' This criminal revision petition has been filed by one Nazir complainant, against the order of learned Sessions Judge, D.I. Khan, dated 2-3-1985 acquitting Ahmed Nawaz son of Muhammad Khan and his sons, Rab Nawaz, Muhammad Hussain and Shah Nawaz for having murdered in furtherance of their common intention one Khadim Hussain on 15-2-1983 at Pashinwaila' in the area of village Kachi Paind Khan, District D.I. Khan.
2. The facts as alleged by the prosecution in substance are that on the day of occurrence at Pashinwaila' Nazir petitioner (P.W.7) was grazing his cattle as usual in the lands of Haq Nawaz when Khadim Hussain his cousin came there by a cycle duly loaded with green fodder (Barseen). In the meantime. Rab Nawaz reached the spot and fell upon the deceased. Rab Nawaz struck blows with an axe while his brothers Shah Nawaz and Muhammad Hussain belaboured him with sticks.
Khadim Hussain sustained injuries on his head, under the ear and other parts of body and fell unconscious on the ground. Chairman Ahmed Nawaz (P.W.9) reached the spot and had witnessed the occurrence. Ahmad Nawaz father of the three accused was assigned a role of a bystander duly armed with a shotgun in the jungle. The motive as set up in the F.I.R. Is an earlier quarrel between the parties which had not been reported to the police. The report of the occurrence Exh.PA/1 was taken down by Allah Bakhsh, A.S.I. (P.W.11) then attached to Police Station D.I. Khan at the behest of Nazir (P.W.7) when the former was on Gushe and it came across the complainant party alongwith Khadim Hussain then in injured condition near Darya Khan Bridge on its eastern side. After completion of initial formalities of preparing injury sheet Exh.P.D. Of Khadim Hussain and sending him under the escort of F.C. Abdul Qayyum to the D.H.Q. Hospital, D.I. Khan for treatment, Allah Bakhsh A.S.I. Set out for the spot. On the way near the second bridge he also recorded the report of Rab Nawaz accused-respondent who was then in injured condition and sent the Murasila' to the police station after preparing his injury sheet and sending him to the same hospital for treatment.
During the spot inspection he collected bloodstained earth, took into possession a cycle P.1 and secured them vide memo. Exh.P.W. Lastly he prepared the site plan Exh.P.K. He arrested accused Rab Nawaz, the same day. Accused Ahmed Nawaz, Shah Nawaz and Muhammad Hussain were arrested on the following day of the occurrence i,e, 16-2-1983. During the house search of the accused, axe P.4 and Danda P.5 were recovered vide memo. Exh.P.G. From the `Kotha' of the Shah Nawaz. He also took into possession vide memo. Exh.P.W., S.N. Shotgun P.6 alongwith a copy of licence P.7 from another house of accused Ahmad Hussain in Kachi Paind Khan. He further secured a Danda from the house of Muhammad Hussain accused vide memo. Exh.P.J. After completion of the investigation all the four accused were sent up to stand trial under section 302/34, P.P.C.
3. Doctor Ghulam Hussain (P.W.8) had examined Khadim Hussain aged 28 years in injured condition on 15-2-1983 at 5-30 p.m. And found the following injuries on his person:--
(1) One incised wound through and through on right ear size 1 x 1/4" x skin and cartilage deep.
(2) One incised wound on back of right ear size 1/2" x 1/4" skin and muscle deep.
(3) One incised wound on occipital area size 1/2" x 1/4" scalp deep.
(4) On incised wound on occipital area left side size 1/2" x 1/4" scalp deep.
(5) One incised wound on right parietal area size 2" x 1/4" scalp deep.
(6) One incised wound on right parietal area size 1" x 1/4" x scalp deep.
(7) One incised wound on left parietal area size 1" x 1/4" x scalp deep.
(8) One incised wound on left parietal area size 1/2" x 1/4" x scalp deep.
(9) One oblique contusion on right lateral side of chest.
(10) One contusion on back of right shoulder.
(11) One contusion on back of chest left side.
(12) One contusion on top of left shoulder.
4. The same doctor had also examined Rab Nawaz accused-respondent in injured condition and had found on his person one incised wound on left temporal area size 1/2" x 1/4" x scalp deep, three punctured wounds on the right temporal area on the back left shoulder and on the front of abdomen.
5. After the death of Khadim Hussain the autopsy on the dead body was conducted on 18-2-1983 at 11-45 a.m. And the same doctor found almost the same stiched wounds.
6. At the trial the prosecution examined as many as 11 witnesses in all. The prosecution relied on the ocular testimony furnished by Nazir (P.W.7), Ahmed Nawaz (P.W.11), the evidence of motive, the medical evidence furnished by Doctor Ghulam Hussain and the statement of accused Rab Nawaz recorded under section 342, Cr.P.C.
7. When examined under section 342, Cr.P.C. Muhammad Hussain, Shah Nawaz and their father Ahmed Nawaz, accused-respondents, denied the prosecution allegations entirely and pleaded innocence. Rab Nawaz accused-respondent, however, when asked to explain the injuries on his person maintained that he has received those injuries at the hands of Khadim Hussain deceased and Nazir (P.W.7). When asked as to what was his statement and why had he been charged, this is what he stated in reply.
"On the day of alleged occurrence at about Peshin time I was coming back from my fields, having done Zamindarah work there, towards my house. I had a small Wohola with me at that time with which I had uprooted the skygrass and the bushes of reeds from my fields, which are situated in the river bed, which is known as Kacha and contains the jungle of reeds (Orunder etc.). We have no tractor and to prepare our lands for sowing some crop, we have to first remove the bushes and uproot them with Wohola, because we have no tractor of our own. When the bushes are uprooted, they remain lying in the fields and after that get dry, they are burnt and threafter, the fields are ploughed and prepared for sowing. When I reached near village Janmi Captain, I saw accused Nazir armed with Danda and the deceased Khadim Hussain armed with Kahi present there, who had ambushed me. Both of them fell upon me and started giving me blows with their respective weapons. I was seriously injured and was trying toward off the blows of the accused, but to no effect. I apprehended further aggression at their hands, who were bent upon to take my life. Seeing the death, so close to me, I gave same Wohola blows to Khadim Hussain, who was armed with more lethal weapons, who had attacked me from my front and who was giving me successive blows and this was done by me in the exercise of my private defence, else I would have been done to death then and there. The deceased might have received some injuries in the transaction. The deceased was suspecting my brother for having illicit liaison with the women folk of Khadim Hussain deceased and having once entered in his house, prior to the occurrence. They could not get the opportunity to avenge from my brother and instead made me the target. I was all alone at the time. I am innocent and have falsely been charged. Deceased and the accused were the aggressors. I had acted in self-defence?'
8. Undoubtedly two cross-cases were registered vide F.I.Rs, Nos. 28 and 29 dated 15-2-1983 in Police Station Saddar D.I. Khan. In the instant case Khadim Hussain, deceased lost his life while in the cross-case registered vide F.I.R. No, 29 Rab Nawaz sustained as many as four injuries.
9. The learned trial Judge after giving a resume of the evidence of the prosecution witnesses observed in para. 12 of his judgment that 'the perusal of the prosecution evidence would show that the prosecution has miserably failed to bring home guilt to the accused beyond any shadow of doubt because the presence of P.W. Ahmad Nawaz is highly doubtful'. After discussing evidence of Nazir in piece-meal, the learned trial Judge acquitted the accused-respondents.
10. S. Zafar Abbas Zaidi, the learned counsel for the petitioner, contended that the judgment of the learned trial Judge is highly perfunctory and has been recorded in a slipshod manner and, therefore, the case warranted to be remanded to the Sessions Court for retrial. He also argued that the occurrence is admitted even by the defence and that the question falling for determination was as to whether the four accused had participated in the occurrence in the manner furnished by the prosecution or else the occurrence had taken place in the circumstances described in F.I.R.
Exh.PA./2 and further admitted by Rab Nawaz accused in his statement under section 342, Cr.P.C.
Wherein the right of self-defence was claimed to have been exercised by him. According to him the learned Sessions Judge has not adverted at all to this aspect of the case. The learned counsel also urged that the learned Sessions Judge has fallen into an error to doubt the presence of Nazir (P.W.7) at the spot when Rab Nawaz accused-respondent has himself admitted his presence at the spot. The learned counsel argued that the testimony of Nazir (P.W.7) could not be discarded because his presence at the spot was not only admitted but he was a daily comer to the spot for grazing his cattle and also that nursed no grudge of his own against the accused-respondent.
11. Muhammad Karim Anjum Qusuria, the learned counsel for the accused-respondent vehemently argued that the learned trial Court having found the case of the prosecution highly doubtful was left with the version of the incident furnished by Rab Nawaz accused which was although not specifically discussed by it, had heavily weighted with it and had thereby extended the benefit of right of private defence of the person to Rab Nawaz accused-respondent. The learned counsel concedes that the learned trial Judge has not adverted to this aspect of the case nonetheless this Court would not be debarred to evaluate and appraise the version of the accused and if found to be correct the accused-respondent would be entitled to the benefit of right of private defence of his person.
12. It is a pity that the learned trial Judge has not been able to write a judgment in accordance with the requirements laid down in section 367 of the Code of Criminal Procedure 1898 (Act V of 1898).
Undoubtedly no particular form of judgment has been prescribed. Nonetheless section 367 requires in unmistakeable terms that every judgment must contain among other things the point or points for determination, the decision thereon; and the reasons for the decision. The Court is under an obligation to consider the case of both the parties side by side in all its bearings, and should on such consideration arrive at definite conclusion after considering the evidence in the case. Therefore, after stating the prosecution case and mentioning the plea of the accused the points for consideration should be formulated and the evidence under each of the points should be analysed and discussed before taking a decision on that point. The judgment of the learned trial Judge as stated earlier, certainly falls short of these legal requirements. Nonetheless merely on this ground this revision cannot be entertained because it would be very hard on the accused- respondent to undergo the rigours of retrial for no fault of both the parties side by side in all its bearings. The following points fall for determination:--
(1) Whether Khadim Hussain (deceased) sustained fatal injuries on his person as stated by the prosecution?
(2) Whether Rab Nawaz accused-respondent has received injuries on his person at the hands of the deceased and Nazir (P.W.7) and therefore, was entitled to the right of private defence of his person?
(3) If point No,2 is found in the affirmative, whether Rab Nawaz accused has or has not exercised the right of self-defence?
13. The case of the prosecution as set up in the F.I.R. Exh.PA. Is one of complete silence on the point as to whether Rab Nawaz accused-respondent had or had not sustained injuries on his person in the course of the incident. In his cross-examination Nazir (P.W.7) however, maintained that Rab Nawaz accused had not been injured at the time of occurrence and attempted to explain that he might have sustained these injuries subsequently. In the next breath he is definite that his other cousins Jilani, Fanu and other villagers had injured Rab Nawaz accused. From the answers to the cross-examination it can be inferred that Nazir (P.W.7) had initially suppressed the injuries sustained by accused Rab Nawaz and inference is irresistable that this supression was deliberate in order to rope in the entire family of Rab Nawaz accused. The learned trial Judge was, therefore, justified to have disbelieved the version of the prosecution furnished by Nazir (P.W.7) who had improved upon his evidence not on one but on many points.
Nazir being the real cousin of the deceased was highly interested particularly when he has also been charged by Rab Nawaz accused for launching attack on him in furtherance of common intention with Khadim Hussain (deceased). The manner in which the occurrence is stated to have taken place does not ring true. The version of Nazir (P.W.7) that he was grazing the cattle cannot be accepted because the grass on his own admission was burnt. Obviously he could not graze the cattle in ashes.
14. Ahmed Nawaz (P.W.9) is another star witness of the prosecution. His claim of being present at the spot at the time of occurrence is belied by the circumstances of the case. According to Nazir (P.W.7) Ahmed Nawaz (P.W.9) was attracted to the spot in his presence. From this it follows that Nazir (P.W.7) was present while grazing the cattle at the spot when the accused party launched attack upon the deceased and therefore, P.W. Ahmed Nawaz was attracted to the spot who also witnessed the occurrence. P.W. Ahmed Nawaz, on the other hand deposed that after emerging from two directions the three accused fell upon the deceased and in the meantime Nazir (P.W.7) also arrived there. His village Obechar upon his own admission lies first while going to village Mohans. Consequently his reaching the spot through village Mohans is obviously not believable. He further maintained in his cross-examination that he had accompanied Khadim Hussain in injured condition when he was taken on a cot towards D.I. Khan and that enroute the police party came across them and that the report of occurrence was lodged by P.W. Nazir in his presence. This assertion of P.W. Ahmed Nawaz is belied by the evidence of Allah Bakhsh (P.W.11) who had stated that P.W. Ahmad Nawaz had met him for the first time on the spot. Allah Bakhsh had reached the spot after recording the report Exh.PA./1 at the behest of Nazir (P.W.7). He is also contradicted by Nazir (P.W.7) who was positive that P.W. Ahmed Nawaz, Chairman was present with Khadim Hussain when he (P.W.) Nazir was present with the injured. This and host of other circumstances go a long way to refute the claim of Ahmed Nawaz (P.W.) that he was present at the spot and had witnessed the occurrence.
15. Reverting to the motive part of the prosecution evidence, it may be observed that although in the F.I.R. There is no detail of the earlier skirmish between the parties, it was elaborated by P.W. Nazir in the evidence saying that some two days prior to the occurrence Raza Khan brother of Rab Nawaz and accused had trespassed into the house of the deceased and thereby intruded into his privacy due to which the deceased had slapped Raza Khan. How this motive even if it is conceded would furnish a grievance to the deceased party more than the accused. In any case, on this motive at worst Raza Khan or the deceased could have nursed a grudge and not the accused- respondent herein.
16. In these circumstances where the star witness of prosecution namely Nazir petitioner is proved to have furnished only one added version of the B occurrence and the presence of Ahmed Nawaz (P.W.9) is proved to be doubtful, the prosecution case is rendered doubtful.
17. The defence version of the incident as given by Rab Nawaz accused was that he was attacked and injured by Khadim Hussain (deceased) who was armed c with a 'Kalil' while Nazir (P,W.7) was giving him stick blows due to which he was seriously injured. He further stated that he apprehended further aggression at their hands who were out to take his life, and therefore, he gave some `Vohola' blows to Khadim Hussain who in turn was armed with more dangerous lethal weapon and was launching attack from front side.
18. Obviously we are left with the version of the defence that Rab Nawaz accused-respondent had received injuries on his person at the hands of the deceased and Nazir (P.W.7) and that therefore, he was entitled to the right of defence. Section 97, P.P.C. Envisage that a person has a right to defend his own person as well as person of others.
19. Be that as it may, where there are two versions before the trial Judge as to the occurrence of this nature, one by the prosecution and other by the defence and where the prosecution version does not ring true while the possibility of the defence version apparently appearing to be true, the accused are entitled to acquital. In Ahmad Din v. Faiz Ahmed 1972 SCMR 549 their Lordships of the Supreme Court observed:- "This fact and the attempt by the prosecution to suppress the injury caused to Hashim and the further fact that the motive lay with the complainant party to make the attack, very strongly support the High Court's view that the defence version is possibly true. In this view of the matter, the benefit of doubt was rightly extended to the respondents."
20. Again in Shams v. The State PLD 1983 Pesh. 48 it was held as under:- "It is well-settled that a man acting under apprehension of death or grievous hurt cannot be expected to judge too nicely the situation and modulate his defence, as observed above, step by step. When a right of private defence is set up the question to be determined is not whether there was an actually continuing danger but whether there was reasonable apprehension of danger. It is, not necessary that the person exercising the right could wait until he himself is attacked. If death is caused in the exercise of the right of private defence in such circumstances, it is no offence not even culpable homicide not amounting to murder and no question of application of exception II to section 300 of the Pakistan Penal Code arises. The question of applicability of that exception arises only if the alleged offender exceeded the right of private defence."
21. The injuries sustained by Rab Nawaz accused are on the vital parts of his body and at least one of them was proved to be grievous. The discharge slip Exh.P.B. Would disclose that X-ray examination revealed the fracture of right G arbit and was therefore, greivous in nature. From the facts and circumstances of the case I am, therefore, of the view that Rab Nawaz accused is not shown to have exceeded his right of self-defence.
22. The learned counsel for the petitioner had raised a preliminary objection that the appellant has not been examined as a witness under the provisions of subsection (2) of section 340, Cr.P.C. And that it was an illegality which had vitiated the trial and on this score also, the case warranted remand to the trial Court for affording an opportunity to the accused to explain his defence version.
A similar objection raised in Saeedullah v. The State 1988 P Cr. L J 19 was repelled by a Division Bench of Peshawar High Court in the following words:- "We are, therefore, of the considered opinion that the duty of Court is only to ask the accused if he would enter upon his defence and then leave it to him to elect to appear as a witness or not and there would be no irregularity or illegality if such course of action is adopted by the Court and the accused declines to give statement on oath."
23. For what has been discussed above, the charges under section 302/34, P.P.C. Fail against the respondent. Consequently this criminal revision is also dismissed. The respondent had furnished the bail bonds which in view of the criminal revision stand discharged.