ABDUL REHMAN Versus THE STATE

1. HAMOODUR RAHMAN, C. J.‑ The appellant in this case was tried by the 2 nd Additional Sessions Judge, Hyderabad, under section 302, P. P. C. for the murder of two police officers, namely, Zahir Abbas, A. S. I., and Muhammad Siddiq, Foot Constable. He was convicted on both counts and sentenced to death.

2. The High Court of Sind & Baluchistan has, on appeal and reference, confirmed the sentence of death and upheld the convic tions the appellant was granted leave by this Court to "Examine this case afresh to consider whether the prosecution evidence has satisfactorily established the guilt of the appellant as the culprit in this crime beyond any element of reasonable doubt".

3. The incident resulting in the death of the two police officers took place on the 16th October 1964, at about I 1‑45 p.m. outside the premises of Shahi Dawakhana on Station Road, Hyderabad.

4. The prosecution case is that the two police officers, who were in plain clothes, had gone on two hired bicycles, one coloured red and the other black, to Shimla Hotel situated near this Dawatchana for seeking information regarding bad characters. They were making enquiries from Muhammad Hussain, the complainant, who was a call‑boy at that hotel, when the apps pant came and stood behind them. The deceased A. S. I. asked the appellant as to why he was standing there. The appellant replied that he was waiting for some body. The deceased A. S. I. then asked him to stand at home distance but the appellant insisted that he would not shift. There was an exchange of hot words and each told the other not to make `bakwas' (talk nonsense). At this it is alleged, the appellant took out a knife from the folds of his shalwar and stabbed the A. S. I. in his stomach The A. S. I. fell down but soon got up and started running away from there. After he had gone a short distance, he again fell down near a heap of stones lying by the side of the road.

5. Seeing his A. S. I. stabbed, the constable, Muhammad Siddiq, caught hold of the appellant by his shirt collar whereupon the appellant caused knife injuries to the constable on his neck and stomach. On receiving injuries Muhammad Siddiq also ran from there and fell down in front of a radio service shop situated at a distance of about 50 paces from the Dawakhana.

6. The appellant was known to Muhammad Hussain, the call‑boy for about 21 years, but the latter did not know his correct name. He knew him as `Pahalwan' but the appellant, it appears, was also known as `Adroo Pathan' and his real name was Abdur Rehman. The call‑boy did, however, know that the appellant was previously working with Contractor, Umar Shah.

7. After injuring the police officers the appellant left the place brandishing his knife. Many people collected at the place thereafter amongst whom the call‑boy, Muhammad Hussain, named Rashid (P. W. 8), Qasim and Siraj.

8. The First Information Report in this case way lodged by Muhammad Hussain after he saw that constable, Muhammad Siddique, had expired. In the report, however, the accused is described as "Adroo" alias Abdur Rahman alias Pahalwan Pathan" and the only witnesses named are Rashid, Kasim and Siraj although it is stated that many others were also present. This information was lodged at 00.05 hours at the City Police Station, Hyderahad, which was about a mile away from the place of the incident. It was recorded by the S. H. O., Umed Ali Junejo who immediately took up the investigation and accompanied the complainant to the spot. He found the dead body of Muhammad Siddique still lying there and also the two cycles of the police officers. He seized the cycles and secured a blood‑stained bedding which was lying on the platform outside the Firdaus Radio Service shop where the body of the deceased, Siddique, was lying. Blood‑stained earth was also secured from within a radius of 2 or 3 feet of the place of incident. A printed card (Exh. 19) of M. Rahim Bikhsh & Co. of Quetta was also found there and seized as on the back of it some kind of account was entered and the name "Abdur Rahman" was also written. A few cons and a key were also taken into possession but no effort has been made to fix their ownership or to account for their presence there.

9. The A. S. I., who had fallen near a heap of stones, saw a cycle rickshaw driven by one. Muhammad Shaft (P. W. 4), coming from Latifabad side towards railway station via Makki Shah Road. He gave him a call and told him that he was a police officer and that he had been stabbed, according to the version of Muhammad Shafi, by Abdur Rahman Pathan. He requested the rickshaw driver to take him to his house situated in Unit No. 11, Latifabad.

10. According to Muhammad Shafi, this was at about 11‑45 or 12 o'clock in the night. He took him up in his rickshaw and was taking him to his house when at the railway gate of Latifabad, ha was met by two Head Constables. He informed them that the injured in his rickshaw was an A S. I. and requested them to help him in carrying him to his house. The Head Constables made enquiries from the A. S. I., Zahir Abbas and the latter informed them also that Abdur Rahman Pathan had stabbed him and another police constable who was with him. The Head Constables then asked Shafi to take the injured to the City Police Station. They also accompanied the rickshaw. Another Head Constable at the Police Station came out and made enquiries from the injured and then two Head Constables took the injured to the hospital in the rickshaw. At the hospital the Doctor informed them that the police officer had already expired. They then came back to the City Police Station, but learning that the S. H. O. was already at the spot, one Head Constable took the rickshaw driver to the place from where he had picked up the injured in his rickshaw. There they found the S. H. O. already making investigation. The S. H O. also inspected the rickshaw and finding some blood marks on it seized the same. The S. H. O. also went to the place where the injured had been found and seized some blood‑stained stones. Then the statement of the rickshaw driver was also recorded.

11. It appears that in respect of the same incident one, Tasleem Ahmad, later examined as a defence witness, had also made a report at the City Police Station at mid‑night disclosing that an unknown man was lying injured on Station Road near Insaf Hotel. Sine, this did not disclose as to who had killed him and from where he had fallen it was recorded by A. S. I., Pir Khan only in the 'Roznamcha'. While the entry was being made another telephonic message was also received from Head Constable Malook Muhammad to the effect that a man had been murdered near Insaf Hotel and he had the two cycles of the murderers. This also was incorporated in the 'Roznamcha'.

12. Again at 00.35 hours, when the rickshaw driver reached the City Police Station with Head Constable, Jehandad, and the injured A. S. I., Zahir Abbas, another entry was made in the 'Roznamcha'. In this however, it is said that Zahir Abbas had informed the rickshaw driver that one 'Adroo Pathan' had stabbed him with a knife. The same person had also allegedly stabbed Muhammad Siddique.

13. The S. H. O. recorded the statements of several witnesses at the spot and also sent the dead body of Muhammad Siddique for post‑mortem examination. Later on, the body of Zahir Abbas was also brought to the morgue from the hospital for such examination.

14. Umed Ali Junejo, the S. H. O., confirms that while he was investigating the case, the rickshaw driver was brought to him by Head Constable, Saeed Ahmad, of the City Police Station. He took him to the place from where he had picked up Zahir Abbas. The place was near Shah Makki Road and pieces of stones were lying on the road for repairs. He secured blood‑stained stones from there. That place was 50 paces away from where the stabbing had allegedly taken place.

15. After this the S. H. O. went in search of the appellant. He searched for him at various places and ultimately came to Kotri Railway Station at about 4 p .m. There he found the appellant sitting on a bench on Platform No. 1. He knew the appellant from before as he had challaned him previously under a section 307, P. P. C. case. He arrested the appellant in the presence of Mashirs, Dost Muhammad arid Muhammad Saeed. On his search, he found in the inside pocket of his shirt a third class railway ticket from Kotri to Quetta. The shirt and shalwar in the wearing of the appellant and a 'Lungs' tied around his head, were suspected to be blood‑stained and were, therefore, taken into possession. Subsequently, the shirt and shalwar were found by the Serologist to be stained with human blood. The appellant then, it is said, volunteered to produce the weapon of offence and led the S. H. O. and Mashirs to a place between railway lines Nos. 16 and 17 and from inside a hole there picked out a knife. The knife could not have been seen by any passer by at the place where it was lying. The knife was also taken into possession as it appeared to be blood‑stained although mixed with mud. The origin of the blood could not, however, be traced as the blood had disintegrated.

16. At the time of his arrest, the appellant was also found to have an injury on his right arm. He was, therefore, sent for medical examination. The medical examination revealed an incised wound over the lateral aspect of the right arm about 3" x 1 ' x " in size. The injury was simple in nature and appeared to have been caused by a sharp weapon within 24 hours.

17. The post‑mortem examination of Zahir Abbas revealed four injuries. The first was an incised wound at the sixth inter‑costal space on right side about 3' from the median plane. The injury was downwards and inwards measuring " x x 4 " and cutting the liver on its right upper surface to the extent of ' x " x 3 . There were, apart from this, two contusions above the eyes and multiple small abrasions on front of both legs at the knees. The cause of death was shock and haemorrhage due to the injury on the liver.

18. The deceased, Muhammad Siddique, had two incised wounds, one on the right lateral angle of lower jaw and the neck cutting the blood‑vessels of the neck. This was a wound measuring 1" x 1 x 1". The other was an incised wound below the right rib along the nipple lime measuring 1 " x ". It had cut the stomach inside, from which digested food material was oozing oat. The cause of death was shock and haemorrhage due to the injury by the cutting of the blood vessels in the neck.

19. Unfortunately, the Doctor, who carried out the post‑mortem examina tion, had left the country for Bahrain and there was no hope of his coming hack in the near future. His post‑mortem report was accordingly proved by Dr. Rafi Ahmad Khan who was familiar with his handwriting.

20. Out of the eye‑witnesses named in the F. I. R. all were examined before the committing Court but unfortunately at the trial, neither Kasim nor Siraj could be examined. Kasim, it appears, had died in the meantime and Siraj had left Hyderabad for an unknown place which could not he discovered in spite of search. An application was, accordingly, made on the 9th April 1970, to admit their committing Court statements under section 33 of the Evidence Act. The learned Judge admitted the evidence of Kasim but declined to admit the evidence of Siraj.

21. The direct evidence against the appellant at the trial Court, therefore, consisted of the evidence of Muhammad Hussain, the call‑boy (P. W. 7) and Rashid Ahmad (P. W. 8). The evidence of Kasim (Exh. 31/A) was put in under section 33 of the Evidence Act. In addition to this, the prosecution also examined one Khurshid Hussain (P. W. 12) who was not named in the F. I. R. He claimed that at the time of the incident he had a sweet meat shop at Station Road. His statement was recorded by the police at 7‑00 or 7‑15 p.m. on the next day at the police station wherein he stated that at the time of the incident he had come from his shop to the shop of one, Abdul Panwala, 15 paces away, for taking 'Pan'. He heard a noise and, looking towards that direction, recognized the appellant as one of the persons exchanging hot words with the police officers. In the course of this he saw the appellant, whom he named as Abdur Rahman, taking out a knife and inflicting a blow in the stomach of the A. S. I. Subsequently, when the other police man tried to catch the appellant by collar of his shirt, the accused inflicted two knife blows and the police constable ran from the place but he soon fell down on the platform in front of Firdous Radio Service. The appellant then ran away with an open knife towards Zamindar Hotel. Nobody went after the appellant.

22. According to this witness, the appellant Abdur Rahman, was also known by the name of 'Adroo'. He came to learn the names of the deceased afterwards. It was suggested to him that he was deposing falsely as he was not named in the F. I. R. and was a person who had been challaned under the Excise Act and under section 109, Cr. P. C. by the local police. He denied the suggestion but no effort was made by the defence to prove the suggestion. According to him, the appellant was only wearing a shahvar and a shirt. He had no coat or waist‑coat or 'Lung? with him.

23. According to the statement of Kassim, however, the appellant was wearing a coat at the time as the month was October, and he had a 'fungi' in his hand. Kassim did not know the appellant but claims that he heard other people calling him by the name of Pahalwan and Abdur Rahman at that time.

24. Although the complainant, Muhammad Hussain (P. W. 7) says that he knew the appellant since about 21 years prior to the incident as Pahalwan and as a person working under Umar Shah, Thekedar, yet in cross‑examination, it was elicited from him that he had never talked to the appellant before the incident, and that at the time of the incident, the appellant was having a 'Lungi' over his head and a 'chaddar' around his body.

25. It was suggested to this witness that he could have been mistaken about the identity of the assailant as there were two Pathans living in the locality known by the name of 'Adroo' but he denied the suggestion. This witness, it appears, had been challaned under the Excise Act and had pleaded guilty in that case but it is not known as to whether he was convicted or not. He denied that he was convicted. He also denied that he was a history‑sheerer of the City Police Station, Hyderabad.

26. Rashid Ahmad (P. W. 8) fully supported the prosecution case. He knew the appellant since 6 or 7 months prior to the occurrence. He also knew all his aliases. There is no serious challenge in cross‑examination to the veracity of this witness apart from a few vague suggestions. He was in no way inimical to the appellant or beholden to the police.

27. Apart from the oral testimony, the prosecution has also relied on the dying declaration of Zahir Abbas proved through the mouths of Shafi Muhammad, rickshaw driver and one of the Head Constables who met him at the railway crossing. The conduct of the appellant in trying to escape to Quetta via Kotri Railway Station was also taken against him. The recovery of the blood‑stained knife at his instance from between the railway lines Nos. 16 and 17, the finding of human blood stains on the clothes in his wearing and the recovery of the card of a firm at Quetta on the back of which certain accounts were written along with the name of the appellant were all treated as circumstances lending strong corroboration to the oral testimony.

28. The defence of the appellant was that this was an un-witnessed occurrence for which the S. H. O., Umed Ali Junejo, had falsely roped in the appellant out of grudge because his earlier attempt to get him convicted under section 307, P. P. C. had failed and the appellant had been acquitted in that case.

29. Alternatively a plea of self‑defence was also sought to be set up on the basis of the injury found on the arm of the appellant.

30. In support of its case that the occurrence was an un-witnessed one, the defence examined Taslim Ahmad (D. W. 1) who had given the earliest information (Exh. 32‑B) about this incident which was recorded in the 'Roznamcha' and proved through the A. S. I., Pir Khan examined as D. W. 2.

31. Pir Khan, who had recorded the statement in the 'Roznamcha' was asked as to why he had recorded this information in the 'Roznamcha' He stated that he did so because the information was vague and had not given full particulars about the incident. Furthermore, since the information of Taslim did not disclose as to whether the injuries were given to the injured by some person, he did not consider it to be fit to be recorded as an F. I. R. under section 154, Cr. P. C. Taslim Ahmad only stated that he enquired from the persons present as to who had caused the injuries to the injured but no one could name the assailant. His evidence in this respect was purely hearsay.

32. The High Court excluded from consideration the evidence of Kassim which had been put in under section 33 because he did not know the appellant from before and was admittedly not put up for any test identification parade but relied on the oral evidence of Muhammad Hussain the complainant, Rashid Ahmad and Khurshid Hussain as also the dying declaration of Zahir Abbas, the recoveries, the conduct of the appellant in trying to escape to Quetta via Kotri and the finding of human blood stained clothes in his wearing at the time of his arrest.

33. None of the three eye‑witnesses relied upon by the High Court, who are all natural witnesses being residents of the locality, have been shown to be inimical to the appellant but the only suggestion against them is that they are either history‑sheeters or criminals or under the control of the police and, as such, are giving false evidence at the behest of the police.

34. Learned counsel appearing in support of this appeal has, however, contended that none of these witnesses is reliable because each one of them has suppressed the fact that the appellant also had received an injury in the course of this incident and that he was actually found bleeding from this injury at the time of his arrest. The human blood stains on his clothes could, therefore, be from his own wound and not necessarily from the injuries on the deceased. One of the circumstances strongly relied upon by the Courts below, therefore, disappears.

35. Reliance placed by the High Court on the recovery of the blood stained knife at the instance of the appellant is also contended to be of no particular value as the report of the Serologist was that the blood on the knife had disintegrated and its origin could not be traced. It could not, therefore, be said with any certainty that this was the knife which had been used in the incident.

36. The reliance placed on the printed card of M. Rahim Bakhsh & Co. of Quetta found lying at the place of incident, it is contended, was wholly unjustified because there was no evidence at all to show that the card had been given to the appellant by anyone or that it had actually fallen out of his pocket at the time of the incident. The mere fact that it contains an account on the back and the name of some Abdur Rahman does not necessarily connect it with the appellant, particularly, since there is no evidence to show that there was any struggle between the victims and the appellant in the course of which anything fell out of the pocket of the appellant. The card may well have fallen out of the pocket of one of the victims who fell down after being stabbed.

37. Learned counsel also contends that in this case of the murder of two police officers the police were not unnaturally over‑zealous in getting a conviction and, therefore, the evidence had to be scrutinized with greater care particularly since it is, not free from serious inherent infirmities.

38. The first infirmity on which strong reliance is placed is that there is no clear evidence as to the, identity of the appellant. It is pointed out that the complainant, Muhammad Hussain, himself admitted in his cross- examination that he knew the appellant only as `Pahalwan' and that he did not know him either as Abdur Rahman or as `Adroo' and yet in the First Information Report, all the three aliases appear to have been mentioned. How, it is said, could this happen if the complainant did not know the other aliases of the appellant.

39. This is true but, it appears, that along with these aliases, which might well have been elicited by the officer recording the F. I. R., the complainant did also mention that the appellant was "previously working with Contractor, Umar Shah" and this assertion of his has not been challenged in cross‑examination at all even though he repeated this in his evidence. In the circumstances, in the face of this un-rebutted evidence as to the identity of the appellant, it is difficult to accept the suggestion that Muhammad Hussain had not recognized the assailant of the two murdered police officers.

40. It has been further suggested that in view of these aliases of the appellant, the precaution should have been taken of putting the witnesses to a test identification parade but I cannot help observing that such a test identification parade, so far as Muhammad Hussain is concerned, would have been useless because he claimed that even if he did not know all the aliases of the appellant, he knew him by his face since 2 years, If he did so then he would have had no difficulty at all in identifying him at the test identification parade.

41. Similarly, Rashid Ahmad (P. W. 8) claimed that he knew the appellant since six or seven months before the incident and he knew him by all his three aliases. There would have been no point, therefore, in putting him up to any test identification parade.

42. A test identification parade would be futile if persons who were known to the witnesses from before were required to be identified at such a parade. The witnesses would surely have identified them and the value of such identification parade would have been nil.

43. The mere fact that an accused is not known to a witness by his proper name or by all his aliases does not necessarily mean that the identification of the accused by such a witness cannot be accepted. It is quite possible that a person may be known to different persons at different places by different names and yet be the same person. In the circumstances, if the identification by face remains unchallenged, the mere confusion in the name should not B render the identification useless. In view of the unchallenged fact that the appellant was the same person as the one who had been working previously under Umar Shah, Contractor, there can be no doubt about his identity. I am, therefore, not impressed by the contention that the witnesses had failed to identify the assailant at the time of the incident beyond any reasonable doubt.

44. Learned counsel next contended that the evidence of Khurshid should be excluded because he had not been named in the F. I. R. even thou the F. I. R. did state that apart from the persons named therein, the were also present some other persons. Khurshid Hussain (P. W. 12) was not, of course, the maker of the F. I. R. and, strictly speaking, he cannot be contradicted by the F. I. R. He is a person who owns a shop in the; locality not far away and, therefore, his presence there was not unlikely even though he had come out of his shop to the shop of a 'panwala' for taking a `pan'. It is quite possible that at the spur of the moment, Muhammad Hussain, the complainant, had failed to notice Khurshid Hussain there or forgotten that he had seen him there amongst the other persons.

45. Khurshid Hussain, of course, claims that he was well‑known to the complainant for 15 or 16 years and that immediately after tire incident he met the complainant there at the 'vardat'. If this be so then the omission of his name is curious but even if his evidence is excluded there is ample other evidence on the record to warrant the conviction.

46. I also see no reason for rejecting the dying declaration of Zahir Abbas proved by the rickshaw driver, Muhammad Shafi, and the Head Constables, Jehandad (P. W. 3) and Saeed Ahmad (P. W. 11). The entry No. 83 recorded by the latter on the 18th October 1961, at 00‑35 hours fully corroborates his statement that Zahir Abbas gave the name of the assailant as 'Adroo Pathan'. Jehandad, however, said that the name given was "Idu Pathan" and Muhammad Shafi said that it was "Abdur Rahman". Again this merely a confusion in the aliases mentioned by Zahir Abbas. It is quit D possible that he may have given one alias to one and another to the other although they all referred to the same person. None of these witnesses have been shown to have any enmity with the appellant or to have any particular reason to falsely implicate him. The dying declaration, therefore, fully corroborates the oral testimony.

47. I would not, however, attach any importance to the other circumstances relied upon by the High Court. None of them unequivocally leads to the inferences drawn by the High Court. So far as the card (Exh. 19) was concerned, it was wrongly taken into account. There is no evidence at all connecting it with the appellant. No effort was made to prove that it was given by anyone to the appellant or as to who was the "Abdur Rahman" whose name was written on the back of it.

48. It is true that the eye‑witnesses have not said anything about the injury found on the deceased on his medical examination and that there is some discrepancy between the witnesses inter se about the clothes in the wearing of the appellant at the time of the incident but this does not, in my view, render the oral testimony totally unreliable. This is only a minor discrepancy.

49. I am also satisfied that 'there is no substance in the contention that any witness named in the F. I. R. was deliberately withheld.

50. The witness Siraj was actually examined in the committing Court and an application was made for bringing his statement on the record of the trial Court under section 33 of the Evidence Act because his where abouts could not be traced but this was disallowed by the trial Court. There is no question, therefore, of withholding any witness by the prosecution.

51. I am also unable to accept the suggestion that the S. H. O., Umed Ali Junejo, was particularly anxious to rope in the appellant merely because he had been acquitted in an earlier case under section 307, P. P. Q, started by the same S. H. O. There is no evidence to support this suggestion.

52. Having carefully examined the evidence in this case in the light of the arguments advanced in support of the appeal, I have come to the conclusion that there was no mistake as to the identity of the assailant of the two police officers who unfortunately lost their lives in this incident. There is nothing also on the record to suggest that the police officers were themselves on some nefarious mission of their own when this incident occurred but it does appear to me that the prosecution has been failing in its duty by not giving any explanation for the injury on the arm of the appellant at the time of his arrest. There is nothing on the record to show that the injury which was an incised injury, could have been self‑suffered or self‑inflicted. In the circumstances, it does seem to me that the prosecution witnesses have not given out the whole truth with regard to the origin of the incident. It is not unlikely that the two police officers, when they were defied by the appellant, manhandled him and in the course of such manhandling, caused him the injury on his arm and then only appre hending graver injury, he gave the fatal injuries with his knife. Such manhandling seems to receive corroboration from the fact that the decease Zahir Abbas had contusions on both his eyes and at the time of his; arrest the shirt in the wearing of the appellant was found to be torn. The Mashirnama (Exh. 36) discloses that the front pocket of the shirt and left side of the shirt was a little torn. In the absence of any evidence to show as to how exactly this incised injury was received, this Court relying on an earlier decision of the Federal Court in the case of Safdar Ali v. The Crown (1) which has consistently been followed by this Court, also must give due consideration to this evidence regardless of the plea raised by the accused. 1f there is a reasonable possibility of the defence being true then the benefit of that must go to the accused. The present is precisely a case in which the probability of the accused having acted in his right of private defence cannot reasonably be excluded upon the evidence. This does lend support to the possibility that he retaliated defence when being overpowered by two police officers even though in. his section 342, Cr. P. C. statement he has totally denied the injury.

53. I would, therefore, give him the benefit of doubt, allow his appeal set aside his convictions under section 302, P. P. C. and acquit him. He should be set at liberty forthwith if not required in any other case.

54. SALAHUDDIN AHMED, J.‑ I have had the advantage of perusing the judgment proposed to be delivered by my Lord, the Chief Justice. Although I fully agree with his appraisal of the prosecution evidence, but I regret I am unable to do so as to the application of the principle laid down in the case of Safdar Ali v. The Crown (P L D 1952 F C 238=(1952) 2 F C R 238) to the facts of the case before us.

55. The facts in Safdar Ali's case were very different, and the principle laid down therein should be held applicable to the peculiar facts of the case. It was an un-witnessed crime and rested wholly on circumstantial evidence plus such admissions as were made by tae accused‑appellant. The appellant had from the very outset, beginning with his statement in the committing Court, set up in detail a case of right of private defence. He admitted having injur ed the deceased, but said that the former had been first attacked and injured with a knife aimed at his stomach, but it missed and hit his thigh instead and caused a very severe injury there. The medical evidence described this as the wound of entry measuring 1 " x " and the wound of exit " x ". The weapon had passed through the thigh close to the femur bone, and ruptured the main blood vessels. The doctor had found Safdar Ali to be cold and pale arid bloodless, and unable to answer questions, and was of the opinion that after having received such injury Safdar Ali "could not have run as swiftly as a normal man." The prosecution evidence was that Safdar All had run away and although chased by the spot witnesses they were unable to overtake him.

56. The trial was held with the aid of assessors, and all the four assessors were unanimously of the opinion that Safdar Ali "gave injuries to deceased to save his life."

57. The trial Court had observed that Safdar Ali had received the injury either by the deceased in self‑defence or at the hands of his own companion but that it could not be said that Safdar Ali had come with the intention to murder. It may be mentioned here that originally Safdar Ali was tried along with his brother Sher Ali for committing the murder of Abdul Halim in furtherance of their common intention. The presence of Sher Ali, however, was not believed although the spot witnesses had testified to his presence. Similarly the ocular evidence that Safdar Ali had been running away with the blood‑stained screwed knife in his hand and the recovery of the knife itself said to be at the instance of Safdar Ali were also disbelieved. The trial Court found the four spot witnesses wholly unworthy of belief. Similarly they were disbelieved with regard to the dying statement said to have been made by the deceased. The trial Court, however, had disagreed with the opinion of the assessors and convicted and sentenced Safdar Ali alone under section 326 of the Pakistan Penal Code to five years' rigorous imprisonment but it acquitted Sher Ali totally.

58. In an appeal from acquittal of the charge of murder, the High Court held the first information report to be a doubtful document. The Court, however, relied on the spot witnesses as well as the dying statement. It appears, how ever that the Court did not give due weight to the opinion of the trial Judge in respect of his assessment of the evidence of the spot witnesses. It was evident from the facts and circumstances of the case that although it was admitted by Safdar Ali that he had injured the deceased with a knife the prosecution hardly led any evidence to show with what intention the knife blows were given by Safdar Ali. Indeed on this point there was only the categorical statement of Safdar Ali himself that he had injured the deceased in self‑defence. The spot witnesses had not actually seen the incident and their evidence in substance was that having heard the cry of "mar gae, mar gae" coming from the shop of Abdul Halim deceased they went towards the shop and saw Safdar Ali and the co‑accused coming out of the shop with blood stained clothes on them. On inquiry the deceased had told the witnesses that Safdar Ali and Sher Ali had murdered him in order to get cash. There was, however, no evidence of removal of any cash. Safdar Ali was said to have been seen running away with a blood‑stained screwed knife in his hand, and, subsequently, he was found lying severely wounded in his thigh in an empty khola. Cornelius J., as he then was, observed in his judgment that P. W. Abrar Hussain, who was claimed by Safdar Ali to have been present at the shop of the deceased when the incident took place, in many important respects supported the statement of Safdar Ali. Safdar Ali had also stated in his state ment before the committing Court that he was arrested from the baithak of P. W. Abrar Hussain and that he had no knife with him at that time. P. W. Abrar Hussain admitted that Safdar Ali had come to his house that night but denied having seen him wounded and bleeding. The witness however, admit ted that the police came a little later and found a pool of blood outside his door.

59. In these circumstances it was found that the plea of self‑defence had been established. Alternatively, it was held that the circumstances appearing in favour of the plea of Safdar Ali were so strong that even if the evidence of the spot witnesses for the prosecution had been markedly more free from defect than it was, there would still have been left such a degree of doubt as to 'Safdar Ali's intention in striking the deceased as to justify his acquittal. This was indeed a reasonable doubt and the accused was fully entitled to its benefit.

60. In the case before us the incident resulted in the death of two police officers, and it was witnessed by at least three eye‑witnesses, none of whom was in any way inimical to the appellant. Of these three witnesses, one is the informant. P. W. Muhammad Hussain, who had known the appellant for a number of years, and another is P W. Rashid Ahmad, who was named in the first information report. The third witness P. W. Khurshid Hassan was a natural and competent witness inasmuch as his shop was close to the place of occurrence which was visible from his shop. His presence at the place of occurrence has hardly been challenged He denied the suggestion that he had not witnessed the incident. All these three witnesses have been relied on by the learned Additional Sessions Judge, who had the advantage of examining their demeanour as well as the learned Judges of the High Court. Such concurrence of opinion is entitled to respect, unless it can be said with justifi cation that they are not based on reasonable grounds. The mere fact that the witnesses bad failed to notice in the darkness of night the simple injury upon the arm of the appellant who was wearing a shirt, is not reasonable ground for holding that they had deliberately suppressed the injury upon the appellant, particularly in view of the fact that the appellant had denied having received any injury. It was never suggested to any one of these witnesses that they had seen the injury on the arm of the appellant. As I have said already this injury was noticed as soon as the appellant was arrested on the 17th of October 1964, at 4 p. m. and it finds mention in the record. The occurrence ‑took place on the 16th of October 1964, at 11‑45 p. m. Evidently no attempt was made to conceal this injury.

61. Besides there is the dying statement of deceased Assistant Sub‑Inspector, Zahir Abbas. deposed to by P. W. Muhammad Shafi, a rickshaw puller and P. W Jehandad, Head Constable, and 'P. W. Saeed Ahmad, another Head Constable. P. W. Muhammad Shafi had been called by the deceased Assis tant Sub‑Inspector and was asked to carry him home. The blood‑stained rickshaw which was seized in the case, fully supported the evidence of P. W.1 Muhammad Shaft, in regard to the dying statement made to him by the deceased Assistant Sub‑Inspector.

62. The incident had been witnessed right from the beginning and the manner of the incident was deposed to by the eye‑witnesses. Save the silence of the spot witnesses about the injury upon the arm of the appellant, there is absolutely nothing to indicate that the two deceased police officers bad made any attack upon the appellant with any weapon. No such weapon was recovered either from the spot or from the possession of any of the deceased police officers. The slight injury upon the arm of the appellant might very well be the result of grappling between the appellant and the deceased Assis tant Sub‑Inspector/the deceased Constable, the latter trying to save himself, and might have been caused by the appellant's own knife. It is indeed im probable that if any one of the two police officers had been armed with a knife they would have failed to tackle their single assailant and had merely succeeded in giving one simple injury upon his arm while they themselves were fatally injured and killed. The evidence has disclosed that both the deceased police officers were well‑built, and the Assistant Sub‑Inspector was 37 years old and the Constable 40 years old. The appellant is 30 years old.

63. The aforesaid facts and circumstances have to be considered along with the defence case set up by the appellant, namely, that it was an un-witnessed crime and that he had been falsely implicated by S. H. O: Umed Ali Junejo P. W. out of grudge because the latter's earlier attempt to get the form convicted under section 307 of the Pakistan Penal Code had failed and he had been acquitted. The appellant denied having had any injury on him at the time of his arrest, and did not say how he had received the injury on his arm. He went so far as to say that it was false that he had any injury on him when he was arrested. Self‑defence was neither pleaded nor even remotely suggested to the spot witnesses.

64. In my opinion there is nothing on record to suggest that any of the two deceased police officers had attacked the appellant first with a knife. It is only the benefit of a reasonable doubt that the accused is entitled to. Law does not permit the benefit of speculation either to the accused or to the prosecution.

65. There does, however, appear something in the evidence of P. W. Muhammad Hussain (the complainant) to indicate that possibly some language had been used against the appellant which might have suddenly caused a grave and sudden provocation to the appellant which deprived him of the power of self‑control. P. W. Muhammad Hussain stated thus in his evidence "The A. S. I. P. Zahir Abbas told the accused that we were talking together and as to why he was standing there. The accused replied that he was wait ing for somebody. The A. S. I. P. asked the accused to stand at some distance from him; but the accused insisted that he would not go. The A. S. I. P. then told the accused that if he did not go he would disrespect him. The accused then said to the A. S. I. P. not to make 'Bakwas'. The A. S. I. P. also told the accused not to make 'Bakwas'. Thereupon the accused took out a knife from the folds of his Shalwar and stabbed the A. S. I. P. in his stomach." The underlining is mine. It is not unlikely, having regard to the filthy language generally used by such police officers, that the words "he would disrespect him" were used in such filthy language as might have caused a grave and sudden provocation to the appellant and deprived him of the power of self‑control. The witness himself might not have thought it discreet to say in detail what language was actually used by the deceased Assistant Sub‑Inspector to convey the threat "he would disrespect him". The possibility of the existence of such a circumstance cannot be excluded on any reasonable ground. The deceased Constable might have intervened at that psychological moment and drew to himself the wrath of the appellant. This is the utmost that can be stretched in favour of the appellant and if that be so the appellant can only be given the benefit of Exception I of section 300 of the Pakistan Penal Code. I would accordingly, alter the conviction of the appellant on each count from one under section 302 to one under section 304, Part I of the Pakistan Penal Code, and sentence him thereunder to suffer imprisonment for life on each count. The appeal would, accordingly, be disposed of.

66. MUHAMMAD AFZAL CHEEMA. J. ‑-I have had the advantage of going through the judgments of my Lord the Chief Justice and Salahuddin Ahmed, lie In view of the elaborate narration of facts contained in the judgment of my Lord the Chief Justice, I would not like to indulge in an unnecessary and repetitious reproduction of the prosecution version.

67. In so far as the appraisal of evidence is concerned, their Lordships arms agreed that it was none else than the appellant who was responsible for caus ing the death of the two Police Officers and his identity stood fully established. There is, however, a divergence of opinion in regard to the applicability of the principle laid down in Safdar Ali v. The Crown (P L D 1952 F C 238). According to my Lord the Chief Justice, the principle could be justifiably invoke in favour of the appellant and notwithstanding the fact that he did not raised the plea of self‑defence during inquiry or trial, he could still be found entitled to its benefit in the circumstances of the case.

68. The principal considerations which appear to have weighed with my Lord the Chief Justice to come to this conclusion are

69. Firstly, that the injury on the right arm of the appellant which was an incised wound ' x ' x ', inadvertently described in the High Court's judgment as well as that of my Lard the Chief Justice as 3' x 1 ' x ' and whose origin and duration reasonably coincided with the time of occurrence remained wholly unexplained by the prosecution, and

70. Secondly, the two Police Officers had taken the initiative in picking up the quarrel with the appellant culminating in their death at his bands. According to his Lordship, it was not unlikely that the appellant having defied the two Police Officers was man‑handled by them one of them causing him the injury on the arm when he gave them injuries with his knife presumably in self‑defence which proved fatal. This hypothesis was found to have received further support from the contusions on the eyes of Zahir Abbas deceased and the torn clothes of the appellant taken into possession by the Investigating Officer at the time of his arrest. These findings were summed up in the penultimate paragraph of the judgment of my Lord the Chief Justice as follows:‑

71. "The present is precisely a case in which the probability of the accused having acted in his right of private defence cannot reasonably be excluded upon the evidence. This does lend support to the possibility that he retaliated in defence when being overpowered by two Police Officers even though in his section 342 Cr. P C. statement he has totally denied the injury."

72. While endorsing the appraisal of the prosecution evidence made by my Lord the Chief Justice, my learned brother Salahuddin, J. in an elaborate and comparative discussion of the facts and circumstances of the instant case with those of Safdar Ali's case placing them in juxta position came to the conclusion that the appellant was not entitled to the unclaimed benefit of the plea of self‑defence and taking the most favourable view for hint the case could at best be stretched so as to be brought within the purview of Exception is to section 300, P. P. C. On this view of the matter, his Lordship altered the conviction from one under section 302 to that under section 304, Part I, P. P. C. with an award of life imprisonment on each count.

73. By and large, I am in respectful agreement with the conclusions reached by their Lordships on the appraisal of the prosecution evidence, namely. that it stood established beyond doubt that it was none else than the appellant who had caused the fatal injuries to the two deceased Police Officers. The prosecution case rested on the ocular testimony of Muhammad Hussain, the call‑boy (P. W. 7), Rashid Ahmad (P. W. 8), Khurshid Hussain (P. W. 12) and the deposition of Qasim (P. W.) before the committing Magistrate, which was brought on the trial Court's record under section 33 of the Evidence Act on account of his death before the trial This evidence was found to have been adequately supported by the dying declara tion of Zaheer Abbas, the recoveries of the blood‑stained knife at his instance further corroborated by the evidence of his attempted abscondence to Quetta. Khurshid Hussain (P. W. 12) was not mentioned in the F. I. R., his statement was not recorded by the Police till the evening of the following day and his deposition was at variance with those of the other eye‑witnesses on the point of the clothes worn by the appellant at the relevant time. Even if as a matter of abundant caution, the testimony of this witness is excluded, the remaining evidence detailed above is good enough to burden the appellant with the responsibility of killing the two Police Officers, notwithstanding the disintegration of blood on the knife or for that matter the defence evidence based on police Report No. 81, lodged by Tasleern Ahmad (D. W. 1) and recorded by Pir Bakhsh, A. S. I. (D. W. 2) at 12‑00 in the mid‑night. Since) this report did not disclose the name of the assailant or otherwise, give a counter‑version, it could not discredit the F. I. R. recorded shortly thereafter.

74. Before expressing my humble opinion on the precise point in issue, I think a few observations on the factual aspect of the case will not be out of place. In the first instance, I cannot fail to notice that the time and place of the commencement of the last arid fateful journey of the two deceased Zaheer Abbas, A. S. I. and Muhammad Siddiq, F. C. remains shrouded iii mystery The prosecution case is that they were in plain clothes, were unarmed and went on hired‑cycles, which is indeed something unusual for Police Officers to do. It would no doubt be quite normal for members ill' Security Force or detective Police not to go in uniform but there is nothing on the record to show as to what precisely was the place of posting or attachment of the two deceased. Apparently. they were on patrol duty on the usual mission of detection of crime and apprehension of bad‑characters who might be staying for the night at the hotels close to Hyderabad Railway Station presumably a common resort of criminals operating during the night. Again one should think that while proceeding on patrol duty, the Police Officers would normally make relevant entries in the Roznamcha but nothing of the kind has been brought on the record which could precisely indicate the time and place of their departure or the object of destination of their nocturnal round. A probe into these aspects of the case by the Investigating Officer of education by the defence during cross‑examination would have been helpful in better appreciation of the case. Be that as it may, however. the fact remains that the two deceased had a coincidental meeting with the appellant when they were making usual inquiries from Muhammad Hussain, a call‑boy at Simla Hotel about the arrival and departure of some suspects or bad characters and were wholly unarmed. The appellant carne and stood close to them to which Zaheer Abbas took exception and told him to go away. His refusal to depart led to an altercation which developed into a scuffle during which the appellant fatally wounded the two deceased one after the ether.

75. After a careful consideration of the facts and circumstances of the case, I have come to the conclusion that the dictum of the Federal Court of Pakistan in Safdar Ali's race is not attracted to this case, there being hardly any analogy between the two. The principle laid down by their Lordships in that case in substance was that the special pleading of an accused did not absolve the prosecution from its responsibility of discharging the onus pro bandi as elaborated in Woolmington's case (1935 A C P 462) and if after examination of the entire evidence a reasonable possibility of the truth of the plea of self -defence could be spelt out the accused would be entitled to benefit of doubt and consequential acquittal.

76. Experience has shown that there are indeed very few cases of murder wherein the accused may not by represented or defended by a competent counsel. It is common Knowledge that all sorts of pleas reasonable, untenable or even absurd are raised by the accused‑persons in consultation with their counsel. It is very rarely that a plea even though remotely available to an M accused might not be raised by him. The well settled principle of course is that even if not raised in an exceptional case, it could still be conceded to an accused if reasonably inferable from the ambient circumstances which as stated earlier would be an exceptional situation of an extremely rare occurrence.

77. In the case before us, the plea of self‑defence conceded to the appellant by my Lord the Chief Justice on ground of reasonable possibility, was never specifically raised by him during inquiry or trial. Even the existence of they injury oil his arm was denied and sought to be suppressed by him lest it might link him up with the mid‑night occurrence. In Safdar Ali's case, the) P. Ws. on their own showing were attracted by the outcries of the deceased, claimed to have unsuccessfully pursued to catch hold of Safdar Ali who made good his escape. In this they were given a direct lie by the medical evidence inasmuch as according to the Doctor, after the receipt of a through and through injury on the thigh, Safdar Ali could not have been able to run fast which was a physical impossibility, demonstrated by the nature and dimension of the injury resulting in death‑like paleness, this irreconcilable conflict between the testimony of the P. Ws. who even otherwise, had not seen the actual occurrence and their evidence was merely in the nature of res gestae was considered good enough to warrant the rejection of their testimony with the result that the Courts had only to fall back upon the plea of self‑defence consistently raised by Safdar Ali right from the outset. It was in these circum stances that Cornelius, J., as he then was, made the following important observation :‑

78. "It must be admitted that where only credible evidence of a direct nature relevant to the determination of intention is furnished by the accused person himself who adduces facts in avoidance of the charge of murder, it requires very strong circumstances indeed of a nature sufficient to exclude the possibility of the defence plea being true . . . . . . , , .

79. Thus the first essential requirement for the attraction of the above principle, the complete and conspicuous absence of any direct prosecution evidence of a reliable character. Coupler.] with this should be the direct and credible evidence furnished by the statement of the accused in denial of the allegation of the intention to murder, which constitutes the second requirement for the invocation of the dictum. Surely none of these conditions was satisfied in the instant case where direct ocular evidence supported by medical evidence, the incriminating recoveries and the circumstance of attempted abscondence was fully believed by the Courts below and for good reasons too. Again a stated earlier, the appellant never specifically pleaded self‑defence during inquiry or trial though it was so contended on his behalf before the High Court as also before us. In fact he was at pains to suppress the incised wound on his arm which alone could lay the foundation for such a plea. Slate, however, the suppression was presumably actuated by his keenness to avoid detection and legal consequences of the offence committed by him, this may not be construed against the appellant. But a very material point distinction between the two cases is that the nature, seat and admission of the injury suffered by Safdar Ali completely excluded the possibility of its being self‑suffered whereas the injury on the arm of the appellant can be reasonably explained away on an alternative hypothesis consistent with its non‑infliction by any of the two deceased. It appears to me that it was to some extent the erroneous description of the dimensions of this injury shown in the High Court's judgment as also in the judgment of my Lord the Chief Justice as 3' x 1 ' x ` contrary to its actual measurement of ' x 1 ' x ' give by Doctor Muhammad Saeed Khan (P. W. 15) which persuasively led to the concession of this rather unclaimed plea of self‑defence to the appellant. It cannot be reasonably disputed that the two deceased were unarmed. Not a word was suggested to the P. Ws. in cross‑examination to controvert the position. Again it would be rather unusual for a Police Officer to carry a knife instead of a stick or a service revolver. Even, otherwise, if armed with a knife, the two deceased would not have so readily and passive] courted death at the hands of the appellant both being quite young and well‑built and would have given a better account of themselves in the encounter. It is significant that Zaheer Abbas was also found to have sustained two contusion marks on the forehead which he received during the acute. These must have preceded the knife injury on receipt of which he tried to run away but collapsed at a short distance. The fact that the tool deceased were empty‑banded and instead of pouncing upon the appellant grappled with him one after the other, considered in the light of the dimension of the appellant's injury leaves one in no manner of doubt that it was received by the appellant during the scuffle with his own knife and at his own hand. No wonder, therefore, that the injury was not noticed by the eye‑witnesses of this mid‑night occurrence who accordingly made no reference to it in their statements. This omission does not in any way detract from their credibility or otherwise, cast doubt or the veracity of the prosecution case. This explanation of the injury coupled with the absence of a specific plea of self‑defence on its basis further considered in the light of the reliable testimony of the eye‑witnesses, in my humble view, clearly takes the case outside the scope of the dictum of the Federal Court in Safdar Ali's case.

80. Lastly, I revert to the origin of the dispute mentioned earlier. As already observed by me it was a case of a casual meeting between the appellant and the two deceased. The fact that the appellant had been specifically named by Zaheer Abbas, A. S. I., in his dying declaration clearly shows that he was previously known to him. From his alias as Pehlwan, the admitted fact that he was challaned in a case under section 307, P. P. C. and the conduct demonstrated by him during the incident, I cannot avoid an impression that the appellant was a man of a rather desperate and hazardous nature. As the two Police Officers were making inquiries from the call‑boy, the appellant deliberately came and stopped close to them which they naturally did not relish. The A. S. I. told him to leave and yet he defiantly insisted on staving there and forced a confrontation by refusing to move away in the first instance and then using abusive and discourteous language even though in retaliation. The A. S. I. was making queries from the call‑boy in confidence about the arrival and departure of bad‑characters and was justified in telling the appellant to go away. It was, therefore, the appellant who was responsible for precipitating the situation and giving fatal injuries to the two deceased. The offence of double murder stood fully established against him However, having regard to the usually arrogant and discourteous attitude of our Police, the possibility of Zaheer Abbas having used strong language cannot be ruled out to which the appellant might have reacted violently. This might justify the award of the lesser penalty of life imprisonment on two counts as held by my learned brother Salahuddin, J. with whom, I am in respectful agreement.

ORDER OF THE COURT

81. In accordance with the opinion of the majority the convictions of the appellant on each count are altered from one under section 302 to one under section 304, Part I of the Pakistan Penal Code and he is sentenced thereunder to life imprisonment on each count.

82. S. A. H. Conviction altered.