P L D 1962 Supreme Court 502 (PLP)

FAZLE‑AKBAR, J.‑

This is an appeal by special leave granted to Syed Ali Bepari alias Sedu to call in question the acquittal l in appeal by the High Court of East Pakistan of three persons who had been convicted and sentenced at the same trial by the Additional Sessions Judge, Dacca. In the morning of 15th November 1959 there was an incident in a field near Char Patrail Mouza within the Police Station of Manikganj in which one person lost his life and several others were injured. On the side of the prosecution Ahmad Bepari was killed and Billal Hussain, Shahajuddin and Khedani were injured, while on the accused's side Adu Mollah, Nibaran Mollah and one Abdul Hye received injuries. According to the medical evidence Ahmad Bepari had one penetrating wound 1 '' x '' x 5'' between 10th and 11th ribs directing upwards and backwards at the mid‑axillary line left side. On dissection one incised wound 1'' x '' x " was detected on the posterior aspect of the spleen and one incised wound 1 " x 1/3'' on the lateral aspect of left kidney. In the opinion of the doctor death was due to shock and haemorrhage from the above penetrating, wound which was caused by a sharp cutting instrument. Billal Hussain had one punctured wound on the upper part on the left foot below the ankle joint and two bruises ; Shahajuddin had in all five penetrating wounds and Khedani had only one abrasion. On the side of the accused Adu Mollah had five lacerated wounds on the region of the head, one incised wound on the right middle finger, one swelling with a lacerated wound on the left elbow joint and one contusion on the left buttock. Accord ing to the doctor excepting the contusion the other injuries which were of severe nature were caused by a sharp‑edged cutting weapon. Accused Nibaran Mollah had three penetrating wounds, one on the hepatic region, second on the right thigh and the third on the lower part of the ankle joint out of which the first injury was a severe one. Abdul Hye another member of the accused party who had not been sent up for trial had both incised and penetrating wounds. There were two versions before the trial Judge as to the occurrence. According to the prosecution the accused persons along with others numbering twenty to twenty‑five trespassed upon Ahmad Bepari's land in Mauza Patrail and started reaping paddy from the said land. On the protest raised by Ahmad Bepari and his companions Nibaran Mollah under the order of Adu Mollah struck Ahmad Bepari with a katra on his belly and he after running a short distance dropped down dead on the land of one Munaf which is to the east of his land. Thereafter Adu Mollah injured Billal Hussain with a juti and Basheruddin injured Shahajuddin with a juti and Bishu struck Khedani with a brick‑bat. As people were attracted by the shouts of the com plainant's party the accused left the place. The defence version of the incident as suggested to the prosecution witnesses was that Adu Mollah had grown paddy on his land of Gobindpur Mauza which adjoins Ahmad Bepari's land to the south. As the complainant party forcibly entered upon that land with a view to reap the paddy grown by Adu Mollah and also assaulted the members of the accused party there was a free fight in the course of which members of both the parties were injured and it was not known who beat whom. After investigation the police submitted charge‑sheet against fourteen persons, but ultimately the Magistrate committed four of them, namely, Nibaran Mollah, Adu Mollah, Basheruddin and Bishu to the Court of Session to stand their trial for the offences under sections 148, 302, 324 and 323 of the Pakistan Penal Code. At the trial before that Court the prosecution produced six eye‑witnesses of the occurrence and also led evidence to show that the occurrence took place over reaping of paddy from the land of Ahmad Bepari. As the prosecution had failed to make out a case under section 148, P. P. C. the Public Prosecutor did not press that charge and the accused persons were acquitted of the said charge. The trial Judge however, convicted Nibaran Mollah under section

304. Part I, P. P. C. and sentenced him to seven years' rigorous imprison ment. Adu Mollah and Basheruddin were convicted under section 324, P. P. C. and sentenced to rigorous imprisonment for one and a half years each. Bishu was convicted under section 323, P. P. C. and sentenced to rigorous imprisonment for one month. Only the first named three convicted persons appealed to the High Court and a Division Bench of that Court set aside their convictions and sentences and acquitted them. The complainant Syed Ali Bepari then obtained, special leave to appeal from this Court. Much of the argument for the appellant was addressed to the manner of treatment by the High Court of the right of private defence. It was also pointed out that due weight was not given to all the circumstances in acquitting the accused. On the other hand, the learned Advocate for the respondents attempted to support the judgment of the High Court. The learned Judges of the High Court criticized the evidence of the eye‑witnesses on the ground of their partisanship and their inability to explain the injuries received by the accused‑party. They also commented on the non‑production of the other witnesses named in the charge‑sheet. They, therefore, felt doubts "as to the genesis and manner of the occurrence" On the other hand having regard to the fact that there was dispute between the parties over the land of Gobindapur Mauza, the learned Judges were inclined to accept the defence version as would appear from the following observations :‑ "We have absolutely no manner of doubt that there was in fact a mutual fight resulting in injuries to some members of both the parties. We feel persuaded also to think that the said fight in all probability took place over the southern plot, as contended by the defence . They then observed :‑-- "The fact of the mutual fight is now undisputed and the nature of the injuries shows that deadly and sharp weapons were being not only wielded but actually used on both sides. In a situation like this one might, in our opinion, reasonably apprehend that the other side might cause at least grievous hurts even if not death. Though based on speculations owing to the unfairness of the prosecution in suppressing material facts and putting forward what appears to all probability to be an untruthful account regarding the genesis as well as the manner of the occurrence, these (like protection afforded by the right of private defence etc.) are patent possibilities, arising out of the facts and circumstances of the case and unless all such possibilities can be reasonably excluded, as, in our view, it cannot be done in the present instance, the conviction of the accused cannot be justified in law". In this view of the matter they gave benefit of doubt to the accused and acquitted them. The above displays a lack of true prospective in a case of this kind. Having found that there was a mutual fight the learned Judges proceeded to observe that each side was thereby placed in apprehension of grievous hurt and as they felt doubts "regarding the genesis as well as the manner of the occurrence" they concluded that protections afforded by the right of private, defence were "patent possibilities" and, therefore, acquitted the accused persons. This approach of the case was responsible for a basic error in the High Court's judgment because the learned Judges never addressed themselves to the true implications of a mutual fight. By hinting at a bare possibility of accused's acting in exercise of right of private defence the learned Judges were not justified in discarding the evidence of the eye‑witnesses examined in the case. It was not sufficient for the accused to suggest a mere hypothesis or a remote possibility in order to rebut the prosecution case. In order to gain a favourable verdict it was necessary for the accused persons to set up facts upon which they relied as exculpatory circumstances sufficient to cast a reasonable doubt over the prosecution case. This they have not done. It will suffice to say that Court's treat ment of the right of private defence was far from satisfactory. In the case of Safdar Ali (P L D 1953 F C 93) the Court had the occasion to examine the proper procedure to be followed in arriving at a decision on this plea. In that case the Chief Justice observed :‑-- "In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after an examination of the whole evidence, the Court is of the opinion that there is a reason able possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case". Now this plea of self‑defence was not specifically taken in the trial Court. Nor was there any tangible material before the High Court to support an inference that the accused had acted in and within the limits of right of private defence, so as to enable it to give them the benefit of doubt. The learned Judges found:‑-- "there is nothing whatever to show at what stage exactly the fight took place or to throw any light on the sequence of the injuries sustained by the victims on both sides. There is no material either to show which of the two parties took the initiative or for the matter of fact whether Nibaran and the other two appellants attacked and assaulted their respective victims i.e., deceased Ahmad Bepari, Billal Hussain and Shahajuddin, before or after having been attacked and injured themselves". The next sentence reads as follows:‑-- "In these circumstances, it is difficult to rule out at least the possibility that Nibaran Mollah might have inflicted the fatal blow upon Ahmad Bepari after he had himself been attacked and injured and that the other two appellants Adu Mollah and Bisha also acted similarly in exercise of the right of private defence in causing the slight injuries, though by means of jutis, on the legs of P. Ws. 2 and 3 respectively". It is not easy to understand how the learned Judges could have come to this conclusion in view of their findings quoted above. Moreover, the learned Judges' conclusion that the right of private defence was a "possibility" cannot at all be reconciled with their finding of mutual fight. They, while accepting the defence suggestion of free fight have used the expression "mutual fight". In view of their finding "that there is no material to show which of the two parties took the initiative" it cannot be said that they used the expression "mutual fight" to convey a meaning different from that of a "free fight", which both parties enter into and engage in, of their free volition thus excluding the possibility of pleading self‑defence later. It seems to us that the High Court in this case did not fully .appreciate the circumstances and the manner in which Ahmad Bepari lost his life. Prosecution attempted to establish that the accused party were wrongfully reaping paddy from Ahmad Bepari's land and on his raising protest one of them killed him. In view of the fact that there was no dispute between the parties over the said land the High Court disbelieved this part of the prosecution story. This view of the High Court also finds some support from the fact that no reaped paddy was seized by the Investigating Officer from that land. Hence from the above facts a conclusion may be drawn that the fight was not over the paddy of Ahmad Bepari's land. The learned Judges of the High Court, however, made no attempt to consider the evidence and circumstances as a whole in order to ascertain what actually took place. From the fact that the prosecution attempted to shift the place of occurrence they were content to conclude that the complainant party was the aggressor and that the accused persons most probably acted in and within the right of private defence. The evidence and circumstances, however do not justify such conclusions. Here we may observe that in a case of this type the parties do not generally come out with the true story. It is a normal incident of an "adversary proceeding" to minimise one's own part in the incident. In such a case the Court must not be deterred by the incompleteness of the tale from drawing the inferences that properly flow from the evidence and circumstances. There is sufficient and satisfactory evidence that there was dispute between the parties over the plot which adjoins Ahmad Bepari's land to the south. Syed Ali Bepari (P. W. 1) claimed this southern plot and also filed documents in support of his claim. On the other hand, the accused Adu Mollah filed certain papers in support of his claim. There is, however no satisfactory evidence that either party was in exclusive or un disturbed possession of this land. A legitimate conclusion, therefore, could be drawn that on the morning of 15th November both parties went to enforce their right or supposed right in the disputed land and for this purpose they armed themselves in full expectation of an armed conflict. Hence judging from their acts and conduct we think it can safely be said that each part), anticipated resistance from the other and were, therefore, determined to have a trial of strength. In such circumstances, it will be impossible to say that the accused party were acting' on the defensive merely or in other words were acting in the exercise of any right of private defence of person or property. From the state of relations between the parties, it is also clear that both the parties were prepared to fight and that a very trivial incident was sufficient to bring them into conflict. We think it is reasonable to infer that in entering upon that conflict each party knowingly and deliberately took upon itself the risk of the encounter. Hence in the circumstances such as those of the present case no question of right of private defence would arise and, the common object stated in the charge having failed, each person would be held responsible for his individual acts. Now we proceed to consider the extent to which these three respondents, namely, Nibaran Mollah, Adu Mollah and Basheruddin were responsible for what occurred on the morning of 15th November 1959. According to the prosecution Nibaran Mollah killed Ahmad Bepari by giving a blow with a katra on his belly. Nibaran's presence m the fight is not disputed. The injuries on his person speak for themselves and prove his participation in the fight. Out of the six eye‑witnesses who deposed in this case, the presence of three of them, namely, Billal Hussain, Shahajuddin and Khedani who had received injuries in the fight could not be doubted. They all have stated that Nibaran Mollah was solely responsible for killing Ahmad Bepari. The defence could not even suggest why they would falsely assign the part of killing to Nibaran Mollah. Hence we do not see any reason to take a view of credibility of these eye‑witnesses on this point different from that of the Additional Sessions Judge. We think it has been proved beyond any doubt that Nibaran Mollah was solely responsible for killing Ahmad Bepari. We also agree with the view taken by the Additional Sessions Judge that the offence committed is culpable homicide, but does not amount to murder, inasmuch as the death of Ahmad Bepari occurred in the course of a fight between two bodies of men who were deliberately fighting together both sides being armed and no unfair advantage appearing upon the evidence to have been taken by Nibaran Mollah in the course of the fight. The sentence of rigorous imprisonment for seven years awarded to Nibaran Mollah also does not seem to be at all on the side of severity. Similarly the charges under section 324, P. P. C. have been fully brought home to Adu Mollah and Basheruddin. Adu Mollah was charged with voluntarily causing hurt to Billal Hussain with a juti and Basheruddin was charged with causing hurt to Shahajuddin with a juti. The occurrence took place in broad daylight and we are satisfied that the injured persons were in a position to recognize their assailants. Hence the legal sentences of rigorous imprisonment of one and a half years each imposed by the Additional Sessions Judge do not call for interference. In our opinion, the High Court decided the case on a wrong view of the law. We, therefore, allow the appeal, set aside the order of the High Court and restore that of the trial Court. The respondents Nibaran Mollah, Adu Mollah and Basheruddin should be re‑arrested and required to serve out their sentences. A. H. Appeal Allowed.