' RIAZ KAYANI, J.---Fayyaz Akbar son of Akbar Khan, Muhammad Ashraf alias Nikka son of Muhammad Muni r and Haq Nawaz alias Boota son of Ghulam Nabi have through the instant appeal assailed the judgment of the Sessions Judge, I Toba Tek Singh, dated 14-11-1997 whereby an of them were convicted under section 302(b), P.P.C. Fayyaz Akbar and Muhammad Ashraf were sentenced to death whereas Haq Nawaz was sentenced to life imprisonment. Each one of them was directed to pay compensation to the legal heirs of the deceased in the sum of Rs,40,000.
Benefit of section 382-B, Cr. P.0 was extended to Haq Nawaz. Death sentence awarded to Fayyaz Akbar and Muhammad Ashraf was subject to confirmation by this Court.
2. Jamil Akhtar complainant has filed criminal revision for the enhancement of sentence of Haq Nawaz to death sentence.
3. We intend to deal with all these matters through this single judgment.
4. The incident which resulted in the death of Shabbir Akhtar took place on 21-11-1995 at 3-00 p.m.
Near sugarcane crushing machine of Riaz P.W. In the vicinity of Chak No,520/GB lying at a distance of 12 miles from Police Station Saddar, Toba Tek Singh. The complaint was made by Jamil Akhtar brother of the deceased on 21-11-1995 at 3-30 p.m. At Adda Chak No,521/GB recorded by Rafaqar Ali, S.-I. Police Station Saddar, Toba Tek Singh. Formal F.I.R. Was registered at 4-15 p.m. On the same day by Muhammad Hanif Muharrir.
5. Prosecution version described in the First Information Report, authored by Jamil Akhtar, is that he resides and also runs a business of tea stall in Chak No,520/GB. On the fateful day at 3 p.m. He along with his brother Shabbir Akhtar had gone to the sugarcane crushing machine of Muhammad Riaz son of Ghulam Ali P.W. At a distance of 1-1/2 acres from the village, where he was sitting busy in conversation, when all of sudden Fayyaz Akbar and Ijaz Akhtar sons of Akbar Khan armed with Khanjars, Muhammad Ashraf alias Nikka armed with Chhuri, Muhammad Asif empty-handed and Haq Nawaz alias Boota also armed with a knife all residents of the village came to the spot raising Lalkaras. Ijaz Akbar exhorted his companions to kill Shabbir Akhtar, who immediately took to his heels to save his life. The accused gave a chase and overpowered him, then Muhammad Asif getting held of his hands from the back side, Ijaz Akbar gave first Khanjar blow to Shabbir Akbar which hit him on his chest from the front side at the bottom part, followed by Khanjar blow by Fayyaz Akbar which hit Shabbir Akhtar on his head towards right side. Another blow by Ashraf hit Shabbir Akhtar on the front of the chest at right side and lastly a blow was given by Haq Nawaz with his Chhuri which hit Shabbir Akhtar on his left thigh at the back side. On hue and cry Rehmat Ali son of Fateh Din and Muhammad Habib brother of the complainant reached the spot and viewed the occurrence, however, the accused after murdering the deceased ran away.
6. Motive for the occurrence is that about 1 month and 10/11 days earlier Ijaz Akbar along with five others injured the complainant by firing with a gun and the case was lodged by the deceased Shabbir Akhtar who pursued the matter. Being aggrieved by the interest of the deceased with the referred to case all the accused by forming unlawful assembly with the common object to launch a murderous assault murdered his brother Shabbir Akhtar.
7. Rafaqat Ali, S.-I. After sending the complaint to the Police Station for registration of the formal F.I.R. Proceeded to the place of occurrence where he examined the dead body of Shabbir Akhtar lying near Bailna. He took blood-stained earth in possession vide memo. Exh.P.H., prepared the injury statement Exh.P.I., and inquest report Exh.P.J. And dispatched the dead body for post-mortem examination to the mortuary. He prepared the site plan without scale Exh.P.K. On 16-12-1995 he arrested all the accused. Fayyaz Akbar produced pistol P.7 which he took in possession vide memo.
Exh.P.L. Since Fayyaz Akbar could not produce the licence a separate case under the Arms Ordinance was registered against him. Fayyaz Akbar also led to the recovery of blood-stained Khanjar which he took into possession vide memo. Exh.P.C. Ashraf also led to the recovery of Chhuri P.5 which was taken in possession vide memo. Exh.P.D., whereas Haq Nawaz taken in possession vide memo. Exh.P.D., whereas Haq Nawaz led to the recovery of blood-stained Chhuri P.6 taken in possession vide memo. Exh.P.E.
8. Dr. Muhammad Khalid, Medical Officer, District Headquarters Hospital, Toba Tek Singh on 22-11- 1995 conducted the postmortem examination on the dead body of Shabbir Akhtar, aged 35 years and observed the following injuries on his person:-
(1) An incised wound 3 c.m. x .5 c.m. x scalp deep on the right of head 2 c.m. Above the right ear.
(2) A stab wound 2.5 c.m. x 1 c.m. x muscle deep on the right side of chest, upper 1/3, just below the medial 1/3 of clavicle.
(3) A stab wound 3 c.m. x 1 c.m. x communicating with chest vacuity on the right side of front of chest, 6 c.m. Below the right nipple.
(4) A stab wound 3 c.m. x 1 c.m. x muscle deep on the back of left thigh, 6 c.m. Below the buttock.
' In the opinion of the doctor cause of death was injury to vital organs i,e, heart caused by injury No,3 which was ante-mortem and caused by sharp-pointed weapon and was sufficient to cause death in the ordinary course of nature individually as well as collectively. All the injuries were also ante-mortem. Injuries Nos.2 and 4 were caused by a sharp-pointed weapon whereas injury No,1 was caused by sharp-edged weapon Probable time that elapsed between injuries and death was immediate and between death and post-mortem was 12 to 24 hours.
9. Trial Judge acquitted Ijaz Akbar and Muhammad Asif by extending them benefit of doubt.
10. During the trial the appellants were charged, which they denied and pleaded not guilty.
11. The prosecution examined as many as 12 witnesses. The prosecutor tendered in evidence report of the Chemical Examiner Exh.P.O. Wherein the Chhuris recovered from the appellants were stated to be stained with blood and report of the Serologist Exh.P.Q. Which confirmed that the blood was of human origin. Statements of the appellants were recorded under section 342, Cr.P.C. Fayyaz Ahmed in reply to question No,11 gave the following answer:-- "I am innocent. On the alleged day of occurrence I, along with Aslam son of Monshe Lambardar was coming from our tube well and were proceeding towards the village, when I reached in Killa No,7 of Square No,25 which is in our cultivating possession, Shabbir Akhtar deceased and across me while armed with .30 bore pistol P.7 and h fired two/three shots at me but luckily I was not injured and I under the apprehension of imminent danger to my life tried to snatch the pistol from the deceased and in that process the deceased grappled with me and during this process aforesaid Aslam gave 3/4 blows with knife to the deceased in order to save myself and himself from the firing of the deceased. During the investigation when I appeared before the police I produced that pistol P.7 along with three bullets P.8/1-3 and also explained the above said circumstances and took up the plea as stated above and also stated that the pistol P.7 and bullets P.8/1-3 belonged to the deceased, which were taken into possession by the I.O. And in addition to the present case was involved under section 13/20/65, A.O. With the connivance of complainant party for the said pistol and bullets of the deceased. The pistol P.7 was licensed pistol of the deceased and it was disclosed to the I.O. Of this case."
' The other appellants denied their participation in the occurrence and stated that they have been involved due to enmity and the P.Ws. Have deposed against them as they are closely related to each other. Appellants examined Muhammad Iqbal D.W.1 who was an Arms Dealer who brought register for sale and purchase and the cash receipt book for the year 1991. According to entry, dated 19-10-1992 he sold a 30 bore pistol Pak Made No,A 5660 along with 12 bullets to Shabbir Akhtar son of Abdul Aziz whose license number was 639/TMT which was renewed up to 31-12-1992.
Signatures of Shabbir Akhtar were obtained on the sale register.
12. Learned counsel appearing for the appellants has bitterly criticized the prosecution version stating that the F.I.R. Was not recorded at the police station and purposely was stated to be recorded at the Adda in order to gain time to distort the real version and to create evidence for false implication. He relied on Ata Muhammad etc. v. The State (1995 SCM R 599). It was further stated that if Jamil Akhtar was attacked by Fayyaz and others for which F.I.R. No,235, dated 10-10- 1995 was registered then the motive lay with the prosecution to seek vengeance. It was further stated that the eye-witnesses were not present at the spot and are also inimically deposed, therefore, no reliance could be placed on their testimony as such the defence version in to have to be accepted. It was further stated that Jamil Akhtar complainant was a compulsive liar having made application to get pistol P.7 belonging to his brother Shabbir Akhtar, recovered at the instance of Fayyaz totally denied not having made the said application and having appended his signatures, which was contrary to the facts proved on record, ulterior consideration being to promote the version put forward by the prosecution so that the defence version may be frustrated.
Conversely learned counsel for the complainant supported the conviction and sentence recorded by the trial Judge.
13. Learned counsel for the State adopted the argument of the counsel for the complainant.
14. We have given our serious consideration to the respective arguments of the learned counsel and with their assistance have minutely gone through the record.
15. Jamil Akhtar in the first information report stated that he had gone to the sugarcane crushing machine of Muhammad Riaz but had not mentioned presence of Muhammad Riaz at that time which becomes obvious from his narration at the end of the F.I.R. Where he reiterated that the occurrence was seen by Rehmat Ali P.W.8 and Habib his brother, who was not produced. When Jamil Akhtar was examined as P.W.7 he for the first time also included Riaz in the array of the eye- witnesses but when confronted with the contents of the F.I.R. Presence of Riaz was not found to have been mentioned in the said F.I.R. The improvement made was firstly to promote the prosecution case and secondly to show presence of the witness at the spot. Even otherwise the site plan Exh.P.F. Does not show the point where Riaz was standing at the time of occurrence. To the contrary Jamil Akhtar is stated to be sitting with Shabbir Akhtar deceased and at point 4 Rehmat Ali and Habib' are stated to have witnessed the occurrence. P.W.9 Riaz in his cross-examination admitted to have criminal litigation with Haq Nawaz appellant who it is stated had assaulted the witness and his sister and caused injuries for which his father lodged the report.
16. Pistol P.7 was recovered at the instance of Fayyaz Akbar and it was stated to belong to the deceased who had a licence for it. It has been proved by D.W.2 Muhammad Iqbal, Arms Dealer as well as by the Investigating Officer who appeared as P.W.12 that pistol P.7 belonged to the deceased. The Investigating Officer also admitted that Jamil Akhtar made an application Exh.P.W.12/A that pistol .30 bore belonging to his deceased brother, recovered from the accused, should be given on Supercar to him. On this application the Investigating Officer admitted that he made a report Exh.P.W,12/1 to the effect that Fayyaz at the time of his arrest produced .30 bore pistol and stated to belong to the complainant party. Magistrate, First Class, Toba Tek Singh on 9-1-1995 passed order that the pistol belonged to the deceased who had a valid licence, therefore, it cannot be given to anyone. However, after the trial pistol P.7 was directed to be return to the legal heirs of the deceased. Jamil khtar in his cross-examination totally denied that he had made application for Supercar of pistol P.7 to the Magistrate or that any police report was called and order was passed.
He even denied his signatures on the application. We are not prepared to believe that Jamil Akhtar did not make any such application. If the argument of the learned counsel for the complainant that this application was manipulated to defeat the prosecution version is accepted Jamil Akhtar should have made an application to the Court immediately or at least to the higher echelons in the hierarchy of the police against the Investigation Officer that he was helping the defence by manipulating application purporting to have detracts been signed by him. To the contrary simple denial of Jamil Akhtar that he did not make any such application or signed in from his authenticity as a whole, who can so boldly prevaricate will cannot be believed. Even otherwise eye to eye with the counsel for the appellant that Jamil Akhtar was injured 1:1/2 months earlier by the appellants, for which a case was registered. The complainant as at the receiving hand and the motive to retaliate lay with the deceased who was a formed constable of Police Department. The spot where the occurrence took place belonged to the appellants, although it is stated that they sold the sugarcane crops to Riaz and others. However, having disbelieved the testimony of Raiz P.W.
Presence of Jamil Akhtar at the sugercane crushing machine becomes highly doubtful.
17. As far as Rehmat P.W.9 is concerned he has not given reasonable explanation of his presence at the spot. He made improvements in the Court while giving statement that Riaz was present at the Bailna and when he was confronted with his earlier statement under section 161. Cr.P.C., it was found that presence of Riaz was not recorded therein. In order to show his presence he stated that he was coming from petrol pump after having filled the tank of the motorcycle with petrol and parked it on the metaled road along with Habib from where he saw the occurrence. The Investigating Officer stated in his cross-examination that the metaled road where this witness was standing was about 6 Kanals from the place where the occurrence took place. This witness admitted that on 3-4-1995 one Parveen Akhtar got registered a case under the Hudood Laws and he got 12 persons apprehended, out of which Ijaz and Fayyaz appeared to be prominent as having formed an unlawful assembly likely to cause breach of peace. He was Chairman of Zakat and Ushr Committee up to 1993 where after Ijaz was appointed to the said post. The witness admits to have filed an appeal against his removal and appointment of said Ijaz to the post. For safe dispensation of justice we do not place reliance on his testimony as we are convinced that firstly he did not witness the occurrence by not giving plausible reasons for his presence and secondly because of enmity with Ijaz brother of Fayyaz Akbar appellant, he is bound to toe the prosecution line.
18. Having disbelieved the prosecution version what remains in the plea raised by defense and it is cardinal principle that if the prosecution case is not to be given credence then the defence version has to be accepted in toto.
19. The defence version has been reproduced in the previous paragraphs of this judgment, as stated by Fayyaz Akbar in reply to a question put to him in his statement recorded under section 342, Cr.P.C., he stated that the deceased motivated by the earlier grudge desired to seek vengeance by firing at him which luckily did not hit him and while grappling to snatch the revolver Aslam accompanying him gave Chhuri blows on the person of the deceased which caused his death.
20. Learned counsel for the complainant submitted that in the first instance the version was false and secondly no right of self-defence was available to Aslam. We may mention at this juncture that the pistol P.7 produced by Fayyaz is the same which was snatched by him from the deceased.
This pistol was purchased by Shabbir Akhtar deceased as deposed by D.W.2 appearing for the defence. There is no other explanation on record except the plea of Fayyaz, as to how he came in possession of pistol P.7. The statement therefore, is creditworthy. The other contention of the learned counsel for the complainant that Aslam had no right of self-defence to stab the deceased once he saw both, Fayyaz appellant, and the deceased grappling with each other and both exerting effort to get hold of the fire-arm, is totally devoid of force. Section 96 of the Pakistan Penal Code states that nothing is an offence which is done in the exercise of the right of private defence.
Next section i,e, 97, P.P.C. States that every person has a right, subject to the restrictions contained in section 99, P.P.C., to defend first his own body, and the body of any other person, against any offence affecting the human body. Section 100, P.P.C. Outlines the cases where right of private defence of body extends to the voluntary causing of death and first two clauses relate to an assault which may reasonably cause the apprehension that death or grievous hurt will otherwise be consequence of such assault. Reading these provisions of law in juxtaposition the clear conclusion, which can be safely drawn is that even a stranger can exercise his right of self-defence on behalf of the victim if the said victim apprehends danger at the hands of an B assailant of the nature of death or grievous injury. Apprehension relates to a tangible and overt act done by the assailant and is discernible by the threatening posture at the time of attack coupled with the weapon which he is about to wield. In the instant case it is stated that the deceased fired at the appellant Fayyaz which missed him and soon thereafter was' a melee between the two for overpowering each other in order to seek possession of the pistol which caused danger to each other. Use of pistol and prevention of its further use by the deceased equipped Aslam with the right of self-defence which he could exercise on behalf of Fayyaz appellant.
21. Right of self-defence is a basic and fundamental right guaranteed to every individual under the law. Subject to certain restrictions embodied under section 99, P.P.C., the right extends to the causing of death of the assailant, if the apprehensive is of the nature outlined in anyone of the six clauses of section 100, P.P.C., by any person on his behalf or the right can be exercised by him for the benefit of even a stranger. The marked difference between the provisions of Pakistan Penal Code and the English Laws that in order to exercise right of private defence on behalf of another, there must exist either blood relation, or relation established under contract, such as husband and wife, master and servant or principal and agent. What is appreciable is that law given to us by the colonial rulers has flourished more in our country but is clogged restriction in their own homeland.
22. We may also take into consideration that on the basis of the same evidence ljaz Akhtar has been acquitted against which there was allegation that he stabbed the deceased. However, the learned trial Judge did not believe his evidence which also proves that ocular testimony is not in conformity with the deposition of the doctor who performed the post-mortem examination.
Recoveries of blood-stained earth were disbelieved by the trial Judge for good reasons which we endorse.
23. The upshot of the discussion is that having disbelieved the prosecution case we have to take into consideration defense evidence which definitely in the instant case has shattered the prosecution version.
24. As a result of our discussion we accept the appeal, set aside the conviction and sentence recorded by the trial Judge vide his judgment, dated 14-11-1997. All the appellants shall be set free if not required in any other case. Death sentence imposed upon Fayyaz Akbar and Muhammad Ashraf is not confirmed.
25. Murder Reference is answered in the negative.
26. Criminal Revision filed by the complainant for the reasons rendered in the judgment is dismissed.