' SYED IFTIKHAR HUSSAIN SHAH, J.---This judgment will dispose of Criminal Appeal No,449 of 1998 filed by Muhammad Rafique, who is complainant of case F.I.R. No,231 of 1996 registered under section 302/34, P.P.C. At Police Station City Kehror Pakka District Lodhran for setting aside judgment dated 18-11-1998 passed by the learned Additional Sessions Judge, Lodhran whereby respondents Nos.1 to 3 were acquitted. The appeal to the extent of respondents Nos.2 and 3 was dismissed as withdrawn vide order dated 22-5-2009.
2. Succinctly, the facts of the case as mentioned in F.I.R. Exh.PA/1 registered on the complaint Exh. PA of Muhammad Rafique, are that on 14-8-1996 at about 10-30 p.m. When the complainant along with his brother Muhammad Hanif was standing near Kothi Neemwali when his younger brother namely. Muhammad Asghar alias Bala (deceased) was going towards Chok Ghausia from his house. When he reached near Alamgir General Store, accused Inayat Ali armed with pistol, Abdul Hamid and Muhammad Khalid empty-handed, intercepted Muhammad Asghar to teach him a lesson for disgracing them whereupon Asghar Ali tried to run away but Muhammad Khalid and Muhammad , Asghar intercepted him. In their seeing, Inayat Ali fired four shots with his pistol hitting Asghar Ali on his forehead, neck and left arm and he fell down. On hue and cry of Muhammad Asghar, the complainant along with his brother Muhammad Hanif and Muhammad Saleem son of Siraj Din rushed towards the spot. The complainant and the witnesses saw the occurrence in the light of Bulb. All the three accused ran away from the spot. Hanif and Saleem P. Ws. Took the injured to Civil Hospital Kehror Pacca. The injured was referred to Victoria Hospital Bahawalpur where he succumbed to the injuries. The motive behind the occurrence was that a few days prior to the occurrence, Inayat Ali accused and Asghar All deceased, who were friends, had a quarrel on a joke and Asghar Ali had slapped Inayat Ali for which he nourished a grudge and attacked Asghar Ali.
3. After the submission of challan, respondents Nos.1 to 3 were charged under section 302/34, P.P.C.
To which they pleaded not guilty and claimed trial. The prosecution, in order to substantiate the charge, examined as many as 7-witnesses.
4. Siraj Din P.W.1, Muhammad Rafique No,207/C P.W.2 and Saeed Akhtar Head Constable P.W.5 are more or less formal witnesses while complainant himself appeared as P.W.4 and produced Muhammad Saleem P.W.3 as eye-witnesses. Rustam Ali SI P.W.7 conducted the investigation of this case.
5. Dr. Ehsan Bari P.W.6 medically examined the injured Asghar Ali and thereafter on his death he conducted the post mortem examination op his dead body and observed following injuries:-- 'Injuries No, 1 . A lacerated fire-arm wound 1.5 cm x 1.5 cm wound of entrance on the left side of forehead.
2.5 cm from left eye brow 11 cm from left ear and other wound lacerated fire arm 3 cm x 2 cm on right side of head just about right ear 9.5 cm from right outer canthus of eye. This wound is wound of exit. No blackening and tattooing of wounds.
' No,2. A lacerated fire arm wound 1 cm x 1 cm on the back and right side of neck 8.5 cm from right ear 9 cm from right shoulder. This wound is entrance and other lacerated fire arm wound 1.2 x 1.2 cm on the left and back side of neck 7.5 cm from left ear from left ear and 4.7 cm from left shoulder. This wound is exit.
' No,3. A lacerated fire arm wound 1 cm x 1 cm on the back of right side of neck 1 cm above from wound of entrance of injury No,2.
' No,4. A lacerated fire arm wound 2 cm x 1.5 cm on the lateral side of left arm 175 cm from left elbow joint and 17 cm from tip of shoulder. This is wound of entrance.
' No,5. A lacerated fire arm wound 1 cm x 1/2 cm on the antero lateral side of left arm 11 cm from tip of the shoulder 21.5 cm from elbow joint. This is wound of entrance.
' No,6. An abrasion 3 cm x 4 cm on the back of left forearm near elbow joint.
' Opinion The cause of death in this case was due to a) haemorrhage and shock and b) injury to vital organ i.e, brain due to injury No,1 A and B individually and also collectively are sufficient to cause death in the ordinary course of nature."
' The prosecution closed its evidence by tendering report of Chemical Examiner Exh.PO, report of Serologist Exh.PQ and attested copy of report of Forensic Science Laboratory,
6. After closing of the prosecution evidence respondents Nos.1 to 3 were examined under section 342, Cr.P.C. The incriminating evidence produced by the prosecution was put to them, which they termed as incorrect, to question as to why this case was registered and why the P.Ws. Have deposed against them, respondent No 1 deposed as under:-- "I have submitted my written statement Exh.DF P. Ws. Are closely related to each other and are inimical to me."
7. Respondent No,1 opted not to appear on oath as a witness under section 340(2), Cr.P.C., however he produced Muhammad Ashral D.W.1 Rana Abdul Hamid D.W.2 and Dr. Muhammad Maqbool as D.W.3 and tendered in evidence copy of F.I.R. No,275 of 1995 Exh.DF copy of F.I.R. No, 233 of 1993 Exh.DG and copy of F.I.R. No,217 of 1996 Mark-1 and other photo copy of an F.I.R. No,217 of 1996 Mark- D.
8. Learned trial Court, after hearing the learned counsel for the parties and going through the evidence on record, acquitted all the accused by accepting their plea of self-defence. Hence, this appeal.
9. Learned counsel for the appellant has contended that impugned judgment passed by the learned trial Court is against law and the evidence available on record; that the prosecution evidence is in line with the medical evidence which the defence has failed to shatter; that respondent No,1 successively fired four shots in his defence while according to the defence taken by respondent No,1, the deceased was armed with bottle in one hand and a brick bat on the other hand, as such respondent No,1 had no need to make four fire shots at the deceased and his act does not fall within the ambit of grave and sudden provocation; that the prosecution has fully established its case beyond reasonable doubt, therefore, the findings of the learned trial Court are liable to be reversed and respondent No,1 is liable to be convicted. Relies on cases titled "Muhammad Ashraf V. The State (2012 SCM R 419 [Supreme Court of Pakistan])".
10. On the other hand, learned counsel for respondent No,1 has stated that the learned trial Court has passed the impugned judgment after appraisal of evidence available on record and believed the defence plea in toto while the evidence produced by the prosecution is highly doubtful and unbelievable; that respondent No,1 has fully proved his claim of self-defence as required under section 100, P.P.C.; that the deceased was a notorious and habitual drinker and he attacked upon respondent with the intention to commit his murder. Relies on case reported as "Ghulam Farid v.
The State (2009 SCM R 929 [Supreme Court of Pakistan])", "Mushtaq Hussain and another v. The State (2011 SCM R 45 [Supreme Court of Pakistan])" and "Amal Sherin and another v. The State through A.G. N.-W.F.P. (PLD 2004 Supreme Court 371)".
11. We have heard the learned counsel for the appellant assisted by the learned DPG for the State, learned counsel for respondent No,1 and have also gone through the record.
12. The occurrence of this case took place in the night on 14-8-1996 at about 10-30 p.m. In the Main Bazar Kehror Pacca when the Asghar Ali deceased was coming from his house towards Ghausai Chowk at a distance of 1/2 k.m. From the police station and the matter was reported to the police at 11-00 p.m. Dr. Ehsan Bari P.W.6 medically examined Muhammad Asghar injured at 10-40 p.m. On the same night i.e, 14-8-1996 and thereafter he conducted the post mortem examination on his dead body at 8-30 a.m. On 15-8-1996 as he had died at 1-15 a.m. On the same night. The occurrence was witnessed by Muhammad Rafique complainant, his brother Muhammad Hanif and one Saleem son of Siraj Din. Muhammad Saleem P.W.3 is the real cousin (Mamoonzad) and complainant Muhammad Rafique P.W.4 is the brother of Asghar Ali deceased. Both of them have categorically stated that two months and two years back at 10-30 p.m. Respondent No,1 Inayat Ali while armed with pistol .30-bore, fired four successive shots at Asghar Ali in their view hitting him on his neck, forehead and left arm. According to Muhammad Saleem P.W.3, 2/3 days before the occurrence, Asghar Ali and Inayat Ali had quarrelled and exchanged fist blows on some petty dispute for which Inayat Ali respondent bore grudge and committed his Qatl-e-amd. Both the P.Ws. Have denied that the deceased was assailant, who had caused injuries on the head and body of Inayat Ali respondent and Inayat Ali respondent fired at the deceased in his defence.
Learned counsel for respondent No,1 has assailed the testimony of both these witnesses on the ground of their close relationship with the deceased. It is well-settled by now that mere relationship of the witnesses is not a A ground itself to discredit their testimony. In this respect, I respectfully refer the case of "Khizer Hayat v. The State (2011 SCM R 429)" wherein Hon'ble. Supreme Court observed as under:-- "The statement of the witness on account of being interested witness can only be discarded if it is proved that an interested witness has ulterior motive on account of enmity or any other consideration. Essentially this proposition has been considered in number of cases and this Court had declined to give weight to it, in absence of any reason leading to show that for some ulterior motive or on account of enmity the statement has been falsely given. There is no rule of law that statement of interested witness cannot be taken into consideration without corroboration and even uncorroborated version can be relied upon if supported by the surrounding circumstances."
13. The prosecution has established the guilt of respondent No,1 beyond any shadow of doubt that he had fired at the deceased resulting in his death. Respondent No,1 had admitted that he fired at the deceased but in his self-defence in order to save his life and that he had imminent danger to his life after receiving the blow of bottle on his head at the hands of the deceased. The burden of proof according to Article 121 of the Qanun-e-Shahadat Order, 1984 lies on the respondent No,l.
Respondent No,1 during his examination under section 342, Cr.P.C. Has submitted his written statement Exh.DF wherein he alleged that the deceased while holding a bottle in one hand and a stone in the other hand, abused, attacked, gave blow of bottle on his head and also three stones which hit on his cheek and in order to save his life, he after snatching pistol from the deceased, fired at him. Respondent No,1 examined Muhammad Ashraf D.W.1, Rana Abdul Hameed D.W.2 and Dr. Muhammad Maqbool D.W.3. Muhammad Ashraf D. W.1 and Rana Abdul Hameed D.W.2 claiming themselves to be the eye-witnesses of the occurrence deposed that they had seen Asghar Ali deceased quarrelling with Inayat Ali respondent No, 1 and Asghar Ali had given a blow of bottle which hit on the head of Inayat and Inayat Ali fired at the deceased in his self-defence but none of them have deposed that he fired at the deceased after snatching pistol from him or the deceased was also armed with pistol. Both D. W.1 and D.W.2 had not been suggested that the injuries suffered by respondent No,1 are self-inflicted.
14. Dr. Muhammad Maqbool D.W.3 medically examined Inayat Ali respondent on 17-8-1996 and observed following injuries on his person:-- ' Injuries No,1. A lacerated wound 3 x 1 cm x bone deep with (exposure of bone) on the back and slightly left side of the head 13 cm from left ear.
' No,2. An abrison 5 cm x 3 MM on the lateral side of the left eye on the cheek with cab formation.
' No,3. No, An abrison 3 cm x 1/2 cm on the front of knee joint.
15. The time and the place of occurrence is admitted one. It is alleged that it was Asghar Ali deceased who assaulted respondent No,1 and respondent No,1 in his defence in retaliation in order to save his life fired at the deceased after snatching his pistol but it has not been proved on record that the deceased was armed with any pistol. If the deceased was armed with pistol then why he resorted to throw bottle or throw stone on the person of respondent No,
1. It is respondent No,1 who himself was armed with pistol at the relevant time and had fired at the deceased allegedly in his self defence.
16. Respondent No,1 has alleged that Asghar Ali deceased was aggressor, who had attacked on him and had given a blow of bottle on his head. The aforesaid alleged injury is a lacerated wound 3 x 1 cm x bone, deep with (exposure of bone) on the back and slightly left side or the head. 13 cm from left ear and the other injuries are on the person of respondent No,1 allegedly caused by the deceased are abrasions.
17. The right of self-defence is fundamental right guaranteed by the law to a person to save his own life or the life of any person from any imminent damage. This right has been given by law under section 100, P.P.C. To the extent of causing death of the assailant in case where the assault launched by the later causes reasonable apprehension that the death will the consequence of such assault. Under section 100, P.P.C. The right of private defence of 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.
' Thirdly, An assault with the intention of committing rape; ' Fourthly, An assault with the intention of gratifying unnatural lust; ' Fifthly. An assault with the intention to kidnapping or adducting; ' Sixthly, An assault with the intention of wrongfully confining a person under circumstances which may reasonably cause him to apprehend that he be unable to have recourse to the public authorities for his release.
18. In the instant case, the alleged injuries on the person of respondent No,1 were of simple nature.
The right of private defence does not provide a license or an unlimited description to go on causing exclusive harm to the opponent party. Such right commences only when a reasonable apprehension arises from an attempt or threat to commit an offence. It is to be exercised as a preventive measure and not for launching attack. The eye-witnesses of the occurrence have categorically deposed that it was respondent No,1 who had fired four successive fires at Asghar Ali deceased resulting in his death whereas according to the defence, Asghar Ali deceased was assailant who had caused injuries or his person. D.Ws., who also claimed to be the eye-witnesses and are admittedly residents of the same area have also deposed that the deceased had thrown stone and bottle at respondent No,1 hitting on his left side of head and cheek. Dr. Muhammad Maqbool D.W.3, who medically examined respondent No,1, found injuries on .The person of respondent No,l. There is an objection that respondent No,1 got him medically examined on the 3rd day of the occurrence i.e, on 17-8-1996 while this delay has reasonably been explained by the learned counsel stating that after the occurrence, respondent No,1 was hesitant to approach the doctor for medical aid under the apprehension of his arrest.
19. It is established on record that a quarrel had taken place between Asghar Ali deceased and Inayat Ali respondent No,1, who were formerly close friends, on some petty matter. On the day of occurrence, the deceased had given the blows of bottle and stone on the person of respondent No,1, who in retaliation and feeling imminent danger to life, had fired at the deceased. According to respondent No,1, he snatched the pistol from the deceased but he failed to prove the same. All the D.Ws. Examined by him have also not supported respondent No,1 in this connection and did not depose that the deceased was armed with firearm. Respondent No,1 had fired four, successive shots hitting the deceased on the different parts of his body. It is fully established that he exceeded his right of private defence. The case-law produced by the learned counsel for respondent No,1 is not directly applicable to the facts and circumstances of the case.
20. From the above resume, we are of the considered view that the findings of acquittal recorded by the learned trial Court are not supported by the evidence on record and in fact is based on gross misreading and misconstruction of the evidence and are also speculative and artificial in nature. Respondent No,1 while firing four successive shots at the deceased had exceeded his right of private defence while committing the murder of Asghar Ali deceased. The learned trial Court has disregarded this material evidence, therefore, respondent No,1 is liable to be convicted under section 302(c), P.P.C.
21. In view of above discussion, we accept the appeal in hand and set aside the impugned judgment dated 18-11-1998 to the extent of acquittal of Inayat Ali respondent No,
1. He is hereby convicted under section 302(c), P.P.C. And sentenced to rigorous imprisonment for 10-years. He is further sentenced to pay compensation of Rs,100,000 (one lac) payable to the legal heirs of the deceased under section 544-A, Cr.P.C. As arrears of land revenue and in case of non-payment of compensation, he will have to further suffer simple imprisonment for six months. He is given the benefit of section 382-B, Cr.P.C. Copy of the judgment be sent to the learned Sessions Judge Lodhran for implementation.