' ABDUR REHMAN KHAN KAIF, J.-For causing the death of Ahmed Fiaz son of Chan Muhammad, for persons, namely, Haji Alif Gul (65) son of Wahab Gul Shamus Gul (45), Muhammad Gui (40) sons of Haleem Gul and Sherin Gut (24) son of Shamus Gul, residents of Sector No. 1 Khalabat Township, Police Station, Haripur, were put on trial under section 302/34, P. P. C. Before the learned Additional Sessions Judge, Abbottabad at Haripur who acquitted Haji Alif Gul accused on the ground that the prosecution had attributed no active role to him of firing but their version was that at his bidding the accused (now appellants) fired at the deceased but that version, too, was not free of doubt but finding the occurrence as a result of grave and sudden provocation on convicting Shamus Gul, Muhammad Gui and Sherin Gul under section 302 read with section 34 of the Pakistan Penal Code sentenced each of them to imprisonment for life. A sum of Rs, 5,000, was also imposed upon each of the accused as fine or in default thereof to suffer further R. I. For two years each. Out of the fine, if realised, 2/3rd share was to be paid to the heirs of the deceased as compensation.
2. .The convict-appellants have challenged the impugned order in this Appeal No, 88/81. The private complainant put in a Revision No, 19/81 praying therein for the enhancement of the sentence imposed upon the accused-appellants.
' We propose to dispose of both the appeal and the rivision by this single judgment.
3. The prosecution case as disclosed in the F. I. R. (Exh. P. A.) recorded at the instance of Chan Muhammad, father of the deceased, in brief is that at 9-30 a.m. He had sent his son Ahmed Fiaz (deceased) to the oven situate inside the market of Sher Ahmed to bring bread from there but after a short-while he received an information through a Suzuki driver that his son (deceased) having a quarrel near Chandni Chauk has been injured. On receipt of the information be rushed to the spot where he found his son Ahmed Fiaz in a wounded condition. As mentioned in the F. I. R. The deceased at that time was in his senses and on inquiry, he informed the complainant that at the bidding of Haji Alif Gul accused, his co-accused, namely, Shamus Gui, Muhammad Gul and Sherin Gui fired at him with their pistols causing him injuries. In the First Information Report the presence of Muhammad Nawaz (P. W. 10) son of Taj Mohammad, Mohammad Saeed Khan son of Muhammad Aslam Khan, Muhammad Iqbal Khan son of Mir Afzal Khan and Muhammad Aslam Khan son of Khawaja Muhammad was shown and it was stated that they had witnessed the occurrence.
' Abdul Majid Khan A. S. I. (P. W. 7) recorded the F. I. R. Which was read over to the complainant who after admitting the contents thereof to be correct, signed the same. In the meantime the dead body of Fiaz Ahmed was also brought to the police station where the injury sheet Exh. P. G and inquest report Exh. P. H. Were prepared by the said A. S. I. And despatched the dead body to the mortuary for post-mortem examination.
4. The investigation of this case was conducted by Muhammad Aslam Khan S. I. (P. W. 11) who prepared the site-plan, Exh. P. B. And recovered blood-stained earth from the spot in the presence of the witnesses which was sealed into a parcel vide memo. Exh. P. D. At that point he also detected some marks of struggle. The S. I. Also recovered chaddar of the deceased from the spot which was taken into possession vide memo. Exh. P. E. In the presence of the witnesses. He arrested the accused on the same day and took into possession a licensed revolver Exh. P. 3, belonging to Muhammad Gul accused-appellant. On completion of the investigation in the manner described above, the challan was submitted against the accused.
5. The autopsy on the corpse of Ahmed Fiaz was conducted by Dr. Jumma Khan (P. W. 1) on 30-5- 1980 at 2 p.m. Who found the following injuries on external examination :-
(1) Entrance 1/4' x 1/4" with scorched margins placed on the left side of the neck, 2r (1/2) above the medial 1/3rd of the left clavicle. (One bullet was recovered from this site).
(2) Entrance 1/4' x 1/4' with scorched margins placed on the front of left side of the chest, 11' below the left nipple.
(3) Exit 1/4" x 1/4" placed on the right side of the back of the chest, 4" below the inf ; angle of the right shoulder blade.
(4) Entrance 1/4' x 1/4" with scorched margins placed on the front of the left shoulder joint.
5. Exit 1/2' x 1/4" placed on the medial site of the same joint.
' The internal examination of the deceased showed that his pleurae, both lungs, pericardium and heart had been injured. According to the opinion of the doctor, the injuries had been caused by fire-arm and the death had occurred as a result of excessive haemorrhage and damage to the vital organs. Time between injuries and death, in his opinion, was five minutes and between death and post-mortem examination 5/6 hours.
' It transpires from the record that in the same transaction Sharif Gul son of Haji Shamus Gul of the accused party had received dagger injuries and in that connection a cross-case under section 307/34, P. P. C. Had been registered on that very day. The complainant in that case, namely, Sharif Gul was examined by Lady Dr. Miss Mumtaz Khattak (P. W. 8) on 30-5-1980 at 11-18 a.m. And found the following injuries on his person :-
(1) 21" x 1" stab wound on the left side of abdomen with corresponding cut on the shirt.
(2) 3" x 21' stab wound on the back of left thigh with profuse bleeding with corresponding cut on the shal war.
' In her opinion, injury No. 1, was grievous whereas injury No, 2- was simple in nature and both were caused by sharp-edged weapon within a duration of two hours.
6. The prosecution examined eleven witnesses in this case. Of them, Chan Muhammad (P. \V.) is the complainant who lodged the F. I. R. Whilst Muhammad Nawaz (P. W.) is the solitary eye-witness of the occurrence.
' In his statement Chan Muhammad (P. W. 9) has stated that while sitting in his hotel, he received an information through a Suzuki driver that the accused had injured his son in Chandani Chauk. He maintained that it was about 9.15 a.m. And on receiving that information he rushed to the spot and found his son injured there who told him that on the bidding of Haji Ali Gul (acquitted accused), Shamus Gul, Muhammad Gul and Sherin Gul had injured him by firing at him with their pistols.
Mohammad Nawaz (P. W. 10) when examined narrated the whole story leading to the incident. It is evident from his statement that he visited the shop of Shamus Gul accused situate in Chandani Chauk for making some payment and for purchasing some commodities. Since Muhammad Nawaz used to purchase various articles from the shop on deferred payment, he was informed that sum of Rs, 137, was due from him. The claim of the shopkeeper was disputed by Mohammad Nawaz with the result that some harsh words were exchanged and according to him he was given fists and kicks blows by Shamus Gul and the other two accused, namely, Muhammad Gul and Sherin Gul who were present in the shop at that time. He received injuries on his face due to fist blows and when the trouble was over he went to his house and from there he started towards Police Post Khalabat Township for making a report but when he reached the 'mane of Sher Ahmed Khan close to the scene of occurrence, he saw the deceased and the accused-appellants along with the acquitted accused at the spot altercating. The witness stated that at that time accused Mohammad Gul, Shamus Gul. And Sherin Gul were armed with pistols whereas Haji Alif Gul was empty-handed and on the bidding of the latter, the former three fired at the deceased as a result of which the deceased was hit and fell to the ground. The witness has mentioned the presence of many persons at the spot and had stated that in the meanwhile Chan Mohammad (P. W.) reached the spot and on inquiry from his son, the deceased (then injured but alive) charged the accused- appellants and the acquitted accused for the crime in question. He maintained that the deceased was in control of his senses when he narrated the incident to his father Chan Muhammad (P. W.) but soon after expired at the spot and Chan Muhammad (P. W.) left for the Police Station to lodge the report. On the conclusion of the prosecution evidence when Sherin Gul accused was examined under section 342 of the Code of Criminal Procedure he gave a detailed statement wherein he set up the plea of right of self-defence- which is reproduced below for the sake of convenience :--- "This has not happened as suggested. Muhammad Nawaz (P. W.) used to obtain groceries on loan from or shop. On the day of occurrence Muhammad Nawaz appeared in or shop at about 8-30 a.m. And demanded some further groceries on credit to which we asked him to clear his earlier debt of Rs,
137. An argument developed and Muhammad Nawaz dubbed us as cheats. This infuriated my brother Sharif Gul who gave fists blows to Muhammad Nawaz on his eyes. He went back and re-appeared with a pistol. Sher Ahmed Khan, Ahmed Saeed, Muhammad Iqbal and others prevented him from doing mischief. My brother Sharif Gul went to the oven for warning up a tin containing some vegetable oil, to the hotel of Mubarak Shah and his son Sabir Shah. There Muhammad Nawaz, Chan Muhammad and Ahmed Fiaz appeared. Ahmed. Fiaz had a dagger, Muhammad Nawaz had a pistol and Chan Muhammad with a stick in order to take revenge of the fists blows. Ahmed Fiaz stabbed Sharif Gul thrice while Muhammad Nawaz fired at him but missed him. Sharif Gul raised an alarm and I was attracted to the spot. I fired with my pistol twice or thrice to save my brother Sharif Gul to whom another stab wound was being given in spite of my asking the accused of the cross-case not to further harm him. The police collusion with the complainant party have deliberately excluded Sharif Gul from the list of the accused. Though they have charged rest of the entire male adult members of or family. My brother Sharif Gul was admitted in the hospital for the injuries and a case is registered and pending for his injuries as a counter-case in this Court. The complainant party in order to screen their aggression have invented this story. We had no previous enmity and there was no occasion for us to start the fight. The statement of the owner of the hotel and also other persons mentioned by me has been recorded by the police and also recorded under section 164, Cr. P. C. I am innocent and falsely charged."
' The remaining accused when examined denied the allegations and claimed innocence by stating that they had been falsely charged but they have endorsed the version given by Sherin Gul accused in their statements.
7. In his defence Sherin Gul appellant produced his brother Sharif Gul complainant in the cross- case. Sharif Gul (D. W. 1) while narrating the same story as stated by Mohammad Nawaz deposed that after the morning incident Muhammad Nawaz (P. W.) had returned to their shop witl; a pistol but Sher Ahmed, Ahmed Saeed, Muhammad lqbal and others intervened and stopped him from causing any harm. According to him he was later on sent by his father with a tin containing vegetable ghee to the hotel of Mubarak Shah for the purpose of heating up the vegetable oil when Chan Muhammad, Mohammad Nawaz and Ahmed Fiaz (deceased) came there. According to him, Ahmed Fiaz had a dagger with him whereas Mohammad Nawaz (P. W.) was armed with a pistol and Chan Mohammad had a stick. He deposed that without having any talk, Ahmed Fiaz (deceased) stabbed him thrice and Muhammad Nawaz (P. W.) fired at him but the fire went a miss and at his alarm his brother came there who asked the decased not to stab further. He maintained that Sherin Gul fired twice or thrice with his pistol and in that process the deceased was hit. He concluded that as a result of the injuries received, he remained confined to the hospital for 32. Days and thereafter remained under treatment for another for weeks. According to him Shamus Gul, Muhammad Gul, and Haji Alif Gul accused were not present at the spot at the time of occurrence.
8. In the instant case at about 8 a.m. On 30-5-1980, there had been a quarrel between Mohammad Nawaz (P. W.) and the accused party when a demand for payment of Rs, 137 outstanding against Muhammad Nawaz (P. W.) was made. In connection with the altercation that ensued over the said issue, Mohammad Nawaz was given fists and kicks blows mainly by Sharif Gul son of Shamus Gul followed by the other accused with the result that he left the shop in rage having thus been insulted. There is no dispute from both the sides about this version of the first incident. The second incident occurred at about 9-30 a.m. As a result of which the present case and the cross-case under section 307/34 of the Pakistan Penal Code were regisieted The version of the prosecution in this connection is that after the early morning altercation between the two parties, Mohammad Nawaz went to his house and from there he started for the Police Post Khalabat Township to lodge the report but when he reached the market of Sher Ahmed Khan, he saw the for accused altercating with the deceased and that as a result of the altercation on the bidding of the acquitted accused Haji Alif Gul, the appeal ants opened fire with their respective pistols at the deceased with which he received injuries and ultimately expired.
' On the other hand, the defence version is that in order to take revenge for the insult the complainant party picked up a fight and came with an aggressive design and while Sharif Gul went to the nearby oven of Mubarak Shah for heating up ghee in a tin, Chan Mohammad, Mohammad Nawaz (P. Ws.) and the deceased came there duly armed with stick, pistol and dagger respectively and without any talk the deceased stabbed Sharif Gul (D. W. 1) with his dagger thrice as a result of which he received injuries and the shots fired by Muhammad Nawaz went a miss. On the alarm raised by Sharif Gul (D. W. 1), his brother Sherin Gul was attracted to the spot who asked the deceased not to harm further his brother Sharif Gul. Sherin Gul fired twice or thrice with his pistol in order to save his brother and in the process the deceased was hit.
9. The whole prosecution edifice has been built upon the alleged oral dying declaration of the deceased before his father as mentioned in the F. I. R. And the statement of Mohammad Nawaz (P.
W.). As mentioned in the medical evidence both lungs and heart of the deceased were found injured. The time between injuries and death has been shown as five minutes. Chan Mohammad, according to his own statement, was in his hotel at the time of occurrence away from the spot. He was informed by a driver of the incident and he rushed to the spot. Time consumed in conveying the information and his (Chan Muhammad) arrival at the spot should normally take more time than mentioned above. In the F. I. R. Three other eye-witnesses were mentioned besides Muhammad Nawaz (P. W.) but none has come forward to support this version. Similarly there is no denying the fact that the incident had taken place in a crowded place but not a single witness was produced to state that the deceased was alive at the time of the arrival of his father and was capable of charging all the accused in the given circumstances.
10.. Muhammad Nawaz is the only witness supporting the version of Chan Muhammad (P. W.). But his testimony in the absence of any independent corroboration cannot be accepted for the straight and simple reason that besides being closely related to the deceased had a direct animosity with the accused, he had therefore a clear motive to rope in all the persons charged in the F. I. R. He is the person who was insulted and it was that episode which led to the present incident and above all it is he on whose account the whole trouble developed culminating into the murder of the deceased. In his statement, he deposed that although there was a short cut from his house to the police post but he adopted a longer route. Similarly he had stated that he did not mention in his previous statement that the deceased was in his full senses at the time of making of the alleged oral dying declaration. In the circumstances no reliance clan be placed on the statement of this witness in this connection. Furthermore, no question was put to any of the accused when they were examined under section 342 of the Code of Criminal Procedure about the alleged oral dying declaration of the deceased. We would, therefore, attach no value to the alleged oral dying declaration in the circumstances.
11. Keeping in view the background of the present case, Muhammad Nawaz being the originator of the whole incident and being the real aggrieved person possessing a deep motive for involving as many persons as possible from the opposite side, his statement therefore, concerning the rest of the events shall also not be considered as worthy of credence. Even otherwise in the matter of administration of criminal justice taking in view the present state of affairs of or society the assessm ent of evidence, whether it is the statement of a witness or the statement of a person who is dead is essentially an exercise of human judgment to evaluate the evidence so as to find out what is true and what is false therein.
' In accordance with correct principles governing the safe dispensation of criminal justice total reliance on the testimony of such a witness without any independent corroboration in a murder case will not be justified particularly when he has tried to suppress some material facts and his statement suffers from serious discrepancies and contradictions. Reliance in this connection can be placed on Sikandar v. The State , Mahmood Khan v. Ahmed and 2 others and Nasir Ahmed and another v. The State .
12. Learned counsel while referring to the statement of Sherin Gul appellant and other circumstances of the case advanced the plea of right of private defence which plea was not accepted by the trial Court for the reasons that after stabbing Sharif Gul (D. W. 1) the deceased had retreated when he was fired at and killed. The reasons advanced by the trial Court were vehemently decried by the learned counsel for the appellants on the ground that the mentioned conclusion by the trial Court had no basis as according to him no material, whatsoever, was available on the record to justify such conclusion.
' As may be evident from the statement of Sherin Gul appellant a clear plea of right of private defence has been taken by him. Sharif Gul, his brother who appeared as a defence witness has narrated the story as stated above stating that when he was being consistently stabbed by the deceased, he raised an alarm which attracted his brother Sherin Gul. This witness has clearly admitted that his brother Sherin Gul fired at the deceased twice or thrice with his pistol in order to save his life and in that process the deceased was hit. Muhammad Nawaz has also frankly1 2 3 admitted in his statement that Sharif Gul (D. W.) was stabbed by the deceased. It is an admitted fact that the present occurrence was the direct result of the morning incident which took place. In the shop of the accused and during which Muhammad Nawaz was beaten by the accused party who left the shop in humiliation. It is also clear from the record that the deceased who was a close relative of Mohammad Nawaz had first attacked Sharif Gul brother of Sherin Gul appellant and had dealt blows with a dagger causing him injuries of the nature shown in the medical report referred to above.
13. In the circumstances this is a case in which the version of both the sides is, required to be put in juxtaposition in the context of the surrounding circumstances for arriving at a correct conclusion about the veracity of each side.
' Section 105 of the Evidence Act has been enacted obviously to relieve the prosecution from the necessity of proving the absence of facts which might bring the case within the general or special exceptions. But the burden cast on the accused under the section cannot be so heavy as the burden cast on the prosecution. The plea of the accused may not be established and yet it may create a. Reasonable doubt with regard to his guilt. It cannot be said that because under section 105 of the Evidence Act the burden of proof was on the accused and he has not discharged that burden but has only raised reasonable doubt, the Court has to convict him in spite of the existence of such a doubt. The decision has to be taken on the entire evidence and not on' the special pleadings after an over-all examination of the entire case, i,e, the case as made out by the prosecution and the defence putting both in juxtaposition in the context of the entire evidence adduced, if any, doubt arises in regard to the veracity of the prosecution case or if defence version seems more reasonably possible, although not decisively established the result and the situation has to be considered in favour of the accused. The above view is based on the well-known authority reported as Safdar .Ali v. The Crown . In the mentioned case their Lordships further observed that in a criminal case it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If after an examination of the whole evidence, the Court is of the opinion, that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view re-acts on the whole prosecution case. In these circumstances the accused is entitled to the benefit of doubt not as a matter of grace but as of right, because the prosecution has not proved its case beyond reasonable doubt, The same view was followed in PLD 1962 SC 489 and many other cases.
14. We regret to say that the trial Court in the instant case did not scrutinise the evidence in its true perspective which entitled the appellant to the benefit which he claims. The main feature of the instant case is that the aggression without doubt came from the complainant side as they were the aggrieved party and had an obvious motive for attack to take revenge of the insult caused. The place where Sharif Gul was attacked and where his bloodstained chappal and a tin containing ghee were recovered clearly indicates that he had gone unarmed to the hotel of Mubarak Shah for the purpose stated in a routine and casual way without any expectation of any attack from any one. The dimension of the injuries on the body of the deceased and their seats further show that only one type of weapon was used by one person which gave a clear support to the plea raised by the accused. It has been proved and even admitted by Muhammad Nawaz that the deceased had first attacked Sharif Gul and started giving him dagger blows with the result that on raising alarm Sherin Gul accused had attracted to the spot and saw his brother's life in immediate danger. Since Sharif Gul's life was in danger the appellant Sherin Gul had full right to save his brother from further harm. In the situation in which he found his brother placed expecting a similar treatment for himself the appellant could not be expected to have waited and avoided defending his brother. In the circumstances the version put forward by the defence appears more appealing. Their version that the motive lay with the other side to pick up this fight and that they were the aggressor and4 made the first assault on Sharif Gul (D. W.) deserved more careful consideration then has been given to it by the learned Court below. When one party makes a deliberate attack on the other party, in such circumstances, and the assailant with a deadly weapon has not fully and satisfactorily departed from the spot it would be extremely difficult for the opposite-party to conclude that he has stopped harming further and may not continue his assault any further. Every case has to be considered on its own facts and before giving an accused person benefit of right of private defence a Court of law must be satisfied that his case is clearly covered by general exceptions. After an over-all examination of the case and putting the case made by the prosecution and the defence in juxtaposition in the light of the principles laid down in case Safder Ali v. The Crown (1) the view put forward by the defence seems more reasonable. As discussed above in the light of the prosecution evidence and the conclusion drawn the participation of Shamus Gul and Muhammad Gul appellants in this crime appears to be highly doubtful. This position was also' frankly conceded by the learned Assistant Advocate-General appearing for the State. The guilt of the above two appellants has not, therefore, been established beyond any reasonable doubt and they, as such, are entitled to acquittal.
15. Coming now to the case of Sherin Gul appellant, since or finding is that it was the complainant party who is- the aggressor, therefore, the accused has a right of self-defence. The manner in which the complainant party had acted and the weapon which the deceased had used could reasonably cause the apprehension that death could otherwise be the consequence of the assault. Learned counsel for the State while arguing the case contended that even if it is conceded that Sherin Gul appellant had the right of self-defence and that he had acted in the exercise of such right by firing at the deceased, he had obviously exceeded that right. He submitted that he might have acted in good faith in exercise of the right of private defence of the person of his brother and may be justified in firing the first shot which hit the deceased but the remaining two shots fired cannot possibly be taken to have fired in exercise of the right of private defence of his brother. It is true that the right of private defence in no case extends to the inflicting of more harm than is necessary to inflict for the purpose of defence but we cannot ignore that in the heat of the moment while defending his brother and himself against an attack, it was not possible for him in that situation to have decided on the spur of the moment whether he should fire one or more shots to defend himself and his brother effectively. In an identical case on the basis of a similar view their Lordships of the Peshawar High Court, in a case Muhammad Ishaq and another v. The State did not agree with the trial Judge that the appellant in that case exceeded that right of self-defence when he fired the second shot. In another case Jamal Din v. The State their Lordships observed :- "In the situation in which he found his 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."
' Similar view was taken in a case Munawar Hussain v. The State wherein it was observed :- "In the heat and excitement of the moment and in that frame of mind to expect from the accused that he should have judged the nature of each and every blow given in self-defence and then should have modulated the right of private defence accordingly, is to expect the impossible from a human being placed in such an awkward position."
16. It is well-settled that a man acting under apprehension of death or grievous hurt cannot be expected to Judge too nicely the situation and modulate his defence as observed above step by step. When a right to private defence is set up the question to be determined is not whether there was an actually continuing danger, but whether there was reasonable apprehension of danger. It is not necessary that the person exercising the right could wait until he himself is attacked. If death is5 6 7 caused in the exercise of' the right of private defence in such circumstances, it is no offence not even culpable homicide not amounting to murder and no question of the application of exception 2 to section 300 of the Pakistan Penal Code arises. The question of applicability of that exception arises only if the alleged offender exceeded the right of private defence.
17. While referring to the site-plan, it was pointed out by the opposite counsel that the deceased appeared to have retracted from the attack and by firing at that stage, the appellant has clearly exceeded the right claimed. On going through the record, it is not clear that the deceased at the time of receiving the bullet injuries at the hands of the appellant Sherin Gul had in fact retracted or withdrawn from further attack and the apprehension of danger had ceased by that time. It is well- settled that where the evidence on the record raises some doubt as to whether the accused exceeded his right of H private defence then he is entitled to an acquittal.
18. On a careful consideration of the facts and circumstances we are, therefore, of the view that this appellant Sherin Gul is not proved to be guilty of any offence. We, therefore, accept the appeal, set aside the conviction and sentences passed and acquit all the accused. The appellants are in Jail and we direct that they be set at liberty provided their detention is not necessary in connection with any other matter. The revision petition ipso facto fails and is dismissed in limine. 1975 p Cr. L J. 1229 1972 SCMR 620 1980 P Cr. L J 57 PLD 1953 V C PLD 1964 Pesh. 143 1971SCM1t 80Q 1976 P Cr. L J 471