P L D 1956 (W (PLP)

A. R. CHANGEZ, J.‑--Muzaffar Khan appellant and his brother Sikandar Khan were charged in the Court of the Sessions Judge of Jhelum at Campbellpur, with the murder of Muhammad Nawaz. The learned Judge acquitted Sikandar Khan but convicted the appellant under section 304 Part I P. P. C. and sentenced him to four years' rigorous imprison ment. The convict has appealed. The prosecution case is that Munawar, a brother of the accused, was tried for the murder of one Aslam and was convicted under section 302 P. P. C. and sentenced to trans portation for life. Muhammad Nawaz deceased had appeared as a witness for the prosecution in that case despite an offer of Rs. 2,000 by Muzaffar Khan appellant for not appearing as a witness against Munawar. But as he had appeared for the prosecution and Munawar had been convicted and sentenced, the accused nursed a grievance against him for having given evidence against their brother. On the 28th of October 1954 early in the morning Muhammad Nawaz deceased accompanied by his father Abdul Wahab (P. W. 7) went to their land to plough it, and when they had ploughed about half a kanal of land, their plough got broken and they then returned to the village for the purpose of taking their meal and for taking another plough to the land. When they reached Lunda Bazar and the deceased was just in front of the shop of Dr. Inayat Ullah D. W Muzaffar Khan and Sikandar Khan accused who were standing in front of their own shop armed with chhuris, shouted out to him: "You cannot remain alive after getting our brother imprisoned," and attacked him with their respective weapons. Muzaffar Khan appellant was the first to give a blow with his chhuri in the chest of the deceas ed. Thereafter Sikandar Khan accused gave two successive blows with his chhuri in the back of Muhammad Nawaz who fell down on the ground and expired immediately. The two accused then rushed into their shop and after a moment they came out of the shop and ran away. Abdul Wahab P. W., who had seen this occurrence, sat down near the dead body of his son and waited for about one and a half hours for some of his relations to turn up so that he might leave them near the dead body before going to the police station to make the report. Nawab, the maternal grandfather of the deceased, came up and leaving him and some other persons with the dead body Abdul Wahab proceeded to the police station at a dis tance of only two furlongs and lodged the report Exh. P. A. at 11‑30 a.m. In the meantime, Rab Nawaz A. S. I. had already recorded the first information report Exh. C. A. at the instance of Muzaffar Khan appellant at 10‑45 a.m., who had injuries on his person and the A. S. I, had sent this accused to the doctor for medical examination. Rab Nawab A. S. I., after recording the report of Abdul Wahab, went to the spot and sent the dead body of Muhammad Nawaz to Campbellpur for post‑mortem examination. He collected bloodstained earth, which was mixed with bajri from the place where the dead body lay. He also found blood inside the shop of the accused and from there he collected same blood stained earth and made it into a sealed parcel. He also took into possession the bloodstained dari Exh. P. 1 and the bloodstained gunny bag Exh. P. 2 from the shop of the accused. Knife Exh. P. 3 and chhuri Exh. P. 4 were also lying in the shop of the accused and as they appeared to be bloodstained they were also taken into possession. The A. S. I. arrested both the accused on the 29th of October 1954 and as Sikandar Khan accused had also some injuries on his person he was also sent for medical examination. The autopay on the dead body of Muhammad Nawaz deceased was held on the 28th of October 1954 at 4 p.m. by Dr. Fazal Ilahi Shah. Qureshi (P. W. 2) who following injuries:-- (1) An incised wound elliptical in shape, 1 x x deep into the chest, running vertically in the inter-space between the 2nd and 3rd ribs, cutting the costal cartilage of third rib and going down to aorta cutting the pericardium, 1 x , and aorta just above the aortic valve passing through right auricle and causing an exist wound into the left auricle wound, x , and entering the left upper lobe of the left lung. (2) An incised wound, 1 x ", over the right shoulder -blade, running deep to the chest, cutting the supra‑spinal border, in length and entering the right lung into upper lobe, causing a tear, x 1/3 " after piercing through the inter-costal space of 3rd and 4th ribs. (3) An incised wound. 3" x " x 1/3 ", over the left side chest between the 8th and 9th ribs in posterior axillary line running parallel to the rib. (4) An incised wound, 1 " x " x ", over the right knee in front. (5) Nine abrasions of various sizes over the left knee and left upper leg in front. In the opinion of the doctor death was due to the injury to the aorta and the heart along with the injury to the lung. According to him, injuries Nos. 1 and 2 were fatal. Dr. Sardar Ahmad (P. W. 1) examined Muzaffar Khan appellant on the 28th of October 1954 at 11‑50 a.m. and found the following injuries: ‑‑‑ (1) One vertical incised wound, 1" x 1/3 x 1", on front on right thigh at its middle third, directed backwards and downwards. (2) One slightly oblique incised wound, " x " x 1 ", directed backwards and inwards in front on middle third of left arm. (3) Small scratch mark, 1/6 x 1/6 ", on back of right index finger at its middle. (4) One transverse scratch, 1" x 1/12", on the outer and lower third of right forearm. (5) Contusion mark on back of right thumb with contu sion with blueness of nail at its root. In the opinion of the doctor, injuries Nos. 1 and 2 had been caused by a sharp‑edged weapon and the remaining injuries by rubbing against hard substance. The shalwar and shirt of Muzaffar Khan appellant bore cut marks which were signed by the doctor. The same doctor examined Sikandar Khan accused on 29th of October 1954 at 11‑45 a.m. and found two injuries on his person, one of which was an incised wound, " x 1/6, skin‑deep, on the inner aspect of right thumb, near its root, and the other a scratch, " x , on his right leg. Twelve witnesses were examined by the prosecution in support of the charge. The principal evidence in the case consists of the testimony of three eye witnesses, Abdul Wahab (P. W. 7), Abdul Rashid (P. W. 8) and Muhammad Sarwar (P. W. 10). It is unnecessary to discuss their evidence in detail as they have all been disbelieved by the learned Sessions Judge. The Assistant Advocate‑General, who appeared for the State did not rely upon their evidence. The reasons given by the learned Sessions judge for discarding their testimony are cogent and convincing. At the trial Sikandar Khan accused pleaded that he was not present at the time of the occurrence and was in Rawal pindi. In explanation of his injuries he stated that he got the injuries while he was opening a tin of ghee a day prior to this occurrence. Muzaffar Khan appellant, however, made the following statement:‑ " On the day of the occurrence I was sitting in my shop. I was sitting alone. Muhammad Nawaz passed in the bazar and he set one foot on the threshold of my shop. He challenged me that my brother had murdered his dear friend, He had an open knife in his hand. He attacked me and I received the first blow on my left arm. I got up and the deceased gave me a second blow on my thigh. I caught the wrist of the deceased in which he was holding the knife and snatched the knife after twisting the wrist. He ran out and soon after returned with a chhuri in his hand. He again attacked me and I injured him with the knife snatched from him in self‑defence." The learned Sessions judge, disbelieving the prosecution evidence in its entirety, acquitted Sikandar Khan accused but convicted Muzaffar Khan appellant solely on his own state ment. Muzaffar Khan appellant had produced four witnesses in support of the defence version. out of whom Dr. Inayat Ullah (D. W. 2) and Maula Bakhsh (D. W. 3) are the witnesses to the occurrence. According to these two witnesses, the deceased Muhammad Nawaz had entered into the shop of the accused where Muzaffar Khan alone was sitting and he gave two knife blows to Muzaffar Khan, but the latter was able to snatch the knife from his hand where upon the deceased came out and picked up the chhuri Exh. P. 4 from the shop of Maula Bakhsh D. W. beef‑seller and going into the shop wanted to attack Muzaffar Khan who, however, was successful in giving two blows in the chest of the deceased whereupon his chhuri fell down and when the deceased bent to pick up the chhuri, he gave another blow on his back and thereafter the deceased leaving the chhuri in his shop staggered out of the shop and fell down where his body was found by the A. S. I. The learned Sessions judge thought that these defence witnesses, although quite truthful in describing the deceased as au aggressor, were not accurate in describing at what stage the blow in the back was given. He also referred in this connection to the first information report Exh. C. A. lodged by Muzaffar Khan appellant and to his statement at the trial wherein the story of bending for picking up the chhuri was not given. The learned Sessions Judge felt that it did not appear to be probable that after receiving two blows in the chest which were quite deep wounds, the deceased could have bent for picking up the knife. He thought that it was rather improbable that the deceased should have received the stab in the back while he had bent after receiving injuries in the chest, for if after he had already received serious injuries in his chest, he had bent, the blow in the back would have felled him in the shop and he could not have gone out and fallen at a distance of 20 or 23 feet. He, therefore, arrived at the conclusion that after receiving the injuries in the chest, the deceased started rushing out and when he had turned his back, Muzaffar Khan appellant gave him another blow in the back. He accordingly held that Muzaffar Khan appellant had exceeded the right of private defence and convicted and sentenced him as stated above. I have very carefully scrutinised the defence evidence in the light of the medical evidence on the record and the observations of the learned Sessions Judge and I am constrained to observe that the criticism of the defence evidence by the learned Sessions judge is based on a wrong assumption for as a matter of fact he is not accurate in describing the two injuries in the chest as serious. According to the doctor's evidence, injury No. 1 which was located in the chest was undoubtedly fatal. But injury No. 3 over the left side of the chest between the 8th and 9th ribs in posterior auxiliary line running parallel to the rib has nowhere been described by the doctor to be a serious injury. In fact, there is nothing in the evidence of the doctor to suggest that injury No. 3 was at all a serious injury. The depth of this injury was only 1/3rd of an inch. Injury No. 2 of course was the second fatal injury, but this was over the right shoulder‑blade running deep to the chest and had entered the right lung. There was no other injury on the back of the deceased. Therefore, if injury No. 2 was caused on the back of the deceased while he was bending to pick up the chhuri, then the reasons given by the learned Sessions judge do not hold good, for it appears that he was under the impression that injury No. 3 was also a serious injury whereas in fact it is not, and therefore the very basis of the finding of the learned Sessions judge becomes untenable. And if the accused had caused injury No. 3, while the victim was trying to pick up the chhuri, then the injury caused was a simple injury and had not been caused with considerable force and could not have felled the deceased there and then. But having regard to the seat of this injury, I have no hesitation in holding that this injury had been caused from in front, while the victim was still standing. Had not the learned Sessions judge fallen into this error, I am sure he would have come to a different conclusion. In view of this there is no reason to doubt the testimony of Dr. Inayat Ullah (D. W. 2) and Maula Bakhsh (D. W. 4), but assuming for the sake of argument that their evidence about the giving of the blows by the accused to the deceased is not very accurate, can the accused be convicted for any offence, upon mere improbabilities of his version, when the entire prosecution evidence has been rejected and disbelieved by the learned Session Judge ? It was strenuously urged by Khan Bahadur Qazi Nazir Ahmad, Advocate, who argued this appeal on behalf of the appellant, that if the conviction is to be based solely on the statement of the accused, the statement must be taken in its entirety and that it is not open to the Court to rely on the incriminating portion of the statement of the accused and to exclude from consideration the exculpatory part thereof. The contention of the learned counsel had great force in it. There is ample authority for the view that where there is no other evidence to show affirmatively that an portion of the exculpatory statement of the accused is false, the Court must accept or reject his A statement as a whole and cannot accept only the inculpatory element while rejecting the exculpatory element as inherently incredible. It was so held in Emperor v. Balmakund (A I R 1931 All. 1) and Sher Gul v. Emperor (A I R 1935 Lah. 671). I am, therefore, of the opinion that, in the absence of any positive evidence to show that the statement of the accused is false, he cannot be convicted of any offence merely on the basis of his version being highly improbable and incredible. There are no indications on the present record to show that the statement of Muzaffar Khan appellant is false so far as it relates to the exercise by him of the right of private defence. In fact it is supported by two defence witnesses whom the learned Sessions judge himself considered to be the truthful witnesses. The recovery of the bloodstained knife, the chhuri and the earth from the shop of the accused further strengthens the defence version. But above all the injuries on his person, three of which had been caused by a sharp- edged weapon and which by any standard cannot be described as trivial, bear eloquent testimony to his version: Witnesses may lie, but these circumstances which are well‑authenticated speak for themselves about the innocence of the accused. The learned Sessions Judge has conceded the right of private defence to the accused but has convicted him on the ground that he should have known before inflicting the injury on the back that the deceased had already been incapacitated from further aggression. In the peculiar circumstances of this case, however, I am not prepared to accept this argument. In my opinion, while he was giving blows to the deceased in the exercise of the right of private defence, he could not have known at that time that some of the blows had resulted in fatal injuries to the deceased. After going through the medical evidence, now, of course, it is known that two of the injuries were fatal. But in the heat and excitement of the moment and in that frame of mind to expect from the accused that he should have judged the nature of each and every blow given in self‑defence and then should have modulated the right of private defence accordingly, is to expect the impossible from a human being placed in such an awkward position. Having carefully considered the statement of the accused and all the circumstances of the case I am of the view that Muzaffar Khan appellant in causing the death of Muhammad Nawaz had not exceeded his right of private defence. I, therefore, accept his appeal, set aside his conviction and sentence, and acquit him, He is on bail. His bail bond is discharged. A. H. Appeal accepted.