1993 P Cr (PLP)

(3) A lacerated wound 5 c.m. x 1 c.m. x bone deep on right side and middle of scalp. 8 c.m. above root of nose; (4) A lacerated wound 2 c.m. x I c.m. x bone deep 10 c.m. above injury No.1 on right side of scalp. (5) One Y-shaped lacerated wound 7 c.m. x .5 c.m. bone deep on right side of scalp 5 c.m. above injury No.5. (6) A lacerated wound 5 c.m. x 1 c.m. bone deep over midline of scalp 1 c.m. medial to injury No.5. (7) A lacerated wound 3 c.m. x .5 c.m. bone deep on left side of skull adjacent to injury No.6. X-ray of skull advised for the above injuries. (8) A lacerated wound 4 c.m. x 4 c.m. bone deep on palmar surface of first and second phalynx of left little finger. Clinically fracture of first phalynx visible. X-ray advised. (9) Reddish blue contusion mark 20 c.m. x 3 c.m. on right side of back of chest. 1 c.m. below inferior ankle of scapula. (10) Reddish blue contusion mark 8 c.m. x 2 c.m. on back of right chest lateral and adjacent to injury No.9. (11) Reddish contusion on lower part of chest 7 c.m. below injury No.9 and 10 x 3 c.m. dimensions. (12) Reddish contusion mark 8 c.m. x 3 c.m. on antero-medial aspect of left leg 5 c.m. below knee. (13) Bluish contusion 10 c.m. x 2 c.m. on outer aspect of right thigh. (14) Reddish blue contusion mark on middle or right buttock. Injuries Nos.1 and 3 were declared dangerous to life. Injuries Nos.2, 4, 5, 6, 7 and 8 were kept under observation. All other injuries were simple in nature and caused with blunt weapons.

9. On the same day P.W.5 conducted autopsy on the dead body of the deceased and had found the above said injuries and had opined the cause of death was comma due to head injuries mentioned in external examination especially injuries Nos.l, 3 and

6. These injuries were ante-mortem and were sufficient to cause death in the ordinary course of nature individually as well as collectively.

10. P.W.5 had also medically examined appellants Rehmatullah and Sarwar on 7-5-1988 at 9 a.m. and had issued M.L.R. Exh.D.C. and Exh.D.D. respectively. Rehmatullah had received 8 injuries on his person by fire-arm which were simple in nature caused within duration of 2 to 6 hours. Muhammad Sarwar had received 3 injuries on his person. All with blunt weapon. Injury No.5 on the person of Rehmatullah appellant was an entry wound and injury No.7 on his person was its exit wound.

11. The appellants were arrested by P.W.4 Muhammad Ramzan Bhatti, Inspector on 15-5-1988 and Rehmatullah appellant had led to the recovery of Sota PS which was secured vide memo. Exh.P.D. Muhammad Sarwar had led to the recovery of Sota P.4 blood-stained which was secured vide memo. Exh.P.C. Muhammad Akbar and Muhammad Shafi had also led to the recovery of Kulharis P.6 and P.7. There is no report of Serologist in respect of Sotas P.4, P.5, P.6 and P.7. The learned trial Court had not believed the factum of recovery. All other P.Ws. are of formal nature.

12. The appellants when examined under section 342, Cr.P.C. had denied the prosecution evidence against them. The appellant Rehmatullah when examined under section 342, Cr.P.C. had stated that he alongwith Sarwar etc. had gone to beat Lal Khan deceased but in the circumstances as stated by him in his reply in answer to question why this case against him and why P.Ws. deposed against him. He replied that on the day of occurrence he alongwith Sarwar accused was going towards Haroonabad after attending the Qull ceremony of one Khushi Muhammad and when they reached near Square No.30, Lal Khan deceased alongwith Bashir Hussain P.W. was coming on a bullock-cart. Lai Khan deceased fired at him. When he was loading the gun for the second time he begged for mercy in order to save his life and that of Sarwar accused but he fired at him which hit him. Sarwar accused snatched the gun from Lal Khan. Bashir Hussain P.W. then caused injuries to Sarwar with his Sota which hit him on different parts of his body. He snatched the Sota from Bashir Hussain P.W. and caused injuries to Lal Khan deceased in self defence. The gun was later on produced before the police. P.Ws. were related to the deceased.

13. Muhammad Shafi (since dead), Akbar appellant and Sarwar appellant had owned and adopted statement of Rehmatullah appellant.

14. Rehmatullah since very beginning of the case took specific plea that he alongwith Sarwar appellant had caused injuries to the deceased in self-defence, on the day of occurrence he alongwith Sarwar was going towards Haroonabad after attending Qull ceremony of one Khushi Muhammad and when reached near Square No.30 the deceased alongwith Bashir Hussain P.W.6 was coming on bullock-cart. The deceased fired at him and when he was loading the gun for the second time Rehmatullah appellant begged for mercy in order to save his life and that of Sarwar appellant, but he fired at him which hit him. Sarwar appellant snatched the gun from the deceased. P.W.6 Bashir Hussain caused injury to Sarwar appellant with Sota which hit him on different parts of his body. Rehmatullah appellant snatched the Sota from Bashir Hussain P.W.6, and caused injuries in self-defence and the gun was later on produced before the police.

15. P.W.6 complainant the eye-witness is the real brother of the deceased whereas P.W.7, P.W.8 are also close relatives of the deceased. No independent P.W. has been produced by the prosecution to substantiate its case. There is no independent corroboration of statements of eye witnesses, who are interested witnesses and Court has to be at guard while relying upon their statements. P.W.6, P.W.7 and P.W.B had categorically stated that the accused had also caused injuries with Kulharis and Sotas on the deceased. Surprisingly no hatchet injury was found by the doctor P.W.5 who had medically examined the deceased in injured condition and also conducted autopsy on the dead body of the deceased. The ocular testimony furnished on record is not in consonance with the medical evidence furnished by the statement of P.W.5. The recovery aspect has not been believed by the trial Court and now this Court is left with the plea raised by the appellants. In case, the prosecution evidence is not believed and relied upon by the Court and the accused raises the plea of his self-defence or some other plea the Court has to believe or rely upon the statement of the accused in its totality. After rejection of evidence on record furnished by the statements of P.Ws. I am left with no option except to rely upon the statements of the appellants in its totality.

16. The deceased had received as many as 14 injuries caused with blunt weapon. Whereas Rehmatullah appellant had received 8 fire-arm injuries on p his person caused by the deceased. Muhammad Sarwar appellant had received 3 blunt weapon injuries on his person. The injuries on the person of Rehmatullah appellant were explained by P.W.6 in F.I.R. Exh.P.K. and as well as had been stated by P.W.7 and P.W.8 before the trial Court. Whereas injuries on the person of Sarwar appellant were suppressed by P.W.6 in F.I.R. Exh.P.K. and as well as P.W.7 and P.W.8 had not stated before the trial Court.

17. Co-accused Muhammad Tufail, Muhammad Anwar, and Manzoor Ahmad were acquitted by the dial Court and they were also found innocent and placed in column No.2 of the challan by the police.

18. No doubt the P.Ws. had made embroidery in their statements before the trial Court, Rehmatullah appellant had admitted the previous day occurrence which was the motive behind the occurrence as alleged by the prosecution and has further stated that he alongwith Sarwar appellant was going towards Haroonabad when the deceased alongwith Bashir Hussain P.W.6 was coming on bullock-cart. The deceased fired at him when he was loading the gun for the second time the appellant begged mercy in order to save his life and that of Sarwar. The appellant Sarwar had snatched the gun from the deceased. Thereafter, Bashir Hussain P.W.6 caused injuries to Sarwar appellant with Sota which hit him on different parts of the victim. The appellant had snatched Sota from P.W.6 and caused injuries. The gun was later on produced before the police. The Court has to see that if snatching of the gun was earlier than apprehension of the receipt of injury or injury which could result in the death was there or not. The gun had been snatched from the deceased by the appellant and the appellant Rehmatullah had earlier received fire shot at the hands of the deceased. Thereafter, P.W.6 caused injuries with Sota on different parts of the body of Sarwar appellant whereupon the appellant Rehmatullah snatched Sota from P.W.6 and caused injuries to the deceased in self-defence.

19. In the instant case persons from both sides were injured and both sides had come with different versions as to the occurrence and in these circumstances there must have been very strong corroboration from independent evidence on either side. Placing the case of the prosecution and the appellants in juxtaposition, I am of the view that the appellants had satisfactorily explained the plea raised by them and the same is also spelt out from the evidence on record and the circumstances appearing in the case. Appellant Rehmatullah had apprehension that if the injuries are not caused to the deceased as he had already received injury, he would meet his death at the hands of the deceased and P.W.6. Injuries were suffered by both parties. Prosecution evidence has already been disbelieved and Court is left with no option except to believe the statements of the appellants in totality.

21. Pursuant to the above discussion I am of considered view that the appellants had acted in exercise of their right of private defence of their person and had right to cause death of the deceased in the peculiar circumstances of the case. The appeal is allowed. The appellants are in jail. They shall be released forthwith if not required in any other case. N.H.Q./R-96/L Appeal allowed.