MAZHAR IQBAL SIDHU, J.---This judgment will dispose of captioned criminal appeal filed by appellant Zaheer Ahmad through jail authorities who was convicted by learned Addl. Sessions Judge, Daska in case. FIR No,147/07 dated 15.6.2007 under sections 302/34/109, P.P.C. registered at P.S. Satrah, District Sialkot vide impugned judgment dated 24.11.2010 and sentenced infra:-- i) Life imprisonment under section 302(b), P.P.C. as Tazir with payment of Rs,50,000/- as compensation to the legal heirs of the deceased Aman Ullah under section 544-A, Cr.P.C. and in default whereof to further undergo SI for six months.
He was also extended the benefit of section 382-B, Cr.P.C.
2. The brief rueful facts of the case as embosomed by complainant Muhammad Abbas (PW-1) through Exh.PA as well as FIR Exh.PA/1 are that on 15.6.2007 at 11.00 AM he had gone to Mianwali Bangla for some labour where he received information that Aman Ullah, his father, was going to purchase some articles from shop when Zaheer Ahmad appellant armed with carbine, Jalil Ahmad, Muhammad Idrees came and on seeing his father, Muhammad Idrees raised Lalkara that Aman Ullah be taught a lesson for getting registered case against them, then Jalil Ahmad accused caught hold of his father and Zaheer Ahmad appellant fired with his carbine which hit his father on his chest, who fell to the ground. The occurrence was witnessed by Mumtaz Ahmad and Ghulam Rasool. PWs shifted Aman Ullah in an injured condition by a tractor-trolley .to RHC Satrah, where he succumbed. The motive for the occurrence was litigation between the parties.
Subsequently, on the same day, supplementally nominated Fateh Muhammad co-accused (since acquitted) as conspirator to the occurrence.
3. Appellant Zaheer Ahmad was arrested on 27.6.2007 while being on physical remand on 6.7.2007 got recovered weapon of offence the carbine 12 bore P-3 from his residential house in village Begaywali which was taken into possession by the I.O. (PW.12) vide recovery memo Exh.PM attested by the PWs.
4. After the conclusion of investigation report under section 173, Cr.P.C. was prepared and submitted before the learned trial court by placing the name of the appellant in column No,3 while names of his co-accused namely Abdul Waheed alias Jalil, Idrees and Fateh Muhammad (since acquitted) were placed in its column No,2.
5. Learned trial court after observing all the pre-trial codal formalities, indicted the appellant and his co-accused namely Abdul Waheed alias Jalil Ahmad, Idrees and Fateh Muhammad (since acquitted) to which they did not plead guilty and claimed trial. Thereafter, the prosecution was directed to lead evidence in order to substantiate the charges.
6. The prosecution in order to prove its case produced 12 witnesses in all.
Doctor Iftikhar Ahmad, M.O., Civil Hospital Daska (PW.10) deposed that on 16.6.2007 at about 2.00 PM he performed postmortem examination on the dead body of Aman Ullah deceased and observed as under:-- INJURIES: i) A firearm lacerated wound 6 x 3 cm. DNP on right chest, close to mid-line, just above right nipple.
No blackening present on the wound. A foreign body (while plastic) cartridge present in the wound which was sealed, signed and handed over to the police. Underlying ribs and sternum were fractured.
OPINION.
In his opinion, death occurred due to sole injury which caused direct trauma to vital organ i,e. lungs, heart and mediastinum vessels, that lead to excessive internal and external haemorrhage which caused shock, cardio pulmonary arrest and ultimately death. Sole injury caused by firearm weapon, ante-mortem and homicidal in nature and was sufficient to cause death in the ordinary course of nature.
Probable time that elapsed between injuries and death was immediate and between death and post mortem was 12 to 1.4 hours.
Exh.PG was the correct carbon copy of post mortem report. Exh.PG/1 and Exh.PG/2 were the pictorial diagrams showing the location of injury also bore his signatures.
7. Learned DDPP by tendering in evidence reports of Chemical Examiner Exh.PN and that of Serologist Exh.PN/1 and report of FSL Exh.PO vide his statement dated 28.6.2010 closed the prosecution case.
8. Thenceforth statement of the appellant was recorded under section 342, Cr.P.C. wherein he negated the charge and professed his innocence.
He in reply to a question "why this case against you and why the PWs deposed against you" replied infra:-- "In fact the deceased and his son (complainant) made firing on me and two fire shots hit me on my chest. The deceased was murdered by fire shot of his son Abbas the complainant and the complainant in order to save his own skin falsely involved me in this case."
He in his statement recorded under section 342, Cr.P.C. he opted to make statement on oath as permissible under section 340(2), Cr.P.C. and thereafter got his statement recorded under the same penal provision.
Although he did not opt to lead evidence in his defence yet subsequently he submitted application for summoning Dr. Khalid Mehmood M.O. who medically examined him, in his defence as DW and the said application was allowed by the learned trial court and he was examined as D.W.1 who deposed that on 15.6.2007 at 4.00 PM he medically examined the appellant and observed as under: -- INJURIES: i) A lacerated wound 1 x 1 cm. DNP in front of chest 5 cm below the clavicle on right side. X-ray of chest AP and lateral was advised. ii) A lacerated wound 2 x 1 cm on right upper arm (DNP). X-ray AP and lateral of right upper arm were advised.
The injured (appellant) was referred to Surgeon for expert opinion and treatment. Injuries Nos.1 and 2 were kept under observation. The duration of injuries was fresh and kind of weapon was firearm.
Exh.DA was, the correct carbon copy of MLR which bore his signature.
9. On the conclusion of trial the appellant was convicted and sentenced as mentioned supra while his co-accused namely Abdul Waheed alias Jalil, Muhammad Idrees and Fateh Muhammad were acquitted by the learned trial court. Hence, instant appeal.
10. To this appeal, learned counsel for the appellant submits that complainant made distortion to the facts while reporting the matter to the police; injuries on the person of appellant were suppressed and in fact appellant exercised his right of self-defence in the occurrence which was legitimately available to him, therefore, he committed no offence and has been protected by the exceptions contained in section 100 of the Pakistan Penal Code, thus has craved for allowing of appeal.
11. Learned Add, P.G. has defended the impugned judgment whereas learned counsel for the complainant has argued that the appellant Zaheer Ahmad being injured cannot deny his participation in the incident whereas he has exceeded the right of self-defence; learned trial court has already discarded the same and equitably has sentenced him, therefore, instant appeal may be dismissed.
12. Tripartite arguments heard busily. Record perused intently.
13. Accusal narratives have already been jotted down in the relevant paragraph of this judgment but yet here again there are reiterated pithily that complainant Muhammad Abbas (PW-1) through Exh.PA as well as FIR Exh.PA/1 are that on 15.6.2007 at 11.00 AM he had gone to Mianwali Bangla for some labour where he received information that Aman Ullah, his father, was going to purchase some articles from shop when Zaheer Ahmad appellant armed with carbine, Jalil Ahmad, Muhammad Idrees came and on seeing his father, Muhammad Idrees raised Lalkara that Aman Ullah be taught a lesson for getting registered case against them, then Jalil Ahmad accused caught hold of his father and Zaheer Ahmad appellant fired with his- carbine which hit his father on his chest, who fell to the ground. The occurrence was witnessed by Mumtaz Ahmad and Ghulam Rasool. PWs shifted Aman Ullah in an injured condition by a tractor-trolley to RHC Satrah, where he succumbed. The motive for the occurrence was litigation between the parties. Subsequently, on the same day, supplementally nominated Fateh Muhammad co-accused (since acquitted) as conspirator to the occurrence.
14. Co-accused Abdul Waheed alias Jalil, Muhammad Idrees have been acquitted while Fateh Muhammad was involved by an additional statement of the complainant for criminal machination but he has also been acquitted. It may be piddling to divulge to the niceties of the motive as occurrence has not been denied. Prosecution produced three PWs to prove the case. PW.1 is Muhammad Abbas real son of the deceased who admittedly did not see the occurrence and while testifying has explicitly deposed that on remorseful day of occurrence at about 11.30 AM, he was present at Mianwali Bangla where one unknown person disclosed him that his father had received bullet injury, therefore, needless to discuss it but at the same time he admits during cross- examination that Mumtaz PW.2 is his Tayazad whereas Ghulam Rasool. PW.3 is his Taya. Defence version was put to him but he denied its acceptance.
PW.2 Mumtaz Ahmad who claims to have seen the incident and transported the deceased in an injured condition to the RHC Satrah where the deceased died. Partway cross-examination a very important aspect has been brought on record which is reproduced as follows:-- "It is incorrect to suggest that 1 have been mentioned in my statement recorded under section 161, Cr.P.C. that deceased Aman Ullah also made two fire shots which hit the deceased Zaheer Ahmad, present in court. Confronted with Exh.DA where it is so recorded".
PW.3 Ghulam Rasool has also claimed to have seen the incident. He, too, during cross-examination has admitted the injuries of appellant, excerpt of his statement is jotted down as follows:-- "It is incorrect to suggest that I have mentioned in my statement under section 161 Cr. P. C. that Aman Ullah also made two fire shots which hit Zaheer Ahmad accused, present in court.
Confronted with Exh.DB where it is so recorded".
Now another important witness is Nasrullah Khan SI (PW.12). He has admitted in the cross- examination that eye-witnesses were not present at the spot and there was cross-firing between the deceased and the appellant. It may not be inapt to reproduce cross-examination's particular portion, infra:-- "It is correct that I have opined three accused namely Abdul Waheed alias Habeel, Idrees and Fateh Muhammad as innocent. It is correct that I had also recorded the cross-version on the written application of accused Zaheer. During investigation, it came on file that accused Zaheer and Aman Ullah made cross firing on each other as a result of which accused Zaheer received two fire shot injuries, whereas deceased received one firearm being fatal, which resulted in his death. Volunteered, I filed the cross-version on the ground of death of deceased who allegedly made firing on accused. I cannot tell that who made firing first. It is correct that in my investigation it was found that except accused Zaheer and deceased were present at the spot.
PWs were not found to be present at the spot at the time of occurrence".
15. During the occurrence appellant received two fire shots on his chest, his medical examination was carried out on the date of incident i,e. 1.5.6.2007 at 3.35 PM and the doctor Khalid Mehmood (DW.1) observed following injuries:- i) A lacerated wound 1 x 1 cm. DNP in front of chest 5 cm below the clavicle on right side. X-ray of chest AP and lateral was advised. ii) A lacerated wound 2 x 1 cm on right upper arm (DNP). X-ray AP and lateral of right upper arm were advised.
The injured was referred to Surgeon for expert opinion and treatment. But thereafter final result of the injuries could not be brought on record. Injuries Nos.1 and 2 were kept under observation. The duration of injuries was fresh and kind of weapon was firearm. Exh.DA was the correct carbon copy of MLR which bore the signature of said doctor. He when examined as DW.1 was not cross- examined by the prosecution.
It is pertinent to mention here that appellant in the cross examination of the PWs has brought on record the right of his self defence but in his statement recorded under section 342 Cr.P.C. while answering to question No,9 has denied it and answered as follows:-- In fact the deceased and his son (complainant) made firing on me and two fire shots hit me on my chest. The deceased was murdered by fire shot of his son Abbas the complainant and the complainant in order to save his own skin falsely involved me in this case."
16. Now through prosecution witnesses, it has been proved that PWs could not deny sustaining of injures of the appellant during the occurrence whereas PW.12 Nasrullah Khan SI/I.O has categorically deposed that PWs were not found present at the spot at the time of occurrence, appellant and the deceased made cross firing on each other as a result of which Zaheer appellant received two fire shots injuries whereas the deceased received one firearm injury being fatal resulted in his death and again he has admitted that uncertain who made fire first. Without any fear of contradictions even in absence of a specific plea taken by the appellant for exercising his right of self-defence, the court can infer and construe from the whole material provided in all reasonableness it is made out. The court cannot be restrained to draw a conclusion independently when both the parties have suppressed their respective parts played, after all, the court has inquisitional jurisdiction to reach to truth. In this regard, the Hon'ble Supreme Court of Pakistan has postulate in case titled Ahmad Khan v. Nazir Ahmad etc. (1999 SCM R 803) as under:--
(b) Penal Code (XLV of 1860)--- ----S. 302---Appraisal of evidence---None of the parties having come out with true story, incomplete tale, could not prevent the Court from drawing the inference flowing from the facts and the circumstances of the case---Fight had ensued between the complainant and the accused party wherein injuries were caused to accused and co-accused whereupon accused had caused one injury each to the deceased and to a prosecution witness---Accused and co-accused having received simple injuries, accused had definitely exceeded his right of private defence by causing fatal injury to the deceased and grievous injury to the prosecution witness---Conviction of accused under S.302, P.P.C. was well founded and award of lesser penalty of imprisonment for life to him thereunder was justifiable in the circumstances---Co-accused had also been rightly acquitted of the charge---Appeal was dismissed accordingly".
(d) Penal Code (XLV of 1860)--- ----S.302---Appreciation of evidence---Self-defence, right of---Accused even in the absence of any evidence of his own in his defence, is entitled to support his plea of right of self-defence from the circumstances appearing from the prosecution evidence".
' Exercising of right of self-defence cannot be measured by a golden scale but if a reasonable force is exercised/used by the aggressed genuinely to save his right when no other option is left with him then he cannot be declined its benefits by virtue of exceptions contained in section 100 of the Pakistan Penal Code. It may be contextual-cumrelevant to reproduce those exceptions here under:-- 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.
'First injury received by the appellant was on his most vital part "chest". He received two injuries whereas deceased received solitary injury. Fortunately the appellant survived whereas it was misadventure that Aman Ullah died.
' No need to discuss the medical evidence as well as recovery of crime weapon P-3 the Carbine because legitimately exercise of right of self-defence of appellant Zaheer has been proved.
Obviously, this piece of evidence remains corroborative.
17. What has been discussed above, by wrapping it up, the court has come to the conclusion that appellant acted in the exercising of his right of self-defence legitimately within the parameters of restrictions of law. He has committed no offence; therefore, the prosecution has miserably failed to prove its case against him. This, instant appeal is allowed, resultantly, conviction and sentence of the appellant is set aside and he is acquitted of the charge imputed against him. He is on bail. His surety stands discharged.