STATE Versus MUHAMMAD HUSSAIN

ORDER

This petition for leave to appeal is directed against the order passed by a Division Bench of the High Court on 20-4-1978, whereby finding no sufficient reasons to interfere with the judgment of acquittal in favour of respondent and others (accused) recorded by the learned Sessions Judge, Mirpur, the State appeal was dismissed.

2. This facts of the prosecution case as disclosed in the judgment of the High Court are that Abdul Rehman, the complainant, Muhammad Hussain, his father, Muhammad Khan, his brother and Manga, his cousin were working at a thrashing place on 29-3-1974 when at about 8-30 a.m. Muhammad Hussain, Ghulam Nabi and Abdul Rauf armed respectively with a gun, axe and stick came there challenging the persons at work as to who they were to stop their women to fetch water from the water tanker and that for so, they would not leave them alive. On this challenge of the above named respondents, the persons working at the thrashing floor ran away to save themselves from the rigours of the attack to be launched at them and while they were running towards their abodes, they were stopped from the front by Muhammad Ashiq and Abdul Khaliq who lay in wait and who were also armed with sticks. On this, they changed their direction towards west from a graveyard but in that direction they had also met the challenge hampering them to escape as Manzoor Hussain armed with a knife and Munshi Khan armed with a stick were found standing in front of them on their way to escape. Thus in this manner, they were circumvented by the respondents and having found themselves encircled, Muhammad Khan deceased one of them, implored to Muhammad Hussain earnestly not to kill them (complainant party) but no heed was paid to his imploration as a result of which Muhammad Hussain find at Muhammad Khan but it went amiss as Muhammad Khan could save himself by resorting to a lying position. Muhammad Hussain started to re-load the gun which was snatched away by Abdul Rehman, complainant and thrown to Muhammad Hussain to hold it up. Thus after having become empty-handed, Muhammad Hussain picked up a stone and hurled the same at the eye of Muhammad Khan deceased and Manzoor Hussain, respondent stabbed him with a knife in his belly as a result of which injury Muhammad Khan succumbed to it instantaneously on the very scene of occurrence. Then Munshi, respondent inflicted a blow of stick at the chest of Abdur Rehman and Ghulam Nabi, respondent gave a blow of axe on the head of Abdul Rehman and some of the other respondents also beat him. Manga Khan was also beaten by Ghulam Nabi and other respondents excluding the women. The women-respondents who were also there following the complainant while in the process of escaping, snatched away the gun from Muhammad Hussain which was firmly held by him but his wrist was bitten by the women with their teeth and thus it was then with the help of Muhammad Hussain respondent that they were able to get back the gun snatched from Muhammad Hussain. Some say that the teeth were used by Azra and Najma, daughters of Muhammad Hussain and some state that Mst. Rasoolan wife of Muhammad Hussain was also a participant in the act of using her teeth against the person of Muhammad Hashim in order to get the grip of the gunloose. Hashim himself states that biting by teeth was done by Mst. Rasoolan alone and no such attribution was made to the girls by him. Mst. Noon Bi mother of Abdur Rehman was also attracted to the spot where whose ear-ring was pulled by Azra, respondent from her ear thereby tearing it off.

3. The prosecution, in support of its case, has examined Abdur Rehman, Muhammad Hashim, Manga, Feroze Ali, Faiz Alam, Mst. Noon Bibi, Ahmed Din, Raja, Syed Yusuf Shah, Retired D. S. P., Noor Hussain Constable, Raja Muhammad Iqbal, Said Aslam, Raja Feroze Khan, D. S. P., Muhammad Amin, Head Constable, Muhammad Afzal, S. I., Dr. Ch. Muhammad Akram, D. M. O. and Munshi Muhammad Asif Patwari, as prosecution witnesses.

4. The learned Sessions Judge, ride his judgment dated 18-10-1976, after critically examining the evidence, found that the complainant party was the aggressor, therefore, the accused were well within their rights to cause death of Muhammad Khan. This finding found favour in the High Court with the following conclusion:-

"In the circumstances of the case, it appears that the complainant party being assailants had even inflicted grievous injuries to Munshi, respon dent and Mst. Rasoolan respondent was also wounded. There eras thus a reasonable cause for believing on latter's part that the attack would have resulted in death of any one of them. So they could go even to the length of causing death of their adversary. There were four injuries hurled at the head of Munshi respondent with a sharp weapon as well as blunt one and Mst. Rasoolan had also received an injury on her bead. The head is a vital part of the body; and any injury on the same with any lethal weapon can lead to an apprehension to the party attacked that death would result of the persons so attacked and so they could have had every justification to cause homicide in self- defence or do any other harm to the assailants as was necessary to avoid the danger apprehended."

5. Raja Muhammad Akram Khan, Advocate-General, seeks. leave to appeal on the ground that the High Court omitted to consider--

(i) that the accused has not pleaded self-defence in their statements under sections 242 and 341, Cr. P. C. ; and

(ii) that the evidence; does not prove that the complainant party was the aggressor.

The argument merits no consideration. It is true that in a criminal appeal against the acquittal, the whole case is open in the same manner as is in an appeal from the conviction. But it should be remembered that the Court of appeal must, in a case in which an acquittal is sought to be set aside, consider that the presumption of innocence of the accused become stronger by the acquittal order passed and such an order is not to be lightly interfered with by the High Court.

6. In the instant case, I have gone through the judgments passed by the learned Sessions Judge as well as by the High Court. Both the Courts, after careful and elaborate consideration of the evidence adduced in the case, found that the respondents (accused) are innocent. Such a considered finding can hardly be assailed in the Supreme Court.

7. The Supreme Court, no doubt, as argued, has every right of examining the evidence in a criminal appeal if such examination is in the interest of justice. But this will be done only (which is not the case here) when the circumstances in a case so warrant i.e. when the finding arrived at by the Courts below is patently erroneous or is such that it could not on the evidence be arrived at. However. it is neither possible nor desirable to lay down an bard and fast rule on this aspect, and each case is to be judged upon its own facts and circumstances. But one thing is sure that where all the points raised in the case relate merely to the appreciation of evidence, the Supreme Court will not undertake the function to reappraise the evidence unless there is some serious disregard of the principles governing the appreciation of evidence. No such defect is traceable in this case.

8. I do not agree with the learned Advocate-General that the accused must plead self-defence. The law is now settled that if prosecution evidence itself provides a defence to an accused, he cannot be denied of the benefit of such defence on the ground that it is not specifically pleaded.

For-the view I have taken in the matter the petition for leave to appeal is disallowed.

Leave refused.