MIAN MUHAMMAD NAJAM-UZZAMAN, J.---Hamid Ali alias Ahmad Ali son of Muhammad Sharif (respondent) was tried by the learned Additional Sessions Judge Bhalwal, District Sargodha for the murder of one Abdul Jabbar in case F.I.R. No,148 of 1991, dated 23-5-1991 under sections 302/ 324, P.P.C. registered at Police Station Bhalwal, who vide judgment dated 29-2-1992 convicted Hamid Ali alias Ahmad Ali respondent under section 308, P.P.C. and sentenced him to pay Diyat amounting to Rs,1,70,610 to the legal heirs of the deceased Abdul Jabbar according to their respective shares, failing which the same was ordered to be recovered from respondent as arrears of land revenue.
The father of respondent was restrained from alienating his movable or immovable property till respondent stood discharged of his liability. It was further directed that in case the father of Hamid Ali convict failed to pay Diyat within specific period, the convict would be kept in jail and would be dealt with in the same manner as if sentence of simple. imprisonment was imposed on him till the Diyat was paid to the legal heirs of the deceased or his furnishing a security equivalent to the amount of Diyat to the satisfaction of learned Trial Court. It was further made clear that in case father of the convict dies before the payment of Diyat, the same would be recovered from his estate.
2. Hamid Ali alias Ahmad Ali while questioning the legality of the abovesaid judgment has filed criminal appeal bearing Criminal Appeal NO.264 of 1992 whereas the. State has also filed instant criminal appeal against the acquittal of respondent namely Hamid Ali from the charge under sections 302/324, P.P.C. This judgment will dispose of both the matters together.
3. Case of the prosecution as disclosed in the F.I.R., Exh.PF, is that on 23-5-1991 in the evening Muhammad Yousaf, complainant/P.W.9, was irrigating his land and was present at the outlet of watercourse in his land situated in Chak No,9/ML when Shaukat Ali, P.W.10, met him and disclosed that Hamid Ali accused/respondent and Abdul Jabbar deceased were going towards a garden of one Muhammad Yousaf son of Allah Rakha. On this information, the complainant and Shaukat Ali P.W. rushed to that garden and saw the accused/respondent and the deceased abusing each other. Within the view of P.Ws., the accused/respondent gave two dagger blows to Abdul Jabbar deceased, one on the left upper arm and second on the chest. The witnesses raised noise upon which, the accused/respondent ran towards South. Statedly, upon hue and cry of witnesses Afzaal, P.W.11, also came at the spot and tried to apprehend accused and ill that process, the accused/respondent gave a dagger blow to Afzaal, P. W.11, in the abdomen, who fell down and the accused/respondent while brandishing his dagger decamped from the scene of crime. Abdul Jabbar deceased succumbed to the injuries at the spot.
4. The motive for the occurrence as narrated in the F.I.R., Exh.PF, was that Hamid Ali alias Ahmad Ali respondent suspected illicit relations of the deceased Abdul Jabbar with his sister namely Mst.
Nasim.
5. After the occurrence. matter was reported to the police of Police Station Bhalwal where Amjad Hussain, A . S . I. /P.W . 12, entered formal F 1.R . , Exh.PF and proceeded to the spot. The Police Officer/Investigating Officer after examining the dead body prepared injury statement; Exh.PG, inquest report, Exh.PH and sent the same to the mortuary for autopsy. During spot inspection, he also collected bloodstained earth vide recovery memo. Exh.PD. on the next day, the Investigating Officer recorded statement of Muhammad Afzaal, P.W.11, in the hospital. On the same day, Khizar Hayat, F.C./P.W.13, produced before him last worn clothes of the deceased which were taken into custody vide recovery memo. Exh.P.I. During the investigation, this witness also got prepared scale site plan, Exh.PC and Exh.PC/1 through Muhammad Abdullah Revenue Patwari/P.W.3'. On 29-5-1991, Hamid Ali alias Ahmed Ali respondent was arrested in this case, who on the next day led to the recovery of blood-stained dagger, P.1, from his residential house, the case was taken into possession vide recovery memo. Exh.PE. On 24-5-1991. father of Muhammad Afzaal, P.W.11/injured witness, produced before the Investigating Officer medico legal report of his injured son as well as blood-stained shirt, P.4, which were taken into custody vide recovery memo. Exh.PL. After completion of investigation, challan was submitted before the learned Trial Court.
6. During the trial prosecution produced thirteen witnesses in order to prove the charge against respondent.
7. Muhammad Yousaf, complainant/ P.W.6, Shaukat Ali, P.W.10, and Muhammad Afzaal, P.W.11, were the eye-witnesses of this occurrence who had narrated the circumstances under which Abdul Jabbar deceased was done to death and Muhammad Afzaal, P.W.11, received injuries at the hands of Hamid Ali alias Ahmad Ali respondent.
8. Post-mortem Examination on the dead body of deceased namely Abdul Jabbar was conducted by Dr. Akhtar Mehmood Chaudhry, P.W.1, who observed following injuries:-- "(1) A stab wound 3 c.m. x 3 c.m. x going into chest cavity on front and left side of chest 6 c.m. outer to ,left nipple at the level of 5th inter costal space, just close to interior exillery line.
(2) A stab wound 4 c.m. x 3 c.m. on front and upper part of left arm 10 c.m. below tip of left shoulder
(3) Incised wound 3 c.m. x' 2 c.m. on inner aspect of upper part of left arm.
In the opinion of the doctor, death in this case was due to shock and haemorrange caused by the abovementioned injuries. Injury No,1 was individually fatal and was sufficient to cause death in the ordinary course of nature.
9. Similarly, Dr. Ghazanfarullah. P.W.2, medically examined Muhammad Afzaal, P.W. 11/injured witness, and observed:- "A stab wound 3 c.m. x 1.5 c.m. x depth not probed on left hypchondrium (flank) in its mid-region."
Investigation of this case was conducted by Amjad Hussain. A.S.I./P.W.12, as narrated in the ealier part of this judgment. Rest of the witnesses being of formal in nature need no discussion.
10.Learned A.D.A. tendered in evidence report of Chemical Examiner about dagger Exh.PM and that of Serologist as Exh.PM/1, report of chemical examiner about earth Exh.PN and that of Serologist as Exh.PN/1 and closed the case for the prosecution.
11.After recording the entire prosecution evidence, learned Trial Court examined the accused/respondent under section 342, Cr.P.C. wherein respondent while answering to the question as to why this case against you and why P.Ws. have deposed against you, replied:-- "On the day of occurrence at the relevant hour, Abdul Jabbar deceased and Muhammad Afzaal injured P.W. took myself in garden of one Yousaf within the area of Chak No,9/ML and attempted to commit sodomy on me. I resisted their attempt and took out a pen knife from my pocket and gave injuries to Abdul Jabbar, deceased, and Muhammad Afzaal P.W. in defence of my person. I put forward my defence plea to the above effect before the investigator Amjad Hussain, A.S.I. but he did not record the same dishonestly in connivance with the complainant party. I also narrated true fact before the ASP/SDPO who accepted my version that in fact the deceased attempted to commit sodomy on me and that the motive set up in the F.I.R. was false. I am a minor boy and the deceased use to tease myself on each and every occasion and forced me to assault him."
Respondent neither himself made any statement under section 340(2), Cr.P.C. nor produced any evidence in support of the defence plea.
12. We have gone through the judgment as well as record of the Trial Court with the assistance of learned counsel for the parties. The learned trial Court while disbelieving the motive part of this case observed that no cogent evidence was brought on the file to prove the motive set up in the F.I.R.; that Investigating Officer admitted during the cross-examination that he did not examine or interrogate Mst. Nasim, the P.Ws. examined at trial, failed to explain the circumstances on the basis of which they opined that the accused/respondent suspected illicit intimacy of his sister with the deceased. In this regard, it is further observed by the trial Court that as stated by Shaukat Ali, P.W.10, at the time of occurrence, accused and the deceased were going together in a normal way and if the deceased had illicit relations with the sister of respondent then he would not have accompanied him in jungle at odd hours.
13.While discussing the ocular account narrated by Muhammad Yousaf, P.W.9/complainant, and Shaukat Ali, P.W.10, it has been observed by the trial Court that claim of Muhammad Yousaf, complainant/P.W.9 was that at the relevant time he was irrigating the land at a distance of ten squares from the place of murder and while having a round of the watercourse, he met with Shaukat Ali P.W.10 and on his information, he reached at the spot and witnessed the occurrence.
The trial Court observed that this witness admitted that he had no turn of water at the relevant time. The P.W. attempted to justify his presence near the spot by saying that he had borrowed the turn of water from some of his relatives. Similarly, with regard to Shaukat Ali P.W.10, the trial Court observed, that he did not own or possess any land near the place of occurrence and in the statement made before the police, this witness did not disclose the purpose of his presence near the spot of murder but during the trial some improvements were made by him stating that he had constructed a "Bhatti" for preparing sweet meat near the place of occurrence and that ordinarily the sweets shops or "Bhattis" for preparing sweet meat are established in inhabited or commercial areas and it is not understandable as to why Shaukat Ali P.W.10 had constructed the "Bhatti" in a jungle. Learned trial Court further observed that Hamid Ali alias Ahmad Ali respondent was only 14/15 years of age and of a very lean and weak built. The three P.Ws. who claimed to have seen the occurrence stated that the accused made good his escape after the occurrence, was not possible in the presence of abovesaid three witnesses.
14. With regard to Muhammad Afzaal, P.W.11, it was observed that though he had a stamp of injury on his person but he alongwith other witnesses failed to explain the origin of this occurrence. The P.W. stated that they found the accused and the deceased grappling with each other when they reached there. None of the witnesses heard as to what transpired between the deceased and the accused person before the former mentioned was attacked, thus, in the circumstances the story of the prosecution narrated by the eyewitnesses was disbelieved and the defence' plea taken up by the accused that the accused/respondent and Muhammad Afzaal, P.W.11, attempted to commit sodomy on him and he resisted their attempt and gave injuries to them, was accepted as the same plea also stood narrated by the accused/respondent before the Investigating Officer during the investigation.
15. It has been observed by us that at the time of occurrence, as established from the birth certificate (Exh.DA), respondent Hamid Ali alias Ahmad Ali was only 15 years of age whereas the deceased and his companion namely Afzaal P.W.11 were adults. Prosecution has not given any plausible reasons as to why deceased and respondent were going towards a lonely place during the odd hours. In the circumstances of this case, the possibility that the accused/respondent had been taken to a lonely place by the deceased and Muhammad Afzaal, P.W.11, for the purpose of committing unnatural offence and during the attempt, respondent caused injuries to the deceased and Muhammad Afzaal, P.W.11, in order to save himself, can be relied upon. If from the evidence available on record, two different views with regard to the same occurrence can be formed, then the view favourable to the accused is to be followed for the safer administration of justice.
16. In the circumstances of this case, we feel that the learned trial Court has rightly disbelieved the prosecution case and accepted the defence plea. The reasons advanced by the learned trial Court for recording acquittal of accused/respondent from the charges under sections 302/324, P.P.C. are neither perverse nor fanciful and they don't call for any interference by this Court in its appellate jurisdiction. Accordingly, finding no force in this appeal, same stands dismissed.
17.As far Criminal Appeal No,264 of 1992 filed by ,Hamid Ali alias Ahmad Ali against his conviction under section 308, P.P.C. is concerned, the learned trial Court while convicting the appellant observed "that accused killed the deceased when the accused was put in fear of being subjected to sodomy. In other words, the accused committed" Qatl" of Abdul Jabbar deceased under "lkrah- iTam". The trial Court further observed "that at the time of occurrence appellant was not more than 14/15 years of age and being not an adult "Qatl-i-Amd" committed by him is not liable to Qisas under clause (a) of section 306. P.P.C. and that the case of ' the accused comes within the purview of section 308 P.P.C. read with section 303, P.P.C. and section 306, P.P.C.
18.In our opinion the learned trial Court while convicting the appellant under section 308, P.P.C. has wrongly interpreted section 299(g), P.P.C. For appropriate appraisal of the ibid section its re- production is necessary which reads as follows:-- Section 299(g), P.P.C.:-- "Ikrah-i-Tam, means putting any person. his spouses or any of his blood relations within the prohibited degree of marriage in fear of instant death or instant permanent impairing of any organ of the body of instant fear of being subjected to sodomy a Zina-bil-Jabr".
19.The bare perusal of section 299(g), P.P.C. shows that the culprit for the commission of this offence would be a person who puts any person, his spouses or any of his blood relations within the prohibited degree of marriage in fear of instant death or instant permanent impairing of any organ of the body or instant fear of being subjected to sodomy or Zina-bil-Jabr. In the present case, learned trial Court has accepted the defence plea that Hamid Ali alias Ahmad Ali appellant was under the instant fear of being subjected to sodomy by the deceased and his companion and in order to save himself, appellant committed the murder of Abdul Jabbar deceased and caused injury to Muhammad Afzaal P.W.11. The ingredients of section 299(g), P.P.C. were not attracted against the appellant rather in the circumstances actual culprit for the offence under section 299(g), P.P.C. read with section 3U3, P.P.C. were the deceased and his companion namely Muhammad Afzaal. P.W.11.
20. Be that as it may, since defence plea of the appellant that he caused injury to the deceased and Muhammad Afzaal P.W.11, as he was under instant fear of being subjected to sodomy has been accepted, this case would be covered under section 100, clause fourthly, P.P.C. and he is entitled to get the benefit of right of self-defence. Accordingly. Criminal Appeal No,264 of 1992 filed by Hamid Ali alias Ahmad Ali is allowed, his conviction and sentence is set aside and he is acquitted from the charge.