' RAJA MUHAMMAD KHURSHID, J.--A case under section 302/ 307/34, P.P.C. Was registered at Police Station Cann., Gujranwala vide F.I.R. No,120/89 on the report of Muhammad Akram for an occurrence, which took place on 4-5-1989 at about 10-30 a.m. In the area of Chah Kikar Wala of Rahwali Talwandi, District Gujranwala in which the deceased Halim Akram lost his life whereas Muhammad Riaz P.W. Was seriously injured.
2. According to F.I.R., the complainant Muhammad Akram had cultivated tomatoes on two acres of land at Chah Kikar Wala. On 3-5-1989 at about 1-30 p.m. Ghulam Hussain and a son of Muhammad Munir accused namely Iqbal had plucked some tomatoes. On the day of occurrence the complainant, his deceased son Halim Akram, Muhammad Saleem P.W. 7, Muhammad Saeed and Salam Ullah constituted a Punchayat and went to the brick kiln of Muhammad Munir contractor, who is one of the accused in this case. During the conversation with Muhammad Munir, hot words were exchanged between the aforesaid Ghulam Hussain and Halim Akram deceased, whereupon the latter gave fist blows to the former. He also snatched a stick from Ghulam Hussain and gave him 3 or 4 blows but were separated. However, Muhammad Munir acquitted accused, threatened that he would take revenge of the aforesaid insult. The deceased and Salam Ullah etc. Aforementioned returned to their nearby field of potatoes and started working over there. At about 10-30 a.m. The complainant, his deceased son Halim Akram, Muhammad Riaz injured P.W., Muhammad Saeed and Muhammad Saleem were present in the aforesaid field. One Islam Ullah was also sitting nearby. Muhammad Munir, Muhammad Hanif acquitted accused and Muhammad Latif alias Papu armed with .12 bore guns and Ihsan Elahi armed with revolver arrived at the spot while raising Lalkara. Out of them Muhammad Hanif shouted that the deceased should be taught a lesson for causing insult to them. Muhammad Munir thereupon fired from his gun at the deceased hitting him near left eye-brow. The deceased fell on the ground. Thereupon Muhammad Latif alias Papu fired from his gun at the deceased hitting him at his left flank. Ihsan Elahi fired with his revolver at Muhammad Riaz P.W. Hitting him on right side under the ribs. He also fell down. The accused aforementioned thereupon managed their escape good towards the brick kiln while firing.
The occurrence was seen by the complainant, the injured P.W. Riaz, Muhammad Saeed and Islam Ullah P.Ws. Not produced and Muhammad Saleem P.W.
7. The deceased succumbed to the injuries whereas Muhammad Riaz was taken to the hospital in injured condition.
3. The police investigation led to a conclusion whereby Muhammad Munir and Muhammad Hanif were found innocent and were got discharged. The remaining two accused namely Muhammad Latif alias Papu and Ihsan Elahi were found guilty and sent up for trial by the police concerned.
4. Feeling aggrieved of the investigation whereby Muhammad Munir and Muhammad Hanif were found innocent and got discharged by the police, the complainant filed a complaint in the trial Court, which was ultimately consolidated and tried with the challan case, by Mr. Riaz Ahmad Chaudhary, learned Additional Sessions Judge, Gujranwala who vide his judgment dated 30-1-1992 acquitted Muhammad Hanif and Muhammad Munir (Munir Hussain), whereas he convicted Muhammad Latif under section 302, P.P.C. And sentenced him to imprisonment for life and a fine of Rs,20,000 or in default to suffer R.I. For one year. Half of the fine if realised was directed to be paid as compensation to the legal heirs of the deceased Halim Akram under section 544-A, Cr.P.C. The other accused Ihsan Elahi was found guilty under section 307, P.P.C. For committing murderous assault upon Muhammad Riaz P.W. And was sentenced to 7 years' R.I. And a fine of Rs,5,000 or in default to undergo R.I. For six months. Half of the amount of fine after its realization was to be paid to the injured P.W. As compensation under section 544-A, Cr.P.C. The benefit of section 382-B, Cr.P.C. Was given to both the accused.
5. The appellants Muhammad Latif and Ihsan Elahi aggrieved of the aforesaid judgment have filed this appeal to challenge their conviction and sentence as aforesaid.
6. The complainant filed P.S.L.A. No,13/92 whereby acquittal of Ihsan Elahi, Muhammad Hanif and Muhammad Munir under section 302, P.P.C. Was challenged. Likewise the acquittal of Muhammad Hanif, Muhammad Munir and Muhammad Latif on the charge under section 307/34, P.P.C. Was also challenged. A prayer was made for enhancement of the sentence of Muhammad Latif accused from imprisonment for life to sentence of death under section 302, P.P.C. Likewise a plea for conviction of Ihsan Elahi under section 302, P.P.C. Was made with the prayer that he should also be sentenced to death. The aforesaid P.S.L.A. Came up for hearing before my learned brother A.M.
Tiwana, J., who vide his order dated 20-6-1992 dismissed the same to the extent of Muhammad Hanif and Muhammad Munir accused, but directed the issuance of notice to Muhammad Latif for enhancement of sentence from imprisonment for life to death under section 302, P.P.C. With a notice to Ihsan Elahi for his conviction and sentence under section 302, P.P.C. The P.S.L.A. Was then converted into Criminal Appeal No,624/92. Criminal Revision No,473/92 was also filed on behalf of the State for enhancement of the sentence of Muhammad Latif from imprisonment for life to the sentence of death under section 302, P.P.C. Since a notice had already been issued to the aforesaid Muhammad Latif in the Criminal Appeal No,.624/92 as aforesaid, therefore, my learned brother had directed that Criminal Revision No,473/92 shall be heard with this appeal.
7. In view of the above situation, the Criminal Appeal No,624/92 and Criminal Revision No,473/92 shall be dealt with and disposed of vide judgment to be recorded in this appeal.
8. The learned counsel for the appellants has contended that the prosecution case was highly doubtful from its very inception because innocent persons were named in the F.I.R. As was found during the police investigation. In this respect a reference was made to the acquittal of Muhammad Hanif and Muhammad Munir accused. Hence, it was contended that the learned trial Judge fell in error to convict the present appellants on the basis of same evidence, which was disbelieved qua the acquitted accused. The application of the principle falsus in uno falsus in omnibus was invoked to support this contention. The judgment was further assailed on the ground that the medical evidence did not support the ocular account of occurrence; that motive alleged in the F.I.R. Was not proved and that after accepting the plea of self-defence, the trial Court wrongly convicted the appellant Muhammad Latif under section 302, P.P.C. And Ihsan Elahi under section 307, P.P.C. It was, therefore, prayed that the appellants were entitled to acquittal after they had successfully proved the plea of self-defence.
9. The learned counsel for the State assisted by the learned counsel for the complainant contended that the prosecution had proved its case beyond any shadow of doubt against both the accused persons. In this respect it was alleged that the prosecution had examined eye- witnesses to support its case. These witnesses were corroborated by the medical evidence and recovery of weapons of offence.
10. It was further contended by the State Counsel that mere fact that two accused were acquitted would not help the appellants because the principle of falsus in uno falsus in omnibus was not applicable to the facts of the present case. It was for that reason that Criminal Revision was preferred by the State for the enhancement of sentence of Muhammad Latif from imprisonment for life to death, which also stands out for disposal. Likewise another appeal against the aforesaid accused Ihsan Elahi preferred by the complainant was also pending adjudication with the plea that both of them were guilty of cold-blooded murder in the broad daylight and as such could have not been dealt with leniently. The normal penalty of death was, therefore, required to be awarded to both the appellants as they acted in pursuance of common intention to commit that crime. Similarly both of them were alleged to be liable vicariously for committing the murderous assault upon Muhammad Riaz P.W. And should have been punished likewise.
11. The plea of self-defence raised by the accused persons was challenged on the ground that it was unreliable. In this context it was submitted that the accused party was aggressor because the complainant side had gone to their place in the form of a Punchayat where there was some unpleasant incident due to grappling between the deceased and Ghulam Hussain, whereupon the men of accused party pulled out fire-arms and fatally wounded the deceased and inflicted grievous injuries on Muhammad Riaz P.W. It was, therefore, urged that there was no force in the plea of self-defence pleaded by the appellants and for that reason the trial Court had also applied section 302, P.P.C. Though incidentally and casually observed that the appellants had acted in self- defence.
12. Now a question would arise whether or not the prosecution had been successful to prove its case beyond any reasonable doubt against the appellants. In this context one cannot be oblivious of the fact that one of the P.Ws. Namely Muhammad Riaz was injured at the spot. That witness claimed to be an independent witness having no relationship with any of the parties. Injury on his person is admitted from both sides but each side has different story to explain that injury.
According to the prosecution that injury was sustained by the victim at the hands of Ihsan Flahi accused during the occurrence whereas according to defence version Muhammad Riaz being one of the aggressors suffered injury while firing was made by some persons in self-defence. However, one fact is clear that the aforesaid witness was present at the spot and implicated both the appellants for having committed the occurrence in which Haleem Akram had lost his life and he had been seriously injured. He was supported by Muhammad Akram complainant and another witness namely Saleem P.W.
7. According to these witnesses the accused party had committed the occurrence.
13. The ocular account of occurrence clearly showed that the deceased had died on account of firing made by Muhammad Munir accused followed by another fire by Muhammad Latif. However, the aforesaid Muhammad Munir has been acquitted by the learned trial Court whereas Muhammad Latif has been convicted and sentenced as aforesaid. The motive of occurrence as given' in F.I.R. Was rightly not believed by the learned trial Court. Similarly recovery of weapons of offence was of no use. However, it would not mean that the evidence of eye-witnesses should be thrown away or ruled out of consideration. It is clear from the evidence given by eye-witnesses that though there is some deviation from the motive given in the F.I.R. But all of them strongly supported the story that the deceased was done to death by Muhammad Latif accused, whereas Muhammad Riaz was injured by Ihsan Elahi, accused. As such there is no doubt about this version, which stands proved beyond any reasonable doubt, on account of testimony of the eye-witnesses.
The mere fact that the complainant namely Muhammad Akram and Muhammad Saeed P.W. Are related to each other would not discredit their testimony because they are supported and corroborated by Muhammad Riaz P.W. Whose presence at the spot cannot be doubted by any stretch of imagination. It is particularly so because he has no blood-relationship with deceased and as such is an independent and trustworthy witness. His presence at the spot is also admitted in the defence version though it was pleaded that he was one of the aggressors but there is nothing on record to support this contention. On the contrary it appears that he was a victim of the accused party and perhaps for that reason the accused party visited him in hospital where he was lying in injured condition after the occurrence.
14. Obviously there are two versions about the occurrence. One is that the deceased was done to death by Muhammad Latif whereas Ihsan Elahi accused had injured Muhammad Riaz P.W. The other is that the complainant side was aggressor. In such a situation both the stories have to be put in juxtaposition in order to find out the actual truth resulting into dreadful occurrence. It appears that both sides have come up with reservations regarding the truth leading to the unfortunate occurrence. In the original F.I.R. The complainant did not mention that Muhammad Din had cultivated tomatoes under him. But he was later introduced to provide strength to the prosecution story regarding motive and convening of Punchayat. The story about Punchayat and the incident leading to the beating of Ghulam Hussain looks to be highly mysterious because the prosecution never produced the aforesaid Muhammad Din to prove the plucking of tomatoes whereas accused did not examine Ghulam Hussain to prove their defence version that he was beaten to blue by the deceased, who had arrived there with a band of armed people and that labourer working at the kiln with some other persons, including kith and kin of Ghulam Hussain fired in self-defence and that as a result of cross-firing between the parties, the unfortunate occurrence took place. The stories advanced by both sides remain thirsty of truth. Hence it becomes obligatory to find out as to what actually had happened.
15. Before we proceed further, it seems necessary to say few words about the investigation conducted in this case. All the Investigating Officers except one had given clean chit to Munir Ahmad and Hanif accused and got them discharged from the case. However, the remaining two accused i,e, appellants were half-heartedly sent up for trial. A perusal of the evidence given by the Investigating Officers will show that they proceeded in haphazard manner to investigate the case without sincerity of purpose i,e, to advance the ends of justice. They acted in casual and painless manner to end up the investigation in fiasco. The saying that "too many cook spoil the broth" becomes true of them in this case. To say the least, the investigation was not conducted on scientific lines. Undue and uncouth inference were drawn during the investigation. The complainant party was asked to get the decision on oath but when they did not agree to it, the investigating officer drew up adverse inferences against them instead of proceeding with the investigation in accordance with law. The investigating agency heavily relied upon the statement of such persons who never claimed to be the eye-witnesses but had only given their opinion before the Investigating Officers. The findings based on such opinion of the Investigating Officers can in no way advance the ends of justice.
16. Now coming back to the case, it will be worthwhile to discuss the defence version. According to appellants, the complainant party got provoked when Muhammad Din falsely reported that Ghulam Hussain had rebuked them over the plucking of tomatoes by retorting that he cared a fig for the complainant or his relatives; and that he will put off Shalwars of their womenfolk and place them on their shoulders. This proved as a last straw on a camel's back. The deceased being a young man was allegedly more provoked and collected a band of armed people to reach the bricks kiln of Muhammad Munir accused and give a thrashing to Ghulam Hussain upon which his relatives and other persons came out with fire-arms and started firing which resulted into death of the deceased and injury to Muhammad Riaz P.W. It was contended in defence version that being in the ugly situation, the complainant party started retreating but while retreating to their fields continued firing which was also replied in defence by the accused party as well. In that commotion and melee the occurrence had taken place. On the contrary, the complainant side came up with the improved story-by introducing Muhammad Din as stated earlier to create a justification for the convening of Punchayat but did not produce the aforesaid Muhammad Din for reasons best known to them. Hence the prosecution failed to place its all cards on the table fairly or squarely. True, Ghulam Hussain was never produced in defence, but beating to him is admitted by the complainant side though in a different manner. The possibility cannot be ruled out, rather it looks highly probable and convincing that on seeing the band of armed people and witnessing thrashing of Ghulam Hussain, the appellants while acting in self-defence committed the occurrence.
17. It, however, appears that while exercising the right of private defence the accused party had caused more harm than was necessary and thereby exceeded the right of self-defence available to them under Exception 2 of section 300 P.P.C. No doubt it is very difficult question to determine whether an accused has or continues to have a right of private defence, and when or whether it has come to an end, is in every case essentially a question of fact to be decided according to the circumstances of each case. Frankly speaking it may be difficult to judge accurately the moment when the right of private defence comes to an end, but so long as the apprehension of hurt or grievous hurt continues to exist, the right of self-defence continues, and an accused person cannot be penalised for not weighing in golden scales the amount of force, which should suffice to allay the apprehension of danger from the aggressor, but when the apprehension has disappeared and ceased to exist, the right of private defence comes to an end. In the instant case the deceased, while retreating from the brick-kiln of Muhammad Munir acquitted accused, continued firing and as such the apprehension of hurt or grievous hurt would continue to exist till his gun had become silent. It is for that reason that accused side also continued firing till the deceased had reached his field, thereafter the appellant acted beyond the prescribed limits of private defence. As such Muhammad Latif alias Papu appellant having caused the death of Halim Akram by exceeding the right of private defence shall be liable to be convicted under Part I of section 304, P.P.C. However, even according to defence version Muhammad Riaz was not carrying any weapon nor any firing was attributed to him, therefore his assailant namely Ihsan Ullah was rightly convicted and sentenced under section 307, P.P.C. For causing murderous assault upon him.
18. In view of our above discussion, the conviction of Muhammad Latif appellant is converted to section 304, Part I, P.P.C. From section 302, P.P.C. And his sentence of imprisonment for life is accordingly reduced to 7 years' R.I. Proportionate to his offence. With the above modification in the conviction and sentence the appeal of Muhammad Latif is dismissed. The sentence of fine awarded to him by the learned trial Court is however, upheld. The conviction and sentence awarded to Ihsan Elahi appellant does not call for interference for the reasons already stated above. His appeal is also accordingly dismissed.
19. In consequence, Criminal Appeal No,624/92 and Criminal Revision No,473/92 are also dismissed.
20. The benefit of section 382-B, Cr.P.C. Given to both the appellants by the learned trial Court is extended to them throughout.