1994 P Cr (PLP)

The trial against the accused commenced in the course of which prosecution examined P.W.1 Abdul Jabbar, P.W.2 Abdul Hameed, P.W.3 Jaro, and P.W.6 Muhammad Mithal who were the four eye-witnesses, P.W.4 Ghulam Muhammad, Mashir P.W.5 Mir Khan Tapedar, P.W.7 A.S.I. Fazal Hussain Investigating Officer; P.W.8 Dr. Muhammad Altaf who examined the injured on both sides and P.W.9 Dr. Muhammad Idrees who conducted the post-mortem examination of deceased Wahid Bux. After the prosecution had examined all the witnesses, the statements of the appellants were recorded under section 342, Cr.P.C. The appellants denied the prosecution allegations. However, they neither wished to be examined on oath nor wanted to examine any defence witness. At the conclusion of the trial, the trial Court convicted the appellants and acquitted accused Dilawar and Manzoor as already mentioned hereinabove. I have heard Mr. Abdul Haleem Pirzada, learned counsel for the appellants and Mr. Abdul Sattar Chohan, learned counsel for the State. It has been submitted by the learned counsel for the appellants that the incident did take place but it did not take place in the manner as alleged by the prosecution. He has raised the following points:-- (i) That the injuries on the person of appellants have been suppressed. (ii) That the place of incident has been shifted from the house of accused Dilawar towards the house of Ghullam Kadir Bhutto. (iii) That the reason for shifting the place of incident was to enable the prosecution to make some of the witnesses as eye-witnesses. (iv) That section 34, P.P.C. has been wrongly applied. (v) That it was not a case of free fight but in fact it. was a case of private defence. As all the aforesaid points are interconnected, therefore, I will consider the same together. However, it may be mentioned that the learned trial Judge came to the conclusion that it was a case of free fight and furthermore the learned trial Judge observed that since it cannot be ascertained whose blow caused the murder of Wahid Bux, therefore, he applied section 34, P.P.C. and convicted all the accused under section 304, Part II read with section 34, P.P.C. To evaluate the evidence on record, I will first refer to the evidence of Abdul Jabbar. It may be noted when the complainant lodged the F.I.R., he had mentioned that he alongwith his brother Abdul Hameed, father Muhammad Mithal and deceased Wahid Bux were sitting in the Otak of Ghullam Kadir Bhutto. When the complainant was examined in Court, he changed the version by stating that on the date of incident he alongwith his father Muhammad Mithal and deceased Wahid Bux were sitting outside the house of Ghullam Kadir Bhutto. He further went on to state that the accused persons came outside the house and the incident took place outside the house where all the accused persons have assaulted his brother Wahid Bux. It may be observed that the complainant did not say anything about any injury having been caused to any of the accused. However, he was confronted in the cross-examination with the F.I.R. but still he denied that both the parties received injuries. He was also asked by whose blow Mst. Shaharbano had received injury. It may be noted that according to the complainant independent witness namely Haji Mushtaque, had also come but he has not been examined in this case. The important circumstance to be noted is that it is not the complainant's case that the incident took place in the house of Dilawar and continued uptil the house of Ghullam Kadir Bhutto. This aspect is being referred as several accused persons were injured and even Mst. Shaharbano was injured. The next witness is Abdul Hameed who is brother of complainant. The evidence of this witness has completely destroyed the prosecution case. He has mentioned in his deposition that complainant Abdul Jabbar, his father Muhammad Mithal and his brother Wahid Bux were sitting outside the house of Ghullam Kadir Bhutto. On their cries he went there and found six accused persons who had caused injuries. He has also admitted that the dispute was over Mst. Shaharbano who is the daughter of accused Dilawar. In the cross-examination, he states that he was not sitting in the hotel as stated by him in his examination-in-chief but he was standing near the house of Ghullam Kadir Bhutto. He also admits that on the day of incident all of them had gone to the house of accused Dilawar for the return of Mst. Shaharbano. A suggestion was made to him that at the house of accused Dilawar there was exchange of harsh words and incident took place at the house of accused Dilawar which of course he denied. But the surprising aspect is that he admits that the accused party had also received injuries. He also admits that Mst. Shaharbano had also received injuries and when he was asked who caused the head injury to deceased Wahid Bux, this witness refused to answer. A suggestion was also made to him that the incident took place suddenly.-Now the question is if the incident had taken place in the manner as stated by the prosecution then there was no question of Mst. Shaharbano receiving any injury. It is obvious that Mst. Shaharbano must have received the injury when the incident took place at her house, that is the house of accused Dilawar. The next eye-witness is P.W. Jaro. He is also a Chowkidar at the house of Ghullam Kadir Bhutto. He has tried to support the case of the complainant by stating that incident took place outside the gate of the house of Ghullam Kadir Bhutto and has stated that he does not know cause of quarrel. In the cross examination he was confronted with his 164, Cr.P.C. statement and he denied to have stated that accused Dilawar had detained his daughter and that he had gone with the complainant party to the house of accused Dilawar requesting the accused to return Mst. Shaharbano. A note has been made by the learned Judge that is confronted so stated which means that the witness did state the above fact in his 164, Cr.P.C. statement. Another important circumstance, which he has admitted is that the house of. accused Dilawar is not visible from the place of Wardat which means from the house of Ghullam Kadir Bhutto. If the incident had taken place at the house of Dilawar, then as per the admission made by this witness that the house of Dilawar was not visible, obviously from the house of Ghullam Kadir Bhutto where this witness was standing, he could not have seen the incident. The last eye-witness is P.W. Muhammad Mithal. He has mentioned that he was Chowkidar at the house of Ghullam Kadir Bhutto where his son Abdul Jabbar and Wahid Bux were sitting outside the house. He states that all the six accused persons came there and attacked his son Wahid Bux. This witness has suppressed the injury which has been caused to the accused persons. He was asked in the cross-examination and he stated that he does not know if accused Ghullam Kadir, Kadir Bux, Imam Bux and Mst. Shaharbano received injuries and that arm of Mst. Shaharbano was fractured. He has also admitted that they are accused in the counter-case. A suggestion has also been made that they had forcibly taken away minor daughter of Mst. Shaharbano when she was in the hospital, he admits that the minor daughter is with them. It is quite evident that the incident did not take place outside the house of Ghullam Kadir Bhutto as suggested but in fact the incident has taken place at the house of accused Dilawar. It is also obvious that the motive was with the complainant party and not with the accused as accused Dilawar had detained his daughter Mst. Shaharbano, who was wife of deceased Wahid Bux and it appears that complainant party had gone to the house of accused Dilawar for either forcibly taking away Mst. Shaharbano or her minor daughter. No explanation has come on the record how the accused persons have received injuries. It is also apparent. that the incident must have taken place at the house of accused Dilawar for the simple reason that it is nobody's case that in the alleged incident outside the house of Ghullam Kadir Bhutto Mst. Shaharbano had taken any part. In these circumstances, it is obviously certain that place of incident was the house of accused Dilawar and not outside the house of Ghullam Kadir Bhutto. It appears that complainant had made an effort firstly to show that the incident had taken place inside the house of Ghullam Kadir Bhutto as mentioned by him in the F.I.R. Subsequently, he changed the place of incident by stating that occurrence took place outside the house of Ghullam Kadir Bhutto, the other three eye-witnesses also tried to support him. In doing so they lost sight of the fact that the factum of injuries on Mst. Shaharbano remained unexplained. In these circumstances, I have no doubt in my mind that the incident took place at the house of accused Dilawar. Since the most material aspect of the case, that is place of Wardat was deliberately shifted by eye-witnesses therefore it is obvious that witnesses are not speaking truth and as such their evidence becomes suspect and cannot be relied upon implicitly. It may also be pointed out that the complainant party J are accused in the counter-case. In the above circumstances, the position which emerges is that it was the complainant party who was fully armed and had gone to the house of accused Dilawar. What actually transpired between the two parties at that particular point of time cannot be ascertained, but the thing which is clear is that both the parties had caused injuries to each other. However, this certainly cannot be termed to be a free fight. In a free fight both parties come prepared for a trial of strength and each participant is responsible for his own action and there is no question of any right of self-defence and in such cases section 34, P.P.C. is not applicable. But the learned trial Judge has erroneously come to the conclusion that it was a case of free fight and therefore the conviction of the appellants under section 304, Part II read with section 34, P.P.C. was not warranted. The finding of the learned trial Judge that it was a case of free fight was erroneous. The learned trial Judge lost sight of the fact that it was the complainant party who armed themselves and went to the house of accused Dilawar for the purpose of bringing back Mst. Shaharbano or her daughter. It appears that it was the intention of the complainant party to bring back the minor daughter of deceased Wahid Bux who was in the custody of Mst. Shaharbano. This has been established by the fact that a suggestion in this regard was made to the complainant's father Muhammad Mithal that while Mst. Shaharbano was in the hospital, they have taken away her daughter. This suggestion has been denied, but Muhammad Mithal has admitted that the minor daughter of Mst. Shaharbano was with them. It will thus appear that all along the intention of the complainant party was to secure the custody of the minor daughter of deceased Wahid Bux. In the circumstances the motive attributed to the accused that they were annoyed with the deceased on account of his ill-behaviour with Mst. Shaharbano appears to be managed affair. The fact that the complainant party was armed and had gone to the house of accused Dilawar, is also established by the fact that four persons from the side of accused have received injuries. They are appellants Ghullam Kadir Bhutto, Kadir Bux and Imam Bux so also Mst. Shaharbano. On the side of the complainant party, complainant Abdul Jabbar, his brother Abdul Hameed and deceased Wahid Bux had received injuries. The factum of injuries on the accused had been suppressed by the complainant party, but in the cross examination P.W. Abdul Hameed has admitted that the accused had also received injuries so also Mst. Shaharbano. It may be mentioned that it is not the prosecution case that the complainant party had caused any injury to any of the accused. However, since 4 persons from the side of accused have received injuries which are not explained, therefore, the incident did not take place in the manner as alleged by the prosecution.. It may be mentioned that if the incident had taken place outside the house of Ghullam Kadir Bhutto as alleged by the prosecution, in that event, blood-stains at several places on the ground would have been detected by the police as in all seven persons from both sides were injured. In the present case, the Investigating Officer could only detect a few spots of blood outside the house of Ghullam Kadir Bhutto. This could be due to the reason that the blood from the wounds of the injured witnesses may have fallen on the ground while passing from there. In any case, the Investigating Officer did not bother to inspect the place at the house of accused Dilawar, nor did he take the trouble to find out how Mst. Shaharbano and the other three injured accused had received the injuries. In these circumstances it will be wrong to say that it was a case of free fight. That facts and the circumstances of the case suggest that it was the complainant party who went fully armed to the house of accused Dilawar for the purpose of taking the custody of the minor daughter of deceased Wahid Bux, if necessary by force. Otherwise the complainant party would not have gone armed. It is also apparent that the accused were not prepared to hand over the custody of the said minor, therefore, the complainant party used force I, and thus initiated the attack causing injury on the arm of Mst. Shaharbano. As j such if the accused have retaliated and caused injuries, they were well within their rights of private defence. One cannot lose sight of the fact that the accused were in their own house and it was the complainant party who had come to their house, and thereafter the incident has taken place. This obviously is the inevitable conclusion otherwise there is no other explanation how Mst. Shaharbano and the three accused have received the injuries. In the circumstances of the case, I am satisfied that the complainant party was the aggressor and they had launched the initial attack. Looking to the injuries caused to the accused persons, I am of the view that the appellants were entitled to the exercise of right of self-defence. In the above circumstances, the case of the appellants is covered by the benefit of the exception laid down in section 100, P.P.C. The result is, that this appeal is allowed and the conviction of the appellants is hereby set aside. The appellants are on bail, their bail bonds stand discharged. N.H.Q./I-230/K Appeal allowed.