P L D 1954 Sind 49 (PLP)

LARI, J.‑The appellant, Rajabali, who was mounted Head Constable Police, Bano along with 7 others namely Haji Haroon, Muhammad Umar, Abdul Rahim, Ghulam Muhammad, Muhammad Hassan Sumros, Ahmad Khan and Muhammad Yusuf mounted Constables of the Police Station Bano were committed to Sessions to attend their trial under sections 147, 148 and 302 P. P. C. read with sections 149 and 34 of the P. P. C. for committing murder of Dino deceased on 7th July, 1949 in prosecution of their common object and also in furtherance of the common intention of all. The prosecution case was that Muhammad Umar one of the accused lodged a report on 5th July, 1949 of theft of his buffaloes against Dino (deceased) Almani Yarn his uncle and Wali Muhammad Yarn's son at Bano Police Station. The appel lant in the company of his co‑accused Yusuf and Ahmed mounted constables as well as other accused proceeded to Almani's village on 7th July, 1949 to secure the stolen property and to arrest Dino (deceased) Yarn and Wali Muhammad, P. Ws Sattar Ali Shah D. W. 1, who was Head Constable, Bulri joined the appellant and his party on the way with a view to help them. The Police party case to Dino's water‑wheel called Dino, Yarn and Wali Muhammad and asked them to produce the stolen property. Dino (deceased) as well as Wali Muhammad and Yarn denied theft. The appellant wanted them to appear before the S. I. But Dino (deceased) Yar Muhammad and Wali Muhammad wanted that the matter must be decided on the basis of the Holy Quran. The appellant thereafter demanded a surety and Mohabbat, P. W. 4 came forward as a surety. Meanwhile Haroon, another co‑accused before the Sessions came with another batch of Sumros numbering about 50 to 100 and struck Dino. He incited Rajabali to shoot Dino saying that be had taken 1000 from him but he had not yet done the job. The appellant Rajabali thereafter fired at Dino and shot him dead. The party of the appellant took away the dead body to a place about 3 miles from the scene of the incident. Ghulam Muhammad, P. W. 7 wanted to prevent Rajabali and his party from taking away the dead body and threw himself on the body of Dino. Ghulam Muhammad thereupon was given lathi injuries. Yarn left for Hyderabad and gave an application on 8th July to the Collector to forward it to D. S. P Mst Bherai had followed the policeman while one of the accused Yusuf proceeded and lodged a report at Police Station Tando Muhammad Khan, Qurbanali was the S. I. Tando Muhammad Khan. He arrived at the vardat on 8th July on the basis of the report lodged by Yusuf. He recorded the report of lost. Bherai at the place of incident. It may be noted that according to the prosecution case S. I. Ghulam Qadir of Bano Police Station had arrived at the scene on the report lodged by accused Ahmed Khan and carried on the investigation. He had sent Dino's corpse to Tando Muhammad Khan Hospital and also Ghulam Muhammad injured. After usual investigation the 8 persons mentioned in the beginning of the judgment were challaned and subsequently committed to Sessions. The defence of Rajabali appellant was that be was in‑charge of Dino Police Station on 5th July, 1949. At evening time Umar Somro filed a report of theft of Bhung against Dino, Wali Muhammad and Yaru Almanis. He took up police constables Ahmad and Yusuf and proceeded for investigation. He inspected the site of the case in presence of Mashirs and made necessary inquiries on 5th and 6th July, 1949. On 7th July, 1949, he proceeded to the village of Almanis to secure property and arrest the accused. On the way Sattar Ali Shah Head Constable Bulri met him. He narrated the purpose of visit to him and requested him to join him in the investigation of the theft case. He learnt from Sattar Ali Shah that Dino, Yaru, Wali Muhammad and others were available at the water‑wheel of Dino. On reaching the water wheel of Dino, the appellant informed Dino, Yarn and Wali Muhammad that he had come to arrest them as sufficient evidence had been produced before him in the theft case and called upon them to hand over the stolen property. Dino refused to hand over the property and replied that he would not surrender for arrest. Thereupon Rajabali and his party proceeded to arrest them but Dino attacked him while the companions of Dino attacked the policemen accompanying the appellant. Dino was about to strike a hatchet on the appellant Rajabali when Muhammad Yusuf intervened. The hatchet struck him. Dino gave another hatchet blow on the back of Muhammad Yusuf, Dino than raised his hatchet to strike the appellant Rajabali. Ghulam Muhammad Suwar then fired a shot in the air. This had no effect on Dino and consequently the appellant fired a shot in self -defence and aimed at the knee joint of Dino but Dino sat down in order to save himself and the bullet struck in the chest of Dino deceased. The prosecution examined Mst. Bheria sister of Dino (deceased), Yarn P. W. 3, Mohabat P. W. 4, Wali Muhammad P. W. 6, Ghulam Muhammad P. W. 7, as eye‑witnesses of the occurrence. They all supported the prosecution version and denied that any one from the party of the accused had received any injury. They went to the extent of saying that none of them had any weapon in their hands. The prosecution examined Khuda Din, the doctor who conducted the post‑mortem examination of the deceased, Dino, and examined the injuries on the person of Ghulam Muhammad P. W.

7. The doctor found six injuries on the body of Dino deceased. Five of them were contusions caused by blunt weapon and the sixth injury had been caused by a bullet. Ghulam Muhammad had three injuries. All of them contusions caused by some hard substance. The appellant examined Sattar Ali Shah who supported the defence version but admitted that an application had been filed against him before Anti‑Corruption Inspector and the complainant had cited Dino, Allahbachio and Jaffar as witnesses against him. He also examined Ghulam Qadir, S. I. P. Bano. Ghulam Qadir admitted in cross‑examination that the accused in Umar's case were let off and the complainant was called to show cause why he should not pay compensation for false and vexatious case. The last witness examined in defence was Mr. Muhammad Anwarul Haq, the doctor who examined injuries on the persons of Muhammad Hussain, Abdul Rahim and Ghulam Muhammad co‑accused of the appellant Rajabali. Muhammad Hussain had two incised wounds, one abrasion and one bruise. The incised wounds had been caused by a hatchet while other two injuries were caused by a stick. Abdul Rahim had one abrasion while Ghulam Muhammad had a bruised swelling. The learned Sessions judge acquitted Umer, Abdul Rahim, Ghulam Muhammad, Muhammad Hussain Sumros as well as Ahmed Khan and Muhammad Yusuf mounted constable. but con victed Rajabali appellant and Haji Haroon. Both of them appealed to this Hon'ble Court. The appeal came before the Bench of this Court comprising Hon'ble Mr. Justice Bachal and Hon'ble Mr. Justice Muhammad Bakhsh. Both the Hon'ble judges were of opinion that Haroon should be acquitted. They disbelieved the prosecution version that Haroon had incised Rajabali. They, however, differed in regard to Rajabali appellant. It may be noted that the only point that had been urged before the Bench was that Rajabali was entitled to fire in self‑defence. My brother, Bachal, J. was of opinion that Haroon and Sattarali Shah had joined the police party to harass Dino (deceased) Yarn and Wali Muhammad, who had reasonable apprehension of ill‑treatment and torture at the hands of police and whatever injuries were caused by Dino and his party were caused in self -defence, and consequently, Rajabali, the appellant had no right to fire in self‑defence. My brother Muhammad Bakhsh, J. however, pointed out that there was no evidence that Dino and his companions enter tained any reasonable apprehensions about being subjected to torture by the police party, there was no grievous hurt with a sharp or blunt weapon on any one of the prosecution party while one of the accused had received two hatchet injuries and in spite of the policemen firing twice in the air, the deceased Dino was determined to carry his attack further and did not show any sense of relaxing his efforts and the appellant Rajabali had every right to defend not only Muhammad Hassan but every member of his party including himself from further attack by Dino deceased and his party. Muhammad Bakhsh, J. accordingly recorded a finding that Rajabali was fully justified to shoot down Dino in exercise of his right of private defence. I may note that there is a mis‑statement in the above reasoning of my brother Muhammad Bakhsh J. it is nobody's case that two policemen fired in the air one after the other. According to the statement of Rajabali appellant Muhammad Khan filed a shot in the air and thereupon be fired the fatal shot, and according to report made by Muhammad Yusuf one of the mounted constable Exh. 26, the appellant fired his gun in self‑defence and then Ahmed Khan fired, in the air. Only two shots in all were fired‑one in the air and the other aimed at Dino. The appeal of Rajabali was referred to me as a third judge when the appeal came up before me for hearing the learned Public Prosecutor Mr. Raymond supported the arguments of the learned counsel for the appellant and submitted that Rajabali, the appel lant should be acquitted. There is, to my mind, great force in the observation of Muhammad Bachal, J. because none of the four constables received any injury whatsoever, the four constables were fully armed with guns, the deceased Dino had received four injuries before he got bullet injuries, Ghulam Muhammad P. W. 7 had also received some injuries, Sattarali Shah was inimical towards Dino deceased, the case of Umar was false to the know ledge of Dino deceased and it is not unreasonable to infer that Dino and his companions inflicted injuries on Muhammad Yusuf, Abdul Rahim and Ghulam Muhammad in self‑defence. But the question before me is whether I can record a finding of guilt in spite of the findings of my brother Muhammad Bakhsh, J and stand taken by the Public Prosecutor. The standpoint of a third judge in such circumstances came up for consideration before a Judge of Orissa High Court in the case of Khetra Bow v. State reported in (A I R 1952 Orissa 37.) His Lordship Ray. C. J. observed as follows :‑ " In my opinion what struck me at the beginning was correct, namely, that I could, unless on scrutinising the materials on record the judgment of the judge pronouncing in favour of innocence of the accused was considered far from fairly reasonable, or, to be more accurate, not perverse give the benefit of reasonable doubt to the accused." I am in respectful agreement with the above observations. There is an unreported case of the Allahabad High Court relating to a criminal appeal which came before two distinguished Judges of that High Court viz: Sir Henry Richard, the then Chief Justice and Sir Promoda Charan Benernji a Puisne Judge. The two judges differed and took a contrary view. Sir Henry Richards dictated a. judgment of acquittal. Sir Promoda Charan dictated a different judgment giving reasons why the appellant before him should be convicted, but towards the end observed: " However, in as much as the Hon'ble Chief justice has come to a different conclusion in favour of the accused, I am not prepared to dissent, I. therefore, agree that the appeal should be allowed." If an Hon'ble judge of this Court takes a view that the accused is entitled to benefit of doubt and that stand is supported by the Public Prosecutor, I would not dissent from it unless I come to the conclusion that the judgment favouring acquittal of the accused is perverse. I have examined the record from the view point mentioned above and notwithstanding that there is an inaccuracy in recital of facts by Muhammad Bakhsh, J. I cannot come to the conclusion that the judgment of Muhammad Bakhsh, J. is perverse. All the prosecution witnesses who are related to each other concealed the fact that three persons from the police party had received injuries. In fact, they go to the length of saying that none of their party was armed with any weapon. Their version is believed by the medical evidence which shows that three persons from the police party had received injury and one of them has two hatchet blows. How these injuries were received is mentioned only by Sattarali Shah D. W., but Sattarali Shah is an interested witness and is inimical to Dino, deceased. His version too is unbelievable. The result is that there is no reliable evidence to show in what circumstances the injuries were received by the three persons from the party of the appellant. A Court is left to make inferences from circumstances but no human reasoning can be considered infallible. The conclusions reached by my brother Mohammad Bakhsh J, too cannot De said to be devoid of force. It is well established that principles laid down in Woolmington's case are applicable with full force in spite of the provisions of section 105 of the Evidence Act and it is for the prosecution to negative the plea of self‑defence beyond any reasonable doubt and that has not been done in the present case. In the circumstances of the case and keeping in view the stand taken by the Public Prosecutor, I am of opinion that benefit of doubt should go to the appellant. I accordingly accept the appeal of Rajabali and acquit him. He shall be released forthwith unless required in some other case. K. M. A. Appeal accepted.