CH. MUSHTAQ AHMAD, J.---Appellant Muhammad Shafi has challenged his conviction and sentence through Criminal Appeal No.539 of 2003. He was tried by learned Additional Sessions Judge, Mian Channu along with co-accused Tahir Yousaf, Muhammad Zarif, Muhammad Irfan and Manzoor Ahmad in case FIR No.159 dated 28.05.2000 registered under sections 302, 34, P.P.C. At Police Station Sadar Mian Channu. Complainant Muhammad Aslam has filed Criminal Revision No.348 of 2003 seeking enhancement of sentence. I propose to decide both these matters through this consolidated judgment.
2. On conclusion of trial, learned Additional Sessions Judge, Mian Channu vide his judgment dated 30.06.2003 found the appellant guilty of offence. Accordingly, he was convicted and sentenced as under:-- Convicted under section 302(b), P.P.C. And sentenced to undergo Imprisonment for life. He was also held liable topay Rs.1,00,000/- as compensation to the legal heirs of deceased Muhammad Asghar. In default thereof, to further undergo imprisonment for six months.
3. FIR was registered on the complaint made by Muhammad Aslam son of Jamal Din. Prosecution story according to FIR is that on 27.05.2000 at 11:24 P.M, complainant along with his brothers Muhammad Arshad and Muhammad Asghar went to irrigate their land. Complainant along with Muhammad Arshad went towards nearby land whereas Muhammad Asghar went to "Square (Killa) No.2" for redirecting water. Prior to that, water was irrigating land of Muhammad Arif, whom Muhammad Asghar told that he was going to divert water to his land. Muhammad Arif told him to do so and that he was also coming. In the meanwhile, Muhammad Asghar, brother of the complainant, started raising noise, on which complainant along with Muhammad Arshad attracted there and they saw in torch light that Muhammad Shafi (appellant) armed with sota, Irfan, Zarif armed with daggers, Manzoor armed with .222 bore rifle had encircled Muhammad Asghar while raising lalkara to teach him lesson. Zarif gave a blow with dagger at head of Muhammad Asghar.
Wan also gave a blow with dagger at backside of head of Muhammad Asghar, who fell down. Then Muhammad Shafi (appellant) gave sota blows at different parts of body of Muhammad Asghar.
Wan and Zarif also gave dagger blows to Muhammad Asghar. Complainant along with Muhammad Arshad tried to intervene, who Manzoor restrained by threatening to kill. Then accused persons fled away. Muhammad Asghar succumbed to the injuries on the way to hospital.
4. Investigation was conducted by PW-8 Mamoor Ali SI. After completion of investigation, report under section 173 Cr.P.C. Was submitted before trial court. Charge against the appellant along with co-accused was framed on 25.06.2002, to which they pleaded not guilty and claimed trial.
Prosecution in order to prove its case, produced as many as eight witnesses, whereas statement of Dr. Irshad Hussain was recorded as CW-1.
5. Appellant in his statement recorded under section 342, Cr.P.C. Again professed innocence. He took the plea that in fact deceased attacked on him and caused injuries with sota and that he in exercise of right of self defence, caused blows with sota to the deceased. It was also version of the appellant that he went to police station for lodging FIR and was also medically examined by police, but local police in connivance with the complainant party registered this case against him and his family members.
6. After conclusion of trial, appellant was convicted and sentenced as mentioned above, whereas all the co-accused were acquitted of the charge, hence, this appeal as well as revision.
7. Contention of learned counsel for appellant is that Muhammad Shafi appellant was attacked by the deceased who also caused serious sota blows to the appellant and in exercise of right of self defence, appellant also caused injuries which resulted in death of Muhammad Asghar, as such learned trial court was not justified to hold that present appellant had exceeded right of self defence.
8. Conversely, learned Deputy Prosecutor General contended that appellant had inflicted sota blows with intention to kill Muhammad Asghar deceased and was rightly convicted by learned trial court and that the sentence awarded by the trial court should be enhanced keeping in view the facts and circumstances of the case.
9. Arguments heard and record perused.
10. Ocular account in this case was furnished by PW-5 Muhammad Aslam, who is brother of Muhammad Asghar deceased and PW-6 Muhammad Arif'. Both the said PWs stated that occurrence took place at night on 27.05.2000 when they were present in the fields in order to irrigate the same. Accused namely Shafi armed with Sota along with Irfan and Zarif armed with daggers and Manzoor armed with rifle .222 bore encircled Muhammad Asghar. Zarif gave dagger blow on the head of Muhammad Asghar. Irfan also gave a blow with handle of the dagger at left side of head of Muhammad Asghar, who fell down. Accused Shafi (appellant) then gave sota blows at the backside of right hand of Muhammad Asghar. Second blow was given by Muhammad Shafi at right forearm of Muhammad Asghar and then on left elbow. After the occurrence, accused escaped.
11. Dr. Shahbaz Khan, who conducted post mortem examination on the dead body of Muhammad Asghar, appeared as PW-3. He noted seven injuries on the dead body. According to PW-3, all the injuries collectively were sufficient to cause death. Injuries were inflicted by blunt weapon except injury No.1 which was caused by some sharp edged weapon. Dr. Irshad Hussain, who had medically examined Muhammad Shafi appellant, appeared as CW-1. Five injuries were noted on the person of Muhammad Shafi appellant. In cross-examination CW-1 explained that it was not possible that the injuries would have been received by falling on the ground. According to him the injuries were result of violence and there was fracture of left radius displaced bone which was injury No.l. All the injuries were caused by blunt weapon within duration of three/four days.
12. It is pertinent to mention that appellant Muhammad Shafi was brought for medical examination by Muhammad Aashiq 787/C vide application Ex.D-E. From the statements of PW-3 and DW-1 it is evident that appellant had also sustained injuries during the same occurrence, time and place of which was admitted by the parties. Only the manner in which occurrence had taken place was narrated in different ways by the prosecution and the defence. The complainant in his statement before police had not disclosed the injuries sustained by appellant during occurrence, rather the same were concealed. Learned trial court after appreciating the evidence produced during trial concluded that the prosecution had failed to prove its case beyond reasonable doubt against the accused and the only option remains that the defence version be accepted as true. It was further noted that according to Muhammad Shafi accused (appellant) he caused injuries to Muhammad Asghar deceased in exercise of his right of private defence but it is also a fact that the deceased interfered in irrigation and the accused could approach the courts/authorities for redressal of his grievance regarding which his civil suit was pending before a court of competent jurisdiction, as such he exceeded right of private defence of his person and property.
13. As the prosecution version was disbelieved, co-accused namely Tahir Yousaf, Muhammad Zarif, Muhammad Irfan and Manzoor Ahmad were acquitted of the charge. Appellant Muhammad Shafi was convicted under section 302(b), P.P.C. And sentenced to imprisonment for life as Tazir. It was version of appellant that at the relevant time he was irrigating his land. He noticed that flow of water in "Khaal" was somewhat low and then he proceeded towards "Nakka" between square No.51/2 and 35/22 to see any breach in the "Khaal" and when he reached at the "Nakka", he saw that the deceased was standing there having a sota in his hand and a "kassi" lying nearby and the flow 'of water was blocked by putting mud in front of "Nakka" and the water was over-flowing in the nearby field. When he (appellant) started removing mud with "Kassi" from the "Nakka", deceased attacked him with sota and inflicted injuries which landed at different parts of his body. Then he came out of the "Khaal" and picked up sota and caused blows with it to the deceased.
14. Law is well settled that if the prosecution evidence is disbelieved by the court, then the statement of accused is to be accepted or rejected as a whole. It is legally not possible to accept the inculpatory part of the statement of accused and to reject the exculpatory part of the same statement. Reference may be made to case titled "Muhammad Asghar v. The State" reported in PLD 2008 SC 513. Learned trial court after disbelieving the prosecution version could believe or reject version of the accused, as a whole.
15. Law on the subject of right of private defence is found in section 100, P . P. C . , which provides as under :-- "100. When the right of private defence of the body extends to causing death. 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; ' 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 of kidnapping or abducting; ' 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".
16. Provisions of section 100 read with section 99, P.P.C. Reveal that in case of such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault, right of private defence of the body extends, under the restrictions mentioned in section 99, P.P.C. To the voluntary causing of death or of any other harm to the assailant. In the case in hand, appellant as per his version, was under attack by the deceased and as a result thereof, he received five injuries at his person, which fact is evident from statement of CW-1. In this state of affairs, case of the appellant fell within the four corners of general exception as enumerated in section 100, P.P.C.
17. In view of above discussion, this criminal appeal is allowed and conviction and sentence recorded by the learned trial court against the appellant through impugned judgment is set aside.
Resultantly, appellant Muhammad Shah is acquitted of the charge. His surety stands discharged of the liability of bail bonds.
18. For the above reasons, Criminal Revision No.348 of 2003, for enhancement of sentence filed by complainant is dismissed.