1982 PLP r (PCRLJ)

Injuries Nos. 1 to 6 were declared grievous while Injuries Nos. 2 and No. 3 were kept under observation. Other injuries were found simple. Except Injury No. 9, rest of the injuries were caused with sharp-edged weapon. Injury No. 1 was the result of a blunt weapon. Duration of the injuries was within four hours. On the same day Shah Muhammad P. W. 6 was also examined and the following injuries were found on his person :-- (l) A contused wound 1/3" x 1/8" x " on front of left side of upper lip. (2) An abrasion on left eye brow 1/3" x ". (3) An abrasion x on right elbow. (4) An abrasion x 1/3" on left knee cap. (5) A contusion 1" x 1" on left cheek. (6) An abrasion " x 1/8" on back of left hand all the injuries were simple and were caused by blunt weapon within a duration of four hours.

4. On 10th July, 1975 Dr. Muhammad Azeem Majoka examined Ghulam Farid appellant at 6-00 p. m. when he was brought by the Police. He found on his person a contused wound 1 " x 1/3 x 1/8" on left side of head 4" above the left ear. The injury was simple and was caused by a blunt weapon within a duration of 2 to 4 days. On the same day Ahmad Ali appellant was also medically examined when he was brought by the Police. The following injuries were found on his person :-- (l) Two linear parallel abrasions 2" long on front of left of side of chest upper 1/3". (2) Two abrasions on inner aspect of right thumb " x 1/8 " each. All the above injuries were found simple and were caused by blunt weapon within two to four days. Hassan Ali appellant was also examined on the same day. Only one injury was found on his person which was an incised wound 1/3" x 1/10"x 1/10" on back of the right middle finger at the lower digit. It was simple in nature and was caused by sharp-edged weapon within a duration of two to four days.

5. Autopsy on the dead body of Nisar Ahmad was performed by P. W 10 Dr. Mumtaz Ahmad Janjua on 15th July, 1975 at 10-40 a. m. He found the following injuries on the dead body :- (1) Details of injuries in M. I. C. No. 5 M. A. dated 7th July, 1975 by Dr. Muhammad Azeem Majoka. (2) Nearly all the wounds healed except one in the right iliac fossa 3 x stitched. On opening the abdomen he found the small intestines tied at one place. All the organs of the thorax were healthy. Right pleural cavity contained blood-stained, left pleural cavity contained more blood. He found left side of heart empty but right side containing coagulated blood. He found that all the organs of the abdomen were healthy ; stomach was empty ; small intestine was tied at one place ; large intestine contained small quantity of feacal matter and bladder was full of urine. According to him the deceased had died due to injury to the left lung leading to intra pleural bleeding causing pulmonary embolism afterwards. All the injuries were caused by sharp-edged weapon except Injury No. 9 which was caused by blunt weapon and was sufficient in ordinary course ol; nature to cause death. According to hint the probable time that elapsed between injuries and death was about nine days and between death and post-mortem was about two hours.

6. Imdad Hussain A. S. I., who had investigated the case was examin ed as P. W.

8. P. W. 1 Fazal Karim P. C. No. 587, P. W. 2 Ghulam Yasin A. S. I. and P. W. 4 Sheikh Noor Muhammad draftsman were formal witnesses. Ghulam Yasin P. W. 3 was examined to prove memo. Exh.-P. B. which was prepared when the blood-stained earth was taken into possession from the place of occurrence.

7. The appellants and the acquitted accused Jamil controverted the (prosecution case when they were examined under section 342, Cr. P. C. 'Hassan Ali appellant stated that Nisar Ahmad deceased and his brother Shafi Muhammad P. W. 6 suspected him of having illicit relations with Mst. Ferozan. On the night of occurrence they came to his house armed with knives to attack him. There was a quarrel and in the general melee Nisar Ahmad and Shafi Muhammad received injuries. He further stated that Nisar Ahmad deceased and his brother were the aggressors and that he had been falsely implicated in the case. Abdul Sattar, Nasir Ahmad, and the acquitted accused Jamil pleaded that they had been falsely implicated 'on account of their friendship with Hassan Ali appellant. Ghulam Farid and Ahmad Ali appellants stated that Nisar Ahmad and his brother were the aggressors and that they had received injuries in the general melee. According to them Nisar Ahmad deceased and Shafi Muhammad had injured them. The appellants and Jamil, however, produced no evidence in defence.

8. The learned Additional Sessions Judge rejected, the defence plea and came to the conclusion that Nisar Ahmad deceased and Shafi Muhammad were attacked by the appellants first as stated by the prosecution. He accordingly found the appellants guilty and convicted them as noticed earlier. Jamil was, however, acquitted on the ground that he had not taken any active part at the time of occurrence as no injury to the deceased was attributed to him.

9. As noticed above there are two different versions of the occurrence in the present case. According to the prosecution version Nisar Ahmad deceased and Shall Muhammad P. W. 6 were both attacked by ; the appellants and their co-accused Jamil when they were returning from the house of Shafi Muhammad. The defence version, on the other hand is that Nisar Ahmad deceased and Shafi Muhammad had gone to the house of Hassan Ali appellant and had attacked him. Ahmad Ali appellant brother of Hassan Ali, appellant and Ghulam Farid appellant had intervened and in the general melee bath the parties had received injuries. The learned Additional Sessions Judge has rejected the defence version as, according to him the appellants other hand, if the learned Additional Sessions Judge has taken notice of the appellants' omission to disclose their version of the case to the Police in order to show that the plea taken by them at the trial was an afterthought as it was not taken up at the earliest opportunity, the learned Additional Sessions Judge has failed to consider that if the appellants had disclosed their version to the Police during the investigation of the case, where was the guarantee that the Investigating Officer would have recorded it in the Zimnis.

10. The other circumstances which the learned Additional Sessions Judge has taken into consideration for rejecting the defence version are the number and nature of injuries found on the person of Nisar Ahmad deceased and Shall Muhammad P. W. It is now a well-settled proposition of law that the extent of injuries on one party as against the other is not in every case a good guide for determining the question of responsibility for the occurrence. Nature of injuries on the complainant party by itself is no conclusive criterion to judge whether the accused were the aggressors. The question whether the accused had acted in exercise of his right of private defence is determined by keeping in view all the relevant facts and circumstances of the case. The appropriate course in such cases is that the plea of self-defence put forward by the accused, should be placed in' juxtaposition with the prosecution evidence and the case be examined as a whole. It should be seen which of the two versions is more-plausible.

11. In the present case motive attributed by the prosecution for the murderous assault on Nisar Ahmad deceased is that Hassan Ali appellant had felt offended over Nisar Ahmad deceased's marriage with Mst. Ferozan as he himself wanted to contract marriage with her. Ibrahim, P. W. 5 has stated that Shafi Muhammad had promised to give the hand of his daughter Mst. Ferozan in marriage to Hassan Ali appellant but about three months before the occurrence he had refused to marry his daughter with Hassan Ali appellant. 1n the F. I. R. Exh.-P. A./1 Ibrahim, however, had stated that Hassan Ali appellant wanted to marry Mst. Ferozan and that he had felt offended after she had contracted marriage with Nisar Ahmad. It is evident that Ibrahim had made improvement in the statement made by him as P. W. 5 because he must have thought that Nisar Ahmad's marriage with Mst. Ferozan after breach of alleged promise of marriage made by her father with Hassan Ali appellant would be considered a strong motive for committing the murder of Nisar Ahmad than the mere fact that Hassan Ali appellant had a desire to marry Mst. Ferozan. Shafi Muhammad father of Mst. Ferozan was the most proper person who would have given the correct factual position but he has not been examined by the prosecution. According to Ibrahim P. W. 5 marriage of Mst. Ferozan had taken place with Nisar Ahmad three or four months before the occurrence. It is difficult to appreciate why Hassan Ali appellant who allegedly felt offended by the above marriage remained silent for such a long period and thought it fit to attack Nisar after about four months of his marriage with Mst. Ferozan. The defence version on the other hand, is that Nisar Ahmad and his brother had suspected that Hassan Ali appellant had illicit relations with Mst. Ferozan and it was for that reason that they had gone to the house of Hassan Ali appellant to attack him. The occurrence has admittedly taken place in front of the Baithak of Hassan Ali appellant. Muhammad Shafi P. W. 6 and his father Ibrahim P. W. 5 have tried to explain the presence of Nisar Ahmad deceased by saving that he alongwith his brother was returning from the house of Shafi Muhammad, his father-in-law, after enquiring about the health of Mst. Sharifan. Ibrahim P. W. 5 has not been able to give any detail about the ailment of Mst. Sharifan as he himself had not gone to her house to enquire about her health. According to Shafi Muhammad P. W. 6 information about the illness of Mst. Sharifan was received by them on the day of occurrence but it is strange that her daughter Mst. Ferozan had not gone to enquire about her health. He has stated that Mst. Sharifan was not suffering from any particular disease. From the above statements of Ibrahim and Shafi Muhammad P. Ws. it appears that Mst. Sharifan was not suffering from any serious ailment for which Nisar Ahmad deceased and his brother had found it necessary to go to her house. The story of Shafi Muhammad P. W 6 and Nisar Ahmad deceased's visit to the house of Mst. Sharifan has been introduced in order to show their presence at the place of occurrence. The prosecution has not tried to explain the injuries of Hassan Ali, Ghulam Farid and Ahmad Ali appellants. Shafi Muhammad P. W. 6 has stated that he and his brother had not caused any injury to the aforementioned persons'. Accord ing to him he did not even know that the said persons had received injuries and that they were got medically examined by the Police. P. W. 5 Ibrahim has also made similar statement. The prosecution has not shown that the injuries found on the person of Hassan Ali, Ghulam Farim and Ahmad Ali appellants were self-suffered or had been caused by a friendly hand. Prosecution's failure to explain the injuries on the person of the appellants raises a strong inference against the prosecution and supports the defence version that Nisar Ahmad deceased and his brother Shafi Muhammad had first attacked Hassan Ali appellant at his house and had caused injuries to him.

12. The prosecution case is that the occurrence had taken place near the house of Hassan Ali appellant and that there are number of other houses near the place of occurrence.' According to Ibrahim P. W. 5 a number of persons from the adjoining houses had collected when the occurrence had taken place. Shaft Muhammad P. W. 6 has also made a likewise statement. It is, however strange that the prosecution has not examined any one of these persons as witness and has relied on the testimony of two interested witnesses. Ibrahim P. W. 5 is the father of Nisar Ahmad and Shad Muhammad P. W. 6 is the brother of the deceased. Prosecution's omission to examine any independent and disinterested witness, also adversely affects the prosecution case as it can be justifiably contended by the appellants that if the prosecution bad examined independent and interested witnesses they would have supported the defence version as against the prosecution, story.

13. The learned Additional Sessions Judge has referred to the possi bility of false implication of persons in the present case in his judgment and has come to the conclusion that only five accused had committed the offence. For arriving at the above conclusion he had taken into considera tion the fact that three appellants Hassan Ali, Ahmad Ali and Ghulam Farid were injured and as such their presence at the place of occurrence could not be disputed. Recovery of blood-stained knife P-2 at the instance of Abdul Sattar appellant has been taken into account for his involvement. Similarly Nasir appellant was found to have participated in committing the murderous assault, as he had produced two broken pieces' of hockey stick before the Investigating Officer The presence of the last mentioned two persons, namely, Abdul Sattar and Nasir Ahmad at the place of occurrence appears to be doubtful because in. the first instance none of them had received any injury which they would have sustained if they had taken part in the fight that ensued between the parties. It is not safe to place reliance on the recovery of blood-stained knife P-2, which was allegedly effected by the Investigating Officer on the pointing out of Abdul Sattar appellant because this recovery was not witnessed by any person belonging to the locality from where it was effected. Muhammad Siddiq P. W. 7 had gone to see his ailing sister in Katchi Abadi when he joined the investigation of the case at the instance of the Police and witnessed the recovery of the knives. According to P. W. 8 Imdad Hussain A. S. I Abdul Sattar and Hassan Ali were interrogated at the Police Station City Sargodha when Muhammad Aslam and Muhammad Siddiq P. Ws. were also present there. They were taken by him from the police station to Katchi Abadi for seeing the recovery of knives. No reason has been given by him as to why Muhammad Aslam and Muhammad Siddique P. Ws. had come to the police station and why he had chosen them to accompany him for witnessing the recovery. Muhammad Siddiq P. W. 7 has contradicted lmdad Hussain P. W. 8 inasmuch as according to him he was already present in Katchi Abadi when the Police had gone there. It may also be noticed that Abdul Sattar appellant was arrested on 10th July, 1975 while the alleged recovery of knife P-2 was effected three days after his arrest on 13th July, 1975. A11 these facts raise suspicion as to the genuineness-of the recovery.

14. Nisar Ahmad appellant's involvement is based on the fact that he had produced two broken pieces of a hockey stick before the Investi gating Officer at the time of his arrest. P. W. 8 Imdad Hussain, A. S. I. has not referred to the aforementioned broken pieces of hockey stick in his statement nor he had prepared any memo of recovery in respect of the said pieces. In the F. I. R. also no reference was made that Nasir Ahmad appellant was armed with a hockey stick. Even Shafi Muhammad P. W. 6 has not mentioned about it in his statement to the Police. According to Ibrahim P. W. 5 Hassan Ali and Sattar appellants were armed with knives, while the other assailants including Nasir were armed with lathis. Thus, the implication of Nasir Ahmad on the ground that be had produced broken pieces of a hockey stick before the Investigating Officer at the time of his arrest is hardly justifiable.

15. The possibility of false implication of Abdul Sattar and Nasir Ahmad in the present case cannot be ruled out because there are circum stances to suggest that the F. I. R, in the case was lodged after delibera tion. Nisar Ahmad deceased was brought to the hospital in injured condition at about 10-30 p. m. on 7th Juty, 1975, when he was examined by P. W. 9 Dr. Muhammad Azim Majoka. His medical examination was completed before 10-45 p, m. because the other injured person, namely Shafi Muhammad P. W. was examined by Dr. Muhammad Azim Majoka at 10-45 p. m. After obtaining copies of the medico-legal reports, Ibrahim P. W. 5 was going to the police station when he met Imdad Hussain P. W. 8 near Khayam Cinema at 1-00 a. m Although the distance of Khayam Cinema from the D. H. Q. Hospital has not been given, yet both the places were situated within the same city and it is difficult to appreciate how Ibrahim P. W. 5 took two hours to reach Khayam Cinema from the D. H. Q. Hospital. P. W. Dr. Muhammad Azim Majoka has stated that he had probably informed the Police about the injuries of Nisar Ahmad deceased. It is, therefore, quite possible that Imdad Hussain P. W. 8 had reached the hospital on receiving the above infor mation from the doctor and it was there that after consultation with Ibrahim his statement was recorded. 1t may be noticed that the case was actually registered at 1-30 a. m. at the police station. The story of Ibrahim P-W. 5 meeting Imdad Hussain P. W. 8 near Khayam Cinema while going to the police station for making the report to the Police has been introduced to conceal the fact that Ibrahim's statement was recorded at the hospital where Imdad Hussain P.,W. had reached on receiving information about the injuries to Nisar Ahmad from the doctor. False. implication of Abdul Sattar, Nasir Ahmad and Jamillis also evident from the fact that they had no motive to commit the murderous assault kin Nisar Ahmad and Shafi Muhammad P. W.

16. Although the learned Additional Sessions Judge has not referred to the statement of Nisar Ahmad deceased Exh. P. J. which was, recorded tinder section 161, Cr. P. C. by the Investigating Officer and which could be used as a piece of evidence under section 32 of the Evidence Act, 1872, its examination shows that Nisar Ahmad had introduced the names of Ghulam Nabi and Ishaq as eye-witnesses though they had not been mentioned in the F. 1 R. Ibrahim P. W. 5 had not stated in the F. I. R. Exh. PA/ I that he had also reached the place of occurrence and. had witnessed the incident. This lacuna was also removed by Nisar Ahmad deceased in his statement Exh. P. J. It is, however, interesting to note that even Nisar Ahmad deceased did pot try to explain the injuries of Hassan Ali Ghulam Farid and Ahmad Ali appellants in his aforementioned statement Under, these circumstances it is not proper to place any reliance on the statement Exh. P. J. which appears to be a prepared statement made by Nisar Ahmad deceased for the purpose of removing lacunae in the prosecution case as disclosed in the F.I.R.

17. The upshot of the above discussion' is that the prosecution had tailed to prove that the occurrence had taken place in the manner stated by it. The defence version, on the other hand, appears more plausible that Hassan Ali appellant was first attacked by Nisar Ahmad deceased B and Shah Muhammad and it was in exercise of their right of private defence that his brother Ahmad Ali and Ghulam Farid appellants had caused injuries to them. They were entitled to the statutory benefit under section 100, P, P. C. Abdul Sattar and Nisar Ahmad appellants were not present at the place of occurrence as noticed above.

18. For the foregoing reasons, I allow this appeal and set aside the order of conviction and sentence passed against the appellants. Hassan Ali appellant, who is on bail, is relieved of his bail bond. The other appellants who are is jail shall be released forthwith if they are not required in any other case. Appeal allowed