SONA Versus STATE
K. M. A. SAMDANI, J.-- T his judgment will dispose of murder Reference No. 111 of 1970 and Criminal Appeal No. 258 of 1970, of Mr. Muhammad Hussain, Additional Sessions Judge, Dera Ghazi Khan, whereby he convicted the appellants under sections 148, P. P. C., 324, P. P. C. and 302, P. P. C. read with section 149 of the sane Code and sentenced each of them respectively to three years' R. I., one year R. I. and to death under the said sections.
Another person ‑Muhammad Siddique by name had also been tried along with the appellants under the same charges but was acquitted.
2. The prosecution case is that the appellants and the acquitted accused formed an unlawful assembly together with 4 other persons, namely, Nabi Bakhash, Mewa, Ahmad Bakhah and Ghulam Hussain on the 28th of November 1968, armed themselves variously with guns, swords, and sticks and waylaid and attacked a group of persons with whom they had a score to settle. As a result of the attack, two persons from the victim group namely. Ghulam Haider and Ramzan lost their lives and one person, namely Faqira sustained an injury. The said Faqira lodged the first information report with the police. According to this report, the victim group consisted of 9 persons, namely, Ilahi Bakhash, Allah Bakhash Muhammad Bakhash, Moosa, Babar, Bakhar, the said Faqira complainant, Ramzan deceased and Ghulam Haider deceased.
The facts leading to the alleged assault by the appellants and their companions as alleged by the prosecution are as follows:‑
Ghulam Hussain. a member of the appellants party had a wife named Mst. Bharawan. Five or six days prior to the occurrence in question she eloped with Ramzan deceased but a couple of days later she was restored to her husband. On the day of the occurrence in question, however, the said Ghulam Hussain picked up a quarrel with his wife whereupon, apprehending harm at the hands of her husband, she ran out of her house in order to get away from him but Ghulam Hussain chased and caught her with the help of ‑Mewa, another member of the appellants' group, and killed her within the sight of Faqira complainant and his brother Bahar and another person Sojhla. Since there was already bad blood between the two parties on account of the elopement of Mst. Bharawan with Ramzan deceased. Faqira complainant and his brother Bahar were apprehensive that they would be falsely accused of the murder of Mst. Bharawan. Therefore, according to the first information report, they thought it wise as a precautionary measure to inform their relatives about the murder of Mst. Bharawan. Accordingly Faqira complainant and his brother Bahar went to the house of Ilahi Bakhash where they found Allah Bakhash, Bakhar, Moosa, Muhammad Bakhash, Ghulam Haider deceased and Ramzan deceased also present besides Ilahi Bakhash. From there (according to the version in the F. I. R.) these nine persons set out for the place where Mst. Bharawan had been murdered. But they were waylaid near Dajli Band by the appellants and their companions.
From the evidence on record it is clear that as a result of the clash between the two groups not only Ramzan and Ghulam Haider deceased from the complainant's group lost their lives but four persons, namely, Nabi Bakhash, Mews. Ahmad Bakhash and Ghulam‑ Hussain, from the appellants group were also killed.
The appellants and the acquitted accused pleaded not charges and set up the plea of self‑defence. They asserted that in they and their companions had been waylaid by the opposite group and attacked; and they merely acted in the exercise of their right of private defence.
3. The facts narrated above, in our opinion, present three possibilities, namely :‑‑
(i) that either the appellant's group was the aggressor and attacked the complainants' group while the latter was peacefully passing by the Dajali Band, (which is the prosecution case), or
(ii) the appellants and their companions were waylaid and attacked by the complainants' group while the former were peacefully going towards Bahadur Garb from their village (which is the case of the appellants),
(iii) the two groups prepared for a show down, formed themselves into unlawful assemblies with the purpose of committing roil, and had a free fight near the Dajali Band which resulted in the death of a total of six persons; two for one side and four from the other.
4. The prosecution has examined three eye‑witnesses in this case; namely, Faqira complainant (P. W. 14) Naurang (P. W. 15) who was, not a member of either group but reached the scene of occurrence on hearing the reports of the firearms and Bahar (P. W. 16) the brother of she complainant. Neither from the statements of these three witnesses nor from any other piece of evidence on record can it be inferred that two rival groups had met at the scene of occurrence with the intent of having an armed clash and committing roit. Thus we are left to examine as to whether the appellants and their companions were the aggressors or they merely acted in self defence on being attacked by the complainant's group.
5. As has already been stated above, the prosecution case as disclosed in the first information report is that the complainants' group consisted of nine persons when it was attacked by the appellants' group of seven. But in the course of the trial not only the complainant changed this version considerably but the other two eye‑witnesses also supported him in his subsequent assertion that from the complainant's side only four persons namely, the complainant himself, his brother Bahar, Ramzan deceased and Ghulam Haider deceased were involved in the incident. This attempt on the part of the complainant and the other two eye‑witnesses to keep five persons of their group out of the picture is significant in view of the plea of self‑defence taken by the appellants; and the fact that a cross case was registered against all the nine of them at the instance of the acquitted accused Siddique explains it. However, the conclusion that the witnesses are suppressing the truth for whatever reason is inescapable. Further, Faqira complainant failed to state in the first information report as to how four persons from the appellants' group, namely, Mewa, Ghulam Hussain, Ahmad Bakhash and Nabi Bakhash came by their injuries and consequent deaths. He did, no doubt mention that in the course of the struggle those four persons along with Sona appellant received injuries at the hands of the members of the complainant group. But it is difficult to imagine how the complainant's group which had allegedly been taken by surprise and was apparently unarmed as no arms were mentioned in the first information report could kill as many as four members of the aggressor group at least four of whom were armed with fire arms and others with swords at. However, aware of this weakness in their case the eye‑witnesses subsequently tried to cover it up by giving some details in their statements before the trial Court of how the members of the appellants group were injured. But on this point there are contradictions in the testimony of the three eye‑witnesses. Besides all the three had to be confronted with their earlier statements several times because of the improvements they made in their statements at the inquiry and trial stages.
Further, the most dazzling assertion made by the eye‑witnesses in this case is that the members of the appellants' group who were armed with guns fired at the complainants' group. Yet no one was hit although the two groups were close enough to cause injuries to one another with swords and sticks. This is not merely improbable but it is next to impossible. If at all firearm were used in this case, the manner of using them must have been quite different from that described by the witnesses. We are, therefore, of the considered opinion that from the evidence on record it is not possible to determine as to how the trouble began, as to who the aggressor was and as to what brought the two groups to Dajali Band and where the clash occurred.
It is, however clear that the witnesses have not spoken the whole truth and so it is not safe to rely upon any part of their testimony.
6. In these circumstances the possibility of the appellants and their companions having acted in the exercise of the right of their private defence cannot be ruled out. The appellants are, therefore, entitled to the benefit of doubt.
7. We, therefore, decline to confirm the sentences of death passed on them, accept their appeal, set aside their convictions and sentences and acquit them.
Appeal allowed.