1983 PLP 310 (SCMR)

M. S. H. QURAISHI, J.--Appeal, by leave of the Curt, the two appellants namely, Abdul Majid and Salah‑ud‑Din, had been, along with their co‑accused Altaf Hussain Bhatti and Ilyas, tried under section 302/34, P. P. C. for the murder of Abdul Haq, and while the said co‑accused were acquitted by the trial Court, the appellants were each. sentenced to death and a fine of Rs. 1,000 or in default to R. I. for one year. The appellants' appeal before the High Court was accepted only to the extent that their sentence of death was reduced to that of imprisonment for life, while instead of the fine they were directed to pay Rs. 5,000 each to the heirs of the deceased under section 544‑A, Cr. P. C.

2. According to the prosecution, Abdul Majid appellant armed with a revolver and Salah‑ud‑Din appellant with a chhuri, along with their cc‑accused, had, on 2‑10‑1972 at 8‑45 a. m. come to the shop of Abdul Haq deceased on Railway Road, Lahore. Abdul Majid fired from his revolver injuring Abdul Haq deceased, where after the co‑accused caught hold of him while Salah‑ud‑Din inflicted a dagger blow on his left flank. The deceased managed to get himself released and ran up the stairs of the neighboring Aziz‑ul -Islam High School where he was pursued by the appellants who, shortly thereafter, came down holding the deceased's blood‑stained dhoti. After the assailants left, Mushtaq Ahmad and Abdul Majid P. Ws. took the deceased in injured condition to the Mayo Hospital, but before any medical aid could be given, he succumbed to the injuries. On receipt of information from the hospital, Mumtaz Ali, S. H. O. went there and recorded the state ment of Mushtaq Ahmad, which formed the basis of the F.I.R. in the case.

3. For motive, it was stated that there , had 7770 a dispute between Abdul Majid appellant and the deceased over money matters and 7/8 months previous to the occurrence, the deceased had inflicted chhuri blow to Abdul Majid, whereupon the latter had got a case registered under section 307, P. P. C. against the deceased, which case was still pending when the occurrence took place. According to the prosecution, Abdul Maid had committed the offence to avenge his grievance.

4. The appellants were arrested on 10‑10‑1972 and an application was made on their behalf to the Magistrate for arranging their medical examina tion as they had received fire‑arm injuries and a bullet was still lodged in the body of Abdul Majid appellant. They were accordingly medically examined on 13‑10‑1972 and were found to have one fire‑arm injury each about two weeks old, though simple in nature: An oval metallic foreign body was detected in the soft tissues of the left thigh interiorly of Abdul Majid appellant, which was extracted and was taken into possession by the S. H. O, vide memo. Exh. P. S. No other article was recovered from the appellants. During the investigation, a telegram had also been received by the S. H. O. from one Muhammad Ibrahim (said to be the father of Abdul Majid appellant) to say that the two appellants had suffered fire‑arm injuries at the bands of the deceased and that they had acted in the exercise of the right of self‑defence of their person, otherwise they would have been killed.

5. The medical evidence showed the presence of one fire‑arm wound of entry, three stab wounds, one incised chipping off of the skin and one abrasion on the person of the deceased. A metallic piece recovered from his body was produced vide memo. Exh. P. D. All the injuries were ante-morten while two of the stall wounds and the fire‑arm injury had peen individually sufficient to cause death in the ordinary course of nature.

6. The prosecution case was supported by Mushtaq Ahmad complain. ant (P, W. 1) a relation of the deceased, Muhammad Latif (P. W. 2), a brother of the deceased, arid Abdul Majid (P. W. 4), a neighboring shopkeeper. Saeed Ahmad Iqbal (P. W. 4) headmaster of Aziz‑ul‑Islam High School, though not cited in the F. I. R. was produced, and he corrobo rated part of the evidence as relates to entry of the deceased followed by appellants Abdul Majid armed with the school premises. Pistol and Salah‑ud‑Din with chhuri in the school.

7. Both the appellants had in heir statement under section 342, Cr. P. C, admitted the previous incident leading to the registration of the case under section 307, P, P, C, but asserted that it was the deceased who had been insisting on withdrawal of the case which had led to an altercation in which the deceased had opened fire injuring the appellants. Salah‑ud‑Din, before the Committing Magistrate, stated that he had been hit in the arm but he omitted to mention the .same in his statement during the trial. According to him he had, then, fled away towards the cinema to save his life. Abdul Majid was, however, consistent in saying that he had been hit by the fire. He further added that on receipt of the injury he had run towards the High School and taking up a part from there had held therewith the deceased who alongwith one sharif had pursued him there. The co‑accused had set up the plea of alibi and had led evidence in support of it, which was accepted by the trial Court and they were accordingly acquitted. But neither the counter‑version of the appellants nor their plea of self‑defence was accepted, with the result that they were convicted and sentenced by the trial Court as aforesaid. The High Court, though it held that "the prosecution has not come with clean hands and injuries on the per sons of the appellants had not been explained" but found that the attempt of the appellants to bring their case within the purview of self‑defence had miserably failed. In this connection the High Court observed that had not been shown from the evidence that such plea had even been put the witnesses and that neither the doctor, who performed the operation and extracted the bullet had been produced nor the Head Constable who had produced the bullet before the Sub‑Inspector had appeared at the trial. The High Court accordingly maintained the conviction but in the circumstance did not consider the case to warrant confirmation of the death sentence.

8. The contention before us was that the High Court had erred in holding that the plea of self‑defence had not been put to the prosecution witnesses inasmuch as the plea had been duly put to Muhammad Latif (P. W. 2) who had denied it in the following words "It is incorrect to suggest that I had not witnessed the occurrence and on the day of occurrence Abdul Majid and Salah‑ud‑Din were passing near your shop and Abdul Haq was armed with chhuri and Sharif was armed with Revolver. It is further incorrect to suggest that Sharif and Abdul Haq deceased raising lalkara chased them and Sharif fired a shot which hit both Salah‑ud‑Din and Abdul Majid accused. It is incorrect that Salah‑ud‑Din and Abdul Majid ran for protection up the stairs of school and Sharif and Abdul Haq over took them in the stairs." It was also pointed `out that the production of the bullet extracted from Abdul Majid appellant had been duly admitted by the S. H. O. when he fated "On 21st October, 1972 Rehmat Ali H. C. produced a phial said to contain a bullet extracted by the doctor from the operation conducted on Abdul Majid accused, which I took into possession vide memo. Exh. P. S." It was further contended on behalf of the appellants that even if the defence had failed to adequately establish their plea of self‑defence, they were, nevertheless, entitled to the benefit of such doubts and gaps as appear in the prosecution case, particularly if the same raised the possibility of the existence of a case of self‑defence. For this, reliance was placed on Safdar Ali v. Crown (P L D 1953 F C 93), Muhammad v. Ghaus (1972 S C M R 264), Ahmad Din v. Faiz Ahmad (1972 S C M R 54), Muhammad Abdullah v. Muhammad Safdar Khan (1973 S C MR, 26) and Miran Bux v. Niaz (1975 S C M R 337).

9. It is apparent from the evidence that both sides had suppressed actual facts, for there is every indication that the appellants had suffered the fire‑arm injuries in the course of the occurrence but the prosecution had conveniently omitted to explain the same, The appellants had also, likewise, failed to account for the fire‑arm injuries and stab wounds on the person of the deceased. But the defence, even if it fails to fully establish from its own evidence its plea of self‑defence as is required by section 105 of the Evidence Act, can claim benefit of the omissions and doubts appearing in the prosecution evidence, such as can reasonably raise a presumption as to the existence of a right of private defence. In Safdar Ali's case it had been observed: "If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forwarded by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt." In the case of Muhammad Abdullah where both prosecution and defence versions abut the incident were unreliable and the discrepancies in the prosecution case were found to be of serious nature, it was held that the benefit of doubt was necessarily to be given to the accused and the possibility of the accused having acted in self‑defence could not be ruled out. Similarly in Miran Bux's case it had been reiterated that for the benefit of doubt it was not necessary for the accused to setup any defence case but it would be sufficient if be could manage to cast doubt ‑on the prosecution case. The prosecution's failure to explain the fire‑arm injuries found on the person of the appellants casts serious doubt on the veracity Of its version of the case. We cannot even say for certain as to how the occurrence had started and who first opened the attack. There is also no material to hold that the appellants had exceeded their right of private defence by inflicting injuries on the deceased after he had fled the scene. According to the F. I. R. only one chhuri blow had been inflicted on the deceased at the spot but the medical evidence showed the presence of as many as three such wounds besides one incised chipping off of the skin. There is no clear evidence as to when the other chhuri blows had been inflicted. There is also nothing to show that any injury had been caused in the premises of the High School where the deceased had been pursued by the appellants. Saeed Ahmad Iqbal (P. W. 3), Headmaster of the School, does not speak of any such injury having been inflicted within his seeing. The other eye‑witnesses had not gone up to the school. 'the prosecution also appears to' have roped in innocent persons whose plea of, alibi had been accepted on the basis of reliable evidence. In these circumstances, the prosecution evidence is not convincting as to the true facts of the occurrence or the part attributable to each involved in it. If the appellants had been attacked first by, fire‑arm, they had a right of self‑defence and there is nothing to show, as already discussed, that they had inflicted any injury except at the spot and as such they cannot be held to be guilty of having exceeded their such right. In these circumstances we consider them entitled to the benefit of doubt.

10. Accordingly, we accept their appeal, set aside their conviction and the sentence and acquit them. They shall be set at their liberty Forthwith if not wanted in any other case. Appeal accepted