2003 PLP 1369 (YLR)

Wound.‑‑‑(1) An incised wound about 1 c. m. in length 1/2 c. m. depth 1/4 c.m. width at left Temporal in horizontal direction, Wound stitched. (2) An incised wound on skull about 1/2 c.m. in length in horizontal direction. Wound stitched. Nature of wound: Simple. Weapon used.‑‑‑Hard and sharp object. P.W.5 also examined appellant Muhammad Hasil, and issued Medical Certificate Exh.P/5‑D. He noted the following injury on his person:‑‑ "On examination. ‑‑‑Injured was conscious. Cloth stained (Fresh blood). Wound: Two lacerated wounds oct scalp frontal part about 2 c.m. in length, deep to skin, 1/4 c.m. in width edges ill‑defined. Wound stitched and dressing done. Nature of wound. Simple. Weapon used.‑‑‑Most probably hard and blunt object.

5. P.W. 6 Muhammad Rafique is Investigation Officer. He investigated the matter as mentioned above. The appellants were examined under section 342, Cr.P.C., however, only appellant Waheed Akhtar appeared as his own witness as envisaged under section 340(2), Cr.P.C. and also produced D.W.1 Hassan in his defence. Appellant Muhammad Hasil neither recorded his statement on oath nor led any defence. The plea taken by the appellants was self defence. Their stand at the trial was that it was the complainant party who attacked them, thus, in exercise of right of self defence the deceased lost his life and P.W. Yaseen got injured. The learned trial Court rejected the plea of the appellants and accepting the prosecution version convicted the appellants vide impugned judgment dated 1‑6‑2002 in the terms as mentioned hereinabove, hence the instant appeal.

6. Mr. Muhammad Riaz Ahmed learned counsel appearing on behalf of the appellants contended as follows:‑‑ (i) The impugned judgment suffers from misreading and mis-appreciation of evidence. Defence plea has been discarded by the learned Sessions Judge without giving any plausible reasons. (ii) The prosecution has suppressed material facts and has not given the whole true picture as far as injuries sustained by the appellants have not been explained. (iii) The motive as set up by the prosecution has not been proved.

7. Mr. Muhammad Alam Mengal, Advocate, appearing on behalf of the State opposed the appeal.

8. We have heard the learned counsel for the parties at length and with their assistance have also perused the record minutely.

9. Before dilating upon the arguments of the learned counsel for the parties it would be relevant to refer to the prosecution case. It is averred that the complainant had come on the day of incident from Shahrak to Turbat to purchase grocery. At Turbat Bazar he met P.W.2 Muhammad Yaseen who is his nephew and Abdul Rahim his cousin. While going towards Noor Medical Centre near Education Office they were allegedly attacked by the appellants resulting in the death of the deceased. It has been admitted that his village is situated at 30 Kilometres from Turbat Bazar. He came to Turbat and met P.W.2 and deceased P.W.2 Yaseen is resident of village Heronk situated at 40 Kilometres from Turbat but he stated that he was residing in Turbat as he was studying in Degree College. It has come on record that on the day of incident the College was opened but he accompanied the deceased Abdul Rahim In Turbat Bazar at 9‑30 a.m. they met P.W.2 Muhammad Anwar. Though P.W.2 has stated that they had a dispute with appellant on a vehicle and land but he has not given the details of the same. The details of the motive as set up by the prosecution has been given by the appellant Waheed Akhtar n his statement under section 340(2), Cr.P.C. wherein he has deposed that the deceased along with P.Ws.1 and 2 attacked them for the reason that a few days prior to the incident vehicle of the brother of complainant namely, Muhammad Azeem was taken by the police for want of documents. It is further stated that Muhammad Azeem had suspected that the vehicle was impounded by the police on his complaint (appellant) and further stated that it was also alleged by Muhammad Azeem that he had stolen .the documents of the vehicle and it was at the instance of Muhammad Azeem, that the complainant party had attacked upon him on the day of incident. It was stated that appellant Waheed Akhtar was a Dispenser in Civil Hospital, Turbat and appellant Muhammad Hasil is a teacher and on the day of incident he had come to Turbat to receive his salary. Thus regarding the same incident the prosecution version is that while going towards Noor Medical Centre near Education Office P.W.1 Muhammad Yaseen and P.W.2 Muhammad Anwar and the deceased were attacked by the appellants. Whereas the appellants have pleaded self defence.

10. Mr. Muhammad Riaz Ahmed learned counsel for the appellants contended that the case as set up by the prosecution seems to be highly improbable. We are persuaded to agree with the contention of learned counsel for the appellants. It is pertinent to mention here that, P. W .2 had come from his village Shahrak to Turbat where he incidentally met the deceased Abdul Rahim and P. W. Muhammad Yaseen. P. W .1 Muhammad Yaseen admitted in cross- examination that he along with deceased set out for Turbat Bazar at 9‑30 a.m. without any purpose and while roaming in the Bazar they met P.W.2 Muhammad Anwar. There is nothing on record to show that the appellants had any plan to attack the complainant party. Record reveals that appellant Muhammad Hasil had come to Turbat on the day of incident to receive his salary. Admittedly the appellants and the complainant party do not live in the same place. It is shrouded in mystery as to how the appellants came to know that complainant party was roaming in Turbat Bazar. Thus it can be safely concluded that the appellants had not come prepared to the place of an incident nor it was premeditated to attack the complainant party. Both the prosecution witnesses seem to have withheld the actual truth and have not placed the entire facts before the Court as to what actually happened at the place of incident. It has also come on record that both the appellants have received injuries but the same remained unexplained by the prosecution though it has been stated by both the eye witnesses that they pelted stones at the appellants when they attacked upon them. It may be pointed out that appellant Waheed Akhtar had received two incised wounds though simple in nature but on vital part of his body, the same has not been explained by the prosecution witnesses. Thus the case as set up by the prosecution is very improbable. Adverting to the next contention of learned counsel for the appellant that the motive though set up by the prosecution has not been proved. The learned counsel argued that since it was alleged by the prosecution that the motive for the commission of offence was that appellants had dispute with the complainant party over a vehicle and land, which actuated the appellants to commit the offence, though the details of the motive have not come on record. The learned trial Court under section 342, Cr.P.C. has put a question that since the appellant had a dispute over a piece of land and a vehicle with deceased Abdur Rahim and Muhammad Anwar which was denied by the appellant. In question No.6 he stated that the prosecution deposed against him because at the instance of Azeem with whom he had a dispute over land and documents of vehicle and further stated that witnesses are related to Azeem and in his statement on oath under section 340(2), Cr.P.C. the appellant Waheed Akhtar explained that a vehicle belonging to Muhammad Azeem was impounded by the police authorities, he suspected that the same was impounded at his instance and stated that the documents were stolen by him. He further stated that there were some dispute going on between him and Azeem and has also stated that legal proceedings are also going on. It may be noted that it is well settled principle of law that if the prosecution version fails or is disbelieved then the defence version comes into the picture and further the statement of the appellants is to be taken into consideration not in isolation but in its entirety. In this regard reference may be made to the following cases:‑‑ (i) PLD 1995 SC 343 (Shabbir Ahmed v. The State), wherein the Hon'ble Supreme Court of Pakistan has observed as under:‑‑ "

5. From the aforestated observation it is clear that the learned Judges have not relied on any inculpatory part of the appellant's statement. The appellant had made the above quoted statement under section 342, Cr.P.C. which has its own import and significance. The object of section 342, Cr.P.C. is that the Court should draw the attention of the accused to the specific points in evidence upon which the prosecution relies to prove the case against him (accused) so that he may have the opportunity to give any explanation if he so desires. Section 342 also aims at bringing to the notice of the accused such points of evidence which are likely to influence the mind of the Court to draw adverse influence against him. The accused is thus given a chance, if he so desires, to offer his version or explain the circumstances appearing in evidence against him.

6. The statement of an accused has to be read in its entirety. It is to be accepted or rejected as a whole. It is not permissible to accept the inculpatory part to corroborate the prosecution evidence and reject the exculpatory passage. Where the accused makes a statement to have committed an offence but simultaneously raises plea constituting a defence, the Court will not rely on the inculpatory portion and reject the exculpatory one." (ii) PLD 2002 Lahore 262 (Bakhshish Illahi v. The State). The learned Division Bench of the Lahore High Court has affirmed the above stated view with the following observations:‑‑ "The prosecution has failed with respect to its version on the motive part of the case. Where the prosecution fails in its version, the defence story is then prominent in rescue of any accused. And when a statement under section 342, Cr.P.C. of an accused is inspiring helps in determining his role in a crime, this statement has to be taken as a whole. Reference in this connection may be made to the cases of (1) Ghulam Qadir v. Esab Khan and others (1991 SCMR 61) and (2) Shabbir Ahmed v. The State (PLD 1995 SC 343). This aspect did not receive the attention of the learned trial Court in the background of no previous enmity inter se the parties. Therefore, keeping this aspect of the case alive in our minds and the probabilities that may be there, we have then to determine the offence and the quantum of the punishment."

11. Now by placing into juxtaposition the prosecution and the defence version we proceed to adjudge the case of appellants. The appellant even at initial stages of the investigation has taken the plea of self defence. The Investigating Officer in his cross‑examination admitted that the appellants were first attacked by the complainant party. This aspect of the case is further supported from the motive set up by the prosecution as the prosecution case is that they had a dispute over a vehicle and land with appellants, but, as observed above had not given the details. Conversely the appellant Waheed Akhtar has elucidated the motive behind the offence. He stated that Muhammad Azeem who is relative of the deceased and both the P. Ws. Muhammad Yaseen and Muhammad Anwar had a dispute with him over a piece of land, and also stated that legal proceedings were also pending between them. This fact has not been denied by the prosecution and further Azeem had suspected that his vehicle was impounded by the police for want of legal documents at the instance of the appellant. The statements of the appellant inspires confidence to the extent of the motive wherein it can safely be concluded that in fact it was the complainant party who had a motive to attack the appellant as it flows from the prosecution evidence that all of them, the deceased alongwith P.Ws. met in Turbat Bazar and were present till the time of incident. It has further come on record that the purpose for Abdul Rahim and Muhammad Yaseen came to Turbat Bazar has been shrouded in mystery.

12. Yet another factor which supports the defence version is the statement of D.W.1 Hussain who stated that on the day of the incident the deceased and the P.Ws. asked him as to whether he had seen the appellants and further stated that they went towards Noor Medical Centre. Though he has not stated any thing further about the events and the appellants have not produced any evidence in their defence regarding the manner in which incident took place. It may be observed here that even in absence of any evidence the accused nevertheless was entitled to support his plea of right of defence from the circumstances coming to surface from the evidence of the prosecution itself. In this regard reference may be made to Ahmaa Khan v. Nazir Ahmed (1999 SCMR 803) wherein following observations were made by the Hon'ble Supreme Court:‑‑ " It is true that the accused even in the absence of any evidence of his own in his defence, is entitled to support his plea of right of self‑defence from the circumstances appearing from the prosecution evidence in view of the law laid down in Muhammad Yousaf v. The State (1994 SCMR 1733) and Shamshad v. The State (PLD 1963 SC 740). " As we nave already observed that the prosecution version is tainted inasmuch as the P.Ws. whose presence has been admitted by the appellants have also exaggerated the incident and their statement also being in conflict with the medical evidence loses its significance. It may be pointed out here that though the deceased received two incised wounds but P.W. Yaseen stated that Waheed Akhtar gave several knife blows repeatedly to deceased Abdul Rahim which statement is further in conflict with the medical evidence, Similarly P.W. Muhammad Anwar also did not give a proper account of injuries sustained by the deceased. The fact remains that both the appellants received injuries and the same have not been explained by the prosecution leads to the conclusion that the prosecution has withheld the true facts and the defence version on juxtaposition of the entire evidence appears to be inspiring.

14. Coming to the plea of self‑defence it may be pointed out that as to what actually happened at the place of incident remains a mystery, thus keeping into consideration the principle that if the prosecution version is discarded regarding the incident then only the defence version remains in the field as held in the afore‑cited case that in such circumstances the statement of the appellant has to be considered in its entirety. It may be observed that this aspect of the case was not considered by the learned Sessions Judge whereby the defence version has been rejected for the reason that Muhammad Yaseen in his statement stated that after being attacked they pelted stones. The learned Sessions Judge however, lost sight of the fact as to how the incised injuries were sustained by appellant Waheed Akhtar. Thus, for the safe dispen sation of criminal justice we are inclined to accept the defence version and accept their plea which has not been rebutted by the prosecution. Hence we hold that the deceased lost his life in exercise of self‑defence.

15. In view of the above discussion the appellants are acquitted of the charge, they be released forthwith if not required in any other case. N.H.Q./161/Q Appeal accepted.