' The appellant namely Nadeem Taj was tried for the charge under section 302/324/34, P.P.C. Upon the allegation of committing murder of Irfan Khan alias Moulvi, the real brother of the complainant Chan Zeb by the learned Additional Sessions Judge, Rawalpindi, and upon conviction was sentenced to imprisonment for life with the direction to pay compensation of Rs,2,00,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. And in default of payment of compensation to undergo S.I. For six months. The appellant upon conviction under section 324, P.P.C. Was awarded the sentence of seven years' R.I with a fine of Rs,20,000 to be paid as compensation to Chan Zeb injured and in default of payment of fine to undergo S.I. For three months. The sentence under the two separate charges was ordered to run concurrently with benefit of section 382-B, Cr.P.C. Through judgment dated 26-3-1998.
2. As per prosecution case, the appellant armed with revolver, and his co-accused namely Rahim Taj and Arshad since acquitted armed with pistol and Danda respectively attacked on Irfan Khan alias Moulvi deceased on 19-2-1995 near his residence located in the area of Police Station Airport, Rawalpindi,.
3. The medical evidence revealed 7 fire-arm injuries on the person of the deceased, whereas Chan Zeb and Daud Khan sustained fire-arm and blunt weapon injuries during the occurrence. The medical examination of Nadeem Taj appellant revealed five injuries of the nature of incised wounds, swelling and abrasion on his person.
4. The appellant raising plea of self-defence stated that the complainant party armed with deadly weapons trespassing into his house raising Lalkara opened firing but he being out of the house remained out of the range and target of the assailants and while from outside of his house visualizing the danger to his life fired at the complainant party in exercise of his right of private defence to protect himself and undo the aggression being committed by his opponents.
5. The learned trial Court unambiguously concluded that the complainant party was the aggressor and that appellant while exercising the right of his private defence caused murder of Irfan Khan deceased and thereby committed an offence under section 302 (b), P.P.C. And considering the defence plea as the sole basis of conviction for committing the Qatal-i-Amd while withholding the full legal benefit treated the same only as mitigating circumstances for the purpose of quantum of sentence under section 302 (b), P.P.C. And awarded life imprisonment to the appellant.
6. Learned counsel for the appellant contended that the plea of self-defence having accepted, the learned trial Court was not justified in awarding the conviction for Qatl-e-Amd under section 302 (b), P.P.C. With sentence of life imprisonment. He claiming the benefit of section 100, P.P.C.
Contended that in the given circumstances and conclusion of the learned trial Court the appellant was entitled to the total acquittal and consequently, the conviction and the sentence awarded to the appellant ultimately being not sustainable, he can legitimately claim concession of suspension of sentence under section 426, Cr.P.C. He in the alternative, argued that in any case, if the benefit of section 100, P.P.0 is not extended to the petitioner at the time of disposal of the appeal, he in view of the findings of the learned trial Court can only be saddled with the liability of nominal penalty under section 302(c), P.P.C. And as per practice in such cases of short sentences the concession of suspension of sentence is not withheld.
7. Learned State Counsel unhesitatingly argued that in view of the finding of the learned trial Court, the case is not covered by the provision of section 302 (b), P.P.C. But the same being definable as an exception to intentional murder being covered by section 302 (c), P.P.C. The suspension of sentence and grant of bail on the question of quantum of sentence cannot be claimed. I have heard the learned counsel for the parties at length and considered the matter thoroughly.
According to the prosecution story as contained in the F.I.R. And also disclosed at the trial, the appellant alongwith his co-accused named therein in furtherance of common intention committing aggression upon the complainant party and causing injuries to the deceased and the P.Ws., committed the offence under section 302/324/34, P.P.C. The defence plea as borne out from the written application Exh.P-14/1 brought on record in the statement of the Investigating Officer disclosed the version of the occurrence given by the appellant in detail. The Investigating Officer having confirmed the said version of the appellant stated the same was taken by the appellant before him at the time of arrest. The appellant repeating the contents of the said application in his statement under section 342, Cr.P.C. Pleaded self-defence. The learned trial Court after making detailed scrutiny of the prosecution evidence and the defence version held that the complainant party was aggressor and consequently giving the benefit of self-defence to the appellant concluded that it was not permissible for the appellant to exceeded to the extent of taking the life of the deceased.
9. The pivotal question for determination for the purpose of section 426 (1), Cr.P.C. Would be whether the trial Court after accepting the plea of self-defence taken by the appellant in toto through giving favourable findings, was justified in withholding the total benefit of section 100, P.P.C.
And whether with the exclusion of prosecution evidence, the conviction on the basis of defence plea as an exception to murder was possible under section 302 (b), P.P.C. The findings of the trial Court are to the effect that the complainant party being aggrieved armed with deadly weapons opened firing at the house of the appellant, who while resisting the aggression exchanged firing and during this process both sides sustained injuries and as a result thereof Irfan Khan lost his life.
Section 100, P.P.C. Provides that the right of private defence is available to a person subject to the restriction mentioned in section 99, P.P.C. If the alleged offence is committed under the circumstances, which occasions the exercise of the right of any of the descriptions given therein.
An assault if reasonably causes the apprehension of death or grievous hurt, the person so having the apprehension that death or grievous hurt will otherwise be the consequence of such assault, such person while making his defence can go to the extent of causing death of attacker.
10. It would be seen that as per findings of the trial Court, the deceased and injured P.Ws. Armed with fire-arm inviting trouble committed aggression upon the appellant and the appellant while acting in the exercise of right of self-defence fired. Thus, question would be whether appellant still incurred the responsibility of murder and could be convicted under section 302 (b), P.P.C. On the basis of defence plea with the expression of opinion that he could still make defence without causing damage to his opponents. There can be no golden scale for measuring the necessary force to be used against aggression in such circumstances and to judge the manner in which the aggression was to be defended, and therefore, the findings of the learned trial Court vis-a-vis the prosecution evidence and the defence plea are self-contradictory for the purpose of conviction for Qatl-e-Amd under section 302 (b), P.P.C.
11. Keeping in view the finding of the learned trial Court of disbelieving the prosecution version and accepting the defence plea, the essential question regarding the nature of the offence committed by the appellant and the quantum of sentence needs determination. There can be no departure from the principle that in case of conviction alone on the basis of defence plea, the same must be accepted in its entirety and given effect accordingly. If the defence plea is found plausible and acceptable and the prosecution story is shattered and discredited, then in such a case there are only two courses open for the Court (i) If defence plea is substantiated only to the extent of creating doubt about the credibility of the prosecution case, that would be enough for extending the benefit of doubt to the accused and (ii) if after exclusion of prosecution case the conviction is awarded on the basis of defence plea then rarely an exception in extending the full benefit of self- defence is created. Thus, as per findings of the trial Court itself the case against the appellant does not fall within the purview of section 302 (b) and consequently, the question whether the conviction and sentence under the said provision of law is sustainable needs serious consideration.
12. It being a case of self-defence as held by the learned trial Court, ostensibly the full benefit of section 100, P.P.0 can legitimately be claimed by the appellant. This is noticeable that the co- accused of the appellant namely Rahim Taj and Arshad in view of the defence plea of the appellant have been acquitted and no revision or appeal was preferred against their acquittal and the finding of acquittal to their extent having not challenged attained finality. According to the prosecution, Rahim Taj fired at the deceased, whereas the present appellant and his co-accused Arshad caused injuries to the P.Ws. The learned trial Court disbelieving the prosecution version acquitted the co-accused of the' appellant, therefore, the conviction of the appellant on the basis of his plea of self-defence, under section 302 (b), P.P.C. Is definitely a matter of debate. There is no rule that while convicting a person on the basis of plea of self-defence, the same should be given effect only to the extent of quantum of sentence ignoring the fact that there was no evidence to be used to hold him guilty. The legal position emerged in the given facts and the findings of the learned trial Court is that (i) if full effect would have been given to section 100, P.P.C. , as per claim of the appellant, it would be a case of acquittal and if (ii) the plea of self-defence was to be considered as an exception only, the case would be falling within the ambit of section 302 (c), P.P.C.
And in such cases the quantum of sentence must rest on different consideration, which may be for any term from 2 years to 25 years of imprisonment.
13. In the light of the foregoing discussion, I am of the view that in the circumstances of the present case, the conviction under section 302 (b), P.P.C. on the basis of defence plea may not ultimately sustain, and therefore, considering it a fit case for suspension of sentence under section 426 (a), Cr.P.C. Allow this application and suspend the sentence of the appellant. He is granted bail, subject to his tendering bail bonds in the sum of Rs, one lac with two sureties each in the like amount to the satisfaction of the. Trial Court.