P L D 1963 (W (PLP)

9. The oral evidence on the side of the prosecution with regard to the incident consists of the testimony of Mst. Hawa, 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 prosecution 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 Atta Muhammad had threatened to commit rape upon Mst. Hawa, 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. Hawa was put under wrongful confinement. At the trial the case of Jani was that he had gone to Sardar Noor Muhammad to complain to him that the police were harassing him and were wanting to be paid a bribe for hushing up the complaint of Kamal and Sardar Noor Muhammad had, therefore, given him a chit to take it to his Munshi Arif who lived in village Bakhshan and this chit was handed over to Arif by Jani. Sardar Noor Muhammad supported this version.

10. The 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 others 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 Jani and others that when Atta Muhammad had come a few days before this incident an agreement had been reached that he should be paid Rs. 700 and of this Rs. 400 had actually been paid. If this was so, it is difficult to see why it should have been necessary for Atta Muhammad to ask for re‑inforcement 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 Atta Muhammad who had asked for such reinforcement because he said that he was short of men and with the force which he had it was not possible for him to fulfil the assignment which was given to him, 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 to 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 police party had gone to get the persons from whom breach of peace was apprehended rather than to recover the balance of the agreed amount of illegal gratification. According to the prosecution a sum of Rs. 400 had been paid and Atta Muhammad would have normally expected that the balance would also be paid. Therefore, there was no need for seeking reinforcement. The next important circum stance is that when the police party reached the village they surrounded the house of Sono. This is what Sono himself says, and when Sono came out they did not ask him to pay the balance of the bribe but to produce the persons who were named in the complaint of Kamal. Sono showed them .the house of Murid and there Murid, Dostin and Jani were not found and so he went to the field to get them and others. As a result of this Dostin, Murid and Hamzo came. The rest had not been 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 the remaining Rs.

300. There would be no need for Atta 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 had demanded money from Murid or had told him that if this was not done his mother Mst. Hawa 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. Hawa and had gone to purchase Beeri and eatables. On the contrary, it is established from the evidence of Arif that this constable Mebar had gone to his house and this is what he learnt when he returned to his place. Ata 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 statements in his evidence before the Sessions Court which were not true. It also appears to us that if the police party had gone to recover the balance of the promised amount they would 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.

11. With regard to the allegations that Mst. Hawa 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 party of the prosecution case and we think rightly so.

12. We would also observe that Jani, Hamzo, Mst. Hawa 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 information 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. Hawa 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 corrobo ration. This is wanting.

13. When Atta Muhammad made his report at 11‑30 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 state them in the words of Dr. Muhammad Bashir himself :‑ "Atta Muhammad accused had the following injuries on his person (1) Contusion 3 " x 2" over the front of the left thigh. (2) Contusion 1 " x " over the back of the left shoulder. Nature of injuries was simple. They could be caused by means of a blunt weapon e.g., lathi. Injured Eid Muhammad accused has the following wing injuries (1) Contusion 7' x 8" over the left side abdomen with middle. (2) Contusion 7' x #'` over the back about 2", above the waist. (3) Contusion 5" x #'` over the right scapula up to the shoulder. (4) Contusion 3" x 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 Jan Muhammad has the following injuries (1) Scratch 1 " x 1/8" with slight swelling over the outer aspect of the left arm, upper front. (2) Contusion 6" x 3/8" with scratches " x " and 1" x 3/8" at the top and in the middle over the left scapula. (3) Contusion 5 x " with scratch " 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 No. 4 above in the inner side. They were all simple in nature and could be caused by a blunt weapon e.g., lathi. Injuries on the person of Abdul Hadi (1) Incised wound 2" x 1/8" into scalp deep over the right side head above the ear. (2) Contusion 2" x 3" with scratch " x 1/8" at the top of the contusion and 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 " x 1/8 " over the back of the right thumb at the metacorpophalangial joint. Nature of the above injuries was simple. No. 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 these four appellants, and of two contusions on the person of Hamzo 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 thel principle that the burden of proving the offence is upon the prosecution and the accused is always entitled to the benefit of al reasonable doubt.

14. 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 fired from it and missed was not true, but the rejection of this part 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 all 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 weaken the explanation of the accused. The learned Public Prosecutor before the Court of Sessions 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 lathis, would have an apprehension of receiving grievous hurt and would therefore be entitled in their right of private defence which would extend to the causing of death.

15. The learned counsel for the appellants relied upon the judgment of Federal Court in the case of Sardar Ali (P L D 1953 F C 931), which view was reiterated by the same Court in the case of Muhammad Siddiq v. Crown (P L D 1954 F C 113) and was again recently re‑affirmed by the Supreme Court in the case of Mir Ahmad v. The State (P L D 1962 S C 489). It was laid down in the case of Safdar Ali that 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, and if after an 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, it is clear that such a view reacts on the whole prosecution case. In these circumstances the accused is entitled to the benefit of doubt.

16. 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 not true. We, therefore, accept this appeal, set aside the conviction and sentence passea upon the appellants and direct that they shall be set at liberty unless required in some other case. K.B. A./A. H. Appeal accepted.