1983 P Cr (PLP)

(b) that the recoveries are not genuine and have no evidentiary value ; (c) that all the P. Ws. are related to the complainant, partisan and inimical, their evidence without corroboration cannot be relied upon ; (d) that the High Court had ignored the basic norms of appreciation of evidence by drawing the concession unwarranted in law and not supported by evidence. The prosecution case, when viewed in the background that all the P. Ws. who were non‑partisan and belonged to M'abad, were either dropped or declared hostile by the prosecu tion, becomes doubtful ; (e) that in case he is unable to secure acquittal his sentence be conver ted from death to life imprisonment and the benefit provided under section 382 (b), Cr. P. C. may also be extended to him. At the very outset of the arguments an objection was raised by the Additional Advocate‑General that appeal was time‑barred, delay being inordinate, there exists no valid reasons for condoning it. As the maintain ability of appeal depends on the determination on this objection the Court feels inclined to decide the point first. In order to have a better appreciation of this point of delay it is necessary that various relevant dates be mentioned and placed in their chronological order. Appellant's appeal in the High Court was dismissed and revision petition of the State accepted on 23rd November, ,1972. On this relevant date there existed no higher legal forum wherein the propriety and correctness of the judgment and order of the High Court dated 23rd November, 1972, could have been challenged. Then in 1974 "The Azad Jammu and Kashmir Judicial Board (Constitution and Jurisdiction) Act was passed. Section 14, subsection (4) of this Act provided that in cases of judgment, decrees, orders and senten ces passed by the High Court after 18th August, 1972 and before this Act came into force, appeals referred in section 7 of the said Act may be filed within a period of 3 months from the date of coming into force of the said Act. This Act was published in official Gazette on 30th September, 1974.

8. According to the learned Additional Advocate‑General the appel lant should have filed his appeal at the latest by the end of December, 1974 whereas his appeal which was forwarded through jail authorities to Judicial Board was filed on 14th November, 1975, as such, being time bar red by 10 months and 14 days ought to be dismissed. This delay according to him, deserves no condonation. The learned Additional Advocate General in support of his arguments referred to 1974 S C M R 108, 1982 S C M R 285‑386, 1970 S C M R 582, P L D 1956 S C (India)

323. P L D 1982 S C (A J & K)

13. All these authorities except P L D 1982 S C (A J & K) 13 pertain to civil matters. While considering the point of delay in Criminal cases Courts generally lean towards condoning the delay especially in cases it is felt that by allowing this technical hinderance to A prevail it would perpetuate great injustice which has otherwise been caused by ignoring the basic norms of proper appreciation of evidence. It is more true in cases where capital punishment has been awarded. The judgments referred by the learned Additional Advocate‑General pertaining to civil cases have but little relevancy to the cases where capital punishment has been awarded. In P L D 1967 S C 356 their Lordships while hearing the case of a convict,‑ during the arguments entertained doubt about the con viction of a non‑appealing convict, issued the directions that non‑appealing convict be instructed to send his petition for leave through jail. In another case P L D 1977 S C 52, the learned Judges observed that "delay, consis tently with the practice of Court is condoned" and in their wisdom the Hon'ble Judges thought it fit to proceed with the appeal and decide it on the merits. The petitioners in that case were convicted on a capital charge.

9. In case where conviction has been on capital charge, there seems to be consistent leaning S C. and practice among the superior Courts for condoning the delay and deciding the cases on merits. Even the B knowledge of limitation was not allowed to be a hurdle in condoning the delay in proper cases. In case reported in 1978 P Cr. L J‑ 546, the delay of 2 and a half years after conviction and sentence of life imprisonment was condoned on the ground that the petitioner being a poor man could not arrange the filing of appeal earlier. There is a judgment of this Court reported in P L D 1982 S C (A J & K)

13. In this case the petitioner was convicted under section 376, and sentenced to 3 years' imprisonment. The facts of this case titled "Khadim Hussain v. The State" are quite distinguishable from the case in hand. Khadim Hussain, as is clear from the judgment had the knowledge of limitation period, besides Court, in view of the facts of the case did not feel inclined to condone the delay. In the present case the appellant argued that after the rejection of his appeal in the High Court there existed no further forum of appeal and as a condemned prisoner he was separated from other prisoners and kept in a separate cell. He had no knowledge of the forum and the law of limitation covering his case which was decided almost 3 years previous to the establishment of Judicial Board. He has been awarded death sentence. In view of the circumstances 1. a.m of the view that sufficient justification exists for condoning the delay. I am further supported in my view by Supreme Court Judgment reported in 1979 S C M R 214 wherein the Hon'ble Judges observed that Supreme Court generally condones the delay in criminal cases."

10. Besides, Supreme Court will not allow the technicality of delay to prevent it from doing complete justice and especially where it is of the view that basic norms of appreciation of evidence in a criminal case have not been observed. The delay in filing of this appeal is therefore, condon ed and I propose to decide the appeal on merits.

11. It is argued by the appellant that F. I. R. was not lodged on the spot as claimed by the prosecution. It is a creation of convenience at some later stage of the investigation. In support of his contention the appellant referred to the evidence of P. Ws. Iftikhar, Muhammad Rafique and Abdul Qadir. It is established beyond any doubt that after the occurrence injured persons had been taken to hospital by Sh. Abdul Haiy Advocate and Malik Mohammad Aslam the then Custodian in their Vehicles before the arrival of the police on the place of occurrence. Iftikhar and Rehmat P. Ws. had also gone to the hospital along with the injured persons. I do not have to dwell on the point as the learned Additional Advocate‑General conceded the point. Besides, there is finding of the trial Court and that of the High Court to the same effect. The learned Additional Advocate‑General however, argued that this action of the police officer claiming to have recorded the F. I. R. on the spot is just an irregularity. The F. I. R. no doubt cannot be taken into consideration, but beyond that no adverse inference can really be drawn against the prosecution. That honourable Judges in the High Court also concluded their findings on the point with the observation that "F. I. R. is not admissible in evidence but this cannot mean that we can throw out the prosecution case on the score of first information report having been entered after the start of investigation by the police" It is correct that prosecution case cannot be thrown out just because there is no F. I. R. or it has been found irregular, provided of course there is other sufficient and convincing evidence available. Each case has its own peculiar facts, the Court will be failing in its duty by not taking note of the fact that this Investigating Officer did not hesitate to tell lies before the Court by deposing that F. I. R. was recorded on the place of occur rence and that complainant along with the injured persons was still there on the spot when he reached on the scene. The injury reports claimed to have been prepared on the spot have been found from the evidence to have been prepared in hospital and none of these persons were present o the scene at the time of the arrival of the police. These facts are sufficient to put the Court on its guard and use utmost care while evaluating the evidence. The F. I. R. is therefore, a worthless document and cannot be taken into consideration.

12. It is further argued that the recovery memos. and the recoveries alleged to have been made at the place of occurrence are of no legal value therefore, cannot be used in evidence. The reasons stated in support of this assertion are: ‑ (a) that the P. Ws. Rehmat and Iftikhar who are alleged to have witnessed the recoveries and are shown as marginal witnesses of the recovery memos. were in fact not present there at the relevant time ; (b) that in the alternate recoveries alleged to have been made are doubtful as large number of people were present and available, some of them of course highly respectable and impartial yet partisan and inimical persons are shown as witnesses of the recoveries.

13. Taking up this objection that P. Ws. in whose presence recove ries are alleged to have been effected were in fact not there, reliance has been placed on the evidence of P. Ws. Iftikhar, Badar Jehan, Abdul Qadir and Mohammad Rafiq. P. W. 5 Mst. Badar Jehan stated in her evidence that her brother Iftikhar and P. W. Rehmat Khan were in the same car which took her to hospital. Abdul Qadir P. W., a clerk of Sh. Abdul Haiy Advocate is the person in whose house complainant claimed to have left his sister Mst. Badar Jehan for the night stay. His evidence is to the effect that when he along with Sh. Abdul Haiy reached the place of occurrence there was a large crowd already there. Sultan was lying injured Badar Jehan and Karam Dad were also found to have been injured. He further stated that Karam Dad, Iftikhar and Badar Jehan were taken away to hospital by Malik Mohammad Aslam in his car whereas Sultan and Rehmat Khan were taken to hospital by Sh. Abdul Haiy in his car. By that time police had not arrived on the scene of occurrence. There is no reason as to why this witness be not believed on the point. He had very good relations with the complainant so much so that Badar Jehan the sister of complainant was left at his residence while the complainant party stayed for the night at Gillani Hotel. There is not a single word of criticism about the integrity of this prosecution witness from the prosecution side. There is no reason therefore, as to why this witness should not believed when he says that the complainant party had already left the place of occurrence and he did not see the police any where at any time. According to the evidence of this P. W. there remain no doubt that these P. Ws. who are shown to be the marginal witnesses of recovery memos. were in fact not there at the time when these memos, are claimed to have been prepared. This fact is also supported by the statement of Badar Jehan at least to the extent that Iftikhar and Rehmat had gone to hospital alone with the injured persons. This fact finds support also from the evidence of P. W. 18 Mohammad Rafique who deposed that when they left the scene of occurrence the police was not there. So there remains no doubt that these two witnesses of recoveries were not there at the time when the recovery memos are alleged to have been prepared, P. W. Ghulam Ali is also a witness of recoveries who is not related to the complainant or the deceased but the mere fact that a man appa rently having no connections with either party and impartial, must also be a truthful witness. The evidence of this witness of recovery is not of a quality, at least on the point of recovery on which reliance can safely be placed. There are numbers of reasons, for example: ‑ (a) that the recovery memo. Exh. P. C. with regard to the crime empties is claimed to have been signed apart from him, by P. Ws. 1 and 2 as well at the place of occurrence, whereas in fact these two witnesses were not present there at the relevant time ; (b) that this witness deposed to have gone to the Police Station along with the S. H. O. where it was realised that one empty was short so they again went back on the spot. Search again was conducted and one more empty was found; (c) that it is in the evidence that recovery memos. were torn and prepared afresh after couple of days when police got them signed again. It is also in his evidence that a large number of people had gathered at the place of occurrence yet, investigating Officer who prepared recovery memos thought it fit to get those witnessed by p. Ws. 1 and 2 who were partisans and interested. This fact by itself is sufficient to cast doubt on the legality of these reco veries so these are to be kept out of consideration. With regard to recovery memo Exh. P. E. the position is different as accused/ appellant admits that it fell down on the spot when he was attacked by the complainant party and as result of scuffle that followed thereafter.

14. The appellant further argued that the High Court and the trial Court had ignored the basic norms of appraisal of evidence and wrong conclusions unwarranted in law and not supported by evidence on the record were drawn. According to him both the Courts below misdirected themselves by placing reliance on the evidence of P. Ws. who were partisans and inimical and their evidence being full of inherent defects. It also contended that some very important evidence on the record was not considered so the judgments of the lower Courts suffered from non‑reading of the evidence.

15. Out of 19 P. Ws. produced by the prosecution in support of their case 6 are claimed to be eye‑witnesses. Four out of six namely Iftikhar, Karam Dad, Rehmat and Badar Jehan are closely related inter se and to the deceased. They belong to Mirpur, a place about 165 miles away from Muzaffarabad. There exists enmity between the parties on account of alleged abduction of Badar Jehan by the appellant. Other two P. Ws. namely Ghulam Ali and Mohammad Rafique do not support the prosecu tion case and are declared hostile. The argument is that conviction cannot be based on evidence of interested and inimical witnesses moreso when their evidence is full of infirmities and there is no corroborative evidence to sustain the conviction. The report of Ballistic Expert which is Exh. P. Z. does not support the prosecution and its author Mr. Bajwa was given up as a won over witness. Furthermore the prosecution have been guilty of holding back the evidence of independent and impartial witnesses who were available in the case. Both the Courts below have failed to appreciate these facts in their correct perspective. The appellant in support of this contention referred to 1982 S C M R 178, 1982 P Cr. L J 826, 1982 S C M R 613, 1982 S C M R 57, 1978 P Cr. L J 670 and 1977 P Cr. L J 1030.

16. The learned Additional Advocate‑General submitted in reply that mere fact that the P. Ws. are related to the deceased, is not in itself sufficient that their evidence be discarded. He further argued that even in case of hostile witnesses evidence is to be sifted, weighed and judged like that of any other witness. It is the quality and not relationship with reference to which their evidence is to be considered, besides, the presence of these P. Ws. is admitted by the defence. The evidence according to him, ought to be sifted carefully and only that part be discarded which is found incorrect and not whole statement. The maxim falsus in uxo falsus in omnibus is a dangerous one and not approved by the Courts in Pakistan. The correct approach would be to sift it with care and reject only the part which does not ring true.

17. For the better appreciation of the points raised by the appellant as well as by the learned Additional Advocate‑General, it is necessary to evaluate the evidence of P. Ws. with utmost care. P. W. I Iftikhar a Law student at that time, is real brother of Badar Jehan P. W. 5 and nephew of P.. _W. 3 Karam Dad and Sultan Ahmed deceased. P. W. Rehmat Khan is also related to them. There exists enmity between the parties. P. W. 1 also admitted in his evidence that he felt dishonoured and aggrieved on the abduction of his sister. It is for these reasons that his evidence and in fact the evidence of all these P. Ws. is to be considered with utmost care. The evidence of Iftikhar on the point of F. I. R. is that soon after the occurrence the police arrived on the scene and got the F. I. R. recorded on the spot, yet when cross‑examined he had to admit that he got his statement recorded in hospital. The F. I. R. was only once recorded and he did not remember having made any other statement before the police. The trial Court as well as the High Court are unani mous on the point that F. I. R. has no sanctity and cannot be taken into consideration. The evidence of these eye‑witnesses that all the injured persons were present on the place of occurrence at the time of arrival of the police has also been found incorrect for the reasons recorded in the earlier part of this judgment. The evidence of P. W. 2 Rehmat and P. W. 1 that they left the scene of occurrence after the police had prepared the injury reports, recoveries having been made and the site plan prepared by the Patwari, is negatived by the evidence of P. Ws. Badar Jehan, Ghulam Qadir and Mohammad Rafique. I have given my earnest consi deration to the evidence of these P. Ws. on points referred above. It is absolutely clear that this part of their evidence could not be regarded as innocent slip or mis‑statement of no considerable significance. Instead their statements were deliberate and made with a design to make the prosecution story look perfect.

18. The learned Additional Advocate‑General further submitted that with regard to the occurrence the evidence of P. Ws. Iftikhar, Rehmat, Karam Dad and Badar Jehan on the whole is flawless: Besides their presence on the scene of occurrence as well as his own presence on the scene is clearly admitted by the appellant. The evidence of P. W. Ghulam Ali who had no connection with either party can also be relied upon at least to the extent which pertains to his having seen the accused/appellant coming out from underneath complainant party with a pistol in his hand. So according to him there exists sufficient evidence suffering from no inherent defect on which conviction can safely be based.

19. On principle there is no dispute with regard to the assertion of the Advocate‑General on the point that a conviction can be based even on uncorroborated evidence of interested witnesses provided it is otherwise of a quality that inspire confidence. But the question is as to whether the evidence of these P. Ws. who were not only partisan and inimical but have also perjured themselves on the point of considerable importance, is of a quality that rings true and on which reliance can safely be placed.

20. It will be wholly wrong to hold that evidence of partisan and inimical witnesses who have deliberately perjured themselves on a part of evidence can safely be relied upon in respect of other part of the evidence, without any other confirmatory evidence. To do so would not be in keep ing with the principle of safe determination of justice. The cases referred by the learned Additional Advocate‑General reported in P L D 1978 S C (A J & K) 146, P L D 1977 S C (A J & K) 1, have no application in the present case. In P L D 1978 S C (A J & K) 146 there existed sufficient corroborative evidence according to the observation of the honourable Judges. Similarly in P L D 1977 S C (A J & K) 1, the honourable Judges accepted the danger and risk involved in placing reliance on portion of testimony of hostile witnesses. In ultimate analysis appraisal must be based on full appreciation of evidence and evaluation of all the relevant circum stances, as circumstances of any two cases are seldom alike. Any expression of opinion even in general tern in a case must be confined to that particular case barring of course when a certain basic legal principle is laid down.

21. With the help of the learned Additional Advocate‑General and the appellant I have gone through the entire evidence. The defence story is that while going to the District Courts in order to get the reply prepared to the show‑cause notice issued against him, and on reaching the place of occurrence, the appellant was abused in most filthy language and attacked by the complainant party. While prosecution version of the inci dent on the other band is that after having failed in getting custody of Badar Jehan the appellant followed the complainant party and overtook them at the place of occurrence. He had a pistol in his hand and started shooting as a result of which Sultan Ahmad was killed and others got injured. There is no disagreement on the points of place of occurrence, the presence of P. Ws. and that of the appellant and also the subsequent firing as a result of which Sultan lost his life and other got injured. The only point which requires determination is as to what preceded the actual firing, who started it and under what circumstances? It is for the prosecution to prove that it was the appellant who opened up the fire with the intention to kill and without any provocation. It is contended by the learned Additional Advocate‑General that the fact of appellant's' arrival at the place of occurrence soon after the complainant party is a clear proof of his having come with the intention to kill. Whether in fact the arrival of the accused/appellant on the place of occurrence is not open to any other explanation? Answer must be found from the evidence on the record, Firstly it is common ground between the defence and the prosecution that a show‑cause notice was issued against the accused/appellant. It is the claim of the appellant that, after having been advised by his counsel to proceed to the District Courts he was going there in order to get his reply to the show‑cause notice prepared. Secondly it is in the evidence of P. W. 1 the complainant that when they reached the place of occur rence they had left Gillani Hotel behind them down below. It is also in the evidence of P. W. 2 Rehmat khan that after having reached on the place of occurrence first time, they saw the accused was, when he bad arrived at the Rickshaw stand by a Rickshaw cab and was getting out of it. It is important to note that Rickshaw stand is down below at the base and really a very busy place. The steps leading to the top are also crowded by the people going towards the city and the District Courts and the people coming down to the base where there is Ricksha stand and a Bazar as well. According t0 the evidence of P. W. 7 Patwari the distance from Ricksha stand to the place, of occurrence is about 145 feet, part of it going towards the acclivity. The prosecution .has to do a lot of explaining and it must be from the evidence on the file. Firstly when complainant party had already reached at the place of occurrence and from there they had seen the accused down below in Ricksha, what kept them there waiting on the spot till the arrival of the appellant. Secondly if in fact he had followed them from the High Court with the intention to kill would it not be logical and natural for him to look for his intended victims in the Gillani Hotel instead of going on the top? 'Would it be safe to assume that the accused could have possibly seen the complainant party from down below. In the light of foregoing circumstances I find substance in the point. It matters not if it cannot be said with certainty that the appellant really intended to go to the District Courts. The real point involved is can

22. The next question to be considered is as to what really preceded the actual firing. The prosecution case is that after reaching the place of occurrence the appellant raised a Lalkara and said that they "complai nant party" would not be allowed to escape alive. It is in the evidence of P. Ws. Iftikhar, Rehmat and Karam Dad that accused raised this Lalkara . In order to find out as to what really preceded the real act of firing, the evidence of P. W. Badar Jehan must first be examined. The relevant part of her statement is to the effect that she did not know from which way the accused arrived on the scene. She did not know whether Sultan deceased had abused the accused or not at the time of the arrival of the appellant. It is interesting to note that she does not lend any support to the prosecution on the point of accused having raised Lalkara (Lalkara means putting a person on guard in a loud challenging voice). Although she does not agree with the suggestion that Sultan Ahmed deceased abused the appellant but then she does not deny it either. It is the prosecution's own case that they were together there and a `Lalkara' was raised. How come, that she did not hear anything? She was there with the complainant party and if in fact Sultan deceased did not say anything then the only natural and logical answer for her would be in the negative. The fact that she can neither confirm nor deny, casts a serious doubt on the prosecution version with regard to this part of the story. Next the evidence of P. W. Mohammad Rafique an eye witness and also an injured one who belongs to M'abad having no relation with either party. His evidence is that after having seen his brother while going back to his home he reached on the place of occurrence. He saw the accused coming from the lower side through the steps. A man of tall stature abused the appellant and had drawn the pistol at him. At this point of his statement, on the request of Public Prosecutor be was declared hostile and cross‑examined while being cross‑examination by the Public Prosecu tor stated that a tall man who had drawn pistol on the accused bad also abused him. He had 3 other men and a woman alongwith him. He further stated that it was incorrect that the accused had raised any `Larkara'. It is in this background that the question of holding back the evidence of P. Ws. Abdul Hamid and Mohammad Rafique (another person and not the same Rafique who is an injured witness) by the prosecu tion assumes a considerable importance. Again the elimination of the names of Khani Zaman. Kula and Hafeez Ullah all of them impartial, from the list of eye‑witnesses and. a subsequent report under section 173, Cr. P. C. is a clear pointer towards the mala fide of the investigating agency. It is not a case where impartial witnesses, though found present on the scene of occurrence did not come forward. Nere is a case where impartial witnesses were available. Prosecution admits their having witnessed the occurrence yet they were held back by the prosecution by way of giving up two and eliminating the names of 3 who had been cited as eye‑witnesses in the first challan. Inference therefore, can be drawn that P. Ws., Abdul Humid and Mohammad Rafique were given up for the reasons that would not have supported the prosecution case if produced and also elimination of Kala, Khani Zaman and Hafeez Ullah from the list of P. Ws. was done with the mala fide intention. The question now therefore is; as to whether the evidence on the point is of such a convincing nature that implicit faith can be placed in it. Would it be safe to hold that is was the accused/appellant who bad raised `Lalkara' and opened up the attack unprovoked? After giving considerable thought I find .the prosecution version that it was the accused who raised a `Lalkara' not acceptable.

23. While giving details of the incident P. W. 1 deposed that Rehmat Khan, Karam Dad, Sultan Ahmed and Badar Jehan were ahead of them. 198.3) AU ASGHAR KHAN V. STATE (Sher Zaman Chaudhry, J) 249 P.W. 2 while describing the position of the P. Ws. stated that he was ahead of them all, behind him was Badar Jehan. She was followed by Karam Dad and at a little distance behind him was Sultan while at the tail end was Iftikhar complainant. It is in the evidence of Iftikhar that he was fired upon first. After having missed his first shot on Iftikhar the appellant then got hold of Sultan Ahmed and then fired two shots at him. The evidence of P. W. 3 is also to the same effect that appellant first got bold of Sultan and then fired two shots at him. This part of the prosecu tion story, I find, is open to serious doubts and does not appear logical. It is hard to believe that a matt having automatic weapon in his hand and determined to kill, would first catch his victim and then shoot him down. Another reason which makes the prosecution version on the point doubt ful is the evidence with regard to a wrist watch with a broken stainless steel chain belonging to the accused having been recovered from the place of occurrence. The appellant's explanation contained in his statement recorded under section 342, Cr. P. C. is that when attacked by the complainant party the chain of his wrist watch got broken and it had fallen down. P. W. Iftikhar complainant's statement on the point is very important to be taken note of. This witness stated in very clear terms that when accused appellant grappled with Sultan deceased his wrist watch had fallen down. From this statement it is so clear that it must have taken a considerable amount of struggle to get the stainless steel chain of a wrist watch broken. It is not possible to believe that a man having a pistol, and determined to kill would first grapple with his victim and after having got hold of him would then shoot him down. Considering the evidence on the point it appears that after passing the acrimonious remarks it was Sultan Ahmed deceased who initiated the fight by grappling with the appellant. This part of the evidence having so important bearing on the case was never considered by the honourable Judges in the High Court.

24. The next point requiring determination is as to whether the appellant bad the weapon, did he, use it, and if he did, under what circumstances? P. Ws. Iftikhar, Rehmat. Karam Dad and Badar Jehan stated in their evidence 'that shots were fired by the accused appellant. Their evidence no doubt ought to be considered with utmost care. Their statements on the point that it was accused who fired the pistol shots, after careful consideration, are found to be correct and also supported by the evidence of P. W. Ghulam Ali on the point. There is no valid reason to disbelieve this witness when he states that he saw the accused coming out from underneath the complainant party and had a pistol in his hand. He cannot be taken to have unduly supported the prosecu tion. In fact he was declared hostile by the Public Prosecutor. Neither there seems to be any inherent defect in this part of his statement nor the appellant himself had anything to say as to why this P. W. should not be believed on the point. As a matter of fact appellant accepts this P. W. as highly respectable, impartial and trustworthy. The contents of para 12 of his concise statement are clear manifestation of it.

25. Looking at the point froth another angle the stand taken by the defence that firing was done by P.Ws. Iftikhar and Sultan as a con sequence of which Sultan lost his life and Karam Dad, Badar Jehan and Mohammad Rafique got injured, is unconvincing. Two men firing from a close range yet not a single bullet finding the intended target and instead one from among themselves getting killed and 3 having been injured is hard to believe. I, therefore, find that firing was done by the appellant the question is what were the circumstance under which this unfortunate incident took place? Was there a provocation or did the appellant act under the right of self‑defence ? It has already been held that it was Sultan deceased who first abused the accused using a filthy language, the pungency in the abuse under This is for your mother, you was trying and now she is going with her the circumstances is enough to what the feelings of any one concerned but it has also been held that these provocative remarks were followed by an act of grappling and hold ing down the accused by the deceased.

26. The honourable Judges in the High Court based their finding on the ground that there exists sufficient confirmatory evidence such as recoveries and the fact of appellant's abscondence from the place of occurrence. I have carefully gone through the judgment of the High Court. The reasons why P. W. Ghulam Ali was not believed on the point of recovery memos having been torn and prepared afresh by the police, was that since P. Ws. Iftikhar and Rehmat were also the marginal witnesses of the recovery memos. why the fact of recovery memos having been torn was not put to these two witnesses. It may be pointed out here that this disclosure was made by P. W. while being cross‑examined by the Public Prosecutor after having been declared hostile. Secondly these two witnesses namely Iftikhar and Rehmat had already been examined by the prosecution. The learned Judges in the High Court also used the fact of running away of the appellant from the scene after having been rescued by P. W. Ghulam Ali as an indication of his being guilty and a sufficient corroboration to the evidence of interested and inimical witnesses. The learned Judges erred on this point as well, because unless a fact is put to the accused no adverse inference could legally be drawn against him. This fact of so‑called abscondence was neither put to the accused/appellant either when he was examined under section 242 nor at the time when he was examined under section 342, C. P. C. Superior Courts cannot afford the luxury of indulging into a superficial appraisal of evidence especially in case of capital charge The appraisal ought to be done with utmost care and caution. With respect to the honourable Judges in the High Court I find that their judg ment not only suffers from non‑reading of evidence but it also violates the basic norms and rules of appreciation of evidence. In view of the foregoing reasons it is held that prosecution has not been able to prove its case beyond reasonable doubt so far as the charge of murder is concerned. There exists sufficient evidence to the effect that it was an undersigned and a sudden confrontation between the accused g and the complainant party. The appellant, on being abused and attacked had a right to protect his person. The right of self defence no doubt extends to the extent of causing death of the attacker provided there is a reasonable danger to the life. The moment this danger ceases the right of self‑defence ends at that point. The test is always objective. The complainant party being unarmed, the appellant had no justification to take a second shot at Sultan deceased. By firing twice at the deceased appellant exceeded the right of self‑defence accorded to him by law. The order of conviction under sections 302 and 307, A.P.C. is set aside. The appellant instead stands convicted under section 304, Part I, A. P. C. and sentenced to 10 years' rigorous imprisonment and a fine of Rs

50. In default of the payment of fine he is to undergo 6 months' imprisonment. In view of the circumstances I also direct that the appellant be given benefits available under section 382‑B of the Criminal Procedure Code (Amendment) Ordinance No. XLIII of 1982. Sentence reduced.