P L D 1989 Peshawar 149 (PLP)

Stab wound on the lateral side of left side chest 3" below left axila 2" x "x entering the pleural cavity. Surgical emphysema present. Haematoma and profused bleeding present. The injury in his opinion was grievious and caused with sharp‑edged weapon.

8. He also examined Abdul Aziz accused‑respondent on the same day and found the following injury on his person. A lacerated wound 2 " x l/3 " x scalp deep on the anterior part of the head in the middle. The injury was simple in nature and caused by blunt means. He also examined Jumma accused‑respondent and found the following injuries on his person:‑ (1) Incised wound 1"x1/6" skin deep in between right thumb and right index finger. (2) Bruise 6" x 3" on the lateral side of upper part of left upper arm. Injury No. l in his opinion was caused with sharp‑edged weapon and simple in nature, while injury No. 2 was also simple but was caused with blunt means.

9. They prosecution produced as many as nine witnesses in support of its case. When examined under section 342 Cr. P. C both the accused respondents pleaded innocence and stated that they had been falsely charged. They, however, produced no evidence in defence.

10. We have heard Mr. Muhammad Aslam, Assistant Advocate General, for the appellant (State), Mufti Muhammad Idrees Advocate for the complainant and Mr. Abdullah Jan Mirza, Advocate, the learned counsel for the accused‑respondents at length and have also gun through the record of the case with their valuable assistance.

11. The learned counsel for the State has contended that the learned trial Court has erred in not relying on Sarwar (PW.8) who admittedly has sustained injuries during the occurrence and that the accused‑respondents have failed to make out a case of self‑defence, and consequently the inference so drawn by the trial Court in this behalf is uncalled for. He maintained that anyhow the accused respondents have exceeded the right of private defence of their person.

12. On the other hand the learned counsel for the accused respondents has submitted that the learned trial Court has rightly discarded the solitary statement of Sarwar PW who, though injured, has suppressed the injuries caused to both the accused‑respondents and also has given a distorted version of the occurrence. He also urged that failure on the part of the accused‑respondents to take a specific plea of self‑defence cannot stand in their way to secure the benefit of such a right if it is spelt out from the prosecution evidence or otherwise. He further submitted that so far as four injuries caused to the deceased are concerned, the prosecution evidence indicates that only injury No.1 is of grievous nature and the rest are simple and skin deep injuries and cannot be attributed to the accused respondents in so far as the alleged excess of right of self‑defence is concerned.

13. A perusal of the site plan reveals that the occurrence has taken place in a small lane about 51 feet wide on both sides whereof lie residential houses. Record also discloses that the accused respondent Jumma on the same day of occurrence had lodged a report for the injuries he and his father Abdul Aziz accused‑respondent sustained allegedly at the hands of the deceased, PW Sarwar and their companions namely, Kala, Younis, Afzal and Khan Waiz who, as per report, attacked them with knives and sticks in the morning of the day of occurrence while respondents were on their way to bazar, carrying the milk. It is also pertinent to note that during the investigation the Investigating Officer took into possession vide recovery memo (Ex.PW.5/2), two buckets (Ex.P.8) purportedly belonging to the respondents from Abdur Rehman, a tea vendor, alongwith two aluminium mugs one of which was stained with blood. Similarly he recovered and took into possession from the spot as per memo (Ex.PW.5/2), three blood‑stained sticks, one of which was broken. Yet another fact worth taking note of is that the complainant Sarwar as well as the deceased and most of their alleged companions, as per F.I.R. lodged by Jumma respondent, belong to village Bhurqa, Haripur, whereas the respondents reside in the same village where the occurrence has taken place. While for their presence at the spot at the fateful time, the accused‑respondents explained as carrying the milk to the bazar, they being milk‑vendors by profession, there is no explanation as to how, why and for what purpose the complainant party had come to Havelian as per statement of Sarwar PW, to stay for the night with their maternal‑uncle Gul Zaman. The record is totally silent and the prosecution made no efforts to bring any explanation on the record. Again the site plan does not indicate the house of the said Gul Zaman where the complainant and their companions passed the night in order to show that their presence on the spot was natural.

14. We now turn to the motive. It is interesting to note that while motive given in the F.I.R. lodged by PW Sarwar is to the effect that about four days earlier, his maternal‑uncle was charged for causing injuries to, as admitted by, accused‑respondent Abdul Aziz, it is mentioned, in a little detail, in the F.I.R. lodged by accused Jumma to the effect that about a year ago Mst. Zarian Jan had eloped with, him and the complainant party is her close relatives and hence the' occurrence. At the trial ever the solitary eye‑witness Sarwar PW did not refer to it at all though he had to affirm it only in his cross‑examination but added that the same was compromised. So the recent most occurrence between the parties was one between the complainant's maternal‑uncle and accused‑respondent Abdul Aziz. This motive will, therefore, cut both ways in that while it can be said to have prompted the accused‑respondents to take revenge from the' complainant party, it can be pressed with the same force that the complainant party had come to the village of the accused in order to teach them a lesson in the real sense.

15. With this background of two versions of facts brought on the record and the implication of motive referred to above it requires to be decided whether the learned trial Court has rightly disbelieves: the prosecution story by extending the right of private defence to the accused‑respondents and resultantly acquitting them of the charge or, as contended by the learned counsel for the State as a last resort, the accused‑respondents have exceeded their right of A self‑‑defence.

16. May we state at this very juncture that it is an extremely badly investigated case in which the Investigating Officer has conducted the investigation in an slipshod manner and has failed, without any plausible reason, to collect such evidence as was essentially needed to prove the case of the prosecution. It is surprising to note that not a single person from amongst the residents of the lane where the occurrence took place, has been examined by the Investigating Officer much less citing them as witnesses or examining them at the trial. Again the prosecution failed to examine Gul Zaman the maternal‑uncle with whom the complainant and the deceased passed the night in order to show the purpose, if any, for which they visited him. Nor the house of Gul Zaman has been shown in the site plan in order to indicate as to whether the lane, where the occurrence has taken place lay en route to the bus stand where complaining claimed to have been proceeding at tile fateful hours of the day

17. It is apparent from the evidence that both the sides have attempted to suppress the actual facts, for there is every indication that both the accused‑respondents had suffered injuries in the course of the occurrence but the prosecution had conveniently omitted to explain the same. Likewise the accused‑respondents failed to account for the injuries caused to the complainant party, particularly the fatal stab wound on the person of the deceased. The question, therefore is as to whether in the event of failure on the part of the defence to fully establish from its own evidence its plea of self‑defence, as required under section 105, Evidence Act or as the case may be under Article 121 of Qanun-e‑Shahadat, 1984; can the accused respondents still claim benefit of the omissions and doubts appearing in the prosecution evidence. In Safdar Ali v. Crown (P L D 1953 F.C.93), it has been observed:‑ "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 prosecution case. In these circumstances, the accused is entitled to the benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt." In the case of Muhammad Abdullah v. Muhammad Safdar Khan (1973 SCMR 26) where both prosecution and defence versions about the incident were unreliable and the discrepancies in the prosecution case were found to be of serious nature, it was held that the benefit of doubt was necessarily to be given to the accused and the possibility of the accused having acted in self‑defence could not be ruled out. Similarly in case Miran Bux v. Niaz (1975 SCMR 337) it is reiterated that for the benefit of doubt it was not necessary for the accused to set up any defence case but it would be sufficient if he could manage to cast doubt on the prosecution case.

18. In the light of the aforementioned pronouncement of the Federal and Supreme Court, we have no hesitation in holding that failure on the part of accused‑respondent to raise a specific plea of self‑defence notwithstanding, they are entitled to benefit of such doubts appearing in the prosecution evidence which have reasonably given rise to a presumption as to the existence of a right of private defence in their favour.

19. The next question that confronts us is, as to whether the accused‑respondents have exceeded their right of private defence. In, this regard we find force in the contention of the learned counsel for the accused‑respondents that in the F.I.R. lodged by PW Sarwar he has persistently referred to only one blow attributed to accused respondent Abdul Aziz. The medical evidence further lends support to the fact that out of four injuries sustained by the deceased, while the three were skin deep or minor in nature, only injury No.1 was sufficient in the ordinary course of nature to cause, and which did result in, the death of the deceased.

20. In this context, it cannot be said by any stretch of imagination that the accused respondents have acted in any cruel manner or took any undue advantage of the situation. At the same time we find that while Jumma respondent bears a sharp‑edged weapon injury, his father has sustained a blunt‑edged weapon injury on his head. This will rather provide a ring of truth to as contained in his report. Confronted with such a situation, the accused‑respondents cannot be expected to weigh their assault, in the exercise of their right of private defence, in a golden scale. The inescapable conclusion, the context of the facts of this case, we have arrived at, is that the accused respondents have not exceeded their right of self‑defence.

21. In the light of the foregoing discussion, we uphold the impugned judgment of the learned trial Court and finding this appeal bereft of any merits, dismiss it accordingly. The accused respondents are on bail and their bail bonds stand discharged. M.Z.S./695/P Appeal dismissed.