NAZIR AHMAD BHATTI. J.-Both the present appellants. Kala Khan and Zard Ali residents of Wandha Sher Ali Tehsil Tank, District DI. Khan were charged under section 302/324/34, P. P. C. By the learned Sessions Judge, D. I. Khan for committing the murder of Gul Muhammad and for causing injuries to complainant Ismail Khan with sharp means Both the appellants were also charged under section 13 of the Arms Ordinance. Consequently Kala Khan was convicted ; (i) under section 302. P. P. C.
And sentenced to undergo life imprisonment and to pay a fine of Rs, 5,000 as compensation to the legal heirs of deceased Gul Muhammad or in default to suffer further R. I. For one year : (ii) under section 324. P. P. C. And sentenced to undergo one year R. I. And to pay a fine of Rs, 5,000 or in default to suffer R. I. For one one month and (iii) under section 13 of the Arms Ordinance and sentenced to undergo R. I. For three years, vide judgment. Dated 26th April, 1983. All the sentences were to run concurrently. However his co-accused Zard Ali was acquitted from the charges under section 302/324, P. P. C. But was found guilty of the charge under section 13 of the Arms Ordinance and was sentenced to undergo imprisonment for one year. By the present appeal, both the aforesaid convicts have challenged their conviction and sentence.
2. The facts of the case briefly stated are that on 16th June, 1980 at 6-00 a. m., the deceased Gul Muhammad complainant Ismail and P. W. Bahawal Khan had gone to Chowk Kori in the limits of village Pai to bring water from the pond. The sun had arisen and they busy in filling their (Mashaks) when accused Zard Ali and Kala Khan reached there with their camels to fetch water. When both the accused saw Gul Muhammad, they told him that he could not save himself that day and they took their daggers inside their trousers and started giving blows to Gul Muhammad one after the other. Complainant Ismail Khan tried to rescue his brother Gul Muhammad but both the accused asked him to remain away and both of them gave one dagger blow each to the complainant who was also injured. Bahawal Khan beseeched the accused but in vain. The accused continued giving dagger blows to Gul Muhammad who got injured, fell down expired shortly afterwards. Both the accused decamped towards village Pai. The cause of enmity was that about 3/4 years ago, Gul Muhammad had beaten both the accused but the matter was not reported to the police. This report, copy Exh. P. 8/1 was made to Muhammad Yar Khan, S. H. O. Police Station Mullazai at Adda Daraki at 10-30 a. In. By complainant Ismail Khan who had reached there in injured condition, and the same was incorporated in F. I. R. No, 48 of Police Station Mullazai on the same day at 12-30 p. m.
Copy Exh. P. E. Both the accused were sent up for trial before the learned Sessions Judge, D. I. Khan where they were charged for the offences as mentioned above. Both of them pleaded not guilty and claimed trial. The State produced 11 prosecution witnesses in support of the case, out of whom P. W. 9 Ismail Khan and P. W. 10 Bahawal Khan are eye-witnesses of the occurrence, while the other witnesses are formal.
3. P. W. 6, Doctor Ghulam Hussain, conducted autopsy on the dead body of deceased Gul Muhammad on 16th June, 1980 at 2-30 p.m. And found the following injuries on his person :- External Examination :
(1) One stab wound on front of chest, left side size 1" x 1/4" x cavity deep.
(2) One stab wound in right hypochondrium size 1" x 1/4" x cavity deep.
(3) One stab wound in left hypochondrium size 1" x 1/4"- x cavity deep.
(4) One stab wound in epigastrium size 1" x lli" cavity deep.
(5) One stab wound hypogastrium omentum is protruding out of the wound size 1" x 1/4" x cavity deep.
(6) One incised wound on back of left palm size 1/4" x 1/6" x skin and muscle deep.
(7) One small incised wound on back of left forearm.
(8) One puncturned would on back of right thumb. Internal Examination.
Thorax : Wall left side injured. Pleurae injured. Left lung injured.
Thoracic aorta injured.
Abdomen : Wall injured. Paritoneum injured. Small intestines injured, liver injured.
In the opinion of the Doctor, the death had occurred as a result of injuries to vital organs i,e, thoracic aorta, liver, small intestines omentum leading to haemorrhage, shock and death. The injuries were caused by sharp means and the probable time between injury and death was 15 to 30 minutes while between death and post-mortem examination 7 to 10 hours. The same Doctor examined complainant Ismail Khan on the same day at 2-20 p.m. And found the following injuries on his person :-
(1) One incised wound on lateral side of left upper arm size 1/4" x 1/6 x skin and muscle deep.
(2) One incised wound on back of forearm size 1/4" x 1/6" x skin and muscle deep.
According to his opinion, the injuries were caused by sharp means within a duration of 7 to 10 hours but were simple in nature. The Doctor further stated in cross-examination that injuries Nos. 1 to 5 on the body of deceased Gul Muhammad were main injuries and were stab wounds and situate on the front part of the trunk, while no other injuries were stab. To a Court question, the Doctor stated that these injuries could be caused by more than one person.
4. P. W. 7 Muhammad Din and P. W. 8 Asad Khan learnt about the occurrence and they kept guard on the house where both the accused had taken refuge and till the time they were arrested by the police P. W. 11, Muhammad Yar Khan S. H. O. Kulachi proved the report, copy Exh. P. A./1 made to him by complainant Ismail Khan at Adda Daraki. He was informed that the accused had been encircled by the chasing party in village Pai. He left an A. S. I. On the spot and himself, alongwith police party, went to village Pai where he arrested both the accused. He prepared the injury sheet of complainant Ismail Khan and injury sheet and inquest report of deceased Gul Muhammad and sent P. W. Ismail Khan for medical treatment and the dead body of deceased Gul Muhammad for post-mortem examination to the hospital. He then again went to village Pai and recovered the blood-stained earth from the spot. He prepared the site plan at the instance of P. W. Bahawal Khan.
This witness has further stated that when he arrested both the accused, Kala Khan also made a report to him at 12-30 p.m., copy of which is Exh. P. A./3. According to this report, made by accused Kala Khan, he and Zard Ali had gone to the same place to fetch water where they found Gul Muhammad and his brother Ismail Khan already present there and filling water. The accused party also started filling water. Zard All had a five shot rifle with him which he had put by Atte side of the Water. At that time, 20/25 other persons of village Daraki were also present at the pond. In the meantime, Gul Muhammad, who was armed with a single barrel shot-gun, came towards Zard All and asked him as to why he was not making a compromise with him in spite of the fact that he had been asking for the same many times. Zard Ali replied that he was ready to affect a compromise but in the meantime Ismail Khan, who was having a stick with him, gave one suet( blow to Zard Ali. The latter ran to fetch his rifle but Ismail Khan attacked him and threw him to the ground. Gul Muhammad also tried to attack Zard Ali but Kala Khan gave him a push whereupon Gul Muhammad aimed his gun at Kala Khan but the latter caught the barrel of the gun. Gul Muhammad fired from his gun but Kala Khan changed the direction of the barrel. Kala Khan thought that Gul Muhammad would not leave him without killing and so he gave dagger blows to Gul Muhammad. The latter and his gun fell into the water. Kala Khan then went to rescue Zard Ali and gave dagger blows to Ismail Khan. Subsequently, Zard All brought out the shot-gun of Gul Muhammad from the water. Both the accused left their she-camels and `Mashaks' at the spot and ran towards village Pai to save their lives as they were being followed by Moeeullah, Nasrullah and Ismail Khan. The latter also fired three shots at them ineffectively. Both the accused took refuge in a house in village Pai from where they were arrested. Accused Kala Khan owned the dagger and produced the same to the S. H.O. Whereas accused Zard Ali produced his rifle and the shot-gun of Gul Muhammad with an empty cartridge in it to the S. H.O. The cause of enmity was that about 5/6 years ago, Nekam Khan brother of Zard Ali had quarrelled with Said Ahmad brother of Gul Muhammad on the entry of cattle in the watermelon field and neither a compromise had taken place nor the matter was reported to police. This report was also incorporated in F. I. R. No, 49 of the same police station on the same day at 2-00 p.m. Copy Exh P. A./2. The Investigating Officer took into possession from accused Zard All the fivt shot rifle, vide memo. Exh. P. J. And the aforesaid shot-gun with an empty cartridge in it and giving smell of gun-powder and the aforesaid dagger from accused Kala Khan vide recovery Exh. P. K. The Investigating Officer also took into possession, vide recovery memo. Exh. P. I., the old militia shirt which had been worn by accused Kala Khan when he was arrested and the upper and lower portion of the shirt were blood-stained. P. W. 9 Ismail Khan and P. W. 10 Bahawal Khan had, in their testimony before the learned trial Judge, supported the prosecution case. However, the learned Sessions Judge did not believe the testimony of P. W.
Bahawal Khan. Both the accused, in their statement under section 342, Cr. P. C. Admitted the previous quarrel between them and the complainant party as well as the suggestion of compromise by the complainant party on the day of occurrence but stated that they wanted to affect the compromise on their own terms. Accused Kala Khan admitted that the shot-gun and his shirt were recovered from him. He also admitted that he had lodged the counter-report against the complainant party. He denied the murder of Gul Muhammad as well as the injuries to P. W. Ismail Khan. He denied that he was in possession of any unlicensed weapon. To question No, 11 in his examination, he made the following statement :- "At the time of occurrence, Gul Muhammad first tried to threaten us orally while we were busy taking water near the pond and when we gave him a second refusal he took his shot-gun and came towards me. He tried to threaten me. I stood up and caught hold of shot-gun barrel which in the meantime went off. He then grappled with me and threw on the ground. In the meantime, his companion Ismail also reached, who had a stick with him. As I was afraid that they will do harm to me, I used my dagger which I was carrying in my Budda from underneath to release myself. After having given one or two blows. I got up and on this ugly terms of the event, I and my brother both ran towards village Pai and also took away with us shotgun carried by deceased Gul Muhammad fearing that they would fire at us while escaping."
He further stated that he would produce defence but none was produced by him. Accused Zard Ali denied the commission of the offence, admitted the recovery by the Investigating Officer of 7 m. m.
Rifle from him, admitted the previous quarrel and insistence of the complainant party on compromise, denied committing the murder of Gul Muhammad and causing injuries to complainant Ismail Khan and also denied that he was found in possession of any unlicensed weapon. To question No, 10 in his examination, he made the same statement as had been made by his co-accused in response to question No, II as aforesaid. Both the accused admitted that they had decamped from the spot out of fear. The learned Sessions Judge believed the testimony of P.
W. 9 Ismail Khan and convicted and sentenced both the accused as stated earlier. He, however, did not take into consideration the aforesaid plea of self-defence, advanced by both the accused- appellants.
5. It shall thus be seen that the occurrence had taken place between the complainant and the accused parties. The complainant party had alleged that the accused were the aggressor while on the contrary both the accused have stated that they had to resort to self-defence as, according to them, complainant party had attacked them with a stick and a shot-gun and they apprehended imminent danger to their lives, and accused Kala Khan inflicted injuries to deceased Gul Muhammad and complainant Ismail Khan in self-defence. Thus, the only point for determination is whether accused Kala Khan had acted in self-defence or otherwise.
6. Mr. Muhammad Ishaq Khan, learned counsel for the appellants, urged that there was considerable delay in lodging the F. I. R. And the same has not been explained by the prosecution evidence. It shall be seen that the occurrence took place at 6-00 a. m., and the report was lodged at 10.30 a. m. The learned counsel further contended that the report was lodged at bus stand of village Daraki and not in the police post or the police station. His contention was that the F. I. R. May well have been lodged at the place of occurrence. But we cannot agree to these suggestions of the learned counsel for the reasons that two real brothers were attacked by the accused, one of whom died and the other sustained injuries. The injured brother had to inform his relations so that arrangements could be made for taking the dead body and also for taking him either to the police station or to the hospital for medical treatment. The deceased and injured P. Ws. Were young people and the complainant must be pretty confused after the occurrence and the delay has not caused any damage to the prosecution case. This is especially so for the reason that the occurrence has not been denied by the accused. The only question is which version is true.
Whether the prosecution has come out with a genuine story or the plea of accused is correct. This is the most important aspect of the case and it shall be taken up later on. However, the delay in lodging the F. I. R. Cannot be taken to mean that the prosecution wanted to fabricate a viable prosecution case.
7. It was further contended by the learned counsel for the appellants that the prosecution version was not supported by the circumstantial evidence on account of the recovery of the fire-arm weapon allegedly belonging to the complainant party of which no mention has been made in the F. I. R. And that the prosecution witnesses, out of whom one was disbelieved by the learned Sessions Judge, are close relations of the deceased. So far as the question of corroboration by circumstantial evidence is concerned, learned counsel for the appellants suggested that the accused had produced one shot-gun alleged to be in the possession of the deceased and that this circumstance is not mentioned in the F. I. R. However, besides the statement of the accused and the recovery of this shot-gun from his possession at the time of his arrest does not mean that this weapon belonged to the deceased. On the contrary, it cannot be ruled out that this weapon belonged to the accused himself. The accused party had gone to a different village to fetch water.
They had previous enmity B with the inhabitants of that village. It is quite possible that they may have taken their fire-arms with them to guard against the eventuality of any confrontation with their enemies. The mere word of the accused that this weapon belonged to the deceased, cannot be believed as gospel truth. So for as the interested nature of the evidence is concerned, it is true that both the P. Ws. Are close relations of the deceased but the important factor is that one of them was injured in the same transaction by the accused. Moreover, the presence at the spot of P. W.
Ismail Khan has also been admitted by the accused in the counter-report lodged by him after his arrest. The circumstances in this counter-report can be taken into consideration because the accused admitted the lodging of this report, and moreover in his statement, recorded under section 342, Cr. P. C., he adverted to the circumstances mentioned in that report. The presence of C P. W. Ismail Khan at the place of occurrence is proved. His evidence cannot, therefore, be disbelieved, on the mere fact of his relationship with the deceased. Not only that the evidence of this witness finds ample corroboration from the medical evidence inasmuch as he has charged the accused for inflicting blows with a dagger on him and his deceased brother.
8. The learned counsel for the appellants further contended that the plea of self-defence taken by the accused was proved and the learned Sessions Judge neither discussed it nor took it into consideration. His contention was that the accused was attacked by two persons and in order to rescue himself, he was compelled to give dagger blows to both of them. It was next contended by the learned counsel for the appellants that the deceased was armed with a shot-gun with which he had actually fired at the accused and P. W. Ismail Khan was armed with a stick and he apprehended imminent danger of death at their hands and so he had to resort to inflicting such blows to the complainant party as would exclude all possibilities of any danger to his own life. No doubt, the learned Sessions Judge has not discussed the plea of self-defence advanced by the accused which he ought to have but we have, therefore, given our anxious consideration to this aspect of the case. However, after a careful study of the plea a self-defence advanced by the accused and other circumstances of the case, which have come to light in the prosecution evidence, we have come to the conclusion that the plea of, self-defence advanced by the accused was not available to him in this case. Even if it is admitted that the deceased Gul Muhammad was armed with a shot-gun and he had aimed the same at the accused, but the latter did not suffer any fire-arm injury. On the contrary, be snatched the shotgun from the deceased and threw it in the water of the pond. As such, he did not apprehend any imminent danger to his life from the side of the complainant party. It is noteworthy that he did not receive even a scratch on his body. This circumstances alone would exclude the possibility of any imminent danger to his life or of any fatal injury to his person. In this respect we are supported by the case of Mian Jan v. The State , wherein it has been held that weapon once seized from deceased, apprehension of danger to accused ceases to continue and accused does not act in exercise of right of private defence but commits murder. It was further urged by the learned counsel for the appellants that the learned Sessions Judge has discarded the evidence of one eye-witness and as such he should have believed the statement of the accused made under section 342, Cr. P. C. And in this respect, hip relied upon the case of Faiz and another v. The State . However, the perusal of this judgment would show that it is not applicable to the circumstances of the case in hand. In that case, the conviction was based entirely on the statement of the accused and the learned trial Judge had accepted some portion of the statement and rejected some portion, while on the contrary in the present case, the conviction of the accused was based on the prosecution evidence and the statement of the1 2 accused recorded under section 342, Cr. P. C. Had been entirely disblieved and not taken into consideration by the learned trial Judge. The learned counsel for the appellants further relied upon the case of Shamus Gul and 2 others v. The State , to show that the right of private defence was available to the accused under Exception 11 to section 300, P. P. C. Wherein it has been held that when one party makes a deliberate attack on the other party in such circumstances, and the assailant with a deadly weapon has not fully 4-- 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 constitute his assault any further. Every case has to be considered on its own facts and before giving any accused person benefit of right of private defence a Court of law must be satisfied that his case is clearly covered by general exceptions." However, as already discussed, there was no apprehension of imminent danger to the life of the accused as the complainant party was completely unarmed and the accused did not even suffer a scratch on his body, and so he could not claim the right of private defence of his person. Moreover, there was no direct or circumstantial evidence to support the plea of accused except his own ipse dixit: On this score as well, we would not believe the plea of self-defence raised by the accused. In this respect, we are supported by the case of Inayat Masih v. The State . Learned counsel for the appellants further contended that the onus was entirely on the prosecution to prove its case beyond any reasonable doubt and if the counter-version as disclosed by the accused could be well in the realm of truth, then credence had to be given to his version of the occurrence and in that respect, he relied upon the case of Gulsher and another v. The State . However, we would not subscribe to these contentions as well, for the reason that the prosecution case was proved beyond any doubt whatsoever by the person who was injured in F the same transaction, by the motive advanced by the prosecution and also admitted by the accused and the intention of the accused to cause such injuries as would, in the natural course, Couse death of the deceased.
9. The accused gave as many as 5 dagger blows on the front chest of the deceased. When Ismail Khan, brother of the deceased, came to rescue his brother from the former, he was also given two dagger blows by the G accused. This conduct of the accused would prove, beyond any reasonable doubt that he had the intention to cause such bodily injuries as would result in the death of Gul Muhammad and he had also knowledge that such injuries may result in death. The learned counsel for the appellants had contended that the position of blood stains on the shirt of the accused shows that the deceased, while grappling with him had thrown him on the ground and out of fear of his life, the accused inflicted the injuries on the body of the deceased. Even if this situation is accepted, still the accused is not entitled to any benefit, for the reason that it would show that the deceased and the accused were only grappling with each other and the deceased was unarmed at that time. The accused could not, therefore, apprehend any danger of any injury to his person much less of imminent danger to his life. But he, in a very brutal manner, continued giving dagger blows one after the other to the deceased and also gave two dagger blows to the brother of the deceased who had come to rescue his brother. This would clearly indicate that the accused would not content himself with less than the death of Gul Muhammmad. The intention to cause death can spring at the spur of the moment and it is not necessary that there should be premeditation. The conduct of the accused in giving such serious blows to the deceased showed that his purpose was to commit the murder of the latter and not to save his own life only.
10. The last but not the least important factor in this case is that thel counter-report was lodged by the accused 6 hours after the occurrence when it the was arrested alongwith his co-accused.
During this time he was sitting in a house where he had taken refuge. He had sufficient time at his disposal to think and re-think about the occurrence many times. He was, therefore, able to weave a story of self-defence. As such, the counter-report lodged by him and his subsequent statement under section 342. Cr. P. C. Are not free of doubt and are not worthy of credit. For this reason as well,3 4 5 the counter-version of the case and the plea of self-defence are not believable. We are thus firm in our minds that the case of the prosecution regarding the murder of Gul Muhammad and causing simple injuries with sharp-edged weapon to P. W. Ismail Khan was proved against accused Kala Khan beyond any doubt and on the contrary the accused had failed to establish the plea of self- defence.
11. Both the appellants were also charged under section 13 of the Arms Ordinance and the learned Sessions Judge awarded R. I. For one year to appellant Zard Ali and R. I. For three years to appellant Kala Khan. However, no separate challan was submitted for their trial under the said offence.
Moreover, the appellant Zard Ali had already been tried by a Magistrate for the offence under Arms Ordinance and convicted as aforesaid. The conviction and sentence of both the appellants under Arms Ordinance was, therefore, illegal and uncalled for.
12. We would, therefore, uphold the conviction and sentences of appellant Kala Khan under section 302/324, P. P. C. For committing the murder of deceased Gul Muhammad and for causing injuries to complainant Ismail Khan and dismiss his appeal on these charges However, we would acquit both the appellants under section 13 of the Arms Ordinance. Appellant Zard All is already on bail and his bail bonds are discharged. PLD 1980 Pesh. 92 1983 SCMR 76 PLD 1983 Pesh. 48 1980 SCMR 937 1972 SCMR 597