P L D 1967 Supreme Court 356 (PLP)

Not a word is contained in this report as to the injuries sustained by Sadiq and Khan Bahadur. A cross‑report was made at the Thana by Sadiq soon after Hassan Din's report had been recorded, and the Thanedar took the proper step of having both Sadiq and Khan Baha iur medically examined. It appears that Sadiq's report gave a totally different version of the occurrence, which may be gathered from the statements made at their trial by Sadiq and Khan Bahadur. Sadiq said that at the time of the occurrence, he was in his cattle shed and the outcry of his brother attracted him to the spot. This spot as shown by a bloodstain is in an open field belonging to Hassan Din, about 80 paces (200 feet) from Hassan Din's house and some 150 paces, i.e. 375 feet from the cattle shed and house of the accused persons. He said he found Muhammad Din lying on the ground as well as his brother Khan Bahadur who was injured. Ghulam Farid was also there carrying a stick, and he gave a blow to Sadiq which resulted in the injury already mentioned. Khan Bahadur's statement was that in the evening he was passing at a short distance from the house of Hassan Din, when he was attacked by Muhammad Din with a spear, Hassan Din, Ghulam Farid and Abdul Khaliq with sticks, and Taj Muhammad a relative of Hassan Din with an axe. They came at him from behind some bushes. He ran for safety crying for help Taj Muhammad overtook him and gave him a blow on the head with an axe and he fell down. His alarm attracted his brother Sadiq, who was hit by Farid when he came to the spot. This account fails to explain how, as stated by Sadiq, Muhammad Din came to be lying injured at the same place as Khan Bahadur. No explanation was offered by either of the accused persons why an attack was made an Khan Bahadur at all. In his evidence, Hassan Din somewhat altered his story regarding Sadiq's relations with Mst. Zinat. He said that Sadiq had been making advances to her, which she did not like, and on the day before the occurrence, he had complained about it to Muhammad Din, who had at once told Sadiq to stop coming to their well. However, with reference to Sadiq's visit to Muhammad Din and Mubariz Khan's place, Hassan Din took the matter somewhat further than the version in the initial report. There, he had merely said that Sadiq meeting Muhammad Din at Mubariz Khan's place had told him that he had visited his well several times that day in order to see him. No doubt this being in defiance of Muhammad Din's order that be should not visit the well, could have been a source of annoyance to Muhammad Din. But the version in the initial report does not give the impression that Sadiq went to Muhammad Din in order to create a fight. At the trial, however, Hassan Din's statement was put in these words, namely, that "Sadiq accused had made an attempt to waylay Muhammad Din deceased at degar time on the day of the occurrence in the house of P. W. Mubariz". Mubariz was examined as P. W.

8. He is a blind man, and his statement was that he was told by some boys that Sadiq had come to attack Muhammad Din, who was working on the construction of a wall in his house. The boys took Mubariz Khan to Sadiq, who was still there, and on being questioned Sadiq told Mubariz Khan (in the words of the Sessions Judge taking down his evidence) "that he had tried to waylay Muhammad Din deceased in his field, but could not find him". Mubariz Khan sent away Sadiq from his house. In cross‑examination, he went a little further in saying that because Muhammad Din was on top of a wall, Sadiq could not grapple with him. The elements of exaggeration clearly appear in this statement, and it is probably safest to rely upon the simple statement contained in the initial report that Sadiq had tried to meet Muhammad Din at the house of Mubariz Khan. He had a very good occasion to want to see him. He would naturally resent being ordered to stop his visits to the house of Hassan Din, not by the latter, who was the master of the house, but by a mere boy of 19, somewhat younger than himself. He had been accepted as a visitor at the house for some time, and was entitled to an explanation, for Hassan Din admitted that he had not said anything on the subject to Sadiq's relatives. It is evident that the statements made by the accused persons in the case were not properly speaking pleas in defence to the e charges against them. They were on the other hand allegations constituting charges against persons belonging to the com plainant's side. In the same way as the complainants had failed to give any explanation for the injuries caused to Sadiq and Khan Bahadur, so Sadiq and Khan Bahadur in their allega tions which were made the basis of the cross‑case, gave no explanation for the injuries sustained by Muhammad Din and Ghulam Farid. The learned Judges of the High Court have treated the. statements of the accused persons at the trial as if they were pleas in defence to the charges levied against them. Thus, the judgment refers to number of decisions given by this Court in cases involving examination of pleas in self‑defence. One of these is the case of Shamir v. The State (P L D 1958 S C 242) which followed an earlier judgment of the Federal Court delivered in the case of Safdar Ali v. The Crown (P h. D 1953 F C 93). In the last mentioned case, the facts were that being charged with the murder of the deceased, by blows of a knife struck at the latter's stomach, Safdar Ali pleaded that the deceased had first attacked him with a knife causing a deep gash in his thigh as a result of which he almost bled to death, and following this blow the deceased had knocked him down, and was on top of him, when Safdar Ali used a knife from below to strike the deceased in the stomach in order to save his life. Safdar Ali's case was that there was no witness to the occurrence as the two were alone at the time, and the decision given by the Federal Court was that it was an erroneous mode of reaching a conclusion in the case to deal with the prosecution and defence cases as if they were totally distinct from each other, and to consider whether one or the other could be either wholly accepted or wholly rejected. The duty was to place the defence plea, whether supported by direct evidence or not (apart from the statement of the accused person), in juxtaposition to the prosecution case and then to examine the two cases side by side in order to reach a decision. If having regard to the evidence and all the circumstances, the plea of the accused is proved to be reasonably possible, such a finding must react on the prosecution case by rendering it subject to reasonable doubt, and the accused would be entitled to acquittal. In the case of Shamir (above), this principle was applied to the estimation of the plea of self‑defence raised by the defence. Another judgment of the Supreme Court o nn which the learned Judges of the High Court have purported to rely is the case of Ali Zaman v. The State (P L D 1963 S C 152) where it was held that in the absence of proof of aggression by the complainant party, a plea of self defence is not available, and "ordinarily cannot be thought to be established by the mere existence of slight injuries on the persons of the accused". The present is not a case of "slight injuries" for both Sadiq as well as Khan Bahadur sustained grievous hurt, and moreover, the pleas which these two men raised were not pleas in self‑defence. The case here is not one of factual pleas being raised in defence to a charge, and none of the judgments of this Court that have been cited by the learned Judges is at all relevant to this case. The misconception appears clearly from the following passage in their judgment:‑ "It is true, as argued by the learned counsel for the appellants, that an accused cannot be compelled to make a statement or tell the truth, but when he makes a statement, every word of it can be read in evidence subject to the common test as to how far it is in accord with the evidence of the case and to what extent the right of private defence, when it is claimed, finds support from the attending circumstances." No case of self‑defence was set up here. The statement of Khan Bahadur, accused, sets out the prosecution version in the case filed by the accused. While that case would, under the law fail if the prosecution version were not established beyond reasonable doubt, it could not be said in this case, that the charges would succeed if the accused persons failed to establish the truth of their account of the occurrence, as set forth in their own complaint. As has been seen, there was suppression of plain facts in that case, viz., the injuries on the complainants side, and moreover, the simple fact that both Muhammad Din and Khan Bahadur received their injuries at the same time and at the same place, which is admitted by Sadiq accused, is avoided in Khan Bahadur's version. The correct principle is that falsities appearing in the statements of accused persons do not bar the allowance to them of an advantage that the law permits, on the C basis of facts that are found on a consideration of all the evidence and circumstances that can be accepted in the case. By relying on what may be described, speaking with respect, as misapplication of principles relating to pleas of a totally different kind, the learned Judges in the High Court placed reliance on such circumstances as the following, for coming to the conclusion that there was aggression on the part of the accused persons:‑‑ (1) that the scene of the occurrence was closer to the house of the deceased than to that of the accused persons; (2) that Khan Bahadur's story of how he happened to be at that place was not to be believed since he could have taken another and shorter route, and again his running into the field of Hassan Din rather than towards his own house was not to be believed; (3) Sadiq's statement before the committing Court was that Khan Bahadur was attacked and injured to his presence, whereas at the trial he said that on reaching the spot, he found both Muhammad Din and Khan Bahadur lying injured on the ground ; (4) "a paradoxical situation" resulted from this inconsistency and Sadiq had made "oscillating statements" which were "in conflict with that of his co‑accused" ; and (5) the evidence of Mubariz showed "the aggressive and evil designs of Sadiq", while on the contrary the deceased "had in fact swallowed the insult and was engaged in his daily pursuits". The grounds enumerated above may be briefly dealt with. The distance of the spot from Hassan Din's house, viz., about 200 feet, belies the initial report of Hassan Din, which made it appear that the clash took place just outside his house. More over, this distance being considerable, it is immaterial that the accused persons' house was somewhat further away. The scene of the clash was in that aspect, neutral ground. The visible defects of falsity and inconsistency in the statements of the accused persons cannot be relied upon, as furnishing proof in support of the prosecution case, whose acceptance must rest on a proper appreciation of the facts and circumstances proved As for the evidence of Mubariz, which has already been con sidered above, the learned Judges themselves observed that his statement might well have mere "padding". They placed upon the accused the obligation of giving an explanation how they happened to be in Hassan Din's field, where the clash occurred, but as the field was bare at the time, and there was no dispute as to its possession, this consideration was strictly irrelevant. It is evident that the case has not been appreciated in the manner appropriate to the facts that are sufficiently established on the record. The insult had been offered to Sadiq, not to Muhammad Din, so that the latter had no insult to swallow. Sadiq's attempt to have the matter cleared up with Muhammad Din was entirely natural for a young man, who was for a time a welcome visitor in Hassan Din's house, and then had suddenly had told to stop coming, without being given any explanation. The evidence of Mubariz is obviously an exaggeration. There was enough material for a conflict between Sadiq and Muhammad Din, but Mubariz's statement which gives the impression that a certain physical circumstance alone prevented them from coming to blows is clearly a mere conjecture. Being blind, he was not in a position to observe the true attitudes of the two boys, and indeed if there bad been any apprehension of violence on that occasion, the expectation would be that some mention of it would be contained in the initial report of Hassan Din, where the meeting is actually mentioned, but in quite innocent terms. The conclusion of aggression from the fact of that meeting is clearly untenable. The physical facts that are of importance are firstly that the incident occurred towards the evening when these young men were free of their normal occupations, and thus could settle the difficult matter that had arisen between them, secondly, the meeting took place in the open at a considerable distance from Hassan Din's house, and thirdly, that as a result of this encounter between two men on each side, each man received a single blow. If the meeting had taken place in the vicinity of the house of either party, aggression by the other party might have been inferred. The story that Ghulam Farid was attracted to the spot from a neighbouring field or house is clearly not to be believed. There would be no occasion for giving him a blow merely because he came to the spot, as he had nothing to do with the earlier incident. It seems clear that all the four blows were struck almost simultaneously. Such a conclusion may be reached despite the fact that in the initial report Hassan Din made no mention of the injuries to the accused persons, and in his evidence, he went to the length of saying that after the attack on Muhammad Din and Ghulam Farid, both the accused persons "left the spot hale and hearty". Equally, the other eye‑witnesses Mst. Sufeda Jan and Mst. Zinat Jan, and Ghulam Farid and Muhammad Ismail said they left the spot unhurt. There is no difficulty in coming to the conclusion that they were attempting to make it appear that it was a purely one‑sided affair, in the same manner as the accused persons made it appear in their cross case that it was a one‑sided affair in which only they themselves were injured. It may be noted here that Mst. Zinat Jan and Ismail were not mentioned as eye‑witnesses in the initial report. In addition at the trial, one Sardar Muhammad was produced to say that he heard from Muhammad Din, who was lying injured that he had been speared by Sadiq, etc. It if evident that the complainant party did their utmost to make their case as strong as possible. On a proper appreciation of all the circumstances proved in this case, the conclusion which necessarily follows, and which is most consistent with the safe dispensation of justice is that there was a sharp and short clash between the two men on each side, in which each struck one blow with his weapon. The two sides were armed about equally heavily as the injuries show. This appears to have been the first occasion on which Sadiq could properly bring up with Muhammad Din the question why he had been forbidden to visit Hassan Din's house, and the conclusion may safely be reached that there was a quarrel between the parties, preceding the fight. Nothing that bad been proved to have happened previously could indicate that Sadiq was out for revenge, i.e. that the quarrel was a mere excuse for carrying out an intention to use violence. We are accordingly of the opinion that this is a case falling under Exception 1V to section 300, P. P. C. and we accordingly alter the conviction of Sadiq to section 304, Part I, P. P. C. and in view of the fact that he also received a previous injury, we reduce the sentence to five years' rigorous imprisonment. K. B. A. Appeal partly accepted.