SAJJAD AHMED SIPRA, J.- The present criminal revision petition has been directed against the judgment dated 3.4.1990, whereby the learned Sessions Judge, Gujranwala, acquitted respondent No.2 of the charge under Section 302 PPC.
2. The facts of the case, in brief, are that the petitioner, Muhammad Khalil PW.7, had lodged FIR Exh.PD on 29.5.1988 at Police Station Saddar Kamoke, District Gujranwala, alleging therein that on 28.5.1988 his brother Mushtaq Ahmad deceased, who was dealing in cloth along with Shahbaz accused/respondent No.2 and also used to work as Manager at the Toll Tax of M. Nazir Inayat Ullah Transport G.T. Road, Kamoke during the day hours and used to provide money to the accused, came to his shop. Shahbaz accused/respondent No.2 also came there. His brother, Mushtaq Ahmad deceased, asked the accused/respondent No.2 to return the investment along with profit, as he did not want to continue in partnership, whereupon they had exchange of hot words, but were separated by the complainant and Muhammad Iqbal PW and the accused left with the threat of evening himself of the insult caused. On the next day, fide. 29.5.1988 the complainant along with Muhammad Azam PW.8 had gone to see his brother, Mushtaq Ahmad deceased, at the Toll Tax where he was sitting on a court without a shirt due to hot weather, with whom they also sat and started talking. All of a sudden, Shahbaz accused/respondent No.2 appeared; raised lalkara that he would go only after avenging himself; fired two shots with his pistol, first hitting on the mouth of Mushtaq Ahmad deceased and the second in his chest; and ran away from the spot. Due to the injuries, Mushtaq Ahmad died on the spot. Since they were empty handed, they could not apprehend the accused. The occurrence was witnessed by Muhammad Azam PW.8 and Muhammad Iqbal PW (not produced) besides the petitioner PW.7.
3. To prove its case, the prosecution had produced nine witnesses in all. PW.1 Arif Hussain Draftsman had visited the spot and prepared the site plans Exh.PA and Exh.PA/1 on 31.5.1988, under the directions of the police and on pointing out of the PWs. PW.2, Abdul Ghaffar constable had received the sealed parcel containing revolved pertaining to this case on 11.6.1988 and delivered the same intact in the office of Forensic Science Laboratory, Lahore on 12.6.1988. PW.3 Muhammad Yousaf constable had escorted the dead body of Mushtaq Ahmad deceased for post mortem examination and had produced the blood stained last worn Shalwar of the deceased and a sealed phial before the Investigating Officer after receiving the same from the doctor. He had also delivered the sealed parcels containing blood-stained earth and empties in the office of Chemical Examiner and Forensic Science Laboratory Lahore on 5.6.1988 and 6.6.1988 respectively. PWA Abu Saeed AS1, being Moharrir of the Police Station, had deposed about the parcels having been kept by him in the Malkhana and their delivery to the constables fdr onward transmission to the offices of Chemical Examiner and Forensic Science Laboratory, Lahore. PW.6 Ali Ahmad was also a formal witness, who had identified the dead body of Mushtaq Ahmad deceased before the doctor at the time of post mortem examination.
4. PW.5 Dr. Muhammad Ramzan Parvez had conducted the post mortem examination on the dead body of Mushtaq Ahmad deceased on 30.5.1988 at 7.30 a.m. Which was brought to him by Muhammad Yousaf and Abdul Ghaffar constables and was identified by Haji Ali Ahmad and Haji Noor Muhammad, According to him, it was the dead body of a good built male person aged about 27/28 years, dressed in blood stained cream coloured Shalwar of mixed type. Face was pale, both eyes and mouth were closed, post mortem staining was present on dependent parts of the dead body and rigor mortis was present in both upper and lower limbs. He had found the following injuries:-
1. A wound of inlet 0.75 cm x 0.75 cm x chest cavity deep circular in shape with blackened burnt inverted margins on front and right side of chest at upper part about 4.5 cm right to the midline.
2. A wound of inlet 0.75 x 0.75 cm x going deep circular in shape with blackened inverted margins in throat with fracture (partial) of right lateral insider and right canine tooth of under jaw with injury to tonsils and pharanys.
Skull and brain was found healthy. Eight thoracic cavity was full of blood, wall injured under injury No. 1, other healthy. Right side of pleaura and right lung were found injured under injury No. 1. Heart was empty and other organs of the thorax were found healthy. Mouth, pharanynx under injury No.2, stomach healthy and full of semi digested food material with blood and cases. Small and large intestines healthy and contained faecal matter with gases. Bladder healthy and full of urine. Other organs of abdomen were found healthy.
According to him, both the injuries were ante mortem, caused with i.e arm and were grievous and dangerous to life. Death, in his opinion, had occurred due to shock and haemorrhage as a result of both the injuries, with were sufficient to cause death in the ordinary course of nature. Time between injuries and death was immediate and between death and post mortem examination about 18 hours.
5. PW.7 Muhammad Khalil, being the complainant of the case and real brother of Mushtaq Ahmad deceased, had reiterated the contents of the FIR in his statement. He had further stated that 10/11 days after the occurrence he had joined the investigation and in his presence the accused/respondent No.2 had led to the recovery of pistol Exh. P.2 from the graveyard of Farzand Ali Shah, which the police had taken into possession vide memo Exh.PE.
6. PW.8 Muhammad Azam, being an eye witness, had also deposed about the occurrence as recorded in the FIR Exh.PD and stated above. He had further stated that on the day of occurrence he had joined the investigation and that in his presence the police had taken into possession blood stained earth from the spot, vide memo Exh.PE and made it into sealed parcel. The police had also taken into possession two empties Exh. P.3/1-2, vide memo Exh.PG. He had further deposed that on 30.5.1988 in his presence the Investigating Officer had taken into possession blood stained Shalwar Exh. P.1 and phial Exh. P.4, vide memo Exh.PB, which was also witnessed by him.
7. PW.9 Javaid Aftab Sub Inspector, being the Investigating Officer, had deposed that on 29.5.1988 he had recorded the FIR Exh.PD on the statement of Muhammad Khalil complainant PW.7. He went to the spot, prepared the injury statement, Exh.PH, and inquest report Exh.PJ and despatched the dead body for post mortem examination. He had taken into possession blood stained earth vide memo Exh.PF and empties Exh. P.3/1-2 vide nemd Exh.PG. He had further deposed that on 30.5.1988 he had taken into possession the blood stained Shalwar of the deceased Exh. P.1 and a sealed phial\^ Exh. P.4. He had arrested the accused/respondent No.2 on 7.6.1988, who, on 10.6.1988 had led to the recovery of revolver Exh. P.2, which was taken into possession vide memo Exh.PE. After the investigation, he had challaned the accused.
8. In his statement under Section 342 Cr.P.C, the accused/respondent No.2 had denied the allegations levelled against him. He, however, had stated that the deceased was fired at during the course of resistance, when the deceased was threatening him on pistol point and was asking him to put down his Shalwar with the intention of gratifying his unnatural lust, in a room where he was called by the deceased himself.
9. The learned trial Court, after taking into consideration all the evidence on the record, had acquitted respondent No.2 by extending him the benefit of doubt vide the impugned judgment, as stated above.
10. The learned counsel for the parties were heard at length and the record of the case was perused with their assistance. The learned counsel for the petitioner argued that there was sufficient material on the record to support the case as ocular evidence, furnished by eye witnesses, PW.7 Khalil and PW.8 Azam, and that the evidence in respect of motive, recovery of the crime weapon and the medical evidence was sufficient to warrant the conviction of respondent No.2. In the alternative, argued that even if the defence plea was to be accepted, no clean acquittal of respondent No.2 was made out. To support his contentions, the learned counsel read out at length from the evidence on record.
11. However, after having heard the learned counsel for the petitioner at length, it is hereby held that no case for interference with the impugned judgment of acquittal is made out. In this respect, it may be pointed out that the learned trial Court was in the best position to appraise the evidence, taking into consideration the tenor of the testimony and the demeanour of the witnesses.
Furthermore, the findings of the learned trial, Court duly supported by the record, in respect of the motive not having been proved, as no witness was produced to establish that there was business partnership between the deceased and the accused/respondent No.2 that had led to the earlier altercation between them; or in respect of the observation of not placing reliance upon the recovery of pistol P.2 alleged to have taken place on the behest of respondent No.2; or in respect of the infirmities in the prosecution evidence to the effect that neither the blood stained cot nor the earth below it had been taken into possession by the police; or the omission of the prosecution to prepare of produce the site plan of the place of the alleged recovery of pistol P.2; or the contradiction in the evidence to the effect that whereas it had been alleged that the accused/respondent No.2 had fired from the revolver but the recovery effected was that of 32 bore pistol; or the reasons stated by the learned trial Court for not believing the presence of the alleged eye witnesses, i.e PW.7 and PW.8, on the spot, are very plausible and could lead to only one conclusion that the prosecution had failed to bring the guilt home to the accused/respondent No.2 beyond reasonable doubt. Therefore, the said conclusion of the learned trial Court, not being either arbitrary or capricious, cannot be interfered with.
12. As regards the contention that as the accused/respondent No.2 had admitted in his statement under Section 342 Cr.P.C, that the deceased Mushtaq Ahmad had died at his hands, therefore, no case of clean acquittal is made out, it may be pointed out that it is not supported by the relevant law applicable to the facts and circumstances of the present case. In this respect, it may be pointed out that the statement of the accused/respondent No.2 has to be taken into consideration in its entirety, and as in the present case, the accused/respondent No.2 had stated that he had fired at the deceased after having caught hold of the pistol whereby the said deceased had been threatening him with the intention of gratifying his unnatural lust by trying to subject him to the act of sodomy; and that, therefore, the right of private defence of the accused/respondent No.2 under such circumstances could extend to causing death in accordance with the fourthly description stated in the provisions of Section 100 PPC, which is to the effect that the right of private defence of the body. Qxtends to causing death, if the offence which occasions the exercise of right of defence is due to an assault with the intention of gratifying unnatural lust. Therefore, it is hereby held that the learned trial Court had committed no illegality in extending the right of self-defence to the accused/respondent No.2 under such facts and circumstances, and consequently acquitting him of the capital offence by extending him the benefit of the said provisions Of* law. Therefore, for the reasons stated above, no case is made out for interference with the acquittal of the accused/respondent No.2 and as such the present criminal revision petition merits to be dismissed. In this respect, further strength is sought by placing reliance on the dictum laid down in Ghulam Sikandar and another vs. Mamaraz Khan and others (PLD 1985 S.C.LI), wherein it was held that "no interference with an order of acquittal will take place even if a different reasonable conclusion is possible on the basis of the evidence on the record and that the finding of acquittal can only be interfered with if it is found wholly artificial, shocking and ridiculous, or it is such a conclusion which no reasonable person would conceivably arrive at.
It may be pointed out that the same principle, as stated above, has been reiterated by the Honourable Supreme Court in Yar Muhammad and 3 others vs. The State (1992 S.C.M.R. 96)
13. Pursuant to the above discussion, the present criminal revision petition, being devoid of merits, is hereby dismissed.