1. ' Appellant Noor Khan has through this appeal called in question the judgment, dated 7-8-1993, passed by the learned District Judge, Karachi (West), whereby he was convicted an sentenced to suffer R.I. For life and a fine of Rs,10,000, in default to suffer further R.I. For six months under section 302, P.P.C. He was also directed to pay an amount of Rs,25,000 to the heirs of the deceased under the provision of section 544-A, Cr.P.C. The compensation was ordered to be recovered as an arrear of land revenue and in default of payment or recovery, the appellant shall suffer further imprisonment for six months more. The appellant was provided the benefit of provisions of section 382-B, Cr.P.C. In the computation of his sentence.
2. ' Gleaning facts of prosecution case are that complainant Sultan lodged F.I.R. No,56/1990 at Police Station Pirabad, Karachi on 19-3-1990 under sections 302, 307 and 34, P.P.C., stating therein that he was residing in the house of his maternal-uncle deceased Hajat Khan. His mother Mst. Dil Feroz came to Karachi two months before the incident for attending the marriage of appellant Noor Khan, which was solemnised on 12-1-1990. The complainant's mother sometimes lived in the house of appellant Noor Khan and sometime in the house of uncle Hajat Khan. Some days prior to the incident, there had occurred a quarrel in-between the wife of appellant and mother of complainant. It was alleged that on this account appellant turned out the mother of the complainant on 18-3-1990 and thereafter she started living in the house of Hajat Khan. Deceased Hajat Khan protested to appellant about this shameful conduct and thinking appellant a child, deceased gave him a slap. Mohalla people pacified the matter. Story continues disclosing that on 19-3-1990, while complainant was inside the house and deceased Hajat Khan was coming towardi the house from the mosque at 8 p.m. And when he reached near the house of appellant, Noor Khan, the co-accused Mir Samad Khan, Sher Bahadur and appellant Noor Than were found standing with Dandas and Chhuri. When they attacked on the person of Hajat Khan, the complainant came out of his house on hearing cries and so also the mother of the complainant.
3. The complainant noticed that appellant Noor Khan was armed with Chhuri and rest with Dandas were causing injuries to Hajat Khan. On the intervention of complainant and his mother, They were also caused Danda blows. In this sequence Hajat Khan fell down. Mohalla people intervened. The complainant also received injuries. Thereafter the complainant removed Hajat Khan in a Suzuki in an injured condition, who succumbed to injuries on the way. The investigation was taken up by S.H.O. Muhammad Younus who had taken down the report of the complainant and on the basis of the written report lodged the F.I.R. S.H.O. Prepared Mashirnama of the dead body and an inquest report and obtained the cause of death. After completion of investigation appellant Noor Khan and co-accused Mir Samad Khan and Sher Bahadur were sent up for trial.
4. ' All the three pleaded not guilty for the charge framed against them under sections 302, 307 and 34, P.P.C. And contested the case.
5. ' Prosecution examined P.W.1 Muhammad Salman, the complainant and nephew of deceased, P.W.2 Mst. Dil Feroz, the mother of complainant, P.W.3 Muhammad Bashir, the nephew of deceased, P.W.4 Sher Ali Khan, the brother of deceased, P.W.5 Dr. Jalil Qadir, who issued post-mortem report, P.W.6 Dr. Shafi Muhammad Nizamani, who examined injured complainant Muhammad Sultan and his mother P.W. Mst. Dil Feroz and also appellant Noor Khan and co-accused Mir Samad Khan, P.W.7 Qazi Muhammad, the Mashir of dead body and inquest report and P.W.8 A.S.I. Aram Shah, who identified the signature of S.H.O. Muhammad Younus (now dead).
6. ' In the statement under section 342, Cr.P.C. Before the trial Court, appellant Noor Khan and co- accused Mir Samad Khan and Sher Bahadur denied the prosecution allegations. According to the statement of appellant Noor Khan, it was deceased Hajat Khan, Sultan, Bashir, Mst. Dil Feroz and Sher Ali who came duly armed with Chhuri, iron bars and wooden 'Patti at their house and caused injuries to him and his father Mir Samad Khan. He and his father were removed to Abbasi Shaheed Hospital where they remained for the night but were not admitted and on the following morning they were taken to police station. They insisted for the registration of their case but the same was refused by the police. Subsequently they filed direct complaint No,128/1990 against the complainant and others which was pending before A.C.M. No,V, Karachi (West). Co-accused Mir Samad Khan and Sher Bahadur gave the same statements as that of appellant Noor Khan before the trial Court. In defence Shahabuddin and Gul Ahmed were examined to support the defence plea.
7. ' The learned trial Court assessing the evidence recorded at trial, found appellant Noor Khan guilty, convicted and sentenced him as mentioned above, whereas the remaining two co-accused Mir Samad Khan and Sher Bahadur were found guilty of the charge under section 323, P.P.C. And were fined Rs,1,000 each or in default to suffer R.I. For a period of three months. They both were released after the payment of fine.
8. ' Mr. Shaukat Hussain Zubedi contended that the trial Court has not appreciated the evidence properly and has relied on the prosecution evidence ignoring without taking into consideration the defence plea of self-defence raised by the appellant at the earliest opportunity. The.Re are two versions of this occurrence, one raised by the prosecution and another by the appellant before the trial Court. The version raised by the prosecution was taken into consideration, whereas that of appellant was disbelieved. According to learned counsel the appellant, his father Mir Samad Khan received serious injuries in the same incident at the hands of complainant party who rushed to Abbasi Shaheed Hospital for treatment, from where they were taken by police to police station.
9. Their F.I.R. Was not registered and thereafter a direct complaint No,128/1990 was filed by the appellant's party showing that they had acted in the right of their self-defence, mentioning their version of incident. Learned counsel further submits that it was the complainant Sultan, deceased Hajat Khan, Bashir,. Mst. Dil Feroz and Sher Ali, who came armed with Chhuris and Dandas at the house of the appellant and attacked the appellant and his father, causing them serious injuries. As such the appellant, if any, has acted upon in the right of his self-defence. According to learned counsel, the appellant and his father were inflicted injuries on their head (vital part) of body, therefore, there was sufficient apprehension of their being killed. Injuries sustained by appellant Noor Khan
(1) Lacerated wound 12 c.m. x 1 c.m. x skin deep right forehead.
(2) Lacerated wound 11 c.m. x 1 c.m. x bone deep? Left side front oral region.
(3) Contusion 3 c.m. x 2 c.m. Left upper arm.
(4) Contusion 4 c.m. x 1 c.m. Right fore-arm. Mir Samad Khan:
(1) L/W 1/2 c.m. x 1/2 c.m. x skull deep, right little finger.
(2) L/W 1/2 c.m. x 1 c.m. x bone deep? Right side forehead.
(3) L/W 12 c.m. x 1 c.m. x bone deep? Right side occipital region.
(4) Contusion 2 c.m. x 1 c.m., left fore-arm.
10. ' Mr. Shaukat Hussain Zubedi argues that the entire evidence led by the prosecution consisted of interested, related inter se and inimical witnesses, lacking any independent corroboration from persons of locality. The F.I.R. Admittedly has been lodged on a written report after the investigation had commenced, so it has lost its sanctity. The complainant has not come with clean hands as the fact of receiving injuries by the appellant and his father Mir Samad Khan is suppressed in the F.I.R.
11. On the point of plea of self-defence, learned counsel has cited 1973 SCM R 26, 1987 SCM R 1043, 1992 SCM R 1592 and 1992 PCr.LJ 1219 and prayed for acquittal of the appellant on the basis of benefit of doubt.
12. ' Mr. Syed Amjad Ali Shah, the learned A.A.-G. Submitted that the judgment does not deserve interference as all the witnesses have fully supported the case of prosecution and the learned trial Court has based its findings after the proper appraisal of evidence. In support he has cited 1992 SCM R 309 and 1625.
13. ' Admittedly the incident took place at 8-00 p.m. And the statement of the complainant was recorded by the police in the hopital at 11-30 p.m. The version of the appellant that F.I.R. Has been lodged with consultation and deliberations and after the start of investigation, gets support from the above fact. Complainant has given divergent statements in his examination-in-chief and cross-examination before the trial Court regarding the fact of lodging of F.I.R. In examination-in- chief he says that police came at the hospital and recorded his statement at 11-30 p.m. Which was exhibited as Exh.10. In cross-examination he deposes that his first statement was recorded at Police Station Pirabad at about 11. Or 11-30 p.m. In the night. The time in both coincides. As such which statement is correct creates reasonable doubt about the sanctity to be attached to the F.I.R. The learned trial Court did not consider the plea of right of self-defence raised by the appellant during the trial mainly because D.W. Failed to support that plea. It is fact that the appellant and his father Mir Samad Khan received serious injuries and too in each case were caused on their foreheads.
14. This is supported by P.W.6 Dr. Shafi Muhammad Nizamani. Though complainant has suppressed this fact in F.I.R. But he has admitted in his cross-examination that when the complainant party reached Abbasi Shaheed Hospital, they found Noor Khan and Mir Samad Khan with injuries. The complainant and all the other P. Ws. Have admitted the fact of counter-case lodged by the appellant against them in the form of a direct complaint which also confirms the version of appellant that they were also attacked in the same incident. There are two versions of the incident, one by the prosecution and the other advanced by the appellant raising the plea of right of self- defense. It is by now well-established that in incident like the one in hand, both the versions have to be kept in juxtaposition and the one favorable to the defense is to be preferred to,. If it gets some support from the admitted facts and circumstances of the case and appeals to common sense.
15. The incident admittedly took place at the door of house of appellant and his father, therefore, the version that it was the complainant party which had aggressed and attacked the appellant and his father by coming to their house and appellant had simply retaliated in the exercise of the right of private defence as he was under the state of panic having received serious injuries on the vital part, seems to be somewhat correct.
16. ' Sections 96 to 100, P.P.C. Deal with the right of private defence.
17. "Section 96. Nothing is an offence which is done in the exercise of the right of private defence.
18. ' Section 100. The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:
(i) Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
(ii) such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault."
19. Keeping in view the above proposition of law, it is to be seen as to any indication on the record that appellant had genuine apprehension of loss of his life. The presence of four injuries on the body of the appellant supported by the evidence of Dr. Shafi Muhammad Nizamani, the admission of the complainant finding the appellant injured in the hospital and counter-case in the form of direct complaint and the fact of complainant admitting in cross-examination that he, Sultan, Bashir, Mst.
20. Dil Feroz and Sher Ali are the accused in the counter-case, clearly indicate that the appellant had acted under the right of his private defence of his body feeling an apprehension regarding the safety of his person. In the case of Marshal Khan v. The State PLD 1985 SC 25, it was observed that in a state of panic where the right of self-defense is being exercised, the action on the part of person cannot be measured in golden scale. 1992 SCM R 1592 fully supports the contentions raised by the appellant. The learned trial Judge in the concluding para. Of his judgment came to the conclusion that since the murder committed is not premeditated and is result of losing of tamper, the accused is being awarded imprisonment for life and fine. The two remaining accused Mir Samad Khan and Sher Bahadur were not found guilty of the charge of murder and were simply awarded punishment under section 323, P.P.C. So the appellant cannot be convicted on /he same evidence believing against him and disbelieving against the rest of accused. This shows that the learned trial Court had not properly appreciated the evidence while convicting the appellant.
21. ' In my opinion, the appellant having been attacked by the complainant party, is fully entitled to the benefit of provision of self-defense as defined under section 96, P.P.C. And is entitled to acquittal.
22. Consequently his appeal is allowed.
23. ' The above are the reasons for short order, dated 3-8-1995 whereby the appeal was allowed and conviction and sentence against the appellant was set aside.