1990 PLP 643 (MLD)

8. The case was investigated by Ghulam Haider ASI (PW.8). He arrested Ahmad Khan, Muhammad Asghar, Muhammad Zaman, Allah Ditta, Zafar Iqbal and Muhammad Arif accused persons on 22‑2‑1985 and Mehdi Khan and Khan Muhammad accused on 3‑3‑1985. Ahmad Khan led to the recovery of blood stained hatchet P.3 which was made into a parcel vide memo Ex.P.E. He produced gun of Ghulam Rasul, deceased, P.14 and it was taken into. possession vide memo Ex.P.U. Muhammad Asghar, Muhammad Zaman, Khan Muhammad, Zafar Iqbal and Muhammad Arif also produced their respective weapons of offence on the same day and they were taken into possession vide memos. Exs. P.F., P.C., P.D. and P.G. respectively. Mehdi Khan accused produced his hatchet P.6 and it was taken into possession vide memo. Ex.P.H.

9. At the trial, in all fourteen witnesses were called in support of the prosecution case. Only two of them Mst. Rashida (PW.4) and Muhammad Aslam (PW.5) gave the eye‑witness testimony. The evidence of the witnesses. other than Muhammad Boota (PW.3), was of a formal character. The latter was a brother of Farzand Ali, deceased, and was a witness to the recovery of weapons from the appellants and their co‑accused.

10. In their statements under section 342 Cr.P.C., the co‑accused denied having anything to do with the persons. The appellants did not Muhammad Aslam P.W. was receiving education was incident.

11. It is noteworthy that at 6‑30 p.m. on 16‑2‑1985, Ahmad Khan, appellant, was examined by Dr. Shahid Raza Butt (PW.9), Medical Officer, A.B. Shaheed Hospital, Gujrat, and was found to have the following injuries on his person:‑‑ (i) Incised wound 10 cm in length, 1/2 cm in width over top of skull, on palpation by finger through wound, chip of bone was palpable and visible. (ii) A slight swelling with the area 3 c.m. x 3 c.m. over back of right fore‑arm. When Ahmad Khan, appellant, reached the hospital, he was profusely bleeding from his head injury; his B.P. was 90/60. His pulse was 120 p.m. and he was very weak and feeble. He was conscious but later he "fainted in emergency room". Injury No.1, which was caused by a sharp‑edged weapon, was X‑rayed but was declared simple. Ex.P.B. is the medico‑legal report of his injuries. In cross -examination, it was brought out that the injuries of Ahmad Khan were fresh and by "fresh" the doctor meant "within one hour".

12. It is also significant to note that it was not the prosecution case that Ahmad Khan, appellant, had suffered the injuries during the course of the incident and what is more surprising is that these injuries were not put to Ahmad Khan, appellant‑, in his statement under section 342 Cr.P.C.

13. The learned trial Court had "doubts that Ghulam Rasul was bound for Kharian to appear as an accused in the criminal case". In recording that finding, the learned trial Judge noticed that village Sohal was 18 miles from Lala Musa; that there was pacca path going to village Sohal and Kharian and there was a katcha path leading from Sohal to Acch and Kharian; that the deceased persons had not adopted either of these paths and they were obviously heading for village Buttar. In this connection, he also noticed and in my view rightly that the Investigating Officer Ghulam Haider AST (PW.8) had searched the dead bodies of Ghulam Rasul and Farzand Ali and had found no money on them; that Ghulam Haider AST admitted that the path adopted by the deceased persons did not lead to Kharian and that if Ghulam Rasul, deceased, was going to Kharian and was carrying his licensed gun, then the licence of the gun should also have been found with him. The licence was not found on the dead body; it was later produced before the Investigating Officer by Mst. Rashida Begum (P.W.4) on 17‑2‑1985. The incised wound on the person of Ahmad Khan, appellant, led the learned trial Judge to hold that he had received the "head injury during the present fight. May be Farzand Ali deceased was carrying a hatchet which he wielded on the head of Ahmad Khan accused".

14. If I may say so with respect, this was a mere conjecture, for, as has been noticed above, it was the case neither of the prosecution nor of the defence that Ahmad Khan, appellant, had received the injuries during the course of the incident resulting in the death of Ghulam Rasul and Farzand Ali.

15. The conduct of Ghulam Rasul, deceased, so observed the learned trial Judge, was not natural. He was armed with a gun; "he was in front of 7 accused persons, who were less armed, still Ghulam Rasul fired in the air. He ought to have fired at the accused persons. I am not prepared to accept that Ghulam Rasul avoided to fire at the accused. This fact gives strength to my conclusion that both the combatant parties were having resort to open a sudden fight at the spur of moment". In the view of the learned trial Judge, "the deceased group were going to village Buttar and they had all of a sudden show down with the accused group. At this juncture, I reject the prosecution story that Manzoor Begum accused came from her house and went to the house of Ahmad Khan accused and prevailed upon the accused persons to kill the two deceased. Manzoor Begum accused was not injured in the previous occurrence". As to why Mst. Manzoor Begum was involved, the learned trial Judge observed that Mst. Rashida Begum P.W. had two sisters Sughran and Kaniz Sughran was married with Khan Muhammad accused and Kaniz was wedded with Akbar brother of Khan Muhammad accused. Both Sughran and Kaniz were divorced by their husbands and therefore, Mst. Rashida Begum P.W. "must be aggrieved with Manzoor Begum who had entered the nikah of said Akbar". As to Haji Allah Ditta accused, he was 80 years of age and as regards him also, the prosecution story was not, according to the learned trial Judge, "worthy of credence".

16. Dealing with the testimony of Mst. Rashida Begum and Muhammad Aslam P.Ws. the learned trial Judge noticed that Muhammad Aslam was a student of 5th Class; he appeared to be 14 years of age, though he gave his age as 18 years. The learned trial Judge considered "the version of Muhammad Aslam as a parrot‑like story". As to Mst. Rashida Begum, he was prepared to place reliance upon her testimony; and added that she was a village lady" but does not observe parda and who goes out to fields all the time can be expected to be present at the place of occurrence at the time of occurrence. The venue of occurrence might be about one mile away from the village abadi of Sohal"; in the view of the learned trial Judge, "both the combatant groups had sudden encounter in the mufassil area and presence of Rashida Begum there at the spot can be conjectured".

17. Having so held, the learned trial Judge, by a process of reasoning, held that the appellants were responsible for the entire occurrence. At the same time, he was of the view that "the said accused were exceeding the right of private defence. Ghulam Rasul deceased was carrying a gun and he had opened fire. Ahmad Khan accused had received a sharp‑edged weapon injury on his head". Therefore, though the appellants had a right of private defence, yet they had exceeded that right. The learned trial Judge went on to say, and if I may say so, here, he involved himself in an apparent inconsistency" that there was open and sudden fight between the two groups and the deceased group was more dangerously armed. Ghulam Rasul, deceased, had a gun with him and he used the gun. According to Rashida Begum, he had two spare cartridges and according to Muhammad Aslam, he had a bandolier of cartridges. Thus, the deceased group were better placed than the accused group. Inasmuch as, prosecution failed to explain the incised wound on the head of Ahmad Khan, I conclude that there was open and sudden fight and the accused persons exceeded the powers given by law to exercise the right of private defence".

18. I have noticed the findings of the learned trial Judge and his reasons in support thereof in some detail to indicate that in the mind of the learned trial Judge, there were serious doubts as to some important features of the prosecution case.

19. The place of occurrence was situated within the limits of village Buttar; and it was, according to Abdur Rehman Patwari (PW.6), who had prepared the site‑plan, 5 acres from the abadi of village Buttar and 2 furlongs from the abadi of Sohal. Nobody had gone to the Police Station or to the Police Post of Kakrali, which was 9 miles from the place of occurrence, to report the incident. Ghulam Haider ASI (PW.8) had received information of the incident when according to him, he was present in village Acch, which was two miles from that place. He did not disclose the name of the informant; nor did he record his statement containing the details of the incident. Fazal Muhammad F.C. (PW.13) said that they had received the information about the incident after the evening of 16‑2‑1985 at the Police Post and the person who had given information was the Chowkidar of village Buttar. The information, according to Fazal Muhammad F.C. was that two dead bodies were lying in the area of village Buttar in the crop. It was on this information that they started for the place of occurrence at 7‑30 p.m. on the day of occurrence. It was rainy season and they had to travel via Bhimber; they reached a place known as Kadala and covered a distance of two miles on foot and reached the place of occurrence at about 9 or 10 p.m. Thus, the prosecution case was beset with doubts from the very inception.

20. The principal question was whether Mst. Rashida Begum, widow of Ghulam Rasul, deceased, and Muhammad Aslam, a son of Farzand Ali, deceased, had seen the incident taking place and their evidence inspired confidence. Muhammad Aslam P.W. was a student of 5th Class and the learned trial Judge, who had the advantage of seeing and hearing him in the witness‑box, observed that he appeared to be 14 and that he gave evidence parrot‑like. There appears no reason to disagree with the learned trial Judge. The prosecution did not lead evidence to support the claim of Mst. Rashida Begum and Muhammad B Aslam P.Ws. that 17‑2‑1985 was the date of hearing in the case under section 307 etc. of the PPC at Kharian. The incident, in which Mst. Nazir Begum, daughter -in‑law of Haji Allah Ditta accused was injured, had taken place about a year before this incident and during this interval, no other fight or anything unpleasant had occurred between the parties. It was said that Mst. Rashida Begum and Muhammad Aslam P.Ws. were going to see off the deceased persons, but if the deceased persons had to catch a bus, then they had to cover the distance at least up to village Acch on foot, and if the deceased persons apprehended an attack, Mst. Rashida Begum and Muhammad Aslam P.Ws. could be of least help to them. Otherwise too, one has to strain one's sense of credulity to a breaking point to believe the prosecution story. Mst. Manzoor Begum accused, it was said, had run from her house to the house of Ahmad Khan, appellant, and had told him, within the hearing of the P.Ws. and the deceased persons to kill them. The deceased persons had then seen as many as eight persons variously armed coming to attack them. As observed above, this they must have done after travelling a considerable distance. That should have enabled the deceased persons to run for their lives, if they were not minded to fight it out. Yet, seeing so many armed men, coming with the declared intention to kill, all that the deceased man Ghulam Rasul did with his gun was to fire a shot in the air. It was not that his gun C would not operate or that he was short of cartridges. He had a number of cartridges and could, therefore, ward off the appellants and keep them at a safe distance. Such a story must, therefore, make demand upon one's sense of credulity; it did, I think, make such a demand on the sense of credulity of the learned trial Judge and that accounts for his observation that the conduct of Ghulam Rasul, deceased, was not natural. In my view, this natural improbability of the prosecution story should have logically induced him to hold that Mst. Rashida Begum and Muhammad Aslam P.Ws. had not witnessed the occurrence. The deceased persons were not found carrying any money on their persons. The licence of the gun of Ghulam Rasul, deceased, was also not with him. All these p facts, in my view, combined to render the prosecution case extremely doubtful. It seems to follow, therefore that the deceased persons were surprised by their assailants and were taken completely unawares.

21. Besides the fact that the prosecution story was open to grave doubt, there was the fact that both Mst. Rashida Begum and Muhammad Aslam P.Ws. were interested witnesses. As has been seen above, Mst. Rashida Begum's sister had been divorced by Akbar, a son of Haji Allah Ditta accused and a brother of ` Ahmad Khan, appellant, and her other sister Mst. Sughran had been divorced by Khan Muhammad accused. Both the deceased persons were accused of the offence under section 307 of the PPC for causing injuries to Mst. Nazir Begum, daughter‑in‑law of Haji Allah Ditta accused. The only evidence in corroboration to their testimony was the evidence of the recovery of weapons from the appellants and their co‑accused. The recoveries were deposed to by Muhammad Boota, a real brother of Farzand Ali, deceased, and he too was an interested 1 witness in the accepted sense of that expression. It was, therefore, not safe to rely upon his testimony. Otherwise too, it appears hard to believe that the appellants would preserve their weapons of offence with blood on them safely in their houses till 22‑2‑1985.

21. For the reasons, I would accept the appeal, set aside the conviction and sentence and acquit the appellants. They shall be released forthwith unless required in any other case.

22. The revision petitions of the complainant are dismissed. N.H.Q./A‑835/L Appeal allowed.