ABDULLAH BALOCH, J. This judgment disposes of Criminal Acquittal Appeal No.248/2016, filed by the appellant Adam Khan son of Nadir , against the judgment dated 19th May 2016 (hereinafter referred as "the impugned judgment ") passed by learned Sessions Judge (Ad hoc) Quetta (hereinafter referred as, "the trial Court "), whereby the accused/respondent No.1 Abdul Khaliq was acquitted of the charge under sections 302, 324, P .P.C.
2. Facts of the case are that complainant Muhammad Saleem SI/SHO lodged FIR No.241 of 2012 .at Police Station City Quetta, under sections 302, 324, P.P.C., stating therein that on the day of occurrence he along with other police officials was on area patrolling, when received wireless message about the incident, hence he along with other police officials reached at the place of occurrence i.e. Abdul Ali Jewelers Liaquat Bazar Quetta. On query it revealed that Abdul Khaliq had been shifted to Civil Hospital in injured condition by other shopkeepers, while another person was lying in dead condition at London Street, Liaquat Bazar , who was holding a pistol in his left hand. The said person was found to have sustained bullet entrance at left side of his chest and exit at left side near kidney , besides he had also sustained minor injuries at his forehead and nose. The pistol recovered from the dead body was having no number and displaying with words "SPECIAL MODIFIED AS CHINA MADE PIST OL .30 BORE" on its barrel. During further search of the dead body , from his wearing Kameez's pocket one magazine along with six live cartridges were also recovered. His service card, CNIC and cash amount of Rs.21 160/- were also recovered from which it revealed that his name was Mujeeb-ur-Rehman. All the recovered articles were taken into possession through recovery memo. On further inquiry , it has come to knowledge that some quarrel had taken place between the owner of "Abdul Ali Jewelers" namely Abdul Khaliq and deceased Mujeeb-ur-Rehman and about 1.00 p.m. exchange of firing was made between both of them.
3. On receipt of challan, the charge was indicated to the accused/respondent and on denial; the prosecution produced twelve (12) witnesses. The accused-respondent No.1 was examined under section 342, Cr.P.C. However , he neither recorded his statement on oath under section 340(2), Cr.P.C. nor produced any witness in his defence.
On conclusion of trial and after hearing arguments, the learned trial Court vide impugned judgment acquitted the accused-respondent of the charge. Whereafter , the instant appeal has been filed.
4. Heard the leaned counsel and perused the available record. Perusal of impugned judgment and the record justifies the acquittal order passed by the learned trial Court in favour of the accused/respondent. It is evident from the record that the prosecution in order to establish the charge has produced the evidence of twelve witnesses, but the statements A of all the witnesses are based upon hearsay evidence and the prosecution has failed to produce any single direct or circumstantial evidence in support of charge.
5. Admittedly , the law was set on motion on the basis of fard-e-bayan Ex.P/1-A of the complainant Muhammad Salem, SI, who appeared in the trial Court as PW-1, but the fact remains that he had not witnessed the crime directly rather according to him at the time of occurrence he along with other police officials were patrolling the area, B when informed about the incident and after reaching at the- place of occurrence he made inquiry and it revealed to him that exchange of firing was made in between the injured and deceased. Thus, the statement of complainant is not helpful to the case of prosecution. PW-2 Muhammad Arshad, SI, is the recovery witness of bloodstained clothes of accused-respondent. PW-3 Haji Muhammad Razzaq was the uncle of the deceased, who was informed about the incident by one Ghulam-ud-Din, while the Investigating Agency has neither investigated the said Ghulam-ud-Din nor he was produced in the Court for recording his statement. PW-4 Muhammad Umer received the dead body of the deceased from hospital. PW-5 Abdul Majeed handed over the blood stained clothes of deceased to I.O. PW-6 Bismillah, ASI, is the witness of recovery memos of pistol from the possession of deceased. Besides, he is also recovery witness of Service Card, CNIC, ATM Card, Cash amount, Nokia Mobile and wrist watch etc. PW-7 Muhammad Taqi is site inspection memo witness. He is also recovery witness of .30 Bore pistol, recovered from the accused-respondent. PW-8 is the recovery witness of blood stained clothes. PW-9 Atta- ur-Rehman is the brother of deceased. According to him, on the preceding night of occurrence his deceased brother had come to his house to spent night and in the morning he went to Bazar for changing/replacing gold ornaments and at about 2.20 p.m. he received information about the murder of his brother by the accused- respondents. Admittedly , the evidence of this witness is also based upon hearsay evidence as he himself heard from someone else about the occurrenc e, thus his statement is also not helpful in any manner to the case of prosecution. PW-10 Dr. Muhammad Jaffar, Senior Medical officer, examined the deceased and issued death certificate Ex.P/10-A. He also appeared as PW-11 and brought on record the MLC of the injured Abdul Khaliq.PW - 12 is the Investigation Officer of the case , who counted the steps taken by him during the course of investigating.
The Investigating Of ficer produced the legal opinion of legal section of police department as Ex. P/12-G.
6. The accused/respondent has taken the plea that on the preceding day the deceased had come to his Jewelry Shop and he was staring the gold ornaments inside the shop, whereafter he after inquiry the price of a Ring, left the shop on the pretext that the same is on higher rate. However , on the day of occurrence again the deceased 'entered in the shop, took out pistol and handed over a shopper to accused/respondent for keeping the gold ornaments, thus the accused/respondent made resistance and during exchange of firing both the deceased and the accused/respondent received bullet injuries on their persons and during course of investigation a licensed pistol was recovered from the accused/respondent, while an unlicensed pistol was recov ered from the possession of the deceased Mujeeb-ur-Rehman. The recovery of unlicensed pistol from the possession of the deceased depicts of his malice intention for committing dacoity . Perusal of legal opinion (Ex.P/12,G) fully supported the plea taken by the appellant as the said opinion was drawn after recording the statements of certain persons including the statement of employee of the shop namely Amjad Ali son of Mian Khan, who also confirmed the statement of accused-respondent that a day before the incident the accused/respondent had come to shop. The statement of one Muhammad Dawood son of Muhamm ad Ibrahim being adjacent shopkeeper was also recorded. According to whom, on the day of occurrence the dece ased was roaming outside the shop of accused/respondent for more than an hour and when he observed that the accused/respondent is alone, he entered into shop, whereafter he heard firing shots. The deceased came out from the shop and started running towards London Street thus he (shopkeeper) went inside the shop of the accused/respondent and found him in injured condition. According to legal opinion brought on record as Ex.P/12-G the incident was the result of dacoity .
7. We have scrutinized the entire evidence from all angles and observed that nothing has come on record except that the deceased was died in the attempt of dacoity . His presence in the jewelry shop along with an unlicensed pistol proves his mala fide intention. We have no hesitation to hold that the accuse d/respondent has used the right of his self-defence as envisaged under the provisions of sections 97 and 100, P.P.C. and nothing incriminating has come on record that the accused/respon dent in any manner has misused the right of self-defence. The entry of deceased in armed condition in Jewelry Shop of the accused/respondent was certainly not for any good reason but for illicit purposes then how the accused/respondent could be convicted for such charges when all the facts and circumstances clearly suggest that the deceased entered into the shop for dacoity purposes. Law gives right to the occupant of any property to expel the intruder or trespasser and if the intruder or trespasser has made his entry for illicit purpose, then the right of self-defence of property and person is further fortifie d even to the extent of causing death of intruder or trespasser if he does not retreat after having been told or alarmed 'to retreat. The right of self defence is recognized by law, but it is to be exercised if circumstances so warrant. Every citizen is entitled to resist attack and defend himself and his property when he or his property is faced with danger and when immediately State machinery is not readily available. Citizen is entitled to protect himself and his property in circumstances.
Legally the right of self-defence would arise where danger to person or property is imminent and would remain available as long as such danger exists. Reliance in this regard is placed on the case of Mazhar lqbal v. The State 2017 SCMR 2036 , wherein it was held as under: "Mst. Rashidan was a middle aged lady of 45 years and was also widow and when the complainant and PWs have admitted that the deceased was maintaining illicit relations with her, the entry of the deceased to the house of Khuda Bukhsh deceased/accused was certainly not for any good reason but for illicit purposes then how the petitioner could be convicted for such charges when all the facts and circumstances clearly tell that the deceased has trespassed into the house for no other but for that purpose. The provisions of law give right to the occupant of any property to expel the intruder/trespasser and if the trespasser has made a trespass for illicit matters then, the right of self-defence of property and person is further fortified even to the extent of causing death of trespasser if he does not retreat after having been told or alarmed to retreat."
8. The minute perusal of the prosecution case from all angles, it has been established that the deceased had entered in the shop of the accused/respondent with illicit intention to commit dacotiy and during exchange of firing he was murdered. The learned trial Court has rightly appreciated the evidence in its true sense and has recorded the acquittal F order in favour of accused-respondent. It is a settled principle of law that double presumption of innocence is attached to the order of acquittal and interference is unwarranted unless the acquittal is arbitrary , capricious, fanciful or against the record . In the instant case the order of acquittal passed by the trial Court is neither arbitrary , capricious, fanciful nor contrary to the evidence on record, warranting interference by this Court.
For the above reasons, the appeal being devoid of merits is dismissed.
Above are the reasons of our short order dated 18th July 2019.