1980 P Cr (PLP)

10. The said doctor also medically examined Haq Nawaz P. W. on the same day and found, in all, six simple injuries on his person, which comprised three lacerated wounds and three contusions.

11. The doctor also performed post‑mortem examination of Nawab son of Allah Ditta deceased/accused and found on his dead body an incised wound on the right side of the bead. This injury was considered sufficient to caused death in the ordinary course of nature. He also medically examin ed Mohammad Yar, who had on his person an incised wound on the right side of the head. Allah Yar was also medically examined and three injuries were found on his person. The doctor also examined Shah Mohammad and found four injuries on his person, including three lacerat ed wounds and an incised wound. The incised wound on the left forearm was declared grievous, caused by sharp‑edged weapon.

12. Riaz‑ud‑Din, Police Inspector (P. W. 13) also partly investigated the case. On 27th May, 1972 Atta Mohammad accused produced blood stained hatchet (Exh. P. 15), Shah Mohammad accused produced blood stained sofa (Exh. P. 14), Dur Mohammad accused produced blood‑stained sofa (Exh. P. 13) and Allah Yar accused produced blood‑stained sofa (Exh. P. 16). He arrested the above‑mentioned accused after the recovery of the aforementioned weapons of offence. He also identified the signatures of late Noor Hussain Shah, A. S. 1. on the memos of recovery prepared by him.

13. The accused pleaded not guilty. The defence version was that the complainant party was already ejected from the land and had no concern with the wheat lying at the thrashing floor. They produced Kh. Mohammad Ijaz, Tehsildar (D. W. I) and Ashiq Hussain Clerk (D. W. 2) in defence. They also brought on the record copy of Roznamcha No. 119, dated 30th November, 1971.

14. I have heard learned counsel for the appellants and the State and with their assistance perused the entire evidence on the record. Atta Mohammad appellant, who remained present in person during the hearing, was also heard.

15. Learned counsel for the appellants contended that the ocular ve4ion given in this case was interested, the recoveries doubtful and the investigation dishonest, and all these factors render the prosecution case doubtful.

16. On the contrary, learned counsel for the State, assisted by the complainant's counsel, submitted that the order of the learned trial Court to the extent of acquitting the four accused was inconsistent with the pro secution evidence existing on the record,. and has thus resulted in miscarriage of justice. 17. 1n this case there are two parallel versions each party accused the other of aggression. However, learned counsel appearing on both sides agreed that it was indeed a case of a free and open fight, for which both parties armed themselves with deadly weapons participated and in such a case there is neither any question of the accrual of a right of self defence to either party, nor can section 149, P. P. C. be applied.

18. There is substantial force in the submission that in case of free fight of the kind occurred in this case, where ‑ parties participated with deadly weapons prepared for pitched battle, the provision of section 149, P. P. C. would not apply. In Hakam Ali and 4 others v. The State (1971 S C M R 432) their Lordships of the Supreme Court of Pakistan held : ‑ "If as found by the High Court both sides came out armed prepared for fight and engaged in a free fight in a public place, then in our opinion, the High Court clearly misdirected itself, in taking the view that because the complainant side got the worst of the fight, the accused must have been the aggressors, and therefore they should be held to be guilty." It was further observed with reference to Syed Ali Bepari v. Nibaran Mollah (P L D 1962 S C 502) that although no question of either side claiming the right of private defence. arose, yet the culpability of the participants in the fight has to be assessed on an individual basis. ,

19. Nevertheless; the onus in a criminal case always rests on the prosecution and it has to establish its case against the accused beyond reasonable doubt, and for that matter, it would necessitate examination of the prosecution case on its own merits.

20. The ocular evidence in this case was furnished by Haq Nawaz, the complainant, Mst. Zainab, Mst. Mithan and Allah Yar P. Ws. Haq Nawaz is brother of Ghulam Mohammad and Allah Wasaya deceased and uncle of Lai deceased. Similarly, Mst. Zainab is wife of the complainant, Mst. Mithan. wife, and Allah Yar, son of Mohammad Bakhsh, whose sister was married to Gul Mohammad deceased. It, is thus evident that the eye‑witnesses are closely related to the deceased and are also related inter se.

21. It is no doubt true that mere relationship of the eye‑witnesses does not render their evidence unreliable, but for the safe administration of criminal justice it is always considered proper to search for its corrobora tion from other evidence' of unimpeachable character. In cases where there is no question of the exercise of the right of private defence, the mere relationship may not be considered a discarding factor for reliance on such evidence, but in cases like the present one, where the possibility of both the versions being true cannot be excluded, the evidence of such like interested witnesses cannot, by itself, be the basis, of conviction, particularly for the following important .factors which go in favour of the plea raised by the accused and overlooked by the trial Court It is clear that at the fateful time the accused were in occupation of the heap of wheat lying at the thrashing floor. They had weighed some wheat and put in ‑bags, when the complainant party moved forward and reached the place of occurrence. They were armed, caused injuries to the accused due to which one person lost his life and three others were injured. The statement of the complainant was admittedly recorded at 5.00' p. m. on the spot by Noor Hussain, A.. S. I., who had gone there to investigate the counter case registered at the Police Station earlier, at the instance of the accused. This piece of evidence cannot be termed as first information report. It was rather a statement made before the Police Officer and obviously inadmissible in evidence. Haq Nawaz complainant, Mst. Zainab, Mst. Mithan and Allah Yar P. Ws. had admitted that the complainant, on receipt of the injuries, had become unconscious. Mst. Mithan even stated that he remained unconscious. for six days in the hospital after the occurrence. Allah Yar stated that he was unconscious when he was taken to the hospital. In these circumstances, the statement of the complainant recorded as F. I. R. loses its evidentiary value. The prosecution apparently involved four accused in the calendar of the accused, but their acquittal by the trial Court adversely reacts .on the prosecution version. . The F. I. R. did not account for the‑injuries suffered by the accused and even the death of Nawab accused was suppressed. This deliberate concealment casts serious doubt on the veracity of prosecution story. The eye‑witnesses, being relations of the deceased, made improvements in their statements at the trial, besides contradicting one another. Haq Nawaz stated that Mohammad Ramzan accused was armed with gun, but it proved a false innovation. He also introduced false motive, which was not his case in the F. I. R. The dragging of the injured to the heap of wheat was also later on vainly introduced by the complainant and Mst. Mithan P. W. Haq Nawaz complainant deliberately suppressed the factum of his filing appeal against the order of his ejectment, which was duly proved by the defence. The conduct of the P. Ws. having already sworn affidavits exonerating the acquitted accused, but later accused; on disowning the same, also proved that no reliance could be placed‑ on their testimony. Rahimyarkhan Patwari (P. W. 11) had admitted that Haq Nawaz complainant was present at the time of ejectment from the‑disputed land having been carried out by the revenue officials. The motive attributed to. the accused rather tilts in their favour, because only the complainant side would feel aggrieved if the heap of wheat was forcibly taken away by the landlord depriving them of their share, prompting the complainant party to launch attack on the accused party. It is in the evidence that some disinterested persons were also present at the thrashing floor, near the heap of wheat, at that time, but none of them was produced in the trial Court. The evidence of recoveries was ridiculous. The injured accused were admitted in the hospital on 21st May, 1972, while the recoveries were made an 27th May, 1972, at their instance, while they were still confined to beds in the hospital. This was admitted by Khuda Bakhsh P. W. father of Gul Mohammad and Allah Wasaya deceased and Haq Nawaz P. W. besides Allah Yar P. W. Allah Yar P. W. was residing at a distance of five miles, but he was selected to attest the recovery, presumably owing to his relationship with Gul Mohammad deceased. The evidence of recoveries, therefore, does not furnish corroboration to the ocular evidence of interested witnesses. Lastly it is noticed that the investigation in this case of triple murder was, not fairly conducted. Riaz‑ud‑Din (P. W. 13) made recoveries of the weapons of offence in the Hospital and arrested the accused on 27th May, 1972, although they were admitted in the Hospital on 21st May, 1972. No explanation for such a lapse has come on the record.

22. In the light of the above discussion, the possibility that the complainant party went to launch attack on the accused party cannot be excluded, and it appears reasonable to conclude that the defence version might be true. The prosecution has thus failed to prove the case against the accused beyond reasonable doubt.

23. In the result; this appeal is accepted, the conviction and sentenced imposed upon the appellants by the trial Court are set aside and they are acquitted. They shall be released forthwith, if not required in any other case.

24. The revision petition filed by Haq Nawaz complainant obviously fiails and is accordingly dismissed. Appeal accepted.