1985 M I (PLP)

This revision: petition is directed against the order dated 21-10-1981, delivered by the learned Additional Sessions Judge, Lahore, whereby the respondent was acquitted on a charge under section 302 P. P. C.

2. The respondent, aged 20 years, stood his trial for having caused the murder of Akbar Ali alias Kala aged 35 years.

3. The prosecution case, in brief, is as follows:-

4. The occurrence was reported on the same day at 10-55 a. m. by Shaukat Ali P.W.8, the real brother of the deceased, to Abdur Rashid S.I. P.W. 10, who recorded the statement of Shaukat Ali P.W.8 and sent the same for the formal registration of the case to the Police Station, where formal F.I.R. Exh. P.E/1 was drawn by F.C. Muhammad Yunis P.W.3.

5. The deceased received a single blow which was a stab wound clean cut 3 x T c.m. going deep transversely oblique 15 c.m. below the nipple on the right lower chest at 6.0' clock position. The injury was opined to be sufficient in the ordinary course of nature to cause death.

6. At the trial, the prosecution sought to establish its case by producing ocular testimony furnished by the eye-witnesses Meraj Din P.W. 6 and Shaukat Ali P.W.

8. In addition thereto, the prosecution further relied upon the evidence as to the motive and the recovery of blood-stained Rambi P.5 at the instance of the respondent.

7. On behalf of the defence; it was admitted by the respondent, to have caused injury to the deceased. The respondent stated that on the day of occurrence, he took a bicycle from one Rehmat. The deceased objected as to the return of the bicycle to Rehmat by the respondent since the deceased claimed the ownership of the Bicycle. According to the respondent, soon thereafter the deceased came to his shoe repair shop, and attacked the respondent and started beating him with a stick. According to the respondent the deceased being stronger than him, he was over powered by the deceased, and was thrown on the ground. The respondent thus apprehending death or grievous injury, in the exercise of the right of self-defence pitied up a Rambi P.5 and inflicted a single blow on the abdomen of the deceased. The respondent produced, defence evidence and brought on the record the application made by him seeking direction from a Magistrate to hold his identification parade. D.W.2, Ahlmand of the Court of the Magistrate appeared with record and produced the aforesaid 'application. The learned Magistrate had directed the S.H.O. concerned to arrange the identification parade. The S.H.O. Abdur Rashid P.W.10 moved an application for summoning the respondent from jail, but it was stated that the witnesses were not willing to join the identification parade. The respondent also produced Dr. Sabir Ali D.W.1, Superintendent Dispensary Mayo Hospital, Lahore, who stated that on 4-4-1981 at 11-30 a.m. he examined the respondent and found 17 injuries on his person.

8. I have examined the prosecution case in juxta-position with the defence plea, and I have come to the conclusion that the defence plea re-acts upon the prosecution case, and that the respondent had caused the death of Akbar Ali in. exercising of the right of self-defence.

9. The eye-witnesses, in this case, have tried to improve upon the prosecution case. Having suppressed the injuries received by the respondent, at the trial, It was sought to be explained that at the time of the occurrence Meraj Din P.W.6 had given some stick blows to the respondent. While offering such explanation, the statement of both the eye-witnesses are in consistent with each other because Shaukat Ali P.W.8 stated that many persons had gathered at the spot, and the respondent was injured by brick bats. The defence successfully demonstrated that, at the initial stage while making the F.I.R. and statement before the police no such explanation had been offered by these witnesses.

10. The eye-witnesses have also failed to offer plausible explanation of their presence at the time of occurrence and, therefore, in my view, they are chance witnesses. Meraj Din P.W.6, who is also a milk seller, as the deceased was claimed that he had to receive some money from the deceased, and thus the deceased took him along to recover some amount from a customer, to whom he used to supply the milk. Shaukat Ali P.W.8, is also a milk seller. I am not prepared to believe that both the witnesses would have accompanied the deceased as claimed by the prosecution. Had it been so, the deceased and the eye-witnesses, who were well built in physique, could not have allowed the respondent aged 20 years and a slim person to attack the deceased in the manner as unfolded by the prosecution at the trial. The conduct of the eye-witnesses in refusing to participate in the identification parade strengthens my view that they had not seen the occurrence. The defence plea, on the other hand, rings true, inasmuch as, the respondent at the very initial stage offered himself to be identified by the eye-witnesses.

11. The prosecution version is further unworthy of belief, because, allegedly, the occurrence took place at a place surrounded by shops, houses and as indicated in the site-plan, the witnesses are very closed to the deceased and the respondent. In these circumstances, I cannot believe the presence of the eye-witnesses, one of whom : real brother of the deceased. It was not difficult for them to over-ewer a young man like the respondent who had a weak physique.

12. The defence also led evidence to prove that the deceased was involved in number of criminal cases and had also been bound down under section 110, Cr.P.C.

13. The occurrence, in my view, did not take place at site which the prosecution wants this Court to believe, because, no blood-stained earth was recovered from the alleged scene of occurrence. I am, therefore, of the view that having been annoyed by the dispute about the bicycle, the deceased had proceeded, as aggressor, to the shop of the respondent and started beating him with stick. The respondent had received 17 injuries and had also been crown on the ground and therefore, he could have reasonable apprehended danger to his life and right of self-defence accrued to him.

14. It was argued before me that the respondent had exceeded in the exercise of right of self-defence by having caused the death of the deceased. I am afraid. I cannot agree with the contention of the learned counsel, bemuse, in such moments, as it was, one canny measure the force to be employed to exercise the right of self-defence in golden scales. The defence plea also finds strength from the recovery of Rambi P.5, at the instance of the respondent which was reported to have been stained with human blood.

15. I must mention here that the learned Additional Sessions Judge, after appraisal of the evidence, took a view which was n consonance with the established principles of law, therefore, I donot find any illegality, or such patent mistake which would result into the failure of justice. The learned counsel stressed that on the basis of the appraisal of the evidence contrary view can be formed. The contention of the learned counsel has no force, merely because, another view can be formed on the basis of the evidence has never been considered to be a legal and valid ground to interfere with the acquittal of the respondent.

16. The upshot of the above discussion is that there s no force in this revision petition which is hereby dismissed. H . A . K . Revision dismissed.