1986 P Cr (PLP)

(1) An incised wound 10 x 2 c.m. on the forehead on the right side. Wound was deep up to the bone. (2) An incised wound 7 x 2 c.m. on the fortal part of the head, 2 c.m. at the distance from injury No. 1. (3) An incised wound 2 x 1 c. m. on the doewhwad on the left side at the distance of 5 c.m. from the injury No. 2. (4) An incised wound 4 x 2 c.m. On the right cheek. (5) An incised wound 4 x 1 c.m. On the chin on the left side at the distance of 6 c.m. from injury No. 4. (6) An incised wound 7 x 2 c.m. on the chin at the distance of 6 c.m. from injury No. 5. (7) An incised wound 3 x 2 c.m. on the right forearm. (8) A contused area 10 x 5 c.m. (9) A contused area 25 x 6 c.m. on the left shoulder on the front part. (10) A contused area 13 x 3 c.m. on the frontal part of the neck. (11) An incised wound 4 x 3 c.m. on the base of the penis. (12) A contused area 4 x 3 c. m. on the right hip joint. (13) A contused area 5 x 3 c.m. on the illiaccrest 2 c.m. from injury No. 12." In his opinion the death had occurred .due to shock and haemorrhage as a result of injuries Nos. 1 to 6 which were sufficient to cause death in the ordinary course of nature. The injuries were caused by sharp‑edged as well as by blunt weapons. The death was immediate. The time between the death and the post‑mortem was 24 to 30 hours. In cross‑examination he stated that the deceased could not do anything after the receipt of head injuries and must have fallen down. He could not fire the revolver after the receipt of injuries Nos. 1 and 2.

7. To prove its case prosecution examined nine witnesses. Muhammad Khan P.W. 2 and Allah Bakhsh P.W. 3 give the ocular account of the occurrence. Muhammad Khan P. W. 2 stated that he was present in the house of his mother when he heard alarm of Ghulam Raza deceased who was running towards village Jahanian Shah. At that time he was being chased by the appellants. When Ghulam Raza reached at a distance of one square towards the east of the Abadi of Jahanian Shah, the four appellants overtook him. Muhammad Nawaz son of Amir and Ghulam Muhammad son of Muhammad Yar give him injuries with their hatchets which struck him on his face and head. Ghulam Raza was holding a revolver. To save his life, he fired from it thrice. Two shots hit Muhammad Nawaz son of Amir in his abdomen whereas the third one hit Ghulam Muhammad on his leg. Ghulam Raza then fell down. Thereafter Nawaz son of Ahmad and Nawaz son of Gaman, give Danda blows on his person. The appellants then removed the revolver of Ghulam Raza and ran away. Allah Bakhsh P.W. 3 made similar statement. Amir Hussain P.W. 4, Ghulam Rasool P.W. 5, and Masood Ahmad P.W. 9 have supported the recoveries of the weapons from the appellants. Dr. Muhammad Zafar Iqbal P.W. 1 has proved the post‑mortem report of the deceased. The rest of the evidence is more or less, of formal nature.

8. When examined under section 342, Cr.P.C. the appellants denied all incriminating circumstances. Nawaz son of Amir and Ghulam Hussain son of Muhammad Yar however admitted their participation in the occurrence‑‑and have owned the death of the deceased. They pleaded right of self‑defence of person as well as grave and sudden provocation. In reply to question No. 6 i.e. how do you explain the injuries on your person? Muhammad Nawaz son of Amir stated:‑ "I and Ghulam Muhammad accused are nephews of Saleh Muhammad and all of us live together. Saleh Bibi is wife of our uncle Saleh Muhammad. On 18‑7‑1982, I and Ghulam Muhammad came from our field after cutting branches of the Keekar trees. We were holding hatchets? We saw Ghulam Raza deceased in a compromising position with Mst. Saleh Bibi. Ghulam Raza deceased started running and we chased to apprehend him. On this Raza deceased started firing at us and I and Ghulam Muhammad co accused in our self‑defence and under grave and sudden provocation caused simple injuries to him from the right side of the hatchet and from the wrong side of the hatchet. Nawaz son of Ahmad and Nawaz son of Ghulam Muhammad accused were not present at the spot nor any witness saw the occurrence. I reported the matter to the Police." Ghulam Muhammad appellant made almost the same statement. Nawaz son of Ahmad and Nawaz son of Ghulam Muhammad have denied their presence on the spot. They have raised plea of false implication.

9. The learned counsel for the appellants submitted that there it no direct evidence of the circumstance in which the appellant followed the deceased; that the eye‑witnesses only saw the deceased being followed by the appellants and then causing his death and as such there is a reasonable possibility of the defence version being true. On the other hand the learned counsel for the State had supported the judgment of the trial Court.

10. I have considered the arguments advanced by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel that in the circumstance of the case, there is a reasonable possibility that the defence version given by Muhammad Nawaz son of Amir and Ghulam Muhammad might be true. The eye‑witnesses had not seen the origin of the occurrence. Muhammad Khan P.W. 2 has clearly stated in cross‑examination that III do not know what preceded before I saw the deceased being persuaded by the accused persons". Allah Bakhsh P.W. 3 was also not in a position to depose about the circum stances in which the appellants pursued the deceased, so the prosecution evidence itself presents such features as go to established the existence of the plea of grave and sudden provocation. Ghulam Hussain appellant has stated that at the time of occurrence they had seen Ghulam Raza deceased in compromising position with Mst. Salehon their close relative who seeing them started running so they chased him in order to A apprehend him; whereupon Raza started firing at them, therefore, he and Ghulam Muhammad injured him in their self‑defence and under grave and sudden provocation. There is total absence of direct evidence of the circumstances giving rise to the pursuit by the deceased and only appellants' words are available which have to be believed per force, as there is nothing on record to falsify the exculpatory part of` the statement of the two appellants. Once the Court holds that the two appellants had seen the deceased in compromising position which tantamounts to an offence punishable under section 10 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 then the appellants were well within their rights under sections 46 and 59 of the Cr.P.C. to pursue the deceased, apprehend him and in case of resistance they could also cause harm, short of death. Since in the case in hand, the deceased had opened fire at the appellants causing injuries to Nawaz son of Amir and Ghulam Muhammad, therefore, a further right of self defence of person extending to the causing of the death of the deceased had occurred to them. From the statement of the Doctor, it is‑very much obvious that the deceased might, have fired before he was given head injuries which according to the prosecution case were inflicted first. The entire evidence does not by any stretch of imagination shown that the appellants had done the deceased to death on account of his previous misdeed. The evidence brought on the record can well be interpreted to mean that the appellants had killed the deceased under grave and sudden provocation as well as in exercise of right of self defence of person. For all these reasons, I am of the view that the appellants have succeeded in raising reasonable doubt in the prosecution case and as such there is a reasonable possibility of their version being correct.

11. The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction and while giving the benefit E of doubt to the appellants, they are acquitted of the charge. They shall be set at libery forthwith if not required to be detained in some other case. H. A. K. Appeal accepted.