' ASIF SAEED KHAN KHOSA, J.--Haji Sobha appellant was convicted by the learned Additional Sessions Judge, Jampur, District Rajanpur vide judgment, dated 14-9-1995 for an offence under section 302(b), P.P.C, and was sentenced to death. He was also ordered to pay a sum of Rs,25,000 to the heirs of Amir Bakhsh deceased by way of compensation under section 544-A, Cr.P.C. And in case of default in payment thereof he was ordered to undergo S.I. For six months. Haji Sobha convict has challenged his conviction and sentence before this Court through Criminal Appeal No,259 of 1995. We have heard the convict's appeal along with Murder Reference No,216 of 1995 seeking confirmation of the sentence of death passed against him. We propose to decide both these matters together through the present consolidated judgment.
2. The prosecution story narrated in the F.I.R. Was that Allah Bakhsh complainant was an agriculturist by profession and about 3/4 years before the present occurrence he had shifted his residence from Mauza Yazoo Khosa, Police Station Kot Mubarik to the land of Haji Ghulam Qadir Mastoi in Mauza Islampur where he started cultivating the land of Haji Ghulam Qadir Mastoi as his tenant. At about noon on 4-9-1993 the complainant's brother Amir Bakhsh was irrigating his paddy crop with hill-torrent water when Haji Sobha broke the Nakka and started irrigating his own field with that water. When Amir Bakhsh protested in that regard Haji Sobha started quarreling with Amir Baldish which resulted in exchange of abuses and scuffle between them. Haji Sobha then left for his home extending threats to Amir Bakhsh. At about 5-00 p.m. On the same day Allah Bakhsh complainant, his brother Amir Bakhsh armed with his licensed .12 bore gun and their maternal uncle Ghulam Abbas were returning home from village Malkani through a katcha road. When they reached near the land of Hazoor Bakhsh Numberdar in the area of Mauza Malkani suddenly Haji Sobha, armed with a 7MM rifle, came there from their front while riding on a Honda motorcycle. Haji Sobha then got down from his motorcycle and, addressing Amir Bakhsh, raised a lalkara that he Amir Bakhsh would be taught a lesson for insulting him. Thereafter, Haji Sobha took his position by sitting on the ground and fired a shot at Amir Bakhsh from a distance of 5/6 karams which hit Amir Bakhsh on his right thigh. Amir Bakhsh fell down upon receipt of that injury. Haji Sobha then fired his second shot at the complainant which did not hit him. In the meanwhile Amir Bakhsh controlled himself and fired at Haji Sobha from his gun but missed him. The complainant then ran towards Haji Sobha, took him into his clasp and tried to snatch away his rifle upon which Haji Sobha bit him on his right upper-arm which caused loosening of the complainant's clasp. Thus, after freeing himself from the complainant's clasp Haji Sobha fled towards his home on his motorcycle. Amir Bakhsh was handled by the complainant at the spot but he succumbed to his injury at the spot and died. Leaving his maternal uncle Ghulam Abbas at the place of occurrence with the dead body Allah galchsh complainant proceeded to report the matter to the police.
3. Upon the statement of Allah Bakhsh complainant in respect of that incident F.I.R. No,161 (Exh.PJ) was registered at 6-45 p.m. On the same day at Police Station Dajal, District Rajanpur by Muhammad Rafi Ullah, S.I./S.H.O. (P.W.10) for an offence under section 302, P.P.C.
4. After recording the F.I.R. Muhammad Rafi Ullah, SI/SHO (P.W.10) took up the investigation of this case, went to the place of occurrence, prepared the injury statement of Amir Bakhsh deceased (Exh.PN), the injury statement of Allah Bakhsh complainant (Exh.PP) and the inquest report of the deceased (Exh.PO). He also took into possession the blood-stained earth vide memo. Exh.PF and pieces of broken glass of the headlight of the accused's motorcycle vide memo. Exh.PE. Allah Bakhsh complainant then produced the deceased's gun and its licence along with an empty cartridge which were secured vide memo. Exh.PC, Exh.PD and Exh.PB respectively. He sent the injured complainant to the hospital for medical examination and dispatched the dead body to the mortuary for autopsy.
5. Allah Bakhsh complainant was medically examined by Dr. Akhwand Shakeel Ahmad (P.W.11) on 5-9-1993 vide Exh.PR. The doctor had found one tooth-bite injury on his person caused within a duration of 12-24 hours.
6. The post-mortem examination (Exh.P.Q.) of the dead body of Amir Bakhsh was conducted by the same doctor (P.W.11) on the same day, i,e, 5-9-1993. He found two injuries on the dead body which were both antemortem and caused by a fire-arm. According to the doctor the death was caused by haemorrhage and shock caused by injury No,1 which was sufficient to cause death in the ordinary course of nature. The approximate time elapsing between the injuries and death was stated by the doctor to be immediate while the duration between the death and post-mortem examination was opined by the doctor to be about 16 to 24 hours.
7. On 5-9-1993 Dr. Faiz Ullah Khan (P.W.7) medically examined Haji Sobha accused vide Exh.PK and found two fire-arm injuries on his person caused within a duration of 36 hours.
8. After the post-mortem examination of Amir Bakhsh deceased Muhammad Rafi Ullah, S.I./S.H.O.
(P.W.10), the Investigating Officer, took into possession blood-stained last-worn clothes of the deceased vide memo. Exh.PG. He arrested Haji Sobha accused on 5-9-1993 and took into possession his rifle along with four live cartridges and a licence vide memo. Exh.PI. On the same day he took into possession the motorcycle of Haji Sobha accused vide memo. Exh.PH. He also prepared the injury statement in respect of Haji Sobha accused (Exh.PL) on his arrest and sent him to the hospital for his medical examination. He then got a site-plan (Exh.PA) of the place of occurrence prepared by a Patwari. Thereafter, he completed the other formalities, finalized his investigation and submitted a Challan in respect of this case.
9. At the commencement of the trial the learned Trial Court framed a Charge with one head under section 302, P.P.C. Against Haji Sobha accused to which he pleaded not guilty and claimed a trial.
10. During the trial the prosecution produced as many as eleven witnesses in support of its case against the accused person. Allah Balchsh complainant (P.W.5) and Ghulam Abbas (P.W.6) furnished the ocular account of the occurrence in question. Allah Bakhsh complainant (P.W.5) also deposed about the motive set up by the prosecution. Muhammad Bilal (P.W.4) stated about the recoveries affected from Haji Sobha accused. Dr. Faiz Ullah Khan (P.W.7) and Dr. Akhwand Shakeel Ahmad (P.W.11) provided the medical evidence. Muhammad Rafi Ullah, S.I. (P.W.10) stated about various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
11. In his statement recorded under section 342, Cr.P.C. Haji Sobha accused denied and controverted all the allegations of fact levelled against him by the prosecution anti professed his innocence. He maintained that the police had not arrested him in this case but he had voluntarily appeared before the police and had produced his rifle, motorcycle and licence on the day of occurrence. He went on to state that the prosecution witnesses were near relatives of the deceased and for this reason they had falsely deposed against him. According to him they were not present at the spot at the time of occurrence. While answering a question as to why he had been implicated in this case he stated as follows: "On the fateful day at about Dopehar Wela time Amir Bakhsh deceased diverted the water with which my land was being irrigated towards his own field by breaking Nalcka. When I saw the Nakka being broken and its water diverted towards the land of Amir Bakhsh, I abused and slapped Amir Bakhsh deceased and diverted my water again towards my own field. Amir Bakhsh deceased felt it ill and threatened me with dire consequences. On 4-9-1993, I e., the day of occurrence at 5-00 p.m.
I was going on my motorcycle towards Malkani village along with my licensed rifle. On the way Amir Bakhsh met me who was armed with .12 bore gun. He stopped and challenged me. After challenging he fired a shot at me with his .12 bore gun which hit me as well as to my motorcycle.
Amir Bakhsh deceased wanted to fire a second shot and in the meanwhile I fired a shot with my rifle in my self-defence. The people who reached there intervened and separated us. The matter was reported to the police by me and I was sent to the hospital for medical examination and treatment. As Amir Bakhsh died due to the injury so the local police in connivance with the complainant party twisted the facts of the case to give it a colour of 302, P.P.C. I was attacked firstly by the deceased and then I acted in my self-defence of my person. I am innocent."
' The accused opted not to make a statement on oath under section 340(2), Cr.P.C. But, however, Abdul Hameed Khan, D.S.P. Was produced by him in his defence as D.W.1.
12. At the conclusion of the trial, as mentioned above, the learned Additional Sessions Judge, Jampur, District Rajanpur convicted and sentenced Haji Sobha accused as noticed above. Hence, the present appeal and the connected Murder Reference before this Court.
13. We have heard the learned counsel for the appellant as well as the learned Assistant Advocate- General representing the State and have also gone through the record of this case with their assistance.
14. The learned counsel for the appellant has argued that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. He has maintained that the eye-witnesses produced by the prosecution were chance witnesses who had not only failed to explain their stated presence at the place of occurrence at the time of the incident but had also failed to find material corroboration from any independent source. He has further argued that the evidence available on the record fully supported the plea of self-defence taken by the appellant. As against that the learned Assistant Advocate-General representing the State has argued that the prosecution had successfully proved the guilt of the appellant to the hilt through convincing, cogent and reliable evidence.
15. After hearing the learned counsel for the parties and going through the record we have no hesitation in concluding that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. We have noticed that both the eyewitnesses produced by the prosecution were admittedly chance witnesses who had failed to furnish satisfactory explanation for their claimed presence near the place of occurrence at the time of the incident. The homes of Allah Bakhsh complainant (P.W.5) and Ghulam Abbas (P.W.6) were admittedly far away from the place of occurrence. It was claimed by the prosecution that they had seen the occurrence per chance when they were returning home after taking tea with the deceased at village Malkani. It had come on the record that village Malkani was one mile away from the village of the complainant party. The explanation furnished by both the eye-witnesses for going to village Malkani was that they had gone to that village just for taking tea and that the programme for taking tea at Malkani had been made without preplanning! In this context we have noticed that it had been admitted by them that the complainant party had buffaloes and cows available in their own village. Thus, milk must be available in abundance in their own village. It had not been claimed by the prosecution that tea or tea-stalls were not available in the village of the complainant party.
In this state of the evidence a claim by the said eye-witnesses to have gone one mile on foot only for taking tea has appeared to us to be a claim too tall to be accepted. Such an explanation advanced by the said chance witnesses for their availability near the place of occurrence surely did not commend itself for acceptance.
16. Allah Bakhsh complainant (P.W.5) was the brother of Amir Bakhsh deceased and his coming forward as an eye-witness of an otherwise unwitnessed occurrence has not struck us as something unusual. The doctor who had medically examined him had not ruled out the possibility that the tooth-bite injury found on his upper-arm could be self-suffered. We have also been surprised by the prosecution's claim that after his ineffective fire at the complainant the appellant never even tried to fire at him again despite subsequently getting amply opportunity for repeating his fire at him. We have also noticed with astonishment that despite his claim to have handled his injured and bleeding brother the complainant's clothes were not stained with blood.
17. Besides being a maternal uncle of the deceased and the complainant Ghulam Abbas (P.W.6) was also as much a chance witness as the complainant. His explanation for his presence near the deceased at the time of the occurrence was also the same as that of the complainant. We have already refused to accept that explanation to be worthy of acceptance on the yardstick of normal human conduct. The conduct depicted by this witness during the occurrence also makes his claimed presence to be doubtful. He had admitted on so many words that he did not go near the deceased or the appellant during the whole occurrence, not even at a time when the appellant had allegedly been overpowered or immobilized by the complainant for some time! For all these reasons we have not felt persuaded to accept the presence of the alleged eye-witnesses near the deceased at the time of occurrence.
18. The version of the motive set up by the prosecution has also been found to be doubtful by us. It was claimed by the complainant in the F.I.R. That the appellant had broken the Nakka of the deceased whereupon there took place an exchange of abuses and a scuffle between them and where after the appellant had extended threats of dire consequences to the deceased. We have pertinently noticed that in the F.I.R. The complainant had not claimed to have witnessed that incident of motive but at the trial he made such a claim. In his statement before the learned Trial Court the complainant (P.W.5) had stated that he was present during the motive incident but he had not gone to his brother's help! There are indications available in the statement of the complainant himself that despite the exchange of abuses and scuffle in the motive incident the appellant never had any intention to physically harm the deceased. It was stated by the complainant before the learned Trial Court that during the motive incident the appellant had a kassi whereas the deceased was empty-handed. Thus, if the appellant did not physically harm the deceased during the motive incident itself, when the passions must be at their peak, despite having full opportunity to do so then it was not expected that he would intend and plan to murder the deceased on account of the same incident of motive! Thus, the version of the motive set up by the prosecution has failed to inspire our confidence.
19. The medical evidence and the evidence of recovery of rifle from the appellant produced by the prosecution do not take the prosecution's case far and are, thus, in consequential in the present case as causing of the fatal injury to the deceased and use of his licensed rifle for causing the said injury have been admitted by the appellant in his plea of self-defence.
20. This brings us to the plea of self-defence taken by the appellant in the present case. In this context we have noticed that although the motive incident had been 's accepted by the appellant in his statement recorded under section 342, Cr.P.C. Yet he had maintained that it was in fact the deceased who had interrupted the appellant's water-supply and had shown aggression towards the appellant which had resulted in the appellant slapping the deceased. It was, thus, maintained by the appellant that the boot was in fact on the other leg and that it was the deceased who had felt insulted on account of the motive incident and, therefore, he had the motive to launch aggression against the appellant. Abdul Hameed Khan, D.S.P. (D.W.1) had also found it to be so after his investigation of the matter.
21. After going through the entire evidence available on the record of this case we have found that the appellant's plea of self-defence rings true and the same can safely be accepted. To start with, the appellant did not have any motive to kill the deceased and, as observed above, it was the deceased who could have been motivated to launch aggression against the appellant on account of the incident of motive taking place during the earlier part of the fateful day. In this context we have noticed that receipt of slaps by the deceased at the hands of the appellant during the motive incident had not been controverted or denied by the complainant in his statement before the learned Trial Court. Secondly, there is nothing available on the record to show that the appellant knew anything about the complainant party's sudden craving for tea served at Malkani and their programme for proceeding to Malkani for that purpose so as to enable the appellant to intercept them en route for committing the deceased's murder. Thus, the appellant's claim of a chance encounter between the deceased and the appellant on a village path appears to be quite reasonable. Thirdly, the complainant party had itself admitted that the deceased had also fired at the appellant but it had been maintained that the said fire did not hit the appellant. We have noticed that the appellant had in fact suffered serious fire-arm injuries on his front chest and elbow during that very incident but his injuries had been completely suppressed by the complainant party in the F.I.R. As well as in their depositions before the learned Trial Court. That not only showed that the complainant party was concealing the true facts but also that the appellant's version of the incident could reasonably be true. Fourthly, during the investigation it had been established that the motorcycle of the appellant had marks of pellets on it but the complainant party had categorically denied that the appellant's motorcycle was hit by the deceased's fire. Such facts went a long way in establishing that the deceased fired at the appellant at a time when the appellant was travelling on his motorcycle and that it was only .After the initial aggression by the deceased that the appellant fired back in exercise of his right of private defence., Fifthly, the appellant was got medically examined by the police itself and according to the doctor who had examined him the appellant could fire a shot even after receipt of the injuries found on his person.
This further supported the defence plea that the appellant firstly received a fire-shot of the deceased and then, in his defence, he fired a shot at the deceased. Sixthly, even in that injured condition the appellant fired only one shot at the deceased and that too at a non-vital part of his body, i,e, thigh. This showed that the intention of the appellant was, only to stop the deceased from shooting and not to kill him. Seventhly, the appellant's claim that soon after the incident he had voluntarily appeared before the police with his licensed rifle and the motorcycle had been admitted to be true by none other than the deceased's own father Muhammad Bilal (P.W.4). Lastly, the Investigating Officer (P.W.10) had categorically stated that the appellant's first version before him was that of unprovoked aggression by the deceased and exercise of right of private defence by the appellant. The Investigating Officer had not minced his words in stating before the learned Trial Court that he had, after due investigation by him, found the version of the appellant to be correct.
22. For what has been observed above we have arrived at a confident conclusion that the prosecution had failed to prove its case against the appellant beyond reasonable doubt and that the defence plea of exercise of right of private defence by the appellant rings true. We have also felt convinced that in the circumstances of the present case the appellant had not exceeded his right of private defence when he fired at the deceased using his licensed rifle at a time when he had already been hit by the fire of the deceased which had landed at the appellant's chest and elbow. This appeal is, therefore, allowed, the impugned judgment passed by the learned Additional Sessions Judge, Jampur, District Rajanpur on 14-9-1995 is hereby set aside and the appellant is acquitted of the charge against him. He shall be released from jail forthwith, if not required in any other case.
23. As the appeal filed by Haji Sobha appellant has been accepted, with a resultant setting aside of his conviction and sentenced recorded by the learned Trial Court, and he has been acquitted by us, therefore, Murder Reference No,216 of 1995 is hereby answered in the negative. Accused acquitted.