' Briefly stated the facts of the case per F.I.R. No,11 of 1998 Police Station Quaidabad District Malir, Karachi are that on the date of incident viz. 11-1-1998 at 14-00 hours the complainant was available in his shop when the appellant/accused Rashid Ali Shah son of Moazzam Shah came to the shop and asked him to give two cigarettes for which he paid one rupee. The complainant demanded fifty Paisa more as well as balance amount upon which the accused given him kicks, abused him and took out a knife. Thereafter he exchanged harsh words with the complainant. In the meantime the complainant's son Zaheer Ahmad came to the scene and asked the accused as to why he was creating a commotion and abusing the complainant. Upon this the accused gave two knife blows to Zahir with the intention to kill him at his left armpit and on the abdomen whereupon the latter was severely injured and fell to the ground. Then the complainant's nephews namely Muhammad Asif and Shakeel Ahmad as well as neighbours arrived at the scene and tried to apprehend the accused. In this scuffle Muhammad Asif received injuries on his fingers and the accused succeeded in fleeing away. Zahir Ahmad was taken to JPMC for medical treatment but he succumbed to his injuries on his way. Hence the complaint.
2. The accused was arrested on 12-1-1998 hereafter he was sent up for trial. A charge was framed against him to which he pleaded not guilty and claimed his trial. The prosecution examined 7 witnesses in all viz. Complainant Wazir Ahmad as P.W.1 who produced F.I.R. As Exh.7, memo. Of place of Wardat as Exh.8, memo. Of arrest of accused as Exh.9, eye-witness Muhammad Asif P.W.2 produced memo. Of recovery as Exh.10/A, eye-witness Abdul Khaliq P.W.3 produced memo. Of dead body and inquest report as Exhs.11/A and 11/B respectively, P.W.4 Abdul Waheed was examined as Exh.12. The learned D.D.A. Given up P.W. Sajid and Ibrar on 23-12-1999, vide statement as Exh.13.
Thereafter the learned D.D.A. Also gave up P.W. Shakeel Ahmed on 13-1-2000, vide statement as Exh.14. P.W.5 Judicial Magistrate Allah Wadhio was examined as Exh.15, who produced statements recorded under section 164, Cr.P.C. Of P.Ws. Shakeel Ahmad and Muhammad Asif as Exhs.15/A and 15/B respectively. P.W.6, Investigating Officer, S.I.P. Muhammad Aslam was examined as Exh.16, who produced receipt of handing over the dead body as Exh.P.16/B, P.W.7, Dr. Ayaz Ali.M.L.O. JPMC, Karachi as Exh.17, who produced report of dead body as Exh.17/A and Postmortem Report No,0023/1998, as Exh.17/B and Chemical Analysis Report as Exh.17/C. Thereafter the learned D.D.A.
Closed his side, vide statement as Exh.18.
3. The appellant/accused was examined under section 342, Cr.P.C. Wherein he pleaded his innocence and deposed that the complainant party had assaulted him with an iron rod with the intention to kill him and also caused injury on his person. In his defence he examined D.W.1 Dr. Irshad Ali who produced medical certificate of the appellant as Exh.20/A.
4. Upon hearing learned counsel for the appellant as well as learned D.D.A. Learned trial Court came to the conclusion that the appellant was guilty of the offence under section 302, P.P.C. And sentenced him to undergo R.I. For 20 years and to pay a fine of Rs,50,000 and in default of which he was to undergo to R.I. For 6 months more. He was additionally directed to pay compensation of Rs,50,000 to the legal heirs of the deceased under section 544-A, Cr:P.C. And in case of default to undergo R.I. For 6 more months. The benefit of section 382-B, Cr.P.C. Was extended to him.
5. Mr. Shaukat H. Zubedi in support of the appeal has firstly submitted that the incident took place allegedly at 2-00 p.m., in the afternoon whereas the F.I.R. Was lodged at 7-00 p.m. After a delay of 5 hours which has gone unexplained. Similarly per the prosecution the memo. Of dead body was prepared at 17-30 hours by the police authorities and hence per learned counsel there was no impediment in the F.I.R. Being lodged at the hospital at least by that time.
6. Secondly learned counsel has submitted that the incident is not denied by the appellant but his defence is that he was first provoked by the complainant and the deceased who caused how two injuries whereafter he attacked the deceased. In this regard learned counsel has referred to the deposition of D.W.1, Dr. Irshad Ali who had examined the accused and certified that he had received two injuries one on the head and the other one on the right finger which were caused by a hard and blunt substance. Such examination was carried out on 12-1-1998 and' hence the delay in sending the accused for the same was due to the prosecution as he was arrested on 11-1-1998.
7. Next learned counsel has submitted that the injury to the accused remains unexplained 13y the prosecution which has been established by D.W. Dr. Irshad Ali. In fact such injury is not even mentioned in the F.I.R. And has been totally denied by the eye-witnesses. In this connection learned counsel has also submitted that per the report produced by D.W. Dr. Irshad Ali the accused arrived at the hospital at 4-40 p.m. And according to his deposition he had with him a letter issued by the police who had referred him to the hospital for treatment of his injuries which were caused by a hard and blunt substance. At the time of examination the accused had not been treated at all.
However, contrary to this P.W. Asif has deposed that the accused was arrested on 11-1-1992 at night.
Consequently, per learned counsel the right of private defence s enshrined in section 96, P.P.C. Is fully available to the accused. In support of this proposition learned counsel relied upon Zarid Khan v. Gulsher 1972 SCMR 597, Ahmad Din v. Faiz Ahmad 1972 SCMR 549, Gulabat Khan v. The State PLD 1971 Pesh. 7, Sadiq v. The State PLD 1967 SC 356, Samoo v. The State PLD 1962 Kar. 495, Sultan Muhammad v. The Crown 1970 PCr.LJ 670, Muhammad Shareef v. The State 1992 PCr.LJ 1219 and Ejaz Ahmed alias Gandhi v. State PLJ 1999 Lah.
306.
8. Finally, learned counsel has submitted that per the memo. Of the examination of the dead body the accused was clothed in a white Shalwar Qamees but to the contrary when his post-mortem was conducted he was shown as wearing T. Shirt and brown Shalwar. In the foregoing circumstances learned counsel has prayed that the appeal be allowed.
9. Mr. Fazlur Rehman learned State Counsel has fully supported the impugned judgment on the basis that firstly the eye-wijnesses have corroborated each other and that they are worthy of reliance as there is nothing on the record to suggest that there was any enmity between them and the accused. As far as the injuries to the accused are concerned learned counsel has submitted that the incident took place on 2-00 p.m., on 11-1-1998 whereas he was arrested on 12-1-1998 and sent for medical examination at 4-40 p.m. On the same day. Hence if as per the accused, he caused the fatal injuries to the deceased while exercising his right of private defence; why did he not approach the police earlier. In this connection learned counsel has also submitted that the accused has received only minor injuries and he also failed to examine any witness in this regard and neither did he say anything to the police during investigation in this matter. Finally per learned counsel as far as the right of self-defence is concerned there is nothing on the record to show that the deceased had given him any injury or provoked him. He has therefore, supported the impugned judgment and prayed for dismissal of the appeal.
10. I have heard both the learned counsel and my conclusions are as follows:--
11. It would be seen that the right of private defence in section 97 of the P.P.C. Provides that every person has a right to defend his own body and the body of any other person against any offence affecting the human body and as also any movable or immovable property belonging to himself or any other person against any act of theft, robbery, mischief or criminal trespass or an attempt to do so. Section 100 further provides that the right of private defence of the body extends to causing death or any other harm to the assailant where the assault may either reasonably cause the apprehension of death, grievous hurt, rape, gratification of unnatural lust, kidnapping or abduction or wrongful confinement. Finally, section 102 of the P.P.C. Provides that the right of the private defence of the body commences as soon as a reasonable apprehension of dange to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues.
11-A. In the light of the foregoing provisions of law it would not have to be seen whether the right of private defence was available to the appellant in the circumstances of the case as the incident has not been denied by him, this being the only defence agitated on his behalf.
12. In this connection it would be seen that the eye-witnesses including the complainant have deposed that the deceased never gave the appellant any threat or otherwise did anything which would reasonably cause any apprehension in the mind of the appellant that the assault would lead to either death, or grievous injury etc. Per section 100 of the P.P.C. According to deposition of P.W.1 who is also the complainant, Zubair Ahmed only intervened at the scene of the offence when the accused had already started beating and abusing the complainant. Such intervention was also only to the effect as to why the accused was doing so upon which the fatal injuries to the deceased were caused by the latter. Thereafter a scuffle ensued t,etween the accused and his nephews Muhammad Asif and Shakeel Ahmed as well as other persons who tried to apprehend the accused but failed to do so. In the said scuffle P.W. Muhammad Asif received injuries on his fingers. Under cross-examination he has denied that it was he and his son who initially started beating the accused with an iron rya. P.W. Muhammad Asif Khan who is an eye-witness has fully sift, ',cited the deposition of the complainant. However, he has admitted in his cross-examination that the complainant and the accused were both abusing each other during the course the dispute regarding the payment of outstanding amount by the accused which lasted for about 10/15 minutes. He has denied that the accused was beaten up with an iron rod by the deceased.
However, on the other hand, it would also be seen that the accused has received two injuries with a hard and blunt substance which have been verified through the n edical evidence on the record.
Yet there is no evidence to suggest whether these injuries were received prior to the knife blows caused to the deceased by the accused or afterwards and whether the deceased had caused him the injuries.
13. It is settled law that the buraen of proving the rig..t of private defence is not a heavy , one upon the accused and the over all circumstances of the case are to be looked into for the purpose of coming to a conclusion whether such right was available to the accused or not. Where a doubt has been created in the mind of the Court as the likelihood of the existence of such right, the benefit must go to the accused. For this statement of law the case of Zarid Khan v. Gul Sher (supra) is sufficient authority. In this case the Honourable Supreme Court observed as follows:-- "The onus is entirely on the prosecution to prove its case beyond any reasonable doubt. If in the facts and circumstances of the case there appears a likelihood of the existence of a right of private defence, the accused is entitled to the benefit of this right, for, such a situation will react on the whole prosecution case and will lead the Court to hold that the prosecution has failed to prove its case beyond any reasonable doubt.
' The plea of the accused may not be established and yet it may create a reasonable doubt with regard to his guJt. It cannot be said that because under section 105 of the Evidence Act the burden of proof is on the accused and he has not discharged that burden but has only raised a reasonable doubt, the Court has to convict him in spite of the existence of such a doubt. The decision has to be taken on the entire evidence and not on the special pleading."
' The Honourable Supreme Court in this case came to the conclusion that the respondent/accused had in the circumstances of the case created a reasonable doubt with regard to his guilt viz. That there appeared to be a likelihood of the existence of such right and hence upheld the acquittal as adjudged by the learned Lahore High Court.
14. Similarly in the case of Ahmad Din v. Faiz Ahmad (supra) it was observed by the Honourable Supreme Court that the injury on the person of accused Hashim who pleaded the right of private defence on the basis that he was attacked by the deceased first, was not at all explained by the prosecution witnesses who instead had tried to suppress the same. In the facts and circumstances of the case the Honourable Supreme Court came to the conclusion that the right of the accused to defence himself continued as long as reasonable apprehension persisted and such right could not be modulated step by step nor could be weighed in golden scales. The mere fact that the deceased received three injuries whereas accused got only one does not by itself show that the latter had exceeded the right of self-defence. In the circumstances of the case the Honourable Supreme Court upheld the judgment of the Lahore High Court who had acquitted the accused.
15. So also in the case of Sultan Muhammad v. Crown (supra) although the plea of self-defence was not raised during the inquiry or trial but certain issues appearing in the prosecution evidence supported such possibility. Special Leave to Appeal was granted by the Honourable Supreme Court to consider whether and if so to what extent the act of the accused was covered by the right of self-defence.
16. Applying the foregoing principles of law to the facts of the present case it would be seen that the death of the deceased occurred over a petty issue viz. Non-payment of a few rupees to the complainant , by the accused. It has come on the record that the complainant and the accused had been arguing about this matter for 10 to 15 minutes before the deceased arrived on the scene since as much as been admitted by P.W. Asif under cross-examination. It has also come on the record that both the complainant as well as the deceased were available at the scene and although the deceased has only been ascribed the role of having inquired politely from the accused as to why he was creating a commotion, in my opinion, when the complainant and accused were abusing each other this could hardly be the reaction of the deceased who was the complainant's son. It would also be seen that the prosecution has totally failed to explain the injuries sustained by the accused which has been proved through medical evidence; in fact the prosecution witnesses have tried to suppress the same by denying a suggestion in cross- examination that it was the complainant and the deceased who had given such injuries to the accused. I have already observed that there is nothing on the record to show whether the accused received his injuries prior or after he had caused the knife blows to the deceased. However, the plea of private defence taken by the accused when put in juxtaposition with the prosecution case only leads to the conclusion that the accused did receive the injuries at the scene of the crime in question. Consequently, in my view in the facts and circumstances of the case, a reasonable doubt has been created regarding the availability of the right of private defence to the accused, the benefit of which must go to him. Accordingly, I would allow this appeal and would acquit the accused. He shall be given his liberty if not required in any other case.