1984 P Cr (PLP)

hostile; (ii) the motive furnished by Dullah Masih P. W. 7 and Yaqub Masih P. W. 9; (iii) the various recoveries proved by Ashiq Masih P. W. 8, Yaqub Masih P. W. 9 and Muhammad Sharif S. H. O. (P. W.

121. The recoveries as to crime weapons were supported by the S.H.O. only. (iv) the medical evidence given by Mr. Nazir Ahmad Anwar (P. W. 11).

9. The appellants at the trial when examined under section 342, Cr. P. C. refuted the allegations levelled against them. Nazar Masih appellant however, stated: - "On 15th July, 1980 1 was at my home with Lal Masih, Hadayat Masib, Taj Masih etc. and other members of my family. Lai Masih went to see outside and after a few minutes I heard the cries of my father, Lal Masih. I rushed at once outside and saw that Yaqub Masih was armed with a bahi and Faqir Masih was armed with a sairu and they were inflicting injuries to my father. On seeing me they attacked upon me as well. My father was bleeding from the head. Yaqub Masih and Faqir Masih also inflicted injuries on my head with their respective weapons. I started grappling with Faqir Masih deceased in order to snatch away the crime weapon. In this grappling Yaqub Masih P. W. was beating us and caused injuries hitting me and the deceased as well. My '' father tried to escape from Yaqub Masih. I at once sat down and `, the injury which Yaqub Masih tried to inflict upon me bet on the head of the deceased. Taj Masih and Hadayat Masih also tried to rescue us but Yaqub Masih P. W. threatened them and did not allow them to come near. The cause of dispute is that the dirty water of our house due to over flow of the drain used to spread outside the door of the complainant." Lal Masib appellant similarly stated: -- "For the reasons explained by my son, Nazar Masih. Alongwith that statement I may further add that after this occurrence I went to the Police Station alongwith Nazar Masih to lodge the report, but police refused to register the case unless we were medically examined, but the medical authorities refused to medically examine us before registration of the case. We remained in the hospital when we were admitted in the hospital on 16th July, 1980 and afterwards both of us were examined. The complainant in order to save his son-in-law Yaqub Masih has falsely implicated us in this case." They produced D. W. 1 Dr. Muhammad Rafiq and Taj Masih D. W. 2 in their defence. Dr. Muhammad Rafiq stated that on 16th July, 1980 at 11-30 a.m. be examined Nazar Masih appellant and found the following injuries on his person: - (1) A stitched lacerated wound 6 c. m. x 1/4 c. m. x on the right and interior side of the head 10 c. m. from the right ear. (2) A contusion 3 c. m. x 1 c. m. on the top of the left shoulder. (3) A swelling 9 c. m. x 3 c. m. on the back and middle part of right leg. All the injuries were caused with a blunt weapon and probable dura tion was 24 hours. Similarly on the same day at 11-45 a.m, he examined Lai Masih appellant and found the following injuries on his person: - (1) A stitched lacerated wound 6 c. m. X 114 c. m. x on the upper and left side of the head 11 c. m. from the left ear. (2) A contusion 16 c. m. x 11 c. m. on the back of the left shoulder joint. There was marked swelling around the contusion. (3) A painful swelling 14 c. m. x 12 c. m. around the right ankle joint. Injury No. 2 was grievous whereas injuries Nos. 1 and 4 were simple. All the injuries were caused with a bluns weapon and propable duration was within about 24 hours. Taj Masih D. W. 2 stated that on 15th July, 1980 at about 6 p.m. he was present in the house of the appellants. Some body knocked at the door from outside whereupon Lai Masih appellant went out. After some time they heard the cries of Lai Masih appellant and then Nazar Masih rushed out. They also followed him. They saw that Lai Masih was laying in an injured condition and was bleeding from the head. At that time Faqir Masih deceased was holding a sairoo whereas Yaqub Masib P. W. was holding a bahi. Nazar Mashi tried to snatch away the sairoo from Faqir Masih deceased. In that attempt Yaqub Masih inflicted a blow with his weapon which partly bit Nazar Masih appellant and partly Faqir Masih deceased. Yaqub Masih again inflicted a blow whereupon Lai Masih appellant warned Nazar Masih appellant who sat down and that blow-fell upon the head of deceased. The mother of the deceased Mst. Chiraghan was making hue and cry that Yaqub had murdered her son.

10. The learned Additional Sessions Judge based the conviction relying upon the motive, the ocular account of the occurrence and the recoveries. He, however, rejected the defence plea of the appellant observing "But in the present case it is interesting to note that the accused had taken different sorts of defence during cross-examination. For this I will refer to the cross-examination of the complainant in which the first defence by the accused is that the injured had fallen on the ground from the cot and he had received head injury due to this fall. Their second defence is that the deceased had died due to the injury inflicted by Yaqoob Masih P. W. and their third defence during cross-examination is that the injured received these head injuries due to brick batting. So, this contradictory and unnatural defence is not sufficient to create any confidence in the mind of the Court .................................................................. It is correct that the accused had also received injuries in that scuffle and this fact is admitted by P. W. 9 but they have failed to prove that it was the complainant party who was the aggressor and neither they have pleaded the plea of self-defence either in cross examination or in their statements or in their arguments. For these reasons, I do not find any force in the defence version which is hereby discarded."

11. The learned counsel for the appellants has contended that there is delay of one day in the lodging of the F. I. R. which was done so after the death of the deceased. There is no independent witness to support the prosecution version. Both the eye-witnesses P. W. 7 and P. W. 9 are closely related to the deceased. The only independent witness is Ashiq Masih P. W. 8 who has not supported the prosecution. It is in the statements of P. W. 7 and P. W. 9 that several other persons witnessed the occurrence but none of them has been produced. The appellants had injuries on their persons and one of the injuries on the person of Lai Masih appellant was declared as grievous. These injuries were suppressed at the time of lodging the F.

1. R. The appellants due to the injuries got themselves admitted in the hospital of their own from where they were arrested. The plea of the appellants is that the deceased and Yaqoob P. W. were the aggressors and caused the injuries to the appellants. The deceased and Yaqoob P. W. raised lulkaras outside the house of the appellants. Lai Masih appellant came out inquisitive, on which the deceased started beating him, whereupon he fell down, by that time Nazar Masih appellant came out. Probably when Nazir Masih appellant came out at the cries of his father lie was carrying some danda and caused injuries to the deceased, whereafter he was beaten by Yaqoob P. W. and received injuries as such. Nazar Masih appellant had acted in the defence of his father. The injuries to the appellants have been admitted by the complainant in his cross-examination. The recoveries at the instance of the appellants have not been proved since not supported by a recovery witness. Apart from this it is a case of joint recovery which loses its significance as such. In the circumstances of this case the appellants are entitled to be acquitted. The learned counsel for the appel lants has relied upon Sajdar Ali v. The Crown (P LD 1953 F C 93 ). In this case it has been observed that the principles laid down in Woolmtngton's case are applicable with full force in Pakistan in spite of the provisions of section 105 of the Evidence Act. "...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. 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 circum stances, the accused is entitled to the benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt." Muhammad Aslam alias Aslam v. The Crown (P L D 1953 F C 115): The question answered in this case was as to the correct mode of treatment of a circum stantial plea in self-defence raised in a murder case having regard to the onus of proof resting on the prosecution to establish its case and the burden lying upon the accused to prove his special pleading. It was observed. "The essential consideration underlying the conclusion is that the accused person cannot be regarded as having acted in the ordinary case (to which category the present case belongs) with more than one intention. Either he must be deemed to have acted with the intention to save himself, or with a criminal intention such as consti tutes murder. For the determination of this question it is necessary that the Court should take into account fully all the facts and circumstances appearing on the entire record, including such portion of the evidence led for the defence as the Court finds worthy of belief, for even though such evidence may be insufficient to establish the special pleading, it cannot be without effect in relation to the opposing evidence led for the prosecution, since ex hypothesi, it relates to the same incident. The effect, in such a case, may be to create the state of reasonable doubt indicated above, of which the Court is bound to give the benefit to the accused." Shamir alias Shamla v. The State (P L D 1958 S C (Pak.) 242): In this case it was held that despite the facts that no evidence had been led by the accused to prove the plea of self-defence, yet, if the plea received support to the extent of being reasonably possible from the circumstances proved by the prosecution evidence the accused was entitled to acquittal Muhammad Abdullah v. Muhammad Safdar and another (1973 S C M R 26). In this case, the versions under sec tion 302 and section 100, P. P. C. as to the right of private defence, both were found as unreliable and in that situation the August Court observed, "In our opinion, in a case of this nature, where neither the prosecution nor the defence comes out with the true version and the Court is called upon to sift the evidence in order to discover as to what portion of it can be accepted and what has to be rejected, it is always a delicate and a difficult task. If the discrepancies are of such a serious nature that no reliance can be placed on the prosecution story at all then the benefit of that will necessarily have to go to the accused. Unless there is some independent and reliabale evidence bringing home the guilt to one or the other of the accused persons, the prosecution cannot succeed." The State v. Khair-ur-Rehman (1). In this case it has been held that when a witness tells a lie on an-important point which has a material bearing on the culpability of an accused, his evidence does not deserve credence. In order to be believed, a witness must come to Court with clean hands, and if he is found to have suppressed a material fact which goes in favour of the accused, his evidence must be rejected. Further, it is held that if an accused is found to have been injured in a fight with the deceased, it will be permissible to presume that it was the deceased who injured him, unless there is clear evidence or circumstance to the contrary, and if it is doubtful as to which of them attacked first, the benefit of doubt will go to the accused. Jhande and another v. The State (P L D 1960 (W. P.) Pesh. 50), in this case the accused was acquitted affording him the benefit of doubt because the F. I. R. was belated by one day for which no explanation had been given. The evidence of the complainant and the eye-witnesses had no corrobora tion from any other evidence on the record.

12. The learned counsel for the State while resisting the appeal has submitted that the delay of eighteen hours was caused because the com plainant was anxious to save the life of his only son when he attended in the hospital the delay as such stands explained. The complainant and Yaqoob Masih P. W. had no previous enmity with the appellants so had no motive to involve them falsely. The defence has not challenged the presence of these witnesses at the spot. As to that the other persons who were present there had not been produced, it is sufficient to say that in such cases the people go reluctant as to volunteer themselves as witnesses and to incur enmity on that account for the future. The appellants suffered injuries which show that they participated in the occurrence moreso according to their own statements. The foul water pit was in the ahata of Dullah Masih, the complainant where both the appellants came together armed with sairoo and bahi and that was indication of their intention. The occurrence as such was pre-planned and could be termed as a result of a concerted action. The motive stood established which was not challenged in cross-examination by the appellants. The recoveries and the medical evidence lent corroboration to the ocular account as to the incident.

13. It has been correctly pointed out by the learned counsel for the appellants that the prosecution deliberately suppressed the injuries which the appellants suffered till the complainant as P. W. 7 was cross-examined whereby he stated that in that scuffle Faqir Masih (the deceased) also gave beating to the accused and that was correct that the accused also received injuries. .......... The deceased snatched the crime weapon from the accused and gave beating to them." 1969 P Cr. L J 551 Yaqoob Masih P. W. 9 the son-in-law of the complainant in his cross-examination stated that when the accused grappled with the deceased he rushed from the place where he was sitting but before he reached near them the appellants had inflicted injuries and had started running back. In that grappling Faqir Masih also snatched crime weapon from the accused and gave beating to them. Muhammad Sharif, Police Inspector P. W. 12 stated that he arrested the accused on 19th July, 1980 when they were admitted in the Civil Hospital Sheikhupura. That was brought to his notice during the investigation that the accused had received injuries in that fight. They were discharged from the hospital on 20th July, 1980. They had received those injuries at the hands of the deceased. These admissions made in the cross-examination have their impact upon the narration as to the incident by the eye-witnesses. Prom these statements it can be inferred that a fight necessarily took place between the deceased might be accompanied by some other and the appellants. Now as to the circumstances in which it took place it is accessary to consider the versions on both of the sides, for which a reference ]is necessary to the statements of the appellants. The appellants stated when examined under section 342, Cr. P. C. that Lai Masih appellant had received injuries first from Yaqoob Masih P. W. and the deceased who were armed with bahi and sairoo attracted upon whose cries Nazar Masih appellant came out of the house where Yaqoob Masih and the deceased also inflicted injuries on his head. Nazar Masih appellant started grappling with Faqir Masih (the deceased) for snatchine the crime weapon, during which grappling Yaqoob Masih P. W. gave blows which hit him and the deceased and the blow which was aimed at Nazar Masih appellant by Yaqoob bit the head of the deceased because he had during that sat down. Now in order to ascertain that who was the aggressor the picture remains as bleak as it is. The injuries being the common element, but both the sides have not come out with a correct version as to the manner of fight, during which the deceased and the appellants received the injuries and there is a complete absence of indepen dent evidence. If the position of the prosecution is adhered to then it cannot be entertained that the deceased having received the injuries was in a position to snatch away the crime weapon from any of the appellants and give beating to two of them in view of the medical evidence as to the loss which the deceased suffered under the impact of injuries nor the deceased could cause in all the probabilities injuries to two persons single handed. Therefore, if he is charged of having caused injuries to the appel lants (or any of the appellants) as admitted by the complainant then he could do so only before he received the injuries. As to the position of defence it cannot be believed that the deceased received his head injuries because Yaqoob Masih P. W. gave blows during the grappling which hit Nazar Masih appellant and the deceased and finally when he missed his aim. From the seat of the injuries and the resultant loss to the deceased it can positively be said that the injuries were caused to him as aimed at him. If the case is construed simplicitor from the injuries then it gives an appearance of a fight in which both the parties participated at least two on each side by using the weapons which could be picked up without any difficulty but in the absence of any other evidence to hold it as such is nothing but to speculate. From the case of the prosecution and the defence viewed in juxtaposition it is doubtful as to which side attacked first and which ref-acted in defence. The benefit of doubt is given to the appellants in the light of the decisions relied upon by the learned counsel for the appellants, Resultantly the appeal is accepted and the judgment of the learned Additional Sessions Judge, Sheikhupura, dated 8th December. 1981 is set aside being a judgment in not viewing the case in its correct perspective with due regard to all the aspects. The appellants are acquitted. They shall be released forthwith if not required in any other case. M. A. K. Appeal accepted,