1984 P Cr (PLP)

(ii) A stab wound 1" x 1/4" x deep on left lateral side of the chest. On opening the thorax he found that the pleura was injured under injury No. 2 between 7th and 8th rib on 'left side. The left lung was stabbed through and through. The chest cavity was full of blood. The death occurred due to haemorrhage and shock as a result of injury No. 2 which was sufficient to cause death in the ordinary course of nature. Injury No. 1 was simple. Both the injuries were caused with a sharp. edged weapon. The probable duration between the injuries and death was immediate and that between the death and post-mortem examination was about two hours.

8. On the same day this doctor examined Niamat Khan appellant and found an incised wound 21' x 1/3" x muscle deep, on his left palm, more towards the posterior border. The injury was kept under observation but was ultimately declared as simple. In his cross-examination the doctor stated that the aforesaid injury received by the appellant could be the result of a direct blow with a knife or a dagger.

9. In support of its case the prosecution at the trial relied on the ocular account given by Muhammad Hussain P. W. 8 and Fateh Khan P. W. 9, the evidence as to motive furnished by Muhammad Hussain P. W. 8 ; the incriminating recoveries attested by Muhammad Iqbal P. W. 7 and Aitanullah S.-I. (P. W. 10) and the medical evidence given by Dr. Muhammad Riaz Ali (P. W. 4).

10. The appellant at the trial denied all the allegations levelled against him and stated :- "I had sustained the injury at the hand of the deceased who was the aggressor. The prosecution allegations about my injury are incorrect I have-been falsely implicated in this case as Rustam Khan happens to die. In fact he was the aggressor .......................................... I am innocent. In fact the deceased was desparado and sodomist. One Zafar son of Hafiz Ramzan Pawali was a friend of the deceased and the deceased used to commit carnal intercourse with him. One day before the occurrence I had given a few slaps to deceased when I found him loitering near the house of my father-in-law Dost Muhammad. Rustam Khan deceased felt it as a personal insult and he attacked me at the time of occurrence when I was passing by the place of occurrence in a tonga carrying eatables for my guests. The deceased had a dagger. He climbed the tonga and caught hold of me from the Collar of my new shirt. He also injured me with his dagger and in the scuffle the deceased got injured in the said process. I immediately reported the occurrence to the police and showed my torn shirt as well as my injury. But as Rustam Khan happened to die the real facts were twisted by the police and the case was registered much later in the day after Muhammad Hussain and Fateh Khan P. Ws. were summoned from village Narri and Shawala respectively and were put up as false eye-witnesses. The tongawala in question and many other defence witnesses appeared before the A. S. P. during his investigation. S. I. Aman Ullah had earlier prepared incorrect record of my version and refused to record defence evidence." He tendered a copy of Khasra Girdawari Exh. D. B., copy of Record of Right Exh. D. C., copy of record of right Exh. D. D., copy of order of bail passed by the Sessions Judge, dated 13th August, 1978 as Exh. D. E., copy of application of Rustam Khan for grant of interim bail, dated 5th August, 1978 as Exh. D. F., copy of Challan in Re: The State v. Muhammad Hayat Exh. D. G., copy of Bail-bond of Muhammad Hussain complainant Exh. D. H., (including a copy of entry on the back of bail bond), copy of Nikhanama Mst. Akleem Akhtar d/o Mumtaz Khan Exh. D. K., Nikahnama of Mst. Naseem Akhtar d/o Mumtaz Khan Exh. D. J.. Nikahnama of Rab Nawaz Exh. D. L., a report of commit ment Exh. D. M.. two pages comprising of a copy of register of criminal cases of the Court of Ch. Sardar Ali M. I. C. Exh. D. N., and a copy of order, dated 21st October, 1970 Exh. D. O.

11. The learned trial Judge did not believe the motive. He discussed the evidence of recovery of dagger P. 6 in para. No. 10 of his judgment and while relying on the testimony of Muhammad Iqbal P. W. accepted the recovery of dagger P. 6 at the instance of the appellant. After having discussed testimony of Muhammad Hussain and Fateh Khan, the alleged eye-witnesses, at length, the learned trial Judge disbelieved the witnesses because according to him they were neither the independent nor natural witnesses of the occurrence he doubted their presence. While discussing the plea of self-defence raised by the appellant at the trial, he came to the conclusion that the deceased was the aggressor so as to cause an injury to the appellant first, before he received the fatal injury. As to whether the appellant was justified to cause the death of the deceased while exercising the right of self-defence, the learned trial Judge in para. No. 23 of his judgment held that the appellant exceeded the right of private defence, so the appellant was convicted under section 304-II, P. P. C.

12. The only contention raised by the learned counsel for the appellant is that after the learned trial Judge had disbelieved the eye witnesses then the proper course for him . was to have considered the statement of the appellant. In support of his contention the learned counsel has relied upon Muhammad Idrees v. The State (P L D 1965 Lab. 553), in this case the appellant who was convicted by the trial Court under section 302, P. P. C. and awarded a sentence of transportation for life, gave out his age as fifteen and a half years and raised a plea of self-defence alleging that he caused the injuries to the deceased against the deceased's attempt to commit sodomy upon him. There was no direct or indirect evidence as to the circumstances of murder. The learned Division Bench observed that in the absence of any direct or indirect evidence from the prosecution side to prove the circumstances of the murder they had per force to fall back on the statement of the appellant himself which they had to accept unless they could find any evidence circumstantial or otherwise to negative or contradict that statement in whole or in part. The appellant was given benefit of doubt and acquitted. He has next relied upon Ghulam Hussain v. The State (P L D 1972 Lab. 153), in this Division Bench decision it has been observed that it is well-established that where two alternative inter pretations of a particular situation are possible the one favourable to the accused has to be preferred. It is equally well settled that even if a plea has not been specifically raised by an accused in his defence, it shall not be denied to him if it can otherwise be reasonably spelt out from the surrounding circumstances. His last reliance is on Baradi v. The State (1975 P Cr. L J 396) in this case the appellant in his statement under section 342, Cr. P. C. though did not precisely plead the right of private defence yet from the facts as alleged the plea was regarded as having been put in issue. The statement mentioned that the appellant on his way was attacked by the deceased and two others and injured ............................. It was said, "it is well-established that upon the question of the right of private defence if there be any reasonable doubt at all then the benefit of that must be given to the appellant."

13. The learned counsel for the State while supporting the conviction and reasoning of the learned trial Judge has maintained that having unarmed the deceased the appellant exceeded the right of self defence in inflicting injury No. 2 with a forceful blow.

14. The learned counsel for the revision petitioner (the complainant) has addressed that the witnesses have been wrongly disbelieved. The occurrence took place at 10-30 a. m., the conduct of the father lends assurance to his presence at the spot. The learned Additional Sessions Judge has otherwise believed the occurrence. The prompt lodging of the F. I. R. goes to establish that the father was an eye-witness. Fateh Khan was an independent witness, on surmises he has been held otherwise. The evidence of the witnesses cannot be brushed aside simply on an observation that they are chance witnesses. The question all the time is of witnessing the occurrence. The recoveries and the medical evidence corroborate the statements of the two witnesses. If the witnesses present at the place of occurrence did not come forward that was simply because they did not want to earn enmity. It is unwarranted to hold that the case in any sense becomes doubtful on this ground. In this regard the learned counsel has relied upon The State v. Noor Elahi and others (P L D 1976 Lab. 677) and Rasool Bux and another v. The State (1975 P Cr. L J 1379), in both the decisions it has been observed that there is a general tendency that the people avoid to offer themselves as witnesses to support a prosecution case for fear of earning enmity of the accused persons or for fear of subsequent serious consequences to themselves or their relatives. He has next submitted that -the appellant admitted his presence with a different version, in that situation the Court has to come to a definite finding as to the truth of the matter. A right self-defence after snatching the weapon does not accrue against an unarmed person. In this behalf his reliance is on MAX Khan v. The State (P L D 1959 (W. P.) Lah. 1009) He has further submitted that in the circumstances of the case the appellant is liable to be convicted under section 302, P. P. C. and for that retrial is most called for. In the alternative it has been maintained by him that the appellant exceeded the right of self-defence if it is so held then in that event the sentence awarded to him is liable to be enhanced to ten years' R. 1.

15. The views expressed as to the credibility of the witnesses by a trial Court are often entitled to great weight because of it happens to have the privilege of directly seeing the witnesses, watching their demeanour and recording their evidence which privilege is denied to an appellant Court. This is so unless it is shown that the views so expressed are not justified on the record. Here the learned Additional Sessions Judge has given his reasons for not believing the witnesses. The learned Additional Sessions Judge has as to the complainant Muhammad Hussain P. W., the father of the deceased, observed :- "Complainant Muhammad Hussain deposed that he had accompanied his son to his lands in the morning to fetch fodder for his cattle and that the incident took place when they were returning towards their house. Complainant admitted that his house was at a distance of about a mile from the scene of occurrence. P. W. 6 Sh. Mazhar-ul -Haq draftsman was asked to give the details of routes from which one could go from the lands of the complainant to his house. He gave 3 different routes but the place of occurrence does not fall on the said routes. In fact, the complainant admitted in his cross-examination that the path, leading to his house from his lands passes from a distance of about a furlong from the scene of occurrence. In other words, it is proved that the scene of occurrence was not on the way of the complainant, while returning to his house. Complainant also admitted that fodder was to be brought by his tenant Mian Muhammad and as such it was not necessary for the complainant and Rustam to go to his lands, early in the morning to fetch fodder. It is also important to note that the complainant admitted that his total land was under cultivation of his tenant, who had cultivated maize crop in one acre of his land. The maize crop was to be used as fodder. However Khasra Girdawari Exh. D. B. shows that maize was not cultivated in any portion of the land of the complainant in Kharif 1980, when the said incident took place. It is also noteworthy that the complainant stated that academic qualification of the deceased was F. A. and that he was serving in a Bank and as such it could not be expected of him that he was to cut fodder for his -cattle. All these circumstances establish that com plainant Muhammad Hussain was not a natural witness but his presence, if any, was per chance." As to P. W. Fateh Khan the learned judge has said :- "P. W. 9 Fateh Khan claims to be an uninterested witness. I shall first of all discuss as to whether he is really an independent witness. In para. No. 2 of his cross-.examination P. W. Fateh Khan admitted that Mst. Hayatan is a cousin of his wife and that one Rab Nawaz a paternal-uncle of the accused. The witness showed ignorance if the-said Mst. Hayatan was enticed away by Rab Nawaz or that they bad subsequently got married with each other. He also showed ignorance if Mst. Hayatan had got divorce from her previous husband or that Mst. Hayatan and Rab Nawaz were challaned for having committed obsence acts in public. However, these facts have been proved by documentary evidence, produced by, the accused in his defence. Exh. D. N. is a copy of register of criminal cases relating to the Court of Ch. Sardar Ali Gorsi M. I. C., Jauharabad, and it confirms that Rab Nawaze and Mst. Hayatan were convicted of the charge under section 295, P. P. C. Exh. D. O. is a copy of judgment of Court. which proves that Mst. Hayatan had filed a Family Suit for Dissolution of Marriage against her husband Khizar Hayat and that the same was decreed by Judge Family Court Jauharabad on 21st October, 1970. Mst. Hayatan and Rab Nawaz then got married through nikahnama Exh. D. L. It is also noteworthy that an uncle of the accused was murdered after the present occurrence and that complainant Muhammad Hussain was one of the accused in the said subsequent murder. This fact has been admitted by the complainant in para. No. 2 of his cross-examination. The witness denied that Dost Muhammad, brother-in-law of P. W. Fateh Khan, had stood surety for him in the said case. Nevertheless, bail bond Exh. D. H. proved this fact. 1n other words, it is established from record that P. W. Fateh Khan is not an independent witness, as alleged by him.

14. P. W. Fateh Khan disclosed that he was going to the shop of his cousin Khizar Hayat, to get a loan of Rs. 4,000 when he Witnessed the said occurrence on his way. The witness disclosed that his first cousin runs a shop of spare parts. The witness did not 'deny that the incident took place on Friday and that nearly all the shops of area remain closed on the Fridays. The witness added that he did not go to his cousin on that day because of the present occur rence. A11 these facts show that P. W. Fateh Khan had no occasion to go to a shop of his cousin on Friday and thus he too was only a chance witness." Therefore, the contention of the learned counsel for the complainant that the witnesses have been wrongly disbelieved has no face. The submission of the learned counsel that the learned Judge has only described the witnesses as chance witnesses but has not observed "at they did not witness the occurrence is not correct. He has in fact doubted he presence of the witnesses.

16. The submission of the learned counsel for the appellant that the learned Judge has not considered the statement of the appellant is not apt. The learned trial Judge has considered the effective part of the statement of the appellant and in his able endeavour he has found that the appellant received the injury from the hand of the deceased, before injury No. 2 was inflicted upon the latter, but has differed with the explanation of the appellant that the deceased got the injury during the secured by opining that the injury was deep enough to cut the left lung through and through, so it was a result of a direct blow given with full force. However, he is convinced that the deceased caused the injury to the appellant first, because after receiving the fatal injury he was not in a position to cause an injury to the appellant and since the Collar of the shirt of the appellant was found as torn out and that added strength to the defence version that the aggression was initially made by the deceased. The text of the statement of the appellant otherwise vary much puts the plea of self-defence in issue. As to the right of private defence, the learned Judge has observed that the circumstances proved that the appellant bad snatched the dagger from the deceased after the latter had caused the injury to the appellant. The learned trial Judge is of the opinion that after having taken control of the weapon the appellant-could avoid the injury which was inflicted upon the deceased. He could either make the escape under the threat of an injury with a dagger or else he could cause a minor injury to the deceased to give him an impression that he could go to any extent. However, his right of private defence did not permit him so as to inflict a direct blow in the chest of the empty-handed deceased with force which was evident from the nature of the injury received by the deceased. According to the learned Judge the appellant exceeded the right of private defence.

17. It is here that a question for consideration arises as to the tempo of the scuffle as construed from the statement of the appellant alongwith the probability of the event in keeping with the injuries received res pectively. In the absence of any direct or indirect evidence from the prosecution as to the circumstances what is prohibited by the law is, the speculation. It always depends upon the circumstances whether disarming of the deceased gives no further apprehension of any grievous hurt at his hand to the person disarming, if during the scuffle still there is likelihood of snatching of the weapon by the deceased, then the apprehension of the grievous hurt or even of death is there. As there is no evidence so as to show that the scuffle passed through what stages, so it is better to withhold the speculation about it. Now whether the harm inflicted was more than the occasion warranted and exceeded the right of defence under section 100 read with section 99, P. P. C., it is well-established that the right of private defence is not to be weighed in a golden scale as to the harm caused during a scuffle. In the circumstances of this case it is better to rely upon the well-known dictum of Woolmington's case (L R 1935 A C 462) followed in P L D 1953 F C 93, P L D 1953 F C 115 and P L D 1954 F C 29, in spite of the provision of section 105 of the Evidence Act, wherein it has been held :- " ... ... In a criminal case it is the duty of the Court to review the entire evidence that has been produced by the prosecution and defence. If after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole of the prosecution case. In these circumstances the accused is entitled to the benefit of the doubt, not as a matter of grace but as of right, because the prosecution has not proved its case beyond reasonable doubt.

18. In the result, the appeal is accepted ; the conviction and sentence of the appellant are set aside. He is given the benefit of doubt as to the right of private defence held to have been exceeded and is acquitted. He shall be released forthwith if not required to be detained in connection with any other case.

19. The revision as brought is hereby dismissed. M.F.M. Appeal accepted. Revision dismissed.