The appellant Mahmood Akhtar 33, was tried alongwith Subedar Sawar Khan, Hameed Akhtar and Faraz Hussain, co-accused (since acquitted) by the learned Additional Sessions Judge, Rawalpindi for causing the murders of Subedar Barkat Hussain and Natiq Hussain, their co-villagers on 3-3- 1978 at 8 a.m. In the area of village Dhang Dev Syedan, Police Station Gujar Khan.
The learned trial Judge vide his judgment dated 31-3-1980 convicted the appellant under section 304, Part I, P. P. G. On two counts and sentenced him to imprisonment for life and a fine of Rs. 10,000 or in default to six months' R. I. On each count. It has been directed that the fine if realized, would be paid to the legal heirs of the deceased. The co-accused, namely, Subedar Sawar Khan, Hameed Akhtar and Faraz Hussain have, however, been acquitted.
2. The appellant has challenged his conviction and sentence through the present appeal, viz. Criminal Appeal No. 509 of 1980 while the complainant Saddar Hussain has also filed a Criminal Revision Petition Le. Criminal Revision No. 856 of 1980 seeking enhancement of sentence of the appellant and impugning the acquittal of the appellant and other co-accused, of the offence punishable under section 302, P. P. C.
The appeal as also the Criminal Revision shall be dealt with and disposed of by this judgment.
3. The F. I. R.. Account of the prosecution version as transpires from the contents of the F. I. R.. (Exh. P.
N.) is that Saddar Hussain Shah complainant (P. W. 10) went towards the fields known as 'Bhanders' to ease himself at about 8 a.m. On 3-3-1978. He saw that Subedar Barkat Hussain deceased carrying a hatchet and Natiq Hussain empty-banded were present in the old graveyard near the house of Captain Muhammad Shah deceased. In the meantime, Mahmood Akhtar appellant armed with '32 bore revolver, Faraz Hussain armed with .32 bore revolver, Subedar Sawar Khan armed with gun, .12 bore single barrel, and Hameed Akhtar armed with `Chhurra' assaulted Subedar Barkat Hussain and Natiq Hussain deceased. Mahmood Akhtar fired with his revolver at Barkat Hussain hitting him on the right side of his neck. Barkat Hussain caused a hatchet blow on the head of Mahmood Akhtar with the wrong side of the hatchet. Thereafter Mahmood Akhtar recklessly fired at Barkat Hussain. Faraz Hussain fired with '32 bore revolver at Natiq Hussain hitting him in left flank.
On the alarm, Ziafat Hussain, Muhammad Razzaq and Nabi Abdul Khaliq Shah were attracted to the scene of occurrence and they also witnessed the occurrence. Sawar Khan and Hameed Akhtar had been raising 'Lalkara' throughout the occurrence that Barkat Hussain and Natiq Hussain be done to death and that if anybody came near, he would meet the same fate. Barkat Hussain and Natiq Hussain succumbed to their injuries on the spot.
As regards the motive, it is stated in the F. I. R. That about 28/29 years prior to this occurrence, two persons belonging to the party of Suhedar Sawar Khan were murdered and in that case relatives of Barkat Hussain deceased were challaned. Moreover, on 1-3-1978 an official of the Food Department came to the village in connection with the allotment of depot and on that occasion both the parties exchanged abuses. It is further alleged that Natiq Hussain deceased had illicit relations with Mst. Faiz, wife of Faraz Hussain.
4. On the same day at 10-30 a. m., Saddar Hussain Shah (P. W. 10) lodged the report (Exh. P. N.) at Police Station Gujar Khan at a distance of seven miles. The report was recorded by Sher Bakhsh (P.
W. 12) the then Sub-Inspector/S. H. O. Police Station Gujar Khan.
5. After recording the report, Sher Bakhsh went to the spot. He prepared the inquest reports and injury statements in respect of the dead bodies of Barkat Hussain and Natiq Hussain and despatched the dead bodies for post-mortem examination to the mortuary under the escort of two constables. He arrested Mahmood Akhtar appellant on the same day and took into possession his licence of the revolver (P. 8) vide memo. Exh. P. J. Ziafat Hussain P. N. Produced revolver .32 bore (licensed) belonging to Mahmood Akhtar which contained six empty bullets. The revolver and empties were secured vide memo. Exh. P. H. Mahmood Akhtar appellant at the time of his apprehension had injuries on his person. His injury statement was also prepared. Subedar Sawar Khan (acquitted co-accused) was also arrested on the same day and he produced his .12 bore licensed gun which was secured vide memo. Exh. P. M. Hameed Akhtar and Master Faraz Hussain were arrested on 10-3-1978. Sher Bakhsh Sub Inspector got prepared the site plans Exh. P E. And P.
E./1 by village Patwari. He recorded the statements of the witnesses and after completing the investigation, he submitted the challan.
6. P. W. 1 Dr. Muhammad Sami Tariq, the then Medical Officer Incharge Tehsil Headquarters Hospital, Gujar Khan, conducted the post-mortem examination on the dead body of Natiq Hussain deceased on 4-5-1978 at 9 a.m. And noticed one circular non-powder stained lacerated wound on the posterior side of the left chest ; a raised swelling in the fifth space in nipple line 2-------- below the right nipple and an abrasion on the front interior part of the chin. A bullet was removed from underneath injury No. 2. In the opinion of this witness, the death of Natiq Hussain had occurred due to haemorrhage and shock on account of injury No. 1 which was sufficient to cause death in the ordinary course of nature. Exh. P. A. Is the correct carbon copy of the post-mortem examination report in regard to Natiq Hussain deceased while Exh. P. A./1 is the pictorial presentation of the injuries.
On the same day at 11-45 a. m., be conducted the post-mortem examination on the dead body of Barkat Hussain and noticed five abrasions and three wounds on the dead body of the deceased.
Two bullets were also taken out from the body of the deceased. In .The opinion of the Medical Officer; the death of Barkat Hussain had occurred as a result of haemorrhage and shock due to injuries Nos, 4, 5 and 6 which were caused by fire-arm and were sufficient to cause death in the ordinary course of nature. Exhibit P. B. Is the correct carbon copy of the post-mortem examination report while Exh. P. B./1 is the sketch indicating the location of the injuries.
On 3-3-1978 at 6-10 p. m., Mahmood Akhtar appellant was also medically examined by this Medical Officer and in his case a lacerated wound in mid parieto-occipital region of the skull; a lacerated wound in line with right eye-brew in its lateral part and a lacerated wound on right molar area were noticed. He was admitted into the hospital. Injuries Nos. 1 and 2 were kept under observation while injury No. 3 was declared simple. After X-ray examination, injury No. 1 was declared grievous.
Exhibit P. C. Is the correct carbon copy of the medico-legal report in respect of Mahmood Akhtar appellant. The doctor positively opined that injury No. 1 in case of Mahmood Akhtar appellant was neither self-suffered nor self-inflicted.
7. P. W. 9-Ziafat Hussain, P. W. 10 Saddar Hussain Shah and P. W. 11 Muhammad Razzaq testified at the trial as eye-witnesses to furnish ocular account of the prosecution version. Nabi Abdul Khaliq Shah who was also cited as eye-witness in the F. I. R. Has, however, not been produced as unnecessary. Ziafat Hussain, Saddar Hussain and Muhammad Razzaq who were all chance witnesses tried to support the prosecution version as contained in the F. I. R. They have, however, not been believed by the learned trial Judge. In regard to these witnesses, it has been rightly observed that they had made many material improvements and they were also related to the deceased. They have also contradicted each other in regard to certain material details. According to their testimonies, Natiq Hussain died as a result of fire shot fired at him by Faraz Hussain but according to the report of the Forensic Science Laboratory Expert, the bullet recovered from the dead body of Natiq Hussain was fired from the revolver which was recoveredfrom Mahmood Akhtar appellant and which was his licensed revolver. These eye-witnesses have thus been contradicted by the report of the Forensic Science Laboratory Expert which is certainly an independent piece of evidence. No exception can, therefore, be taken to the findings recorded by the learned trial Judge to the effect that the eye-witnesses produced at the trial were false witnesses and they have, therefore, been rightly disbelieved.
8. After disbelieving the eye-witnesses we are left only with the defence version. The co-accused who have since been acquitted, namely, Sawar Khan, Hameed Akhtar and Faraz Hussain pleaded complete denial and their non-presence at the time of occurrence. Mahmood Akhtar appellant, however, in his statement recorded under section 342, Cr. P. C. Disclosed that "I came out of my house to go to my shop at Qazian. Both the deceased waylaid me and opened the attack raising 'Lalkara'. The first hatchet blow given by Barkat deceased hit me on my eye-brew and the second on my head fracturing the skull. The world became dark for me and vision hazy. In that condition, in order to save myself, I fired shot with my licensed revolver but I cannot say to whom it hit and on what part of the body. My thinking power had vanished with the fracture of my skull. The moment police arrived at the spot.I produced my revolver and made the statement to the same effect.
None of the P. Ws. Or the co-accused was present there. The P. Ws. Are inimical to me since the previous case under section 307, P. P. C. And are of the same party".
9. The learned trial Judge has behaved the statement of Mahmood Akhtar appellant to this extent that in fact he was waylaid by the two deceased and they had opened the attack first, but he further held that the appellant exceeded in exercise of his right of private defence inasmuch as he fired five shots at Barkat Hussain deceased and one shot at the back of Natiq Hussain deceased who was empty-handed at the time of occurrence. Consequently, the learned trial Judge convicted the appellant under section 304, Part I, P. P. C. And acquitted the co-accused.
10. The only point for determination in the circumstances of this case is as to whether the appellant exceeded, the exercise of right of private defence as has been held by the learned trial Judge or he had the complete right of private defence to the extent of causing deaths of both his assailants, namely, Barkat Hussain and Natiq Hussain.
11. As already observed, the eye-witnesses in this case have been rightly disbelieved by the learned trial Judge. We are, therefore, left with the statement of Mahmood Akhtar appellant which is to be believed in toto or to be disbelieved. His statement finds corroboration from two independent circumstances. He himself has as many as three injuries on the vital parts of his body, viz. Skull, eye-brew -and molar region. These injuries were admittedly caused to him by Barkat Hussain deceased with the wrong side of his hatchet. The injury on the skull has been found to be grievous as the skull bone has been fractured. Saddar Hussain who lodged the F. I. R. Disclosed that Barkat Hussain armed with 'Kulhari' and Natiq Hussain were already present in the old graveyard when this witness went to that side to answer the call of nature. It, therefore, appears that as a matter of fact, Barkat Hussain and Natiq Hussain deceased laid an ambush to do Mahmood Akhtar appellant to death as a day earlier on the occasion of the visit of Food Inspector, both the deceased on the one hand and the dpp4lant on the other exchanged abuses. The other circumstance supporting the defence version is that the two bullets taken out of the body of Barkat Hussain deceased and one bullet taken out of the body of Natiq Hussain have been opined by the ballistic expert to have been fired from the licensed revolver of Mahmood Akhtar appellant. This fact sufficiently lends support to Mahmood Akhtar's contention that in fact he fired at both the deceased.
12. In the above circumstances, it is very difficult to find as to at what stage the appellant should have stopped firing at Barkat Hussain and Natiq Hussain and that after what stage he has exceeded the exercise of right of private de: fence. It is a cardinal principle of the safe administration of criminal justice that when right of private defence of person is available in law, the Courts have always viewed with indulgence the acts of a person who in the beat of the moment under d strong feeling of self-preservation working on hint pursues his defence a little further than is absolutely necessary. It has, therefore, been generally accepted that the right of private defence cannot be weighed in golden scales. In Muhammad Ildrees v. The State (PLD 1965 Lab. 553) it was held that in the absence of any direct or indirect evidence from the prosecution side to prove the circumstances of the murder case, the statement of the accused himself had to be accepted unless it was contradicted by evidence circumstantial or otherwise. It was further held tit this case that in a situation when the accused is obliged to exercise his right of private defence, it is too much, to expect from him in a fit of agitation and provocation to weigh in golden scales the amount of harm which he should cause to his assailant, and even if there be some excess, more often than not, it has been condoned because of the difficulty in assessing the extent of the excess committed, in measured sales. It was observed in this case that it is very difficult to fix stage or point of time at which the accused ought to have ceased causing further harm to his assailant. In Jamal Din v. The State (1971 SCMR 800) it seas ruled ---In the situation in which he found hiss brother placed, surrounded and attacked by the opposite-party, the appellant could not be expected to measure his right of defending his brother in golden scales or to modulate his defence step by step. Whether he fired one or two shots, is of no consequence in determining that right if the shots were fired by him under a serious apprehension that his brother would come to serious harm if he did not act to save his life. In such circumstances, the appellant was entitled to complete tight of self-defence.---
13. It has been argued on behalf of the State and the complainant that Barkat Hussain deceased only was armed with hatchet whsle Natiq Hussain was empty-handed. The appellant was armed with a revolver. He fired as many as five effective shots at Barkat Hussain and one effective shot at Natiq Hussain. He could sufficiently defend himself by firing one or two shots at Barkat Hussain and he had hardly any right or excuse, to fire at Natiq Hussain who was empty-handed.
14. In case of Barkat Hussain, there are five abrasions and three wounds. It has been conceded by the learned counsel for the State that first 2/3 shots fired by the appellant at Barkat Hussain were not very much effective and resulted in only minor abrasions. In such circumstances, he could not stop by firing only 1/2 shots at Barkat Hussain which did not prove very much affective and the said Barkat Hussain was capable of causing him three injuries on the vital parts of his body resulting in the fracture of his skull by the wrong side of the hatchet. So far as Natiq Hussain is concerned, it is the prosecution case itself that he was empty-handed. The appellant has not conceded that he was empty-handed. His contention is that both of them waylaid him and -attacked him. If he had not fired at Natiq Hussain there was every possibility that he would have facilitated further harm to the appellant through Barkat Hussain even if he himself was empty-handed. In the situation in which the appellant was placed and after he was grievously injured at the head, it was not possible for him to assess at to at which stage he should stop exercising his right of private defence.
In Ahmad Nawaz v. The State (1970 SCMR 597) it was observed :-- "When one party makes a deliberate attack on the other in a concerted action and the other is defending itself, it would be difficult then for the latter to choose between their assailants for the degree of harm that may be caused to each one of them separately, to ward off the individual harm that each one of the other party was intending or was capable of causing. If shots were fired by the accused party, whether by Ahmad Nawaz or Bakhsha, they were all fired in the thick of the assault in order to save themselves from the onslaught of the other side which had surprised them by a sudden confrontation. The argument advanced by the Courts below that the injury to the deceased which was on the back of the shoulder, affirmatively proved that the deceased at the time was on the retreat, is unsatisfactory and inconclusive. If the deceased was at the time beating Bakhsha with his stick as held by the Courts below, it does not matter what position Ahmad Nawaz thought best to be taken to conveniently fire at the assailants. The firing of the shot at the deceased, even if it was done from behind him, would not-impair the plea of the right of self- defence."
In the instant case also, it has been argued by the prosecution that injury to Natiq Hussain was caused at his back which was not justified. In the circumstances, already described it is immaterial if injury was caused at the back or the front. The appellant could justifiably cause injuries to both the deceased at their front or back while exercising his right of private defence.
15. The upshot of the above discussion is that in the circumstances in which the appellant was placed, he was fully justified in exercise of his right of private defence to cause the deaths of both the deceased and in t situation in which he was placed, it was not possible for him to assess the stage at which he should have stopped causing harm to his assailants.
16. In this view of the matter, this appeal is allowed, conviction and sentence of the appellant are set aside and he is acquitted. He is already on bail and shall stand discharged from his bail bonds.
The Criminal Revision fails and is dismissed.