P L D 1967 Supreme Court 16 (PLP)

CORNELIUS, C. J.‑A trial of fourteen persons variously charged under sections 302, 323, 324 and 326, P. P. C., all being charged also under section ' 148, P. P. C., has, through the process of conviction by a Sessions Court and appeal to the High Court, noon been resolved into a question of the correctness of the convictions under section 304, Part II, P. P. C., read with section 34, P. P. C., of only two of these persons, viz., Taleb and Siddique as maintained by the High Court, for having killed one Akram with blows of lathis, such action being held in excess of .e right they possessed, of the defence of their property, namely; fishery. On being taken through the record, with the aid of Mr P. C. Bose, for the appellants and Mr. T. H. Khan, appearing for the State, we find that the evidence is clearly sufficient. for holding that these two persons caused the death of Akram. At the post‑mortem examination of Akram's body, only two external injuries were found, viz., two lacerated wounds on the head, which could well be the result of two lathi blows. They were on the frontal region and on the vertex, i.e. the top of the head, Akram was examined by another doctor while he was still alive but unconscious and only one external injury was noted, viz. the lacerated wound on the frontal region of the head. In the initial report, made by an eye‑witness Abdul Majid '. W. 5, a detailed description of the attack on Akram was given, the following terms: "Talebor struck Akram Khan on the neck with the laths that was in his hand. Akram fell down there. Accused Siddique struck Akram Khan with laths that was in his hand. Accused Quddus, with dao that was in his hand, struck Akram Khan on the head and caused grievous injury. Accused Nayeb Ali caused injuries on the different parts of the body of Akram Khan by beating with the lathi that was in his hand." The whole of this account is rendered doubtful by the fact that (a) both of the wounds on Akram's head were in all probability struck while he was standing (b) there was no mark of injury on .ifs neck (c) there was no cut wound on the head, such as would be caused by a dao and (d) there was no mark of injury anywhere on his body, except on the front and the top of his head, In the evidence of three of the eye‑witnesses who deposed to he attack on 'Akram, viz. Jamsher Ali P. W. 2, Abdul Kader P. W. 4 and Muzaffar Khan P. W. 6, two more assailants of lkram were added, namely, Ismail and Farzand, who were said to have joined Nayeb in the later stage of the attack. Abdul Majid, the informant, as P., W. 5, refrained from adding these names, but maintained that the first blow was struck by Taleb, which fell, he said, on the shoulder, whereupon Akram tell down. Jamsher Ali said this first blow fell on the neck, and Akram did not fall down until he received the second blow from Siddique. All were agreed that Quddus gave a dao blow and three of them said this fell on Akram's head. This account s entirely at variance with the injuries actually found on Akram's person. It was only in the cross‑examination of Muzaffar Khan P W 6 that an account was given which could conceivably support the selection by the High Court of Taleb and Siddique as the men who struck Akram on the head. It was contained in the following words, viz.:‑ "Taleb gave a blow on the scalp of Akram Khan. Siddique also struck on the scalp. Akram fell down after beating by Taleb and Siddique." Muzaffar Khan also claimed that though Akram was a cousin of his, the accused persons were also related to him. In accepting this evidence, however, the High Court ignored the fact that Muzaffar Khan had distinctly charged Quddus with giving a dao blow on the back of Akram's head and also charged Nayeb, Farzand and Ismail with giving him lathi blows and that these statements were clearly false. , Each of the eye‑witnesses.? And the initial report, gave an account of the attack on Akram which was exaggerated and quite inconsistent with the external injuries found on his body. It is riot in accordance with recognised principles applicable to the appreciation of such evidence to ignore the basic falsities that appear, and to accept only a part of the statement of one witness, itself made in cross‑examination and constituting a major departure from the account given of the whole occurrence by the same witness, for the purpose of holding a tart of the charges proved against only one or two of a large number of accused persons. On the state of the evidence, it could not be said, with any confidence, that the two injuries of Akram were not the result of lathi blows delivered by alleged assailants other than the present appellants. That is a sufficient basis for giving to Taleb and Siddique, the present appellants, the benefit of a patent doubt‑appearing on the face of the evidence, in respect of the charge of having caused the death of Akram. We accordingly allow this appeal and acquit the appellants. A. H. ?????????????????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.