P L D 1955 Federal Court 432 (PLP)

(On appeal from the judgment and order of the High Court of Judicature at Lahore, dated the 8th March, 1954, in Criminal Appeal No. 22 of 1953). Evidence Credibility Prosecution case false or exaggerated in material particulars Accused entitled to acquittal. The High Court in appeal arrived at the finding that the accused did not come out of ambush to make the assault on. complainant's party thus holding the prosecution case false or exaggerated in material particulars, but maintained the con viction on the theory of a sudden fight. Held, that on the findings arrived at as to the credibility of the prosecution witnesses the proper order to be made in the case was one of acquittal and not of conviction. Having disbelieved the evidence of the prosecution witnesses on the main parts of the incident it was not possible to set upon the theory of a sudden fight which was not supported by any evidence, JUDGMENT MUHAMMAD MUNIR, C. J. This is an appeal, by special leave, in a criminal matter. Six persons, including the four appellants and two other men, both. named Mian Khan, were tried by a section 30 Magistrate of Gujrat on charges of rioting, causing grievous and simple hurts, and attempted murder. They were all convicted, but on appeal to the High Court of Lahore, Mian Khan were acquitted, while the convictions of the four appellants were altered. Bhalu appellant's conviction: was altered from one under section 307 to that under section 326 of the Penal Code, though, his sentence of five years was main tained. Bahadur and Ghulam Rasul's convictions were altered from section 307 to section 324 and they were both sentenced to three years' imprisonment under the altered charge. Nazar's conviction under section 301 was altered to one under sec tion 325, but his sentence of two years was maintained. The convictions and sentences of all of them under sections 148 and 323 were set aside. According to the prosection case, Nazar Husain was passing by a wheat field when all the six accused who had been hiding in that field came out of their ambush and assault ed him with sticks and hatchets. Nazar Husain was riding a horse and had a bundle of fodder in front of him. He threw away the fodder and ran away. His father, Ahmad Ali, was at that time going on a path near the wheat field. All the six accused persons ran towards him and beat him also. The incident was witnessed by three other' persons, Niaz Ali, Feroze Ali and Wali. The defence was that the appellants themselves were attacked near their own houses by Nazar Husain, Ahmad Ali and same other persons, and that they beat their assailants in self-defence. The total number of injuries on Nazar Husain and Ahmad Ali was 13, while the four appellants among themselves had 10 "injuries. The injuries of Ahmad Ali were much more serious than those of the appellants, which included five incised wounds of which one was grivous. The finding of the learned Judge of the High Court was as follows : "It is, therefore, unsafe to rely on the evidence of the prosecution witnesses who are related to Ahmad Ali (P. W. 4). He (counsel for the defence) also contended that the prosecution witnesses suppressed the truth as they have not given the explanation about 'the injuries on Bhaloo, Ghulam Rasul, Bahadur and Nazera appellants. There is force in the contention of the learned counsel. It cannot be denied that the prosecution witnesses have tried to minimize the part played by Nazar Husain Ahmad Ali (P. W. 4) etc. The prosecution case it that the six appellants were hiding themselves, in the Wheat field and they way laid Nazar Husain (P. W. 1). I am not prepared to accept this part of the prosecution case. The occurrence took place on the 10th of February. At that part of the year the wheat crop is not high enough to enable a person to hide himself in it. It appears to me that the appellant and the complainant party came across each other. On account of previous enmity between the parties a sudden fight took place between them. That being so; each one of the appellants would be responsible, for his own acts... " Nothing was said in the judgment about the defence of the appellants. We think that the learned Judge having disbelieved the evidence of the prosecution witnesses on the main parts of the incident, he could not have acted upon the theory of a sudden fight which was not supported by and evidence. The fact that the prosecution case was false or exaggerated in material particulars did not necessarily lead to the inference that there must have been a sudden fight between the parties because on the rejection of the prosecu tion version the hypothesis of self-defence still remained a possibility. In these circumstances, we feel that on the findings arrived at by the learned Judge as to the credibility of the prosecution witnesses the proper order to be made in the case was one of acquittal and not of conviction. Accord ingly, we accept the appeal, 'set aside the convictions and sentences of the appellants, and order them to be released forthwith. A. H. Appeal accepted.