JUDGMENT AHMAD SAEED AWAN, J.- Bashir Ahmad son of Muhammad Din and Muhammad Yaseen son of Bashir Ahmad vide this CrI. Appeal No.584 of 1993 have appealed against the order of the learned Addl. Sessions Judge, Depalpur dated 20.6.1993 whereby the appellants have been convicted under section 304 Part-1 to ten years R.I. And a fine of Rs.50,000/- each, in default of payment of fine to further undergo six months R.I. Each; if fine is recovered to be paid to the legal heirs of the deceased in a case FIR No.516/90 dated 18.12.90 Police Station Hujra, District Okara.
2. The brief facts of the case are that the complainant is resident of Mauza Fatyana and was an agriculturist. At about 10 a.m., the complainant Muhammad Yar and his nephew were going from his house towards the dhari; on the way Muhammad Yar picked up a few dried sticks of cotton for the use of his Huaquero from the dhari of Yaseen accused to which he took offence and abused him. Muhammad Yar also abused him in return. Yaseen accused threatened that he would teach him a lesson for that, and Muhammad Yar went to his dhari. At about 4.p.m. Muhammad Yar, Haq Nawaz and Muhammad Jafar were coming from their dhari carrying milk and were on their way home, when they reached near the dhari of Muhammad Yaseen accused, they found Muhammad Siddique, Bashir Ahmad and Muhammad Shafi armed with sotas and Muhammad Yaseen accused, armed with Phota all residents of Deh, having way laid them and when they were passing thereby Muhammad Yaseen raised lalkara to catch hold of them and teach a lesson for having abused him and picking his sticks. Thereupon Bashir Ahmad gave sota blow on the head of Muhammad Yar. Haq Nawaz and Jafar tried to in terrene and they too were attacked and Muhammad Yaseen accused gave Phora blow on the head of Haq Nawaz. Bashir Ahmad gave sota blow on the head of Haq Nawaz. Muhammad Yaseen and Bashir Ahmad repeated the blows hitting him on different parts of his body. Muhammad Siddique and Muhammad Shafi accused attacked Muhammad Jafar giving him sotas blows on different parts of his body. Haq Nawaz and Jafar injured fell down. On alarm Muhammad Manzoor complainant, Muhammad Shafi and Rang Elahi P.Ws were attracted to the scene of occurrence and witnessed the same. The accused fled away along with their weapons. The complainant took Muhammad Yar, Haq Nawaz and Jafar injured to the hospital Hujra where Haq Nawaz succumbed to the injuries. Jafar P.W. Was admitted to the hospital, and Manzoor complainant went to the Police Station and get recorded the FIR Ex. PA.
3. The prosecution examined eight P.Ws to prove its version. P.W.1 Muhammad Manzoor is the complainant who reiterated what he had stated in the FIR Ex. PA; P.W.2 Muhammad Yar and P.W.3 Muhammad Jafar being eye I witnesses supported the version of the prosecution. They themselves were injured in the occurrence. P.W.7 Noor Muhammad investigated the case. He deposed that he recorded the statement of the complainant Manzoor P.W.1 Ex.PA on 18.12.1990, then proceeded to the hospital prepared the injury statement Ex.PD and inquest report Ex.PE/1 and recorded the statements of P.W.2 and P.W.3 in the hospital under section 161 Cr.P.C. He visited the spot on 19.12.90 at 3:00 a.m. And prepared the rough site plan Ex.PE. He deposed that on 27.12.90 Jafar injured PW produced before him his on blood stained shirt P4 and chader P5 which he took into possession vide memo Ex.PF. On 28.12.90 he arrested all the accused; the same day Bashir accused led to the recovery of sola P6 from his cattle hut which be took into possession vide memo Ex.PG; Muhammad Siddique accused also led to the recovery aisota P7 from his cattle shed which he took into possession vide memo Ex.PH; Yaseen accused led to the recovery of Phora P8 from his cattle shed which he took into possession vide memo Ex.PI and Muhammad Shafi also led to the recovery of sola P9 from underneath a heap of rice chaff which he took into possession vide memo Ex.PJ. He further deposed that he got Siddique and Shafi accused medically examined from Hujra hospital on 29.12.90 and finally submitted the challan finding the accused guilty. P.W.8 Dr. Zulfiqar-ul- Hassan deposed that he had conducted the post mortem examination on the dead body of Haq Nawaz on 19.12.90 at 8:00 a.m. And found 11 juries on the dead body. In his opinion the cause of death was due to cardio respiratory failure on account of shock and haemorrhage as a result of injury Nos. 1,2,3 and 4 which were quite sufficient to cause death in ordinary way of life and according to him all the injuries were ante mortem and were caused by blunt weapon; the probable duration between injuries and death was 1 to 3 hours and between death and post mortem was 1130 hours approximately. He deposed that on 18.12.90 at about 7:30 p.m., he medically examined Muhammad Yar P.W.2 and found one injury on his person which was simple in nature caused by blunt weapon within the duration of 3 to 4 hours; on the same day he medically examined Muhammad Jafar PW3 and found on his person six injuries; injuries No. 1,2,3 and 6 were kept under observation while remaining were declared simple injuries, however, the injuries kept under observation were later declared simple; all the injuries were caused by blunt weapon within the duration of 3 to 4 hours. The rest witnesses were of formal nature who supported the prosecution version and even were not cross-examined by the appellants' counsel. The appellants' statements under section 34 Cr.P.C, were recorded and they were pleaded innocent. They had their on account of the occurrence. Bashir Ahmad, appellant made unelaborate statement in this connection which was relied upon by the remaining accused as were. The appellants admitted the motive of occurrence by stating that it was correct that Muhammad yar took some sticks of cotton from their field without permission and on that account a quarrel took place between Yaseen and Muhammad Yar and they mutually abused each other and Yaseen had given fists blows to him who rim away to hisdhari which was nearby. The remaining version of the prosecution was categorically denied, the appellants negated prosecution version by stating that they were attached by the complainant party, took the plea of self defence and that the story had been concocted with the connivance of the police. The appellants denied recovery of the alleged weapons. The appellants also examined in their defence Dr. Sagheer Ahmad, D. W.l who had examined Muhammad Shafi and Muhammad Siddique accused on 29.12.90 at about 10.15 a.m. He deposed that both the accused were brought to Hujra hospital by the police and he found on the person of Muhammad Shaft for injuries which caused by blunt weapon and of simple in nature; the probable duration of injuries was 10 to 11 days. He further deposed that on the same day, he also medically examined Muhammad Siddique accused and found on his person one injury which was caused by blunt weapon and simple in nature; the probable duration of the injury was 10 to 11 days.
4 I have heard learned counsel at length and have perused the record with their able assistance. It is an admitted fact that the FIR Ex.PA was not registered at the Police Station but was recorded at the hospital. It is also an admitted fact that the accused Muhammad Siddique and Muhammad Yar were injured at the hands of the complainant .Party as supported by the Medical evidence.
5. The learned Addl. Sessions Judge held that none of the recovery of the crime weapons had been proved at all. He further held that there was no previous enmity between the parties as none was alleged the motive was based on a minor Altercation over a petty matter between Muhammad Yar P.W.2 and Yaseen accused which took place some time prior to the occurrence and held that it was not a pre-planed murder.
It is crystle clear from the record that the complainant party was the aggressor. According to the learned trial court Muhammad Siddique and Muhammad Shaft accused were too injured in the occurrence; and it could not be said that those accused had made murderous assault on Muhammad Yar and Muhammad Jafar P.Ws; hence charge under section 324 PPC against them was not established, therefore, he acquitted both the accused person and convicted the present appellants finding them guilty of causing the murder of Haq Nawaz, deceased in a sudden fight in heat of passion falling within the Exception 4 to section 300 PPC relying on Irshad Muhammad alias Dadai versus The State (1993 SCM R 904).
6. It has been established that there were two versions of the occurrence and both the parties were injured. In such circumstances, if the Court has any doubt whether the right of private defence was exceeded or not, the benefit should still go to the accused and it is not expected by a person to measure in golden scale the degree of threat held out to him when he exercises the right of self defence under stress and heavy preservation. In the heat and excitement of the moment and in that frame of mind to expect from the accused that he should have judged nature of each and every blow given in self defence and then should have modulated the right of private defence accordingly, is to expect impossible from a human being placed in such an awkward position, as laid down in case Zafar Khan versus the State (PLD 1956 (W.P.) Lahore 1045). According to criminal jurisprudence the fundamental principle is that the burden of proving the general issue of accused guilt lies from first to last upon the prosecution, hence it is the duty of the Court to view the entire evidence that has been produced by the prosecution and the defence. If after examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view re-acts on the whole prosecution case and in these circumstances the accused is entitled to the benefit of doubt, not as a matter of grace but as of right because the prosecution has not proved its case beyond a reasonable doubt. It has been held in case Gul Zaman vs. The State (1975 P.Cr.L J. Karachi 623) that the plea of private defence, if substantiated on the prosecution evidence itself, must be accepted and the benefit of this plea be given to the accused. The learned Addl. Sessions Judge disbelieving the prosecution story and evidence in its entirety, convicted the appellants only on their statements. There are no indications on the record to show that the statements of the appellants are false so far it relates to the exercise of self defence. The learned Addl. Sessions Judge conceded the right of private defence to the appellants but even then convicted them. In accepting the reasons advanced by the learned trial court, even then the falsity of the defence version is not by itself sufficient to relieve the prosecution of the burden imposed on it to prove its case beyond reasonable doubt. In the present case, if investigation was proved mala fide and some obvious facts have not been proved or bought out which might have given corroboration to the defence, the Court is duty bound to direct an acquittal because if there is any lacuna in the prosecution evidence, the accused and not prosecution would be entitled to get the benefit of that lacuna.
7. Having carefully considered the statements of the accused and all the circumstances of the case, I am of the view that the appellants had not exceeded their right of private defence. I, therefore, accept the appeal, set aside their conviction and sentence and acquit them. They shall be released forthwith if not required in any criminal case.