1. ' WALI MUHAMMAD KHAN, J.---Muhammad Younas appellant has, through leave of the Court, called in question the order dated 5-11-1988 passed by the Lahore High Court Rawalpindi Bench, whereby his appeal against his conviction under section 302/307, P.P.C. Was partially accepted to the extent of reducing his death sentence to life imprisonment. The leave granting order is as follows:- "Admittedly, the petitioner had more than one injury on his person and one of which was grievous.
2. These injuries have not been explained by the prosecution.
3. ' In the circumstances, I think the whole case requires re-examination in order to consider whether the petitioner has been properly convicted for an offence under section 302/307, P.P.C. I would, therefore, grant leave to appeal in this case."
4. ' The prosecution story, as disclosed in the F.I.R. As well as statements of the prosecution witnesses, namely, Muhammad Idrees PW-10, Muhammad Bashir PW-11 and Sher Bahadur PW-12, is that on 6- 6-1983 at about 2.30 or 3-00 p.m. Muhammad Idrees complainant/PW-10 was going to his shop from his house and when he reached in front of the shop of the accused/appellant and his co- accused Muhammad Sharif, Abdul Qayyum (since acquitted) stood up and Muhammad Sharif accused (since dead) shouted that he would not go alive on which Muhammad Younas accused/appellant fired with a revolver hitting him on the right upper arm followed by another shot which hit him on .His left shoulder. Sher Ahmad deceased, who was President of Pedlars'
5. Association, was attracted to the scene of occurrence and he entreated the accused not to kill him and tried to rescue him when Muhammad Younas appellant also fired at him with his revolver hitting him on the left side of his abdomen. Muhammad Bashir PW-11 also arrived there and shouted as to why his maternal-uncle was murdered on which Muhammad Sharif accused gave dang blow to him hitting him on his month. Sher Bahadur PW-12 also witnessed the occurrence. The accused thereafter went to their houses and the deceased and the injured were removed to the Civil Hospital where on the arrival of police, the complainant Muhammad Idrees PW-10 reported the matter which was recorded vide Exh. PC on the basis of which a case under section 302/307, P.P.C.
6. Was duly registered vide F.I.R. Exh.PC/1. Muhammad Sadiq S.I. PW-15 after recording of the report Exh.PC of the complainant prepared the injury sheet Exh.PL and inquest report Exh.PL/1 of the deceased and sent the dead body to the mortuary for post-mortem examination. He also prepared injury sheet of Muhammad Idrees PW and referred him for medical examination. After necessary investigation in the hospital, he went to the spot and secured blood-stained earth from two places, the place where Sher Ahmad deceased had been done to death and the place where Muhammad Idrees PW-10 was:injured and sealed into 'a parcel. He also took into possession three empties Exhs.P-9, P-10 and P-11 vide memo Exh.PF and made it into a sealed parcel. -He prepared the site plan and examined the witnesses. On 19-6-1983, he arrested accused. Muhammad Sharif, Abdul Qayyum and Muhammad Younas while Muhammad Ashraf accused was arrested on 22-6- 1983. On 29-6-1983 Muhammad Younas accused/appellant while in police custody led to the recovery of revolver Exh.P-12 the weapon of offence from his residential house which was lying in a box. The same was also sealed into a parcel and taken into possession vide memo Exh.PH. The arm being unlicensed, a case under section 13/20/65, Arms Ordinance was also registered against the appellant. Muhammad Younas accused/appellant was injured and the I.O. Applied to the doctor for explaining his injuries. On the completion , of investigation, challan against the accused was submitted to the Ilaqa Magistrate who in his turn, sent up the accused for trial before the. Court of Session. The learned Additional Sessions Judge, Rawalpindi framed necessary charge-sheet against the accused, recorded the-prosecution evidence, recorded the statement of accused under section 342, Cr.P.C. And on the appraisal of the evidence on record the learned trial Court, vide its judgment dated 16-3-1985, found Muhammad Younas--accused/appellant guilty of murder of Sher Ahmad deceased, convicted him under section 302/307, P.P.C. And sentenced him to death plus fine of Rs,3,000. He was also convicted and sentenced under section 307, P.P.C. For causing the injuries to Muhammad Idrees PW-10. However, Muhammad Sharif accused had died during the pendency of the trial, accused Muhammad Ashraf and Abdul Qayyum are the real brothers of Muhammad Younas accused/appellant and as per the report of Muhammad Sadiq S.I.
7. PW-15 they were innocent. The report of the Investigating Officer coupled with the fact that no overt act was attributed to them, Muhammad Ashraf and Abdul Qayyum were extended the benefit of doubt and acquitted. The appeal filed by the convict/appellant and the murder reference were disposed of by the impugned judgment whereby the murder reference was not confirmed and by accepting the appeal of the appellant the death sentence was commuted to life imprisonment.
8. Hence the instant appeal.
9. ' We have heard Ch. Muhammad Akram, Advocate, for the appellant, Mr.M.Nawaz. Abbasi, Assistant Advocate-General, for the State and have perused the record of the case with their valuable assistance. The question for consideration as per leave granting order is that the appellant had more 'than one injury on his person one of which being grievous and having not been explained by the prosecution, whether the appellant was properly convicted for an offence under section 302/307, P.P.C. Or not. As such it is only to be considered whether the accused/appellant acted in self-defence or exceeded in the exercise of that right in view of the facts and circumstances of the case. Dr.Mehmood Khan PW-9 found an oval wound of firearm entry 1 cm x 0.5 cm on left side front of chest lower most part, 12 cm from and below left nipple at 7 o'clock position and 14 cm above umblicus at 1 o'clock position with burning of hedges of wound and skin around it caused by bullet.
10. He also examined Muhammad Idrees complainant PW-10 and found circular wound of entry 0.5 cm on the back of left upper arm, 5 cm above the posterior edge of left axilla and 6 cm below the left shoulder with burning of edges of skin around the wound. The accused/appellant was also examined by him while injured and he found right upper lateral incisor tooth broken about 2/3 and lacerated wound on inner side of upper lip corresponding to broken tooth with contused swelling of upper lip, abraded contusion on tight knee joint, abrasion on left elbow, and abrasion on back lower part of right side caused by blunt means. After keeping injury No,1 under observation the same was declared grievous. The prosecution did not explain the injuries on the person of Muhammad Younas Appellant either in the F.I.R. Or in their statements before the Court and presumably for this reason the trial Court did not put a definite question to the appellant to explain the injuiry on his person. However, .Replying to question No,10 as to why the PWs have deposed against him, he explained that the complainant party had caused him the injuries on his person and they were the aggressor and that he acted in the exercise of right of self-defence and under sudden provocation on seeing his father having been made naked by the complainant party in open bazaar on his refusal to pay Gunda Tax to them. He appeared as his own witness on oath under section 340(2), Cr.P.C. And subjected himself to lengthy cross-examination by the prosecution. He stated that on the day and time of occurrence he and his father were present in their house busy taking meals when a child walked in and informed his father that he is wanted outside whereupn his father went out while he continued taking his meal. When he came out in bazaar he found.a crowd and noticed that Bashir Ahmad, Sher Ahmad (deceased), and Muhammad Idrees PWs had thrown his father on the ground and had taken off his clothes. He tried to cover his father with a romal on which Sher Ahmad deceased inflicted soti blow to him which hit him on his knee. They were shouting people not to intervene otherwise they will face dire consequences. According to him, Bashir Ahmad P.W. Took out a pistol from his dubb and wanted to fire at him whereupon he gave a fist blow on his hand due to which the pistol fell down on the ground from his hand and that he picked up the pistol. However, he did not specifically admit having fired at the complainant party.
11. ' The learned trial Court did consider the plea of self-defence raised by the appellant but declined to give him its benefit on the ground that he failed to produce his father in defence, that he remained absconder from the date of occurrence till 19-6-1983, and that he got himself medically examined though, on the following day, but through private sources and not through the police.
12. The learned High Court, however, favourably considered it but only for the reduction of capital punishment. It is admitted in the High Court judgment that the occurrence took place in front of the shop and house of the accused where the complainant party had no apparent business and this circumstance alone convinced the High Court to conclude that the occcurrence had not happened in the manner alleged by the prosecution. It was also mentioned in the impugned judgment that according to the site plan, the complainant party could go through a different route leading to their houses and the selecting of the path in question was to annoy the appellant. It was further conceded that the conduct of Sher Ahmad deceased was not above board because he might have joined hands with the complainant party. The co-accused of the appellant though they were given specific roles as well were found innocent and acquitted of the charges.
13. ' The overall reasoning and conclusions of the lower two forums lead the conclusion that they were not definite about the origin of the incident. There are two versions of the occurrence one alleged by the prosecution and the other advanced by the appellant raising the plea of self-defence. It is by now well-established that in a situation like the one in hand, both the versions have to be kept in juxtaposition and the one favourable to the defence is to be preferred to, if it gets some support from the admitted facts and circumstances of the case and appeals to common sense. It was held by this Court in case Khalid Javed v. Anwar Khan (1987 SCM R 1043) as follows:-- "In view of the above findings of the learned High Court Judges, we may add that it is the prosecution case that the deceased was chased by the three accused and he ultimately, when cornered, used his Danda against Gustasab. The possibility, therefore, cannot be excluded that Ejaz Mehmood deceased who had a Danda with him, used it against Gustasab when he found him near the scene of occurrence and on Gustasab's cries for help, the accused/respondent Anwar Khan came out and fired at the deceased. In such a case Anwar Khan, accused would be entitled to the right of private defence of the person of Gustasab acquitted/accused, and such plea can be gathered from the facts of the case."
14. ' In the case of Mashal Khan v. The State (PLD 1985 S.C. 25) it was observed by this Court that in a state of panic when the right of self-defence is being exercised, the action on the part of the person cannot be measured in golden scales and that. This principle had been reiterated by this Court on numerous occasions. In the case of Muhammad v. The State (1988 SCM R 662) the appellant in the said case was sentenced under section 304, Part II, P.P.C. Which had been reduced to section 325, P.P.C. By the High Court, this Court opined that he genuinely felt apprehensive regarding the safety of his person and gave a fist blow to the deceased in that case in self- defence and therefore his conviction even under section 325, P.P.C. Was not justified and extending him benefit of right of private defence acquitted him.
15. In the case in hand the occurrence admittedly took place in front of the house' or the accused where the complainant party had no business to be there as held by the High Court in the impugned judgment. This by itself corroborates the version of the appellant that it was they who initiated the occurrence by calling his father from his house. The prosecution had failed to produce any independent witness in support of their version though according to them the occurrence took place in the bazar where many pedlars and shopkeepers were present at the time of the occurrence. The prosecution witnesses suppressed material fact of the accused/appellant having received grievous injuries during the course of the said transaction which was proved from the statement of Dr. Mehmood Khan PW-9 coupled with the statement of the appellant on oath that he received his injuries at the hands of the complainant party. The deposition of the appellant on oath that he came out of the house after his father and saw him lying naked on the ground surrounded by the complainant party and crowd, thoUgh belated, creates reasonable apprehension in ones mind that the complainant party had come there to disgrace him either for refusing to pay Gunda Tax as alleged by the appellant or for any other hidden cause. The acquittal of the co-accused negates their presence at the spot and the appellant having seen his father in that state was obviously to get gravely and suddenly provoked to the extent of losing of self-control. In such a situation and having been attacked by the complainant party as well resulting in grievous hurt to him, he was fully entitled to the benefit of provisions of self-defence entitling him to acquittal.
16. For the reasons stated above, we are convinced that the accused acted in self-defence and the defence of his father. We allow him the said benefit and by accepting the appeal acquit him of the charge. He shall be released forthwith if not required in any other case.