P L D 1969 Peshawar 195 (PLP)

SHAH ZAMAN BABAR, J.

‑ Bakht Jamal (28), his brother Quresh (23), sons of Izzat Shah and Dawar (23), son of Saifoor, residents of village Spin Kani, Tehsil Swabi, District Mardan, were tried under section 302/34, P. P. C. for the murder of Lai Bahadur deceased, by the Additional Sessions Judge, Mardan. The trial Judge, by his judgment, dated 16th September 1967, convicted the three appellants under section 302, P. P. C. and sentenced each of them to transportation for life. The three convicted persons have appealed to this Court. Mahbub Shah petitioner has lodged a revision petition for the enhancement of the sentence of the three appellants. This revision petition was admitted by a Division Bench of this Court on 21st November 1967 and notice to the respondents and State was ordered. This judgment will dispose of the appeal as well as the revision petition.

2. The three appellants are residents of village Spin Kani, while Lai Bahadur deceased, his brother Bahadur Khan (P. W. 9) and Tila Muhammad (P. W. 10) are residents of village Sheikh Jana. The parties had no bad blod previous to the occurrence. They are cultivators of neighbouring lands. Bakht Jamal and Quresh appellants are real brothers, while Dawar is their friend. All the three appellants are house and land‑tenants of Dheranai. On 1st October 1966, at about 9 a.m. Qaisar Khan (minor) brother of Dawar appellant and Sher Aman (minor) grandson of Dheranai (landlord of the appellants) were grazing their cattle in the common banjar land adjacent to the jowar field of the deceased. The cattle trespassed into this field of the deceased and damaged it partially. Lai Bahadur deceased came and drove out the cattle and at the same time slapped Qaisar and Sher Aman. The complaint of the children attracted the three appellants to the common grazing land. Dawar and Quresh appellants caught hold of Lai Bahadur deceased and Bakht Jamal inflicted on the deceased several injuries with his dagger. Bahadur Khan (P. W. 9) and Tila Muhammad (P. W. 10) saw the occurrence. Lai Bahadur, in injured condition, was brought to Police Station Kalu Khan, on the same day, where he lodged the F. I. R.‑cum‑dying declaration (Exh. P. A.) at 10‑40 a.m. This report was scribed by A. S. I. Nasir‑ud‑Din (P. W. 11). The police station is at a distance of three miles from the lands of village Sheikh Jana. This report was recorded in the form of a dying declaration in the presence of Umbaras chowkidar (P. W. 4) and Akbar Shah. The English translation of the F. I. R.‑cum‑dying .declaration is as under :‑ "Today, I had taken tea to my brother Bahadur Khan to our jowar field in the area of Sheikh Jana where my brother was weeding. It was about 9 o'clock. The grazing cattle of a child whose name I do not know entered my jowar crop. I drove out the cattle from my jowar and rebuked him. He shouted and called Bakht Jamal son of Izzat Shah, resident of Spin Kani. He along with Dawar son of Saifoor Khan and Quresh son of Izzat Shah came there. Dawar and Quresh caught hold of me and Bakht Jamal gave me several blows with his dagger. My brother Bahadur Khan came to the spot on my alarm and saw the occurrence. On his arrival, the accused left me and went away. I have no other enmity with the accused. I charge Bakht Jamal, Dawar Khan and Quresh, residents of village Spin Katd." On the same day at 11‑15 a.m., Dr. Muhammad Azam Khan, Medical Officer Incharge Civil Hospital, Kalu Khan, recorded another dying declaration of Lai Bahadur deceased which is also translated as under "I was stabbed by Bakht Jamal in my field at about 9 o'clock in the morning in the presence of Tila Muhammad son of Barkat Shah. The fight took place on account of cattle going into the jowar crop. Quresh and Dawar Khan of Spin Kani having caught hold of me, Bakht Jamal gave blows with churri." This dying declaration (Exh. P. A/1) is witnessed by Nausherwan (P. W. 7) and Faiz Muhammad. After recording the first dying declaration of Lai Bahadur deceased, the A. S. I. prepared his injury sheet and sent him to the hospital for medical examina tion. While the A. S. I. was recording this report, Bakht Jamal appellant was brought to the police station in an injured condition and his report (copy Exh. P. A./2) was also scribed. The A. S. I. prepared the injury sheet of Bakht Jamal also and sent him to the hospital for examination and treatment. The A. S. I. then came to the scene of occurrence and prepared the site plan (Exh. P. E.). In this site plan, point No. 1 is shown as the place of occurrence from where blood was picked up. This place is banjar common land of village Sheikh Jana. To the north of this, the jowar field of the deceased has been shown by point No. 5 and the damaged portion of the crop is shown by point No.

8. Point No. 7 on the site plan indicates the arhat of Bakht Jamal appellant. Bakht Jamal was arrested at the police station, after his report was recorded. The other two appellants were arrested on 2nd October 1966.

3. Dr. Azam Khan (P. W. 1) examined Lai Bahadur" (deceased) on 1st October 1966 at 11‑30 a.m. and found then: following injuries on his person (1) A stab wound on upper abdomen, 2" x 1" x cavity deep. Peritoneum injured. (2) A stab wound on the left lower chest, 2" x 1" x chest cavity. Pleura and lungs injured. (3) A stab wound on the left side of neck, 2" x 1" x deep~‑tissue. External carotid artery injured. (4) Two stab wounds on left side neck, lower half, each 1" x " x tissue deep. (5) An incised wound on right face near the right angle of mouth, 1" x ". (6) An incised wound on the left face near left angle of the mouth, " x ". (7) A stab wound over postro‑lateral surface of right neck,. 1 x x deep tissue. (8) An incised wound on the left side of head, 4" x 2" x. bone deep. (9) An abrasion on left palm, " x ". (10) An abrasion on left finger, " x 1/6''. (11) An incised wound on left palm, 1" x ''. (12) An incised wound on right index finger, " x ". (13) A stab wound on left chest lower half, 1" x " x long deep. (14) Three stab wounds on the back of left chest, each. 1" x " x lung deep. Pleura and lungs also injured. (15) Two stab wounds on the back of right chest, each. 1" x '' x lung deep. Pleura and lungs also injured. (16) A stab wound on left shoulder, 1'' x '' x 1". (17) A stab wound on the back of right side, 1" x " x 1". (18) A stab wound in right axilla, 1" x " x 1" x lung deep. The injuries were dangerous to life and were caused by a sharp‑ edged and pointed weapon within 6 hours duration. Corres ponding cuts were present in the banyan and shirt. The Doctor also recorded the dying declaration (Exh. P. A./1) of the deceased. The Doctor deposed that at the time when he recorded the dying declaration of Lai Bahadur (deceased), he was in the enjoyment of full senses and was talking coherently. The dying. declaration was recorded at 11‑15 a.m. while the deceased died at 3‑30 p.m. on the same day. The post‑mortem examination was performed on the same day at 4‑30 p.m. and on external, examination the Doctor confirmed the above‑mentioned injuries. On internal examination, he found both external carotid arteries, muscles of the neck on both sides, both lungs and pleura muscles of upper abdomen, peritoneum and spleen all injured. Death, in the opinion of the Doctor, was due to shock and haemorrhage. Time between injuries and death was 6‑7 hours while that between death and post‑mortem examination was one hour. Injuries Nos. 1, 2, 3, both injuries at Serial Nos. 4, 13, three injuries mentioned at Serial No. 14, both injuries at Serial No. 15 and the injury at Serial No. 18 were dangerous to life and might individually cause the death.

4. On the same day at 2 p.m. the same Doctor examined Bakht Jamal (appellant) and found the following injuries on his person :‑ (1) An incised wound on left face extending from left eye to the chin, 3 " x " x ". (2) An incised wound on left palm, 2" " x ". (3) An incised wound on right face, '' x 1/6". (4) An abrasion on front of right chest, " x 1/6". (5) A linear abrasion on left leg, 6" in length. (6) An incised wound on right side of head, near middle line, 3 '' x " bone deep. The injuries, in the opinion of the Doctor, were caused by sharp edged weapon within 6 hours duration. All the injuries were simple in nature. As a result of injury No. 1 on the person of' Bakht Jamal, a scar of the length of the injury was caused on his face. A scar of size of injury No. 3 was also left on the face of Bakht Jamal. In the opinion of the Doctor, the injuries were simple because they were not dangerous to life.

5. The three appellants pleaded not guilty to the charges. At the trial, Bakht Jamal appellant stated that he and his brother Quresh appellant cultivate some land of Dheranai, and that Dawar appellant is neither their joint cultivator nor a friend. He added that the deceased wanted to drive away the cattle of the two boys (Qaisar and Sher Aman) from the barren shamilat land which is used as grazing field to which he intervened not to do so. He explained that Bahadur Khan and Tila Muhammad P. Ws. are deposing against him, because Bahadur Khan is the brother of the deceased. He and the deceased had attacked him for which he had charged them. Tila Muhammad was not present at the spot and his name is not mentioned in the F. I. R.‑cum‑dying declaration and that he is a false witness and deposing against him, because he is a co‑villager of the complainant‑party. He explained the injuries on his person in the following words "I was working in my field near the place of occurrence. Two young boys Qaisar and Sher Aman were grazing their cattle in the shamilat banjar land used as pasture. I heard their cries that they were being beaten and their cattle were being driven away from the pasture land by the deceased and Bahadur Khan P. W. I intervened and asked them not to do so. They felt it and both of them started towards me. The deceased was armed with the axe Exh. P. 3 and Bahadur P. W. with a knife. The deceased gave me a blow with the axe on my head, while 1 was trying to ward off a further blow of the deceased I received some injuries on my hand as well. I caught hold of the handle of the axe. In the meanwhile Bahadur Khan started giving me blows with the knife and so I was grievously injured. I apprehended that they were going to murder me. I grappled with the deceased and took out a small knife and used the same for my self‑defence." He admitted to have lodged the cross‑report (copy Exh. P. A./2). Dawar and Quresh appellants denied the charges. All the three appellants did not wish to produce any evidence in defence.

6. Bahadur Khan (P. W. 9) and Tila Muhammad (P. W. 10) claim to be eye‑witnesses. Both the witnesses depose that on their arrival at the spot they saw Bakht Jamal, Quresh and Dawar accused armed with dagger, spade and stick, respectively. Quresh and Dawar accused caught hold of Lal Bahadur (deceased), while Bakht Jamal accused delivered blows with the dagger to Lal Bahadur and wounded him. Umbaras Khan chowkidar (P. W. 4) is a witness of the F. I. R.‑cum‑dying declaration (Exh. P. A.). Nausherwan (P. W. 7) is a witness to the dying declaration (Exh. P. A./1). The learned counsel for the appellants contended that the two appellants Quresh and Dawar have been falsely roped in, that the deceased in the two dying declarations and the prosecution witnesses Bahadur Khan ane Tila Muharnmad are guilty of suppressions of material evidence, and thus render the dying declarations and their evidence unbelievable, and that Bakht Jamal appellant is entitled to the right of private defence of person.

8. The contentions of the learned counsel appear to be well‑founded. In the two dying declarations (Exhs. P. A. and P. A./1), no weapon of offence is attributed to Dawar and Quresh appellants. They are charged simply for catching hold of the deceased Lal Bahadur. P. Ws. Oalialur Khan and Tila Muhammad unanimously stated that Quresh was armed with a spade while Dawar was armed with a stick, when they caught hold of the deceased. The allegations of the two witnesses that Quresh was armed with a spade and Dawar was armed with a stick appear to be incredible. They would not have spared the use of their weapons against the deceased if they were so armed and had the common intention to murder the deceased. More over, the fight between he deceased and Bakht Jamal appears to be single‑handed in which both received injuries. In such a situation, there appears to be no necessity for the two appellants to catch hold of the deceased. It is a notorious old tendency of the people of this part of the country to entangle innocent persons along with the guilty. This tendency has found a status of a judicial pronouncement. In Gulzaman and others v. Emperor (A I R 1935 Pesh. 50) it has been observed this :‑ "The maxim falsus in uno falsus in omnibus is one which has never been accepted in respect of witnesses of N.‑W.F. Province, where there is a notorious tendency to accuse the inno cent along with the guilty. Hence in view of the, fact that in many cases witnesses will knowingly make a false charge against an innocent person at tile same time that they make true charges against guilty persons, the fact that a witness makes a false charge against an innocent person does not necessarily falsify the whole of his evidence. It makes no difference whatever whether the factum of the falseness of the one charge is actually proved or is merely suspected." Thus, we are of the view that Quresh and Dawar appellants appear to have not participated in the commission of the crime and have been charged falsely.

9. The peculiar features of the two dying declarations and the evidence of P. Ws. Bahadur Khan and Tila Muhammad deserve adverse comments. It is noteworthy that in the dying declaration (Exh. P. A.), the name of P. W. Tila Muhammad is not mentioned, while in the dying declaration (Exh. P. A./11 the name of Bahadur Khan is not mentioned. In both these dying declarations, the injuries sustained by Bakht Jamal appellant nave been ignored in both the dying declarations, the deceased has charged Quresh and Dawar appellants for catching hold of him and Bakht Jamal appellant for inflicting several dagger/ churri blows. P. Ws. Bahadur Khan and Tila Muhammad depose that at the time of the fight Quresh was armed with a spade, while Dawar with a stick. P. W. Bahadur Khan was charged as an accused in the cross‑case registered on the report of Bakht Jamal appellant. This witness was asked in cross -examination, "who injured Bakht Jamal accused". He answered, "Lal Bahadur deceased who was armed with a ramba, in the exercise of right of his person, he gave blows to Bakht Jamal accused with the said ramba". Tila Muhammad admits to have gone with Lal Bahadur to the police station for report and the contents of the report were read over to Lal Bahadur in his presence, and yet the name of Tila Muhammad finds no mention in the dying declaration (Exh. k. A.). We have already held that Quresh and Dawar appellants have been falsely implicated. P. W. Bahadur Khan is a brother of the deceased, while Tila Muhammad is alleged to be a friend and co‑villager of the two brothers. The deceased in his second dying declaration has stated that Bakht Jamal stabbed him in his (deceased's) field. P. W. Bahadur Khan stated in the cross‑examination, "The fight took place in a fallow land (banjar land) a joint property of the village Sheikh Jana." Thus, the material suppressions in the two dying declarations and false complicity of Quresh and Dawar appellants by the deceased in his two dying declarations and the two witnesses in their evidence render the dying declarations and the prosecution evidence unsafe to be accepted in rule of prudence and safe administration of justice. In Abdul Raaik v. The State (P L D 1965 S C 151), at page 155, it was observed "Yet, this being the only evidence available, it is the duty of the Courts to decide whether or not they can believe it. To accept it without considering the surrounding circumstances would be totally inconsistent with the safe dispensation of justice. To accept it on considerations of expressions of opinion regarding similar declarations in precedent cases, even if those opinions are accompanied by words indicating reliance on some principle of law, is no less dangerous. Only after the most careful scrutiny, applied to all the physical circumstances as they appear from the evidence, is it possible to decide whether it can be said, with the degree of certainty which is made obligatory for reaching a conclusion of guilt, that the account given by the deceased of the manner in which he met his death is worthy of belief." In Abdur Raziq v. The State (P L D 1964 Pesh. 67) at page 80, Faizullah Khan, J. has observed as under :‑ "It would be remembered that in both the dying declarations the deceased very distinctly charged Sharifullah for having exhorted his three sons to fire, but notwithstanding this, the learned trial Judge acquitted Sharifullah, holding that his mere presence did not bring his case within the orbit of secction

34. I am constrained to remark that learned trial Judge should have failed to notice in both the dying declarations a categorical accusation against Sharifullah for having exhorted his sons to open fire at the deceased. Be that as it is, the fact remains that the learned trial Judge acquitted Sharifullah accused and as the Government has not preferred any appeal against his acquittal, the dying declarations in regard to the complicity of Sharifullah are proved to be false. This fact alone would be sufficient to reject the dying declarations in regard to the appellant, in that it will be contrary to the well‑established rule of prudence and inconsistent with safe administration of justice to reject the dying declarations in regard to some accused and accept it against others."

10. The deceased suffered several incised and stab injuries at the hands of Bakht Jamal appellant. Bakht Jamal had sustained one incised wound on the left face extending from left eye to the chin, one incised wound on the right face and one incised wound on the right side of head near middle line besides an incised wound on the left palm. It has been admitted by P. W. Bahadur Khan that Lal Bahadur deceased was armed with a ramba with which he injured Bakht Jamal. The fight between the deceased and Bakht Jamal appellant took place in the common pasture of the village as indicated by the site plan and as admitted by P. W. Bahadur Khan. From the evidence on the record it cannot be gleaned out who started the fight first. Having not accepted the prosecution version as to how the fight began, we are left with the plea of Bakht Jamal which is to be C accepted in its entirety. Thus, it will be safe to hold that Bakht Jamal appellant inflicted injuries on the deceased in the exercise of the right of defence of his person and is therefore entitled to acquittal.

11. As a result of the above discussion, we accept the appeal, set aside the conviction and sentence of the appellants and acquit them, and order that they should be set at liberty forthwith if they are not required in any other case.

12. The revision petition automatically fails and is hereby dismissed. A.E. Appeal accepted.