MUHAMMAD ISHAQ KHAN, J.-- Through the instant criminal appeal Sadar Khan son of Saadullah Khan caste Pashtoon resident of Kotka Spoy Khel (Dakhli Chandu Khel) Police Station Tajori, Tehsil Lakki District Bannu has challenged his conviction under section 302, P.P.C. By the order, dated 13- 12-1984 of Mr. Ziauddin Khan, Additional Sessions Judge, Lakki whereby he was sentenced to imprisonment for life and a fine of Rs.2,500 or in default two years' further R.I. For committing the murder of Khan Muhammad (deceased).
2. Facts of the case in brief are that Hukam Khan (P.W.) was proceeding towards his village from the mills of Humayun Khan and at `Diggar' time when he reached the lands known as Willon he saw his father Khan Muhammad also proceeding towards the village along with a donkey loaded with grocery articles he also at that juncture noticed Kamal Khan (acquitted accused) armed with " bore shot gun, Bahadur Nawaz (acquitted accused) armed with local made gun and Sardar Khan accused-- appellant coming in front of his father and catching hold of him started belabouring him whereupon his father drew out the dagger and gave two blows to Sadar Khan accused- appellant which injured Sardar Khan who fell down to the ground. Kamal Khan (acquitted accused) fired a shot at his father who was hit thereby and dropped to the ground while Bahadur Khan (acquitted accused) aimed his gun at the witness and challenged him in a loud voice that he would not go safe whereupon the witness dropped his bicycle and ran towards village Chandukhel.
Bahadur Khan accused, however, fired at him which however, did not hit him. After covering some distance when the witness looked towards the scene of occurrence he noticed the accused party decamping from the spot. He came to the spot lifted his bicycle and reached near his father who had expired by that time. The witness went to his house informed his uncle Dur Muhammad whereafter they arranged a `Charpai' and came to the spot, put the dead body of deceased father on the Charpai and took him to Kot Kashmir where they hired a conveyance and went to P.P.
Gambila and lodged the report about the killing of his father charging the accused-appellant and the two acquitted accused for the murder of his father and attempted murder at his life. Motive for the offence was that Said Badshah tenant of the accused party had been slapped by the deceased which enraged the accused and resulted in the aforesaid incident. This report was recorded at serial No. 10 of the daily diary of P.P. Gambila on 4-11-1980 at 10-00 p.m. And by way of `Murasila' was transmitted to Police Station Tajori where formal F.I.R. Was chalked out vide Ex.P.A.
And a case under section 302/307/34, P.P.C. Was registered against Sadar Khan accused- appellant Kamal Khan and Bahadur Nawaz the two acquitted accused.
3. After registration of the case the dead body of the deceased was sent to Civil Hospital, Lakki where on 5-11-1980 at 8-50 a.m. Doctor Chiragh Hussain conducted autopsy on the dead body of Khan Muhammad deceased and on external examination found the following injuries on his person:-
(1) A fire-arm inlet wound size 1-1/2" x 1/2" on right side of apigrastrim.
(2) A fire-arm outlet wound size 1/8" x 1/8" on the left buttock corresponding to inlet wound at S. No.
1. Through pellets recovered from under the skin of the left buttock. The direction of the wound is from right to the left and from above downward.
On internal examination abodminal walls, peritonium small and large intestines, liver, spleen, kidneys and bladder were all found injured. Death in the opinion of doctor had occurred due to shock and haemorrhage.
4. The three accused were arrested and after completing the investigation challan was put in the Court of the learned Additional Sessions Judge at Lakki. The prosecution in order to bring home guilt to the accused examined as many as 11 witnesses. Bahadur Nawaz and Kamal Khan accused pleaded innocence and false implication while Sardar Khan accused-appellant in his statement under section 342, Cr.P.C., however, claimed that he committed the murder of the deceased in exercise of the right of private defence of his person. The learned trial Judge came to the conclusion that the prosecution had failed to establish its case against Bahadur Nawaz and Kamal Khan accused and accordingly extending them the benefit of doubt acquitted them. Sadar Khan accused-appellant was convicted under section 302, P.P.C. For committing the murder of Khan Muhammad deceased and sentence to imprisonment for life and a fine of Rs.2.500 or in default two years' R.I. Aggrieved by his conviction and sentence he has come in appeal to this Court.
5. Arguments of the learned counsel for the appellant and the learned Assistant Advocate-General on behalf of the State respondent have been heard and record of the case thoroughly examined.
6. The prosecution has produced only Hukam Khan as an eye-witness to the occurrence. The learned trial Judge has not believed his presence on the spot for good and sufficient reasons. The conclusion of the learned trial Judge with regard to non-believing the presence of Hukam Khan on the spot at the crucial time has not been challenged before this Court. If the presence of Hukam Khan is excluded then there is no case made out by the prosecution against the accused- appellant and the acquitted accused. On the other hand the record reveals that Sadar Khan accused-appellant had also gone to Police Post Gambila on 4-11-1980 and at 9-50 p.m. Had lodged a report in Police Post Gambila which is to the effect that on the day of occurrence at `Diggar' time he was going towards his village when on the way he met Khan Muhammad deceased with whom he had enmity over womenfolk and who caught hold of his neck and being armed with dagger gave him dagger blows when in the meantime his uncle Muhammad Ali Khan who was also present in the fields came towards him. Since he was armed with a shot gun he fired at Khan Muhammad. This report was recorded at serial No. 9 of' the daily diary of Police Post Gambila, dated 4-11-1980. Doctor Chiragh Hussain (P.W.1) who had examined Sadar Khan on 4-11- 1980 at 11-30 p.m. Had found the following injuries on his person:-
(1) A stab wound injury 1-1/2" x 1/2" x 1/2" on lateral side of the right forearm.
(2) A stab wound injury 1/4" x 1/2" on the right renal region.
In the opinion of the Doctor injuries had been caused within a duration of 12 hours with sharp- edged weapon. According to discharge slip Ex.P.L. The nature of the injuries was declared as grievous. In his statement under section 342, Cr.P.C. Sadar Khan accused-appellant gave the following statement:- "On the day of occurrence at Diggar time, I was coming on the thoroughfare, Khan Muhammad met me who was also armed with a dagger. We had enmity with him over the females. Khan Muhammad deceased caught hold of me and gave me dagger blows. He wanted to kill me by giving more dagger blows to me. I in self-defence' fired a shot at him with my S.B. Shot gun which was loaded when I was proceeding on a thoroughfare. Had I not fired at Khan Muhammad deceased. He was bent upon killing me. I am innocent and falsely charged:'
From the contents of the report lodged by Sadar Khan accused---appellant earlier to the report lodged by Hukam Khan and subsequently from his statement in the trial Court under section 342, Cr.P.C. Sadar Khan accused-appellant has all the time been claiming the benefit under section 97, P.P.C. Which provides that:- "every person has a right, subject to the restrictions contained in section 99, to defend.
First. His own body, and the body of any other person, against any offence affecting the human body.
It is well-established that where the right of private defence is pleaded the essence of the case should be to ascertain who was the aggressor and whether the accused acted in exercise of his right of private defence or otherwise. The pleas of self-defence amounts to the presumption that the harm which the accused had inflicted on the alleged aggressor is not an offence because the circumstances entitled him to exercise the right of self-defence. From the statement of the Doctor it is crystal clear Sadar Khan accused-appellant had received two dagger blows which were declared as grievous. The attack by the deceased on the person of Sadar Khan accused-appellant and giving him dagger blows brought the latter in imminent danger of death of such bodily injury which could prove fatal if the accused-appellant had not reacted. In Baz Muhammad appellant v.
The State respondent reported as 1969 P Cr. L J 1355 it was held that:- "On the face of it, it is preposterous to urge that after sustaining an injury on the chest the deceased was m a position to attack the appellant with a Dang. The only inevitable inference, therefore, is that it was Siddiq deceased who had opened the attack on the appellant, and, therefore, the latter whipped out a knife and caused injuries with it to the deceased resulting in his death. There is no escape from the conclusion that the appellant inflicted injuries in exercise of the right of private defence:"
In the instant case, however, it is prosecution case itself that Sadar Khan accused-appellant was given dagger blows by Khan Muhammad deceased. Since the learned trial Judge has not believed the presence of Hukam Khan the only eye-witness to the occurrence we are left with the statement of Sadar Khan accused-appellant and from whose statement it becomes crystal clear that he committed the murder of the deceased in the exercise of the right of his private defence because he had been given grievous injuries with dagger by the deceased. In Muhammad Khan and others appellants v. The State respondent reported as PLD 1964 (W.P.) Lah. 177 it was held that:- "The evidence on the record shows that some of the accused had gone to the Kharas for grinding their corn when they were attacked by the complainant-party on account of the incident of beating to Rehmat, brother of Allah Ditta deceased, by Muhammad Khan. Inayat and Rehmat Ali appellants. The accused not only apprehended that grievous hurt would otherwise be the consequence of such an assault but actually grievous injury was inflicted as fracture of the shaft ulna bone of Muhammad Ali appellant was caused and the case is covered by the second clause of section 100, P.P.C. The appellants were entitled to the right of self-defence and the prosecution failed to show that they had exceeded."
In this case as well the accused-appellant was not only in imminent danger, of physical injury but had actually been inflicted two dagger blows which' were subsequently proved to be grievous and in these circumstances his' firing at the deceased with the gun with which he was armed and the fact that he fired only one shot at the deceased does bring the case within the ambit of second clause of section 100, P.P.C. And he was quite within his right to attack the deceased in the exercise of the right of his private', defence.
7. The learned trial Judge, did not extend the benefit of section 97,1, P.P.C. To the accused-appellant for the only reason that since the accused---appellant had failed to adduce evidence in his defence as per the requirements of Article 121 of the `Qanoon-e-Shahadat' therefore, he was not entitled to claim the exception. Keeping in view the circumstances of the instant case we are of the view that there was hardly any justification for the learned trial Judge to hold the accused- appellant to adduce evidence to prove that he had committed the murder of the deceased in exercise of his right of private defence. The accused-appellant has consistently been claiming, that he had fired at the deceased after he was given dagger blows to ward of further harm to him. The F.I.R. Lodged by Hukam Khan also confirms that it was the deceased who opened the attack. The medical evidence fully corroborates the plea of the accused---appellant. The matter was reported to the police by the accused-appellant prior to the lodging of the report by the deceased-party.
When the learned trial Judge disbelieved the presence of Hukam Khan, the only evidence before him was that of Sadar Khan accused-appellant which fully established that he acted in exercise of the right of private defence.
8. Accordingly we would accept this appeal set aside the conviction and sentence of the accused- appellant and direct that he be released forthwith if not required in any other case.