' This jail appeal has been filed by the appellant against the judgment, dated 2-11-1987, passed by the learned Sessions Judge, Dera Ghazi Khan, whereby the appellant was convicted under section 304, Part I, P.P.C., and sentenced to imprisonment for life with a fine of Rs,4,000 or in default of payment of fine further R.I. For three months. He was also ordered to pay compensation of Rs,10,000 to the heirs of the deceased Muhammad Yaqub or undergo R.I. For six months in case of non- payment.
2. The brief facts of the case are that on 10-12-1985, Fateh Muhammad (complainant) accompanied by his son Muhammad Yaqub and Kaura, Khair Muhammad and Rahim, P.Ws. Went to village Shah Sadar Din, to make some purchases. On the way back at about Deegarwela, they passed from near the hotel of Muhammad (appellant). The appellant and his co-accused Hussain, armed with Chhuras', Eisa accused, armed with a Sota, and Meeru accused, empty handed came out of the hotel and the appellant questioned Yaqub (deceased) as to when he would return the loan of Rs,5,000 which was given by the appellant to Khair Muhammad and for the return of which the deceased had stood a surety. The deceased replied that the loan would be returned in the near future but the appellant demanded immediate payment and started abusing the complainant party. Kaura (P.W.) returned the abuses, whereupon Meeru accused exhorted others to kill, on which Hussain accused gave two Chhura blows on the arms of Kaura (P.W.). When Muhammad Yaqub tried to intervene, he was given a Chhura blow on his left flank by the appellant. Muhammad Yaqub fell down in a precarious condition and died on the spot. The appellant and his co-accused tried to escape, when Khair Muhammad (P.W.) tried to apprehend them, Eisa accused gave a Sota blow on the face of Khair Muhammad and then managed to escape.
3. The F.I.R. (Exh.P.B.) was recorded on the statement of Fateh Muhammad (complainant), on the basis of which the formal F.I.R. (Exh.P.B./1) was prepared by Gul Muhmmad, Head Constable. The case was investigated by Ghulam Ahmad, Inspector (P.W.12). The appellant and his co-accused (except Meeru) were arrested by the Investigating Officer on 17-12-1985. He got recovered Chhura (P.4) from the appellant on 20-12-1985, vide memo. Exh.P.K. The other Chhura (P.5) was got recovered by Hussain co-accused which was taken into possession vide memo. Exh.P.L. The post- mortem on the dead body of the deceased was conducted by Dr. Cap. Farhat Hussain. Copy of the postmortem report is Exh.P.F. The appellant and his co-accused Eisa were injured and got medically examined by the police. Copies of their medico-legal reports are Exhs.P.H. And P.I., respectively. After, completing the investigation, the accused were challaned and sent up for trial before the Sessions Judge, Dera Ghazi Khan.
4. To support its case, the prosecution relied on the oral testimony of three eye-witnesses, namely Fateh Muhammad (P.W.9), Kaura (P.W.10) and Rahim Bakhsh (P.W.11), recovery of crime weapons, the medical evidence and the evidence of motive. When examined under section 342 of the Code of Criminal Procedure, the appellant took up the plea of the exercise of right of self-defence as well as the defence of his brother Eisa accused.
5. I have gone through the evidence with the help of the learned State ! Counsel. So far as the motive is concerned, the same is not proved by any cogerit evidence. Fateh Muhammad (P.W.9) and Kaura (P.W.10) stated that they were A not present at the time when loan was allegedly advanced by the appellant to Khair Muhammad (P.W.). Fateh Muhammad complainant claims to have learnt about the loan from the deceased subsequently. His statement regarding the motive is hearsay and cannot be believed.
6. The F.I.R. In this case appears to have been recorded after some preliminary inquiry by the Investigating Officer as admitted by Fateh Muhammad (P.W.9). The complainant had sufficient time for conferring and consultation. Hence the F.I.R. Is not a reliable document.
7. The ocular evidence in the case is also not reliable. Fateh Muhammad (P.W.9) claimed that he had gone to Shah Sadar Din and returned from there after making some purchases alongwith the P.Ws. He explained that he had purchased some vegetables. The deceased had purchased a Lungi.
Rahim and Khair Muhammad had purchased oil, Gur etc. Khair Muhammad had also purchased some vegetables. Kaura (P.W.10) stated that he had purchased some chillies, salt and oil. He further stated that all the articles purchased by him had fallen at the spot. Rahim Bakhsh (P.W.11) also stated that the articles purchased by the complainant and others had fallen on the metalled road.
None of these articles was found at the spot. This fact falsifies the claim of the complainant that he and the other P.Ws. Had gone to Shah Sadar Din and returned after making purchase. The possibility that Muhammad Yaqub deceased and Khair Muhammad had purchased some commodities on credit from the shop of the appellant and that the occurrence was a sequel to the demand of price for the said commodities could not be ruled out. There seems to be no background of c enmity between the parties. Fateh Muhammad (P.W.9) stated that the parties were getting and advancing loan to each other even previously. The complainant party felt no apprehension in going towards the hotel/shop of the appellant. Probably, the complainant party made the purchases from the shop of the appellant on credit and on demand of payment of price before delivery of the articles, the dispute arose resulting in tragic death of Muhammad Yaqub and injuries to Khair Muhammad (given up P.W.), Muhammad appellant and his brother Eisa co- accused. There is yet another reason for not relying on the ocular evidence in the case. The prosecution failed to examine Khair Muhammad, an injured witness, who had allegedly received a blow at the hands of Meeru accused. According to the prosecution, he had seen the entire occurrence from the beginning till the end. The circumstances of the case demanded that he ought to have been produced by the prosecution in support of its case. Non-production of such a material witness gives rise to an inference adverse to the prosecution that had he been produced, he would not have supported the prosecution case. The view that I have taken has the support of the judgment reported as Shah Nawaz v. Lal Khan and 2 others 1972 SCMR 286.
8. It is significant to mention that two persons on the side of the accused party were injured but the F.I.R. Was totally silent about their injuries. Muhammad appellant had one incised wound 1" x 1/8" x skin deep on the palmer aspect of middle part of left middle linger. His brother Eisa had one lacerated wound x 1/8" x scalp deep on the left parietal region of the head 3-1/2" from the left ear.
Even at the trial, the prosecution made no effort at all to explain the injuries sustained by the two accused persons. The prosecution deliberately suppressed the injuries of the appellant and his brother Eisa. Probably, there were only two persons in hotel/shop, namely, Muhammad appellant and his brother Eisa. The complainant party consisted of Muhammad Yaqub deceased, Khair Muhammad and Kaura. In view of the injuries sustained by the appellant and his brother it can be presumed that when the dispute regarding payment arose, the complainant party launched the attack on the appellant and his brother first. As held in Abdul Rahman v. The State PLD 1959 Pesh.
74, if an accused is injured in a light and no explanation for injuries is offered by the prosecution, it can be presumed that the accused was injured by the deceased before receiving injuries at his hands. ' When examined under section 342 of the Cr.P.C. The I appellant replied question No,8 as under:- "On the day of occurrence I and my brother Isa were sitting in our Karyana shop and hotel, which were adjacent to each other. P.Ws. Khair Muhammad, Kaura and deceased Muhammad Yaqoob came there and asked us to give some articles on credit to them. On our refusal, they felt annoyed and insulted and abused us. In the meantime Kaura P.W., who was armed with a Sota, gave Sota blow to Isa, my brother, who fell down on the ground while Muhammad Yaqoob deceased, who was armed with a knife, assaulted me and gave injury to me. I tried to snatch the knife but failed.
Muhammad Yaqoob deceased again leaned to give second blow to me with his knife and Kaura also attacked me. I then apprehending danger to my life and in exercise of my right of self-defence and the defence of my brother Isa picked up a kitchen knife from my hotel and gave blow to Yaqoob deceased and simple injury to Kaura P.W. The other accused namely Hussian and Miroo were not present at the spot at the time of occurrence."
Even if it is doubtful as to who launched the attack first, the benefit of doubt has to go to the accused. In the present case, the defence version appears to be probable and more in accord with the facts of the case. Even if both the versions, one put forth by the prosecution and the other by the appellant are equally probable, one favorable to the accused/appellant has to be preferred. I, E therefore, hold that the appellant and his real brother were subjected to an attack by the complainant party and that he had the right to cause injuries to the aggressors in the exercise of the right of self-defence as well as the defence of his brother.
9. For the foregoing reasons the appeal is allowed, the conviction and sentence of the appellant is set side and he is acquitted of the charge against him. He shall be released forthwith from the jail, if not required in any other case.