P L D 1965 (W (PLP)

Ghulam Khan appellant was tried for the murder of his co‑villager Muhammad Yusaf on the 19th of August 1963, by the learned Sessions Judge, Campbellpur, who convicted him under section 326, P. P. Code to undergo rigorous imprisonment for a period of seven years, including solitary confinement for three months, and a fine of Rs. 3,000, or in default to suffer rigorous imprisonment for a further period of three years. The fine, if realised, was ordered to be paid to the heirs of Muhammad Yusaf as compensation.

2. The incident that culminated in the death of Muhammad Yusaf took place at dopehrwela, when he was taking his cattle for watering and was stabbed by the appellant by means of a chhuri on the front of left thigh. The wound was 2` x 1' x 6'`, with a penetrating cut in the left femoral artery, which resulted in excessive haemorrhage and led to the death of the victim while on the way to the thana.

3. The report regarding the occurrence was lodged by Azad (P. W. 8) at Police Station Saddar Campbellpur at 4‑45 p. m. on the 19th of August 1963. The motive, as disclosed in the first information, was the dispute over the gains of business between the parties. The deceased suspected that he had been wrongfully deprived of a sum of Rs. 10 by the appellant. The dispute was referred to Abdul Ghafur (P. W. 7) and Ghulam Haider Lambardar (P. W. 9), who proposed at the instance of Azad father of the deceased, that Ghulam Khan appellant should take the talak oath. The appellant accepted the offer, took the oath and the matter ended there.

4. During the investigation, Sub‑Inspector Nur Sultan (P. W. 13) removed bloodstained shirt (Exh. P. 6) and chadar (Exh. P. 7) from the person of the appellant and sealed them into a parcel vide memo. Exh. P. D. The appellant took the police to his house and produced bloodstained chhuri (Exh. P. 1) which was taken into possession and sealed into a parcel vide memo. Exh. P. E. by the Investigating Officer in the presence of Ghulam Haider and Abdul Malik Lambardars. It may be stated here that the weapon of offence as well as the garments of the appellant were found by the serologist to be stained with human blood. The appellant was arrested on the 20th of August 1963.

5. The autopsy on the deceased's dead body was held at 9 a. m. on 20th August 1963. In addition to the injury already described by me above, the deceased had (1) an abrasion, 1'' x 1", on left cheek bone, and (2) an abrasion, 4"x 1 ", on inner border of right forearm on upper 1/3rd.

6. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. He came forward with the version that he was going to the well of Feroz, when the deceased attacked him by means of a hatchet and the appellant in order to defend himself against the attack caused an injury to the deceased by means of a chhuri on his left thigh. No evidence was produced in defence.

7. The occurrence being admitted, the only question that needs consideration is which of the two rival stories is correct. The prosecution examined Dheru and Sikandar as eye‑witnesses. In nutshell, their evidence is that on the day of the alleged occurrence they were going to their houses at dopehrwela. Ghulam Khan appellant was ahead of them by about 15 paces. When they reached near the kotha of Dullah, they noticed Muhammad Yusaf deceased coming with his cattle from the direc tion of his house. Ghulam Khan appellant challenged Muhammad Yusaf and attacked him by means of a chhuri, causing an inujry on the left thigh of the victim. When the appellant aimed another blow with the chhuri at Muhammad Yusaf, the latter struck his assailant with the hatchet on the head and Ghulam Khan took to his heels. Muhammad Yusaf fell. He was placed on a cot and was removed to the house of Sikandar (H, W, 12), who informed the father of the deceased at his well of what had happened. Azad came to the house of Sikandar and enquired from Muhammad Yusaf as to what had happened and he told him in the presence of Abdul Ghafur (P. W. 7), Ghulatn Haider Lambardar (P. W. 9) and Abdul Malik Lambardar (b. W. 10) that Ghulam Khan appellant had injured him by Reans of a chhuri while he was taking the cattle for watering.

8. Since the appellant admitted that he caused the fatal injury to the deceased by means of a chhuri, it is unnecessary to dilate on the evidence of oral dying declaration. Suffice i to say, that Azad (P. W. 8) did not mention in his report to the police that his son made an oral dying declaration in the pre sence of Abdul Ghafur, Ghulam Haider and Abdul Malik. In the circumstances, I would not attach any value to the oral dying declaration alleged to have been made by Muhammad Yusaf in the presence of Abdul Ghafur, Ghulam Haider and Abdul Malik.

9. Taking up the ocular evidence, I find that Bheru and Sikandar are related to the victim of the crime. They are not truthful witnesses. They delibrately tried to suppress their rela tionship with the father of the deceased. Azad, father of the deceased, admitted that Sikandar is his first cousin and that his father and the father of Dheru were first cousins. Dheru denied that he had a quarrel with Azim, a brother of the appellant, but the fact is amply proved from an admission made on this point by Ghulam Haider Lambardar. Sikandar is a previous convict and had remained in jail for a period of twelve years. The learned Sessions Judge considered Sikandar as a got‑up witness. He was of the view that it was unsafe to rely on the evidence of Dheru. He proceeded to convict Ghulam Khan appellant merely because he admitted having caused the fatal injury to the deceased.

10. The appellant having taken the talak oath as proposed by Azad and his son Muhammad Yusaf deceased, the matter with regard to the dispute over the profit of joint business in atta between the parties had ended and apparently Ghulam Khan had no motive to assault the deceased. The story of the motive was, therefore, rightly disbelieved by the trial Court. It is in the statement of Ghulam Haider Lambardar that prior to the occurrence, under consideration, the deceased had com plained to him that Ghulam Khan had given him a soti blow. The motive must, therefore, be held to be on the side of the deceased.

11. The ocular evidence in this case having been disbelieved by the learned Sessions Judge, the version of the appellant along was in the field and the statement of the accused in the absence of any other evidence must be accepted or rejected as a whole. 4The learned Sessions judge was not right in accepting only a portion of the statement of Qhulam Khan, wherein he admitted having caused the fatal injury, and in disregarding that portion of his statement which gave him the right of self‑defence. Thel appellant had (1) an abrasion, 3/4" x 1/10', on front of right lobule of the ear, (2) a contusion, 3/44 x 3/8", with surface abraded, on the top of the middle of the head, and (3) a contused wound, 1/4' X 1/10' skin deep, on the head of right second metacarpal bone. The story that the deceased, who carried a hatchet at the time of occurrence, used it in order to defend himself against the attack was supported by Dheru and Sikandar, but they were disbelieved by the trial Court.

12. The appellant had a head injury which was caused to him by means of a blow with a hatchet, which the deceased carried at the time of occurrence. The possibility of the deceased having opened the attack on the appellant cannot be excluded in c this case to a moral certainty and in case of doubt who attacked first, the benefit of doubt is to go to the accused. (See Abdul Rahman v. The Pakistan State (P L D 1959 Pesh.74).

13. On this view of the matter, the appellant must be held to have been entitled to the right of self‑defence and since the deceased wielded a hatchet, which is a formidable weapon, the appellant naturally had a reasonable apprehension that grievous hurt, if not death, would be caused to him, and if in the circumstances he used a chhuri and caused an injury to the victim on his thigh, which is not a vital part of the body he cannot be held to have exceeded the right which accrued to him under the law.

14. For all these reasons the appeal of Ghulam Khan preferred through jail is allowed. His conviction and the sentence are hereby set aside and we proceed to acquit him. He is ordered to be set free at once. The fine, if paid, shall be refunded to him. K. B. A. Appeal accepted.