1988 PLP 429 (MLD)

2. Two other accused persons namely Ahmad Khan s/o Muhammad Khan and Mumtaz were also tried with the appellants. They were acquitted.

3. The appellants Nawaz, Ahmad Khan are sons of Nawab, Mumtaz accused was their real brother and Ahmad Khan s/o Muhammad Khan accused was husband of Mst. Kaneez a real sister of the appellants and Mumtaz accused.

4. In an incident which occurred at about 2 p.m. on 30‑9‑1978 in the area of village Dauka Balochan two persons from the side of complainant party namely Ghulam Haider deceased and Khan alias Pir Ali P.W. (given up) a relative of Ghulam Haider deceased and three of the accused persons namely the appellants.....and Ahmad Khan s/o Muhammad Khan accused were injured. Ghulam Haider deceased was removed to the Hospital where he died on 3‑10‑1978 at 4.30 A.M. He was medically examined by Dr. Ghulam Mustafa P.W.1 on 30‑9‑1978 and was found to have 5 injuries on his person. They were (1) a lacerated wound 5 c.m. x 1.5 c.m. x scalp deep on the back of head, (2) a lacerated wound 4 c.m. x 1 c.m. x scalp deep on the left side of the head, 8 c.m. above the right eye‑brow, (3) contused swelling 5 c.m. x 6 c.m. on the left side of head, 5 c.m. above the left ear, (4) a contusion mark 10 c.m. x 1 c.m. on the back of the left side of chest and (5) multiple abrasions in an area of 9 c.m. x 8 c.m. on the back of right elbow joint. They were caused by blunt weapons. In the opinion of the doctor, death was due to shock and internal haemorrhage of the brain caused by injury Nos. 2 and 3 which were sufficient in the ordinary course of nature to cause death. Khan alias Pir Ali P.W. was found to have three simple blunt weapon injuries on his person. Ahmad Khan s/o Muhammad Khan accused had one incised wound 21 c.m. x 6 c.m. x muscle deep on the outer side of right arm. It had been caused by a sharp‑edged weapon. It had caused partial paralysis of the muscles and was declared grievous. Ahmad Khan son of Nawab appellant had one injury namely a lacerated wound 7 c.m. x 1 c.m. x muscle deep on the top of head. It was simple and had been caused with blunt weapon. Nawaz accused had three injuries on his person namely an incised wound 7 c.m. x 6 c.m. x scalp deep cutting the pinna of the right ear completely leaving behind a tag of skin; an abrasion on the right side of neck and a lacerated wound 3 c.m. x 5 c.m. x scalp deep on the right side of head 7 c.m. above right ear. While the first injury was caused by sharp‑edged weapon, the other two were blunt weapon injuries. Injury No. 1 was declared grievous. 4‑A. The first information of the incident was laid before the police by Ahmad ' Khan s/o Muhammad Khan accused on 1‑10‑1978. On the basis of that information, a case under section 326 read with section 34 of the P.P.C. was registered against Manzoor, Khan and Khan alias Pir Ali who were cited as eye?witnesses in this case and of whom Manzoor appeared at the trial as P.W. 8 and Khan as P.W.9. It is in evidence that during the investigation of that case, a Berchhi was recovered from Manzoor P.W., a hatchet was recovered from Khan P.W. and a Sota was recovered from Khan alias Pir Ali P.W. It was after the death of Ghulam Haider deceased that Manzoor P.W. appeared before Muhammad Hayat S.I. at 5.30 A.M. on 3‑10‑1978 and gave his version of the incident. It was as follow.

5. A few days before the incident, the accused persons suspected that Ghulam Haider deceased had disgraced the wife of Ahmad Khan s/o Muhammad Khan accused. Ghulam Haider deceased had assured them that he had done no such thing yet the accused persons had threatened to deal with him. On 30‑9‑1978 Mst. Manzooran, a sister of Ghulam Haider deceased was returning to the deceased's house when Nawaz and Ahmad s/o Muhammad Khan accused removed her chaddar. Mst. Manzooran ran towards her house raising an alarm. Ghulam Haider deceased reached and the accused persons who were armed with Dangs attacked him. Nawaz gave a Dang blow on his head, Ahmad son of Nawab also gave a Dang blow on his head and Ahmad Khan s/o Muhammad Khan also hit him with his Dang on the back of his head. Mumtaz accused gave a Dang blow on his shoulder. Ghulam Haider fell down. In the meantime Khan alias Pir Ali P.W. reached and he was given Dang blows by Mumtaz, Nawaz and Ahmad s/o Nawab. Varyam Khan and Muhammad Khan also saw the occurrence taking place. The accused persons then ran away towards their houses.

6. In support of its case, the prosecution examined 10 witnesses including Dr. Ghulam Mustafa who had medically examined the deceased and then performed autopsy on his dead body, and had also medically examined Khan alias Pir Ali P.W. and the above‑mentioned accused persons. The eye‑witnesses account of the occurrence was given by Mst. Manzooran (P.W.7), Manzoor P.W.8 and Khan (P.W.9). Manzoor and Khan P.Ws were real brothers, and Mst. Manzooran was a sister, of Ghulam Haider deceased.

7. The appellant and their co‑accused denied that they had the alleged motive or that they had outraged the modesty of Mst. Manzooran P.W. Mumtaz accused did not admit his participation in the occurrence. The appellants and their co‑accused Ahmad Khan s/o Muhammad Khan admitted that they had sustained injuries during the course of the incident. According to them Khan alias Pir Ali, Khan, Manzoor P.Ws and Ghulam Haider deceased had caused them injuries. According to them, the incident occurred in the following manner. On 30‑9‑1978 at Peshiwela Ghulam Haider deceased's cattle trespassed into the gawara and cotton crop of Ahmad Khan s/o Muhammad Khan accused. The latter drove away the cattle. At that time Mst. Manzooran P.W. appeared and abused him. Ahmad Khan s/o Muhammad Khan accused returned the abuses. She went to her house and complained to the deceased. Ghulam Haider deceased, Manzoor Khan P.W. armed with hatchets, Khan and Khan alias Pir Ali P.Ws. armed with Sotas and Berchhi respectively reached and attacked them and caused them injuries with their weapons. The appellants caused them injuries in self‑defence.

8. The learned trial Judge found that Mst. Manzooran was a married woman yet she was, during the days of occurrence, living with her deceased brother Ghulam Haider at Chah Jooray‑wala. The occurrence had occurred at a distance of 24 Karams from the house of the deceased. In his view, therefore, the occurrence had taken place not in the gawara field of the accused persons but at the place alleged by the prosecution, which was at a distance of 25 Karams from the house of the deceased. It was, so observed the learned Sessions Judge, common ground between the prosecution and the defence that Mst. Manzooran was present at the time of the occurrence. In his view it looked more probable "that the accused persons in the background of motive outraged the modesty of Mst. Manzooran and this was the immediate cause of occurrence." On this premises, the learned Sessions Judge went on to hold that the accused persons had removed Chaddar of Mst. Manzooran P.W. and Khan alias Pir Ali P.W. and the deceased had rushed to the spot. The deceased according to the learned Sessions Judge was armed with a hatchet. He and Khan alias Fir Ali P.W. were bad characters; against the deceased seven cases under the Arms Ordinance were pending and "such persons would not have gone to the spot without any weapon especially when they knew that the accused persons had outraged the modesty of Mst. Manzooran P.W." This led the learned Sessions Judge to the conclusion that "the deceased and his companions attacked the accused persons when the latter outraged the modesty of Mst. Manzooran P.W. In the circumstances, the accused persons would have caused injuries to the deceased and his companions in self‑defence:' In the view of the learned Sessions Judge, though the accused persons also sustained injuries on the vital parts of their bodies and they had the right to cause injuries in self‑defence yet they had not the right to cause the death of Ghulam Haider deceased. In this connection, the learned Sessions Judge referred to sections 100 and 101 of the P.P.C. and observed that the accused persons "committed the mischief and provoked the deceased and his brothers. The former had, therefore, not the right to cause death of Ghulam Haider deceased. They exceeded their right in good faith and without premeditation of death and without any intention to do more harm than was necessary. These three conditions concurring the case falls under Exception 11 to Section 300 P.P.C."

9. In acquitting Ahmad Khan appellant of the charge under section 354 P.P.C. the learned Sessions Judge referred to the statement of Mst. Manzooran P.W. before the Police, where she had said that it was Nawaz and Ahmad Khan s/o Muhammad Khan accused who had removed her Chaddar and her statement at the trial where she had said that her Chaddar was removed by Nawaz and Ahmad Khan appellants. The Chaddar was later recovered from Nawaz appellant, it being the prosecution case that while leaving the place of occurrence he had taken it away. This, in the view of the learned Sessions Judge, was an additional circumstance against Nawaz appellant in so far as the offence under section 354 P.P.C. was concerned.

10. Now according to the F.I.R, all that was said about the motive part of the prosecution story was that the accused persons suspected that the deceased had disgraced the wife of Ahmad Khan s/o Muhammad Khan accused. This part of the prosecution story was materially improved upon at the trial; it was said that some 15 days before this occurrence, the accused persons suspected that during the night Ghulam Haider deceased had attempted to remove the ear‑rings of Mst. Kaneez wife of Ahmad Khan s/o Muhammad Khan accused and sister of the remaining accused persons. No explanation was given why this fact was not stated in the F.I.R. It appears clearly from what was said in the F.I.R. that it was a theft of which the deceased Ghulam Haider was suspected. The facts as stated in the F.I.R. were in my view incapable of giving rise to an inference that the modesty of Mst. Kaneez had been outraged. There was then the very significant fact that the incident was not reported by the complainant party till as late as 3‑10‑1978 and that too after Ghulam Haider had died in the Hospital. This must give rise to a number of inferences one of them being that this time was utilized to concocting a story. As stated above, the first information of the incident was lodged by the police by Muhammad Khan s/o Ahmad Khan accused on 1‑10‑1978 and that was the version of the incident as given at the trial by the accused persons. There was then the very significant fact that not even an oblique reference of the injuries sustained by the three of the accused persons was made in the F.I.R., though that was lodged on the third day of the incident. As was rightly observed by the learned Sessions Judge, the accused persons had suffered injuries on vital parts of their persons; Ahmad Khan s/o Muhammad Khan accused had suffered an injury on his right arm 21 c.m. x 6 c.m. resulting in partial paralysis, Ahmad Khan appellant had suffered a head injury 7 c.m. x 1 c.m. and Nawaz appellant had suffered three injuries and one of them had resulted in the cutting of the pinna of the right ear completely leaving behind a tag of skin only. Nawaz appellant, it is also worthy of note, had remained admitted m the hospital till 12‑10‑1982. In these circumstances, I am of the view that the ‑‑prosecution had not succeeded in proving the motive part of its case and the inevitable result should therefore be that it must be held that the incident had occurred in the manner as stated by the accused persons. The recovery of Chaddar P.7 of Mst: Manzooran from Nawaz appellant must also in my view make demand on one's sense of credulity. It is hard to believe that after such a fight and after having been injured so seriously, Nawaz appellant would have thought of taking away the Chaddar of Mst. Manzooran, as if it was a souvenir, with him. Mst. Manzooran P.W. admitted that she had seen the Chaddar with the police three days after the occurrence but according to the prosecution, it was recovered from Nawaz appellant on 13‑10‑1978. I am, therefore, of the view that while the learned Sessions Judge was right in his finding that the appellants had acted in the exercise of their right of self‑defence yet the proved facts of the case are incapable of sustaining the finding that the appellants had "committed the mischief and provoked the deceased and his brother.

11. In the result, the appeal is accepted, the conviction and sentence of the appellants are set aside and they are acquitted. They shall stand discharged of their bail bonds. M.Y.H./A‑494/L????????????????????????????????????????????????????????????????????????????????? Appeal allowed.