2004 PLP 750 (SCMR)

Salahuddin Mangal, Advocate-General, Balochistan for Respondent. Raja Muhammad Afsar, Advocate-on-Record for the Complainant. Date of hearing: 23rd October, 2002. MUHAMMAD NAWAZ ABBASI, J.--This appeal by leave of the Court has been directed against the judgment dated 17-4-1995 passed by a learned Division Bench of the High Court of Balochistan at Quetta in the above titled criminal appeal.

2. Leave was granted vide order dated 19-5-1997 as under:-- "Mr. Basharatullah, learned counsel for the petitioner raised the following contentions:-- (i) That the learned High Court while appreciating the plea of self- defence raised by the petitioner had erred in holding that the onus of proof on the accused in establishing his plea of self-defence was as heavy as on the prosecution to prove its case against an accused. In support learned counsel relied upon the case of Safdar Ali v. The Crown PLD 1953 F.C. 93. (ii) That the learned High Court fell in error in holding that the accused/petitioner had exceeded his right of self-defence by firing a second shot at the deceased in that the petitioner could not weigh in golden scales the danger apprehended who fired three shots at him, therefore, the petitioner had not exceeded his right of self-defence. (iii) That the learned High Court while allowing the acquittal appeal had ignored the principles for interference in acquittal appeal as laid down in the case of Ghulam Sikandar v. Mamaraiz Khan PLD 1985 SC

11. Leave is granted to consider inter alia the above contentions raised by the learned counsel for the petitioner. In view of these sentence awarded to the petitioner, the appeal be fixed at an early date."

3. The occurrence in the present case had taken place in the afternoon in a small room adjacent to the Police Station, Quaidabad, Quetta. This room was in occupation of the appellant and was being used by him as his rest room in the police station. It is a case of two versions and according to the, prosecution version as contained in the F. I. R. Fida Hussain deceased, who was friend of Muhammad Usman appellant, on the day of occurrence went to see him in the police station. The appellant offered a cup of tea to him and then they both went to the residential room of the appellant. The deceased was busy in talking with the while sitting in the room when the appellant suddenly bolted from inside with the intention to commit sodomy with the deceased while putting resistance did not permit the appellant to do such an evil act and in this abnormal state of affair, the deceased in his protection by picking up the service revolver of the appellant which was lying on his bed in the room, fired two successive shots at the appellant who in turn while snatching the revolver from the deceased fired at him as a result of which the deceased sustained injuries on vital part of the body which proved fatal to his life. The police officials present in the police station immediately took both the deceased and appellant to the civil hospital for medical aid and in the hospital, Muhammad Ibrahim (P.W.5) recorded the statement of Fida, Hussain deceased on the basis of which the case was registered against the appellant at Police Station, Quaidabad.

4. The appellant in his statement under section 342, Cr.P.C. denied the charge but in his statement on oath under section 340(2), Cr.P.C. admitted the occurrence raising the plea of self-defence in the following manner:-- "On 7-1-1991 at about 2-00 p.m. I was sitting in my residential room at Police Station, Quaidabad when a Hazara boy entered in the room and pointed Pistol at me. He said "Beware don't move". Simultaneously he bolted the door from inside and tie saw my service revolver lying under the pillow. He got on the cot and bent down to pick up the revolver when bowed down I moved from the place whereupon he stood up, pointing his pistol said stop don't move otherwise he will kill me. In this way he tried to take the Government revolver for two/three times. Then I thought that it was some conspiracy and he wanted to take away the service revolver or to kill me with it. I stood up and moved towards him when upon he made fire at me with his pistol. I got three bullet shots one at my head one at my neck and at my left arm. After firing his pistol stopped whereupon he put down his pistol on the ground and sitting on the floor he tried to take my revolver from belt. I, then caught hold him from backside and bit at his hand. I snatched my Government revolver from him. I then stipend back and cried for help. On my cries he jumped at me where upon I made two fires at him. Where upon he fell down. I opened the bolt of the door and made cries. Police men came and took me to Hospital."

5. The learned trial Judge having considered the plea of self -defence taken by the appellant acquitted him from the charge. In appeal (Criminal Appeal No.84 of 1993) filed by the State against the acquittal of appellant in the High Court of Balochistan, Quetta, a learned Division Bench of the High Court while setting aside the acquittal of appellant held that it was a case of exceeding the right of private defence. Consequently, the High Court convicted the appellant under section 320(c), P.P.C. and awarded him sentence of rigorous imprisonment for a term of seven years vide the impugned judgment with the following observation:-- "In nutshell thus the accused exceeded his right of private defence. He made an attempt to commit sodomy with the deceased and when the deceased fired at him in retaliation, the accused fired two shots at him as a result of which he was injured and then succumbed to the injuries and died."

6. Learned counsel for the appellant in the light of the observation made by the High Court has contended that under the circumstances in which the occurrence took place, the appellant had no option except to protect his life by force and while doing so in no manner exceeded right of self-defence. The material facts relating to the taking place of occurrence in the residential room of appellant, the use of his service revolver and sustaining of the injuries by the appellant and deceased at the hands of each other, are not disputed and the only question requiring determination would be whether the version given by the prosecution or by the defence was correct. The scrutiny of the two versions in the light of evidence and visualizing the circumstances leading to the occurrence, would suggest that prosecution version was nearer to truth. The deceased, a teenager and a student of Ist year while carrying friendship with the appellant, accompanied him to his residential room without foreseeing the bad intention of appellant, therefore, there was no occasion fox the deceased who was empty-handed, to act in such a manner and make an attempt on the life of appellant in the normal circumstances. There is also nothing in the statement of appellant that why the deceased without a very strong reason and promptitude would suddenly flare up and take such an extreme step of making an attempt on his life, therefore, the prosecution version being more plausible would be acceptable. It does not appeal to mind that without there being an abnormal situation, the deceased would dare to act in such a manner in the premises of the police station and thus the analysis of the matter in the attending circumstances, would suggest that deceased while facing an extraordinary situation, fired in his protection at the appellant with his service revolver to undo his evil design. The defence version that appellant in retaliation to the act of firing of deceased at him snatched revolver from the deceased and fired at him, would itself suggest that after the deceased was disarmed, there was no apprehension of threat to the life of appellant at the hand of deceased and thus his act of firing at the deceased was not in self-protection. The right of self-defence is available to a person to prevent an aggression against him and not to an offender who during the course of commission of an offence suffered some damage at the hand of victim. This is correct that it was a sudden occurrence and was not an intentional murder but at the same time, the plea of self-defence would not be available to the appellant. The High Court having held the appellant guilty of committing an offence under section 302(c), P.P.C. awarded him sentence of seven years' R.I. which may not be a proper sentence but since neither the State nor the complainant has moved this Court for enhancement of the sentence of appellant, therefore, we while maintaining the conviction and sentence of the appellant, dismiss this appeal. N.H.Q./M-751/S Appeal dismissed.