TARIQ PARVEZ KHAN, J. -- When Criminal Petition No, 286 of 2009 was heard by this Court on 16.5.2009, leave to appeal was granted therein to reconsider the entire evidence, therefore this appeal.
2. Mushtaq Hussain and Muhammad Nazir are two appellants who were tried by learned Additional Session Judge, Rawalpindi, as they were charged for causing firearms injuries to Ashfaq Hussain and Altaf Hussain, therefore at the end of trial they were both convicted and sentenced as under:-- ' Mushtaq Hussain: convicted under Section 324, P.P.C, and sentenced to ten years' rigorous imprisonment and further convicted under Sections 337-F(iii) and 337-F(iv), P.P.C, and sentenced.to pay Rs, 25,000/- as Daman to injured Ashfaq Hussain, failing which to undergo further six months' simple imprisonment.
' Muhammad Nazir: convicted under Section 324, P.P.C, and ten years'- rigorous imprisonment and to convicted under Sections 334/337-T, P.P.C, and sentenced to pay 1/10th of Diyat on each count for lost fingers of Altaf Hussain; in addition to pay Rs, 60,000/- Arsh to Altaf Hussain injured, failing which to undergo further six months' simple imprisonment.
3. Not satisfied from the judgment of the Trial Judge dated 31.10.2003, they preferred appeal before Lahore High Court Bench at Rawalpindi which stand decided on 30.4.2009 wherein conviction and sentences of two appellants were maintained.
4. Written application as Ex.P.A. was produced before the in charge of Police Post Chak Bali Khan, Police Station Chountra, Rawalpindi duly signed by Altaf Hussain (PW-1) wherein he narrated the occurrence by stating that, "he got contract of loading and unloading of Gas cylinders from POL Gas Company as against accused party, which has caused them annoyance and that their relations became strained which resulted into numerous quarrels between them."
5. lt was stated that on the day of occurrence i,e, on 9.3.2003 at about 5/5.15 p.m. when Altaf Hussain complainant along with his brother Ashfaq Hussain and one Shakil Ahmad were present outside the gate of POL Gas Company, then Mushtaq Hussain and Mudassar armed with Kalashinkov, Wahid armed with 8-MM rifle, Muhammad Irshad armed with 30-bore pistol, Muhammad Khan armed with 7-MM rifle, Baber Nadim and Shah Nawaz both armed with 30-bore pistols while Muhammad Nazir armed with Kalashinkov came to the gate of said Company. No sooner they reached, Mushtaq Hussain is alleged to have made fire shot with Kalashinkov hitting Ashfaq Hussain on the chest while the second fire shot landed at his right leg. Muhammad Nazir also armed with Kalashinkov is alleged to have fired at Altaf Hussain complainant hitting him on the two fingers of the right hand. He has thereafter attributed role of effective firing to other co- accused namely: Mudassar, Muhammad Khan, Babir Nadim and Shah Nawaz, lt was further alleged that during indiscriminate firing of the accused, Mudassar their co-accused was hit and died, ln all eight accused persons were charged in this case. Out of which Mudassar died on spot on the same day for which a separate case was registered against the complainant party of this case.
6. Except for the two .appellant? and excluding Wahid co-accused who did not surrender, rest of the accused were acquitted by the Trial Court by holding that prosecution could not prove their presence on the scene of crime.
7. To prove the charge against the two appellants prosecution examined in all six witnesses but the relevant witnesses are Altaf Hussain PW-1 who is complainant of this case and was injured and Ashfaq Hussain his brother who appeared as PW-3. Shakil Ahmed eye-witness named in the F.I.R, was not produced.
8. Undisputedly both the eye-witnesses have charged the present appellants for causing them fire-arms injuries, but they have attributed similar role to other acquitted co-accused. Presence of these two witnesses cannot be doubted and has not be doubted by the two Courts below and rightly so because they carry stamp of firearms injuries on their person.
9. Learned counsel for appellants has argued that the testimony of the two. eye-witnesses is not in conformity with the medical evidence as* to the direction of injury received, because these were not possible if were caused in the manner as given by the eye-witnesses. Next it was argued that one of the injury on the person of Ashfaq Hussain was having burning marks which would not be possible from the distance of 35 to 40 feet. Contention is that* if Ashfaq Hussain was victim of firing made by Mushtaq Hussain the appellant, all injuries on his person should have similar effect which is not the case therefore ocular account shall be excluded. ' lt is also argued that effective role of firing is attributed to four acquitted co-accused but the testimony of the two injured eye-witnesses have been disbelieved against them and for relying on their ocular account viz. two appellants, it was required that there should have been sought independent physical corroboration in the shape of recovery of empties etc. Lastly it was argued that it is a case of two versions i,e, if on one hand the two eye-witnesses of this case have sustained fire-arms injuries but on the other hand a co-accused of the two appellants namely Mudassar brother of Mushtaq Hussain appellant has lost his life, lt is argued that PW Ashfaq Hussain and other were charged for the killing of Mudassar and that Ashfaq Hussain was awarded death sentence by the learned Trial Judge but in appeal was acquitted therefore applying the rule of consistency between the two parties where both have suffered losses, benefit of doubt was equally available to the two appellants which has not been given/extended by two Courts below.
10.Learned Deputy Prosecutor General has argued that the learned Trial Judge has held that no doubt that there is cross-version and no doubt neither of the parties established as to which party was aggressor and which was agreed upon but it will be a case of free fight making every accused responsible for his individual act. His submission is that the two injured eye-witnesses have supported the charge against the appellants therefore, they have been rightly convicted and sentenced. He has also argued that mere existence of cross-cases cannot help the appellants because the defence has not specifically set up the plea of self-defence.
11.For the preceding paragraphs we have agreed with the learned Trial Judge as well as with the learned Judge of the High Court but to the extent to accept the presence of two eye-witnesses namely Altaf Hussain and Ashfaq Hussain. The reason for our agreement is that they were both having fire-arms injuries on their persons which were located on different parts of their bodies, thus excluding the possibility of being self-inflicted.
12.There are certain admitted facts not only between the two parties before us i,e, accused and complainant party but similarly admitted by the learned Trial Judge as well as learned Appellate Court. These facts are that on the same place and on the same place and on the same day and same time if on one hand two PWs have sustained fire-arms injury but one of the co-accused of the co-accused of the present appellants was killed with firearms for which there is sufficient material on record, lt has been admitted by complainant in the F.I.R. Ex.PA that Mudassar co- accused was hit with the firing of his companions (who later on died); Similarly in their cross- examination they have admitted the killing of Mudassar but at the hands of his own companions.
Two Courts below have also accepted that there is cross-version against the complainant party of this case for killing of Mudassar co- accused of the present appellants.
13.We first referred to the statement of Altaf Hussain (PW-1) and then to the statement of Ashfaq Hussain, followed by reference that will be made to the statement of Masood Ahmad, Sub- Inspector PW-6 who is the investigating officer not only of this case but also of the murder case of Mudassar (co-accused of the appellants).
14.Having said in his F.I.R, that Mudassar deceased was hit with the fire shot of his own companion, Altaf has admitted in his cross-examination "I cannot tell the Mudassar deceased was hit by whose fire of his companion". He further admits regarding the case F.I.R. No, 41 of even date under the murder charge registered on the report of Muhammad Khan acquitted accused. He further admits that his application Ex.PA was taken as a counter version by the Police.
15.Referring to the statement of Ashfaq Hussain, he admitted in- his examination-in-chief the killing of Mudassar but with the firing of his own companion, he admitted that he is an accused in murder case of Mudassar, pending before the same learned Trial Judge. He was suggested that denied that on the day of occurrence Mudassar and Altaf Hussain has scuffled, Altaf Hussain was armed with Kalashinkov which fell down during the scuffle which was picked up by the Mudassar deceased (co- accused) who used the same for causing injuries to Altaf Hussain and to him and that he being armed with 30-bore pistol made firing as a result of his firing Mudassar was killed. He was further suggested that fight took place between the deceased of the cross-case and him as well as Altaf Hussain PW.
16.Masood Ahmad, Sub-Inspector PW-6 admitted recording of case F.I.R. No, 41 for the murdering of Mudassar dead accused. He further admitted that eyewitnesses of one case are accused in the other and so on. He also admitted to have conducted investigation in the cross-case and that during his investigation complainant party of this case never took up the plea of self-defence.
' We have made few references to the statements of two eye-witnesses and I.O. to communicate that there is admission of existence of cross-case by the prosecution side.
17.Not because what we have observed in above paragraphs, even the Trial Judge could not get out of the factual position when in para-2 of its judgment, he make reference that on cross-version to Altaf Hussain case, F.I.R. No, 41 was lodged for murder charge by Muhammad Khan acquitted co- accused against the two eye-witnesses and others.
18.Even in the body of judgment the defence version and the version of the cross-case is repeatedly recorded with reference to the argument of the learned defence counsel. For us paragraph 23 of the learned Trial Judge is very important for concluding that it is a case of two versions, paragraph 23 is reproduced as below:-- "23. Both the parties have admitted the time, date and place of occurrence. The presence of PWs is also admitted as they got injuries in the occurrence. Previous enmity between the parties regarding criminal litigation pending in different Courts is admitted. The Tussel between the Altaf Hussain complainant and Muhammad Khan accused regarding obtaining of tenders of loading and unloading of cylinders of POL Gas Company Pindori is also admitted as both had deposited the tenders with the said Company and Altaf Hussain complainant succeeded in getting the same.
Both the parties suppressed the real facts regarding injuries received by Mudassar Hussain deceased of the accused party and the injuries by the complainant Altaf Hussain and his brother Ashfaq Hussain as both the parties claimed that their opponents received injuries by their own companions."1 19.However notwithstanding as observed by the Trial Judge in paragraph 23, the learned Trial Judge vide his judgment in paragraph 26 admitted that I.O. has found acquitted accused of the present appellants to be found innocent during investigation, ln paragraph 27 of the judgment of the Trial Judge we find as under:-- "27. In view of the above-mentioned circumstances, have come to the conclusion that both the parties suppressed the real facts and did not come to the * Court with truthful version and in such eventuality where versions of the parties are not fully truthful and are not helpful for the purpose of just adjudication.".
20.However having held that both the parties are suppressing real facts and have not come out truth, learned Trial Judge proceeded to hold that it was a case of free fight, which in our opinion is a wrong conclusion because it was not a case of fight where two parties have confronted each j other and started quarrel, scuffle and then grappling and then attacking each other.
21. Keeping in view, the evidence of the parties even Hon'ble Judges of the High Court in Chambers were compelled to record in paragraph 7 of their judgment. "At the same time, we note that both the parties i,e, Altaf Hussain and others on one side and Muhammad Khan, etc, on the other were narrating the occurrence in different manners, for obvious reasons to twist the facts in 'order to save themselves and to implicate their opponents."
22.The finding of the learned High Court, which appears to us is not correct where Court is of the opinion that both parties are not bring truth on record then two versions are to be put in juxtaposition and Court of its own, shall conclude as to which version is more probable.
23.ln this case both the parties are not residents of the scene of crime. The presence of complainant party is explained by stating that they were having some contract of loading and unloading of cylinders with POL Gas Company. lt has also come in evidence that the houses of accused parties are Situated nearby within a distance of less than 1 KM and that between the residents of the accused and POL Company there is no 'abadi', therefore coming to Hotel which is the scene of crime for taking tea, no exception can be taken about the presence of either party.
24.lt has come in the statement of two eyewitnesses that the parties have strained relations from before for which they have quarreled and on one occasion cross-cases were registered against each other, ln view of the above that there are strained relations between the parties and they get together on one spot, both residing away from the spot, possibility cannot be excluded that having seen each other they both attack each other and in the attack two prosecution witnesses of this case sustained fire-arms injuries and one man from the either side was killed will be a case where no evidence can be led to show that which party which stated aggression.
25.To rebut the argument that the defence did not plead right of self-defence, we will refer to very recent judgment by this Court reported as Ghulam Farid v. The State (2009 SCM R 929) where it was ruled that an accused if not raised the plea of self-defence, during the trial either in his statement under Section 342, Cr.P.C, or at the time of cross-examination of prosecution witnesses Court, however, could infer the same from the evidence led during trial if it was tenable.
26.Since benefit of cross-version was given to the accused of cross-case, same will be extendable to the present two appellants particularly when the eye-witnesses were injured but have charged the acquitted co-accused as well for causing injuries to them. The net result of this detailed discussion is that since both the Courts below have held that there is a cross-case and no definite finding can be given about the aggression made by the present appellants, they were entitled to benefit of doubt.
' We therefore allow this appeal, convictions and sentences are set aside and they are acquitted of the charges. They shall be released forthwith, if not required in any other case.
Appeal allowed.
' MIAN SHAKIRULLAH JAN, J. -- I have gone through the proposed judgment of my learned brothers with a dissenting view. However, I will give my own reasons for arriving at a conclusion. The necessary facts have already been given in the two proposed judgments need not to be reiterated except, where reference is necessary.
2. This appeal has been filed with the leave of the Court, concluding paras 3 & 4 of the leave granting order read as under:-- "3. Learned counsel stated that it was the case of acquittal in view of the evidence available on record but the High Court without taking into considferation total evidence has maintained the sentence/conviction awarded to them by the Trial Court.
4. Contentions raised, require consideration, Leave to appeal is granted."
3. The tenor of the leave granting order is for reappraisal of the evidence. Since it is a criminal case, being an appeal for re-assessm ent of the evidence, for arriving at our conclusion, the entire evidence will have to be analyzed and the findings of facts recorded by the two Courts below would be of no consideration or of less consideration with some weight to be given to that of the Trial Court, regarding the credibility of witness as having the benefit by observing his (witness) demeanour, and when all the witnesses had been examined by the same Presiding Officer/Judge, who passed the order of acquittal or conviction in the case, ln the civil cases and particularly at the level of . second appeal such a consideration, the arrival of the Courts below at a concurrent finding on question of fact is relevant, but that is because of the law envisages so unlike criminal appeal where the entire evidence is to be assessed.
4. It is a case unique of its kind where the Police, after the receipt of a written statement from the complainant, instead of registering a separate and independent F.I.R, on the basis of the above written statement made it a part of a case registered vide F.I.R. No, 41/2001 under Sections 302/148/149, P.P.C, claiming casualty by the rival party at the hands of the complainant party, may be, considering both the counter-versions to be the result of one occurrence and thus entered its contents in the diaries of the aforereferred registered case, Such a practice is unprecedented and never experienced earlier and still to come across as the general principle is that whenever counter-versions are received by the Police separate F.I.Rs, are chalked out. The Police, while treating the written statement as part of the earlier registered case by the opposite side and not registering an independent case, seems to be oblivion of the fact that the statement if so taken in a case, after the registration of a case, would be under Section 161, Cr.P.C, and which, not to speak of a written statement, even prohibit the signing of such a statement is in violation of Sections 161 and 162, Cr.P.C, which also seems to be in the handwriting of some police official by making comparison of the written statement and the signature on such a statement. A proper course was to register a separate case on the basis of such a written statement containing all the necessary ingredients of the F.I.R, i,e,, the time of report, the time of occurrence, distance from the Police Station and being read over to the maker and then getting thumb- impression or signature in token of its correctness and at the end the Karwai Police with regard to necessary steps taken by the Investigating Officer immediately after registration of the case and then signature of the scribe, ln the present case the written statement which has been made the basis for further investigation in the case on the line as narrated by the complainant party is bereft of all the aforesaid characteristics and even the Police Officer to whom such a written statement has been provided has not endorsed it even with the timing of its receipt and not signed by him and not. made further necessary inquiries, the essentials of an F.I.R. This written statement neither fulfills the conditions of statement under Section 161, Cr.P.C, nor of F.I.R. The conduct of the Investigating Officer strengthens the stand of the accused as they have taken and then asserted in their statement recorded under Section 342, Cr.P.C, that the written statement has not been made on the same day rather it was on the next day so that the complainant party may have sufficient time for consultation, deliberation, concoction and fabrication of the case according to their wishes and desires and not based on actual facts. The purpose of the F.I.R, is to set the criminal law in motion and to obtain the first hand, spontaneous information of occurrence in order to exclude the possibility of fabrication of story or consultation or deliberation or the complaint has had time to devise or contrive anything to his advantage and to the disadvantage of others and to safeguard the accused of such-like happenings/occurrences in the F.I.R., as the spontaneity is the guarantee of truth to a greater extent, ln this respect reference can be made to the case of Asal Muhammad and others v. The State (PLD 1994 Peshawar 214) [authored by me as a Judge of the Peshawar High Court], with elaborate discussion on the subject i,e,, F.I.R, and statement recorded under Section 161, Cr.P.C.'which may be helpful while explaining the position in the present case. The relevant para therefrom is reproduced herein below:-- "11. The information given to the police or the statement recorded by the police is Of two types, (1) whether investigation has not commenced and for the first time information with regard to a cognizable offence is given and (2) the statement is recorded by the police after the commencement of the investigation i,e, during the course of investigation. As regards the second kind of statement which is given during the investigation, that is inadmissible under the specific provisions of Section 162, Cr.P.C, and its purpose only to contradict its maker with such statement at the time of his deposition in the Court while with regard to the first information report, there is no specific provision in respect of its admissibility or otherwise like the one provided under Section 162, Cr.P.C, and for statement recorded during investigation under Section 161, Cr.P.C, and it will have to be seen in the light of the various provisions of the Qanun-e-Shahadat, 1984. If we look at Section 154, Cr.P.C, which envisages that the information given of a cognizable offence to the incharge of a police station, the substance thereof shall be entered by him in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf and according to Chapter 22.45 i,e, Chapter 22, para-45 of the Police Rules, 1934 First Information Report Register shall be maintained in accordance with rule prescribed and according to Chapter 24.5 of Rules, ibid, the form of the F.I.R, and .Ifs various details have been given therein. The F.I.R, consists of two ingredients: (i) The document itself; (ii) contents of this document which further include (a) the statement/narration of the maker of F.I.R, entered in the document; (b) the various entries made by the scribe at the time of its scribing. ln addition, as earlier stated the purpose of the F.I.R, is to set the criminal law in motion and to obtain the first hand, to obtain spontaneous information of occurrence in order to exclude the possibility of fabrication of story or consultation or deliberation or the complaint has dad time to devise or contrive anything to his advantage and to the disadvantage of others and to safeguard the accused of such-like happenings/occurrences in the F.I.R., as the spontaneity is the guarantee of truth to a greater extent and immediate utterance is the manifestation of psychological reaction and when the witness deposes in the Court against the accused, he may be giving the advantage of corroborating him (maker of F.I.R.) under Article 153 and contradicting him under Article 140 or impeaching his credit under Article 151, Qanun-e- Shahadat in respect of his earlier narration in the F.I.R. The document itself (ingredient (a) mentioned above) are not proved unless the maker deposes in the Court (i,e, his statement is recorded in the Court as evidence) except under Article 46 of Qanun-e-Shahadat which is admissible as dying declaration as commonly known, as according to Article 71 of Qanun-e- Shahadat the evidence be direct. Now the status/position of the document of F.I.R, is to be seen from evidence point of view. According to Article 85(4) of Qanun-e- Shahadat the documents required to be maintained by a police servant under any law would be called public documents and thus the F.I.R, is said to be a public document according to the definition of this provision of law being the outcome of an act of public officer of the executive branch of the Government. Article 102 of Qanun-e-Shahadat deals with the proof of such document according to which, when a matter is required by no other evidence except the document itself in which the matter is contained and then according to Article 78 of Qanun-e-Shahadat the signature or writing of a person must be proved and which could be done by calling the person who signed or wrote the document or in whose presence the document was signed or written. The conclusion which is derived from the above discussion is that the document of the F.I.R, is a public document required to be corrected under Article 102 read with Section 154, Cr.P.C, and Rule 24.5 of Police Rules, 1934 which must be proved under Article 78 and which could be done by calling the person, who scribe it and in whose presence it was signed/thumb-impressed by the maker, and in the present case the F.I.R.
Exh.PW.8/1 has been proved by examining its scribe PW.8."
5. Thus from the very initial stage of the case, on receipt of the written statement and the way it was dealt with by Investigating Officer and the plea taken by the accused are sufficient to create doubt in the prosecution case. Leaving aside observations about cross-versions in the judgments of the Courts below i,e, the Trial Court and the Appellate Court (the High Court), which are under challenge before this Court and, are with different conclusions as the High Court holding one party as aggressor while the Trial Court held none of them as aggressor, both versions/cross- cases have been built upon one F.I.R. (F.I.R.41/2001) lodged by the accused-party, regarding the occurrence took place at the same time on the same spot between the same parties, lending support to the view of the Investigating Officer as stated by him in Court, being cross-cases. The parties have made some exaggeration of Involving more persons of throwing the net wide, lt is not the case of appellants of self-defence etc. rather they both in their statements under Section 342, Cr.P.C, have denied their presence on the spot and have alleged that they were told about the occurrence by their other co-accused, one of whom is the complainant (Muhammad Khan) in the cross case registered vide F.I.R. 41/2001 against the present complainant.
6. There are other infirmities, in addition to the one reinstate to the F.I.R, qua the time of occurrence, the time of report and the Karwai Police etc., as referred to a bove, there are 7 accused charged in the written statement of the complainant and 3 of them with a similar effective role of firing, attributed to them, at 2 injured persons, like the one attributed to the appellants, were declared innocent by the Investigating Officer and which finding was endorsed by the Trial Court, and never challenged and has attained finality as even today before us there is no such challenge to the findings of the Courts particularly with regard to holding the view of the Investigating Officer being correct qua declaration of some of the accused as innocent.
7. The medical evidence also does riot support rather contradict the version of the injured person as with regard to injuries sustained ,to which part of the body i,e,, according to Ashfaq Hussain while describing injuries sustained by him stated the two injuries to be on his right leg but according to medical report not both but one each was found on right and left legs one with burning edges, but the distance in the site plan has been shown far away beyond the range of burning.
8. Reference to the whole detail of the cross- version, unless it was made a part of this file, cannot be made, however, when the whole case of the prosecution, though based on separate written statement yet built up on F.I.R. No, 41/2001, makes one to compel to ask about the fate of that case and we found that in the cross-case the accused have been acquitted as in that case a connected petition (Criminal Petition No, 287/2009) has been filed in this Court which was heard together with present one, at the petition stage, against the order of acquittal passed by the High Court and was withdrawn, may be, the learned counsel while pressing this petition on the grounds e.g. contradiction of ocular evidence with the medical evidence and the golden principle of criminal administration of justice of benefit of doubt might negate his stand in that petition, in which, inter alia, those were the main grounds weighed with High Court in that cross-case. This is a case in which though the persons were injured, yet their credibility was shaken to hold their version unbelievable qua the other co-accused to whom a similar role of effective firing had been attributed by holding them innocent both by the Investigating Officer and by the Courts by upholding the former (I.O's) view by the latter (the Court).
9. The result of the above discussion would be that the prosecution has not been able to prove its case beyond reasonable doubt and the appellants deserve acquittal.
Order of the Court ' ln the light of majority view, while allowing the appeal, the conviction and sentence of the appellants are set aside and they are acquitted of the charges and be released forthwith if not required in any other case.
Criminal appeal allowed.
' RAHMAT HUSSAIN JAFFERI, J. -- I have had the privilege of going through the proposed judgment written by my learned brother Justice Tariq Parvez. With profound respect, I am unable to persuade myself to agree with his findings. However, admitted facts are that this is a case of two versions of one and same incident; one disclosed by the complainant Altaf Hussain (PW.l) and second by the appellants in their statements recorded under Section 342, Cr.P.C, in respect of deceased co- accused Mudassar Hussain, for that a counter-F.I.R. No, 41 of 2001 was registered against PWs. 2, 3 & others, as such there are cross-cases Or counter-cases of the same incident between the parties.
The accused involved in Crime No, 41 of 2001 were acquitted by the learned Lahore High Court, Rawalpindi Bench, Rawalpindi, whereas in the fv'c-ent case, the appellants have been convicted for various terms of imprisonment with fine, lt is also admitted that the learned Trial Court treated the incident as free fight, Whereas the learned High Court held that the appellants were aggressors, therefore, they had no right of private defence.
2.The right of private defence falls within the General Exceptions of Chapter IV of Pakistan Penal Code (hereinafter referred to as 'the Code'). Section 97 of Chapter IV of the Code deals with the right of private defence of body and of property, but that right is subject to the restriction contained in Section 99 of the Code' Such right can extend not only to the defence, of one's own body against any offence affecting the human body but can also extend defending the body of any other person. Thus, if the accused wants to take benefit of the exception of right of private defence then he is required to show that:-- (a)He was not responsible or at fault or on account of his act the occurrence took place; (b)He honestly believed that his life was under immediate danger; (c)He also believed that there was no reasonable cause available to escape or avoid the necessity; and (d)He had no intention to cause more harm than necessary for the purpose.
' Thus, whenever there is fight between the parties, it is essential to determine as to which party is aggressor. Once it is clearly established that one of the parties started the attack, the other party would have a right of private defence. How this right can be established, the Article 121 of the Qanun-e-Shahadat Order, 1984 (hereafter referred to as the Order), would come into play that reads as under:-- "121. Burden of proving that case of accused comes within exceptions When a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Pakistan Penal Code (Act XLV of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances."
3. However, before invoking the above provisions, the burden of proof is always on the prosecution and it is only when a good prima facie case has been made out against the accuse sufficient to justify his conviction for that offence, then the burden shifts upon the accused to prove that he is not guilty of any offence. For that the accused must set forth the exact circumstances in which he acted that he was justified in what he did. lt will be noted that such shift of burden upon the accused is not analogous to that of prosecution to establish the case beyond reasonable doubt but the test as to whether the accused is entitled to the benefit of the right of private defence is not whether he has proved the case beyond a reasonable doubt but whether in setting up any defence he has created a reasonable doubt in the case of prosecution and thereby earned his right of acquittal that can be done either leading evidence or through cross-examination of witnesses or from the prosecution evidence itself. Even then entire evidence it is to be looked into and upon consideration of such evidence, it is to be seen as to whether or not a reasonable doubt is created in the mind of the Court that the accused is entitled to the benefit of right of private defence. Upon answer of such question plea of accused should be decided.
4. Keeping in view the above position of law, admitted facts, other details mentioned in the proposed judgment, and the rule laid down by this Court in the case of "Wazid Moral v. State (1970 SGMR 256)" with regard to appreciation and assessment of the evidence in crosscases, particularly the following observation made at page 265 thereof, I will examine the. present case: "lt is a well-established rule that each criminal case has to be decided upon the basis of the evidence led in that case, lt cannot be disposed of merely because the Court has in a cross-case or in an appeal arising out of such a cross-case taken a different view of the evidence in that case."
5. The basic question involved in this case is whether the appellants had right of private defence or otherwise, ln order to arrive at such conclusion, I have examined as to which party is the aggressor in the case, lt is well-established principle of law that each case depends upon the facts and circumstances of that case and evidence produced by the parties, lt is also settled principle of law that the prosecution has to prove the case and then if the Court finds that the prosecution has proved the case, the defence plea taken by the accused is to ba examined and both the versions are to be examined in juxtaposition so as to arrive at a proper conclusion.
6. Keeping in view broad principles of administration of criminal justice, I have examined the prosecution evidence So as to arrive at a conclusion as to whether the prosecution has been able to prove the case against the appellants or otherwise. Mainly, the prosecution relied upon the evidence of two injured witnesses viz. the complainant Altaf Hussain (PW.l) and Ashfaq Hussain (PW.3). They have fully supported the prosecution case in their depositions before the Court. Their evidence was relied upon by both the Courts below. As such there are concurrent findings, of two Courts below on the factual aspects of the case. I have also examined their evidence and find that their evidence is reliable. There are no material contradictions in their statements. Their evidence is fully supported and corroborated by the medical evidence in respect of injuries caused by the appellant Muhammad Nazeer to the complainant Altaf Hussain (PW.l).
7. As regards the injury attributed to the appellant Mushtaq Hussain, the allegation is that his first shot hit left side of chest of PW 3 Ashfaq Hussain, which was found by the Medical Officer and he deposed so. As regards the second injury caused to PW Ashfaq Hussain. Both the witnesses disclosed that second fire of Mushtaq Hussain hit right leg of Ashfaq Hussain (PW 3) but the Medical Officer found the said injury on the left leg. Except this contradiction, there is no other contradiction in their evidence. Even if, injury No, 2, is taken out from consideration, then at least it has been Established that the appellant Mushtaq Hussain had caused a fire-arm shot, which hit on the chest of PW.3 that is on the vital part of the body. Thus, the prosecution has established the fact that both the appellants have caused injuries to both the injured witnesses as such the prosecution has fully established its case against the appellants.
8. Now, I will take up the defence plea. The appellants Mushtaq Hussain and Muhammad Nazeer in their statements recorded under Section 342, Cr.P.C, alleged that on the day,' time and place of incident, they were not present, however, co-accused Muhammad Khan, Babar Nadeem and Shah Nawaz informed them the facts, lt will be advantageous to reproduce the statements of the appellants, which are similar to each other that reads as under:-- The PWs are related to each other and inimical towards me. I was not present at the spot and I heard by my co-accused Muhammad Khan, Babar Nadeem and Shahnawaz that on 9.3.2001 at about 5.30.p.m. Muhammad Khan . along with Mudassar Hussain deceased went to POL Company situated in Pindori to inquire about tenders and after inquiry they went to hotel nearby POL Company. Meanwhile Muhammad Mushtaq, Altaf HussainAshfaq, Haji Feroz and Sher Afzal, all armed with fire-arms emerged there. They made firing upon Mudassar Hussain and due to filing Mudassar succumbed to the injuries at the spot and due to indiscriminate firing by the above- said persons their own companions Altaf and Ashfaq received firearms injuries. They falsely involved me in this case to suppress their aggression and to pressurize us to make compromise in murder case as. Mudassar Hussain deceased was my real brother. I have been declared innocent by the police. I am totally innocent and nothing to do with the commission of offence."
9. From the above statement, it is clear that both the appellants were not present at the, scene of incident, as they have taken the plea of alibi, therefore, they had no personal knowledge of the incident. They narrated the facts, 'which were told to them by co-accused Muhammad Khan, Babar Nadeem and Shah Nawaz but they have not been examined in the Court so as to prove that they had told the said facts to the appellants. Even while recording their statements under Section 342, Cr.P.C., they also did not state that they had informed such facts to the appellants. Thus the statements of the appellants become hearsay, therefore, inadmissible in evidence. However, then they are admitting that they were not present at the place of occurrence by taking the plea of alibi then how they can claim* right of private defence, as it is self-destructive. The plea of right of private defence is not available to such person i,e, pleading alibi for the simple reason that essential requirements for invoking such plea as mentioned in para 2 of the judgment are not fulfilled. Secondly, a plea of right of private defence can be taken by a person, who admits the act charged against him, but pleads an excuse. If a person, however, states that he had not done the act at all, it is difficult to see how at the same time the question of a right of private defence would arise. This fact by itself is sufficient to discard the plea of right of private defence of the appellants. Furthermore, the appellants have also not led any evidence to prove their plea of alibi. As such the said plea has also not been proved.
10.Inspite of inadmissibility of above statements of the appellants, though it is not required to be taken into consideration, however, I will examine the same, as the same facts were disclosed by the of-accused Muhammad Khan, Babar Nadeem and Shah Nawaz in their statements recorded under Section 342, Cr.P.C. From that statements, it appears that they had alleged that the complainant party was the aggressor as such they had right of private defence, therefore, their case would come under the General Exceptions of right of private defence, as provided under Sections 96 to 100 of the Code.
11.ln order to prove such plea, the appellants had not taken any efforts to lead any evidence except the bare statement recorded under Section 342, Cr.P.C, which apparently is also inadmissible, lt is the case of the prosecution that on 9.3.2001, the complainant Altaf Hussain (PW.l), Ashfaq Hussain (PW-3) and Shakeel Ahmed were present at Hotel near Gate of POL Company at about 5:15 p.m., when the appellants along with co-accused armed with weapons came there and attacked them by firing upon them. Whereas, from the statement of the appellant, it appears that they were informed by Muhammad Khan and other co- accused, that on 9.3.2001 at 5:30 p.m., Muhammad Khan, co-accused, along with deceased accused Mudassar Hussain and others (except the appellants) went to the Hotel near POL Company. Thereafter the complainant party including both the PWs came there armed with weapons and they started firing. First of all, it is to be seen, whether the complainant party was sitting first or the accused party and who made the attack first. The PWs. 1 & 3, specifically stated that they were present at the Hotel, when the accused party came and attacked them, ln the cross-examination, PW.l admitted that he reached the Hotel at 4:30 p.m. but no question was asked from the witnesses to deny the above facts or putting their defence as disclosed by them in their statements under Section 342, Cr.P.C, to the witnesses in the cross- examination. A suggestion was made to the witnesses that in order to avoid the murder of Mudassar Hussain deceased accused a tale has been cooked up but the witnesses had denied the said fact. However, the PWs took the plea that the deceased accused had received injuries from the hands of his component. No evidence has been led by the appellants either in the shape of examining themselves on oath, or examining any defence witness, or producing the F.I.R, of Crime No, 41 of 2001 or putting their defence to the PWs. 1 and 2 in the cross-examination to prove their plea.
12.From the above evidence, it is clear that the evidence of PWs on the above aspect of the case went unchallenged. Except the bare statement of the appellant under Section 342, Cr.P.C, no other evidence whatsoever has been led to prove that the accused party was present first, then the complainant reached there and attacked them. Thus the story furnished by the prosecution on the above aspects of the case has been proved. As already observed that the burden was upon the appellants to prove that their case comes within the General Exceptions of the Code but no evidence has been led or through cross-examination any tact has been brought on the record to create a reasonable doubt upon the prosecution story, therefore, the appellants have failed to prove their plea.
13.I have also gone through the impugned judgment and find that the learned High Court has rightly appreciated the evidence and arrived at a right conclusion that the appellant party was the aggressor.
14. In the light of what has been discussed above, am of the considered view that the appellants had no right of private defence and they have also failed to prove their plea of alibi, therefore, the conviction and sentence awarded under the impugned judgment are maintained. Resultantly, the appeal having no merits is dismissed.
SUPPLEMENTARY NOTE ' I have gone through the judgment of my learned brother Mian ShakruNah Jan, J. I would like to express my opinion in respect of Ex-PA, statement filed by Altaf Hussain (PW.l) before the Police, which was investigated by them and the Police submitted separate challan against the appellant and co-accused on which the Magistrate took cognizance and registered the case against the accused and thereafter sent up a case to the Court of Sessions for trial, which culminated in conviction of the appellant and acquittal of some other co-accused.
2. In order to appreciate the status of the said application, it will be advantageous to reproduce Section 154 of the Code of Criminal Procedure (hereinafter referred to as the 'the Code'), It is as under:-- "Information in cognizable cases. Every information relating to the commission of a cognizable offence if given orally to an officer in charge of a police-station, shall be reduced to writing by him or under his direction, and be read over to the informant, and every such information, whether given in writing or reduced to writing as aforesaid shall be signed fly the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf."
' A bare reading of the Section reveals that there are two stages envisaged by the Section i,e, (i) receiving information and (ii) entering substance in the book. For receiving information of a commission of a cognizable offence two modes are provided i,e, (i) either oral or (ii) written. If it is given orally, then the Incharge of a police Station is required to reduce it in writing by him of under his direction, which shall be read over to the informant. If the information is in writing then in both the cases the information is required to be signed by the informant. After completing the above process or crossing the first stage of Section 154 of the Code, the officer Incharge of the Police Station enters into 2nd stage by "which he is required to enter the substance of oral or written information as the case may be in the book as provided under the Section, which is commonly known as 154, Cr.P.C, book, as the word "shall" has been used in that part of the Section. However, the practice develop is otherwise, "which is not in consonance with the letter and spirit of the Section, lt is well-settled that if a particular thing is required to be done in a particular manner then it should only be done in that manner, However, this irregular or illegal practice is going on since long, but no body is going to check it, so as to make it in accordance with law. The function of the Court is to point out irregular or illegal act and compel the parties to perform their functions in accordance with law. The Court should not be party to it, but required to take remedial steps to implement the law in its true perspective and in letter and spirit.
3. Be that as it may, in the present case it is , admitted fact that on 9.3.2001 at 5-30 pm, the PW.l made writing information (Ex.PA) to the in charge of Police Post Chak Bali Khan of Police Station Chountra mentioning the date, time, place of occurrence facts constituting cognizable offence and name of the accused thereby fulfilling all the requirements of law. Such facts are not only disclosed in the Ex.PA but deposed by PW.l in his statement before the Court. The accused cross-examined him and tried to abstain contradictions from his said statements. Ex.PA was not only entertained by the Police, but entered it in the diary of the case of Crime No, 41 of 2001 filed by accused party with regard to same incident. Under the mandate of Section 154 of the Code, the police were required to have entered the substance of written information in the 154, Cr.P.C, book but instead thereof entered it in case diary of Crime No, 41 of 2001. This shows the inefficiency of police Officer, for that the PW1 should not be penalized and that too of no fault on his part, but it was the fault of the police officer, lt has been held in the case of "Zulfiqar v. Shahadat Khan (PLD 2007 SC 582)" that due to the act of the Court of public functionaries, the party should not suffer. As far as the PW.l was concerned, he had discharged his legal duties and obligation in furnishing the required information to the police. Thereafter police function starts. Thus the police committed irregularity and illegality in not entering the substance of Ex.PA in 154, Cr.P.C, book. Nevertheless, the police investigated such information and round it to be true, therefore, challan was submitted before the Court of Magistrate. After examining the material placed before the Magistrate along with challan, he formed the opinion that case should be registered therefore took cognizance in (he matter under Section 190 of the Code and then the case was sent up to the Court of Sessions. After receipt of the case, the Court of Sessions again examined the material and formed the opinion that the case should be registered, therefore, took cognizance under Section 193 of the Code, lt is also well- settled that if there is any discrepancy, irregularity or illegality in the investigation, then it will be cured after taking the cognizance by the Magistrate or Court, as the case may be. So the defect of not entering the substance or Ex.PA in the 154, Cr.P.C, book has been cured. Further the Magistrate can take cognizance on a police report, direct complaint or on his own information, if he finds the material placed before him falls within any of the categories of Section 190 of the Code. The cognizance was taken on the material placed before the Magistrate and Court. Thus the defect cornering the investigation has not vitiated the trial, but the case is to be decided on the evidence produced before the Court. ' ln cross-examination to the defence counsel, the PW.l specifically stated that Ex.PA was got written at Police Post and handed it over to the In charge of Police Station at p.m.; that he signed it after going through it; that from 9.3.2001 to 21.5.2001 he was in custody therefore he could not pursue the Ex.PA. However, he denied the suggestion that he did not submit the Ex.PA to the Police. PW.3 an injured eye-witness, who was with PW.l at the Police Station, supported the statement of PW.l by stating that PW.l presented application duly signed by him before the Police. This statement went unchallenged as it was not denied in the cross-examination, In the cross-examined he further deposed that the police in league with the accused did not register the F.I.R. The statement ^f PW.l is further supported by PW.6 S.I. Masood Ahmed before whom Ex.PA was presented, who stated that on 9.3.2001 PW.l presented application Ex.PA to him which he incorporated it in the case diary of Crime No, 41 of 2001. He examined PW.l and after preparation of memo, of injury referred him to R.H.C. through PW.2 Safdar Mehmood Constable, In the cross- examination he deposed that Ex.PA was presented before him at 7/7.15 p.m., but added that no such time was mentioned in diary or any other document. He specifically denied the suggestion of the defence counsel that Ex.PA was received much latter and drafted after going through the medical examination report. PW.2 who took the injured to R.H.C. further supported the case that he had received PW.l for taking him to R.H.C. on 9.3.2001. In the cross- examination he stated that he reached the hospital at 6.00 p.m.
PW.4. Dr. Arshad Ali Khan deposed that he had examined PW.l on 9.3.2001. In the cross-examination he stated that in the medical certificate there was interpolation about the time of arrival of PW.l at 8.30 p.m. which was a changed one. I have perused the medical certificate and found that time of arrival of PW.l was changed from 6.30 to p.m. but putting line over "6" so as to read as "8". Thus all these facts proved that on 9.3.2001 at 5:30 p.m. PW-1 presented a written application before PW-6 who referred the injured to R.H.C. through PW-2 who reached hospital at 6 p.m. and PW 4 mentioned the time of arrival as 6.30 p.m., which apparently changed so as to read as 8:30 p.m.
Thus the stance taken by the appellant in his statement under Section 342 of the Code does not get support from the record. On the contrary PW-6 specifically denied the suggestion of the appellant that Ex.PA was prepared after the medical examination of PW.l and that Ex.PA was prepared after the Doctor examined PW.l and issuance or medical certificate. The appellant also did not lead any evidence to prove such allegation or plea.
5. It is important to note that F.I.R, carries great weight and play a pivotal role in a criminal case before its maker is examined in the Court. Once its maker is examined in the Court, then it loses its that much importance and reduced to the position to the extent to be used only to corroborate as provided under Article 153 of Qanun-e- Shahadat Order, 1984 or-contradict its maker in the manner as required under Article 140 of the said Order, lt is also settled that it is neither a substantive piece of evidence nor conviction can be based on F.I.R, in the absence of the evidence of its maker in the Court. Thus no adverse inference can be taken in this case.