This Criminal Appeal and the connected revision No, 71/83 against acquittal and for enhancement of sentence arise from the judgment of learned Additional Sessions Judge, Sahiwal, whereby he on 6th January, 1983 convicted Muhammad Saeed alias Saee and Farid, the appellants under section 304, Part-I, P. P. C. For causing death of Muhammad Sharif and sentenced them to ten years' R. I.
Each and a fine of Rs, 3,000 each with the direction that the fine shall be paid to the heirs of the deceased.
2. The occurrence took place on 11th August, 1980 at 8-00 a. m. In village Chowk of Chak No, 18/K. B.
Of Police Station Qabula. The F. I. R. Exh. P. A. Is the statement of Muhammad Ashraf P. W., the son of the deceased which was recorded by Muhammad Nawaz A. S.-I. P. W. 8 at 6-10 p. m. On the same day in Chowk Golaywala. The formal F. I. R. Exh. P. A./1 was recorded at the police station same day at 6-20 p.m by Muhammad Chiragh Head Constable (not 'produced). The distance between the place of occurrence and the police station is 2 furlongs.
3. As far the motive, it has been alleged that 7/8 years before the occurrence, maternal grand- father of Muhammad Ashraf P. W. 1 had abducted the paternal aunt of the appellants. The immediate cause of attack as disclosed by the prosecution is that on the eventful day at 7-00 a. m., Muhammad Saeed appellant let his cattle loose in the cotton crop of Zakir Hussain P. W. 6 and on this there ensued a quarrel followed by the exchange of abuses and a slap by Muhammad Saeed appellant on the face of Zakir Hussain P. W. 6.
4. The prosecution case is that after having been slapped, Zakir Hussain P. W. Went to the house of Muhammad Sharif deceased and apprised him of the incident whereon Muhammad Sharif deceased suggested that Muhammad Amir P. W. a Local Councillor, be contacted and the matter be got settled through Panchayat'. Zakir Hussain P. W., therefore, went to the house of Muhammad Amir and asked him to come to his shop to join the 'Panchayat'. He then came back to the deceased. Thereafter, Muhammad Sharif deceased, Muhammad Ashraf P. W. And Zakir Hussain P.
W. 6 started for the shop of Zakir Hussain to convene Panchayar in the shop jointly owned by Zakir Hussain P. W. 6 and his brother Falaksher. When they passed near the shop of Farid appellant which falls on the way, they found the appellants sitting in the shop armed with sotas. When the deceased and others had hardly crossed the shop of Farid, the appellants came out of the shop, raised /alkaras, opened attack and thereby caused injuries to Muhammad Sharif and Zakir Hussain P. W. The occurrence was seen by Muhammad Amir P. W. 5 and given up witness as namely Ghulam Rasool and Muhammad Ali. It may be noted that Muhammad Saeed appellant also received injuries during the occurrence. The deceased was removed to Civil Hospital, Arifwala where he was medically examined at 10-00 a. m. By P. W. 7, Dr. Fazal Miran, who found the following injuries on his person.
(I) A lacerated wound 3 C. m. x 5 m. m. Into skin deep with swelling 6 c. m. x 4 c. m. On right side of head 10 c. m, above right ear.
(2) Swelling 10 c. m. x 8 c. m. On left side of head 4 c. m. Above left ear.
Exh. P. E. Is the correct corbon copy of the medico-legal report. On the same day i. e. 11th August, 1980, the doctor medically examined Zakir Hussain P. W. 6 and found one lacerated wound, 2 abrasions and one swelling on his person. All the injuries were caused by blunt weapon and simple in nature. He also found five lacerated wounds and one bruise on the person of Muhammad Saeed appellant. All the injuries were caused by blunt weapon. These injuries were kept under observation.
After receiving X-Ray report, injuries Nos. 4 and 5 of Muhammad Saeed appellant were declared grievous and rest as simple.
Muhammad Sharif succumbed to injuries on 12th August, 1980 at 4-15 a. m. The same doctor, therefore, performed post-mortem examination. He again found the same injuries as mentioned by him in medico-legal report, copy Exh. P. E. On dissection, the doctor found sutured fracture of the fronto prito bones on left side under injury No,
2. Fracture of the right prietal right tempral and right sphenoid and frontal bones under injury No,
1. Membrance and brain were congested. Blood clot 8 c. m. x 8 c. m. Incised was present on the brain matter under injury No, 1 and the brain matter was pressed under the blood clot. All the injuries were caused by blunt weapon and were anti-mortem.
Injury No, I was fatal and injury No, 2 was grievous. In the opinion of the doctor, the death was due to shock and haemorrhage and injury to brain caused by injury No, 1 which was sufficient to cause death in the ordinary course of nature.
5. Muhammad Nawaz A. S.-I. P. W. 8 arrested the appellants on 20th August, 1980. On 25th August, 1980 Farid appellant got recovered blood-stained sota Exh. P. 4 from his house which was taken into possession, vide memo. Exh. P. C./1, attested by Muhammad Vakil, P. W. 4 and Noor Ahmad P. W.
11. The serologist report Exh. P. R. Shows that sota Exh. P. 4 was stained with, human blood. No recovery was, however, effected from Muhammad Saeed appellant.
6. In order to prove its case, the prosecution examined as many as 11 witnesses. Muhammad Ashraf P. W. 1, Muhammad Amir P. W. Sand Zakir Hussain P. W. 6 while giving the ocular account of the occurrence have fully supported the prosecution case. Zakir Hussain P. W. 6 deposed about the first incident wherein he was allegedly beaten by Muhammad Saeed appellant. He also stated that at the instance of Muhammad Sharif deceased, he had approached Muhammad Amir P. W. For convening `panchayar with regard to the earlier incident. Muhammad Amir P. W. 5 also supported Zakir Hussain that he (Zakir Hussain) came to his `baithak' and asked him to join `panchayar to be held in the shop of Falaksher. Muhammad Ashraf P. W. 1 and Zakir Hussain P. W. 6 have consistently stated that at the eventful time when they alongwith the deceased were on their way to the shop of Falaksher to hold panchayat' , they were attacked at by the appellants who inflicted sota blows to the deceased as well as Zakir Hussain P. W. Muhammad Amir P. W. 5 claims to have witnessed this occurrence when he was on his way to the shop of Falaksher. These witnesses have also admitted that Muhammad Saeed appellant was injured in the same occurrence at the hands of Zakir Hussain P. W.
6. Muhammad Vakil P. W. 4 and Muhammad Nawaz A. S.-I. P. W. 8 have supported the recovery of blood-stained sota Exh. P. 4 from Farid appellant. The rest of the evidence is more or less of formal nature.
7. The appellants when examined under section 342, Cr. P. C. Denied all the incriminating circumstances. Farid pleaded false implication on account of enmity. Muhammad Saeed, however, raised the plea of self-defence. In answer to question No, 5, he stated that : "I have been falsely involved in this case. In fact a she-donkey belonging to Zakir Hussain P. W.
Trespassed into my crops and damaged it. I abused and caused injuries to Zakir Hussain P. W.
Because of the damage of my crop in the morning before the time of actual occurrence on the day of occurrence. In order to avenge that beating and insult, Zakir Hussain P. W., his brother Falaksher and their maternal uncle Muhammad Sharif deceased all being armed with sotas attacked me near my shop in the village Chowk. I acted in self-defence and caused injuries to Muhammad Sharif deceased in self-defence. The deceased Muhammad Sharif, Falaksher and Zakir Hussain, above-mentioned caused me as many as six injuries among those I received two grievous injuries.
My co-accused Farid was not present at the spot at the time of occurrence. The cattle of Muhammad Sharif deceased had previously also damaged my crops and I impounded his cattle in the cattle pound of Tibbi La! Beg, on that occasion. I produce certified copy of the cattle pound register of Tibbi Lal Bege, which is Exh. D. C."
He produced Exh. D. D. Copy of F. I. R. No, 85/80, Exh. D. F. Copy of allotment order, dated 14th June, 1977, Exh. D. G. Copy of the application and Exh. D. J. Copy of F. I. R. No, 120, dated 27th December, 1965 and also examined Ghafoor Ahmad Constable D. W. 1 and Nazir Hussain X-Ray Technician as D. W.
2. Ghafoor Ahmad constable stated that Dr. Muhammad Ashraf Radiologist had died before the trial. Nazir Hussain D. W. 2 proved the handwriting of Dr, Muhammad Ashraf Radiologist on report Exh, D. H. To the effect that injuries Nos, 4 and 5 of Muhammad Saeed were grievous.
8. The above statements of facts would indicate that it is a case off two versions, the time of occurrence, the presence of Muhammad Saeed appellant and Zakir Hussain P. W., the facts that Muhammad Saeed appellant and Muhammad Sharif deceased were injured during the main occurrence ; Zakir Hussain came armed with a stick ; Muhammad Saeed received 6 injuries including 2 grievous injuries in the same occurrence, and that in the earlier incident which took place at 7-00 a. m. i,e, one hour before the main occurrence, Muhammad Saeed appellant had slapped/beaten Zakir Hussain P. W. Are the admitted facts of the case. The presence of Muhammad Ashraf P. W. 1, Muhammad Amir P. W. 5 and Farid appellant has been denied by the parties. It would, therefore, be convenient to state here the findings and observations of the learned trial Court with regard to the case for the prosecution and the plea of self-defence taken by Muhammad Saeed appellant.
As far the prosecution, suffice it to say that the trial Court has rejected 75 per cent of its case. The motive alleged by the prosecution has been disbelieved, the story of holding a `panchayat' has also not been accepted, the assertion that Zakir Hussain P. W. 6 received injuries found on his person in the main incident has been rejected and the prosecution case that the appellants had opened the attack has also not been believed, So far as the version of the defence is concerned, except presence and participation of Farid appellant, the rest of the statement of Muhammad Saeed appellant has been believed. The trial Court has believed the motive part stated by Muhammad Saeed and has very clearly observed that the motive lays more on the side of the prosecution ; that the complainant party was the aggressor one ; that Muhammad Saeed appellant received injuries at the hands of Zakir Hussain P. W. ; that the right of self-defence had accrued against Zakir Hussain and that when the appellants caused injuries to Muhammad Sharif deceased, who was empty-handed, they exceeded their right of self-defence. In view of these findings, the trial Court convicted the appellants under section 304, Part-I, P. P. C. For having exceeded the right of self-defence.
9. Before me, the learned counsel for the appellants has vehemently assailed the judgment of the trial Court. He submitted that the prosecution case is false ; that the eye-witnesses having been disbelieved on material particulars, their evidence should have been discarded altogether, that the statement made by Muhammad Saeed appellant should have been accepted as a whole and that in any case, the right of self-defence has not been exceeded.
As against this, the learned cont3sel tor the State has supported the prosecution case. He submitted that the prosecution has proved a case punishable under section 302, P. P. C. And that in the circumstances of the case, the right of self-defence was not at all available to the appellants.
Mr. Abdul Aziz Khan Niazi, the learned counsel for the petitioner in connected revision No, 71/83 assisted by Mr. Abdul Latif Rao, has addressed the Court. He added that since Muhammad Sharif, deceased, was empty, handed at the time of occurrence, there being no reasonable apprehension that he would cause the death or grievous hurt, therefore, the right of self-defence did not accrue against him and as such, the appellants should have been convicted under section 302/34, P. P. C.
10. I have considered the arguments advanced by the learned 'counsel for the parties in the light of' the record. Keeping in mind that in the case in hand there are two appellants out of whom one has pleaded the right of self-defence whereas the other has denied his very presence on the spot, I propose to appreciate the case in the light of guiding principles laid down by the superior Courts for the appreciation of such like cases ; that as against Farid, the entire onus and as against Muhammad Saeed, the initial onus is on the prosecution to prove its case through reliable witnesses ; that in case, the ocular evidence is excluded, the statement of the appellant shall be accepted in its entirety and that in case the prosecution case is not disbelieved, then by placing the two versions in juxta-position it would be seen whether there is a reasonable possibility of the defence being true or not. I proceed to discuss the prosecution case first so as to come to an independent conclusion as to the truth or the falsity of the prosecution case and would then consider the statement of the accused and the plea of self-defence raised by him, if necessary.
11. Having assessed the statement of the eye-witnesses in accordance with the principles for the appreciation of ocular account, laid down by the Supreme Court in case 'Muhammad Hussain v.
The State . I am inclined to exclude the evidence of Muhammad Ashraf, Muhammad Amir and Zakir Hussain P. Ws. As wholly unreliable witnesses for the reasons that Muhammad Ashraf P. W.
And Zakir Hussain P. W, are not only the close relatives of the deceased but also inimical because Muhammad Ashraf has admitted that for the last 7/8 years, they have been inimical towards the appellants and were not on speaking terms wit them; that Muhammad Ashraf and Muhammad Amir not being injured, there is no judicial certainty and circumstantial guarantee of their presence at the time of occurrence; that had Muhammad Ashraf, the son of the deceased, been present at the spot, he would have interfered to save hi father and might have received injuries in the process; that since the place of occurrence is away from their houses, the eye-witnesses are not the natural witnesses of the occurrence, that the reasons given by Muhammad Ashraf and Zakir Hussain and Muhammad Amir P. W. For their presence on the spot that they were going towards the shop of Zakir Hussain to hold a meeting having not been mentioned in the F. I. R. The presence of these witnesses appears to be highly doubtful. Muhammad Ashraf has made material departure from the F. I. R. The witnesses have already been disbelieved by the Court with regard to the motive, the injuries to Zakir Hussain in the main occurrence and as to the manner in which the attack was1 opened. No doubt, Muhammad Amu P. W. Is not an interested witness but to my mind, the absence of relationship or want of enmity cannot stamp his statement with truth. His. Presence on the spot has already been found by me to be doubtful. As far Zaki Hussain, no doubt, he is an injured witness but in the peculiar circum-stances of the case that there was a short interval of one hour between the two incidents, the possibility that he received injuries in the earlier incident cannot be excluded.
His evidence with regard to the motive and the main occurrence does not appear to be, in consonance with the probability, does not fit in with the other evidence and has failed to inspire confidence of truth in my mind. For all these reasons, I am ... Inclined to discard the ocular account and exclude it from consideration. The alleged recovery of blood-stained sota Exh. P. 4 from Farid appellant in the circumstances of the case cannot be used against him because the recovery was effected from the house where the appellant is said to be living with his parents, brothers and sisters.
12. Now the statement of Muhammad Saeed appellant,-, remains in held which, to my mind, has to be accepted as a whole. When the same is accepted as a whole, no offence appears to have been committed by him. Even otherwise, the judgment of the trial Court accepted at its face value, no case of exceeding self-defence is made out against the appellants inasmuch as the deceased alongwith Zakir Hussain, etc. Having a motive to attack had come from their houses to the shop of the appellants duly armed with the stick. They not only opened the attack but also caused grievous injuries to Muhammad Saeed appellant. In the circumstances of the case the possibility that the deceased was not only armed with stick but also caused injuries to Muhammad Saeed, cannot be excluded and as such Muhammad Saeed had a right of self-defence extending to the causing of death of each member of complainant party.
13. The upshot of the discussion is that there being no satisfactory basis for the conviction of the appellants, while giving them the benefit of doubt, they are acquitted of the charges and shall be set at liberty forthwith, if not required in any other case. The revision filed by Muhammad Ashraf is accordingly dismissed. PLD 1960 SC 387