' Amir (aged 25 years) and Talib Hussain alias Hussain (22 years) were tried for the murder of Bail and for attempt on life of Muhammad Yar and Ahmed Khan P. Ws. Mr. Ljaz Nisar, Sessions Judge, Sargodha convicted Amir alone under section 302, P. P. C., and sentenced him to transportation for life and a fine of Rs, 2,000 or in default to further undergone year's rigorous imprisonment, vita his judgment passed on 26-11-1971. Amir was also convicted under \ section 307, P. P. C., by the same judgment for making murderous assault on Muhammad Yar and Ahmad Khan P. Ws. And was sentenced to three years' R. I. Both the sentences were ordered to run concurrently. Talib Hussain alias Hussaina was acquitted. The convict has come up in appeal.
2. Briefly, the prosecution case as disclosed in the F. I. R., is that on 1e-6-1969 at about chhahweia Fattu (C. W. 1) was taking his bullock cart loaded with branches of shisham tree on the service road of rajbah Ghukyani in the area of mauza Ghukyani, District Sargodha. The branches. Of the shisham tree belonged to Atnir appellant who along with the acquitted accused, Talib Hussain alias Hussaina was accompanying the cart. The branches loaded on the cart were hanging out. It is alleged that when the cart passed near the field of the complainant party the branches hanging from the cart caused damage to the cotton crop of the complainant Tarty for some distance.
Bakhsha P. W. Father of Muhammad Yar complainant asked Fattu (C. W. 1) not to take his cart on that route but appellant addressed Bakhsha in hot words that he will take the cart on that route.
The alarm so raised attracted Muhammad Yar complainant who on reaching there told the appellant that they would not permit the cart to pass on that route. Upon that the appellant took out a pistol from bis loin-cloth and fired 4/5 shots on Muhammad Yar complainant which hit him on the left shoulder, right thigh and private part due to which the complainant fell down but again stood up. In the meantime his brother Bati (deceased) arrived there and the appellant fired on Bad.
Wbo on being hit on the abdomen fell down. Thereafter, Ahmed Khan, nephew in second degree of the complainant, who was washing his hands at the rajbah reached there to rescue the complainant party, upon whom appellant also fired a shot which hit Ahmed Khan on left arm. Umra P. W. And Dost Muhammad (not examined) reached the spot in the meantime and on the lalkara raised by them the appellant along with his co-accused, Talib Hussain, went away towards the abadi. Many other persons reached thereafter. Muhammad Yar complainant, Bati (deceased) in injured condition and Ahmad Khan P. W. All these in injured condition, were carried on a truck to the Civil Hospital, Bhalwal where they were medically examined. Cihulam Muhammad (P. W. 20), Sub- Inspctor Police of Police Station, Bhera concerned, happened to be available in Bhalwal in connection with his evidence in Court and came to know of arrival of the injured persons in the Hospital. He visited the Civil Hospital, Bhalwal where he recorded the statement (Exh. P. A.) of Muhammad Yar complainant at 10 a. m. And sent it to the Police Station Bhera upon which formal F.
I. R., was registered at 10-30 a. In. The same day. He also collected the medico legal reports of all the three persons from the complainant in the hospital. Dr. Muhammad Anwar who had medically examined the injured, produced before the Investigating Officer blood-stained dhoti (Exh. P. 7) of Muhammad Yar complainant which was secured vide memo Exh. P. M.
1. He recorded the statements under section 161, Cr. P. C., of the injured including that of Bati deceased which later became his dying declaration (Exh. P. R.) after his death. The investigating Officer then proceeded to the spot where he reached at 4 p. m. The same day, after covering six miles from Bhalwal. At the spot Bakhsha P. W. Produced before him eleven empty-cartridges (Exh.
P. 1/11) which he secured vide memo. Lxh. P. B. He also took into possession bloodstained earth from the cotton crop 'held of Muhammad Hayat near Canal Service Road of Ghukyani minor vide memo Exh. P. C. On 17.6-1969 Fattu (C. W.) produced before him bullock cart and two bullocks which he secured vide memo Exh. P. G. He arrested the appellant on 18-6-1969 when he was produced at the police station by his maternal uncle, Ali. At the time of arrest the appellant produced his revolver (Exh. P. 6) before the Investigating Officer who secured it vide memo Exh. P. L. On 19-6-1969 P. W.
Ghulam Haider Foot Constable brought to him from doctor a sealed phial containing a lead of bullet taken out of the person of Muhammad Yar complainant which was secured vide memo Exh.
P. D. He got prepared the site plan and challaned the appellant and his acquitted co-accused.
' Nasir Ahmed Inspector (P. W. 4) partly investigated this case. He arrested Talil Hussain alias Hussaina, acquitted accused on 29-6-1969. The case was also partly investigated by Asmat Ullah S. I. (P. W. 5). On 3-7-1969, the acquitted accused got recovered hatchet (Exh. P/ 2) from the house of the appellant which was secured by Asmat Ullah P. W. Vide memo Exh. P. C./1.
' Muhammad Sarwar Baig (P. W. 14) who was then posted as Sub-Inspector at Police Station, City Sargodha also partly investigated this case. On 25-6-1969 on receipt of a ruqqa (Exh. P.H) from the District Headquarters Hospital, Sargodha, informing him the death of Bati deceased he went to the Hospital where he prepared injuries statement, inquest report and despatched the dead body for autopsy. On 26-6-1969 P. W. Muhammad lqbal, F. C. Brought last worn clothes of the deceased, a sealed phial containing bloodstained earth and another sealed phial containing lead taken out of the dead body which he secured vide memo. Exh. P. E.
3. At the trial Muhammad Ashraf (P. W. 11) who was Dispenser in Civil Hospital, Bhalwal brought the relevant original medico legal register of the hospital and proved the medico legal rep9rts of Bati deceased in injured condition, Ahmed Khan P. W. And P. W. Muhammad Yar complainant. He deposed that all the three medico legal reports were in the hand of and were signed by Doctor Anwar Chaudhry who had gone to Saudi Arabia whose address was not known and there was no prospects of his early return.
' The medico legal report Exh. P. B, was of Bati deceased according to which Doctor Anwar Chaudhry medically examined him in the hospital on 16-6-1969 at 9-45 a.m. And found one injury on his person. It was a fire-arm wound of entry of right side of amen 2' from umblicus x 1/6" x 1/2" with sloughing 2" x around the wound. Chadar and shirt were blood-stained but no corresponding injury was seen on it. The injury was kept under observation.
' According to the medico legal report (Exh. P. Q.) the same Doctor medically examined Muhammad Yar complainant P. W. On the same day at 10-15 a. m. And found the following three injuries on his person :--
(1) Fire-arm wound front of left arm 1/4'x 1/4"x 11" with edges charred.
(2) Fire-arm wound of entry back side of penis 1/4" x 1/6" with wound of exit 1/4" x 1/4" on the right side of back of penis.
(3) Fire-arm wound of entry 1/4' x 1/4' front and inner side of right of right thigh depth could not be known exactly.
' All the injuries were kept under observation.
' The medico legal report Exh. P. Q. Relates to Ahmad Khan P. W. Who was medically examined by the same Doctor on the same day at 10 a. m. And was found to have suffered one simple injury. It was a fire-pm wound of entry on back of left elbow 1/4" x 1/6" with wound of exit on the back of the arm 1/4" x 1/4".
4. Dr. Ashfaq Ahmad (P. W. 1) was examined by the committing Magistrate and his statement was transferred to the Sessions record. He deposed that he conducted post-mortem examination on the dead body of Bati deceased, on 26-6-1969 at 8 a.m. And found the following- three injuries on it :-
(1) Stitched wound r long on the right side of midline of abdomen. The umblicus was in the upper region.
(2) Stitched wound 1" long on the -right side of hbdomen " away from injury No, 1.
(3) Contused and abraded area 1" x 11- on the back of sacral region (bedsore).
' He removed a bullet from the muscle of the left abdominal wall near iliac spine. In his opinion death resulted from toxemia caused by peritonitis which was due to sloughing of patches of intestine resulting from injuries of the intestine and mesentery which was sufficient to cause death in the natural course of events. The probable time that elapsed between the injuries and death was estimated to be about 10 days (between peritonitis toxaemia and death 4 to 5 days) and that between death and post-mortem was without i2 to 15 hours. In cross-examination, the doctor deposed that injuries Nos. 1 and 2 were stitched and appeared to be due to operation and he could not say which of these was the original injury which was freshened and repaired at the time of operation. It was probable that injury No, 2 could be the repaired original injury. The stitching of the intestine was the repair of the injury done by the Surgical Unit. The leakage of foul smelling fluid and sloughing of the gangeraneous piece occurred after operation because if these had been in the beginning the Surgeon would have repaired or removed it.
5. At the trial prosecution examined 20 witnesses in all including Muhammad Ashraf, Dispenser (P.
W. 11) and Doctor Ashraf Ahmad (P. W. 1) whose statement before the committing Magistrate was transferred to the Sessions record. The eye-witness account was given by Muhammad Yar, complainant (P. W. 13), his father Bakhsha (P. W. 16), his relation Ahmad (Khan P. W. 17) and Umra (P.
W. 19) who supported the prosecution case while Fattu (C. W. 1) who was given up by the prosecution and was examined as a Court witness supported the' defence version. The recoveries of blood-stained earth from the spot and 11 crime empties which were picked up from the spot were proved by Ahmad Khan (P. W. 15), same Bakhsha (P. W. 16) and the Investigating Officer, Ghulam Muhammad S. I. (P. W. 20). The recovery of revolver (Exh. P. 6) from the appellant was proved by Asmat Ullah A. S. I. (P. W. 5), Muhammad Afzal A. S.
1. (P. W. 3) and the Investigating Officer (P. W. 20). The same Investigating Officer, Ghulam Muhammad (P. W. 20) also proved the statement of deceased under section 161, Cr. P. C. (Exh. P. 4) which was converted into dying declaration after his death. Other recoveries were also proved and formal witnesses were also examined. Gul Sher Malik (P. W. 18) who was then Fire-arm Expert in the Forensic Science Laboratory pro'ved his positive report (Exh. P. W. 17/B) and deposed that 11 crime empties (Exh. P. 1/1-11) had been fired from the revolver (Exh. P. 6) of the appellant and that the bullet leads contained in sealed phial were of '32 bore. They all supported the prosecution case.
6. The appellant and the acquitted accused pleaded not guilty to the charge. When examined under section 342, Cr. P. C., the appellant (Jollied recovery of revolver at his instance and gave his defence version which was to the effect that the complainant party including the deceased in fact attacked the appellant who caused them injuries from the pistol in exercise of his right of self- defence and also stated that a long-standing enmity existed between him and the complainant party who wanted to kill the appellant also on account of their suspicion of illicit relations of the appellant with daughter of Bati deceased. His defence plea in answers to questions Nos. 11 and 12 is reproduced below :- ' Answer to question No, 111 ' On the day of occurrence I was taking the branches of sheesham tree on a gudda owned by Fatta C. W. Hussaina my co-accused was also with him. The cart was driven by Fatta C. W. When we came on the serviceroad some of the branches fell on the road due to the uneven surra6e of the road near the corner of its turning. We picked up the branches and put them on the cart and started for the village. When we reached in front of the dera of Bakhsha P. W. 1, I saw him coming from his dera with a tumbler in his hand. On seeing me, he started abusing me. I went on the bank of the rajbah and Bakhsha P. W. Also reached there. He hurled his tumbler on me but to did not strike me. Thereafter he caught hold of me and shouted to his sons. Soon after Yara P. W. Came out of the dera with a spear in his hand. When he was at some distance from me I fired two shots in the air to scare him but he did not stop and kept on advancing towards me till he reached within the striking distance. He tried to strike me with his spear on which I fired at him biting him on his legs.
He again got up and tried to advance towards me with the spear when I again fired at him. In the meanwhile Bati deceased came there and wanted to jump at me and strike me with his spear when I fired at him also. In the meanwhile some other helpers of the complainant party including Ahmad Khan P. W. Collected at the spot. They thought that I had finished my ammunition and Ahmad Khan P. W. Tried to assault me with lathi and I fired at him too. Thereafter I fired at random to save my life as the helpers of the complainant party had encircled me from both sides of the road and thus succeeded in reaching the village abadi after saving my life. I had a hatchet with me with which I had cut the branches of the sheeham tree which had fallen on the ground when I was caught hold of by Bakhsha P. W.
' I have long-standing enmity with the complainant party and also on account of their suspicion of my illicit relation with the daughter of Bati deceased, the complainant party wanted to do away with me.
' Answer to question No, 12: ' I am innocent. I was placed in such a situation that I had to fire in self-defence.
7. The learned trial Judge believed the ocular evidence and found that the same was corroborated by the dying declaration, medical evidence and recovery of weapon of' offence which connected the appellant with the crime. He accepted the prosecution version, rejected the defence plea and version of the appellant. He acquitted Talib Hussain alias Hussaina because he was unarmed, did not actively participate, his name was not mentioned in the dying declaration and it was tied known to him that the appellant carried revolver in the fold of his loin-cloth. The learned counsel for the appellant has submitted that a case of exercise of the right of self-defence entitling the appellant to acquittal is made out from the evidence on record. His argument is that no damage was caused to the crop by branches loaded on the cart, Bakhsha P. W. Having altercated with the appellant, his sons including the deceased rushed to the spot armed with spears and lath! And in the background of enmity between the parties appellant felt genuine apprehension to ins life and fired 4/5 shots to scare away the attackers of the complainant party. He has further argued that Faits C. W.. Is a common mueen of both the parties and has supported the defence version which be accepted. The learned counsel for the State has submitted that Fattu C. W. Did not see the occurrence as he was not going in heart, the enmity between the parties no longer existed because they had compromised, Bakhsha P. W. Who is 73 years 'old could not grapple with the appellant and that the defence plea is belated, it was not taken before the Committing Magistrate.
' I have read the entire evidence in the case and have considered it in the light of the submissions of the learned counsel for the parties. The evidence shows that the incident did take place at the time and spot alleged by the prosecution. It originated because Bakhsha P. W. Objected to the passing of the cart loaded with branches of sheesham tree on the service road and insisted that it should be taken back. The cart was moving on the service road which is frequented by carts as deposed by Muhammad Afzal (P. W. 3). The evidence at the trial is that some branches fell from the cart in the cotton crop near the service road, were picked up and placed back in the cart and it proceeded 5/6 kanals distance by the time Bakhsha P. W. Reached there to insist that cart should be taken back. There did exist another route which was shorter one for taking the cart to the village, but it was allegedly under salinity and even otherwise the service road is normally better than the kacha road which is not maintained regularly. It cannot be conceived that act of the appellant is passing the cart on the service road was intended to cause damage to the standing crop of the complainant party or was an act done with a view to' provoke the complainant party in any manner, whatsoever. The evidence shows that no damage was caused to the cotton crop. The allegation of the prosecution in the F. I. R., was that cotton crop of the family of the complainant had suffered damage but at the trial a shift was made to show that the cotton crop which actually suffered damage was in the field of Muhammad Hayat (P. W. 12) who is a first cousin of the complainant. This Muhammad Hayat P. W. Was not cited in the list of witnesses to be examined at trial but was put up to prove that it was his crop which was damaged and not that of the deceased party. Even he did not mention any damage to the cotton crop but only deposed that place of occurrence where Bati deceased and P. W. Muhammad Yar complainant allegedly suffered injuries fell in his land. He further deposed that he was not present in the village on the day of occurrence.
Ghulam Sarwar (P. W. 2) who was the village Patwari deposed that no damage to the cotton crop was shown to him when he visited the spot for preparing the site plan. Thus, it cannot be found that the appellant gave any cause to the complainant party, the appellant had the right to pass the cart on the service road and no damage to the crop of the deceased party was caused by it. The prosecution case is that Bakhsha P. W. Initially called out from his dera, came upto the cart and repeated his demand upon which Talib Hussain, acquitted accused pushed him as a result of which he fell on the service road, in the meantime his son Muhammad Yar P. W. Complainant reached there and remonstrated the accused for their act in pushing back Balchsha P. W. Upon which Amir appellant started firing froth hiS reVolver. Therefore, according to the every case of the prosecution it was the complainant party who sought provocation and originated the incident. The defence version is that Bakhsha P. W. In fact gripped the appellant when P. W. Muhammad Yar complainant with lathi, Bati deceased with a spear and Ahmed Khan P. W. Also with a spear ran towards the appellant to attack and " to kill him. The prosecution version relating to the stage how the attack started is given by the eye-witnesses who are closely related inter a and ate so related with the deceased. No independent witness has been examined on the point. Bakhsha P. W. Is father of Bati deceased and Muhammad Yar complainant while Ahmed Khan P. W. Is son of his first Consign. tJmra P. W. Who is also closely related to Bakhsha P. W. Did not see the origin of the fight.
There is a background of congaed enmity between the appellant and the deceased party. P. W.
Muhammad Yar complainant in cross-examination admitted that father of the appellant was challaned for the murder of son of his paternal aunt although he voluntarily further deposed that after the murder a compromise had been arrived at between thud which fact had not been deposed by him before the committing Magistrate. It is also in evidence that father of the appellant was acquitted of that murder. The complainant also admitted that there had been other criminal cases between the parties who were bound down against each other under section 107/151, Cr. P. C.
The statement of Bati deceased under section 161, Cr. P. C., which was recorded in the hospital at the time he was alive and has been treated as dying declaration after his death does not advance the case of the prosecution. It was so recorded at a time when his death was not imminent and that there were other witnesses present by the side of Bati deceased at that time due to which possibility of tutoring cannot be ruled out. In the background of confirmed enmity between the parties, due to the absence of independent corroboration of the ocular account given by the closely related eye-witnesses and for the reason that the deceased party started the trouble. I am of the view that the prosecution version is not worthy of reliance. The prosecution has not proved the guilt of the appellant beyond reasonable doubt.
9. The defence version is that it was the deceased party who wanted to attack and kill the appellant for two reasons. One reason was long-standing enmity between the parties which has not been denied by the prosecution although an attempt has been made to show that subsequently a compromise had been effected between the parties. The other reason given by the defence is that the appellant was suspected of illicit liaison with daughter of Bati deceased which was suggested to the material witnesses in cross-examination who denied it. The Investigating Officer Ghulam Muhammad (P. W. 20) deposed towards the end of his cross-examination that the appellant gave him the defence version in detail during investigation, the same was put to the prosecution witnesses in cross-examination at the trial and was consistently taken up in the statement of the appellant recorded under section 342, Cr. P. C It is supported by Fattu C. W. Who was given up by the prosecution has won-over. The presence of Fattu C. W. At the spot at V be time of occurrence is admitted by the prosecution and even otherwise it cannot be doubted. This Fattu C. W. Is a mueen of the village and is also common between the parties. He was very much at the spot and wit ,trussed the occurrence before the incident started and by the time injuries we suffered by the members of the deceased party. , The consistent defence torsion and plea which appears probable stand proved from the evidence on the record in accordance with law. I am convinced that the appellant fired at t ,he members of the deceased party on account of his genuine apprehension r And if he had not done so he had been killed at their hands wits spears and /r7eizi alleg9 3 to have been carried by three of them including the deceased. In the, circumstances of the case and on the evidence on record the appellant is entitled to acquittal.
10. For the above discussion, the appeal is accepted, conviction and sentence of the appellant are set aside and he is acquitted of all charges.