' The appellants along with three others namely Muhammad Nawaz alias Niaz alias Najja, Abdul Rehman and Shahzad were tried in the Court of learned Additional Sessions Judge, Faisalabad for an offence under section 302/337-A/ 148/149 of the P.P.C. For causing death of Saghir Ahmad and injuries to Bashir Ahmad, P.W.8. The occurrence took place on 29-7-1991 at 7-30 p.m. In the area of Police Station Jaranwala. The report lodged by Muhammad Rashid, P.W.7 formed the basis of the formal F.I.R. Exh.P.H./1. It was registered under section 324/337-A/147/149, P.P.C. But on the death of Saghir Ahmad, section 302, P.P.C. Was added. The appellants were charged under section 302/ 337-A/148/149, P.P.C. They did not plead guilty and claimed to be tried.
2. The prosecution story narrated by Muhammad Rashid, P.W.7 in the F.I.R. Is that on 29-7-1991 at about 7-30 p.m. Saghir Ahmad deceased, after taking his evening meal, was going to a shop to buy Pan. When he reached near the water tank, five accused persons namely Ijaz alias Ghandi (appellant No,1), Ghulam Shabbir (appellant No,2), Abdur Rehman alias Beni, Muhammad Nawaz alias Niaz alias Najja and Shahzad came from the front side. They raised Lalkara saying that they would teach a lesson to Saghir Ahmad for leaving their party. They picked up wooden pieces (Pharas) from a nearby woodstallh Appellant No,1 gave two. Blows with a wooden piece on the left side of head of Saghir Ahmad. Ghulam Shabbir appellant No,2 gave a blow with a wooden piece on the right side of head of the deceased. Shahzad (since acquitted) gave a blow with a wooden piece causing an injury on the left cheek of the deceased. Saghir Ahmad, deceased fell down on the ground whereupon Muhammad Nawaz, convict gave a blow with a wooden piece on his back.
Bashir Ahmad, P.W.8 tried to rescue his brother and gave a push to Ijaz Ahmad (appellant No,1).
Then Abdur Rehman accused (since acquitted) gave a blow with a wooden piece causing an injury on back side of the head of Bashir Ahmad. Muhammad Nawaz inflicted an injury on the right eye of Bashir Ahmad P.W.8. Ghulam Shabbir gave a blow causing an injury on left shoulder of Bashir Ahmad, P.W.8.
3. The injured persons were removed to the Tehsil Headquarter Hospital, Jaranwala, where Dr. Muhammad Afzal, P.W.6 medically examined them. He found the following injuries on the person of Saghir Ahmad:-- "(1) A lacerated wound 2 c.m. x 2 c.m. Depth not probed with swelling 15 c.m. x 9 c.m. On left side of head.
(2) An abrasion with swelling 4 c.m. x 3 c.m. On left side of forehead.
(3) An abrasion 2 c.m. x 1 c.m. On left cheek.
(4) A contused swelling 19 c.m. x 17 c.m. On right side of head.
(5) An abrasion 2 c.m. x 1 c.m. On back of left side of chest."
' The doctor also found the following injuries on the person of Bashir Ahmad, P.W.8:-- "(1) A lacerated wound 6 c.m. x 2 c.m. x scalp deep on back side of head.
(2) A lacerated wound 2 c.m. x 1 c.m. On right eyebrow.
(3) A contused swelling 10 c.m. x 4 c.m. On right shoulder top."
' The injured persons were shifted to Allied Hospital, Faisalabad where Saghir Ahmad was operated upon, thereafter, he died in the said Hospital on 31-7-1991. His dead body was again taken to T.H.Q.
Hospital Jaranwala, where Dr. Muhammad Afzal, P.W.6 performed post-mortem on 1-8,1991 at 6-00 a.m. He observed the following injuries:-- "(1) A lacerated wound 2 c.m. x 2 c.m. Left side of head an extension of stitched operated (wound) line with the above wound was present which was 4 c.m. Long.
(2) An abrasion with swelling 4 c.m. x 3 c.m. On left side of forehead.
(3) An abrasion 2 c.m. x 1 c.m. On left cheek.
(4) A swelling which was detectable with very careful examination in an area of 19 c.m. x 17 c.m. On right side of head was present with 2 stitched operated wounds (lines) one on right side of head 7 c.m. Long, the other towards middle of head 4 c.m. Long.
(5) An abrasion 2 c.m. x 1 c.m. On back of left side of chest."
4. After recording the F.I.R., Abdur Rahim, A.S.-I. Proceeded to the spot, inspected the place of occurrence, 'prepared the site plans (Exh.P.A. And Exh.P.A./1), took into possession the blood-stained earth from the spot and recorded the statements of the P.Ws. Under section 161 of the Cr.P.C. He arrested the appellants on 28-8-1991, recovered the Pharas from them, vide ecovery memos.
Exh.P.I. And Exh.P.K., completed the investigation and submitted the challan in the Court.
5. The appellants denied the charge and pleaded that, in fact, the complainant party had committed aggression and caused injuries to Nawaz alias Naja whereupon in self-defence, the appellants inflicted injuries to Saghir Ahmad, deceased and Bashir Ahmad P.W.8.
6. In support of its case, the prosecution produced 10 witnesses. P.W.1 Aurangzeb, Draftsman, prepared the site plan in duplicate Exh.P.A. And Exh.P.A./1. P.W.2 Muhammad Aslam. Constable witnessed the recovery of last-worn clones of the deceased (Shalwar P.1 and shirt P.2) which were secured through recovery memo. Exh.P.B. P.W.3 Muhammad Riaz, Constable. Was entrusted the dead body of Saghir Ahmad, deceased. He took it to T.H.Q. Hospital Jaranwala on 1-8-1991. He was given the last-worn clothes of the deceased after the post-mortem which were produced by him before the Investigating Officer P.W.4 Abdul Rahim H.C., kept the parcels in the Malkhana and handed over the same to Dost Muhammad, Constable for further transmission to the office of Chemical Examiner, Lahore. P.W.5 Dost Muhammad, Constable had delivered the parcel at the office of the Chemical Examiner on 19-8-1991. P.W.6 Dr. Muhammad Afzal had medically examined Saghir Ahmad, deceased and Bashir Ahmad and after the death of Saghir Ahmad conducted post-mortem on his dead body. P.W.7 Muhammad Rashid is the complainant and an eye-witness of the occurrence. He supported the prosecution story narrated in the F.I.R. P.W.8 Bashir Ahmad, real brother of the complainant is the injured P.W. He also corroborated the statement made by P.W.7.
P.W.9 Muhammad Afzal, H.C. Had recorded the formal F.I.R. Exh.P.H./1 on 30-7-1991 on the basis of the complaint Exh.P.H. Made by P.W.7. P.W.10 Abdul Rahim, A.S.-I. Conducted the investigation, arrested the accused persons and submitted the challan against the appellants and Muhammad Nawaz alias Najja. Two accused namely Abdur Rehman and Shahzad were found to be innocent and their names were placed under column No,2 of the challan. They were summoned to face trial by the learned Additional Sessions Judge. The accused persons produced D.W.1 Dr. Muhammad Imtiaz Rabbani, C.M.O., T.H.Q. Hospital, Jaranwala who had medically examined Muhammad Nawaz alias Najja on 30-7-1991 and found the following injuries on his person:-- "(1) A lacerated wound 3 c.m. x 1 c.m. Bone deep on the right side of head upper part.
(2) A lacerated wound 2 c.m. x 1 c.m. Skin deep on top of head middle part.
(3) A swelling 8 c.m. x 5 c.m. On back of left forearms upper part and also with an abrasion 1 x 1/2 c.m.
(4) Complaint of pain in the right chest outer and lower part.
' Injuries Nos.1 and 2 kept under observations and advised X-Ray. Rest were simple."
7. After perusing the material on the record, the trial Court convicted the appellants under section 302-B of .The P.P.C. And sentenced them to life imprisonment with a fine of Rs,20,000 each and in default to undergo 2 years' R.I. Muhammad Nawaz accused was convicted under section 324, P.P.C.
And sentenced to undergo R.I. For a period of 7 years with a fine of Rs,10,000 and in default of payment of fine, to undergo R.I. For one year vide judgment, dated 28-6-1993. Ijaz alias Ghandi and Ghulam Shabbir were burdened to pay compensation amounting to Rs,50,000 each to the legal heirs of the deceased and Muhammad Nawaz alias Niaz alias Najja was also burdened to pay compensation amounting to Rs,10,000 to Bashi Ahmad, injured P.W. Convicts were given benefit of section 382-B of the Cr:P.C.
8. The appellants' learned counsel contends that the prosecution has suppressed the injuries suffered by Nawaz alias Najja accused who had received 3 injuries with blunt weapons out of which two were caused on his head; that the appellants had acted in defense of person of Nawaz who is their relative; that there was no pre-medication and the occurrence had taken place on the spur of the moment; that the trial Court did not believe the plea of the complainant about the prosecution story put, forward by him and that the prosecution has failed to prove its case beyond a reasonable doubt against the appellants.
9. On the other hand, learned State Counsel supports the judgment of the trial Court and submits that the occurrence had taken place in broad daylight and there was no question of mistaken identity of the accused; that the prosecution story was supported by the complainant and an injured witness, Muhammad Bashir, P.W.8; that the appellants had acted with pre-concert and caused death of Saghir Ahmad, therefore, they were rightly convicted by the trial Court.
10. There is considerable weight in the arguments raised by the appellants' learned counsel. When the complainant alongwith Saghir Ahmad and Bashir Ahmad had reached near the water tank, the five accused persons, though standing together, were not armed with any weapon. It appears that after a chance encounter between the parties something transpired between them whereupon they initially exchanged hot words and then the complainant party caused injuries to Muhammad Nawaz alias Najja accused. Thereafter, the appellants and their co-accused managed to get hold of "Pharas" from the nearby woods tall and caused injuries to the deceased and Muhammad Bashir P.W.8 to defend their relative Muhammad Nawaz. The prosecution had completely suppressed the injuries sustained by Muhammad Nawaz alias Najja accused in the. F.I.R. Even during the trial no attempt was made to explain how Muhammad Nawaz accused had received injuries during the occurrence. As mentioned above, Muhammad Nawaz had received a number of injuries including two injuries on his head, a vital part of the body and definitely had grave apprehension to his life at the hands of the assailants. When examined under section 342 of the Cr.P.C., Ijaz Ahmad, appellant No,1 had stated in reply to question No,13:-- As mentioned has distorted the facts of the case. Actually at the time of occurrence, Saghir Ahmad deceased was present near a Pan shop which is situated near the wooden Tall. He was accompanied by Bashir Ahmad P.W. I passed that way on a Bicycle and demanded Rs,200 from Saghir deceased which he owed to me. Saghir started abusing me feeling disgraced. In the meantime, Nawaz alias Najja and Ghulam Shabbir co-accused also reached there. They checked Saghir deceased from abusing me and also Nawaz alias Najja. Nawaz also abused in exchange when Saghir and Bashir P.W. Picked- up wooden pieces from nearby wooden Tall and inflicted injuries on the head left arm and back of Nawaz alias Najja. I and Ghulam Shabbir in order to save Nawaz alias Najja also picked-up wooden pieces from the Tall and caused them injuries in exercise of right of self-defence. No other P.W. Was present at the spot. Nawaz alias Najja was taken to the hospital and he obtained M.L.R. Thereafter, the complainant party in collusion with the police concocted this false case against me."
Since the prosecution had failed to furnish any explanation for his injuries, it could be presumed that he was attacked by the deceased and his brother Muhammad Bashir P.W.8 and was given the injuries first before the other accused persons retaliated and caused injuries to the deceased and his brother. This view finds support from the judgment in the case of Abdul Rahman v. The Pakistan State PLD 1959 (W.P.) Pesh. 74 in which it was held:-- "When an accused person is found to have been injured in a fight with the deceased, and witnesses claiming to have sent he occurrence try to suppress this fact, it will be reasonable to presume in the absence of any plausible explanation to the contrary, that the accused person was injured by the deceased, and further when it is doubtful as to which of them attacked the other first, the benefit of doubt will go to the accused person."
An accused person need not prove his plea of self-defense beyond a reasonable doubt. He merely has to show that the version put forward by him is reasonably possible, for entitling him to get benefit of doubt. In the case of Muhammad Hussain Qureshi v. The Crown PLD 1954 Lah. 127, it was held:-- "If after an examination of the whole evidence the Court is of the opinion that there is a reasonable possibility that the defense put forward by the accused might be true it is clear that such a view reacts on the whole prosecution case. 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 reasonable doubt."
' In the case of Muhammad Akram v. The State 1982 PCr.LJ 1107 a Division Bench of the Karachi High Court had held that although the burden of the plea of self-defence was on the accused, the onus on him was not to prove the plea beyond reasonable doubt but the question is to be decided whether on the basis of the evidence on record there was a reasonable possibility of the self- defense plea raised by the accused being true.
11. In the circumstances of the case, the plea of self-defense raised by the appellants appears to be reasonably possible. Therefore, the appeal is accepted, the appellants' conviction and sentence under section 302-B of the P.P.C. Including fine and amount of compensation are set aside and they are acquitted of the charge against them. They were ordered to be released from the jail vide my short order, dated 25-6-1998. This judgment contains the reasons for the above referred short order which shall be read as a part of the judgment.