1968 P Cr (PLP)

FARUQUI, J.-Appellants Atta Muhammad and Eid Muham mad, head-constables and Abdul Hadi and Jan Muhammad, mounted constables have been convicted by the Sessions Judge, Jacobabad, under sections 302 and 307 both read with section 34, P. P. C. and have all been sentenced to transportation for life under the first section and to 7 years' rigorous imprison ment under the second. In thus convicting the accused the learned Sessions Judge disagreed with the unanimous opinion of the three assessors with whose aid the trial was held.

2. The incident from which he trial arose took place on 10th June 1961 at 9 a.m. in deh Bakhtiarpur falling within the Police Station Thul, District Jaoobabad, in which two young men, namely Murid and Dostin, sons of Jani were killed and Hamzo, their uncle, received grievous hurt, all these having been inflicted by rifle shots. A party of 5 policemen consisting of the four appellants and another named Mehar had gone to deh Bakhdarpur, the village of the deceased to get them and 10 others to be produced before the Station House Officer, Thul in connection with a complaint which had been filed against them under section 107, Cr. P. C. in the Court of the Mukhtiarkar and First Class Magistrate, Thul which complaint had been forwarded by the said Magistrate to the said S. H. O: for necessary action. The complaint was filed by one Kamal son of Attal on 29-3-61 in the following circumstances: 3- Kamal's brother Hawal had been allegedly killed by Persons belonging to the tribe to which the present complainant Jani, father of Murid and Dostin, also belongs. These are Banglanis. It was stated in the complaint of Kamal that as a result of the murder of Hawal, his brother, three persons, namely, Bagho, Wasayo and Usman had been apprehended and the fourth accused person Ghulam Muhammad was absconding. It was then stated that the opposite-party had instituted proceed ings under section 107, Cr. P. C. against Kamal and two others though, in fact, it was the opposite-party who were threatening to kill Kamal and his near relations. It was stated that they belonged to a powerful tribe who were mischievous and as such Kamal and his relatives apprehended danger to their lives day and night. It was, therefore, prayed that the Court be pleasad to take immediate action against the 13 persons named in the complaint else they (Kamal and his relatives) would be killed. The thirteen persons against whom action was sought under section 107 included Murid, Dostin and their father Jani and Hamzo, their uncle. When this complaint was received by Mr. Ghous Bux, P. W. 12, S. H. O., Thul, he directed head constable Atta Muhammad, who was incharge of the Mirpur Police Outpost within whose jurisdiction village Bakhtiarpur fell, to produce these persons named in the complaint of Kamal. A reminder in this regard was sent by the S. H. O., Thul to Atta Muhammad on 5-6-61 and he was told that he should produce the persons named in the complaint rat once'.

4. It appears that Atta Muhammad had gone to the village Bakhtiarpur in connection with this complaint but he had not been able to produce them before the S. H. O. On 9.6-61, that is a day before the incident in question Atta Muhammad having received the reminder from his superior requested him to send some re-enforcement, as he was short of staff:, to enable him to get the accused (the opponents named in the application of Kamal). It: pursuance of this request the S. H. O. sent two mounted constables, namely, Jan Muhammad and Abdul Hadi to Mirpur Police Outpost on the; same evening. The following morn ing head constable Atta Muhammad accompanied with head cons table Eid Muhammad and constable Mehar and the two mounted constables who had been sent. by the S. H. O., Thul proceeded to village Bakhtiarpur and reached there at about 7 a.m. They first met Sono, P. W. 8, and he took them to the hause of Jani, Murid and Dostin. None of them were present there. He was asked by Atta Muhammad to go and produce these persons and others. Jam had gone to meet Sardar Noor Muhammad and Murid, Dostin and Hamzo were working in the field and to them Sono went and informed them about the arrival of the police party. When they came to the village and met the police party it is alleged that Atta Muhammad demanded money from them and upon being told that they had no money the head constable told them that if they did not pay they would detain their women-folk and insult them. It is the case of the prosecution that when Atta Muhammad accompanied with two other policemen had come on a previous occasion in the same connection it had been agreed that he should be paid Rs. 700, to hush up this matter and out of this Rs. 400 had been paid to him on that occasion and it was the balance of Rs. 300 which he was demanding on the day of the incident. It is alleged that when Atta Muhammad threatened to detain the women-folk of the complainant party if the money was not paid there was a wordy altercation between him and Murid upon which the police party opened fire, as a result of which Murid was first hit and he fell down and seeing this Dostin moved towards the police party and he was also fired at and he also fell down and then Hamzo was also fired at and he also fell down. The police party which consisted at this time of the four appellants then mounted their horses, fired in the air and went away. The fifth of the party, namely, constable Mehar was not there. According to the prosecution he had taken one maund of wheat from Mst. Haws, the mother of Murid and Dostin and had gone to fetch Beeri and something to eat and pay for it in kind. According to the defence he was sent by Atta Muhammad to the village of one Arif, P. W. 10, who was a member of the Union Council for that area to bring him so that he could persuade the Banglanis to accompany the police it "party to the Thul Police Station. The first report of the incident wits lodged by Atta Muhammad at the Thul Police Station at 11-30 a. &. to which place the police party had returned. After referring to the facts relating to the complaint under section 107 and that he had been required by the S. H. O. to produce the opponents and that he had received a reminder on 5-6-61 and had also received reinforcement on the previous evening he stated that he reached the village early morn ing at about 7 a.m. along with four other policemen and then the report proceeded as follows:-- "We met Sono Banglani there whom we told to produce the above-mentioned person:. He replied us that we should wait in the Otaq of Jani and he was going to collect the above persons and would produce them before us. Sono went away. We stayed in the Otaq of Jani. About an hour passed but Sono and others did not turn up. I therefore sent mounted constable Mehar Khan to Muhammad Arif Bijarani member, Union Council of that area, to the village Bakshan Pahore so that he should come and produce the above-mentioned Banglanis. M. P. S. Mehar Khan went away. Thereafter one hour passed when at bout 9 a.m., we, i.e. 1, Head Constable Eid Muhammad, constable Jan Muhammad were sitting, we saw on the west of Otaq Sono and Hamzo Banglanis with ten other Banglanis out of which one was armed with gun and the rest armed with lathis and hatchets. When they reached near the Otaq Sono Banglani incited his companions to buck up and encounter with police as they were coming every day to institute proceedings whereupon all these persons came shouting slogans and abusing near the Otaq. We all the four in our defence took the weapons and came out of the Otaq. The person armed with gun fired at us but we saved ourselves and all the remaining were giving us laths and hatchet blows. Whereupon Eid Muhammad, Abdul Hadi and Jan Muhammad opened rifle fires in their self-defence, out of which one hit to the person who was armed with gun who fell down. The other fire hit the other person who fell down. The remaining accused while giving laths and hatchet blows to us, Bid Muhammad and Abdul Hadi fired more shots whereupon the accused left us and rata away.'" This version was adopted by all the 4 accused as their defence at the trial.

5. The complainant party did not understandably go to the police station for making the report. It appears that the District Magistrate was camping at Thul and it was to him that the matter was reported and he promised to come there the next day. One Umer, a relation of the complainant who had reached the scene soon after the accused had left and had been spoken to by Dostin who was still alive went and sent telegrams to the higher authorities about this incident. Those telegrams have not been produced, nor is there anything on record to show the exact nature of the report made to the District Magistrate. It is, however, reasonable to deduce that a complaint was made that these policemen had killed two persons and injured the third, and that in doing so they had acted in a very high-handed manner. The Station House Officer reached the scene of occurrence the same night at about 10-30 p.m. where he found that Murid and Dostin were lying dead and Hamzo was found injured. On the spot he recorded the report of Jani, the father of Dostin and Murid. This has been treated as the first information report in the prosecution against the present appellants. It would be convenient to reproduce this report: - "The complaint is as under: Deceased Dostin and Murid were my sons. Hamzo is my uncle and Sono is my cousin and live together. Today morning after offering my prayers I went to Karawpur as my two sons Dostin and Murid had been allotted two numbers of the land of Sardar Noor Muhammad Khan, due to land Reforms. I enquired from Sardar Noor Muhammad whether we should cultivate the land, or not He told me that we may cultivate the land. I then returned from Karawpur to my house at 1-00 p.m. of `Manjhand'. I saw my two, sons Dostin and Murid lying dead. They had been fired with gun. Hamzo was injured who had also received gunshot and was unconscious. Sono was present there who on enquiring stated that head cons table Atta Muhammad, Eid Muhammad and three other policemen had come in the morning and asked for Dostin and Murid. He brought Dostin and Murid to produce them before police whereupon Atta Muhammad said that Rs. 300 should be paid to him, because prior to this Atta Muhammad Jamadar had come with two other policemen and had received two hundred from him and for Rs. 300 there was a promise. Murid and Dostin told them that they had no money whereupon Atta Muhammad and Eid Muhammad said that they would detain their women folk and would insult them. On that Murid started going back. Eid Muhammad told him to stop. Murid stopped and as he turned 'his face, Eid Muhammad fired at him with gun which hit him at his face and he fell down. Dostin seeing his brother falling moved towards him whereupon Atta Muhammad said to one policeman to fire at him with the gun. On this he fired gun who also fell down and both died. On gun fires Hamzo came raising cries. One policeman fired gun at him also who also fell down and then the policemen went away. Thereafter I sent Sono to lodge the report who on return informed me that the Deputy Commissioner was camping at Thul whom the matter was reported by him who replied that he would come on the next morning at the place of scene and see the incident. The policemen have killed my two sons and caused injuries to Hamzo for no fault. Sono told me that he would recognize the policemen on seeing. He also said that none had come on gunfires and cries. On your arrival now I lodge complaint. Note. -The complaint was read over to the complainant who admitted it correct and gave his mark. L. TA.-I. of complainant Jani."

6. A magisterial inquiry was ordered by the District Magistrate and in pursuance of which the S. D. M., Kandhkot, Mr. Bashir Ahmad held an inquiry. He had received a direction in this regard on 12-6-61 from the District Magistrate. He recorded the statements of Umer, Jam, Mst. Haws, Hamzo, Aarif, Ghous Bux, S. H. O., Thul and appellant Atta Muhammad and he submitted his report on 5th July 1961, which is Exh.

54. As a result of this inquiry the S. D. M. was of the opinion that- "the police appears to be aggressor and there is a prima facie case against them for police officials all under sections 302/34 and 307, P. P. C. and I propose to issue process against them and put them on trial for the charge of the murder and an attempt to commit murder of Hamzo which is an offence under section 307, P. P. C. As ordinarily I will be the trying Magistrate it is not desirable for me at this stage to minutely criticise the evidence of each witness or assess and appreciate the evidence which has come on record against the police. The final assessment and appreciation lies with the Court of Sessions if the police party is committed to this Court for the above offences." A challan under sections 302 and 307 read with section 34, P. P. C. was then put up against the four appellants and they were tried by the Sessions Judge, Jacobabad and convicted and sentenced as stated above.

7. The learned Sessions Judge after examining the prosecution evidence in the case recorded his finding as to the cause of the firing as follows: "In fact, according to me, the incident occurred in which two unfortunate lives were lost and one man was seriously injured because the complainant party did not pay the balance of money." He then went on to examine the defence of the accused: As for the various injuries on the four accused persons which had been deposed to by Dr. Muhammad Bashir he said that the doctor had unfortunately opined that these injuries may be 'self -suffered". He, therefore, observed that it was difficult for him to believe that tote accused fin fact received injuries at the hands of the complainant party. He disbelieved the defence version that out amongst the complainant party had brought a muzzle loading gun and had fired from it and had missed. The ultimate conclusion that he reached may be reproduced, in his own words: - "What seems to me to have happened is that the accused have demanded the balance of illegal gratification promised to them as mentioned above from the deceased the sons of the complainant and on their refusal to pay the amount a verbal altercation has ensued and the Banglanis have perhaps threatened the accused after which they have started proceed ing to their houses to bring weapons to attack them, therefore the constables have opened fire at them. For reasons given above I find that the accused have committed murders of the deceased Dostin and Murid and attempted upon the life of Hamzo, P. W. 6, who sustained injuries."

8. The fact that Murid and Dostin were killed and Hamzo was injured as a result of the firing by the police party is not in dispute. The question which requires to be determined is whether the appellant had acted in the exercise of the right of private defence; whether such a right existed and whether it lead been satisfactorily established by the evidence and circumstances appearing in the case and the further question whether there was a reasonable possibility that the explanation given by the accused might be true so as to cause reasonable doubt upon the prosecu tion case.

9. The oral evidence on the side of the prosecution with regard to the incident consists of the testimony of Mst. Haws, the mother of the two unfortunate boys Dostin and Murid, Hamzo who was injured and Sono. Jani, the father of the boys, was not there but he made the report upon the information received by him from Sono and others. With regard to the allegation that the police party had come to recover the unpaid amount of the illegal gratification there is also the evidence of Jani, Arif and Noor Muhammad, the Sardar of the tribe. Arif is the Munshi of Noor Muhammad and is also a member of the Union Council. The reason put forward on behalf of the prosecu tion for the firing was somewhat like this. Atta Muhammad demanded the payment of Rs. 300 being the balance of the promised amount and upon Murid, Dostin and Hamzo expressing their inability to pay this money the police party threatened to detain their women-folk. At the trial the version was improved and it was said that Alta Muhammad had threatened to commit rape upon Mst. Haws, a woman of 50, whereupon Murid had retaliated and said that he would commit rape on Atta Muhammad' s wife. It was upon this, it was alleged, that Atta Muhammad fired the first shot and the rest followed his example. It was also alleged that Mst. Haws was put under wrongful confinement. At the trial the case of Jani was that he had gong to Sardar Noor Muhammad to complain to him that the pofca were harassing him and were wanting to be paid a bribe for hushing up the complaint of Kamal and Sardar Noor Muhammad bad, therefore, given him a chit to take it to his Munahi Arif who lived in village Bakhahan and this chit was handed over to Aril by Jani Sardar Noor Muhammad supported this version.

10. Tire allegation with regard to the agreement to pay a bribe for the hushing up of the matter and a part payment of the agreed amount, in our opinion, is open to serious doubts. There is discrepancy about the agreed amount and the alleged part payment. It would appear from the evidence that at one place the allegation is that only Rs. 200 had been paid on the previous occasion and at other, that Rs. 400 had been paid. This may not by itself be a very important circumstance but the story itself does not appear to be probable in view of the circumstances of the case to which we shall now refer. It is the case of Jane and others that when Alts Muhammad had come a few days before this incident an agreement had been reached that he should be laid Rs. 700 and of this Its. 400 bad actually bees paid. If this was so, it is difficult tee se why it should have been necessary for Atta Muhammad to ask for reinforcemcot from Thul for the visit which took place on the day of the incident, that is 10.6-61. Admittedly two constables had been sent by the Station House Officer to reinforce Alta Muhammad Who had asked for sue-t-b reinforcement because he said that he wax short of men arid with the force which ht had it was not possible for him to fulfil the assignment which was given to bier, that is the production of the persons who were named in the complaint of Kamal. It is on record and is not disputed that Banglanis belong tea a tribe who are dangerous and who freely resort to murder. Therefore, the request of Atta Muhammad for reinforcement would support the defence case that the polite party had, to get the persons from whore breach of peace was appended rather than tit recover the balance of the agreed amount of illegal gratification. According to the prosecution a sum of Rs.400 had been paid and Aria Muhammad would have normally expected that the balance would also be nsid. T16rardon, them was no need for seeking reinforcement- The next important circumstance is that when the police party reached the village they surrounded the house of Sono. This is what Sono himself says, and when Sono carne oat they (lid not ask him to pity the balance of the bribe but to produce the persons who named in the complaint of Kamal. Sono showed them the house of Murid and there Murid, Dustin acrd Jani were not found and so be went to the field to get them and others. As a result of this Dustin. Murid and Ramzo came. Tile rest had not beta found. Now, if Atta, Muhammad and his party had gone to collect the balance of the money they would have gone straight to Jani and Hamzo who had, according to them, already paid Rs. 400 and had promised to pay tire remaining Rs.

300. There would be no need for Alta Muhammad to start getting hold of all the persons named in the complaint of Kamal. Sono had not said in his statement before the committal Court that the police hail demanded money from Murid or had told him that if this teas not done his mother MO. Haws would be detained. He had not said this even in his statement before Mr. Bashir Ahmad who had held the judicial inquiry. Hamzo also had not stated before the Magistrate in the inquiry that any amount had been paid to Atta Muhammad on a previous occasion. There is another important circumstance. It is not true that the fifth person of the police party, namely, constable Mehar, had taken wheat from Mst. Haws and had gone to purchase Beeri and eatables. On the contrary, it is established from the evidence of Arif that this constable Mehar had gone to his house and this is what he learnt when he returned to his place. Atta Muhammad had stated in his first information report that he had sent Mehar to get Arif who was the member of the Union Council and the purpose was that his influence would be used to produce the persons complained against by Kamal to be taken to the police station. Arif was not a party to the alleged deal which had taken place on a previous occasion and we do not see that he would be sent for except for the purpose as stated by Atta Muhammad. The story of the chit having been given by Sardar Noor Muhammad to Jani and, the latter giving it to Arif on the-day of the incident has been disbelieved by the learned Sessions Judge and, in our opinion, rightly. Though Jani said that he had delivered this chit to Arif it was he from whose possession this chit was produced before the Magistrate who held the judicial inquiry. But more important than this is the admission of Jani himself in the first information report recorded the same night on the scene of occurrence wherein he said that he had gone to Sardar Noor Muhammad to seek his permission for cultivating certain fields which had been allotted to his two sons Murid and Dostin as a result of the Land Reforms. Jani denied to have said this in his report but we do not believe him because this fact that certain lands belonging to Sardar Noor Muhammad had been allotted to his two sons would not otherwise be known to Ghous Bux to enable him to put it down in the first information report of Jani. In fact, Jani made several statemants in his evidence before the Sessions Court which were not true. It also appears to us that if the police party bad gone to recover the balance of the promised amount they would not have forced a show-down and not in any case so quickly. They would have at least waited for Jani who was the main person and who is alleged to have promised that money. We do not, therefore, think that money was demanded by the police party and that it was on the refusal to pay this money that the firing took place.

8. With regard to the allegations that Mst. Haws had been wrongfully confined and that gave rise to the wordy altercation resulting in the firing there is again a considerable amount of discrepancies on this point. The fact of such detention or maltreatment was not alleged before the Magistrate who held the judicial inquiry and the learned Sessions Judge did not believe this part of the prosecution case and we think rightly so.

9. We would also observe that Jani, Hamzo, Mst. Haws and Sono have in their evidence before the Sessions Court made several statements which were not true. For instance, an attempt was made to show that every one of the policemen fired and hit Murid, Dostin and Hamzo and that several shots were fired by each of them. This was not the case in the first infor mation report of Jani and even otherwise appears not to be true. According to the medical evidence there was only one bullet injury each on the person of Murid, Dostin and Hamzo. It was then alleged that the same five policemen who came on the day of the incident had come earlier 2 or 3 days before when the sum of Rs. 400 was alleged to have been paid. This was not true because Jani himself had earlier stated that Atta Muhammad had come only with two other policemen of Mirpur outpost. Jan Muhammad and Hadi had only come on the day of the incident. Their story with regard to the wrongful confinement of Mst. Haws and as regards the agreement to pay bribe and the payment of a part of it has also not appealed to us. This being so, their version as to the manner and the circumstances in which the firing took place cannot be relied upon without some corroboration. This is wanting.

10. When Atta Muhammad made his report at I1-3U a. m. at the Thul Police Station he and his three companions were found to be injured. They were sent to the medical officer, Thul Mr. Muhammad Bashir for examination. He examined all four of them and found the following injuries on their persons. It would be convenient to st2te them in the words of Dr. Muhammad Bashir himself: -- "Atta Muhammad accused had the following injuries on his person: (1) Contusion 3 ''x 1'' over the front of the left thigh. (2) Contusion 1 '' x '' over the hack of the left shoulder. Nature of injuries was simple. They could be caused by means of a blunt weapon, eg. lathi. Injured Eid Muhammad accused has the following wing injuries: (1) Contusion 7" x 3/8'' over the left side abdomen with middle. (2) Contusion 7'' x 3/8'' over the back about 2' above the waist. (3) Contusion 5" x 5/8'' over the right scapula up to the shoulder. (4) Contusion 3'' x 3/4'' over the outer aspects of the right arm All of them were simple in nature and could be caused by means of lathi. Injured Jun Muhammad has the following injuries: (1) Scratch 11/2'' x 1/8'' with light swelling over the outer aspect of the left arm, upper front. (2) Contusion 6'' x 3/8'' with scratches 3/4'' x 1/4'' and 1'' x 3/8'' at the top and in the middle over the left scapula. (3) Contusion 5 '' x '' with scratch 3/4'' x 3/8'' over the back of chest left side below and medial to the scapula. (4) Contusion 7 '' x " over the back of the chest right side below and medial to the scapula.

5. Contusion 6 ''x '' over the back of chest right side adjacent to number 4 above icy the inner side. They were all simple fin nature and could be caused by a blunt weapon. e.g. lathi. Injuries on the person of Adbul Hadi: (1) Incised wound 2'' x 1/8" into scalp deep over the right side bead above the ear: (2) Contusion 2" x 3/4'' with scratch 1/4'' x 1/8'' at the top of the contusion sad swelling 4'' x 3'' over the back of the left forearm in the middle. (3) Scratch 3/8'' long x 1/16'' over the top phalange of the left middle finger. Outer side. (4) Scratch 1/4'' x 1/8" over the back of the right thumb at the metacortpophalangial joint. . Nature of the above injuries was simple. Number 1 could be caused by a sharp weapon by a hatchet and the rest Nos. 2 to 4 by a blunt weapon, e.g.lathi. The doctor was asked in cross-examination by the defence whether these injuries could be self-inflicted and he replied that they could not be but he went on to add that they could be "self- suffered" by which it was meant that these accused persons could have asked somebody to inflict these injuries on them. In that way any injury can be "self-suffered" and while it is not impossible that these policemen faced with the fear of being prosecuted for having caused the death of two persons and seriously injured a third may have subjected themselves to these injuries of their own will so as to create a defence, but having regard to the large number of contusions upon the person of that four appellants, and of two contusions on the person of Hamm this suggestion does not appear to be a reasonable one. While judging the explanation of the accused persons in a criminal case what has to be seen is whether it is a reasonable one, and if it does appear to be so it cannot be rejected upon the suggestion of a remote circumstance. To do so would offend the principle that the burden of proving the offence is upon the lion and the accused is always entitled to the benefit of a reasonable doubt.

11. We agree with the learned Sessions Judge that the story in the defence version that one of the deceased party had brought a muzzle loading gun and had teed from it and missed was not true, but the rejection of this pant of the defence version does not necessarily demolish the other circumstances, namely, the receiving of a large number of injuries by the accused and the two blunt weapon injuries on Hamzo which have been referred to above. We are of the opinion that these injuries in alt probability, were caused to the accused at the hands of the opposite-party. It also appears to us having regard to the circumstances of .the case that the policemen must have opened the firing only when they were cornered. It was not possible to get any further evidence in support of their case because the Banglanis of that village would not have supported them and therefore, the absence of any such evidence does not necessarily it eaten the explanation of the accused. The learned Public Prosecutor before the Court of bona conceded that the accused did have the right of private defence, but he was of the opinion that they exceeded their right. To this we do not agree. The accused finding themselves amongst hostile people belonging to a dangerous tribe who had started using their lather, would; have an apprehension of receiving grievous hurt and would the rev fore be emitted to their right of private defence which would extend to the causing of death.

12. The learned counsel for the appellants relied upon the judg ment of Federal Court in the case of Safdar Ali v. Crown PL D 1953 FC 93 which view wax reiterated by the same Coon in the can of Mead Siddiq v. Crown PLD 1954 FC 113 and was again recently reaffirmed by the Supreme Court in the case of Mir ahmad v. The Stage PLD1962SC

489. It was laid down in the case of Safdar Ali that in a criminal case it the duty of the Court to review the entire evidence that has produced by the prosecution and the defence, and if after examination of the whole evidence the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, ft is clear that such a view reacts the whole prosecution case. In these circumstances the accused is entitled to the benefit of doubt.

13. On an examination of the whole evidence and plea of the accused and the circumstances referred to above including their injuries, we cannot say that there is no reasonable possibility that the defence put forward by the accused might be true. In fact, in the present case there is more than reasonable possibility that the defence put forward is true. We, therefore, accept this appeal, set aside the conviction and sentence passed upon the appellants and direct that they shall be set at liberty unless required in some other case. Appeal accepted.