P L D 1966 Supreme Court 424 (PLP)

S. A. RAHMAN, J.--‑ The appellant, Feroze Khan, was convicted under section 307, Pakistan Penal Code, on two counts, for an alleged assault on Captain Ghulam Nabi Khan and Amin Khan, by the trial Magistrate. He was acquitted, on appeal, by the Additional Sessions Judge, Peshawar, who gave effect to his plea of private defence of person. The Provincial Government on being approached by the complainant, declined to appeal against the acquittal. Captain Ghulam Nabi Khan, the complainant in the case, preferred a revision petition in the High Court of West Pakistan and a learned single Judge of that Court set aside the order of acquittal and directed a re‑hearing of the appeal by the learned Sessions Judge, Peshawar. The appellant obtained special leave to appeal from this Court, for consideration of the question whether the order remanding the case for re‑decision by the appellate Court, was properly made in the circumstances of the case. The occurrence, which gave rise to these proceedings, took place on the 8th of January 1963, at about 9 a.m. within the limits of village Mulazai. It is stated that Captain Ghulam Nabi Khan, along with Maaz Khan, Amin Khan, Gul Zaman, Rehmatullah and Atlas Khan, was busy re-fixing a leaking water-pipe on the Mulazai road, when the appellant, Feroze Khan, passed by. He failed to greet the Captain and his companions, although he belonged to the same village as they did. According to one version, the Captain charged the appellant with being a Hindu, on the ground that he had failed to offer to them the salutation customary among Muslims. According to another version, he asked the appellant whether he considered Captain Ghulam Nabi Khan and his companions to be Hindus, and, therefore, withheld his salutation from them. The appellant replied that they were Hindus and simultaneously he pulled out his pistol and fired two shots at the complainant, one of which injured him. The Captain lost consciousness, and some of his companions gave chase to the appellant who took to his heels In the course of the pursuit, the appellant is said to have fired another shot which wounded Amin Khan. He was, however, eventually overpowered and detained in a Kotha, till the police arrived and arrested him. The defence plea was, that, on his failure to greet the Captain and his companions, the appellant was set upon by them and be-laboured. In self‑defence, therefore, he fired two shots, but he was eventually detained and handed over to the police. He also called two witnesses in defence, to support his version. The medical evidence establishes that Captain Ghulam Nabi Khan bad two wounds on the right side of the strenum in the chest, at the level of the 4th and 5th inter-costal space, separated by a distance of from each other. These two wounds were described by Doctor Captain Irshad Ali Raja, as both wounds of entry, though he admitted that he could discover no wound of exist, nor did he succeed in finding any spent bullet inside the body of the complainant. Even an X‑Ray examination revealed no such spent bullet in the body. He described the injuries of the complainant as grievous in character, basing his opinion on "the depth and clinical condition of the patient". The doctor does not appear to be very much experienced in medico‑legal cases, and there seems good reason for accepting the view of the Additional Sessions Judge that one of the two wounds on the person of Captain Ghulam Nabi Khan was probably the exist wound. This view received support from the statement of Captain Ghulam Nabi Khan himself to the effect that only one of the shots fired at him was effective. It is also open to doubt whether the injury thus caused to the complainant was really grievous in character. The other injured prosecution witness was Amin Khan who, on examination by Lady Dr. Irfan Mir, was found to bear a wound on his left, thigh, 1/4" in diameter, caused by a firearm. This was a simple injury. No exit wound could be found, nor was any spent bullet recovered from the thigh of Amin Khan. The appellant himself was examined by Dr. Mukarram Shah and found to bear two small lacerated wounds, x skin deep, over the right side of the face, a lacerated wound, 2" x 1/3", scalp deep, over the left side of the parietal region of the skull, and an incised wound, 1 x scalp deep, over the right side of the parietal region of the skull. The injuries were simple in nature. The incised wound could have been caused by a spade with a sharp edge, according to the doctor. The learned Sessions Judge discussed the evidence of the eye‑witnesses, namely, Captain Ghulam Nabi Khan, Rehmatullah, Maaz Khan, Amin Khan and Gul Zaman, and reached the conclusion that they had failed to explain the three lacerated wounds on the person of the appellant. They had only furnished explanation for the incised injury which was attributed to a belcha blow given by Maaz Khan P. W., while pursuing the appellant. As Captain Gnulam Nabi Khan professed to have lost consciousness, on being injured, he was unable to say if any one had inflicted an injury on the appellant. Rehmatullah P. W. also did not know if the accused had been beaten by any one, or how he had received his. injuries. Maaz Khan alone acknowledged that he had given a belcha blow to the appellant. He was categorical in asserting that no one else had dealt a blow to the appellant. The learned Additional Sessions Judge observed that it was Captain Ghulam Nabi Khan, who had invited trouble for himself by accosting the appellant when he was passing by and provoking him to say that they were Hindus. He expressed the opinion that, after this conversation, there was apparently no reason why the appellant should have started firing at the Captain or his companions, unless he was provoked by the other party or 'threatened with bodily harm. He was not prepared to believe that after the reply to the question put by the Captain, the appellant "resorted to firing all of a sudden without any rhyme or reason". He then went on to say that the fact that the injuries on the person of the appellant had not been explained by the prosecution witnesses, provided an obvious indication that he was assaulted and belabored by the companions of Captain Ghulam Nabi Khan and that this must have happened before the appellant himself fired in self‑defence. He found the defence version to be more reasonable than the prosecution story, in the circumstances of the case. The learned Additional Sessions Judge fortified himself by saying that it had been admitted that the appellant had no intention to harm any one to start with. He, therefore, thought that, as the plea of the accused received support from the prosecution evidence to the extent of being reasonably possible, he was entitled to acquittal, and he relied in this connection, inter alia, on a decision of this Court, reported as Shamir alias Shamla v. The State (P L D 1958 S C (Pak.) 242).He definitely drew the inference from the facts, on the record, that the appellant was not only provoked, but, in fact to use his pistol, in order to save himself. He credited the appellant with a reasonable apprehension of receiving grievous hurt at the hands of the Captain and his men, unless he defended himself. In this context, he also expressed great doubt whether the incised wound on the person of the appellant was inflicted during the chase and whether Amin Khan also received the gunshot injury during that chase. He thought that only two shots had been fired by the appellant after he had been attacked by the prosecution witnesses. After setting out the two contending versions and noting the fact that the trial Court had recorded a conviction in this case after considering the evidence adduced, the learned single Judge expressed himself in the following terms "The lower appellate Court, however, took a different view. After referring to the ocular evidence, the learned Judge held that Ghulam Nabi Khan, Rahmatullah, Maaz Khan, Amin Khan and Gul Zaman P. Ws. corroborated the prosecution story in "material particulars, but at the same time he was not favorably impressed by their evidence, because, in his opinion, the eye‑witnesses failed to explain satisfactorily the injuries found on the person of the appellant (respondent) at the time of his, arrest. The lower appellate Court also considered that the vanity of the complainant, who is a retired Army Officer, was hurt when Feroz Khan respondent did not greet him and further when the latter remarked that he considered the complainant and his companions as infidels. In the circumstances the learned Judge came to the conclusion that the complainant party and not the accused had a motive to attack. He, therefore, repelled the argument that the respondent was caused injuries after he had wounded Ghulam Nabi Khan. Relying on Shamir alias Shamla v. The State P L D 1958 S C (Pak.) 242 and the. State v. Khair‑ur‑Rehman P L D 1960 Pesh. 50 and after referring to the provisions of sections 100 and 102 of the Pakistan Penal Code, justified in the learned Judge held that the firing by the respondent was the exercise of the right of private self‑defence (sic) and acquitted him on both the counts." The learned Judge then referred to the contentions raised in the revision petition and reproduced the defence plea of the appellant. He then made the following observations ‑ "Now taking into consideration the trivial nature of injuries found on the person of the respondent I should say that the story about the attack on the respondent by the complainant party does not appear to be more probable in the circumstances of the case, but this should not be taken as a final expression of opinion on the point. The lower appellate Court in disregarding the evidence of the eye‑witnesses relied on the circumstance that they failed to satisfactorily account for 'the injuries found on the person of the respondent. I note that Maaz Khan (P. W. 12) definitely stated that he gave a blow with the belcha to the accused. In regard to the evidence of the remaining witnesses on this point, I should say that in such cases the witnesses always try to minimise their own part in the occurrence, but this circumstance by itself is no ground to dismiss the ocular evidence wholesale. In this connection I was referred to the case reported as Sultan Khan v. Taj Din and others P L D 1963 S C 97, in which the evidence of the eye‑witnesses who had failed to explain how the accused in that case sustained the injuries was accepted. It is on the record that the complainant and his witnesses were laying a pipe when the accused respondent passed that way. He did not greet them. Ghulam Nabi Khan enquired from the respondent the reason for it and upon this the respondent not only taunted them. saying that he considered them Hindus, but also drew out a revolver and fired at the complainant injuring him on the sternum. There is evidence that the relations between the accused and the complainant had been strained on account of criminal litigation. It would be too much to hold that Captain Ghulam Nabi Khan felt hurt as a result of the remark made by the respondent and he along with his companions attacked the respondent. In view of the fact that the ocular testimony of Ghulam Nabi Khan and others as regards the actual occurrence was held to be consistent by the learned Appellate Court, except for the explanation of injuries found on the person of the accused, I think the question whether the right of private defence accrued to the respondent needs careful con sideration, keeping in view all the facts and circumstances of the case, in the light of the relevant sections of the Pakistan Penal Code and section 105 of the Evidence Act . . . . . . In the instant case, there is an explana tion for the injuries found on the person of the accused and it is for the Court rehearing the appeal to assess the value of that evidence. The Supreme Court in the case reported as Shamir alias Shamla v. The State P L D 1958 S C (Pak.) 242) ruled that the plea of self‑defence put forward by an accused person should be placed in juxtaposition with the prosecution evidence and the entire case examined as a whole. This is what is exactly needed in the instant case to give effect to the defence plea, but the facts and the circumstances of no two cases are alike, and as such, while applying the principle as laid down in the aforesaid ruling, it is clearly the duty of the Court to consider the circumstances of the case as disclosed by the eye‑witnesses and judge them in the light of the plea put forth on behalf of the defence." We are constrained to say that the last paragraph of the above extract does less than justice to the Court of appeal in this case. The learned single Judge has not specified in what respects the learned Additional Sessions Judge had departed from the principles propounded in the above paragraph. A fair reading of the Additional Sessions Judge's judgment would seem to establish that these principles were very much present to his mind, and that he came to the conclusion that he did, in the light of these very principles. The last but one paragraph in the above extract provides an index to the way in which the mind of the learned single Judge appears to have worked in this case. Without discussing the relevant evidence, or taking note of the reasoning of the lower Appellate Court, the learned single Judge thought it fit to come to his own finding on the question as to what happened at the spot. No attempt is visible in this paragraph to determine in what way the Additional Sessions Judge had fallen into error in appraising the evidence. There is no complaint that he had misrepresented the evidence in any manner, or had omitted to consider any circumstances arising therefrom. Nor was it made out that he committed any error of law in his approach to the case. Without criticising the, handling of the case by the Court below, the learned single Judge seems to have come to his own conclusion on the facts in this paragraph, without, however, coming to a finding, that the view that found favour with the Court below, was not reasonably possible, in‑ the circumstances of the case. A fuller examination of the evidence indeed might have satisfied the learned Judge that the Additional Sessions Judge had .not only made a fair estimate of the evidence but that the result reached by him was eminently reasonable on the facts of the case. Captain Ghulam Nabi Khan, as P. W. 1, had disclaimed positively that there was any previous enmity between the parties. In his cross‑examination, it was brought out that he had a case about irrigation water with the accused some years ago. This was hardly sufficient for a‑finding that the relations between the accused and the complainant had been strained, or account of criminal litigation, as the learned single Judge puts it. Even Rehmatullah (P. W. 2) confirmed that the accused had no enmity with the complainant prior to the occurrence. The prosecution witnesses conceded in cross‑examination that the preliminary talk between the parties took place when the accused was on the other side of a bridge which had apparently a span of 68 feet, as the site plan at p. 84 of the record reveals. The witnesses were asked in cross‑examination whether it was a fact that after the exchange of words, Captain Ghulam Nabi Khan had moved to where the accused was standing: They denied it. They had made admissions to that effect, in their previous statements. A reference to the site plan, read with the statement of the investigating officer, makes it clear that Captain Ghulam Nabi Khan had walked across the bridge, and confronted the accused where he was standing and it was there that he was said to have been fired at. The location of the injuries of the appellant is also consistent with the position that he was attacked from in front by a person or persons and not from behind, while running away. These circumstances provide a strong indication that Ghulam Nabi Khan and his companions had resorted to aggression against the accused, being incensed by his remark that he regarded them to be Hindus. If the learned single Judge had applied his mind to this aspect of the matter, he would have found no reasonable ground for feeling dissatisfied with the finding arrived at by the learned Additional Sessions Judge. Dr. Javed Iqbal, who appeared on behalf of the respondent Feroze Kha, complainant, invited our attention to the judgment of the Federal Court, reported as Anwar and others v. The Crown (1) P D 1955 F C 185 and to certain Nautan observations of this Court in Muhammad Samiullah Khan and Nabi Khan another v. The State (2) P L D 1963 S C 237 in support of the proposition that the S A. revisional jurisdiction of the High Court, under section 439 Rahman, of the Code of Criminal Procedure, is very wide and indeed unlimited in law and is not confined to mere correction of errors of law. In appropriate cases, even findings of fact could be disturbed in revision. This would be possible, for instance, where the subordinate Court had wrongly allocated the onus of proof, in not applying the correct principles, relating to the appraisal of evidence, or some important piece of evidence had been ignored. No exception need be taken to this statement of the law. Interference in revision need not be confined to cases where the order of the Court below is "mani festly wrong or perverse or is based on the view of the evidence which no judicial officer would take", as was pointed out by the Federal Court in Anwar and others v. The Crown. But the discretion vesting in the High Court under section 439 of the Code of Criminal Procedure has to be exercised in accordance with the dictates of justice and not arbitrarily, or in a fanciful manner. In particular in cases of revision petitions from an acquittal, where the state has not thought it fit to challenge the acquittal by an appeal, the Courts would be very slow to interfere, unless non‑interference would involve an endorsement of a patently unfair order, or one which leads to miscarriage of justice. If the view taken by the Courts below is reasonably possible on a consideration of all the facts and circumstances the case, then the entertainment of a feeling, that an alternative view of the evidence might have been taken; would not justify the superior Court in setting aside an order of acquittal. As was observed by this Court in Abdur Rashid Khondkar v. Chandu Matbar (3) P L D 1964 S C 795, the governing consideration must always be whether in relation to the proved facts and circumstances, justice has been done, in accordance with law. In the present case, no misappreciation of the evidence by the appellate Court, and no error of law or fact was pointed out by the learned single Judge, in the judgment of that Court, such as would justify interference in revision. We, therefore, allow this appeal, set aside the order passed by he High Court and restore that of the learned Additional Sessions Judge. K. B. A. Appeal accepted.