1985 P Cr (PLP)

2. The occurrence took place on 18‑1‑1980 at about 10‑00 a.m. in the area of Chak No. 130/J.B. of Police Station Chiniot. The F.I.R. Exh.P.L was lodged by Haq Nawaz, brother of the deceased on the same day at 12‑30 p.m. and was recorded by Muhammad Bashir S.I. at P.S. Chiniot. The distance between place of occurrence and the police station is 7 miles. The case was originally registered under section 148/307/149, P.P.C. On the death of Muhammad Nawaz, section 307, P.P.C. was converted into section 302, P.P.C.

3. The motive as alleged by the prosecution was long‑standing enmity between the parties on account of murders and counter‑murders by them.

4. As far the main occurrence, it has been stated that a day before the occurrence Muhammad Nawaz deceased had purchased she‑buffalo from Khan. At the eventful time, he alongwith Haq Nawaz and Dost Muhammad P.Ws. left for the house of Khan to pay the price of she‑buffalo. They were near the Dera of Bashir Khan when lqbal appellant and 6 co‑accused variously armed came there. Iqbal appellant, Mumtaz, Khalid, Abbas and Yousaf co‑accused were armed with guns. Shameer was carrying a Sota and Fateh Muhammad was empty handed. They raised Lalkara. The appellant and Mumtaz opened fire at Muhammad Nawaz. The shots hit him. He fell down unconscious. The companions of Muhammad Nawaz took shelter behind the Dera of Bashir Khan. The occurrence was also seen by Kazim and Ghulam Muhammad. The appellant and his co‑accused made good their escape. Muhammad Nawaz was taken to Civil Hospital Chiniot in injured condition where he was medically examined. After obtaining medico‑legal report Exh.P.A., Haq Nawaz complainant left for police station to lodge report. Muhammad Bashir S.I. came to the hospital. He made query from Dr. Muhammad Bashir Amin who vide Exh.P.B. reported that Muhammad Nawaz was not fit to make statement: Muhammad Nawaz succumbed to the injuries on the same day.

5. Dr. Muhammad Bashir Amin P.W.1 had medically examined Muhammad Nawaz deceased in injured condition and had also conducted post‑mortem examination on his dead body. He found following injuries on his person:‑ "(1) A fire‑arm wound of entrance 1 c.m. circular on right side of forehead 4 c.m. above the right eye‑brow. The edges of the wound were inverted. The edges were not scorched or tatooed. There was no wound of exit. Brain matter was coming out from the wound of entrance. (2) A fire‑arm wound of entrance 4 c.m. x 1 c.m. x penetrating into the head, 3 c.m. above and inner side of injury No.1. There was no scorching or tatooing of the edges of the wound and edges were inverted. There was no wound of exit. Brain matter was coming out from the wound." In his opinion, the cause of death was shock and haemorrhage due to these injuries which were individually as well as collectively sufficient to cause death in the ordinary course of nature. The injuries were caused by fire‑arm. The doctor had removed two pellets from the brain matter. (ii) On the same day at 4‑15 p.m., the same doctor examined Muhammad Iqbal appellant. He found following injury on his person. "A fire‑arm wound of entrance 0.5 c.m. circular on right cheek in front of right ear. There was not tatooing or scorching on edges of the wound. There was wound of exit on inner side of mouth with fracture of right upper lateral incisor and central incisor teeth. There was also fracture of right lower lateral incisor, canine and first pramolar teeth. There was also laceration on right side of tongue and lower lip. There was also massive swelling of right cheek." The injury was caused by fire‑arm and grievous in nature. (iii) On the same day at about 4‑25 p.m. the doctor examined Mst. Riaz Bibi and found; "An abrasion .2 x .1 c.m. on head, 1.5 c.m. above the hair line." The injury was caused by blunt weapon within 6 hours of the examination and was simple in nature.

6. Muhammad Iqbal appellant was arrested on 8‑2‑1980. He led to the recovery of unlicensed gun Exh.P.6 lying hidden in Bhoosa inside his Dhari which was taken into possession vide memo. Exh.P.K. attested by Muhammad Anwar P.W.8. The memo was prepared by Muhammad Bashir S.I. The Investigating Officer had also taken into possession crime empty Exh.P. from the place of occurrence vide memo. Exh.P.H. attested by Noora P.W. The memo. was prepared by Muhammad Bashir S.I. Forensic Science Laboratory's report reveals that the crime empty had been fired from the gun recovered from Iqbal appellant.

7. To prove its case prosecution examined 12 witnesses. Dr. Muhammad Bashir Amin P.W.1 had medically examined the deceased, Muhammad Iqbal appellant and Mst. Riaz Bibi. He had conducted post-mortem examination on the dead body of Muhammad Nawaz. Dost Muhammad P.W.9, Haq Nawaz P.W.10 and Ghaus Muhammad P.W. 11 have given the ocular account of the occurrence. They claim to have seen the appellant firing shot from his gun hitting the deceased resulting in his death. Noora P.W.6, Anwar P.W.8 and Bashir S.I. have stated that crime empty was removed from the spot and gun Exh.P.6 was recovered at the instance of the appellant. The rest of the evidence is more or less of formal nature.

8. When examined under section 342, Cr.P.C. The appellant denied all the incriminating circumstances. He stated:‑ "On the day of occurrence Haq Nawaz complainant, Muhammad Nawaz and Kazim P.W. chased me. I ran towards Dhari of Khalid accused who is my servant and when I reached there, Muhammad Nawaz fired at me with his licensed gun which hit me at my face and when he was to fire again at me, I fired in self‑defence." No witness was produced in defence.

9. Disbelieving the presence of the 6 acquitted co‑accused on the spot, the learned trial Court has acquitted them. The trial Court has partly believed the three eye‑witnesses and having sought corroboration from the injury on the person of the appellant and the recovery of gun from him with which the crime empty had matched, convicted and sentenced the appellant. The trial Court has disbelieved the plea of self‑defence raised by the appellant.

10. Learned counsel for the appellant contended that the eye‑witnesses are not reliable; that they had suppressed the injury of Muhammad Iqbal appellant and that there is a reasonable possibility that the defence plea might be true. Conversely, the learned counsel for the State assisted by the learned counsel for the complainant has supported the judgment of the trial Court. The learned counsel for the complainant has also prayed for re‑trial of the acquitted accused and for enhancement of the sentence of Muhammad Iqbal appellant.

11. I have considered the arguments addressed by the learned counsel for the parties with care. From the state of affairs given above; the time of occurrence, place of occurrence, presence of the deceased, presence of the appellant and the fact that the deceased died at the hands of the appellant, are the admitted facts of the case. The questions, for considerations and determination are as to who was the aggressor and whether the accused /appellant had acted in exercise of the right of self‑defence of his person or not. Keeping in mind, the guiding principles laid down by the superior Courts for the appreciation o evidence in cases of counter‑versions, I propose to discuss prosecution first in order to come an independent finding as to the truth or falsehood of its case and more particularly, to the credibility of the eye‑witnesses. I find that the three eye‑witnesses are not reliable. Muhammad Iqbal appellant was examined on the day of occurrence. The fire‑arm injury was found on his right cheek in front of right ear. It was a grievous injury. The injury was neither explained by Haq Nawaz in the F.I.R nor it was explained by the three eye‑witnesses in their statements before the trial Court. They have rather suppressed the injury. It appears that they have given evidence with a motive other than of telling the truth. Since the accused/appellant was found injured on the day of occurrence and the time of receiving injury tallies with the time of the occurrence, therefore, it will be permissible to presume that it was the deceased who had injured him. Instead of explaining the injury of the appellant, the eye‑witnesses have suppressed the same. No doubt, Dost Muhammad and Ghaus Muhammad P.Ws. cannot be termed as interested witnesses but want of interest or absence of enmity cannot stamp the statement of a particular witness with truth. The statements made by these witnesses are not in consonance with the probabilities and do not fit in with other evidence and as such have failed to inspire confidence. For disbelieving a particular witness, it is not necessary that there should be numerous infirmities in his statement. If there is one circumstance which creates reasonable doubt in a reasonable and prudent mind as to the truth of the statement of a witness that may be sufficient for exclusion of his evidence from consideration. For all these reasons I am of the view that it would be in accordance with the safe administration of justice in criminal casesj4 that the statements of the three eye‑witnesses are excluded from consideration. The appellant has owned firing on the deceased in exercise of right of self‑defence, therefore, the recovery of gun from the appellant will not advance the prosecution case. Since I have excluded the ocular evidence produced by the prosecution, there is no alternative but to accept the statement made by the appellant as a whole, which J accepted as a whole shows that, in the circumstances, the appellant was well within his right to cause death of the deceased.

12. The upshot of the discussion is that there being no satisfactory basis to uphold the conviction of the appellant and while giving him the benefit of doubt, he is acquitted of the charge. Resultantly, then connected revision fails and is dismissed. M. Y. H. Appeal accepted.