1983 P Cr (PLP)

KHIZAR HAYAT J.‑Muhammad Akram alias Akri son of Muhammad Nawaz, Caste Jammoon, aged 22 years, resident of Dhobi Mohallah, Arifwala, Tehsil Pakpattan, District Sahiwal has been tried and convicted under section 302, P. P. C. by the Additional Sessions Judge, VI, Sahiwal, for murder of Bagh Ali aged 30 years and sentenced to suffer death and a fine of Rs. 5,000 and in default to further undergo six months' R. I. The fine if realised was ordered to be paid to the heirs of the deceased. He filed this appeal against his conviction and sentence and proceedings of the case have also been sent to this Court under section 374, Cr. P. C. for confirmation of the sentence of death awarded to him.

2. The incident took place in Darbar Bazar of Mauza Kamir, Tehsil Pakpattan District Sahiwal at 6 p. m. on 2nd November, 1980, wherein Bagh Ali (deceased) allegedly was shot dead by .the appellant with a '12 bore pistol, P‑

7. The occurrence was reported vide statement Exh. P. C./1 at 8.30 p. m. the same day, to S.‑I. Sahib Dad (P. W. 15), who happened to be present at Moar Shareenwala at a distance of about 6 miles from the place of occurrence by Sakhi Muhammad (P. W. 12) which ‑was sent to Police Station Dera Rahim and on its basis formal F. I. R. Exh. P. C. was drawn up by Head Constable Ghulam Farid (P. W. 3).

3. The prosecution case as narrated by Sakhi Muhammad (p. W. 12) first informant is that on 2nd November, 1980, at 6 p. m. he alongwith his brother Bagh Ali deceased were returning from their coal‑kiln after day's labour on a bicycle being driven by the deceased and the informant sat behind him. When they reached near Liaqat Manzit, Darbar Bazar, the front wheel of the bicycle struck against Muhammad Akram alias Akri appellant a resident of Arifwala. The appellant, abused Bagh Ali, who in turn slapped him. At this the appellant allegedly took out 12 bore pistol P‑7 from the fold of his shalwar and fired at Bagh Ali hitting in his chest, abdomen, and left arm. As a result he fell dead at the spot. Sakhi Muhammad (P. W. 12) took the appellant in his 'grip. Muhammad Waryam (P. W. 1.3) and Ghulam Nabi (P. W. 14) witnessed the occurrence. They also helped Sakhi Muhammad P. W. in capturing the appellant. Muhammad Waryam P. W. snatched ‑12 bore pistol P‑7 from him. ‑ The informant stated in the F. I. R. that the appellant during the scuffle had suffered minor scratches. Leaving Bashir Ahmad and Hakim near the dead body, Sakhi Muhammad left for the‑ report which he lodged with S.‑I. Sahib Dad (P. W. 15):

4. Sub‑inspector Sahib Dad (P. W. 15) having recorded the statement Exh. P. C./1‑ of Sakhi Muhammad first informant, sent it through Aziz Akhtar, Constable (P. W. 4) at police station for formal registration of the case and himself proceeded to the spot. Reaching there he prepared injury statement Exh. P. J. and inquest report Exh. P. K. of the deceased and despatched the dead body‑ for post‑mortem examination under the escort of Nawaz Ali Shah Constable (P. W. 5). Muhammad Waryam (P. W. 13), produced before him .12 bore pistol P‑7 with live cartridges P. 8 and P. 9 and one empty P. 10 alleged to have been snatched from the appellant, which were seized, vide memo. Exh. P. CF. attested by Muhammad Sharif (P. W. 10) and Javed Iqbal (not produced) besides Muhammad Waryam (P. W. 13).

5. The Sub‑Inspector having learnt that the appellant was in Kamir hospital went there and arrested him the same night. Next morning (3rd November, 1980) Dr. Nazir Ahmad (P. W. 1) produced six live cartridges Exh. P. 11 to P.16 alleged to have been recovered from the person of the appellant during his medical examination which were secured, vide memo. Exh. P. E.,

6. The aforesaid pistol of the appellant and the empty were sent to Forensic Science Laboratory, Lahore, for comparison and a report of the expert Exh. P. O. was received in the positive. The blood‑stained earth removed from the spot was also found stained with human blood, vide Chemical Examiner's report Exh. P. M. and that of the Serologist Exh. P. N.

7. Dr. Muhammad Dawood Ahmad (P. W. 7), Medical Officer, District Headquarter Hospital, Sahiwal, conducted the post‑mortem examination on the dead body of Bagh Ali and noticed the following injuries. (i) Rounded firearm wound 1 cm. x 1 cm. x deep going with inverted and tatooed margins on the front and middle part of left chest, 6 cm. inner at below the left nipple of the chest. (ii) Firearm wound with inverted margin 1 cm. x 1 cm. x skin deep on the front and upper part of left abdomen. (iii) Firearm wound with inverted margin 2 cm. x 2 cm x skin deep on the front of left part of abdomen 1/4 cm over and above injury No. 2 (iv) Firearm wound 1 cm. x 1 cm. x deep going on the back upper part of left forearm. The margins were tatooed and inverted. (v) Firearm wound 1 cm. x 1 cm. x skin deep with inverted margins on the back and lower part of left forearm. (vi) Three fire‑arm wounds each 1 cm. x 1" cm. x deep going on the inner and lower part of left forearm. Margins were inverted. (vii) Two firearm wounds with inverted margins, each 1-1/2 cm. x 1 cm. x deep going on the front and lower part of left forearm. On dissection 5th and 6th ribs, pericardium and right ventricles were found punctured, through and through under injury No.

1. One pellet was removed from the left chest cavity. Left ulna was found fractured and a pellet was removed from underneath injury No.

4. Left radius bone was also found fractured and a metallic pellet was removed from underneath injury No.

6. Injury No. 7 was, the exit wound of injury No.

6. The death in the opinion of the doctor occurred due to haemorrhage and shock which was sufficient 1o cause death in the ordinary course of nature. He also opined that the injuries were ante‑mortem; duration between injuries and death was about 15 to 30 minutes; and between death and post‑mortem examina tion 17 hours.

8. The appellant was also examined medically. Dr. Nazir Ahmad (P. W. 1), Medical Officer, Kamir Dispensary found following injuries on his person : (1) An incised wound 1 x 1/4" x up to bone on the right side of head, 2 " front right ear, 4" from right eye‑brow. (2) An incised wound 3/4" x 1/8" x up to bone on the back of right side of head, 2" from injury No. 1. (3) An incised wound 1 " x 1/8" x up to hone on the back of head. (4) An incised wound 1 " x 1/8' x up to bone, 1/2" below from injury No. 3. (5) An incised wound 1" x 1/4" x up to bone on the back of head, 1 ' from injury No. 4. (6) An incised wound 1" x 1/4" x up to bone on the left side of head, 11;" from left ear, 4" from left eye‑brow. (7) An incised wound 1 " x 1 /4" x up to bone on the right side of nose right eye‑brow and right side of forehead. (8) An incised wound 1/2" x 1/8" x up to bone on the right side of fore head near the eye‑brow. (9) An incised wound 1/2" x1/8 up to bone on the back of left forearm. (10) An incised wound 1/2" x 1/8" x skin deep, 3 from injury No. 9. (11) An incised wound 1/4" x 1/8" x skin deep on the back of left fore‑arm near the wrist joint. (12) An incised wound 1" x 1/8" x skin deep on the dorsum of left hand. (13) An incised wound 3/4" x 1/8" x skin deep on the dorsum of left hand, 1/2 from injury No. 12. (14) An incised wound 1/4" x 1/8" x skin deep on the dorsum of left hand, "from injury No. 13. (15) An abrasion on .the dorsum of proximal phalanx of ring finger of left hand. (16) An abrasion 1 " x 1/8" on the right shoulder. Injuries No. 1, 2, 3, 4, 5, 6 and 7 were kept under observation and advised X‑Ray. The rest were found simple except injuries No. 15 and 16 and remaining were caused with sharp‑edged weapons. In his cross‑examina tion, the doctor stated that injuries No. 1 to 9 being on vital part could prove dangerous to life. He conceded that he wrote a letter Exh. D. A. to the police for getting the appellant X‑Rayed and through letter Exh. D. B., he referred him for treatment to District Headquarter Hospital, Sahiwal.

9. After completing the formal investigation, the challan against the appellant was put in Court for trial.

10. At the trial, the prosecution relied on the evidence of eye‑witnesses namely, Sakhi Muhammad (P. W. 12) first informant and brother of Bagh Ali deceased, Muhammad Waryam (P. W. 13) and Ghulam Nabi (p, W. 14); recovery of pistol and the report of the Forensic Science Laboratory Exh. P. O. showing that empty P. 10 matched with pistol P. 7 and the evidence of Dr. Muhammad Dawood Ahmad (P. W. 7), who proved that Bagh Ali died of violence.

10. The appellant when examined under section 342, Cr. P. C. admitted his participation in the occurrence but has raised plea of self defence saying that Sakhi Muhammad and Bagh Ali were riding a bicycle, the front wheel of which struck him. He abused them, whereupon Sakhi Muhammad and Bagh Ali attacked him with an iron bar and a bicycle pump and inflicted as many as 16 injuries on his person on account of which he fell on the ground. They continued attacking him while he lay on the ground. Apprehending danger to his life, in the exercise of right of self‑defence, he fired pistol at him. Had he not fired, he would have beets killed. However, he did not call any witness in defence.

11. We have heard the learned counsel for the appellant, as well as for the State and also with their assistance perused the record.

12. It would be seen that the occurrence is not denied by the appellant, nor did he dispute that the trouble arose when front wheel of the bicycle driven by the deceased had struck him in Darbar Bazar of Mauza Kamir and that he abused the deceased upon this. The only difference between the two versions is that according to the prosecution, Bagh Ali having been provoked by the abuses of the appellant slapped him and the latter in retaliation whipped out a pistol and fired at him. On the other hand, the appellant stated that he hurled abuses upon Bagh Ali, who along with his brother Sakhi Muhammad informant, assaulted him with iron bar and bicycle‑pump, threw him on the ground and it was at this stage that apprehending danger to his life, in order to save himself, he fired at them with a pistol.

13. The crucial point for determination in this case is that which of the two versions is believable. It is in evidence that the parties were not known to each other prior to the occurrence. The appellant belongs to Arifwala, whereas the complainant belongs to village Kamir. Almost all the witnesses have admitted that the occurrence took place in sudden heat of moment but they denied that Sakhi Muhammad P. W. and his brother Bagh Ali deceased had assaulted the appellant with an iron bar and the bicycle‑pump. They also denied that they themselves had caused any injury to the appellant. Contrary to this, the doctor noted as many as 16 injuries on the person of the appellant, which included 14 injuries caused with sharp‑edged weapon. Of them eight were in the head region and six on the left wrist and dorsum of the left hand. It is not the case of the prosecution that they were simulated by the appellant, rather the prosecu tion case is that the appellant was captured at the spot and some of the persons who collected at the spot took him to hospital, and, there was thus no occasion for him to suffer these injuries himself. The doctor, who examined him, stated that injuries of the appellant could have proved dangerous to life, yet Sakhi Muhammad P. W. brother of the deceased described them as "scratches" in the F. I. R. In his cross‑examination, he stated that he could not see as to how many injuries the accused (appellant) suffered. He further stated that the surface of the land of the place of occurrence was hard as it was a pacca road and the accused (appellant) might have suffered injuries by falling on the ground during the struggle. Muhammad Waryam P. W. when asked as to how the injuries on the persons of the appellant were caused, he replied that, he did not see who inflicted those injuries. However, he stated that the appellant had fallen on the ground. P. W. 14 Ghulam Nabi also stated that when Bagh Ali deceased slapped the appellant, the latter fell on the ground.

13. Be that as it may, there is no escape from the conclusion that the appellant could not suffer numerous incised wounds by falling on the ground therefore, his injuries remained unexplained which fact certainly recoils with full force on the prosecution case. We under stand that sometime an accused, who is caught at the spot, is given beating out of vengeance by the eye‑witnesses or the relatives of the victim rallied at the spot. We have carefully looked into the record if there was any credible explanation indicating that the appellant after his capture was given beating but we did not come across such material at all. Innumerable injuries of appellant suggest that he was the victim of aggres sion, and had fired as the last resort. It is noteworthy that Skills Muhammad (P. W. 12) and Nabi Bakhsh (P. W. 14) deposed that as a result of slap by the deceased, the appellant fell on the ground. We are of the view that the witnesses while admitting the fall of the appellant on the ground have attempted to minimise the manner of assault by the deceased. The appellant is young man of 22 years. It is not believable that he fell down by receiving a slap from the deceased. No mark of injury was found on his cheek either, therefore, we find that Bagh Ali deceased and his brother Sakhi Muhammad both would have assaulted the appellant with weapons as suggested by him and felled him on the ground having given many injuries, described by the doctor‑‑"could prove dangerous to life".

14. It may be said that with an iron bar or the bicycle pump, incised wounds cannot be caused. Since these articles were not seized by the police, therefore, we are not definite as to what type of those weapons were? May be, that one end of the bicycle pump was fixed with a flat iron piece, which is generally placed on the ground and is pressed under foot during the pumping process, had sharp‑edges capable of causing injuries like those found on the person of the appellant. 1n any case, it was for the prosecution to have explained those injuries specially when there is no allegation from their side that they were simulated by the appellant.-Ware, therefore, left in no manner of doubt that the appellant received the injuries during the occurrence and in the absence of any explanation by the prosecution, we find the defence version as reasonably probable. It is o permissible for a Court to draw inferences from the evidence on record and the ambient circumstances, without being hampered by half old story by either party.

15. From the discussion above, we are confident that the appellant reasonably apprehending that he would at least suffer grievous hurt at the hands of the deceased and his brother Sakhi Muhammad P. W., fired at E them with the pistol in exercise of right of private defence of his person and was so quite within his right to cause death of Bagh Ali and committed no offence.

16. There is yet another aspect about which we feel disposed to make a few comments. According to the prosecution, the occurrence took place at 6 p. m. Sakhi Muhammad informant reported the matter at Moar Shareenwala at a distance of 6 miles from village Kamir to Sahib Dad S.‑I. (P. W. 15) at 8‑00 p. m. The S.‑I. reached the spot at 8‑15 or 8:30p. m. as admitted by him at the trial. It is written in the "karwai police" at the end of the F. I. R. that Sahib Dad S.‑I. went to the scene in company of A. S.‑I. Muhammad Saleem besides other police officials. But amazingly the medico‑legal report of Muhammad Akram alias Akri appellant shows that he was got medically examined by Muhammad Saleem A. S.‑I. of Police Station, Dera Rahim at 6.30 p. m. It is not understood as to how Muhammad Saleem A. S.‑I. reached Kamir hospital at 6.30 p. m. whereas according to police "karwai police", he was present with S.‑I. Sahib Dad at Moar Shareenwala at 8.00 p. m. and left for the spot in his company. This indicates that Sahib Dad and Muhammad Saleem A. S.‑I. were present in village Kamir at 6.30 p. m. and they drafted the F. I. R. Exh. P. C./1 at the spot at 8.00 p. m. obviously after preliminary investigation. The fact of preparing F. I. R. at the spot has been clearly admitted by Sharif (P. W. 10) who stated that "the police recorded his statement when the case was registered on the spot and the pistol P. 7 was presented". In the circum stances, we hold that the F. I. R. in this case was also not a document prepared genuinely, rather it was prepared after investigation and deliberations. It is perhaps due to the advice by the police to the complainant party that the injuries of the appellant were, suppressed and an attempt was made to describe them in F. I. R. as "ordinary scratches". Hence he has not come to the court with clean hands, therefore, we reject the prosecution version.

17. The sum total of the above discussion is that the prosecution case being unworthy of any credit is rejected and the defence plea of the accused being reasonably true is accepted. Resultantly this appeal is allowed, conviction and sentence of the appellant is set aside and he is acquitted. Death sentence is NOT confirmed and the reference is rejected. M. Y. H Appeal accepted.