1969 PLP 802 (SCMR)

AMIRUDDIN AHMAD, J.‑This is an appeal by special leave of this Court by one Hukamzad who along with two others was tried by the Sessions Judge of Derajat on charges under sections 302/34 and 450/34 of the Pakistan Penal Code and sentenced to death on the first charge and five years' rigorous imprisonment on the second charge. His appeal to the High Court of West Pakistan, Peshawar Bench, was dismissed and his death sentence confirmed, while the conviction of his two companions was set aside on a benefit of doubt. The prosecution case was that on the 14th March 1958 after sunrise the appellant with his two companions came to the house of Awal Jan and demanded the repayment of a debt due from a brother of Awal Jan who was at Bannu at the time. Awal Jan told them that his brother Amar Jan was absent and that on his return the matter would be amicably settled. They, however, insisted on immediate payment of the loan and threatened to take away his goods and chattels. Awal Jan protested on which the appellant pulled out a dagger, with which he had gone armed, and stabbed him in the abdomen. The nature of the injuries, as disclosed by the medical evidence, was that it was suffcient in the ordinary course of nature to cause death. An alarm was raised on which the appellant and his companions ran away to their houses, which were at some distance from the place of occurrence. The injured man was then taken to the Police Station and a first information report was lodged by him at 11‑30 a. m. which was read out to him and on which he put his thumb‑impres sion. As his condition was deteriorating, he was taken to the civil hospital where his second dying declaration was recorded by the Station House Officer at about 12‑15 p. m. From the effect of the injuries he died the same day. In the meantime an hour after the first information report was lodged by the deceased, the appellant lodged a first information report at 12‑25 p. m. at the same police station to the effect that Muhammad Gul had come to his house early in the morning to settle the account 'bf the debt and called him out ; that on this he came in front of his house and was standing outside when Muhammad Gul, Awal Jan and Mst. Palali attacked him; that Mst. Palali and Muhammad Gul caught hold of him and Awal Jan assaulted him with the wrong side of an axe which inflicted injuries on him; that he had a dagger with him and with its help he escaped with his life and came straight to the thana to lodge a report and that somehow he had lost the dagger. This was evidently a counterblast to the report lodged by the deceased Awal Jan. In support of the prosecution case two eye‑witnesses were examined and reliance was placed on the two dying declarations supported by the medical evidence and other circumstances brought out in evidence. All these incidents happened in an atmosphere of tension when both the parties had been bound over to keep the peace under sec tion 107 of the Code of Criminal Procedure and the period of the bond had not yet expired. In his statement before the trial Magistrate under section 342 of the Code of Criminal Procedure the appellant stated that:‑ "After sunrise the deceased called me out from my house. We sat on the culvert of the water‑course. He would pay me not the full amount but in parts. I refused to have part. payment. He abused me and then gave me blows with an axe which he had. I had a knife with me and when he was going to give me another blow I tried to ward it off and ran away. I could not realise if the deceased was wounded." The same statement was substantially repeated in his statement before the Sessions Judge. On these statements and on his first information report the appellant tried to set up a case of right of private defence. The Sessions Judge doubted the presence of one eye‑witness, Muhammad,Gul, at the house at the time, but relied on the evidence of the other eye‑witness, Mst. Palali, whom he held to be a trustworthy witness and whose presence inside the house at the time of the occurrence was probable and natural. He also relied on the two dying declarations and held that the first dying declaration was made with great promptitude and without any loss of time when the deceased had no opportunity to fabricate or concoct a false charge against the accused. He also held that the place of occurrence was the house of the deceased where blood in sufficient quantity was found by the Police, and that the version given by the appellant before him was contradictory to the statement of facts recited by him in his first information report (Exh. P. D.) He further held that it was quite possible that after the deceased was stabbed and the accused was running away the deceased, who was still quite capable of lifting a stick and pursuing the accused up to some distance, might have inflicted, those injuries on the accused during the course of his fight. He also did not rule out the possibility that an abrasion on the arm and contusions on the back of the person of the appellant, which were slight in nature, might have been self-inflicted. He therefore, rejected the plea of self‑defence set up by the appellant as untrue and sentenced him as stated above. The High Court agreed with the Sessions Judge and rejected the plea of self‑defence. Leave was granted in this case to consider the plea of self- defence raised by the appellant, as it did not appear to have been adequately dealt with by the High Court. We have, therefore, examined the materials on which this plea is founded, which consist of the statements in the F. I. R. lodged by the appellant (Exh. P. D.) and his two statements under section 342 of the Code of Criminal Procedure. These are not supported by any other evidence on the record and are contradictory as found by the Sessions Judge. In the first place, the place of occurrence is definitely mentioned by the appellant as a spot just outside the house of Muhammad Gul, on a culvert while all the evidence sported by the find of blood in large quantity in the courtyard of the house of the deceased, which is at some distance from the appellant's house, would show that the stabbing took place not where the appellant had put it but at the deceased's house where the appellant had gone armed with a dagger. In the F. I. R. the appellant had also stated that he was assaulted by Muhammad Gul, Mst. Palali and the deceased and there is no statement that anyone abused him, but in his statement in Court he says he was abused and given blows with an axe by the deceased alone. In none of these statements he clearly states or denies that he stabbed the deceased but suggests that while running away he might have inflicted the injuries. The law governing the plea of the right of private defence is laid down in section 105 of the Evidence Act, which throws the burden of proving the existence of circumstances bringing the case within any of the general exceptions, of which the plea of private defence is one, on the accused. Of course, for this purpose, an accused can rely on evidence directly adduced by him or on facts and circumstances arising from the prosecution evidence or materials brought out in cross‑examination of prosecution witnesses by him. This section also lays down that the Court shall presume the absence of such circumstances, which shows that the rebuttal of such presumption lies on the accused. In the present case except the three statements of the appellant, there is no other material to support his plea of the right of private defence. Even in his cross‑examination no fact relating to this plea was suggested to the eye‑witness, Mst. Palali P. W. 7, and only one question was put to the other eye‑witness, P. W. 6 Muhammad Gul, to elicit the answer that he did not know how Hukamzad, accused, came by the injuries on his person. In the circumstances, we agree with the two Courts below that the appellant had failed to make out a case of right of private defence. But for one observation by the learned Judges of the High Court, namely, "whether the injuries were caused to him by the deceased or by any of his relations, before the murderous assault or after it, becomes immaterial", which disclosed a confusion of mind, this Court would not have granted special leave in this case. It is this observation which showed the necessity of examining the case so far as it related to the right of private defence and resulted in the grant of special leave. The appeal is dismissed. Appeal dismissed.