' ABDUS SATTAR ASGHAR, J.---This Criminal Appeal under section 417, Cr.P.C. Is lodged against the judgment dated 27-4-1989 passed by the learned Additional Sessions Judge, Gujrat, whereby Bahawal and Ilyas alias Ghias Dogar/ respondents No,1 and 2 have been acquitted of the charges in case F.I.R. No,110 of 1988, dated 15-5-1988, in the offences under sections 302/307/34, P.P.C. Police Station Saddar Mandi Bahauddin, " then District Gujrat, for the murder of Moazzam Ali and for murderous assault on Zafar Iqbal P.W.
2. The learned A.A.-G. For the appellant/State on 22-9-1990 after having argued the appeal at some length against clean acquittal of the respondents pressed the, appeal mainly on the ground that even if it is considered that the respondents had the right to act in self defence, it is clear from the evidence that they had exceeded the right of private defence by taking the life of the deceased. The appeal therefore was admitted for hearing to consider the arguments of the learned counsel for the appellant, whether the respondents had exceeded the right of private defence, if so for what offence they can be held liable?".
3. Prosecution case as divulged in the F.I.R. Lodged on the statement of complainant Riasat Ali (P.W.9) is that on 15-6-1988 at 6-30 p.m. He came from his Dera to his grinding machine; that when he reached at his grinding machine his nephew Mushahid Raza son of Liaquat Ali, Zafar Iqbal son of Muhammad Azam and Moazzam Ali Khan (deceased) sons of Muhammad Khan were talking to each other in front of the grinding machine; that in the meanwhile from western side accused Ilyas alias Ghias Dogar armed with 7 MM rifle along with Ejaz Ahmed armed with 7 MM rifle followed by Bahawal holding a stick in his hand also reached; that Bahawal raised a Lalkara not to spare anyone of them whereupon Ilyas alias Ghias Dogar fired with his rifle which hit Moazzam (deceased) in front of his right side of chest who after receiving the injury fell down on the ground; that thereafter Ejaz Ahmad fired with his rifle which hit Zafar Iqbal on left side of his head who also fell on the ground; that he (complainant) due to fear went to the room of grinding machine and thereafter the respondents while firing went towards the house of Bahawal; that the occurrence was 'witnessed by Muhammad Aslam son of Gulla Khan, Iftikhar Ahmad son of Rana Khan and Moshahid Raza son of Liaqat Ali. Motive is that 4/5 months back Ilyas had fired at Mushahid Raza who was luckily escaped and for this animosity the accused launched attack upon Zafar Iqbal, Mushahid Raza and Moazzam Ali; that Moazzam Ali succumbed to the injuries whereas Zafar Iqbal sustained injuries.
4. During investigation Ejaz Ahmad accused was declared proclaimed offender and the respondents Bahawal and Ilyas were found guilty and challaned in Column No,3 of the report under section 173, Cr.P.C. On submission of the challan respondents were charge-sheeted under sections 302/307/34, P.P.C. To which they pleaded not guilty and claimed to be tried.
5. Prosecution examined as many as 13 witnesses to prove the charge. Riasat Ali (P.W.9) and Zafar Iqbal injured (P.W.10) besides Dr. Khawaja Khalid Pervaiz Medical Officer (P.W.2) who conducted the postmortem examination on the deadbody of Moazzam Ali and also conducted the medical examination of Zafar Iqbal injured P.W. Are material witnesses besides Bashir Ahmad S.-I. (P.W.12) the Investigating Officer of this case.
6. After concluding the prosecution evidence learned trial Court recorded the statements of the respondents accused under section 342, Cr.P.C. While pleading innocence they discarded each and every piece of prosecution evidence. Muhammad Bahawal replying to the question "Why this case against you and why the P.Ws. Have deposed against you" stated as under:-- "I have been falsely involved in the case on account of my relationship with the other accused. The P.Ws. Have deposed against me because they are inter se related and are inimical towards me"
'Replying the same question respondent Ilyas alias Ghias Dogar stated as under:-- "On the day of occurrence, I and Ijaz accused were proceeding towards our dera and when we were passing on the road in front of the grind stone machine of Riasat Ali P.W. Then Zafar Iqbal P.W., Moazzam deceased and Moshahid P:W. Were present there. The deceased was armed with a gun and Zafar Iqbal P.W. Was armed with a rifle, they opened fire at us, on account of this firing resorted to by the deceased I sustained injuries and fell down on the ground. Seeing this Ijaz accused grappled with Zafar Iqbal P.W. And snatched his rifle and in exercise of the right of self-defence of his person and in my self defence fired at them, in consequence of which the deceased and Zafar Iqbal P.W. Sustained injuries. Ijaz my co-accused threw rifle at the spot. I was admitted in the hospital and was medically examined by the doctor. Bahawal accused was not present at that time nor Riasat P.W. Was there. Subsequently, the complainant party in league with the police fabricated a false story and falsely involved us in this case. Our defence was intentionally suppressed by the police who conducted a dishonest investigation in this case. The P.Ws. Are related inter se and bear illwill against me."
7. Defence side also examined Dr. Daleel Khan (DW-1) who while posted as Medical Officer, Rural Health Centre, Chelianwala, and District Gujrat had medically examined the accused Ilyas in injured condition. While appearing in the witness-box DW-1 stated that on 15.5.1988 at 9-10 p.m. He had examined Muhammad Ilyas son of Sajawal in injured condition and found the following injuries on his person:-
(1) Contused wound 2 cm x 1 cm and just muscles deep in transverse direction in the upper part of back of neck in the hair margin.
(2) Contused wound 1.5 cm x 1 cm going into the muscles in transverse directions towards let, edges grayish on the back of neck in the middle.
(3) Contused wound .5 cm x .25 cm x muscle deep at a distance of 4.25 cm from previous Injury No,2, both were communicating.
(4) A contused wound 1.5 cm x .5 cm x muscle deep towards the right of middle line of back of neck, pellet palpited and removed.
(5) A contused injury 2.75 cm x 2 cm x muscle deep on the left side of back of shoulder 7cm medial to his shoulder tip.
(6) An abrasion 2.5 cm x .2 cm x transverse direction medial to injury No,4 on the left side back of shoulder.
8. In his Medico-legal report (Exh.DB) he also observed corresponding cuts, on the shirt and Bunyan worn by the injured, stained with blood. He also deposed that all the injuries were declared simple in nature caused by firearm. While facing the cross-examination he denied the suggestion that the injuries found on the person of Ilyas could be self-suffered. He further stated' that all the injuries found on the, person of Ilyas were present in the area starting from the shoulder up to the middle of artery line on the neck.
9. It is argued by the learned D.P.-G. For the appellant/State that the learned trial Court granted acquittal to the respondents through the impugned judgment on wrong premises of law and facts based on misappreciation of evidence causing grave miscarriage of justice; that even if admitted for the sake of argument that the respondents acted in self-defence it. Is evident on the record that, they had exceeded the right of private defence by taking the life of Moazzam deceased, therefore the impugned judgment of acquittal is untenable in law and liable to set aside.
10. On the other hand, learned counsel for the respondents argued that the learned trial Court through proper appreciation of evidence available on the record has rightly granted acquittal in their favour based on sound reasons; that presence of the complainant Riasat Ali (P.W.9) at the time and place of occurrence is highly doubtful; that the P.Ws. Being closely related to each other as well to the deceased Moazzam Ali are interested witnesses and thus could not be safely relied upon that the learned trial Court has lawfully discarded the testimony of the P.Ws.; that the prosecution failed to produce material witness namely Mushahid Raza with whose reference the motive was Particularly alleged; that Bahawal respondent No,1 at the time of occurrence was aged about 70 years whereas Ilyas alias Ghias Dogar/respondent No,2 was about 25 years of age; that the injuries on the person of Ilyas were wilfully suppressed by the prosecution; that in the peculiar circumstances of this case defence has probable, plausible and, convincing reason to advance that the accused Ejaz in exercise of his right of self-defence as well as of defence of his cousin Ilyas respondent/ accused gave injuries to the deceased as well as to Zafar Iqbal P.W.10; that the defence version if put in juxtaposition to the prosecution version seems more natural and plausible; that double presumption of innocence is attached to the acquitted accused; that had the co- accused Ejaz (proclaimed offender) not grappled with Zafar Iqbal (P.W.10) and snatched the rifle from him and caused injuries to the deceased as well as to P.W. Zafar Iqbal, Ilyas accused was likely to be done to death by the complainant party, therefore the defence side did not exceed the right of private defence.
11. Arguments heard. Record perused.
12. Unshattered statement of Dr. Daleel Khan (DW-1), M.O. Rural Health Centre, Chelianwala with regard to five tire-arm injuries on the person of Ilyas accused/respondent No,2 wilfully suppressed by the prosecution in the F.I.R. Casts a serious doubt in the prosecution story. It therefore renders the testimony of the complainant Riasat Ali (P.W.9) devoid of intrinsic value and inherent worth. His presence at the time and place of occurrence becomes highly doubtful; therefore he could not be safely relied upon. Reliance is made upon Nasarullah and another vs. The State (1985 SCM R 1715) and Malik Waris Khan v. Ishtiaq alias Naga, and others (PLD 1986 SC 335) .
13. Besides it is pertinent to mention that Bahawal respondent admittedly was aged about 70 years at the time of alleged occurrence. No overt act is attributed to him except mere presence at the time and place of occurrence, therefore his false implication cannot be ruled out. No motive is alleged against the deceased Moazzam and Zafar Iqbal P.W. Non-production of the material witness Mushahid Raza against whom the motive is particularly alleged by the complainant also makes the prosecution version doubtful.
14. Needless to mention that section 97 of the P.P.C., 1860 manifests that every person has a right subject to restrictions contained in section 99 to defend his own body and the body of any other person against any offence affecting the human body. Simultaneously section 100 of the P.P.C.
Envisages that the right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:-- "First, Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; ' Secondly. Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
15. Learned D.P.-G. For the State has argued that after disarming of Zafar Iqbal, the accused Ejaz Ahmad (since P.O.) had exceeded in his right of private defence by causing injuries to the deceased and Zafar Iqbal (P.W.10). Argument advanced by the D.P.-G. Is not convincing for the simple reason that the defence side has categorically contended that Moazzam Ali (deceased) was also armed with gun .12 bore, therefore, despite disarming of Zafar Iqbal by Ejaz. Ahmad accused, still there was apprehension/imminent danger of death or grievous hurt from Moazzam Ali to Ejaz Ahmad as well as to Ilyas respondent. Therefore it will not be fair to conclude that the defence side had exceeded the right of self-defence. Reliance is made upon Ahinad Din v. Faiz Ahmad and 2 others (1972 SCM R 549).
16. Learned trial Court has rightly concluded that the defence plea appears to be more plausible and convincing in all fairness of the facts and circumstances of this case and that the prosecution has failed to bring the guilt home to the accused beyond any reasonable doubt. Therefore the respondents were lawfully granted acquittal given benefit of doubt.
17. For the above discussion and reasons, we do not find any perversity, factual or legal infirmity in the impugned judgment whereby the respondents have been granted acquittal. This appeal having no merit is dismissed.