section 302/34. P.P.C., and Allah Yar, accused, under section 302/109, P.P.C., as stated in para. 1 above.

13. We have heard the arguments of the learned counsel for the appellants, the complainant and the State and have perused the record. The occurrence is admitted by Taj Muhammad and Tariq Mahmood, appellants. In these circumstances, the only question that arises is, whether, after placing in juxtaposition the case of the prosecution and that of the defence, the evidence on the record and the surrounding circumstances proved the case of the prosecution beyond any reasonable doubt, or lead to the inference that the case of the defence is true or reasonably probable. The occular account is furnished by Mushtaq Jafari, P.W. 9 and Nazir Ahmad P.W. 11. Their version stands reproduced in para. 2 above and need not be repeated. The defence version also stands reproduced in para. 11 above and need not be repeated.

14. On behalf of the appellants it is submitted that the defence version is not only true but also reasonably probable. In the light of the number and nature of sharp-edged weapon injuries found on the person of the two appellants, it is submitted that they tried to ward off the injuries by their arms, as a result of which Taj Muhammad, appellant, suffered four incised wounds on his left upper arm and fore-arm and right upper arm and Tariq Mahmood, appellant, suffered two incised wounds on the palm of his right hand. In addition. Taj Muhammad, appellant, also suffered two incised wounds and one contused abrasion on different portions of his left thigh. In the light of this medical testimony, it is submitted that the appellants were under assault, as reasonably gave them the apprehension that grievous hurt would be caused to them and they, therefore, had the right of private defence of their body, extending to causing the death of their assailants. It is further submitted that both the appellants at the very initial stage of the investigation took up the plea of self-defence before the Investigating Officer, which stands supported by the admission made by Muhammad Rashid Ahmed, Inspector P.W. 12 in that behalf, in his cross-examination. It is also contended that if the appellants had first attacked Hussain Mehndi, deceased, with their weapons, as alleged by the prosecution, the deceased, on receiving injury No. 1 would have collapsed then and there and not been in a position to inflict any injury on the appellants, as claimed by the prosecution.

15. On behalf of the complainant and the State it is submitted that Hussain Mehndi, deceased, was a strong muscular person, that he was a body-builder and selected twice as "Mr. Sargodha" and it was because of his good health that he was able to survive the large number of injuries inflicted by the appellants on his person and yet able later to snatch the dagger from Taj Muhammad, appellant, and inflict seven injuries on him and two injuries on Tariq Mahmood, appellant. It is further submitted that the mere perforation of the heart was not such as to disable the deceased from acting in the manner as he did, as cases are not wanting where persons with perforated hearts have been able to survive and physically act in a normal manner for many minutes, after the receipt of such injuries. It is further submitted that if the statements of the two appellants, as recorded under section 342, Cr.P.C., are read, the appellants have not claimed the privilege of self-defence, for none of the appellants has taken any liability for any injury caused to the deceased, or explained what happened to the dagger of the deceased, after he was injured.

16. We have given our anxious consideration to the arguments addressed by both the parties in respect of the plea of self-defence raised by the appellants. In the instant case, there are six sharp edged weapon injuries and one blunt weapon injury on the person of Taj Muhammad, appellant. Four incised wounds are on the right and left arms. There are two incised wounds on the person of Tariq Mahmood, appellant. Both of them are on his right palm. It is, therefore, obvious that six of the eight sharp-edged weapon injuries on the person of the two appellants are those which they received whilst trying to ward off injuries directed against them. The remaining two injuries on the person of Taj Muhammad, appellant, are on different parts of the left thigh. The case of the appellants that the deceased happened to bump into them in Urdu Bazar and first slapped and then attacked Tariq Mahmood, appellant, with his dagger, which the said appellant warded off on the palm of his hand, whereafter Taj Muhammad, appellant, interfered and he was also attacked and he then acted in self-defence, appears to be reasonable and probable. If the two appellants had first attacked Hussain Mehndi, deceased, as alleged by the prosecution, and given him the first five injuries as were found on his person, as stated by the two eye-witnesses, it is unlikely that he would have been able to inflict the nine injuries on the two appellants later. We do not wish to suggest that the deceased, who received the first injury in the chest, would have become totally unconscious or immobile after receiving that injury. Medically perhaps this is a remote possibility, but what strikes us as most prominent in the instant case is the fact that if the deceased had received the first five sharp-edged injuries at the hands of the two appellants, he would have become suddenly unnerved and cowed down and he would not have had the strength to retaliate to the extent of causing as many as nine injuries on the two appellants, as have been found on their person. The plea of the learned counsel for the complainant that the appellants did not specifically state in their statements under section 342, Cr.P.C. as to which of them inflicted the injuries on the person of the deceased and as to what happened to the dagger of the deceased, does not defeat their case. What is to be seen, according to the principle of Safdar Ali's case P L D 1953 F C. 93, is not whether the appellants, under section 105 of the Evident Act, have been able to discharge their burden of proof as regards their defence, but whether, after an examination of the total evidence produced by the prosecution and defence, an inference can be drawn that there is reasonable possibility that the defence version might be true and if that be so, the said view react on the whole prosecution case. Mushtaq Jafari P.W.9 is a real brother of the deceased. According to the version he was going to the Shop of Yasin vegetable seller for medicines for his piles. The deceased was accompanying him, as the shopkeeper was known to him. It was for the first time that he was going to the shop of the said Yasin. Mushtaq Jafari P.W. 9 admits he was stouter than Tariq Mahmood, appellant. Nazir Ahmad P.W. 11 admits that Mushtaq Jafari P.W. 9 and Faiz Ahmad (given up P.W.) were also strong persons. However, Mushtaq Jafari P.W. 9 did not physically intervene to save his brother, though Nazir Ahmad P.W. 11 and Faiz (given up P.W.) were also there and his brother had even snatched the knife of Taj Muhammad, appellant. He could not remember if his clothes were stained with blood, though he and his two friends had lifted and placed the deceased in a Tonga, to transport him to the hospital. Nazir Ahmad P.W. 11, at the time of occurrence, was proceeding to Nagina Bakery for purchasing rusks, though there were fifty other bakeries between his house and the place of occurrence, which was 400 yards from his house. He claimed that fifteen years back he had lived in a portion of the house of the deceased on rent, but only for 8-9 months, yet he had not intervened to save him. He admitted that he had helped the complainant in lifting the deceased and placing him in the Tonga, but stated that his clothes did not get stained with blood. Muhammad Rashid Ahmad, Inspector P.W. 12, admitted that when he visited the spot and prepared the inspection note, he did not mention the names of the eye-witnesses and the accused therein. The presence of the eye-witnesses at the spot is not free from doubt. Both Mushtaq Jafari P.W. 9 and Hussain Mehndi, deceased, appear to have been involved in large number of cases. According to the former, these were the result of police harassment against him and his brother, as he, being a journalist, had constantly written against the administration and his brother, being a student leader, had off and on been involved in student agitation. Both the eye-witnesses did not admit a number of cases in which they were involved, which were later proved by defence witnesses to have been registered against them. Looking at the number and nature of the cases registered against the complainant and the deceased, one cannot escape the conclusion that the deceased was not the type of person who would not have carried a knife. Nazir Ahmed 'P.W. 11 tried to show he was independent, but Najam-ul-Hassan P.W. 7 admitted that he was also living in the house of the complainant, alongwith his wife and daughters, as a tenant of the complainant. The witnesses are, therefore, not persons on whom implicit reliance can be placed. The probability that they did not witness the occurrence, cannot be entirely excluded. But even assuming, for a matter of argument, that they were there, their story does not ring true. Taj Muhammad and Tariq Mahmood, appellants, claim to be goldsmiths, though Nazir Ahmed P.W. 11 stated that he believed Taj Muhammad, appellant, to be employed somewhere, whereas Mushtaq Jafari P.W. 9 stated he was a vagabond and employed with the Market Committee. Mushtaq Jafari P.W. 9 denied the fact that Tariq Mahmood, appellant, was a goldsmith. The criminal involvement of Tariq Mahmood, appellant, in the case lodged by the deceased against him and one Amir Khan under section 324/34, P.P.C., has been admitted by this appellant. The criminal involvement of Taj Muhammad, appellant, in the gambling case has not been conclusively established. But even assuming Tariq Mahmood appellant, had some grievance against the deceased for not compromising the matter with him, it does not stand to reason that he would have gone to murder the deceased in an open bazar in the presence of everybody present. Nothing appears on the record to suggest why Taj Muhammad, appellant, would have joined in this madness. It appears that something untoward happened in the bazar, which triggered the occurrence and that the story of the eye-witnesses is not the whole truth. On the basis of the evidence on the record and the surrounding circumstances, we consider that the appellants' version appears to be more reasonable and probable and that their defence might reasonably be true. In these circumstances, they are entitled to the benefit of their plea of self-defence. Therefore, the conviction and sentence of Taj Muhammad and Tariq Mahmood, appellants, deserve to be set aside.

17. With regard to the case of Allah Yar, appellant, we regret to state that there is no legal evidence to show that he abeted the commission of the offence. We have read the evidence of Saleem Ahmad P.W. 8 and Mushtaq Hussain Jafari P.W. 9. What only appears from their evidence is that Tariq Mahmood, appellant, alighted from the car of Allah Yar, appellant, which the latter was driving, on the day of occurrence at about 9 p.m. and that Allah Yar and Taj Muhammad, appellants, are friends and were challaned together in a gambling case. In the F.I.R. no allegation of abetment was made against Allah Yar, appellant. According to Muhammad Akram, Inspector, P.W. 13, Mushtaq Hussain Jafari P.W. 9 first levelled the allegation of abetment against one Muhammad Suleman. However, it was not until 9-9-1983 that he involved Allah Yar, appellant. Assuming that Allah Yar, appellant, dropped Tariq Mahmood, appellant, after the occurrence, in his car, in the absence of evidence showing that he engineered the crime or knew about it, it cannot even be presumed that he was an accessory after the fact.

Even if that presumption can be drawn, sections 107 and 109, P.P.C. do not cover accessors after the fact. Further, there is only a suggestion that Allah Yar and Tai Muhammad, appellants, were friends. The learned trial Judge has held that the evidence produced by the prosecution inter alia clearly shows that one of the two gangs operating in the city was headed by Allah Yar, appellant, that his gang had a clash of interest with the gang of the deceased, that the deceased had always asked the companions of Allah Yar, appellant, to refrain and desist from their evil designs and should not tease the boys or recover Jagga tax from the people and that this act of the deceased had annoyed Allah Yar, appellant. None of these facts stand borne out from the record, other than a statement by Mushtaq Jafari P.W. 9 that the deceased who was a social worker, had tried to stop Tariq Mahmood, appellant, from recovering Jagga tax. From what material the learned Sessions Judge has drawn the conclusion referred to above, is not clear. The version of the defence that the police tried to involve Allah Yar, appellant, mala fide, to extort money from him, cannot be entirely excluded. Taking all circumstances into consideration, no abetment stands proved either under section 107 or 108 of the Pakistan Penal Code. The learned trial Judge has cited Bhutto's case P L D 1979 S C 53, to seek justification for convicting Allah Yar, appellant. This case relates to conspiracy and not abetment. But even to prove abetment by conspiracy, agreement or common intention has to be proved. No agreement or common intention stands established in this case. The learned Sessions Judge's approach to the legal question of abetment has been perfunctory and it appears that he does not understand the law. Paras. 40 to 46 of the judgment appear to be a laboured pretext to convict Allah Yar, appellant on assumptions not borne out by the record. We are amazed at the monstrosity of the wrong done to an appellant, who deserved acquittal.

18. The upshot of the above discussion is that all the three appeals of the three appellants are accepted and the three appellants stand acquitted. Their conviction and sentences are set aside. Taj Muhammad alias Taja and Tariq Mahmood alias Tara, appellants, shall be release forthwith, if not required ire any other case. Allah Yar, appellant, is on bail. His bail bonds shall stand discharged forthwith. Fines, if any recovered from any of the three appellants, shall be refunded to them, The death sentences awarded to Taj Muhammad alias Taja and Tariq Mahmood alias Tara, appellants, are not confirmed. The private revision (Criminal Revision No. 514 of 1984) has no merit and is dismissed in limine.

S. A. Appeals accepted.

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