1991 P Cr (PLP)

For causing the death of Abdul Rashid son of Ghulam Rasool and making a, murderous assault upon Malik Aman, Sanaullah, Ali Muhammad and Races Ahmed, by means of Churris, and causing damage to the Suzuki pick-up belonging to Malik Aman, four persons, namely, Muhammad Hanif (appellant), Muhammad Ismail, Kashif Beg and Muhammad Yousuf were put on trial under section 302-307-427/34, P.P.C. before Mrs. Qaiser Iqbal, IInd Additional Sessions Judge (West) Karachi, who acquitted Muhammad Ism", Kashif Beg, and Muhammad Yousuf, but convicted appellant Muhammad Hanif for the offence under section 302, P.P.C. and sentenced him to imprisonment for life and to pay a fine of Rs.10,

000. He was also directed to pay a compensation of Rs.20,000 to legal heirs of deceased Abdul Rashid or in default to suffer R.I. for six months. All the above sentences were ordered to run concurrently. The benefit of section 382-B, Cr.P.C. was also extended to the appellant. By this appeal filed under section 410, Cr.P.C., the appellant has challenged his conviction and sentence.

2. Complainant Malik Aman used to ply Suzuki pick-up on hire. On 19-5-1988 he was going for picnic in the said pick-up to celebrate Idd festival alongwith his friends Sanaullah, Ali Muhammad, Raees Ahmed, Muhammad Rashid and deceased Abdul Rashid. In the meanwhile Muhammad Shafique, brother of Muhammad Rashid complained to them by stating that while he had gone to Gujrat Colony he was beaten by some boys of that Colony. The party then proceeded to Gujrat Colony where they reached at about 1 p.m. The pick-up was stopped near Five Star Music Centre on the road. It is alleged that Muhammad Rashid (P.W.9) was making inquiry about the previous incident when they were surrounded by the culprits including the present appellant, who were armed with Churris. Deceased Abdul Rashid who was sitting on the front seat tried to get down from the pick-up when he was stabbed by the appellant. In the scuffle Malik Aman, Sanaullah, Ali Muhammad and Raees Ahmed also sustained injuries. Besides the injured persons the incident was witnessed by Muhammad Rashid, Haseeb, Rizwan, Muhammad Ameen and Muhammad Shafique. All the injured persons were taken to Civil Hospital Karachi. The Duty Officer of the Civil Hospital Karachi, informed Muhammad Yousuf, A.S.I. of Baldia P.S. about the arrival of the injured persons, who rushed to the hospital and recorded 154, Cr.P.C. statement of Malik Aman at 5 p.m., which was subsequently incorporated in 154, Cr.P.C. book. The case was initially registered under section 307-427/34, P.P.C. but after the death of Abdul Rashid section 302, P.P.C. was also added. Muhammad Yousuf A.S.I. conducted the investigation. He inspected the scene of occurrence and recorded the statements of almost all the main witnesses. On 20-5-1988, the Police Officer arrested the accused persons. Malik Muhammad Nawaz, S.I.P. took up further investigation: On 26-5-1988 he recovered blood-stained Churris at the instance of appellant Muhammad Hanif and accused Muhammad Ismail (since acquitted) and prepared separate Mashirnamas. A separate case under section 13-E of the Arms Ordinance, 1965, was also registered against the appellant. The blood-stained articles were sent to Chemical Examiner, Karachi, for report. After completing the investigation both the cases were challaned. During the course of investigation the cross-case lodged by Muhammad Shahid was also registered against Malik Aman and others (Crime No.116 of 1988), Baldia Town P.S. under section 147-148-324-504, P.P.C., which too was challaned but was not disposed of alongwith this case (Crime No.115 of 1988) and is still pending before the Illaqa Magistrate.

3. At the trial the prosecution has examined Malik Aman (P.W.1), Haseeb (P.W.2), Rizwan (P.W.3), Muhammad Ameen (P.W.4), Sanaullah (P.W.5), Ali Muhammad (P.W.6), Raees Ahmed (P.W.7), Saeed-ur-Rehman (P.W.8), Muhammad Rashid (P.W.9), Muhammad Shafique (P.W.10), Syed, Anwar Hussain H.C. (P.W.11), Allah Devayo Tapedar (P.W.12), Muhammad Yousuf, A.S.I. (P.W.13), Abdul Shakoor Kazi, A.C.M. (P.W.14), Dr. Jafar (P.W.15), Dr. Athar Hussain (P.W.16) and Malik Muhammad Nawaz S.I.P. (P.W.17).

4. In their statements recorded under section 342, Cr.P.C. the appellant and co-accused. (since acquitted) have disputed the case of the prosecution. According to them the witnesses who are interested were set up by police. The appellant and co-accused (since acquitted) examined themselves on oath. They, however, did not examine any other witness in defence.

5. On the assessment of evidence available on record the learned Additional Sessions Judge found the appellant guilty for the offence under section 302, P.P.C. alone and convicted him accordingly. The rest of the accused were, however, extended benefit of doubt and acquitted. It is in these circumstances that the present appeal has been filed.

6. I have heard Mr. Khawaja Naveed Ahmed, learned counsel for the appellant and Mr. S.Z.A. Qureshi, learned counsel for the State. I have also gone through the record of this case carefully.

7. Before examining the evidence adduced in support of the prosecution version, I propose to examine certain legal points that have been urged in, the course of arguments. It is contended on behalf of the appellant that the simultaneous trial of the cases before two different Courts over one and the same occurrence was undesirable and this has caused serious prejudice to the appellant. In other words it was submitted that both the cases, viz., Crime No.115 of 1988 and Crime No.116 of 1988, arising out of the same incident should have been tried by the learned Additional Sessions Judge in quick succession. This objection was also raised before the trial Judge who rejected it for the following reasons:-- "Mr. Khawaja Naveed Ahmed, learned defence counsel did not challenge ocular account, factum of recovery of Churris and blood-stained handkerchief of the deceased found to be stained with blood by the Serologist, but has asserted that deceased and his companions, injured eye-witnesses of the occurrence were the aggressors as is vouchsafed from counter-version in the shape of F.I.R. No.116/88 lodged by Shahid. It is settled by Supreme Court of Pakistan in P L D 1971 SC 713 and 1973 S C M R 134 that there is no legal bar in the trial of cases under section 302 committed to the Court of Session, whereas cross-case under section 307, P.P.C. is sent for trial to the Magisterial Court, and the rule has been laid down that the proceedings under section 307 case be remained pending to await trial of section 302, P.P.C. case."

8. There is plenty of authority in support of the view put forward by learned counsel for the appellant: In the case of Sheikh Samir and others v. Beni Madhab Gope and another reported in 24 Cr. L J (1923) 940, a Division Bench of the Calcutta High Court held that it is desirable that the cross-cases be tried by the same Magistrate. In Krishna Pannadi v. Emperor reported in A I R 1930 Mad. 190, it was laid down that cases and counter-cases should be tried in quick succession by the same Judge, who should not pronounce judgment till the hearing of both cases is finished. The case of Balu and others v. Emperor reported in A I R 1934 Lah. 458, is also relevant on this point, wherein it was observed that the cross-cases should be disposed of together. This view also gets support from the case of Ujagar Singh v. Emperor reported in A I R 1936 Lah.

356. In Banappa Kallapa Ajawan and others v. Emperor, reported in A I R 1944 Born. 146, a Division Bench held as follows:-- "The question of the proper procedure to be followed in such cases, where rival factions which have taken part in a riot are both prosecuted is one of considerable importance. The two factions must obviously be prosecuted separately, since the common intention of each of the, two parties to the riot would be different and they could not be tried in a single case. There is of course no objection in law to both the cases being tried by separate Judges with, the help of separate juries or assessors, but such a procedure is always open to the risk of the two Courts coming to conflicting findings, and occasionally, as in the present case, it may result in very serious injustice, one side or the other being wrongly convicted. In our opinion the most desirable procedure in such cases would seem to be that both the cases should be tried by the same Judge, though-.with different assessors or juries. The first case should be tried to a conclusion and the verdict of the jury or the opinion of the assessors taken. But the Judge should postpone judgment in that case till he has heard the second case to a conclusion anal he should then pronounce judgments separately in each case. He would of course be bound to confine his judgment in each case to the evidence led in that particular case and would not be at liberty to use the evidence in one case for the purpose of the judgment in the other case and to allow his findings m one case to be influenced in any manner to the prejudice of the accused by the views which he may have formed in the other case. It would be obviously necessary that he should try the two cases in quick succession one after the other. It may be that in some particular cases he might feel some difficulty about trying both cases and in such a case it would always be open to him to get the second case transferred."

9. In the case of Shahed Ali and others v. The State reported in P L D 1962 Dacca 576, a Division Bench following the decision of Bombay High Court held as under:-- "We would also like to point out that whenever there is a case and a counter-case in respect to the same occurrence, it is desirable that they should be tried simultaneously by the same learned Judge; yet the records of each case should be kept distinct and separate. The evidence or record of one case cannot be used in connection with the other case. Each case must be decided on its own evidence and record. The advantage of a simultaneous trial is that it gives the trying Judge a whole picture which will help him to appreciate properly the evidence in each case; but it does not enable him to use the records of one case for the purpose of disposing of the other case."

10. This decision was followed in the case of Nezamat Ali v. The State and another reported in 1970 P Cr. L J 448, and it was remarked:-- "It is one of the cardinal principles that the two counter-cases arising out of the same occurrence should be tried and disposed of by the same Court simultaneously one after another for the sake of convenience. The two counter-cases having arisen out of the same occurrence, the ends of justice require that both the cases should be tried simultaneously one after another, weighing the evidence of each case independently without mixing and using the evidence of one in another."

11. The case of Muhammad Umar Khan v. Yousaf Arab and others reported in 1973 S C M R 134, which was relied upon by learned Additional Sessions Judge for taking contrary view in fact supports the above view.

12. The case reported as Emperor v. Karam Singh A I R 1930 Lah. 312, Emperor v. Nathu and others A I 8-1932 Lah. 168, Paladugu Lakshminarayana and others v. Tadiboyina Suryanarayana A I R 1932 Mad. 502 and Muhammad Sadiq v. The State and another reported in P L D 1971 SC 713 appear to lend some colour to the contrary view canvassed by learned Additional Sessions Judge. In the last cited authority the Supreme Court, while accepting the soundness of the procedure for the trial of counter-cases by the same Court side by side, stated that there may be a departure from this procedure in the facts of a particular case in order to avoid delay and possible miscarriage of justice. I cannot do better than quoting the weighty observations of their Lordships in extenso:-- "While it is the general practice to try the counter-cases side by side by the same Court till their conclusion and to pronounce judgment in each case simultaneously, it cannot be said that this is an absolute rule to be adhered to strictly in every case. The special facts and circumstances of a particular case may warrant a different procedure for the ends of justice. In the present case, special circumstances are there for which the judgment in the challan case whose trial has already come to an end should not be postponed till the completion of the hearing of the complaint case. The accused persons in the challan case fully participated in the trial of that case and defended themselves. At no stage, the accused persons in the challan case moved the Sessions Court to postpone its hearing because of the counter-case i.e. the complaint case pending in the Court of the Magistrate. It was only after the conclusion of the trial of the challan case and the fixation of a date for the delivery of judgment that the application under section 561-A was made in order to prevent the delivery of the judgment in that case."

13. The trend of authorities indubitably leads to the following conclusions as settled propositions of law:-- (i) The simultaneous trial of the cases before two different Courts over one and the same occurrence is undesirable and they should be tried by the same Court one after the other. (ii) Evidence in one case should not be considered in the counter-case and the use of prosecution evidence in one case as defence evidence in cross case is illegal. (iii) No hard and fast rule can be laid down as to which of the two cross-cases should proceed first, which will depend upon the circumstances of each case. (iv) Two counter-cases cannot be disposed of by a single judgment and it is necessary to record separate judgments on the basis of evidence available on record in each of such cases. (v) Separate trials of two cross-cases by different Courts is not bad, but it should only be an exception depending upon the facts of the case in the light of the rule laid down by the Supreme Court in the case of Muhammad Sadiq v. The State and another reported in P L D 1971 SC 713.

14. A large number of persons are generally involved in cases of this nature. The Courts should, therefore, be more careful to ascertain which of the two versions is correct, which could only be determined when both the cases are tried by one and the same Court. Section 347, Cr.P.C. empowers a Magistrate to send the counter-cases pending on his file to the Court of Session for trial alongwith the main case to meet with such an exigency. Likewise the provisions of section 528, Cr.P.C. could be pressed into service to transfer such a case from the Court of a Magistrate to the Court of Session. In recording evidence in cross-cases, care should be taken to bring on record the medical certificates and post-mortem reports of both the cases in each of the two cases. Likewise it is necessary to record the evidence of Investigating Officer in respect of the investigation carried', out by him in both the cases, more particularly the memo. of inspection of Wardat which in most of such cases is common. This view of mine gets support', from the case of In re: Boya Gajji Pedda Venkatanna alias Bodenna and others reported in A I R 1954 Mad. 15, wherein it was observed:-- "In a complaint and counter-complaint such as this obviously arising out of the same transaction when the prosecution proceeds on the basis of the complaint, we think it is the duty of the prosecution to exhibit the counter-complaint through the Police Officer who recorded it and also to prove medical certificates of persons wounded on the opposite side also and place before the Court a definite case which they ask it to accept. We must deprecate the prosecution in such cases accepting in toto one complaint and examining only witnesses who support it and give .no explanation at all for injuries caused to the other side. The truth in these cases is invariably not in strict conformity with either complaint and it is quite necessary that all the facts are placed before the Court to enable it to arrive at the truth and a just decision."

15. Although I am inclined to think that the appellant should succeed on the preliminary point of law considered above for getting a retrial, I prefer to rest my decision on the merits of the case.

16. Out of nine witnesses who claimed to have witnessed the incident, four, namely, Malik Aman (P.W.1), Sanaullah (P.W.5), Ali Muhammad (P.W.6), and Raees Ahmed (P.W.7) are injured persons. Their presence at the place of incident cannot be doubted or suspected. There are, however, certain facts and circumstances which are not in dispute, which might be summarized as under:-- (i) There was quarrel between Muhammad Shafique (P.W.10) and some boys of Gujrat Colony prior to this incident. (ii) The present incident took place near Five Star Music Centre, situated in Gujrat Colony, Karachi, where the appellant and co-accused resided. (iii) Muhammad Rashid (P.W.9), Muhammad Shafique (P.W.10), Malik Aman (P.W.1). Sanaullah (P.W.5), Ali Muhammad (P.W.6), Raees Ahmad (P.W.7), and deceased Abdul Rashid had gone to the place of occurrence situated at a distance of about 1/2 mile from their Mohalla. (iv) There is counter-version and the appellant was also injured in the scuffle. (v) Deceased Abdul Rashid had sustained only one injury by means of sharp-cutting weapon, which unfortunately proved fatal. (vi) The mobile police had reached immediately after the incident but still the F.I.R. was delayed by four hours.

17. The perusal of the record makes it clear that there were two incidents. In the earlier incident Muhammad Shafique (P.W.10), brother of Muhammad Rashid (P.W.9) was given a beating by some boys of Gujrat Colony. The above seven persons including deceased Abdul Rashid had gone to Gujrat Colony in Suzuki pick-up to teach a lesson to the persons responsible for beating Muhammad Shafique, when the second incident took place. It is the case of the C prosecution that this party was going to Clifton beach for picnic when on the way this incident took place. Sanaullah (P.W.5) who is an injured person in this case has, however, contradicted Malik Aman (P.W.1) on this material point by stating that they were going to Boulton Market to meet their friend Fakir Muhammad. This is a significant discrepancy and leads to a conclusion that complainant Malik Aman (P.W.1) and his party men had in fact gone to the place of incident to retaliate the earlier incident in which Muhammad Shafique (P.W.10) was involved. The evidence of Ali Muhammad (P.W.6) who is also an injured person appears to be nearer to truth when he testified:-- "The incident of this case had taken place on 19-5-1988 at about 1-20 p.m. The incident of this case had taken place in front of 5 Star Music Centre. On that day we were going just for' enjoyment from our houses to Clifton in Suzuki. When we reached near 5 Star Music Centre Muhammad Shafiq brother of Muhammad Rashid called him that he had been beaten by boys of Gujrat Colony. When Muhammad Rashid was inquiring from the boys of that area as to who had beaten his brother, the accused persons were also present there. On inquiry of Muhammad Rashid all the accused present there thought that we all came there to attack on them therefore, presuming it to be so the accused persons attacked on us:'

18. No doubt the appellant had not raised the plea of self-defence in specific terms, but as held in the case of Muhammad Ishaq and another v. The State reported in P L D 1964 Pesh. 143, the accused is entitled to benefit of section 96, P.P.C., if such plea gets support from circumstances proved by the prosecution. The burden of establishing right of self-defence in such circumstances cannot be I as heavy as burden resting on the prosecution. If any authority is needed the cases reported as Muhammad Idrees v. The State P L D 1965 Lah. 553 and Khuda Bakhsh v. the State P L D 1980 Pesh. 186, may be cited with advantage.

19. As observed in Chacko Mathai v. State of Kerala, reported in A I R 1964 Ker. 222, the right of self-defence is a high-prized gift granted to the citizens to protect themselves by effective self-resistance against unlawful aggression. No man is expected to fly away when he is attacked. He can fight back and when he apprehends death or grievous hurt he can see that his adversary is vanquished without modulating his defence step by step. Faced with a dangerous adversary no man can possibly act with a detached reflection and under such circumstances if he travels a little beyond the limit, the law protects him and hence Courts should not place more restrictions on him than the law demands.

20. In Ghulam Qadir and others v. The State reported in P L D 1959 Lah. 753, it was held that person under strong feeling of self-preservation pursuing his defence a little further than absolutely necessary was entitled to the indulgence of the Court. The case of Mashal Khan v. The State reported in P L D 1988 SC 25, again lays down the principle that when in a state of panic right of self-defence is being exercised, action on the part of the person cannot be measured in golden scales.

21. The case of Shamus Gul etc. v. The State reported P L D 1983 Pesh. 48, further lays down that for the exercise of right of private defence it is not necessary that the person should wait unless he is himself attacked. At page 329 it was observed:-- "It is well-settled that a man acting under apprehension of death or grievous hurt cannot be expected to judge too nicely the situation and modulate his defence as observed above step by step. When a right of private defence is set up the question to be determined is not whether there was an actually continuing danger, but whether there was reasonable apprehension of danger. It is not necessary that the person exercising the right could wait until he himself is attacked. If death is caused in the exercise of the right of private defence in such circumstances, it is no offence not even culpable homicide not amounting to murder and no question of the application of exception 2 to section 300 of the Pakistan Penal Code arises."

22. One of the relevant pronouncements on this point is to be found in the case of Muhammad Abdullah v. Muhammad Safdar Khan and another reported in 1973 S C M R 26, which is on all fours with the present case. .23. The version put forward by the defence during the course of arguments appears to be plausible. Deceased Abdul Rashid and his associates had invited the trouble themselves. They had gone to the place of incident with a view to teach a lesson to the persons who were responsible for beating Muhammad Shafique (P.W.10), a brother of Muhammad Rashid (P.W.9), which led to a scuffle resulting into the death of Abdul Rashid. In the given circumstances when the case of the prosecution was disbelieved by learned Additional Sessions Judge in respect of three accused the appellant was also entitled to benefit of doubt. Accordingly benefit of doubt is extended to him and he is acquitted. The impugned judgment is set aside and the appeal is allowed. The appellant who is in custody be released forthwith, if not required in any other case. H.B.T./M-1458/K Appeal allowed.