2002 PLP 1607 (SCMR)

3. Petitioner Toti Khan too lodged F.I.R. No.121 at the 7same police station on the same day wherein he stated that his brother Kamran and Manna alongwith their tenant were working in‑ his field and on his intervention, they stopped the work but when he proceeded ahead, he saw that they again started working in the field. He, therefore, returned and on reaching at the spot, was hit by Kamran with a spade and was also fired at by deceased Manna from his pistol which hit on his left leg. He stated that he was also carrying .30 bore Pistol at that time from which he fired at his brothers Kamran and Manna and thereafter decamped. While running, he carne across complainant Muhammad Ayaz and Ihsanullah who also fired at him which missed and did not hit him. Thereafter, he learnt that his brothers Kamran and Manna had died.

4. After usual investigation, petitioner was sent up to face trial, where he pleaded not guilty to the charge and claimed trial.

5. Prosecution in order to prove its case examined as many as seven witnesses. On the conclusion of the trial, petitioner was found guilty and convicted and sentenced to death vide judgment dated 19‑5‑1998.

6. The appeal filed by the petitioner before the Peshawar High Court, Circuit Bench Abbottabad, was allowed on 21‑10‑1999 and the case was remanded for the purpose to record the statements of the witnesses mentioned in F.I.R. No.121 of 1997 as well as to cross‑examine the Investigating Officer and Medical Officer who had examined petitioner Toti Khan

7. Consequently trial Court examined Dr. Behri Rome as C. W .1, Investigating Officer' Abdus Sattar as C.W.2 and recorded the statement of petitioner Toti Khan under section 342, Cr.P.C. Petitioner Toti Khan examined himself on oath under section 340(2), Cr.P.C. and produced Malook as D.W.1 in his defence.

8. On the conclusion of the trial the charge against him was again established and was convicted and sentenced similarly as stated above. Murder Reference was also accepted.

9. We have heard Sardar Muhammad Ghazi, learned Advocate Supreme Court for the petitioner and have gone through the record and the proceedings of the case in minute particulars.

10. Learned counsel for the petitioner mainly contended that from contradiction in ocular, and medical evidence it shows that the eye‑witnesses were not present at the spot. According to him, the delay of three hours in reporting the matter to the police further corroborates the above version. The deceased Kamran while injured was not medically treated well within time and vas allowed to die by the complainant party knowingly with ulterior motive. On the quantum of sentence, he submitted that the quarrel took place all of a sudden and both parties sustained injuries and that the petitioner being firstly attacked, retaliated and exercised the right of his self‑defence, as such death penalty awarded to him was not justified, thus‑ deserved a lesser punishment. 11.. Before High Court, learned counsel for the petitioner had advanced his argument only on the quantum of sentence and did not challenge the conviction on merits. In such circumstances, we will have to examine the defence version put forth by the petitioner in juxtaposition to the case of the prosecution in order to find as to which one is near to truth.

12. Admittedly, occurrence is not disputed. According to the F.I.R. for petitioner, he admitted to have fired at the deceased resulting in their death after he was attacked by the deceased. In this statement under section 342, Cr.P.C. recorded in the first round of litigation, he disowned his report made to police and stated that it was the complainant Muhammad Ayaz and his brother Ihsanullah who fired at the deceased and he was involved falsely because he had only a child aged 213 years and they wanted to grab his property. In the second round of litigation, in his statement under section 342, Cr.P.C., he did not make any elaborate statement but said that signatures on his report were obtained by the Investigating Officer through pressure and third degree method. In his statement on oath under section 340(2), Cr.P.C. he took different version and stated that on the day of occurrence he had gone to school to perform his duty as teacher and while returning he alighted from the Suzuki and went to his Paddy crop field where he found his brothers Manna and Kamran and tenant Malook present. Deceased Manna gave him blow with axe which hit on his forehead. Petitioner pushed him and his brother Manna fell down on the ground whereafter deceased Manna fired at him with his pistol which hit him on his left leg. According to him, Malook tenant caused him hatchet blow on his head whereafter deceased Kamran inflicted him 8/10 axe blows which hit on the different part of his body. Meanwhile Asim Khan, Ali Gohir, Sharistan and Muhammad Hassan armed with fire‑arms appeared at the spot and all of them started firing at deceased Marina and Kamran, in the result whereof they died. According to him, he went to Police Station Batagram reported the matter but S.H.O. did not record his report as per his dictation but recorded the same according at his own accord. He signed that report voluntarily. When confronted with his earlier statement under section 342, Cr.P.C., he admitted the same to be the correct and claimed that he is Graduate and had served as Primary Teacher for 30 years. With regard to his medical examination, he claimed that he had received 8 to 10 blows from the sharp side of the axe on the head and hand. He, however, denied that the fire‑arm injury on the leg was self‑inflicted.

13. It would be pertinent to note that Dr. Behri Rome C.W.1, Medical; Officer, DHQ Hospital, Batagram, testified before the trial Court that on' 19‑5‑1997 at 10‑00 p.m., he examined the petitioner and found the following injuries on his person:‑‑ "(1) An entry wound on media] side of left leg calf, with bruising and blackening of margine. It measured about 1/2" x 1/2'' in six. Contusion ring is present round the entry wound. Am (2) Small cut wound 1/2" in size on right hand palm. (3) Exit wound on posterial surface of left leg mid portion. It is about 1/4" x 1/4" in size. In cross‑examination, he, however, candidly admitted that injury No. l was self‑inflicted. Even on the face of it, the injury seems to be a self- inflicted one for the reason mainly that the entry wound on the medial side of left leg, calf with burning and blackening of marginal indicates that the same was caused from very close range probably by keeping the weapon at the particular place. This negates the plea of the petitioner that he sustained 8 to 10 hatchet blows and was also fired at by the deceased from some distance.

14. On the other side, the case of prosecution consisted of strong ocular truthful furnished by complainant Muhammad Ayaz and Ihsanullah P. W. whose testimony was not shattered though cross‑examined at length. The same got full corroboration from the medical evidence, recovery of empties, .30 bore pistol and positive Arms Expert's Report. Irrespective of above, D.W.1 Malook tenant examined by the petitioner in his defence, supported the case of the prosecution in toto and while deposing stated that on the fateful day, the petitioner had gone to the field of the deceased and asked them about working in the field on which deceased Manna gave a slap to him who in retaliation fired at him and killed him at the spot. Deceased Kamran rushed towards the petitioner and caught hold of him but the petitioner fired at him which hit on his left hand. Thereafter, Kamran deceased picked an axe and hit the petitioner on the head. Resultantly, the petitioner also fired at Kamran and killed him on the spot. It has been established on record that the deceased were empty‑handed whereas petitioner came to the spot duly armed thus he aggressed and committed the offence. It is well‑established principle of law that an accused can exercise right of private defence of his body or property in case if he apprehends the danger of his being killed only. The moment, he exceeds such right then that act becomes the act of aggression and case would fall out of the purview of provisions of section 100, P.P.C.

5. From the above resume, the case of t is prosecution seems to be reasonably true and fully established as against the defence version. The. Courts below have rightly appraised the evidence and correctly convicted and sentenced the petitioner. Learned counsel for the petitioner has failed to point out even single mitigating circumstance to reduce the sentence of the petitioner, therefore, his conviction and sentence awarded by the lower Courts are maintained. Resultantly, the petition is dismissed and leave to appeal refused. N.H.Q./T‑34/S Leave refused.