MUHAMMAD AMIN BUTT, J. Muhammad Ilyas alias Labha, aged 16 years, and his two brothers Riaz Ahmad alias Naji, aged 19 years and Pervaiz Mahmood alias Kala aged 22 years sons of Muhammad Sadiq were tried by Mr. Muhammad Azim Khan Niazi, Additional Sessions Judge, Lahore, for the murder of Muhammad Hafeez alias Feeza. Giving the benefit of doubt to Pervaiz Mahmood alias Kala and Riaz Ahmad alias Haji he acquitted them but convicted Muhammad Ilyas appellant and sentenced him to death. He was also fined Rs. 2,000 or in default to suffer further rigorous imprisonment for a period of two years. The fine if recovered was directed to be paid as compensation to the heirs of the deceased.
2. This judgment shall dispose of the appeal filed by Muhammad Ilyas alias Labha, the connected murder reference and Criminal Revision No. 333 of 1978 filed by Muhammad Siddique, real brother of Muhammad Hafeez deceased against the acquittal of two co-accused.
3. The motive for the offence is that some two years before the occurrence in this case the complainant party assaulted and injured Riaz Ahmad whereupon a case under section 307, P. P. C.
Was registered at P. S. Misri Shah, Lahore which was pending trial and on account of that enmity the appellant and his two brothers Riaz Ahmad and Pervaiz Mahmood joined hands, attacked and killed Muhammad Hafeez alias Feeza.
According to the prosecution, on 16-6-1976 at about 11-15 a.m. Muhammad Ilyas alias Labha appellant armed with knife, Pervaiz Mahmood alias Kala and Riaz Ahmad alias Naji armed with daggers attacked and injured Muhammad Hafeez alias Feeza in front of the shop of Sufi Muhammad Din near the house of the deceased in Mohallah Churigaran, Chah Miran, Misri Shah, Lahore. The incident was witnessed by Muhammad Siddique P. W. 7, Nazir Ahmad P. W. 8 and Zabid Ali P. W. (not produced). After inflicting injuries the assailants made good their escape. Muhammad Hafeez alias Feeza died at the spot.
4. On the basis of the statement Exh. P. C. Made by Muhammad Siddique P. W. 7 before Muhammad Naseeb Khan S. I/S. H O. At Takia Ajagar Shah at 11-45 a.m. a formal F. I. R. Exh. P.C./1 was recorded at P. S. Misri Shah, Lahore at 11-55 a.m. On the same day. After recording the F. I. R. Muhammad Naseeb Khan S. L/S. H. O. P. W. 9 reached the spot, found the dead body of the deceased lying there, prepared the injury statement Exh. P. J. And inquest report Exh. P. J/1 in respect of the dead body of the deceased and sent it for post mortem examination. He inspected the spot and recovered from there blood-stained earth and took the same into possession vide memo. Exh. P. F.
4. On the same Muhammad Ilyas alias Labha appellant appeared before the Investigating Officer near Neelam Cinema and was taken into custody. At the time of his arrest the appellant handed over to the Investigating Officer P. W. 9 the blood-stained knife P. 4 which was secured vide memo.
Exh. P. G. The recovery was witnessed by Nazir Ahmad son of Muhammad Hussain P. W. 8 and Ch. Bashir Ahmad A. S. I. (not produced). At the time of his arrest the appellant were blood-stained shirt P. 5 and dhoti P. 6 which were also taken into possession vide memo. Exh. P. H. The Investigating Officer arrested Riaz Ahmad alias Naji on 19-6-1976 and Pervaiz Mahmood alias Kala on 22-6-1976.
However, no recoveries were effected from them.
5. On 17-6-1976 at 12-45 p.m. Dr. Tahir Anis, (P. W. 5) Deputy, Police Surgeon, Lahore performed the post mortem examination on the dead body of Muhammad Hafeez alias Feeza deceased and found the following injuries:-
(1) Incised wound 4--" x --" skin deep running irregularly horizontally oblique over upper part of neck, mostly on left side.
(2) Stab wound 1" x 1/3' over right lower front outer part of neck, horizontally oblique.
(3) Stab wound 1--' x --" over middle of abdomen, 3" above the umbilicus at 11----- `O Clack position, vertically oblique.
(4) Stab wound 1" x --" over outer front left part of the chest.
(5) Stab wound 1" x 1/3" over front outer lower left chest.
(6) Stab wound 1--" x --' over outer lower left chest. A portion of omentum was protruding out.
(7) Stab wound 1" x --" outer mid-back left chest.
(8) Stab wound 7/8" x --' inner upper right back part of chest.
(9) Stab wound 7/8' x --" over right inner back mid-chest.
(10) Incised wound 1" x --' muscle deep over right lower scapular angle.
(11) Stab wound 1" x --" inner lower right back of chest.
(12) Stab wound 1' x --" over right upper part region.
(13) Stab wound 1" x --" over lower inner back left chest.
(14) Stab wound 1" x --' over outer left lumbar region.
(15) Incised wound 2--" x --" muscle deep over upper inner front part of left arm.
(16) Incised wound --' x --' skin deep over back lower right arm.
(17) Incised wound --' x 1/8' skin deep over upper front right leg.
There was a stab in left 3rd intercostal space against Injury No. 4. Against Injury No. 5, 7th left rib was found cut at two places with stabs in 7th space. Against injury No. 6 there was a stab in 8th space. Against injury No. 13 there were stabs in 9th and 10th spaces over back (double stab through a single external wound). Right pleura was adherent to chest wall, left showeal multiple cuts. There was stab over front right part of trachea cutting 3rd trachea ring against Injury No. 2. Right lung was fabrosed and collapsed. Left lung showed multiple stabs: Both ventricle walls of heart were found stabbed on back communicating ventricular cavity with the exterior. Peritoneum showed multiple cuts. Diaphragm was found cut at outer part at two places. Stomach was empty. Intestines contained diet. Spleen showed a stab through and through. Lower part of left kidney showed a superficial cut. Bladder contained a little urine.
The prosecution, it may be mentioned examined Muhammad Siddique P. W. 7 and Nazir Ahmad P.
W. 8 as the only eye-witnesses of the occurrence and Zahid named as an eye-witness in the F. I. R.
Was given up by the prosecution on 29-1-1978 for the reason that before that date he had already made a statement under section 164, Cr. P. C. Favourable to the accused. The defence.4plea to examine him as a Court witness was also turned down.
6. When examined under section 342, Cr. P. C. All the accused denied the guilty. Riaz Ahmad and Pervaiz Mahmood accused claimed that they were not present at the spot and had been falsely named due to enmity Muhammad Ilyas, accused, however, took up the plea of self at defence which he explained as follows:- "The deceased was vagabond and sodomist. He was a womenizer. On the day of occurrence at about 10-30 a.m. I was leaving for my job when the deceased met me in front of my house where a grave--yard is situated. The lane was abandoned at that time as the people had gone to their respective works. The deceased behaved friendly with me and wanted me to accompany him to his house, which was abandoned and was adjoining my house. I smelt his bad intention, so I refused. On which he took out knife P. 4 and threatened me with dire consequences and at its point wanted me to submit to the sodomy. When he was unchaining the door of his house to take me inside, he was a bit careless in holding the knife so I got an opportunity and snatched the knife from him and at once attacked him in self-defence because he tried to snatch knife from me in order to fulfil his sexual lust. I also lost self-control and caused injuries to Abdul Hafeez who fell in the lane.
Thereafter I straightaway went to P. S. Misri Shah, Lahore and narrated the incident. The brother of the deceased was called from Fleming Road where he had gone at his shop. In connivance with the complainant a false story was concocted and my two innocent brothers were also involved."
7. The learned trial Court did not accept the plea of self-defence holding that the plea was incompatible with the, evidence do record and expressed the view that the appellant due to previous enmity with the deceased intentionally murdered him by giving him knife blows. The Court relied on the eye-witness account as well as the recovery of blood-stained knife P. 4 and blood- stained clothes shirt P. 5 and dhoti P.
6. Worn by the appellant at the time of arrest and convicted him under section 302, P. P. C. And sentenced him to death. It, however, expressed the view that there was no corroboration of eye-witness account to establish that Riaz Ahmad alias Naji and Pervaiz Mahmood alias Kala participated in the commission of the offence. No blood-stained daggers were recovered from them and about 40 persons appeared in their defence during the investigation. Riaz Ahmad alias Naji and Pervaiz Mahmood alias Kola co-accused were given benefit of doubt and acquitted.
8. Before us, Mr. Ijaz Hussain Batalvi, the learned counsel for the appellant vehemently argued that the prosecution has failed to establish its case beyond reasonable doubt maintaining that the motive alleged is wholly unconvincing, the ocular evidence is unworthy of credance and the recovery is un-consequential.
9. Dealing with the motive as alleged by the prosecution the learned counsel submitted that the prosecution has failed to establish any pre---existing dispute between the appellant and Muhammad Siddique complainant P. W. 7 or Muhammad Hafeez alias Feeza deceased. He asserted that in the previous dispute Riaz Ahmad alias Naji and Pervaiz Mahmood alias Kala were the aggrieved party as Riaz Ahmad co-accused had been stabbed by Muhammad Siddique complainant and for that reason they would have the motive to attack Muhammad Siddique complainant. In this behalf he referred to F. I. R. No: 168 of 1974 dated 22-2-1974 Exh. P.E. Registered at Police Station Misri Shah to contend that the attack by Muhammad Siddique complainant and Muhammad Hafeez deceased on Riaz Ahmad the acquitted co-accused would only serve to establish enmity between Muhammad Siddique and the acquitted co-accused. Criticising the prosecution story about the presence of Muhammad Siddique complainant and the role ascribed to the assailants as illogical and unworthy of credance, the learned counsel argued that if unarmed complainant were present at the spot he would have been the first target of the assailant who would hardly have any reason to spare his life by administering him a warning not to draw near.
9. As to the eye-witness account the learned counsel submitted that the two eye-witnesses examined by the prosecution were chance witnesses and the natural witnesses belonging to the locality were not examined. Sufi Muhammad Din before whose shop the accused was standing at the time of the occurrence was not examined. Likewise the prosecution failed to examine Muhammad Sharif another shopkeeper of the locality. The learned counsel submitted that the F. I.
R. In this case was recorded at the spot after due deliberation. He has drawn our attention to the fact that the police station is at a distance of 3/3-- forlongs from the spot yet the F. I. R. Was not recorded there instead the Investigating Officer claims to have sat down and recorded the statement of the complainant made at Takia Ajagar Shah which is about 200 yards from the place of occurrence before visiting the spot.
Dealing with the statement of-Muhammad Siddique complainant P. W. 7 the learned counsel argued that the witness was running a Pan Beeri shop at Fleming Road which is more than 3/4 miles from the place of occurrence and his presence at the spot at 11-00 a.m. Was most unlikely. In statement before the trial Court the complainant attempted to explain presence as due to his illness. A plea which he did not take in his statement before the Police. He contended that Muhammad Siddique was summoned from his shop and after due deliberations the statement Exh. P. C. Was recorded on the basis of which an F. I. R. Was later recorded at the police station.
10. The learned counsel for the appellant submitted that the presence of Nazir Ahmad P. W. 8 at the time of occurrence was equally open to serious doubt. The witness was engaged in the business of a Motor Mechanic at a Bus Stand at a distance of three miles from the spot. During his cross- examination the complainant admitted that the between the place where he was running a shop and the place of occurrence was about three miles. The witness was not shown to reside in the lane where the occurrence took place.
Our attention was drawn to the fact that the appellant in his statement under section 342, Cr. P. C.
Asserted that the deceased was a vagabond and a sodomist who had in fact been previously convicted for sodomy and had been involved in the case of abduction and gambling. The learned counsel referred to the conduct of the appellant in appearing before the Police with blood-stained knife and blood-stained clothes to admit that he had killed Muhammad Hafeez alias Feeza in the exercise of his right of self defence. It was contended that under clause (iv) of section 100 of the P.
P. C. The right of private defence of the body extends to the voluntary causing of death or any other harm to the assailants if the offence which occasions the exercise of right be in the nature of an assault with the intention of gratifying unnatural lust.
The learned counsel argued that the prosecution having failed to establish the motive which impelled the appellant to attack the decreased evidence produced by it being also open to serious doubt, the Court shall have to fall back upon the statement of the appellant himself which furnishes the explanation for his conduct.
11. The learned counsel referred to the statement of the appellant under section 342, Cr. P. C. To contend that the appellant having been coerced at the point of knife to accompany the deceased, a person who had the reputation of being a vagabond and a sodomist obeyed his command unwillingly and was on the look for an opportunity which he luckily got as the deceased was about to unchain the door of the deserted house. He snatched away the knife from the deceased but when the deceased pounced upon him and tried to snatch back the knife from him, he was forced to resist violence and aggression against him in the legitimate exercise of right of private defence of his body as he was being subjected to sodomy.
The learned counsel contended that in criminal case if after a review of the entire evidence produced by the prosecution and the defence, the Court, is of the opinion that there is a reasonable possibility that the defence put forward by the accused may be true, such a view reacts on the whole prosecu--tion case and even if the plea of the accused may not be established yet it may create a reasonable doubt with regard to his guilt.
PLD 1953 FC 93). In that case the Federal Court had the occasion to interpret the provisions of section 100 of the P. P. C. And section 105 of the Evidence Act. Dealing with the objections of the prosecution Mr. Justice Cornelius observed at page 111:- "Since the burden of the general issue is on the prosecution from beginning to end, the provisions of section 105, Evidence Act, must be understood in the special sense that while all the details of an alleged criminal transaction are relevant to the case for the prosecution as being part of the res gestae, and must be proved by the prosecution. Yet the prosecution is under no duty to exclude defences which are open to the accused person, or to furnish proof of facts of a special nature having relevance only to a particular defence which the accused either sets up or may set up.
The learned counsel .For the appellant further drawn our attention. To the observations made by his Lordship at pages 108 and 109 may also be cited with advantage:- " . . . . It is undeniable that finally the burden lies upon the prosecu--tion to prove each ingredient of the offence charged, i.e. To support each ingredient by such evidence as would justify action by a prudent man, on the basis that such ingredient is established. I do not see any appreciable difference between this duty, and the duty of proving each ingredient beyond 'reasonable doubt'. If then an accused person is able to establish by evidence, or if the prosecution evidence itself presents such features as go to establish, the existence of a reasonable doubt regarding an essential ingredient of the offence charged, such as the requisite intention in a case of murder, then the prosecution must necessarily fail. Such intention may, of course, be established by proof of circumstances surrounding an evident act of cruelty causing death, and need not necessarily be proved by direct evidence. Yet it must be admitted that where the only credibe 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 in order to provide the preponderance of probability necessary for a "prudent" to act on the footing that the accused's act was performed with the sole intention of killing, or of causing a necessarily fatal injury."
13. The learned counsel next relied on the case Mohammad Idrees v. State (PLD 1965 Lah. 553) in which the accused a boy aged 16/18 years caused the death of Bostan aged 40 years by inflicting as many as 14 injuries, of which 13 were incised wounds individually fatal and had been caused on the abdomen and chest while the fourteenth was a contusion 4' x 3" on the top of the scalp. The accused admitted having caused the injuries to the deceased but claimed that he did so only to save himself from being subjected to sodomy at the point of a knife and claimed that he had in fact got hold of the deceased's knife when he started committing sodomy with the accused. The Court observed that "in the circumstances of the case the more assault by the deceased, such as may have been apprehended by the appellant, towards the commission of that act, would justify the killing of the deceased under section 100, clause (forth), Pakistan Penal Code, already referred to above". The Court further observed "as the injuries caused to the deceased were fourteen in number it apparently creates the impression that he has caused to him greater harm than was actually necessary, which is not permitted in view of the restriction on the right of self-defence as contained in section 99 of the P. P. C." The Court further observed that in the context of the circumstances of the case, "it is not possible for us to fix the stage or the point of time at which the appellant should have stopped causing further harm to the deceased, depending on the consideration as to when did the appellant find himself immune from the lustful assault of the deceased".
14. The learned counsel for the State on the other hand argued that the appellant on his own showing had snatched the knife from the deceased and was, therefore, in a position to safeguard himself against the deceased who had been disarmed and could have thus made good his escape. The argument proceeds on an imaginary bifurcation of the transaction of snatching of the knife by the appellant and the attack on the deceased for which we find no basis. It appears that the appellant being forced to submit to sodomy at the point of a knife was on the look for an opportunity to save himself from the lustful design of the deceased. The statement of the appellant shows that as he snatched the knife from the deceased he tried to snatch it back from him. The deceased could not have politely demanded the knife back. One can imagine the rage and fury with which the deceased must have pounced upon the appellant to disarm him. On the other hand, the appellant who was threatend with life to submit to sodomy would be in a state of fear, suspense and extreme agitation. It is, therefore, difficult to expect from a person with this state of mind to weigh in golden scales the amount of harm which he should have caused to his assailant and even if there be some excess more often than not it has to be condoned because of the diffi-- culty in assessing the extent of 'the excess committed in measured scales. A person instinctively reacting to an act constituting a grave threat of the kind recognised by section 100 may well strike out impulsively and repeatedly until he senses that the danger is past.
The circumstances under which the appellant surrendered before the Investigating Officer and his statement before him also support the defence version.
15. On a review of the evidence we are led to the conclusion that the prosecution has failed to establish beyond reasonable doubt the motive which could impel the appellant to attack and kill the deceased. The eye-witness account which has been disbelieved qua Riaz Ahmad alias Naji and Pervaiz Mahmood alias Kala co-accused is open to serious doubt an it would at any rate not be safe to rely on that evidence in the absence of independent corroboration.
The recoveries in this case would not advance the prosecution case and the conduct of the appellant subsequent to the occurrence lend support to the defence version.
16. For the foregoing reasons we accept the appeal, set aside the conviction and sentence of the appellant and direct that he be released forthwith unless he is required in connection with any other offence.
The sentence of death awarded to the appellant is not confirmed.