1968 P Cr (PLP)

HAMOODUR RAHMAN, J. The first three respondents in this case were tried and convicted by the learned Sessions Judge of Dera Ghazi Khan under section 302/34, P. P. C. for the murder of one Murad son of Mewa and each of them was sentenced to death. . They were - also convicted under section 326/34, P. P. C. for causing grievous hurt to Faiz Ullah (P. W. 4) and sentenced to 3 years' rigorous imprisonment each. On appeal, however, the High Court, after careful scrutiny of the evidence, came to the conclusion that the prosecution case was doubtful as it could not safely rely upon the evidence of the prosecution witnesses. Furthermore the motive alleged by the prosecution was also disbelieved. In this case the defence set up by respondent Qadir Bakhsh, was that he alone was involved in this incident and that he had inflicted sword blows on- deceased in self-defence. His version was that on the night of occurrence, which was a dark night, he was returning from village Jailu where he had gone to purchase grain. On his way back when he was passing through the fields, Faizullah and Murad suddenly came out from a jawar field and gave a lalkara. He tried to run away leaving his shoes at the spot but Faizullah caught up with him and began inflicting hatchet blows. He warded them off with his sword and managed to break the handle of the hatchet but, in the meantime, Murad also reached there and attacked him. It was in these circumstances that in order to save himself he inflicted sword blows on the deceased Murad and Faizullah. He then went to the police station with his sword to lodge a report but the police instead of recording his report falsely involved him in the case. The night of occurrence was found by both Courts below to be a dark night and the story of the prosecution that the accused had been recognised in the light of a torch carried by Wahid Bakhsh (P. W. 3), has been disbelieved. The torch was held to have been introduced subsequently by the investigating officer. A pair of shoes (Exh. P. 4/1-2) were also seized from the place by the police. The hatchet of Faizullah was found broken and Qadir Bakhsh had as many as six incised injuries upon him of which one was a grievous injury cutting off the tip of one of his fingers. The Serologist's report also disclosed that only the broken part of the handle of the hatchet was stained with human blood and that the other portion of the hatchet had no blood stains upon it. According to the High Court these facts made the story of Qadir Bux appear more probable, particularly, since out of three eye-witnesses examined even the one, namely, Karam Bakhsh (P. W. 5), who was unrelated to the deceased, was found to be untruthful. His evidence was contradicted in material particulars by the medical evidence. It may be stated here that the prosecution story was that the accused persons had ambushed the deceased and Faizullah when they were returning from a Temasha held at Chah Kaura Wala village along with the witnesses. They, it was alleged, gave a lalkara to Murad that he would not be allowed to go away alive. Murad, who had a hatchet in his hand, first started running away but when the accused person caught up with him and attacked him with a sword, he tried to ward off the blows with his hatchet. It was in this process that the handle of the hatchet got broken. Then Murad snatched the sword from the hand of Qadir Bakhah and inflicted injuries on his person with it. In the meantime, how ever, the other accused also came up and inflicted sword blows on Murad. But, since no injury was found on the palm of Murad the High Court found this version to be untrue. The prosecution witnesses could not also give consistent version of the ceremony in connection with which the Temasha was held. Nor was their evidence free from discrepancies in various particulars such as the weapons in the hands of the accused, the manner of the attack and the place at which the deceased was fatally injured. The High Court, therefore, gave them the benefit of doubt and acquitted them. From this order, the brother of the deceased, Murad, who was also the complainant in this case, now seeks special leave to Appeal. It is contended on his behalf that the High Court had not appreciated the evidence upon correct principles, for in trying to determine as to which of the two versions given by the two sides in this case was the correct version, it had totally failed to take into account the committing Court statement of Qadir Baklish which had been read in evidence under section 287, Cr. P. C. Therein, it is said, he had given an entirely different explanation for the injuries found upon his person. According to that statement, his finger tip, had beers chewed, up by a camel. Learned counsel also drew our attention to the reasons given by the learned Sessions Judge for rejecting the defence version. He, it appears, had relied mainly upon the committing Court statement of Qadir Bux without taking into account the other factors which had been considered by the High Court. The statement read as evidence under section 287, is no doubt, evidence but this section does not say that it must be believed. it is just one piece of evidence which has to be taken into account along with all the other circumstances. The learned Sessions Judge had not taken these other circumstances into account, as has been done by the High Court. Upon the facts mentioned in the High Court judgment, there can be no manner of doubt that the version given by Qadir Bakhsh appeared to be more probable than the prosecution version. If the learned Sessions Judge had taken these into consideration, as he ought to have done, he too would have come to the same conclusion. It is next contended that, in any event, Qadir Bakhsh had exceeded his right of private defence. This contention is also untenable. If Qadir Bakhah had received grievous injuries, as found by the Doctor, then his right of private defence extended to the causing of death to his opponent. Having heard the learned counsel at length and examined the elaborate judgment of the High Court, we are unable to say that the High Court's view of the evidence is either unreasonable or one which could not have been taken. The High Court has dealt with the case all its aspects after taking the contentions of both the defence and the prosecution into account and given cogent reasons for not accepting the prosecution story. This is not a 6t case, therefore, in which this Court ought to interfere, This petition accordingly dismissed. Leave refused.