1988 P Cr (PLP)

5. On 8-9-1984 at 2 p.m. the same doctor conducted post-mortem examination on the dead body of Liaqat Masih and the following injuries were noticed:-- "(1) A rounded wound 1 c.m. in diameter in front of left clavical. (2) A rounded wound 0.8 c.m. in diameter, 1 c.m. outer to injury No. 1. (3) A rounded wound 1 c.m. in diameter, 1 c.m. above injury No. 2. (4) A rounded wound 1 c.m. in diameter on the left side of neck. (5) A rounded wound 1 c.m. in diameter. Margins were everted on the back side of right shoulder. On dissection left clavical was fractured under injuries Nos. 1, 2 and

3. Left lung was pierced by gun-shot and pellets and three metallic pieces were recovered. Right lung was also pierced by one metallic piece recovered from right chest cavity, one from the mediastinum and third from back bone. Lot of blood was present in both blood chest cavities. Injury No. 4 was found to continuous with injury No.

5. Injury No. 4 was wound of entrance while injury No. 5 was wound of exit. In the opinion of the doctor, the death took place due to haemorrhage and shock caused by first three injuries which were sufficient to cause death in the ordinary course of nature.

4. Idrees appellant was arrested on 13-9-1984, Abdul Ghaffar acquitted co-accused was arrested on 16-9-1984 while the rest of the accused including Ghaffar appellant were arrested on 20-9-1984. Nothing was recovered at the instance of the acquitted co-accused but both the appellants had led to the recovery of their licensed guns. Since no empty was recovered from the scene of occurrence, therefore, these guns were not sent to Forensic Science Laboratory and hence it was rightly observed by the trial Judge that the recoveries do not help the prosecution at all.

5. At the trial Nazir Ahmad son of Nabi Bakhsh, an eye-witness cited in the F.I.R. was not produced while the ocular testimony furnished by the prosecution consists of the statement of P.W. 9 Mukhtar Masih, the complainant and Nazir Ahmad son of Jhanda P.W. 10.

10. When examined under section 342, Cr.P.C. Idrees appellant admitted the occurrence and stated that he had fired one shot only in exercise of the right of self-defence. Precisely Idrees appellant made the following statement:

"In fact Liaqat Masih deceased his father and other family members are bad characters and have been involved in theft, smuggling and various other cases also. They behaved like Ghundas. On the day of occurrence, which was Eid day, both the deceased persons came armed to our Haveli, started abusing and behaved like Ghunda. I belong to a respectable Zamindar family. My brother and myself live in two different portions of the same house. Our women-folk observe Parda. From their behaviour, it appeared that they will trespass into our residential rooms etc. Feeling apprehending about the safety and honour of women-folk, I fired once in the exercise of the right of person and property and honour. One fire hit both the deceased. The occurrence took place in the courtyard of my house. The complainant fabricated a story and implicated so many persons on account of my relations with them, and the case was being supported by those P.Ws, who were inimical towards us and were closely related to both deceased."

7. I have heard the learned counsel for the appellants at length and have also perused the record. Learned counsel for the appellants laid stress and emphasis that in this case, the ocular testimony furnished by the prosecution is of no avail to it, inasmuch as, the ocular account is interested, inimical and therefore, the said testimony cannot be relied in the absence of corroborative evidence, which is lacking in this case. It was next contended that the statements of these witnesses are doubtful and cannot be acted upon on the face of it because these witnesses had named three innocent persons who were acquitted by the trial Court and thus caution has to be exercised when sifting the testimony of the eye-witnesses.

8. The perusal of the statement of P.W.10 Nazir Ahmad reveals that in the first instance he tried to suppress his relationship with the family of Bashir deceased. It will be advantageous to reproduce hereunder the portion of cross-examination to show as to how the cross-examiner elicited the relationship and made the witness to admit his interest with the family of Bashir deceased:-- "I know Muhammad Anwar of Burewala, who is present in Court. He is my brother-in-law. His sister is married to me. It is correct that sister of Bashir deceased is the wife of Anwar who is my brother-in-law. My sister is married to Badar Din son of aforesaid Begum Bibi. It is correct that the sister of afore-said Badar Din is the wife of Nazir P.W. son of Nabi Bakhsh. It is correct that Nisar son of Begum Bibi is married to a sister of Nazir Ahmad P.W. son of Nabi Bakhsh. I know Munir son of Muhammad Alam. It is correct that this Munir is uncle of Muhammad Idrees accused." The above portion of the cross-examination in addition to the previous litigation of the witness with Munir, uncle of Idrees appellant is in fact led me to take and treat his statement with caution.

9. As far as the testimony of Liaqat P.W. is concerned, no doubt he is brother of the deceased and in cross-examination in reply to number of questions he expressed his ignorance. The perusal of his statement also reveals that he is trying to suppress material facts.

10. After having appraised the ocular account the crucial question is that what is the effect of testimony of P.W. 9 Mukhtar Masih if read in juxta-position to the defence plea raised by Idrees appellant. The determination of the truth or otherwise of the plea depends upon facts and circumstances of this case. In the first instance I will advert to the site plan where this occurrence took place. The site plan clearly shows that both the deceased were injured in front of the courtyard of the house of Idrees appellant. No doubt, that P.W. 9 Mukhtar Masih stated that they were fired at when they were passing through the lane and not the court-yard but such assertion is belied by the site plan and the presence of blood-stained earth which was secured by the Investigating Officer. It is again pertinent to mention that in defence reliance was placed upon Exh. D.A., a copy of the F.I.R. in respect of a case registered under section 156 of the Customs Act and under section 61 of 1914 Abkari Act and under section 9 of the Opium Act, 1978 to show that Niamat Masih the father of the complainant was involved in that case. Similarly, Ex. D.B. another F.I.R. was also produced to prove the previous litigation between Munir Ahmad and P.W. 10 Nazir Ahmad to which reference has been made above. It is also pertinent to mention that the day of occurrence was Eid day and hence ordinarily the appellants would not wait in an ambush for both the deceased to pass the lane near his house for making them the targets of attack. In this view of the matter I am convinced that both the deceased had gone in the courtyard of the house of Idrees appellant which is Shamlat Deh and admittedly in possession of the appellants.

11. The next question falling for determination is that whether the appellants were justified in killing the deceased who were empty handed. According to the statement of Idrees appellant, the deceased Liaqat Masih and Bashir were bad characters and were Ghundas and having come to the courtyard of his house, they started dancing and shouting whereby the appellant Idrees was led to believe that they would be trespassing into his house and would be insulting the women-folk. According to Idrees appellant he fired in exercise of right of self-defence, property and honour of women-folk. I am not prepared to believe that both the deceased and the complainant would have gone empty handed in front of the courtyard of the appellant on Eid day to commit some mischief, knowing fully well that the appellant Idrees was keeping a licensed gun. On the other hand the place of occurrence is in front of the Haveli of Idrees appellant and since in my view the appellants would not be waiting for the deceased to pass so as to make them the targets of attack because the complainant and the deceased would not go to commit mischief empty handed, therefore, in my view something must have preceded which would have compelled the appellants to use their guns.

12. The next question for determination arises is that in the light of the oral testimony the participation of Ghaffar appellant should be believed, in my view on account of the nature of the ocular testimony in this case Ghaffar appellant is entitled to the benefit of doubt. Accordingly, I allow his appeal and acquit him of the charge. He shall be released forthwith if not required in any other case.

13. Adverting to the case of appellant Idrees he must have been provoked so as to use his gun on Eid day. As already observed that something must have preceded before the occurrence, therefore, one has to ascertain whether the plea of self-defence raised by the appellant has some substance or not. It was stated that the deceased had attempted or taken such steps so as to trespass into the house of the appellant with a view to insult the women-folk. Even if this plea is believed, the crucial question would be was the appellant Idrees justified to kill the deceased. The answer is positively no because in my view, the appellant exceeded the right of self-defence. No doubt, the place of occurrence is situated in front of the house of the appellant but since there is no evidence to show that the deceased was also armed, therefore, even if the deceased had attempted to commit some mischief, the law did not permit the appellant to kill the deceased and therefore, the case of the appellant is covered by Exception 2 to section 300, P.P.C. Accordingly, Idrees appellant is guilty of culpable homicide not amounting to murder, and therefore, his conviction under section 302, P.P.C. is set aside. Appellant Idrees is convicted under section 304, Part I, P.P.C. and sentenced to suffer rigorous imprisonment for a term of 7 years and to pay a fine of Rs.10,000 or in default to suffer rigorous imprisonment for a period of one year. The fine if recovered, shall be paid to the legal heirs of the deceased in equal share. The appellant shall also be entitled to the benefit of section 382-B, Cr.P.C.

14. For the reasons stated above, the appeal of appellant Ghaffar is allowed and with the modifications in the sentence stated above the appeal preferred by appellant Idrees is dismissed. S.G.D./M-361/L Order accordingly.