1996 P Cr (PLP)

(1) 60 fire‑arm wounds of entry each of the size of 1 m.m. x 1 m. m. on front of both chests, more so on the right side and 6 of them in the epigostrium. There was no blackening or tattooing. (2) A contused wound 2 c.m. x 2 c.m. on the medial side right areola. It was skin deep only and was probably due to striking of Gatta and Namda. The shirt had also a hole corresponding to this injury. (3) 30 fire‑arm wounds of entry each of the size of 1 m.m. x 1 m.m. on the front of right upper and fore‑arm. No blackening or tattooing was seen. (4) Two fire‑arm wounds of entry each of the size of 1 m.m. x 1 m.m. on the medial side of left upper arm. No blackening or tattooing seen. (5) Two fire‑arm wounds of entry of the size of 1 m.m. x 1 m.m. on the medial side of left forearm. No blackening or tattooing seen. He opined that the death was caused due to haemorrhage and shock as a result of injury No. 1, which was sufficient to cause death in the ordinary course of nature. According to the doctor, all the injuries were ante‑mortem and were caused by fire‑arm.

10. C.W.1, Dr. Habibullah, examined Raazi appellant on 27‑10‑1979 and noticed the following injuries on his person:‑ (1) A scar 6 c. m. x 3/10 c. m. half on front of right hand and half on back of hand in between thumb and index finger near the root of the thumb. (2) A scar 4 c.m. x 3/4 c.m. on front of right leg, 10 c.m. from ankle joint. (3&4) Two scars 6 x 3/4 c.m. and 4 c.m. x 2/5 c.m. on right side of scalp, 1 c.m. apart, 4 c.m. from root of the ear and 7 c.m. from eye‑brow. (5) A scar 3 c.m. x 2 c.m. on outer side of left thigh 16 c.m. from iliac crest. According to this witness, all the scars were due to old injuries of not less than one month duration. Exact opinion of probable duration of these injuries could not be given.

10. Besides the aforementioned two doctors, the prosecution, at the trial, examined eight witnesses, out of whom Ata Muhammad (P.W.7) and Rafiullah (P.W.8) testified as eye‑witnesses to furnish the ocular account of the prosecution version. Mardan Ali (P.W.4) appeared as a recovery witness and Faiz Muhammad, S.I. (P.W.9), who conducted the investigation in this case, disclosed about the manner in which he conducted the same. The rest are, more or less, formal witnesses.

11. The plea of Raazi appellant is that the denial. In reply to question No. 6: "How do you explain the injuries on your person?", he stated: "The cattle of Ahmad Khan P.W., his nephews Sajawal and Nawaz and his son j3ahawal Khan used to trespass into my Jawar‑Bajra field and I used to ask them not to do so. Even on the day of occurrence, when I was turning out their cattle, they alongwith Mst. Kamal Khatoon, assaulted me and injured me with hatchets and sticks and I went unconscious. Later on, I came to Ata Muhammad Khan Killiay Khel to report the occurrence, but he concealed me." No evidence has, however, been led by him in this case:

12. In this case, during the course of investigation, the Investigating Officer and the Senior Police Officers, who verified the investigation, found that Ghulam Abbas and Ibrahim were innocent and that, in fact, the occurrence took place over the trespassing of the cattle of the complainant party into the field of Raazi. It further transpires from the records that many residents of Piplan appeared in defence of Muhammad co‑accused and vouchsafed for his innocence. Ghulam Abbas and Ibrahim were got discharged. The name of Muhammad was placed in column No. 2 and the appellant was sent up for trial. Learned trial Court, however, summoned all the four accused to stand their trial. At the trial, Ata Muhammad (P.W.7) and Rafiullah (P.W.8) supported the prosecution version as detailed in the F.I.R., Exh.P.E. Recovery of Pistol (P.5) and a live cartridge (P.6) from Raazi, being of no consequence, could not be taken as corroborative evidence. In the light of the contradictions in the testimonies of Ata Muhammad and Rafiullah the only two eye‑witnesses, who were deeply inimical towards the appellant and his co‑accused and whose testimonies did not find support even from the site plan and other circumstances appearing at the trial, the learned trial Judge did not believe these two eye‑witnesses as against Ghulam Abbas, Ibrahim and Muhammad. The said three co‑accused were thus acquitted.

13. Regarding Raazi appellant, it has been observed by the learned trial Judge that although Ata Muhammad and Rafiullah were held to be not reliable and truthful witnesses, so far as acquitted co‑accused were concerned, but their testimonies found corroboration from the plea of Raazi appellant himself that he was injured in. the incident in which cattle of the complainant party trespassed into his field and he fired. Thus, his conviction under section 302, Pakistan Penal Code, has been solely based on his own statement.

14. We have thoroughly considered and analysed the statement of Raazi appellant made under section 342, Criminal Procedure Code. The relevant part of his statement is contained in reply to question No.6 which has already been reproduced above. In this statement, he has not stated that he fired when he was assaulted or that Mst. Kamal Khatoon died at his hand. If the judgment has to be based on the statement of the accused, then the same has to be accepted as a whole, unless there is full, justification for not believing the exculpatory part of the statement of the accused. No such justification is forthcoming, from the records of this case. The appellant, in his statement, has simply disclosed that the cattle of the complainant party trespassed into his field. When he was turning out the cattle, the complainant party assaulted him and caused injuries to him with hatchets and sticks and he went unconscious. He further stated that, thereafter, he went to Ata Muhammad Khan Killiay Khel‑‑an important person of the area, who confined him and allowed him to go after the injuries were healed. Even if it be assumed, by any stretch of imagination, that Raazi appellant had fired when he was attacked by the complainant party and that the shots, thus fired, hit Mst. Kamal Khatoon, resulting into her death, it would be a case of exercise of right of private defence. In such an eventuality, when the appellant was attacked by four persons, armed with hatchets and sticks and was caused injuries, he had every right to open fire to defend himself.

15. In the above circumstances, we are of the view that the prosecution has utterly failed to establish the charge of murder against the appellant, beyond reasonable doubt. Thus, extending benefit of doubt to the appellant, we allow his appeal and acquit him. He shall‑ be released forthwith, if not required to be detained in any other case. His death sentence is thus, NOT confirmed.

16. The P.S.L.A., is also accordingly dismissed. S.G.D. Acquittal order.