1. ' QAZI MUHAMMAD AMIN AHMED, J.---Muhammad Sarfraz alias Chappu left home situated in Colony No,3 Khanewal at about 11/12:00 night to visit his sister in Lahore within the view of his brother Muhammad Nadeem (PW-1) on 17-9-2005; news of his murder reached home on the following morning when Muhammad Nadeem, complainant (PW-1) in the company of Muhammad Saleem and Nazakat Ali reached the venue to find dead body of his brother in a pool of blood with Muhammad Sabir lying in injured condition. Zaitoon Bibi and Anwar Farooq, PWs were present there. Muhammad Anwar, appellant herein, a watchman was named as accused, who according to the complainant fir,ed on the deceased and Muhammad Sabir suspecting them as thieves.
2. Incident was reported through Ex.PA at Islam Park 7:55 p.m. On 18-9-2005. Muhatimad Sabir after a brief struggle also succumbed to his injuries. The Investigating Officer during spot inspection secured bloodstained earth from two points along with three casings of 12-caliber. Dr. Muhammad Javed Iqbal (PW-5) conducted autopsy on the dead bodies of both the deceased. Muhammad Sarfraz, deceased sustained injury on front of cubital fossa of right elbow joint causing damage to blood vessels whereas in the case of Muhammad Sabir, a lacerated wound on the left side of abdomen measuring 4 x 4 cm with black margins was observed at the level of umbilicus; this witness also medically examined the appellant on 22-9-2005 and observed five injuries, comprising of contusions and abrasions, both healed and caused within the duration of 4 to 5 days with a blunt weapon. Shoukat Hussain, SI (CW-1) investigated the case and arrested the appellant on 22-9-2005; during his examination before the Court, he brought on record the previous history of both the deceased; there were as many as seven cases of narcotics and illicit arm registered against Sarfraz deceased whereas six criminal cases comprising of theft, drugs and illicit arms were to the discredit of Muhammad Sabir deceased.
3. ' Feeling dissatisfied with the course of investigation, the complainant resorted to file a private complaint wherein process was issued against the appellant; he was indicted on 28-5-2007 when he denied the charge and claimed trial, pursuant whereto, the prosecution produced as many as five witnesses; the Investigating Officer was examined as CW-1. The appellant confronted prosecution evidence, with the following plea:-- ' "The case is false and fabricated all the PWs are inter-se related, interested and inimical towards me. They have deposed falsely. They were not present at the place of occurrence nor witnessed any thing as is clear from FIR Ex.P.A/1 and statements of PWs Ex. DA and Ex.DB and statement of 1.0., CW-1, they came at the spot after hearing about the occurrence. Later on they built up a false story of going of both the deceased to Lahore along with PWs. If Sabir deceased wanted to go to Lahore then why he along with PW-2 and PW-4 came to railway road Khanewal when their house is situated on Lahore road near Niazi Chauk which is three kilometer away from railway road. From Niazi Chauk buses are available for Lahore and Railway Station is also near to their house and as is clear from their statements. The place of occurrence is in mystery account to FIR Ex. PA/1 and statements of PWs under section 161, Cr. P. C. And statement of CW-1, I.O. It took place inside the Mohallah of Islam Pura, Khanewal but according to the statement of PWs recorded in the Court it took place on railway road Khanewal.
4. ' The so called eye-witnesses have been contradicted by doctor PW-5, I.O. CW-1 site plans Ex.CW- 1/A and Ex.CW-1/H 1-2. The PWs are also belied by their FIR and statements under section 161, Cr. P.
5. C. They are not trustworthy and cannot be relied upon. My version from the very beginning is straight forwarded and natural. I have not suppressed any fact. I was appointed as Chaukidar by the residents of Islam Park and was provided licensed gun for the safety because previously a Chaukidar was killed by the thieves and once theft was committed after tiding one Chaukidar. On the night of occurrence, both the deceased persons tried to commit theft but 1 challenged them' and they fled away. Lateron, during the same night they again tried to commit theft and I again challenged them at this time they were armed with dagger and Soowa and TR, they came near me, injured me seriously with stones and bricks and they wanted to kill me with dagger and soowa. Finding no way out and feeling danger to my life I fired to frighten them, by chance some pallets hit them due to which they later on died as immediate medical aid could not be provided them. Had I not fired the deceased (thieves) would have killed me and then they could easily commit theft. All the respectables of the Mohallah supported my version and they further stated that both the deceased were habitual thieves and they were addicted to narcotics and that the accused had no previous enmity with the deceased persons. The I.O. CW-1 also proved previous record of both the deceased persons. A letter of appointment as Chaukidar Ex.CW.1/L was also produced during investigation. I was medically examined on the request of the 1.0. And according to doctor PW-5 five injuries were found on my person, Ex.D. C. Is correct carbon copy of my MLC.
6. The prosecution story as is clear from above circumstances; is totally false and fabricated. In this way it is crystal clear that I had not exceeded my limits and had committed no offence and I am confined in the jail for the last four years without any fault of mine. I am innocent. I may kindly be acquitted from the charge."
7. ' The learned trial Judge on conclusion of trial convicted the appellant under Section 302(b), P.P.C.
8. And sentenced him to imprisonment for life with compensation of Rs,50,000/- each to the legal heirs of both the deceased or to undergo 6-months' SI in the event of default with benefit of Section 382-B, Cr.P.C. Vide judgment dated 12-9-2009; there is no reference to the counts on which conviction and sentence is recorded; according to the learned trial Judge, the appellant exceeded his right of private defence; vires whereof, are being challenged through the present appeal
2. Learned counsel for the appellant contends that both the deceased had a criminal history and the appellant, who admittedly was a watchman surprised by them, rightfully fired on them and as such his case falls within the purview of Section 100 of the Pakistan Penal Code, 1860. It has further been argued by the learned counsel that the appellant on prosecution's own showing fired one shot each and as such it cannot be held that he exceeded in exercise of the right of private defence. Contrarily, the learned Law Officer has defended the impugned judgment.
3. Heard. Record perused.
4. Muhammad Nadim (PW-1) is not an eye-witness; according to him, Muhammad Sarfraz deceased departed home to visit his sister at Lahore; misfortune struck both the deceased in Islam Park Khanewal , a place that they visited for purpose far from being justifiable; during the course of investigation, the case set up on complaint Ex.PA was found false and a discharge report dated 4- 3-2006 was prepared, however, disagreed by a learned Magistrate on 4-3-2006. During spot inspection, A Shoukat Hussain, SI (CW-1) secured from the spot Soowa (P-1) and a dagger (P-3); however, the prosecution attempted to drive home charge through the statement of Zaitoon Bibi (PW-2) and Muhammad Jabar (PW-4), who claimed to have seen the occurrence within their view.
9. Zaitoon Bibi (PW-2) in her examination in chief has given no time or date of occurrence nor any reason of either her presence at the spot or to accompany the deceased; deeply grieved by the tragic death of her son and calamities, understandably, nonetheless is unworthy of credence; not much different is case of Muhammad Jabar (PW-4); his statement also sans fundamental details of the incident in terms of point of time, date A and reasons of his presence at the spot where he was not supposed to be present at the relevant time; both these witnesses never joined police investigation to relate their side of story and this is so admitted by Mst. Zaitoon Bibi (PW-2), who made an admission in the cross-examination in the following term:- ' "I had not joined the investigation of this case. My statement was never recorded by the police. I had not made statement Ex.DD "
10. ' Same is the case of Muhammad Jabbar (PW-4); relevant portion of his admission is as follows:-- ' "I never joined investigation of this case. I had recorded my statement before the police. My statement was not recorded according to my version. I have heard my statement written under section 161, Cr.P.C. Ex.DA is not my statement."
11. ' The antecedents of both the deceased are far from being admirable and rather heavily reflect on the purpose of their arrival at the scene at an odd point of time for which none of the prosecution witness has any explanation. Injuries on the person of the appellant though examined belatedly belie the stance taken by the witnesses and this leaves ample space to comfortably accommodate the plea raised by the appellant. On prosecution's own showing he fired on both the deceased single shot in a crisis situation when he was surprised by their unanticipated arrival with a dagger and awl (soowa) in their hands; in this backdrop, he does not seem to have transgressed statutory immunity conferred upon him under Section 100 of the of the Pakistan Penal Code, 1860.
12. Exercise of right of self defence cannot not be weighed in golden scales; it is a human response under the instinct of self-reservation to ward off a threat which a prudent person with average nerves can modulate having regard to the situation obtaining upon him; the re-action of the appellant is in accord with the stress of the situation confronted by him. Consequently, Crl. Appeal No,581 of 2009 is allowed; the appellant is acquitted from the charge; he is on bail, his bond is cancelled and surety discharged. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.