The appellant in this case, who was Head Constable of Police was married to one Gul Zarin, who is a sister of prosecution witness Ovais Khan, who is the injured person in this chase. Besides Ovais Khan, she had two other brothers, namely, Benaras Khan and Khushhal Khan the first of whom has been examined as a witness in this case. The evidence of the prosecution is to the effect that the three brothers resided in Bhutta village and at a little distance from them resided the appellant Abdul Nabi with of course Gul Zarin, his wife, and sister of the three brothers. The marriage had taken place about 2 years before the incident but a little before the actual occurrence it would seem that there was some disagreement between husband and wife and upon the day in question that is to say the 15th of April 1970, according to the prosecution the appellant beat his wife Gut Zarin, who came to the house of her brothers at about 8 a. m. And complained of this. On hearing the injured Ovais Khan went outside the house and he was followed by the witness Benaras Khan.
In the meantime the appellant also came out from his house and it is said that upon seeing Ovais Khan he took out his pistol and fired two shots at him. This pistol it might be mentioned is a licensed pistol although it is not one given to the appellant for the performance of his official duties. Ovais Khan then being injured, Benaras Khan and once Shad Khan, to whom according to the prosecution the injured was talking immediately before the incident but who has not been examined as a witness in this case, succeeded in overpowering the appellant and then took him to .The police station alongwith the injured Ovais. At the police station that is to say the Jackson Police Station, the S. It. 0. Inspector Shan Muhammad Khan recorded the first Information Report at 9-10 a.m. And sent the injured Ovais Khan to the hospital. He also recorded the statements of Benaras Khan and Khushhal Than did then arrested the appellant from whom he seized the pistol and bullets ref which be prepared a mashirnama, lie also recovered from the person of the appellant a shirt and shalwar which bore blood stains. These blood-stained clothes were sent for chemical examination and they have been found by the Chemical Examiner to be stained with human blood.
The Police Officer then went to the scene of offence where he made mashirnama of the scene and in due course the appellant was sent up to the Court of a Magistrate from where he was committed to the Court of Session on a charge under section 307 of the Pakistan Penal Code inasmuch as Ovais Khan survived the attack. In the Sessions Court he was tried by the learned Sessions Judge, Karachi, who has convicted him under section 307 of the Pakistan Penal Code and sentenced him to undergo rigorous imprisonment for four years and against this conviction and sentence the present appeal has been brought.
2. Besides the formal witnesses the evidence really consisted of only the two brothers Benaras Khan and Ovais Khan, Khushhal Khan for some reason unknown, not been examined. Nor was Shafi the person to whom the injured Ovais Khan was talking immediately before the incident examined and yet one more witness, namely, Zar Farin Shah who is mentioned in the First Information Report as one among several people who arrived on the cries has also not been examined at the trial. In regard, however, to the question whether it was indeed the appellant who caused the injuries to Ovais Khan the non-examination of these witnesses does not matter at all. The injured witness was certainly injured by means of pistol shots and the certificate of the doctor who examined him and in regard to whom there is evidence given by the Investigating Officer that he is no longer in Pakistan clearly bears out this fact. The handwriting and signature of the Doctor are proved by the evidence of Shan Mohammad Khan who claims to be familiar with his handwriting and whose evidence, I have, therefore, no reason to distrust. Indeed the incident in so far that the injuries were in fact caused by the appellant is the defence case also and the learned trial Judge had, therefore, no hesitation in reaching the conclusion that the injuries were caused to Ovais Khan by the appellant and I entirely agree with the learned Judge on this point.
3. The case of the appellant, however, was that upon the day in question he was going out armed with his licensed pistol when Ovais Khan and his two brothers Khushhal Khan and Benaras Khan came out from their house quite apparently ready to fight with him. They accosted him near the mosque which is apparently between their two houses and caught hold of him. Benaras Khan then gave him a danda blow on his head while Khushhal Khan and Benaras Khan, tried to snatch the pistol which being loaded in the struggle went off' twice. Clearly, therefore, he raised a case of accident. Before us learned counsel for the appellant argued that it was a case of accident and in any case at least a case of the right of the private defence.
4. Now the medical evidence shows that the appellant himself had received two injuries one of which was an abraded contusion on the forehead while the other resulted in a haematoma on the skull. The injuries in themselves do not appear to be very serious and I was first inclined to view the case of the appellant with a degree of scepticism. It seemed to me that although upon this medical evidence one of the brothers at least must have been armed with a danda and that, therefore, possibly one shot being fired by the appellant might have been in the exercise of the right of private defence, one shot having been fired I saw no reason why he should fire yet another shot. It also struck me that if indeed the witnesses were grappling with the appellant then this grappling must have occurred after the danda blow had been given which would necessarily have to be given at comparatively some distance as also would have to be the pistol injury, there are other circumstance, however, in this case which militate against the prosecution case or at least throw it into considerable doubt.
5. In the first place it is the three brothers of the appellant's wife who would on that particular day have an immediate cause of resentment. This is not of course necessarily W say that they left their house bent upon giving an injury or beating the appellant but they certainly left the house with the intention of remonstrating with the appellant and must have been in a somewhat angry mood. It is also to be remembered that they were three in number and that before they reached the house of the appellant, the appellant himself came out, Now the appellant must have come out either anticipating the visit of the brothers or, intending to avoid that visit, and meaning to proceed to his duty as usual. In either event therefore the meeting was, as it were, at the instance of the brothers.
In number they clearly were in a majority. That in point of fact this numerical superiority ultimately prevailed is borne out by the fact that, despite the appellant's being armed with a deadly weapon they were able to overpower him and take him to the police station. The real question is what happened in between. As I have said before my entire scepticism of the case of the appellant was due to the impression that he must have been at some distance from the three brothers and that therefore even if one pistol shot could be excused there was no cause for the second. The medical evidence, however, is to the effect that the wounds of the injured, that is the entry wounds were charred and blackened and this clearly shows that the distance must have been extremely small.
This is compatible only with a close struggles. The danda blow upon the appellant, therefore, must either have been given before these shots or administered while be was engaged in a struggle with the injured by one of the other two brothers. Emphasis has been laid upon the fact that the clothes of the appellant were blood-stained and that these could not have been blood--stained by reason of his own injuries; I quite agree but it would seem to me that this also is a circumstance rather in favour of the appellant than against him. If he was indeed at a distance of some paces away from the injured when he fired his clothes were unlikely to have become blood--stained but if the two shots were fired while he was engaged in a close struggle with the injured when it is quite clear that the clothes would be blood-stained. In these circumstances it seems to me probable that the two injuries upon the witness Ovais were, though caused by the appellant, sustained during the course of the struggle and it is difficult to say whether the appellant then really fired the pistol for the purposes of private defence or that the pistol was accidentally discharged. In either view of the matter at the question is at least one of doubt and it is now well established that even though the appellant does not take a positive plea of the right of private defence or any other general exception if, upon the case as a whole, there is a doubt upon this question then the benefit of that doubt must be given to the appellant.
6. In these circumstances I do not think this conviction can be sustained and accordingly at the end of the hearing of the appeal I announc--ed judgment setting aside the conviction and acquitting the appellant and have now set out my reasons for so doing.