' This is an appeal against the judgment dated 16-5-1995 passed by the learned Addl. Sessions Judge, Lahore whereby the appellant has been convicted under section 302(c), P.P.C. And sentenced to 14 years R.I and also to pay Rs,20,000 as compensation to the legal heirs of deceased Ali Ahmad under section 544-A, Cr.P.C. And in default to undergo S.I. For six months. Benefit of section 382-B, Cr.P.0 was given.
2 . The prosecution case as recorded in the statement of complainant Muhammad Ishaq is that he is resident of Kachi Abadi, Shamaspura No,1, Link Ravi Road, Lahore and has opened a Tea Khokha at Ravi Link Road, Lahore near WASA tube-well and near his khokha, there is hotel of the appellant Muhammad Qurban. On 15-1-1993, at about 4-00 p.m, a girl was coming to take tea from his khokha. Abdul Rauf servant of the appellant persuaded her to purchase tea from his hotel. The complainant went to the hotel in order to make complaint where all the three accused namely Abdul Majeed, Muhammad Qurban the appellant, and their servant Abdul Rauf were present. The appellant felt it ill and asked Abdul Rauf to catch hold of the complainant and to cut of his hands.
Abdul Rauf accused caused injuries on both wrists of the complainant with Chhuri and the complainant raised noise, save, save. On hearing this noise, Manzoor Hussain S/o Ali Muhammad and Ali Muhammad S/o Alam Din, both deceased, Muhammad Iqbal S/o Ali Muhammad, Alam Din S/o Nanak, Muhammad Anwar S/o Muhammad Sharif (given up P.W.), Muhammad Aslam S/o Barkat Ali (P.W.15), all Changars by caste and residents of Shamaspura who were standing nearby came at the spot to separate them. Muhammad Qurban and Abdul Majeed accused took their pistols and Abdul Majeed accused raised a Lalkara that the complainant should be given a lesson of opening a Khokha near their hotel. Muhammad Qurban accused fired through his pistol which hit Manzoor Hussain on the left side of his chest. The second fire of Muhammad Qurban accused hit on the axila of Ali Muhammad deceased. Both the injured fell down and the accused ran away with their weapons. Injured were shifted to Mayo Hospital by Muhammad Iqbal and Muhmmad Anwar but they succumbed to the injuries on the way.
3 Muhammad Ashraf (P.W.17) recorded the statement (Exh.P.A) of complainant Muhammad Ishaq (P.W.14) and sent it to the Police Station for registration of case on which formal F.I.R. (Exh.PA/1) was recorded.
4 . The Investigating Officer prepared injury statement of Ali Muhammad (Exh.P.0), injury statement of Manzoor Hussain (Exh.P.P), inspected the spot, took into possession blood-stained earth where dead body of Manzoor Hussain was lying vide memo. (Exh.P.M), also took into possession blood- stained earth where dead body of Ali Muhammad was lying vide memo. (Exh.P.N). Prepared rough sketch of place of occurrence (Exh.P.Q), took into possession five empty cartridges from the place of occurrence vide memo. (Exh.P.R), took into possession from inside the hotel' of Muhammad Qurban the broken piece of glasses vide memo. (Exh.P.0), prepared Inquest Report of the deceased Ali Ahmad vide (Exh.P.0/1) and of Manzoor Hussain (Exh.P.P/1) despatched both the dead bodies to the mortuary for post-mortem examination, received last worn clothes of both the deceased and two sealed bottles sent by the Medical Officer vide memo. (Exh.P.F), recorded statement of witnesses, arrested the accused, recovered licensed pistol from Muhammad Qurban vide memo.
(Exh.P.G) and prepared sketch of place of recovery of the pistol (Exh. P.G./1), recovered Chhuri from Abdul Rauf vide memo. (Exh. P.S.) and prepared sketch of place of recovery of the said Chhuri (Exh.P.S/1) got the complainant Muhammad Ishaq medically examined and got prepared site plan (Exh.P.H) and its duplicate (Exh.P.H/1) from P.W.8 and after completing the investigation submitted the challan to the Court where the appellant and the co-accused were formally charge-sheeted to which they pleaded not guilty and claimed trial.
5 The prosecution examined 17 witnesses, namely, Muhammad Arif (P.W.1) S.I. Who on receipt of statement of complainant (Exh.P.A) recorded the formal F.I.R. (Exh.P.A/1). Munawar Hussain Constable (P.W.2) who was handed over by the Muharrar Malkhana two phoils containing led bullets on 17-1-1993 and on 18-1-1993 sealed parcel containing five empty cartridges for transmission to Forensic Science Laboratory and on 21-1-1993 two sealed polis containing blood- stained earth for transmission to Chemical Examiner and one sealed pistol 30 bore on 30-1-1993 for transmission to Forensic Science Laboratory which he deposited intact. Dr. Arif Rashid Malik (P.W.3) conducted postmortem examination on the dead body of Manzoor Hussain on 16-1-1993 and found the following injuries:
1. An oval, open, wound 1.9 x 1 c.m. In size with inverted margin and crescent shaped collor of abrasion, more marked on the superior part, showing vital reaction, situated on the front of left side of chest 11.5 c.m. Away from midline, 2 c.m. Below from midline, 2 c.m. Away from left nipple, 16.5 c.m. Below from lateral 3rd of left clavicle.
ON DISECTION ' Under injury No,1, the projectile after piercing skin, sub cutaneous tissue, passed through left 4th intercostal space, fracturing left 5th rib, entered into left chest cavity, perforated left lung through and through, pericardium and left venticle of heart through and through and thorecic aorta and right lung through and through and lodged in the soft tissue adjacent to 7th right rib causing its fracture from where projectile recovered and sealed in a plastic bottle and handed over to police.
Both chest cavities contained about 3000 c.c clotted blood."
' The probable time between injury and death was within five minutes and death and postmortem within 18 to 24 hours. Exh. P.B. Is the correct carbon copy of postmortem report and Exh. PB/1 is the sketch of injury .
6 He also conducted post-mortem examination on the dead body of Ali Muhammad on 16-1-1993 and found the following injuries:- "I(a) An open, circular, wound .7 x .7 c.m. In diametre with inverted margins and circular collar of abrasion, showing vital reaction, situated on the upper part of outer aspect of right upper arm, 12 c.m. Below right shoulder, 19 c.m. Above right elbow, 8.5 c.m. Away from anterior axillary line when arm was by the side of the body.
1(b) An open, oval wound .8 x .5 c.m. In diametre with everted margins, showing vital reaction, situated on right axilla.
1(c) An open, oval wound .9 x .5 c.m. In size with inverted margins showing vital reaction situated on the right axilla .7 c.m. Below and inner to injury No, 1(b).
' On dissection under Injuries 1(a), 1(b) and 1(c) the projectile after piercing skin, soft tissues at injury 1(a) passed through muscles of right upper arm and causing their bruising and laceration, exit through injury 1(b) and re-entered into chest cavity through injury 1(c) after passing through right fourth intercostal space fracturing 5th rib perforating right lung and thoracic aorta through and through piecrcing 9th thorax vertabrac causing its body fracture and lodged in the soft tissue just below the last rib on left side after causing bruising and laceration of lower lobe of left lung. The projectile after recovering sealed in a bottle and handed over to police. Right chest cavity was full of clotted blood about 2000 c.c.Last left rib was fractured."
' All the injuries stated above were antemortem and caused by fire-arm. Cause of death in this case was damage to Thoracic aorta and right lung with its blood vessels under Injury No, 1(c) leading to profuse haemorrhage and shock and was sufficient to cause death in an ordinary course of nature. Probable time between injury and death was within ten minutes and between death and post-mortem, within 16 to 24 hours. Exh.P.0 is the correct carbon copy of post-mortem Report and Exh. PC/1 is the sketch of injuries.
7. Dr.Tashhir Rana (P.W.4) who took the X-Ray of dead body of Ali Muhammad and observed as under: ' Chest. Surgical emphysema on the right side of chest. No opaque foreign body seen above the level of diaphamgm.
ABDOMEN. A bullet shaped opaity of metallic density is seen to the left of and posterior to the disc between the upper teslumber vertebrae. The shaft of left 12th rib is fractured. My report is Exh.P.D/1 which is in my hand and bears my signatures."
' He also took the X-Ray of deceased Manzoor Hussain and observed as under: "CHEST: A bullet shaped cavity of metalic density seen, in the right costophrehic angle at the level of 9th and 10th dorsal vertebrae and just posterior to them.
MEDIASTINUM: 8 . Muhammad Sajjad (C.W.1) is formal witness to prove that Dr. Shamim Khan Police Surgeon had gone abroad. His report is Exh. C.W.1/1. Imtiaz Ahmad (P.W.5) is also formal witnesses regarding receipt and transmission of the sealed parcels to the Forensic Science Laboratory and Chemical Examiner, Iftikhar Ahmad (P.W.6) who escorted the dead bodies of both the deceased and brought back blood-stained shalwar P-1, Shirt P-2 belonging to deceased Ali Muhammad and Shalwar P-3, Shirt P-4, Vest P-5, Pajama P-6 and Salooka P-7 belonging to Manzoor Hussain deceased which were taken into possession by the Investigating Officer vide memo. Exh.P.F, Sardar Muhammad (P.W.7) is the recovery witness of pistol P-8 from Qurban appellant vide memo Exh.P.G, Abdul Rahim Kazmi Draftsman (P.W.8) who prepared site plan Exh.P.H and Exh.P.H/1 in the scale of 1 inch, 20 feet, Lady Doctor Naureen Rasool W.M.O. Of the office of Surgeon Medico Legal Punjab (P.W.9) who was fully conversant with the handwriting and signatures of Dr. Shamim Akhtar Khan who had examined Muhammad Ishaq s/o Alam Din and had found the following injuries on his person vide his M.L.R. Exh.P.J:- "(1) Incised wound 3 x 06 c.m. x muscle deep on front right wrist joint.
(2) Incised wound 1.8 c.m. Muscle deep on outer aspect of left wrist joint.
(3) Abrasion 1.3 x 0.4 c.m. On back base of left thumb.
(4) Contused swelling 4 x 3 on left angle of mandible."
9 Shafqat Bari D.S.P. (P.W.10) also conducted the investigation, Dr.Suleman Yousaf Goraya (P.W.11) is the C.M.O, Mayo Hospital who issued certificate of death of Ali Muhammad Exh. PK and that of Manzoor Hussain Exh.P.L, Yousaf (P.W.12) who identified the dead body of Ali Ahmad, Muhammad Hanif (P.W.13) who identified the dead body of Manzoor Hussain, Muhammad Ishaq (P.W.14) is the complainant who had made the statement regarding the occurrence as seen by him vide Exh.P.A, Muhammad Aslam (P.W.15) also gave the eye-witness account, Muhammad Hanif (P.W.16) is the witness of taking into possession blood-stained earth from the place of occurrence where dead body of Manzoor Hussain was lying vide Exh.P.M and where the dead body of Ali Ahmad was lying vide Exh.P.N, Muhammad Ashraf Inspector (P.W.17) is the Investigating Officer.
10 The Learned Prosecutor gave up P.Ws. Muhammad Mushtaq Alam Din, Muhammad Anwar, Mukhtar Ahmad, Din Muhammad, Muhammad Iqbal and Muhammad Ashraf on the basis of application moved by the complainant himself. He tendered in evidence the report of Chemical Examiner Exh.P.T, Serologist Exh.P.0 and Forensic Science Laboratory Exh.P.V and closed the prosecution case.
11. In the statement under section 342, Cr.P.C, Muhammad Qurban appellant when asked as to why this case was against him and why the P.Ws. Have deposed against him, stated as under, as reply to Question No,8:- "Muhammad Ishaq P.W. The younger brother of Ali Ahmad deceased and Muhammad Aslam P.W.
Is from their Bradari. They have made tutored and false statements against me by twisting the true facts. On the day of occurrence, I was present in my hotel as per routine. Abdul Rauf co-accused had come to the hotel for meal/tea when he was about to leave, he saw a little girl of the locality in front of my hotel proceeding towards the Khokha of Muhammad Ishaq and asked her to purchase tea from my hotel as it was better in quality which the girl did. Immediately thereafter Ishaq came to my hotel and started abusing Rauf. They were about to quarrel when I intervened and admonished Muhammad Ishaq who abused me too and I gave him a fist blow on his face. He left leaving ,threats. My father Abdul Majeed was not present at that time and was in the Bethak. After short while a large number of Changers who were relatives of Muhammad Ishaq attacked my hotel while armed with various weapons. I apprehending danger bolted the main door of the hotel from inside. Rauf had already left and there were some customers in the hotel. The relatives of Muhammad Ishaq were very aggressors and attempted to broke open the door and in this process the glasses of the door were broken. .I felt imminent danger to my life and from corner window fired one shot at the mob which hit Manzoor Hussain. The other victim Ali Ahmad suffered an injury at the hands of Muhammad Iqbal P.W. Who was rear of Ali Ahmad deceased. My father and Abdul Rauf absolutely did not participate."
12. Accused Abdul Majeed took the plea that he was not present at the spot and was innocent.
Accused Abdul Rauf also pleaded innocence and non-participation in the incident.
13 The learned trial Court came to the conclusion that the prosecution failed to prove its case against Abdul Majeed and Abdul Rauf and acquitted them of the charge and that the prosecution succeeded in proving its case against Muhammad Qurban accused regarding Qatl-i-Amd of Ali Ahmad deceased in exercise of right of self-defence. The relevant portion of the reasons recorded by the learned trial Court in para. 34 of the judgment is reproduced as under:- "Now the question remains of the principal accused Muhammad Qurban. He is running the hotel in the same vicinity in which P.W.14 complainant had opened a Khokha. There is no previous enmity or any kind of dispute between the parties. Even according to the prosecution version and admitted by the accused, the dispute arose about petty matter regarding a customer and there was a clash of hot words between P.W.14 and Muhammad Qurban accused. Baradari and relatives of the complainant are residing near to this hotel on its back side, naturally they came after coming to know the first incident. It has also not been denied that they created the mob. Even the prosecution case is that the glasses of main door of the hotel of Muhammad Qurban accused were broken by the said mob and the same broken glasses were taken into possession by P.W.17 vide memo Exh.
P.O. So, it clearly means that the mob consisting of the relatives and Baradari of the complainant attacked upon the hotel of Muhammad Qurban accused and he being already in possession of licensed weapon lying in his hotel acted in his self-defence of his life and property which resulted into the death of Manzoor Hussain and Ali Ahmad deceased."
14. Learned counsel for the appellant submitted that the admitted position on both sides is that the appellant in exercise of his right of self-defence of his person and property killed two persons out of whom there has been Suhl between the parties and the Wali of the victim Manzoor Hussain have forgiven the appellant in the name of Allah Almighty and now Walis of victim Ali Ahmad are before the Court. It is also admitted position that there is no State appeal against the finding of the learned trial Court nor any revision from any side. The present appeal is with the contention that when the trial Court had accepted the plea of right of self-defence and defence of his property in an attack by the relatives of the deceased in the form of a mob, it was not justified to convict the appellant as the case of the appellant was fully covered by the exception clause and that the learned trial Court has not taken notice of the provisions of sections 100, 103 and 106, P.P.C. Learned counsel for the appellant has submitted that the precise question for determination is as to whether on these admitted facts, the appellant could be convicted of any offence or he is entitled to clean acquittal? He referred to Chapter 4 of General Exceptions given in the P.P.C. Starting from sections 96 to 106 and submitted that all Courts have held that the right of self-defence granted by Islam is much more wider than that of granted by English law. Learned counsel also relied on 1992 SCM R 2037, 1992 SCM R 2047, 1991 M LD 1949 and 1999 PCr.LJ 439
15. The learned counsel for the State has simply supported the judgment of the learned trial Court but could not controvert the arguments that in the given circumstances of this case, the conviction and sentence to the appellant were not legal.
16. I have given due consideration to the valuable arguments on both sides and have also perused the record with the able assistance of the learned counsel for the parties. The provisions of the Pakistan Penal Code, 1860 (V of 1860) as amended by the Qisas and Diyat Ordinance, 1990 (No,VII of 1990) which Ordinance was promulgated for the first time on 5-9-1990, are contained in sections 96 to 106 and section 302, P.P.C. Are reproduced for ready reference:- "96. Things done in private defence---Nothing is an offence which is done in the exercise of the right of private defence.
97. Right of private defence of the body and of property.---Every person has a right, subject to the restrictions contained in section 90, to defend: ' First: His own body, and the body of any other person, against any offence affecting the human body; ' Secondly: The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of the theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.
98. Right of private defence against the act of a person of unsound mind etc.---When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence.
99. Acts against which there is no right of private defence.---There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done by a public servant acting in good faith under colour of his office, thought that act may not be strictly justifiable by law.
' There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office though that direction may not be strictly justifiable by law.
' There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.
Extent to which the right may be exercised. ---The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.
100. When the right of private defence of the body extends to causing death.--- The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely: ' First. Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; ' Secondly. Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be consequence of such assault; ' Thirdly. An assault with the intention of committing rape; ' Fourthly. An assault with the intention of gratifying unnatural lust; ' Fifthly. An assault with the intention of kidnapping or abducting; ' Sixthly. An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he be unable to have recourse to the public authorities for his release.
101. When such right extends to causing any harm other than death.---If the offence be not of any of the descriptions enumerated in the last preceding section, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in section 99, to the voluntary causing to the assailant of any harm other than death.
102. Commencement and continuance of the right of private defence of the body---The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues. property extends to causing death.--- The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely; ' First. Robbery; ' Secondly. House-breaking by night; ' Thirdly. Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling or as a place for the custody of property; ' Fourthly. Theft, mischief or house trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.
104. When such right extends to causing any harm other than death
105. Commencement and continuance of the right of private defence of property. ---The right of private defence of property commences when a reasonable apprehension of danger to the property commences.
' The right of private defence of property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained or the property has been recovered.
' The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint continues.
' The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief.
' The right of privates defence of property against house-breaking by night continues as long as the house trespass which has begun by such house-breaking continues.
106. Right of private defence against deadly assault when there is a risk of harm to innocent person. ---If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk."
17. The present section 302, P.P.C. Reads as under: "302. Punishment of qatl-i-amd.--- Whoever commits Qatl-i-Amd shall, subject to the provisions of this Chapter be-
(a) punished with death.As qisas;
(b) punished with death or imprisonment for life as Ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or
(c) punished with imprisonment of either description for a term which may extend to twenty five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable."
18. Section 338-F, P.P.C. Is also most important in the matter of interpretation which reads as under:- 338-F. Interpretation.---In the interpretation and application of the provisions of this chapter and in respect of matters ancillary or akin thereto, the Court shall be guided by the injunctions of Islam as laid down in the Holy Qur'an and Sunnah."
19. In the case of Manzoor and others v. The State (1992 SCM R 2037) the Hon'ble Supreme Court observed as under:- ' It is true that the right of self-defence is available under Islamic Law but it is also established law that the plea of self-defence is not available to an aggressor. The law on the subject was correctly laid down in Kirp'al Singh v. The State AIR 1951 Punjab 137 in the following words:- ' It is an accepted proposition of law that a person cannot avail himself of the plea of self-defence in a case of homicide when he was himself the aggressor and wilfully brought on himself, without legal excuse, the necessity for the killing. It would be strange indeed if a person who provokes an attack, brings on a combat and then slays his assailant were to take shelter behind the plea of self-defence in justification of the blow which he struck during the encounter."
' This view was reiterated in Dhanno Khan v. The State AIR 1957 All.
317 in the following words:- ' The law does not confer a right of self-defence on a man who goes and seeks an attack on himself by his own threatened attack on another an attack which was likely to end in the death of that other. The right of self-defence conferred by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify the exercise of such a right."
' This view was again reiterated in Rai Singh Mohmia v. The State of Gujarat AIR 1962 Gujarat 203 in the following words:- "The right of self-defence is not dependent on the actual criminality of the person resisted; it depends solely on the wrongful, or apparently wrongful, character of the act attempted. If the apprehension is real and reasonable, it makes no difference that it is mistaken."
20. In the case of Ejaz Ahamed alias Gandhi and another v. The State (1999 PCr.L.J 439) where the plea of self-defence raised by the accused appeared to be reasonably possible and the prosecution had suppressed the injuries sustained by one of the accused in the F.I.R. The accused was acquitted of the charge. The conviction and sentence under section 302-B of the P.P.C. Was set aside by the High Court.
21. Learned counsel for the appellant has referred to the rule of law stated at p.567 of Vol.IV of Hidayah, by Al-Marghinani that where a person draws his sword on a Muslim or Muslims during the night time or day time, or it a populated area or non-populated area and the person attacked and kills him, then there is neither any Qisas, nor Diyat nor penalty on him. The Holy Prophet (peace be upcn him) said:- "Whosoever draws a sword upon any Muslim he makes his own blood void i,e, he loses the protection and security available to his own self."
(Qisas and Diyat, translated by Muhammad Mian Siddiqui, printed by Islami Research Institution, International Islami University Islamabad, a translation of original :,ources of Islam, Book No,2, Edition 4th page 126, 1992).
22. Learned counsel for the appellant has also referred to paras. Nos. 608, 609 and 610 it page No, 213-214 of Islami Qanun-iFaujdari, an Urdu translation of the Arabic book of "Kitab-ul-fichtiyar" a book written in 1212 A.H. The first edition of which was published in typed script in 1244 A.H. From Calcutta and the second edition in Litho in 1267 A.H. From Haiderabad. The Editor of which was Maulana Salamat Ali Khan who was well-known by the name of Hazaqat Khan and was holding the office of writing Ahkam-e-Shar'iyyah in the Second Appellate Court in the city of Muhammad Abad.
This book was translated into Urdu by Mir Ahmad Sharif, Advocate Haiderabad which was published by Darul - Musannifin Azam Garh on 25-5-1929. The said paragraphs are reproduced as under:- {{URDU TEXT}} ' Learned counsel has also referred to "Fatawa Alamgiri" translated by Maulana Sayyid Amir Ali, the compiler of "Tafsir Mawahib-ur-Rahman and Ainul Hedayah etc. "Vol.9, page 302 which reads as under:- {{URDU TEXT}]
23. Dr.Wahbah-al-Zuhayli has discussed the qustion of right of self-defence according to Islmic principles. The relevant portion is given below:- "When a person commits aggression on another person in the matter of his life or property or honour or he attacks the other person with the intention to get his property or life unjustly or intends to commit Zina with a woman or leaves upon him an animal then for the victim an equal necessary aggression is permissible for the defence of such aggression or violation. A third person is also entitled to save the life, honour and property of such victim.
' The force used in defence must be the least possible. If the defence is possible by making hue and cry or attracting other people then actual physical attack is not lawful and if the defence is possible by defending oneself by force of hands then the use of a stripe is not lawful and if the defence is possible by stripe the use of a club is not lawful and if the defence is possible by cutting a limb the murder is not lawful. However,' if defence is not possible except by killing the other person then to kill such person is permissible.
' The reason is that doing so is of the necessity of defence. If the offender draws his sword, it is permissible for the defender to kill him i:l self-defence. The reason is that the defence is not possible except by the killing of such a person. As had he cried for the help of the people he would have been killed prior to the reaching of the people. The reason is that the effect of the weapon is instant.
' In other words, if the defender knows that the offender could be restrained by hue and cry or by striking anything other than the weapon of killing he should do so. If it is not possible then it will be permissible for him to use the weapon to kill the attacker.
' The killing and use of lethal weapon is made permissible for the reason of necessity. It is an exception to the rule that an injury should not be removed by another injury. There is no need to use a heavy weapon where objective can be attained by the use of a lighter weapon. It is evident that the necessity is to be measured according to the need. (peculiar circumstance of the case.)
' So much so that if the aggressor could be restrained from causing attack by running or taking refuge to a place of protection or towards a group of persons then the obligation upon the victim is to adopt that method. As has been explained by the Shaft and Maliki School of thought and also in a way by the Hunbly School of thought and in such a circumstance killing of the aggressor is unlawful. The reason is that the victim has been commanded to get his release by the last possible aggression. Thus running away from the spot is the lightest method as against killing of the assailant. The heaviest method should not be adopted to repulse the attack if any other lighter alternative is possible at the relevant time and situation.
(Al-bada' i' 7/93: Al-Durr Al-Mukhtar Wa-Radd-al-Muhtar 3/197; 41-Shara-al-Kabir 4/257; Bidyh al-Mujtahid 2/319; Mughni al-Muhtaj 4/196-197; Al-Mughni 8/329-331)
Al-Izz-bin Abd-al Salam stated: Where offender and victim are equal their fight and killing is unlawful.
(Qawa'id-ul Ahkam 1/195).
' The authority for the exercise of right of self-defence is available in the Holy Qur'an, Sunnah and the reason.
' The authority in the Holy Qur'an is as under:- {{ARABIC TEXT}} If then anyone transgresses The prohibition against You, Transgress Ye Likewise Against Him.
But fear Allah, and know That Allah is with those Who restrain themselves.
(II: 194)
' The command of piety (al-'amr bi'ltaqwa) is a proof on the necessity of keeping in view rule of repulsing and evil by the least evil.
' The authority for it in the Sunnah is also available.
' The Messenger of Allah (peace be upon him) said: {{ARABIC TEXT}} ' "A person who is killed in self-defence of his faith is a martyr, a person who is killed in self-defence of his life is a martyr, a person who is killed in self-defence of his property is a martyr and a person who is killed in self-defence of his family is a martyr.
(Qawa'id Ahkam 1/195)
' See also Sahih Bukhari Vol.2 page 108 on the authority of Abdullah bin Umar who reported that he heard the Messenger of Allah (peace be upon him) saying: {{ARABIC TEXT}} "A person.Who is killed in self-defence of his property, he is a martyr.", ' See also Sunnah, ' Al Tirmizi Vol.2 page 436 transmitted on the authority of Said bin Zayd that the Messenger of Allah said: {{ARABIC TEXT}} "A person who is killed in self-defence of his property is a martyr and a person who is killed in self- defence of his life is a martyr and a person who is killed in self-defence of his faith is a martyr.
' This is the proof on the permissibility of exercise of right of self-defence in the matter of one's religion, life, property and honour.
' It is so because the Holy Prophet (peace be upon him) has declared the defender as a Martyr. This is a proof that he can kill and fight in self-defence. So far as the exercise of the right of self-defence in respect of other than one's own self is concerned the basis is to protect al-Hifaz the prohibitions alHurumat generally in respect of the self Nafs and the property (mal). The reason is that had there been no cooperation al-teawan the life and property of the people would have gone waste. It is also because when the dacoits or robbers are let free to extort the property of a person they will go on extorting it from one after the other who will pass by the way in which they have made their resort or ambush.
' Ahmad bin Hanbal, Bukhari and Tirmizi on the authority of Anas bin Malik transmitted that the Holy Prophet (peace and blessings of Allah be upon him) said:-- {{ARABIC TEXT}} "Help your brother, be he an aggressor or the aggressed."
' It was asked: {{ARABIC TEXT}} "How is to help an aggressor?"
' He (peace and blessings of Allah be upon him) said: {{ARABIC TEXT}} "Restrain him from committing the aggression.
' This is his help."
' Ahmad bin Hanbal on the authority of Sahl bin Hanif transmitted that the Messenger of Allah (peace and blessings of Allah be upon him) said:- {{ARABIC TEXT}} "A person before whom a believer is being disgraced and he does not help him while he is able to help him, Allah shall disgrace such a person on the day of judgment in the presence of the people witnessing his disgrace." (Nayl-alAutar 5/327).\ [Al-Fiqh al- Islamiyy wa Adillatuhu Vol. V, pp.751-4, Darul Fik, Damascu, 1985 A . D .] .
24. In the light of the above discussion, the scrutiny and appraisal of the evidence on record of this case shows that Muhammad Ishaq (P.W.14) has stated that he was running a Tea Khokha at Link Ravi Road near WASA Tubewell and the hotel of Qurban accused was near my Khokha and that at about 2 years and 3 months back, on the day of Friday at 4-00 p.m a minor girl came to purchase tea and that the servant of Qurban, Rauf accused asked the girl to purchase tea from their hotel, but she purchased the tea from the hotel of Qurban accused, and that all the three accused were sitting in their hotel and he complained before them that it was a bad thing to call any customer by that way and that Qurban took it ill and asked his servant Rauf to catch him and that then Rauf accused had caused injuries on his both wrists with churri and that he made hue and cry: "Save, save", and after hearing the noise Manzoor Hussain and Ali Ahmad deceased came there and that Alam Din, Aslam Iqbal and Anwar also had come there, and that they wanted to separate them but meanwhile Majeed and Qurban took out their pistols, and that Abdul Majeed accused raised Lalkara that Ishaq be taught a lesson of opening of the Khokha. Qurban fired with pistol which hit on left side of Manzoor Hussain and that Qurban again fired which hit on right shoulder and then on axilla of Ali Ahmad -deceased, and that both the injured fell down and Qurban and Majeed accused decamped.
' In his cross-examination this witness stated that he did not know whether the glasses of the hotel were broken. He was also confronted with his statement Exh.P.A that Ali Ahmad deceased received injury on his shoulder which passed to his axilla. He denied the correctness of the suggestion that Iqbal P.W. Disappeared from the mortuary after delivering the dead bodies and did not appear before the police and that Qurban accused fired only one shot from inside the hotel through a window to disappear the mob which hit Manzoor Hussain deceased, and that Iqbal P.W. Fired upon Qurban accused while Ali Ahmad deceased was in between them and was hit by the said fire of Iqbal and that Iqbal did not appear before the police because of the contention of the accused party that Ali Ahmad had died due to the fire of Iqbal.
25. Muhammad Aslam (P. W .15) deposed in his examination-in-chief:- Majeed and Qurban accused took out their pistols. Majeed accused said to finish us. Qurban accused started firing with his pistol. The first fire hit Manzoor Hussain deceased and the second to Ali Ahmad on his shoulder which passed to his axilla. Both the injured fell down after receiving the injuries. Qurban and Majeed accused ran away."
' In his cross-examination he was confronted with his statement (Exli.D.A) that he came to separate Ishaq and the accused and that he came to separate Manzoor and Ali Ahmad deceased. He also deposed that he did not know whether the police took into possession broken pieces of glasses inside the hotel on the day of occurrence. He also deposed that nobody broke the glasses of the hotel in his presence. This is the whole ocular evidence involving Qurban Hussain accused even in the Qatl-e-Amd of Ali Ahmad deceased. The statements of both the eye-witnesses pertaining to the facts that Muhammad Ashraf (P.W.17) did not take into possession the broken pieces of glasses from inside of the hotel of Qurban accused were contradicted on the record by the statement of (P.W.17). This creates doubt in the prosecution case regarding. Murder of Ali Ahmad by accused Qurban. The reason is that P.W.17 admitted in the cross-examination that it was correct that Muhammad Iqbal did not appear before when he visited the spot after coming from the hotel and that he did not record the statement of Iqbal as eye-witness under section 161, Cr.P.C. His statement that he recorded statement of Iqbal vide case diary No,2 on 16-1-1993 i.e the next day disproves his statement that it was incorrect that Iqbal fled away after leaving the dead bodies in the hospital.
Further, his statement that it was correct that the accused recorded their counter-version before him and that a suggestion though denied by Muhammad Ashraf Inspector (P.W.17) in the following words:- ' It is incorrect that I have not recorded the true version of the accused due to impression of the complainant. It is incorrect that Ali Ahmad suffered fire-arms injuries from Iqbal P.W. It is also incorrect that accused party had been insisting upon that a case be registered against Iqbal P.W.
For the murder of Ali Ahmad deceased."
' The observation of the learned Additional Sessions Judge before parting with his. Judgment is itself disclosing that P.W.17 had conducted the investigation of this case inefficiently and dishonestly and the case property licensed pistol had been misappropriated by the police and had not been kept in safe custody and had not been produced before the Court especially when it has been admitted by Muhammad Qurban accused that he handed over his licensed pistol to P.W.17 on 15-1-1993 when he reached at the place of occurrence. It means that recovery of weapon of offence had been admitted by the prosecution and the accused.
26. The statement of Munawar Hussain Constable (P.W.2) is material as he stated that the Muharrir Head Constable (Imtiaz) handed over to him one sealed parcel containing five empty bullet cartridges for onward transmission to the office of the Forensic Science Laboratory which he handed over to the Forensic Science Laboratory intact. It has come on the record that only two fires were shot by the accused and the taking into possession of five empty bullet cartridges from the spot shows that there was cross-firing. It was cross-firing. It has also come in the cross- examination of this P.W.2 that it was correct that he went alongwith Muhammad Ashraf S.I. At the place of occurrence and that so many persons had gathered at the place of occurrence and that Qurban accused and his father Abdul Majeed were brought down from the upper storey of the hotel by the S.I.
27. In this view of the matter there remain no doubt about it that when there was a mob and immediate danger of being killed, the reaction of the accused as against the mob who had occupied his hotel and he had to go even on the upper storey; was natural and in exercise of self- defence.
28. The statement of Shafqat Bari, D.S.P. (P.W.10) is also material. He deposed that Ishaq went back and his other relatives came at the premises of Qurban in the shape of a big party. They attacked upon Qurban and his servant Rauf accused. Majeed accused was present during this incident.
Then Qurban accused in self-defence or otherwise fired upon Ishaq party with his revolver which injured both the parties.
29. The report of Fire-Arms Expert (Exh.P.V) is also very material to find the truth in this case, which reads as under:- "Crime empties of .30 bore mark C.1 to C.5 were fired from the pistol of .30 bore bodies signed and points of similarity were that angle of striking, dimension of the dip, identical breech face mark, dent mark and cut marks inside dip were same on C.1 to C.5 and T. Crime jacketed bullet marked as B1 alleged to have been recovered from the dead body of Manzoor Hussain and the crime jacketed bullet marked as B2 alleged to have been recovered from the dead body of Ali Ahmad did not contain sufficient identificable data". As such the opinion of the Expert of Fire-Arms of Forensic Science Laboratory, Lahore was that nothing can be said as to whether or not the crime jacketed bullets of .30 bore marked as B1 and B2 were fired from the pistol body signed. This pistol was recovered from Qurban accused and even this piece of evidence is sufficient to show that more than two bullets were shot and their relevant crime jacketed bullet was such regarding which the Fire-Arms Expert could not give a definite opinion which is another factor creating doubt. Thus, the case to the extent of murder of Ali Ahmad by the accused Qurban is not free from doubt and plea taken by the accused seems to be more probable, in the circumstances that have come on record.
30. In this view of the matter, the appeal is accepted and the sentence and conviction of Muhammad Qurban appellant in respect of Ali Ahmad deceased is set aside.