1972 PLP 690 (SCMR)

SAJJAD AHMAD, J.‑The respondent, Mir Bahadur, was convicted for the murder of Azad Khan, and sentenced to death by the Additional Sessions Judge. Peshawar. On appeal and reference, he was acquitted by a Division Bench of the Peshawar High Court. This appeal by Asal Din, a brother of the deceased, is directed against the acquittal order, as recorded by the High Court. It was alleged by the prosecution that the deceased was murdered at 3 p.m. on the 26th of May 1966, by the respondent, who fired two pistol shots at him. The murder was preceded by a quarrel between the de‑,eased and the respondent over the turn of irrigation water. The turn of the respondent was due to end at 3 p.m. on that day, and the deceased, whose turn commenced thereafter, diverted the water to his own orchard, but the respondent, instead of allowing him to do so, fired at him, killing him on the spot. The occurrence was reported by Asal Din at Police Station City Kohat at 3‑30 p.m. the same day. The police station is situated at a distance of one mile from the scene of occurrence. It was alleged in the report that the occurrence had been witnessed by the first informant, namely, Asal Din, and his three tenants, Wali Shah, Awal Shah and Miran Shah. The post‑mortem examination of the deceased revealed that he had an entrance wound on the front of the right side of the chest with its exit on the left side on the back below the inferior angle of scapula. There was a tear in the left arm of the shirt with blackening but with, no corresponding Injury on the body. The deceased had also sustained multiple bruises on the back of the right forearm, on the back of the left hand elbow joint and the side of the left arm. The prosecution had alleged the firing of two shots, and this seems to be proved (1) by one effective entrance wound received by the deceased, and (2) by the tear with the blackening in the left arm of the shirt of the deceased but which did not hit the body. Two .32 bore empty shells were recovered from the spot but they did not match with the licensed pistol, which was produced by the respondent during investigation The respondent was also medically examines on the 26th of May 1966, at 7‑10 p.m. after he was arrested by the police. Following injuries were found on his person :‑ (1) Multiple bruises on the right shoulder. (2) laceration 1/8" on the left side of lower lip. (3) Bruises on the right upper arm lateral aspect 2" above elbow joint. (4) Bruises on the right cheek. All these injuries were caused by blunt means, and were simple in nature. Out of the eye‑witnesses, the learned trial Judge disbelieved Miran Shah on the evidence of a defence witness, Hussain Ghulam L. H. C., who was posted at Kotal Post during the days of occurrence, and whose duty was to write the numbers of the trucks and buses and the names of the drivers and timing of the crossing of the Kotal Post. This witness stated that "in the diary of the 26th of May 1966, it is recorded that bus No. P. R. 4742. which was driven by P. W. Miran Shah, passed Kotal Post on its way to Peshawar from Kohat at 14‑00 hours." This official entry completely contradicted the stand of Miran Shah P. W. that he was in the orchard of the deceased in Kohat at the time of occurrence. The trial Judge, however, believed the other witnesses for holding the respondent to be guilty. The learned Judges in the High Court have been very greatly Influenced by the introduction of Miran Shah as an eye‑witness in the case by the other eye‑witnesses although he was positively proved to be a false witness. According to the learned Judges, this circumstance adversely affects the whole of the prosecution case, putting into serious doubt the credibility of the other witnesses. However, in recording the acquittal of the respondent, the learned Judges in the High Court have given the benefit of doubt to the respondent on the view that the possibility of the respondent having acted in self‑defence cannot be excluded. This view of the High Court, in our opinion is sustainable on substantial grounds. It may be recalled that the respondent was also injured in the occurrence but in the First Information Report, we find that there was no mention of his injuries. At the trial, it was conceded by the prosecution witnesses that the deceased had grappled with the respondent and that he was holding a belcha in his hand at that time. The blunt weapon injuries both on the deceased and the respondent show that the actual firing on the deceased was preceded by a grappling between the two, and it is not unlikely that before the respondent used his pistol, he had, during the grappling conceived a reason able apprehension that if he did not defend himself effectively, he would come to a serious grief at the hands of the deceased, who was holding a lethal weapon in his hand. It was admitted by P. W. Wall Shah in his statement that it was after the grappling that the respondent retreated by two paces and fired at the deceased. This he must have done obviously to save himself from further harm by the deceased. There is another point also as noted by the learned Judges in the High Court, which strengthens the respondent's case of self‑defence. The fact that the report was lodged within half an hour of the occurrence shows that it did not take place precisely at 3 p .m. on the expiry of the turn of the respondent, as alleged by the prosecution. It is quite likely that the turn of the respondent was still not over when the deceased wanted to divert ‑4he water to his own orchard, giving rise to the quarrel between the two. If the turn of the respondent to take water was being interrupted before time, he had e4ry right to stop this transgression and use the necessary amount of force to repel it. If In addition the deceased also resorted to grappling, as is conceded by the prosecution, the respondent clearly found himself in a situation where he very reasonably conceived the apprehension that if he did not act more effectively, he was in danger of his life at the hands of the deceased. In any event, we feel that the circumstances of the case do justify the benefit of doubt that has been extended to the respondent by the learned Judges in the High Court on the view that there is a reasonable possibility of the respondent having acted in the right of self‑defence. Since the judgment of acquittal as recorded by the High Court, is sustainable or. Sound reasoning and cannot be said to be arbitrary or fanciful, we are not inclined to interfere. The appeal is dismissed. Appeal dismissed.