1968 P Cr (PLP)

All the above injuries were ante‑mortem and appeared to have been caused by discharge of fire‑arm. These injuries were sufficient in the ordinary course of nature to cause death. The internal examination revealed that the whole of the chest was punctured in front. Blood clots were seen under the skid, and there were several multiple fractures.

4. On the body of the deceased Mehdi Shah the following injuries were detected:

1. An incises; wound 4" x 2 " x bone deep over the left upper arm cutting the humerus bone.

2. A contused wound 1 " x 1/3" x bone deep over the fronto parietal region with fracture of fronted and right parietal bones.

3. An incised wound 4' x " x bone deep over the lower third of right leg cutting both the bones of the leg.

4. An incised wound 2" x " x muscle deep inch above injury No. 1.

5. A contusion 1" x 1" over the right temporal region.

6. Multiple linear abrasions varying in size from 1" to 8" over the chest on left side.

7. A contusion 1 " x " over left temporal region. All these injuries were ante‑mortem and injury No. 2 was in the opinion of the Doctor, sufficient in the ordinary course of nature to cause death. The injuries Nos. 1, 3 and 4 appeared to have been caused by a sharp‑cutting weapon such as hatchet and rest of the injuries by blunt weapon like a lathi. The same doctor also examined the appellant Saban Shah on the same day and found the following injuries on his person

1. An incised wound 2 " x 2" x skin deep over the medial side of left knee joint.

2. A lacerated wound 1" x 1" skin deep over the left leg just below injury No. 1.

3. An incised wound 4" x " x muscle deep over the back of the heel of the left foot.

4. Incised wound 4" x 1" x bone deep cutting the 4 fingers of left hand at the junction of metecarpo‑phalangeel joints.

5. A contused wound 3 ", x " x scalp deep over the left parietal region.

6. A contused wound 3' x " x scalp deep over the parietal regions.

7. A contused wound 1' x " x scalp deep over the frontal region. The injuries Nos. 1, 3 and 4 appeared to have been caused by sharp‑cutting weapon such as hatchet and the rest of the injuries by blunt weapon like a lathi. The injury No. 4 was grievous in nature and the rest of them were simple. As a result of the injuries the left hand of the appellant was permanently disabled and deformed. On the same day Shaukat P. W. 7 was examined by Dr. Dinal Shah at the same hospital and one incised wound 5' x 3' x muscle deep over the left buttock was found on his person. The injury was simple in nature and appeared to have been caused by a sharp cutting weapon such as a hatchet.

5. At the trial the prosecution case against the appellants rested on the ocular testimony of five witnesses namely Muhammad Siddiq, Nasiruddin, Muhammad Rafiq, Imam Din and Shaukat. The details of the incident given by them are to the same effect as narrated above. Ghulam Sarwar was also examined but his evidence mainly relates to the motive for the offence.

6. The defence taken by the appellant Saban Shah was that the prosecution party had lodged the case against him as a counter blast to save themselves from the charge of murder of his brother Mehdi Shah. He stated that the land was leased out to Ghulam Sarwar with the condition that he would improve it. On the date of the incident, Noor Muhammad, a hari of Ghulam Sarwar had come to him and his brother Mehdi Shah, at their Otak with an errand that they were required by Ghulam Sarwar to settle the dispute between them. On this representation he alongwith his brother had gone to the scene of offence where the prosecution party attacked them as a result of which his brother Medhi Shah died on the spot and he was injured. The defence taken by the appellant Muhammad Shah was a total denial of the prosecution case against him, which according to him was due to enmity.

7. From the narration of facts stated above, it is clear that in the incident, on the prosecution side deceased Sikandar died as a result of gun‑shot injuries and Shaukat P. W. received an injury with sharp‑cutting weapon and. two persons were injured on the side of the appellants one of whom succumbed to the injuries, on the spot. Mehdi Shah deceased received injuries with two types of weapons like a hatchet and a lathi and likewise the appellant Saban Shah received injuries with the similar types of weapons. The question for consideration therefore is as to which party was the aggressor. The case of the prosecution is that the appellant and the deceased came and attacked them while they were harvesting the crop, whereas the defence version is that the deceased and the appellant Saban Shah were called through Noor Muhammad a hari of Ghulam Sarwar and they were attacked by the prosecution witnesses. The learned counsel for the appellants pointed out that all the witnesses falsely denied, at the trial, the admissions made by them in their Police statements that there was a dispute between the appellant Saban Shah and his brothers on the one hand and Ghulam Sarwar on the other, with regard to the increase in the rate of the lease money. Ghulam Rasool S. H. O. has stated that Ghulam Sarwar P. W. had stated before him that he had agreed to give Rs. 5 more per acre as lease money and a falsla to this effect was to take place. It is also clear that at the initial stages of the case, the prosecution witnesses had admitted the presence of Noor Muhammad, a hari of Ghulam Sarwar, at the scene of offence during the incident but later on, very significantly, they resiled from this admission. The prosecution witnesses could not explain how the deceased Mehdi Shah received as many as seven injuries and appellant Saban Shah also suffered the same number of injuries. It is of course usual, in counter cases between two rival parties, that each faction tries to minimize one's part in the incident, but yet the settled principal of law in such type of cases is that the Courts have to draw their own inferences and conclusions that properly flow, not only from the evidence read as a whole, but also the circumstances of each case. The defence version that the appellant Saban Shah and his deceased brother Shah had gone to the scene o f offence pursuant to a message of Ghulam Sarwar received by them through Noor Muhammad was stated immediately at the spot and it was incorporated in the counter F. I. R. Exh. 28 recorded practically at the same time as F. I. R. Exh. 18 in this case was registered. The famous dictum laid down by their Lordships of the Federal Court in the case of Safdar Ali v. Crown (P L D 1953 F C 39) is that "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 circumstances, 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." The case of the defence that the appellant Saban Shah had gone to the scene of offence alongwith his deceased brother Mehdi Shah, on receipt of a message from Ghulam Sarwar through Noor Muhammad, appears to be consistent with the probabilities of the defence case, and on this view of the matter, the appellant Saban Shah is clearly entitled to the benefit of doubt of the plea of self‑defence set up by him.

8. The appellant Muhammad Shah is also entitled to the benefit of doubt for several reasons. He is stated to be a consanguine brother of the appellant Saban Shah and the deceased Mehdi Shah. His name does not appear in the F. I. R. the part allegedly played by him being assigned to a person with one eye. Shaukat P. W. who is a brother of the first informant Muhammad Siddiq, was allegedly injured by the appellant Muhammad Shah. In his statement before the police he had stated that he knew Muhammad Shah. He not only gave his name but also that of his father and the details of his address. It is quite natural that after Sikandar deceased was murdered and Shaukat P. W. seriously injured, the first informant Muhammad Siddiq must have asked his brother Shaukat whether he had identified any of the culprits specially his own assailant. The non‑mention of the name of appellant Muhammad Shah therefore is fatal to the prosecution case against him. The identification parade held in respect of this appellant by Mr. Abdullah, 3rd Class Magistrate is not of much value, as admittedly the other five persons mixed with the appellant Muhammad Shah were not one‑eyed persons. At the trial Mr. Abdullah stated that during the identification parade he had directed the other persons to close one eye but this part of his statement cannot be believed as he wrongly stated in Court that he had mentioned this fact in the Mashirnama Exh.

8. All the prosecution witnesses are admittedly the heirs of Ghulam Sarwar P. W. who had a serious dispute with the ap pellant Saban Shah and his brothers and only a few days earlier, an untoward incident had occurred between the parties which had resulted in the registration of a police case. For all these reasons, it cannot be safely said that the case against the appellant Muhammad Shah has been established beyond any reasonable doubt.

9. This appeal has, therefore to be allowed, with the result that the convictions and sentences of the appellants under sections 302, 324 and 447 read with section 34, P. P. C. are set aside. As regards the conviction and sentence of the appellant Saban Shah for an offence under section 19‑E of the Arms Act, hg has himself admitted participation in the incident and has raised the plea of self‑defence. The gun carried by him was an unlicensed arm and he is therefore guilty for the said offence. His conviction under the aforesaid section is therefore maintained. However he has already undergone sentence of more than two years and therefore the appeal against conviction under this offence has become infructuous. Accordingly both the appellants shall be set at liberty at once unless they ate required in connection with some other case. Appeal accepted.