1987 PLP 558 (SCMR)

3.Being aggrieved by their convictions and sentences awarded to them the petitioners filed appeal before the Lahore High Court which was dismissed by a learned Single Judge vide judgment, dated 15th July, 1986. Hence this petition.

4. The case of the prosecution mainly rests on the ocular testimony furnished by Karam Elahi complainant (P.W. 10), Mir Baz, injured (P.W. 11), Fazal Hussain injured (P.W. 13), and Sher Baz injured (P.W. 14). The rest of the injured witnesses were not produced. The motive for the occurrence was also relied on as a piece of evidence through these witnesses. It was alleged that Nawab Khan had left his cattle to graze in the wheat field of Ghulam Haider. The latter prevented Nawab Khan from doing so which led to exchange of hot words and abuses between them. As a result of this altercation the petitioners are said to have formed themselves into an unlawful assembly and assaulted the complainant party in the prosecution of the common object in the Haveli of Muhammad Sadiq deceased. The prosecution witnesses are admittedly related inter se. So are the accused persons (petitioners).

5. All the petitioners in their statement under section 342, Cr.P.C, denied the prosecution case and their participation except the six injured accused. These injured accused gave their own version of the occurrence. According to them the complainant party were the aggressors. They stated that the injured accused were present in the Haveli of Nawab Khan and were getting ready to go out for harvesting when the "complainant party launched an attack and got injuries at the hands of the said accused who acted in their self defence." According to them the three ladies came during the occurrence and got hurt in the melee. The injured accused pleaded the right of self defence and also denied the motive alleged by the prosecution. According to them there was estrangement between the complainant party and the accused over the abduction of daughter of Sakindar Khan which occurred about a year prior to the occurrence. A case was sent up in Court in connection with the aforesaid abduction against some of the petitioners and others as a result of which one Muhammad Mushtaq was convicted. It was on this account that Ghulam Haider from the complainant side prevented the cattle of Nawab Khan from taking water from the pond. In this dispute Haji Jaffar had intervened but the complainant party nursed grievance against the petitioners as a result of which they trespassed into his Haveli and inflicted injuries to the injured petitioners. On the version of the accused the police took no action and, therefore, direct complaint was filed by Banaras Khan a relative of the petitioners in the Court of Magistrate which was still pending.

6. In the final analysis, as observed by the High Court the complainant side received 44 injuries while the petitioners' side received 20 injuries. 7.The High Court was of the opinion that in view of the statement of the accused the occurrence was admitted and the only question was whether the plea of the accused that they inflicted the injuries in exercise of the right of self defence was sustainable on the evidence led at the trial. The learned Judge in the High Court then observed as under:‑‑ "I have carefully examined the ocular testimony and also the other facts of the case. In my view, the defence plea examined in juxtaposition with the prosecution story, does not reflect upon it. The prosecution story is convincing rather than the defence plea. The examination of the defence plea also requires to ascertain the place of occurrence. Admittedly the blood‑stained earth was collected from the Haveli of Muhammad Sadiq deceased side which leaves no room but doubt, that the occurrence took place in the house of the deceased. It is, thus, obvious, that the appellants side was aggressor and, therefore, in such circumstances the plea of exercise of the right of self defence does not at all arise. The complainant side received 44 injuries out of which 12 injuries were grievous. The appellants side received 20 injuries out of which six were grievous. The number and the nature of the injuries received by the complainant side also corroborates the prosecution version." It is contended by the learned counsel for the petitioners that the Courts below have erred in holding that all the accused persons admitted the occurrence. He submitted that only the injured persons had admitted he factum of the occurrence and gave their own version of the same. The rest of the petitioners had denied their presence but this fact was wholly overlooked. It is further urged that no distinction between the case of non‑injured accused and injured accused was made by the Courts below, with the result that the rest of the petitioners were convicted on the basis of evidence as against the injured accused and their case was not separately dealt with. Learned counsel strongly relied upon the impression created by the eye‑witnesses on the trial Court that they were deposing a tutored version of the prosecution case. He invited our attention to the following observations by the trial Court: "Here, I must mention that all the alleged eye‑witnesses of the occurrence had given a photographic narration of injuries caused by each accused. This was not possible. None of the P.Ws who was himself under an attack could have been so unconcerned with the attack on himself to see as to who was causing injuries to whom at that time. I am absolutely convinced that narration of sequence of giving of injuries as come on record through statements of eye‑witnesses was result of tutoring."

8. The submission was that having taken this view the Court ought to have weighed the testimony of the prosecution witnesses with care, as in such cases there is a tendency to rope in as many persons as possible from the opposite side. The very fact that a number of persons had gathered at the residence of the deceased when there was no plausible explanation for their presence (no sickle was recovered by the police) gave support to the defence plea that the complainant side were the aggressor. The honesty of the investigating agency was also criticised, inasmuch as the accused who were seriously injured were immediately available in the hospital where the Investigating Officer visited soon after the occurrence and was informed of the defence version yet he did not inspect the Haveli of petitioner Nawab Khan.

9. In view of the aforesaid features of the prosecution case learned counsel vehemently contended that prosecution had failed to prove any pre‑concert or common object and the injured accused have succeeded in raising reasonable doubt that they acted in self defence.

10. After hearing the learned counsel we feel that the arguments advanced in support of the petition raise substantial questions for a reappraisal of the evidence in order to determine whether the case has been decided in accordance with the principles laid down by this Court for dispensation of justice in criminal cases. We, therefore, grant leave to appeal.

11. Learned counsel requests for suspension of sentences and grant of bail to 10 of the petitioners who have not been attributed any injuries to the deceased by the prosecution. Issued notice to A.‑G. (Punjab) for tomorrow. S.Q./N‑1/S Leave granted