1985 P Cr (PLP)

4. The motive as alleged by the prosecution was that Abdul Aziz, father of the appellant was injured by the deceased about 20 years before the occurrence. Further, the deceased had told the appellant not to visit the house of Idrees P.W. It may be noted here that sister of Idrees P.W. was the wife of the deceased. The appellant was thus annoyed with the deceased. It so happened that a day before the occurrence, Mubarik Ali deceased alongwith Waris Ali P.W.6 and the two given up P.Ws. namely, Muhammad Siddiq and Abdul Razzaq came to the house of Muhammad Idrees and stayed there. At the fateful time when Mubarik Ali P.W. and his companions were sitting in the courtyard of the house of Muhammad Idrees, they heard alarm coming from a nearby Kotha where Mubarik Ali was lying on a cot. They went towards that Kotha and saw Nasir Ali appellant giving hatchet blows to the deceased. The witnesses tried to apprehend the appellant but he threatened the witnesses and decamped with the weapon. Mubarik Ali succumbed to the injuries or, the spot.

5. On 14‑9‑1982 Dr. Saleem Safdar P.W.1 conducted the post‑mortem examination on the dead body of Mubarik Ali and found following injuries on his person:‑ (1) Incised wound 11 c.m. x 2 c.m. over right temporal side of head just above right ` ear. There was fracture of temporal bone right side. (2) Incised wound 9 c.m. x 7 c.m. on right side of head just below the right ear. It was bone deep. (3) Incised wound 3 c.m. x 1 c.m. over right shoulder joint. In his opinion the death was due to injuries Nos. 1 and 2 which were grievous and ante‑mortem. On the same day, the doctor examined Nasir Ali appellant and found four incised wounds on his left arm. The injuries were caused by sharp‑edged weapons and were simple in nature.

6. The appellant was arrested on 14‑9‑1982. On the same day he got recovered blood‑stained Kulhara Exh. P.6 from a Jawar field of Hap Bahadur. The Serologist report Exh. P.N shows that the hatchet was stained with human blood.

7. In order to prove its case, the prosecution examined as many as eight witnesses out of whom Waris Ali P.W. 6 has given the ocular account of the occurrence. The rest of the evidence is more or less of formal nature. It may be noted here that the prosecution did not examine Abdul Razzaq and Muhammad Siddiq, the other two eye‑witnesses and the recovery witnesses namely, Syed Zulfiqar Ali and Jamshed, so much so, Muhammad Idrees in whose house the occurrence had taken place was not produced. These witnesses have been given up as having been won over. The appellant when examined under section 342, Cr. P. C. raised the plea of self‑defence. In answer to the question, "As to why the P.Ws. have deposed against you?" he stated:‑ "Idrees P.W. my maternal uncle a given up witness had adopted me as his son. He has no issue. He has brought me up and I reside with him. I also work at his Petrol Agency. Mubarik deceased is also closely related to Idrees. He did not like that I should reside with Idrees and for that reason he had grudge with me. He had many times asked me not to visit the house of Idrees. On 13‑9‑1982, my maternal‑aunt Mst. Tamizan was ailing and my maternal uncle then asked me to take care of her in his absence as he was going to Multan. The deceased came on 13‑9‑1982 at the house of Idrees and he asked me as to why I was present there. I told him that Mst. Tamizan was ailing and my maternal‑ uncle had asked me to look after Mst. Tamizan his wife. Mst. Tamizan pacified Mubarik Ali in the morning. In the morning of 14‑9‑1982 when I was present in the house of Idrees, Mubarik Ali deceased asked me to leave the house. I refused on which he gave me abuses. There was an altercation between us. He attacked me with knife and injured whereupon I in exercise of my right of self‑defence gave injuries with hatchet which was lying in the house of my maternal‑ uncle. I produced that hatchet before the police. But the police had substituted that hatchet with Kulhara. I have committed no offence." In defence the appellant tendered Secondary School Certificate Annual Examination, 1981 to show that he was born on 14‑8‑1965. The learned trial Judge has disbelieved the prosecution case. Basing conviction on the statement of the appellant recorded under section 342, Cr. P. C., he convicted the appellant for having exceeded the right of self‑defence of his person.

8. The learned counsel for the appellant contends that since the prosecution case, particularly the ocular evidence has been disbelieved in its entirety, there was no legal justification to condemn the appellant out of his own mouth and that the trial Court should have accepted the statement of the appellant in toto. On the other hand the learned Assistant Advocate‑General has supported the judgment of the trial Court.

9. After having applied my conscious mind to the evidence on the record and the reasons given by the trial Court for the rejection of the prosecution case, I am convinced that the trial Court has rightly disbelieved Waris Ali P.W. 6, the solitary eye‑witness. To my independent assessment, he is not "an absolutely dependable" witness also find that there is nothing on the record to falsify the exculpatory part of the statement of the accused /appellant. In the circumstance, the trial Court should have believed the statement of the appellant as a whole. The statement when examined in toto indicates that the appellant had a complete right of self‑defence extending to 'the causing of the death of the deceased inasmuch as the deceased not only was armed with a knife but also had inflicted 4 incised wounds on the person of the appellant. I am convinced that in the circumstance of case, the appellant by causing the death of deceased, has committed no offence. He has simply exercised his lawful right.

10. For what has been stated above, there being no satisfatory basis to sustain the conviction and sentence of the appellant, the same are set aside. The appeal is accepted and the appellant is acquitted of the charge. He is on bail and stands discharged of bail bonds. S. G. D. Appellant acquitted.