F L D 1979 Lahore 663 (PLP)

Muhammad Anwar appellant along with Abdur Rashid acquitted co‑accused was tried by Mr. Muhammad Aslam Sunara, Additional Sessions Judge, Babawal Nagar for the murder of one Muhammad Aslam, a bad character. The learned trial Court ' vide judgment dated the 27th November 1976, convicted the appellant under section 302 of Pakistan Penal Code for the aforesaid murder and passed the sentence of imprisonment for life and a fine of Rs.

500. Nothing has been ordered in consequence of default of payment of fine.

2. The occurrence took place at 12‑30 midnight, the 30th June and 1st July 1974 in front of the khokha of the appellant, situate in Fawara Chowk Mandi Chishtian within the area of Police Station Chishtian Town. P. W. 5 Muhammad Yaqub father of the deceased lodged F.1. R. Exh. P. A. at 1‑30 same night which was recorded by P. W. 9 Sardar Nabi Bakhah Dahar, Station 'House Officer, Chishtian. ' The, complainant Muhammad Yaqub at that very time bad produced knives Exhs. P. 1 and P. 2, allegedly belonging tr~. Abdur Rashid and the appellant respectively, which he had picked up, from the spot. The same were taken into possession vide memo. Exh. P. B. and P. C. respectively. These recovery memos. are attested by D. W. 2 Noor Muhammad, P. W. 6 Saood and P. W. 8 Muhammad Nawaz h<.Wes the In vasrigating Officer (P. W. 9), namely Sardar Bakhsh Dahar. Muhammad Yaqub complainant (the father of the deceased) also produced Muhammad Anwar appellant before the Investigating Officer (P. W. 9). He was alleged to have been caught at the spot. His blood‑stained shirt Exh. P. 3 was taken into possession vide memo.. Exh. P. D. Thereafter the Investigating Officer proceeded to the spot along with the complainant Muhammad Yaqub and the appellant. He completed the other formalities and despatched the dead body for post‑mortem.

3. The prosecution story succinctly stated is that Muhammad Aslam deceased along with Muhammad Yaqub complainant went to the khokha of the appellant for the purchase of cigarettes at about 12‑30 in the night when all of a sudden both the accused, raising the lalkara that the enemy had come, attacked with their knives. P. W. 6 Saood Arshad, P. W. 7 Muhammad Hanif and P. W. 8 Muhammad Nawaz were . attracted. to the scene of occurrence and they saw the incident. The other witness named in the first information report were Noor Muhammad, Mushtaq Ahmad and Bashir Ahmad all the three of the Razakar Force. The appellant was caught at the spot along with his knife and later produced before the Police. At the trial it was deposed that Muhammad Anwar appellant had previously been a driver of a tractor owned by Abdur Rashid accused, and they were thus fast friends. Dr. M. Arif Saeed (P. W. 1) performed autopsy , on the body of Muhammad Aslam deceased. He found nine injuries on the person of the deceased, which are reproduced below " (1) A stab wound on left side of abdomen, 3" above and left to to umblicus size 3/4' x 1/2 (2) A stab wound on left side of chest 21" below and right to left nipple, size 3/4' 1/2 (3) A stab wound on anterior side of right chest, 31" above ‑ right nipple, size 3/4' 1/2". (4) A stab wound on right side of chest 3" below right nipple, size 3/4.1/2 (5) A stab wound on latteral side of chest on right side, 3j' below and latteral to right nipple, size 3/4" 1/2 (6) A stab wound on right side of neck, 1" above mid of clavical, size 3/4' (7) A stab wound on right side of abdomen 3J" above umblicus, size 3/4" (8) An incised wound on right armpet anteriorly, 3/4" x (9) An incised wound on back of left forearm, J" x 1" x Since the appellant admits the occurrence and he has raised a plea of defence of person as well as one of grave and a sudden' provocation, the medical evidence is not of much consequence.

4. Noor Muhammad, Mushtaq Ahmad and Bashir Ahmad, the three witnesses from Razakar Force were given up as having been won over. Out of these witnesses Noor Muhammad appeared in defpnce as witness No.

2. He eliminated the presence of Muhammad Yaqub complainant, Saood and Muhammad Hanif P. Ws. at the time of occurrence and also supported the fact that Abdur Rashid accused was innocent. Needless to mention here that P. W. 9 (Investigating Officer) admitted in‑ cross‑examination that during the investigation he found Abdul Rashid accused as innocent. His acquittal by the learned trial Court has not been challenged by the State or the complainant by way of appeal or revision.

5. From the admissions of the witnesses, it appears that not only the complainant was a registered bad character but that all the witnesses appear to be the members of a gang of bad characters. Muhammad Yaqub complainant admitted in cross-examination : "It is correct that I was challaned under Goondas Act but .I was acquitted. - I cannot say whether Molvi Shah Muhammad was also challaned under the Goondas Act. I was bailed out on the day next to the day of arrest." P. W. 7 Muhammad Hanif admitted : "It is correct that I was arrested in a case under section 307 along with Muhammad Nawaz and some others. It is correct that I remained in Jail for 8/9 months. It is incorrect that the Supreme Court ;ejected my bail prior . . . . . It is correct that Aslam served. as my Driver. I have heard my statement recorded in case of State v. Muhammad Yaqub regarding the murder of Ashraf allay Gopi who was brother of Aslam deceased recorded on 12-2-1975 and I admit it to be correct . . . . . It is correct that my father Molvi Shah Muhammad had come yesterday in the civil Court premises but he returned immediately." P. W. 8 Muhammad Nawaz admitted : "It is, correct that I was challaned under section 392, P. P. C. and was convicted by the trial Court. It is correct that I was involved in a case under section 307, P. P. C. in which Hanif P. W. was also accused. For 8/9 months I remained in jail. I had stated before the Police about the talk of Anwar at his khokha which I was to convey to the deceased." P. W. 9 Sardar Nabi Bakhsh Dahar (Investigating Officer) had admitted in cross-examination the following antecedents of the complainant party "It is correct that Molvi Shah Muhammad does not enjoy good reputation and his record is maintained in the Police Station. I challaned the said Shah Muhammad under section 392, P. P. C. There were 10/15 cases registered against Shah Muhammad under sections 492, 409 and 420, P. P. C. Hanif P. W. was declared by the Police as a tout. It is correct that his name is borne out in the list of touts. It is correct that Muhammad Yaqub complainant had close relations with Molvi Shah Muhammad. I cannot say whether Muhammad Yaqub P. W. was prosecuted under the Goondas Act. I cannot say without record before me that Malik Muhammad Nawaz has got any record in the police station. It is correct that Muhammad Nawaz P. W. was coming with the complainant party throughout the investigation as their helper." In this view of the matter, after considering the evidence on record and the admissions of the witnesses. themselves, the under-quoted conclusions recorded by the learned trial Court in paragraph' 6 are fully justified "I am loathe to believe and act upon the testimonies of these P. Ws. for three reasons, namely (1) That these P. Ws. did not come with high and sound antecedents and above board character (2) That they involved falsely Rashid accused who according to my findings was not there at the time of commission of offence ; and (3) Because the story told by them does not attract much credit and their appearance on the scene of occurrence appears to be just conjecturous. I hold that the depositions of these P. Ws. do not inspire confidence." The recovery has also been disbelieved by the learned trial Court in paragraph 5 of its judgment.

6. The statement of the appellant recorded under section 342 of Pakistan Penal Code has been believed by the learned trial Court, which reads as. follows : "Aslam deceased was known bad character and a drunkard. He used to collect Jagga Tax and obtain articles without paying their price. I was fed up with his habits and I bad reported the matter verbally to the Police and Molvi Shah Muhammad who did not render me any help. On the night of occurrence, he came to my khokha in the company of his friend Muhammad Khan Niazi. Both of them were intoxicated and had a dialogue with me. Aslam told me that he would not again realize tax from me and he wanted to be my good friend in case I could give him the hand of my sister. This utterance incited me and I lost my self-control and directed him to leave my khokha. He attacked me with a knife, I was escaped. The knife entangled in the chhujja and fell down. Because of intoxication Aslam also fell down. I picked up his knife and injured him. At that time Muhammad Khan Niazi fled away. At that time Hanif, Saood and Yaqoob P. Ws. were not there at all. After 1/2 hour Noor Muhammad, Mushtaq and Bashir Qaumi Razakars came there at the time of occurrence, passengers of G. T. Bus." The learned trial Court believed the statement of the appellant while recording the conviction under section 302 of Pakistan Penal Code.

7. Finding myself in agreement with the learned trial Court in disbelieving. the eye-witnesses as well as the recovery evidence, we are left A only with the statement of the appellant. In such a situation the settled law is that it has to be accepted or rejected as a whole Nawab v. The Crown 1969 S C M R. 855 and Rahim Bakhsh v. The Crown P L D 1952 F C

1. The learned trial Court has accepted the version of the appellant but has fallen in error by neither appreciating nor analysing properly the statement made by the appellant. The appellant has raised a specific plea of self-defence as well as that of grave and sudden provocation. The circumstances support both his pleas. The deceased is proved to be a badmash. The time of occurrence is mid-night. The place of occurrence is the khokha of the appellant. Therefore, the statement of the appellant that the deceased used to collect jagga tax and get things without making payment, looks very probable and any shopkeeper or for that matter any one would get fed up and as stated by the appellant report to the Police. It is unfortunate, that Police seldom comes to the rescue of law-abiding citizens in such situations. The plea of the appellant is that the deceased accompanied by another gangman came to his khokha, under the influence of liquor and demanded the hand of - his sister and said that he would no longer realise jagga tax in that case; and when the appellant asked the deceased to leave his khokha he whipped out a knife. The blow was warded off. The knife got entangled in the chhujja. The deceased under the influence of liquor fell down and the appellant picked up the knife and caused him injuries. In this situation, as far as the right of defence of person is concerned, I am of the view that it finished on the disarming of the deceased and by inflicting the inquiries thereafter the appellant has exceeded the right of self-defence, but as far as grave and sudden provocation is concerned, it was certainly there. The remark of the deceased for the hand of the B appellant's sister has to be considered in the context of the situation in which the appellant was placed and in reference to the innuendo involved,] and not in terms of a gentleman requesting for the hand of one's sister in a respectable manner. A badmash making such an utterance under the influence of liquor has a very obnoxious meaning, and I am of the view that C this would have offered certainly a very grave and sudden provocation to the appellant, and he was quite justified in reacting to the situation in the manner in which he claims to have reacted. Had he inflicted only a blow or two, I would have awarded a very light sentence in the particular circumstances of this case. I am of the view that in the prevalent state of affairs the Courts ought to be sympathetically disposed towards gentlemen who are forced by the circumstances to defend their person or honour D from the outrages of goondas, even if one has not strictly confirmed to the limitations laid by the law. The appellant has inflicted as many as six injuries, therefore, taking into consideration that he is in jail since 1974, five years' rigorous imprisonment will be expedient in the interest of justice. I will not pass any sentence of fine or any order of compensation as, in my E opinion, that will tantamount to adding premium to the outrages of a goonda. The result is that I set aside the conviction of the appellant recorded under section 302 of the Pakistan Penal Code, and alter the same to one under section 304, Part I of the Pakistan Penal Code, and sentence him to rigorous imprisonment for a period of five years. Appeal partly allowed. S. A. H. Appeal partly allowed