' The appellants were convicted for an offence under sections 148/149/302 and 324 of the P.P.C. By the trial Court vide judgment, dated 23-1-1994. They were sentenced as under:-- Muhammad Abbas (appellant No. l)
Muhammad Yousaf (appellant No.2)Impisonment for life under section 302-B of the P.P.Cand to pay compensation amounting to Rs.30,000 to the legal heirs of Idrees, ,deceased under section 544- A of the Ct.P.C..
R.I. for 5 years under section 337-D of the P.P.C., Arsh to the extent of 1/3rd of Diyat undersection 337-E(i) of the P.P.C., R.I. for one year (Daman) as a Tazir. Till the amount of Arsh is not paid, he shall be kept in jail and be dealt with in the same manner as if sentenced to simple imprisonment until the amount of Arsh is paid in full. The amount of Arsh shall be payable to Muhammad Aslam. The amount of Daman shall be paid to Muhammad Asghar.
' During the pendency of the appeal, Muhammad Yousaf appellant No,2 passed away. The leafned counsel for the appellants submits that he will press the appeal on behalf of Muhammad Yousaf as well because his legal heirs desire that blot of conviction be removed from the name of their deceased predecessor..
2. The occurrence had taken place on 7-10-1991 at about 6-30 p.m. In the main Bazar Kot Abdul Malik in which Muhammad Idrees was killed and Muhammad Aslam P.W.9, Muhammad Asghar (not produced) were injured. The F.I.R. (Exh.P.K.) was lodged by Muhammad Ali P.W.7: The complainant stated that his brother Muhammad Idrees was married to Mst. Zubaida Bibi.
Muhammad Abbas was married to Mst. Fazeelat Bibi alias Rani real sister of Mst. Zubaida. Mst.
Fazeelat was not pulling on well with her husband and used to live in the house of her parents often. Idrees forbade Muhammad Abbas about his frequent quarrels with his wife whereupon they exchanged abuses and had an altercation. On 7-10-1991 at about 6-30 p.m., the complainant alongwith Idrees, deceased, Muhammad Akbar son of Ali Muhammad, Muhammad Aslam son of Noor Muhammad and Muhammad Asghar son of Muhammad Aslam were passing through the main Bazar in order to go to the house of Noor Muhammad. When they reached the house of Muhammad Din son of Ranjha the accused persons launched an attack on them. Muhammad Abbas appellant No,1 was armed with a .12 bore gun, Muhammad Yousaf, deceased, with a carbine, Muhammad Aslam with a hatchet, Allah Ditta alias Mana and Muhammad Mushtaq with Sota, Allah Ditta and Mushtaq raised a Lalkara that no one should be allowed to hescape. Abbas fired the first shot with his gun causing injuries on the right thigh of Idrees deceased who fell down on the ground. Aslam inflicted a hatchet blow on the forehead of the deceased. Yousaf, deceased fired a shot with his carbine causing injuries on the front side of right shoulder of Muhammad Aslam. He fired the second shot causing injuries on the right shoulder of Muhammad Asghar (not produced). The complainant further stated in the F.I.R. That in self-defence they caused minor injuries to the accused persons. The F.I.R. Was recorded by Ghulam Hussain Inspector P.W.12. The investigation of the case was initially conducted by Ghulam Hussain, Inspector P.W.12 (mentioned as P.W.13 in the judgment). He prepared the injury statement of Idrees, deceased (Exh.P.C.), the inquest report Exh.P.D. And handed over the dead body of Idrees to Muhammad Ashraf and Abdul Khaliq for taking it to the mortuary. He also secured blood-stained earth from the place of occurrence vide recovery memo. Exh.P.L. Recovered two empty cartridges P.1-2 vide recovery memo. Exh.P.M., prepared site plan Exh.P.N. Abdul Khaliq P.W.1 produced last-worn clothes of the deceased shirt P.1, Chaddar P.2, Salooka P.3 which were taken into possession vide recovery memo.
Exh.P.A. He arrested four accused persons namely Muhammad Abbas, Muhammad Yousaf, Aslam and Mushtaq. After his transfer, the investigation was entrusted to Muhammad Ibrahim, S.-I. P.W.13 (mentioned as P.W.14 in the judgment). He recorded the statements of Aslam and Asghar in the Mayo Hospital, Lahore. Aslam produced before him his Kurta P.4, Chaddar P.5, Salooka P.6 and Bunyan P.7 which were recovered vide memo. Exh.P.E. He also arrested Allah Ditta accused on 31- 10-1991. After him, further investigation was conducted by Zulfiqar Ali, Inspector P.W.15 (mentioned as P.W.16 in the judgment). He recovered gun P.8 and license P.9 on 10-11-1991, from the house of Muhammad Abbas, appellant No,1 through recovery memo. Exh.P.F. He recovered a hatchet P.10 at the instance of Muhammad Aslam accused through recovery memo. Exh.P.G. He also recovered Sota P.11 at the instance of Muhammad Mushtaq from his house through recovery memo. Exh.P.H.
He prepared the site plan of the places of recovery. After completing the investigation he submitted the challan against Muhammad Abbas, Muhammad Yousaf, deceased, Muhammad Aslam and Muhammad Mushtaq. Allah Ditta co-accused was got discharged but was summoned by the trial Court.
3. At the trial the prosecution produced 16 witnesses including three eye-witnesses named P.W.7 Muhammad Ali, P.W.8 Akbar Ali and P.W.9 Muhammad Aslam. Muhammad Asghar and Akram were given up as being unnecessary. P. W.1 Abdul Khaliq was given sealed parcel containing bloodstained earth which was delivered by him in the office of Chemical Examiner, Lahore on 17-10- 1991. He had taken the dead body of the deceased for post-mortem examination on 7-10-1991. After post-mortem examination the doctor gave him last-worn clothes of the deceased (shirt P.1, Chaddar P.2, Salooka P.3 alongwith a sealed phial) which were produced by him before the Investigating Officer, who secured the same vide recovery memo. Exh.P.A. P.W.2 Dr. Shaukat Hayat performed post-mortem examination on the dead body of Muhammad Idrees on 8-10-1991 at 11-30 a.m. And found the following injuries on his body:--
(1) A lacerated wound 4 c.m. x 1 c.m. x bone deep on the right side of forehead, mid part.
(2) A contusion 3 c.m. x 2 c.m. On the left side of forehead, lower part just on the eyebrow.
(3) A contusion 3 c.m. x 1.5 c.m. On the top of right shoulder.
(4) A contusion 1 c.m. x 0.5 c.m. On the front and outer aspect of right elbow.
(5) An abrasion 1 c.m. x 1 c.m. On the back of right elbow joint.
(6) Multiple abrasions on the back of left elbow joint covering area 8 c.m. x 4 c.m.
(7) Contusion 1 c.m. x 0.5 c.m. On the left back of abdomen lower part.
(8) Lacerated wound 4 c.m. x 2 c.m. On the palmer aspect of right hand and wrist joint.
(9) Crushed lacerated wound with fire-arm 15 c.m. x 1 c.m. Bone fracture on the front of right thigh lower part.
(10) Contusion 1 c.m. x 1 c.m. On the outer aspect of left knee."
' He opined that the death had occurred due to severe shock, haemorrhage and cardio respiratory failure; that all injuries collectively and injury No,9 individually was sufficient to cause death; that probable time between injuries and death was a few hours and between death and post-mortem, 24 hours. P.W.3 Muhammad Ashraf, Moharrir was handed over a sealed parcel containing blood- stained earth on 7-10-1991 which was kept by him in the Malkhana and then delivered to P.W.1 on 14-10-1991 intact. P.W.4 Muhammad Hand is a recovery witness in respect of last-worn clothes of Muhammad Aslam P.W.9. He also witnessed recovery of .12 bore gun P.8 with its licence P.9 from the residential house of Muhammad Abbas, appellant No,1 . He further witnessed the recoveries of hatchet P.10 from Muhammad Aslam, which was secured vide memo. Exh.P.G. P.W.5 Muhammad Siddiq is also a recovery witness regarding recovery of gun P.8, licence P.9 secured vide memo.
Exh.P.F., and hatchet P.10 from Muhammad Aslam co-accused. P.W.6 Muhammad Mansha was given summons Exh.P.J. For service of Dr. Aftab Younas but he was out of Pakistan and could not be served. He made his report Exh.P.J./1 on the summon. P.W.7 Muhammad Ali is the complainant and supported the prosecution story set up in the F.I.R. P.W.8 Akbar Ali and P.W.9 Muhammad Aslam, the injured persons were produced to support the eyewitness account given by the complainant.
P.W.10. Syed Abdur Rahim Kazmi had prepared site plan Exh.P.N. And its duplicate copy Exh.P.N./1.
P.W.11 Fateh Ali,- Constable was given sealed parcel containing .12 bore gun connected with this case, who delivered it in the office of S.P. Technical Services, Lahore on 13-11-1991. P.W.12 Ghulam Hussain, Inspector and P.W.13 Muhammad Ibrahim had investigated the case. P.W.14 Salamat Ali.
A.S.-I. Was given a sealed parcel containing .12 bore gun connected with this case which was kept intact in the Malkhana and handed over to Fateh Muhammad Constable on 13-11-1991. P.W.15 Zulfiqar Ali, Inspector had completed the investigation and submitted challan against the accused persons. P.W.16 Muhammad Hussain, record-keeper had produced the original record of M.L.C.
No,2621 of 1991, dated 7-10-1991, relating to Muhammad Aslam and Asghar. He stated that Dr. Aftab Younus who had gone out of Pakistan had conducted the medical examination. He identified the handwriting of the doctor on Exh.P.O. And P.O./1. On 15-11-1991 after tendering in evidence report of the Chemical Examiner, Exh.P.P., report of Serologist Exh.P.Q. And Report of S.P. Technical Services Exh.P.R., the prosecution closed its evidence.
4. When examined under section 342, of the Cr.P.C. Muhammad Abbas, appellant No,1 denied the charge and stated that the complainant party had committed aggression, caused injuries to his mother Mst. Murad Bibi and brother Yousaf. He further stated that his brother Muhammad Aslam was injured in the occurrence. Therefore, he (appellant No,1) fired in self-defence and defence of his near relatives. Muhammad Yousaf, deceased (appellant No,2) had also made a statement under section 342 of the Cr.P.C. Similar to that of Muhammad Abbas, appellant No,1
5. The accused persons produced three witnesses in their defence. D.W.1 Sajjad Hussain produced the original record relating to M.L.C. Nos.2518, 2520 and 2521 of 1991 with regard to Muhammad Yousaf son of Khushi Muhammad, Muhammad Aslam son of Khushi Muhammad and Mst. Murad Bibi. D.W.2 is Dr. Abdul Bari who had examined Muhammad Yousaf and found the following injuries on his person:--
(1) Lacerated wound 4.7 c.m. x .7 c.m. x bone deep on right side of forehead.
(2) Lacerated wound 5 c.m. x 1 c.m. x bone deep on top of head right side.
(3) Lacerated wound 5 c.m. x .7 c.m. x bone deep on top of head right side 1.5 c.m. Above injury No,2 with contused swelling 9 c.m. x 7 c.m. Around injuries Nos.2 and 3.
(4) Lacerated wound 5 c.m. x 1 c.m. x bone deep on top of head right side 2 c.m. Above injury No,3.
(5) Contusion 6 c.m. x 5 c.m. On back of chest mid part in mid line.
(6) Contusion 13 c.m. x 2 c.m lumber region.
(7) Contusion 9 c.m. x 2 c.m. On right buttock."
' On the same day he had examined Muhammad Aslam son of Khushi Muhammad and found the following injuries on his person:--
(1) Lacerated wound 4 c.m. x .7 c.m. x bone deep on top of head right side.
(2) Lacerated wound 3 c.m. x .7 c.m. x bone deep shaped on inner side of left eye-brow.
(3). Lacerated wound 1 c.m. x .2 c.m. x bone deep on bridge of nose with contused swelling 3 c.m. x 2 c.m. Of nose.
(4) Contused swelling 7 c.m. x 7 c.m. On front of right chest upper part.
(5) Contusion 9 c.m. x 8 c.m. On upper part of left shoulder.
(6) Contusion 11 c.m. x 3 c.m. On back of left fore-arm mid part.
(7) Contusion 9 c.m. x 2 c.m. On back of chest mid part."
' He had examined Mst. Murad Bibi and found the following injuries on her body:--
(1) Lacerated wound 5 c.m. x 1 c.m. Bone deep on top of head left side.
(2) Contused swelling 9 c.m: x 5 c.m. On back of right hand.
(3) Lacerated wound 1 c.m. x .3 c.m. x bone deep on top of index finger of left hand.
(4) Contusion 6 c.m. 3 c.m. On outer side of right upper arm.
' D.W.3 Dr. Tahir Bashir produced X-Ray reports DD/2 and DD/3. His report is Exh.D.W.3/1. Further, he produced X-Ray reports Exh.D.W.3/2 of Muhammad Aslam and D.W.3/3 in respect of Muhammad Yousaf.
6. The appellants' learned counsel urged that the prosecution had completely failed to prove the motive stated in the F.I.R.; that the prosecution has suppressed injuries sustained by Muhammad Aslam, his brother Yousaf and mother Mst. Murad Bibi; that the appellant had acted in his own defence as well as the defence of his near relatives; that the plea of self-defence was rejected by the trial Court on whimsical and untenable grounds; that on the same evidence the trial Court had acquitted Allah Ditta, Muhammad Aslam and Mushtaq co-accused; that the prosecution evidence could not be accepted qua the appellants without strong and independent corroboration which is lacking in the case; that Aslam accused had allegedly caused a hatchet injury on the forehead of Idrees deceased but no such injury is found on his body; that subsequently, the complainant party had murdered Yousaf deceased appellant No,2, Mst. Murad Bibi and Allah Ditta whereupon two cases were registered against the complainant party vide F.I.Rs, Nos.131 and 132 of 1995. In support of his contentions, he relied on the following judgments:--
(i) Ghulam Murtaza and another v. The State 1993 PCr.LJ 1646.
(ii) Muhammad Arif and another v. The State 1994 PCr.LJ 2418.
7. On the other hand, the learned State Counsel submitted that the F.I.R. Was promptly lodged within one hour of the occurrence; that P.W.9 is himself injured and his presence at the time of occurrence cannot be doubted; that the case was proved against the appellants beyond any reasonable doubt.
8. There is considerable weight in the arguments raised by the appellants' learned counsel. The motive stated in the F.I.R. Is that Idrees, deceased had forbidden Muhammad Abbas from quarrelling with his wife Mst. Fazeelat Bibi whereupon they exchanged abuses and had an altercation 3/4 days prior to the occurrence. The alleged motive is sought to be proved by the solitary statement of P.W.7, the complainant. He clearly stated, "I was not available at that time when Idrees had a dispute with Muhammad Abbas. I do not know those persons who collected and separated Idrees and Abbas". Therefore, whatever stated by P.W.7 about the alleged incident forming motive was merely hearsay. The prosecution did not produce any person who had witnessed the altercation between Idrees, deceased and Muhammad Abbas, appellant No,1.
Therefore, the prosecution had failed to prove the motive set up in the F.I.R.
9. In the F.I.R., the complainant had generally stated that the complainant party had caused injuries to the accused persons in self-defence. However, at the trial, the complainant as well as the other eye-witnesses changed their versions. Muhammad Ali, P.W.7 the complainant, Akbar Ali, P.W.8 and Muhammad Aslam P.W.9 stated that they neither caused injuries to the accused persons nor stated so before the police. Therefore, it is established that the prosecution did not offer any explanation regarding the injuries sustained by Muhammad Yousaf, appellant, his brother Muhammad Aslam and mother Mst. Murad Bibi.
10. Muhammad Aslam had received seven injuries shown in his medico-legal report Exh.D.C. His nasal bone was fractured. When he was being injured, he raised hue and cry whereupon his mother came out and was attacked by the complainant party. She received four injures shown in her medico-legal report Exh.D.D. Muhammad Yousaf, appellant also came out with the intention to rescue his brother and mother and was attacked and injured by the complainant party. He received seven injuries shown in his medico-legal report Exh.D.B. At this juncture, appellant No,1 apprehended real danger to his life as well as lives of his mother and brother. He brought his licensed gun from the house and fired one shot at the complainant party. In all probability the shot fired by appellant No,1 hit Idrees, deceased who later succumbed to his injuries. It is difficult to accept the appellants version that Ashraf, brother of Mst. Fazeelat Bibi had fired a gun shot which hit the deceased as well as Muhammad Aslam P.W. The appellants did not produce any witness in support of their plea that the shot fired by Ashraf had caused injuries to Idrees deceased as well as Aslam, P.W. On the other hand, the prosecution has produced three eye-witnesses P.W.7 to P.W.9 who have stated that the shot fired by Abbas appellant No,1 had injured the deceased appellant.
He fired one gun shot and did not use more force than was apparently necessary in the circumstances of the case. Since the prosecution had failed to explain the injuries sustained by three persons on the side of the accused party, it can be presumed that the complainant party had first committed aggression and thereafter, Abbas appellant No,1 retaliated and caused injuries to the deceased to protect the life of his mother and brothel Muhammad Yousaf, appellant. The question arises whether by firing a shot at the deceased and causing injuries to him as well as Muhammad Aslam P.W., Abbas appellant No, had committed any offence in the circumstances of the case? Since the prosecution had suppressed injuries sustained by three persons on the side of the accused party, it can be presumed that the complainant party including the deceased had launched an attack on the accused persons posing serious threat to their lives. In this connection, the statement of Abbas appellant No,1 under section 342 of the Cr.P.C. Assumes importance. In reply to question No, 14, he stated:-- "On the day of occurrence, I alongwith my brothers Yousaf and Aslam were available in our house. I alongwith my brother Muhammad Aslam came out (of) house with a motor-cycle and were about to leave, near my house Idrees deceased, Aslam son of Noor Muhammad, Ashraf son of Noor Muhammad were available in ambush condition and they were also armed. Thereafter, Muhammad Idrees and others assaulted us. At that time Yousaf my brother was available in the house. Muhammad Aslam was subjected to beating and he fell down on the ground. After hearing noise my mother Murad Bibi came out (of) house. She was also subjected to beating by Muhammad Idrees and others. Muhammad Idrees and others caused injuries to Muhammad Aslam and my mother at vital parts. On account of beating hand of my mother was fractured at different places, while nasal bone of Muhammad Aslam was fractured. At the same time Muhammad Yousaf my brother also came out (of) house when I alongwith other were subject to beating by Idrees and others. Meanwhile, I went inside my house, brought my licensed gun and fired in self-defence of my person and that of my mother and brother. Besides me nobody else was armed amongst us. Meanwhile, Arif brother of the deceased came to the place of occurrence duly armed with a gun and he started opening fire. His fire hit Muhammad Idrees and Muhammad Aslam. Complainant party was aggressor. I did not commit any offence. Rather I acted in self- defence to save my life and to save the life of my close relatives. Allah Ditta my brother was not available in Hussain Cane Factory at that time. Likewise my brother Mushtaq who was aged 13 years at that time and did not participate in the occurrence. My brothers Muhammad Yousaf and Muhammad Aslam did cause injuries to any person. Allah Ditta my brother was found innocent and he was discharged. During the course of investigation our defence version was found correct.
Our injuries were intentionally suppressed by prosecution. We produced medical certificate before Investigating Officer but he refused to accept the same."
' The statement made by Abbas' appellant No,1 gets support from the M.L.R. Muhammad Yousaf, deceased appellant No,2, his brother Muhammad Aslam and mother Mst. Murad Bibi. Therefore, in the circumstances of the case Abbas appellant No,1 had complete right of defence of his real brother Muhammad ousaf and mother Mst.'Murad Bibi.
11. The trial Court has wrongly held that it was a case of free fight in which each person was liable for his individual act. The facts and circumstances of the case fairly show that the complainant party had a serious grouse against the accused persons, subjected them to attack and succeeded in causing substantial injuries to Muhammad Yousaf, appellant No,2, his brother Muhammad Aslam and mother Mst. Murad Bibi. The vengeance of the complainant party is demoi., trated by the fact that during the pendency of the present appeal, it murdered Muhammad Yousaf, appellant No,2 and his mother Mst. Murad Bibi as well as another brother of Muhammad Yousaf, appellant No,2. Allah Ditta was an accused in the present case but was acquitted'by the trial Court.
He was also targeted and done to death by the complainant party during the pendency of the appeal. I am told that the case registered vide F.I.R. No,131 of 1991 at Police Station Shandara, Lahore regarding murder of Muhammad Yousaf appellant No,2 is still pending while the other case registered F.I.R. No,132 of 1995 at Police Station Factory Area, Lahore regarding murder of Mst. Murad Bibi and Allah Ditta had been decided. In the latter case two accused persons named Nazir Hussain, brother of Muhammad Ali, complainant and his son Liaqat were found to be guilty and sentenced to life imprisonment under section 302(b) of the P.P.C.
12. There is also weight in the argument raised by the appellant's E learned counsel that on the same evidence three co-accused named Allah Ditta, Aslam and Muhammad Mushtaq were acquitted and that the others could not be convicted without strong independent corroboration which is lacking in the case. The eye-witnesses did not tell the truth about the acquitted co- accused. Moreover, they suppressed material facts regarding the injuries caused to three persons from the accused side. Therefore, they could not be believed qua the appellants without strong corroboration. The recoveries of blood-stained clothes of the deceased and Muhammad Aslam, P.W., blood-stained earth from the spot or .12 bore gun P.8 from the appellant cannot advance the prosecution case the fate of which actually hinges upon determination of the question as to which party had committed aggression. Once it is held that the eye-witnesses had suppressed the material facts and were not believable qua the acquitted co-accused and that Muhammad Abbas appellant No,1 had fired shots to save his own life as well as lives of his near relatives, then the abovementioned recoveries cannot be used as corroborative material to establish the offence against the appellants. It is unfortunate that Muhammad Yousaf, appellant No,2 was done to death during the pendency of the appeal. Similarly another acquitted co-accused Allah Rakha and Mst.
Murad Bibi, mother of the appellants were also murdered. The appellants have blamed the complainant party for the said murders. The case about murder of Muhammad Yousaf is pending but in the other case Nazir Hussain, real brother and Liaqat son of the complainant had been found to be guilty under section 302(b) of the P.P.C. The version put forward by the appellants appears to be reasonably possible. In the case of Ghulam Murtaza and another a Division Bench of this Court had held that an accused person is the judge of his own danger and law permits him to repel the attack even by taking the life of the assailant and that the accused version regarding right of self- defence is to be accepted if the same appears to be reasonably possibly in the circumstances of a case. In the case of Muhammad Arif it was held that where the origin of fight was not clear and where there was every probability of the deceased having opened the attack, the single shot fired by the accused which hit the deceased could be justified in self-defence in view of the provisions of section 100 of the P.P.C. It is settled law that burden to prove its case beyond a reasonable doubt always remains on the prosecution and weakness of the defence cannot prove the prosecution case as held in the following judgments:--
(i) Rehman and others v. The State PLD 1968 Lah.
464.
(ii) Wali Muhammad v. The State 1969 PCr.LJ 1185.
(iii) Din Muhammad v. The State 1969 PCr.LJ 1527.
(iv) Saeed Ahmad and another v. The State PLD 1972 Lah.
360.
' Where there is reasonable possibility of the defence plea being true, then benefit of doubt must go to the accused as held in the case of Muhammad Hussain Qureshi v. The Crown PLD 1954 Lah.
127. In the present case as discussed above, the plea of self-defence raised by the appellants is reasonably possible.
13. Therefore, the appeal is accepted and the appellants are acquitted of the charges against them. Abbas Ali, appellant No,1 was released on bail 1 vide order, dated 3-10-1996. His bail bonds shall stand discharged.