In this Criminal Revision the petitioner has challenged the legality, correctness and propriety of a judgment dated 8th January, 1983 of Mr. Muhammad Naveed-uz-Zafar Malik Additional Sessions Judge, Lahore, dismissing the petitioner's appeal from a judgment dated 10th September, 1981 passed by Ch. Muhammad Irshad Virk, Magistrate Section 30, Lahore whereby the learned Magistrate convicted the petitioner under section 307, P. P. C. And sentenced him to four years' R. I.
2. Briefly the facts of the cast on which the petitioner stood his trial under section 307, P. P. C. Are that on 31st January, 1979 at about 3-00 p. m. The complainant namely Muhammad Afzal aged 30 years was present in his own workshop situated at Napier Road, Lahore. By that time the petitioner was sitting outside the workshop. The petitioner owed the complainant Rs. 140 which he had raised by way of a loan. The complainant asked for the return of the aforsaid amount on which the petitioner abused him and immediately thereafter fired at him with a gun which the petitioner was possessing at that time. The shot hit the abdomen of the complainant causing injuries thereby. The complainant was removed to the hospital. The occurrence was witnessed by Muhammad Latif, Bhola and Fazal Karim P. Ws.
3. Dr. Munawar Saeed Bokhari (C. W. 1) while posted as a Casualty Medical Officer on 31st January, 1979 at 3-45 p. m. Medically examined Muhammad Afzal P. W. And found the following injuries on his person :-
(1) Punctured wound 6.5 cm x 3.5 cm (D. N. P. Over middle of abdomen a little towards left side about 7 cm umbilicus. Parts of cartridge and pellet were recovered from the wound.
(2) Penetrated wound 5 cm x 1 cm in the left groin/oblique.
(3) Swelling 5 cm x 4 cm on upper part front of left side.
He advised for the X-rays of abdomen, left thigh A. P. And lateral views. According to him the injuries were caused with a fire-arm and were fresh. On a Court question he stated that the operation notes were not available in the record.
On the same day Dr. Sabir Ali (D. W. 4) examined the petitioner and found the following injuries on his person :-
(1) Abraded swelling on the bridge of the roots on the nose.
(2) Contused swelling 4 x 3 cm on the left cheek.
(3) Lacerated wound 1 cm x J cm skin deep outer lower half left forearm.
(4) Complained of pain in the back.
An X-ray for the nose was advised. Injury No. 1 was kept under observa--tion while the others were simple. All the injuries were caused with a blunt weapon and were few hours old. In his cross- examination he stated that no specific weapon could be attributed to injury No. 1 except that it was caused with any blunt weapon.
4. Muhammad Zafar P. W. 6 while posted as an A. S.-I. P. S. Gowalmandi on receiving information as to the occurrence, went to Mayo Hospital where he recorded the statement of Muhammad Afzal Exh. P. A. Which was read over to him who signed it as to its correctness. He sent it to the Police Station for registration of the case on the basis of which Muhammad Bashir Khan A. S.-I. P. W. 5 recorded the formal F. T. R. Exh. P.A./1.
Malik Zulfiqar Inspector/S. H. O. (P. W. 4) .Partly investigated the case. He recorded the statements of the P. Ws. He recovered gun P. 1 alongwith a bandoliar containing 14 cartridges vide memo. Exh..
P. B. He also prepared the site plan Exh. P. C. On 3rd February, 1979 he arrested the petitioner.
5. At the trial the prosecution supported its case in addition to the evidence of the complainant and formal witnesses by producing Bhola (p. W. 2) and Muhammad Latif (P. W. 3). Fazal Karim was not produced. Dr. Munawar Saeed Bokhari who medically examined the complainant appeared as D.
W. 1 whereas Dr. Muhammad Sabir who examined the petitioner appeared as D. W. 4.
6. The petitioner when examined under section 342, Cr. P. C. Stated that at the relevant time he was on duty as a guard at Allied Bank Ltd. Napier Road. The complainant alongwith others came there and tried to snatch away the gun during which process he also received injuries on the nose and face. The complainant and others wanted to commit robbery in the bank since at that time the cash box of the Bank contained rupees seven lacs. The complainant party was successful in snatching away the gun from him which was then secured by Abdul Majid Ghori Bank Officer from the complainant. It was during the scuffle that the gun went off and hit the complainant. He denied the owing of any money to the complainant. He pleaded innocence. In his defence he examined Abdul Wahid Qureshi Manager (D. W. 1), Fazal Ahmad Akhtar, Senior Deputy Controller of Branches (D. W. 2), Abdul Majid Ghori Manager Recovery (D. W. 3) and Dr. Muhammad Sabir D. W.
4. Alt the defence witnesses except Dr. Muhammad Sabir, supported the plea of the petitioner taken by him m his statement under section 342, Cr. P. C. Dr. Sabir Ali D. W. Deposed as to the injuries received by the petitioner on the day of occurrence.
7. The learned counsel for the petitioner has alternatively raised certain pleas, firstly, that when the complainant alongwith others tried to snatch away the gun from the petitioner, during the scuffle the gun automatically went off and hit the complainant. The complain--ant and others as said in the defence had come to rob the bank of its cash by which time the bank was keeping rupees seven lacs. Secondly, the complainant had actually during the scuffle captured the barrel of the gun in order to snatch it away when he was allegedly fired at by the petitioner which act on the part of the complainant and his party amounted to the commission of robbery as defined in section 390, P. P. C. And as it was a case of robbery the act of firing if it is attributed to the petitioner falls as protected under section 103, P. P. C. Being an act in the right of private defence of property extending to the voluntary causing of death or of any other harm to the wrongdoer since the offence committed by the wrongdoer namely Muhammad Afzal or wrong doers, his companions, was an offence of robbery.. Thirdly, if the above two pleas are not accepted then the petitioner who was an old- man of 60 yearn and received injuries at the hands of the complainant before he fired, had the requisite apprehension that grievous hurt might be caused to him, so his action of firing a shot was justified in the exercise of the right of self-defence. In order to support his contentions the learned counsel for the petitioner has referred to various items appearing in the evidence of the P.
Ws. Before doing that the learned counsel has submitted that the eye-witnesses are not independent, they being one way or the other dependent upon the complainant. In this regard, he has referred to the statement of Muhammad Latif P. W. 3 who stated that he lived in the workshop of Muhammad Afzal complainant for the last 22 years and it was correct that Bhola P. W. Also lived in the work of the complainant. It was also correct that he paid no rent to Muhammad Afzal complainant.
Bhola P. W. Stated :- "I had not stated before the police that the accused was ;sander. Outside the bank when the occurrence took place. (Confronted , with the same wherein it was so recorded). He bad captured barrel when he was actually fired at by the accused. I had not stated before the police that Muhammad Afzal had captured the barrel of the gun before it was fired by the accused.
(Confronted with Exh D. A. Wherein it was so recorded)."
Muhammad Latif P. W. 3 stated : - "The accussed had not placed his gun against the shoulder. I had seer Afzal (complainant) pressing on the barrel of the gun and at that time he was in a bending position with his hands on the barrel ......... When the occurrence had taken place the accused was on duty in the bank. The gun which the accused was handling belonged to the bank. The blood had fallen close to the stairs of the bank on the ground."
Lastly, in this behalf, the learned counsel has referred to the statement of Malik Zulfiqar (P. W. 4) the Investigating Officer who had stated : -- "It is correct that at the time of arrest the accused was found suffering simple injuries. It is correct that I got the accused medically examined. It is correct that the accused had an injury on his nose and on the left cheek and complained of pain in the back. It is correct that I got the accused examined from the police surgeon. It is correct that in the F. I. R. The injuries as to the accused were not mentioned. It is correct that at the time of occurrence the accused was on duty as a gunman at the bank."
It has been further argued by the learned counsel that the passing of money as a loan was a concoction. It is mentioned in the F. I. R. That Rs. 140 were given by the complainant to the petitioner to meet the medical expenses. The learned counsel has submitted that it is false because during the illness of the employees such expenses are borne by the bank itself. The prosecution has deliberately suppressed the injuries on the Person of the petitioner though the petitioner was got medically examined by the Investigating Officer himself and even at the trial stage the prosecution kept silence over it. The evidence as to the injuries was brought out only by the defence. The Investigating Officer had not collected the stains of blood or blood-stained earth from the place of occurrence so as to locate that the place of occurrence was by the shop of the complainant which was at a distance of some paces from the stairs of the bank. The above-said admission of the witness establishes alongwith the statement of the Investigating Officer that the occurrence took, place in the premises of the bank.
8. The learned counsel appearing for the State has in reply submitted that the case is not that corrected of self-defence nor it is a case of captur--ing the barrel of the gun or attempting to snatch it away in the process of robbery. It cannot be taken as a case of bank robbery. The occurrence took place quite at a distance from the bank i.e. At the workshop of the complainant.
The learned counsel has an substance supported the judg--ments of both the Courts below as legal and correct by maintaining that the petitioner has already been dealt with leniently otherwise he deserved a higher sentence than what he has been awarded.
9. In respect with the first contention of the learned counsel as to robbery both the Courts below have rightly observed that had the com--plainant and his companions gone to commit robbery in the bank they would have gone themselves armed which was not the case and in the circumstances of the case where the complainant had his scooter repairing workshop for the last 15j20 years at a short distance from the bank and as he was known to all the ,employees of the bank the conduct for com--mitting robbery could not be attributed to him. So in view of their finding in this behalf it cannot be regarded as a case of robbery and it is quite unfortunate on the part of the bank employees that in order to favour their own employee they carne out with such an unbelievable account inconsistent with the position they occupied being officers of the bank. Had it been a case of robbery they would have come armed and over--powered the employees at the point of the guns and gained an access to the cash. Therefore, the defence plea in this behalf of the petitioner is not acceptable.
As to the argument of the learned counsel that the complainant had actually captured the barrel of the gun and in the process of snatch--ing it away he was fired at by the petitioner so if the shot is attri--buted to the petitioner he was justified in effecting that in the exercise of the right of private defence of the property, cannot be sustained despite the reference of the learned counsel to various pieces in the evidence for the reason that when the entire evidence of the witnesses is perused the inference which can reasonably be drawn is that what the witnesses meant was that when the petitioner took to aim at the complainant he being apprehensive took the barrel of the gun in grip so as to divert the aim of the petitioner and if Muhammad Afzal complainant was seen pressing on the barrel of the gun at that time in a bending position with his hands on the barrel that simply showed that the petitioner had taken to aim and the complainant was pushing the gun down by holding it from the barrel so as to undo the aim and not as the learned counsel has argued that from this evidence it can be deduced that the complainant was by that time trying to snatch away the gun. It is also not probable that during the scuffle as has been pointed out by the learned counsel for the petitioner that the gun went off automatically since it was loaded because of the fact that the trigger portion of the gun according to the evidence was still in the hands of the petitioner and if at all the evidence is to be construed that way the complainant had only laid his hands on the barrel of the gun to avert the danger of being shot at.
10. As to the actual happening of the case it is not easy to sift out the true position when specifically both the parties have come out as to the case with their own version. Where such situation confronts then the only course open is to appeal to the meaningful facts and circumstances within the evidence itself. From the evidence as a whole it can be fixed with certainty that the occurrence took place within the premises (of the bank when the petitioner was on his duty. It appears that the complainant went from his workshop to the premises of the bank in order to have his money, back which he loaned to the petitioner one way or the other. He made his demand but the petitioner unfortunately could not rise up to that on which the complainant being disappointed gave him fist blows and one of the blows landed on the bridge of the roots of the nose. The nose happens to be such a sensitive part of the face that if a blow is given on it even with hand it gives a sensation as if it is going to break the bone of the nose, so it is probable that the petitioner might have, being elderly in age, suffered an apprehension of grievous hurt from the hurt either caused or likely to be further caused and that to ward off the blows he took to fire a shot. The injuries suffered by the petitioner cannot B be said to have been caused by the complainant after he received the shot but the injuries can be easily fixed as having been caused to the petitioner first by the complainant and in return a single shot by the petitioner. If in the same episode an accused person is injured it is to be presumed that the injuries are caused by the complainant unless there is anything to the contrary appearing within the evidence. The State v. Khalil-ur-Rehman (PLD 1960 Pesh. 50). The prosecution had deliberately suppressed the injuries of the petitioner being conscious of the fact that the petitioner might not claim the right of self-defence and defeat the case of the prosecution straightaway, so to this extent the plea of self-defence raised by the learned counsel for the petitioner is accepted. Since both the learned Courts below have failed to view the case also from this angle, their decisions cannot be sustained.
11. As a result of the above discussion this revision petition is accepted. The conviction and sentence of the petitioner is set aside and he is acquitted since his case is covered by section 100, P. P. C. He shall be released forthwith if not required to be detained in connection with any other case.