P L D 1997 Lahore 110 (PLP)

This criminal appeal calls into question the legality and propriety of the impugned judgment dated 26-1U-1-92 passed by the Additional Sessions Judge, Bhalwal, District Sargodha, whereby he convicted Ahmad Yar and Manzoor appellants under section 303(a), P.P.C. and sentenced them to 25 nears' R.l each. Benefit of the provisions of section 282-B, Cr.P.C. was also awarded to them, while rest of their co-accused were acquitted of the charges. Naztra complainant has filed Criminal Revision No.725 of 1992 and Criminal Revision No.96 of 1992 for enhancement of the sentence of the appellants and against hoe acquittal of their co-accused, respectively. The criminal appeal as well as tile criminal revision petitions, are being disposed of by this single judgment.

2. The brief facts of the prosecution story as disclosed in the F.I.R. Exh.PA are that on 6-7-1991 at 1-00 p.m Nazira complainant and Muhammad Azam deceased drove their cattle to Kirana canal within the area of village Mateela to take water to them. They both were present at the bank of canal when a blue coloured car stopped on the eastern bank of the canal opposite to the complainant and the deceased. Ahmad Yar accused armed with a double-barrel gun, Manzoor accused armed with a single-barrel gun, Muhammad Afzal acquitted accused carrying a rifle, Nawaz and Bashir acquitted accused armed with Sotas alighted from the car. Ahmad Yar accused shouted ' Lalkara' that Muhammad Azam deceased would be given the taste for insulting him and then fired hitting Muhammad Azam deceased on his neck and face. Manzoor accused fared at the deceased hitting him on the left side of the ribs. On receipt of these injuries the deceased fell down. Muhammad Afzal acquitted accused fired ineffective shots with his rifle. Subsequently to this, Ahmad Yar, Mzoor artc Muhammad Afzal accused made indiscriminate firing but no One was hit. In defence of person, the complainant fired at the accused with his licensed gun but no one was hit. On hue and cry P. Ws. Manzoor and Muhammad who were present nearby attracted to the spot and witnessed the occurrence. On seeing the P.Ws. and other people, the accused left away in their car towards their own Dera. The complainant and the P. Ws went near the deceased and found him dead.

3. Motive for the occurrence was stated to be that Muhammad Afzaj acquitted accused intended to marry with Mst. Asmat Bibi sister's daughter of the complainant but due to hostile attitude of the complainant the acquitted accused could not marry Mst. Asmat Bibi. Due to the abovesaid dispute, Muhammad Afzal and Ahmad Yar accused had beaten up the complainant about 1-1/2 months prior to the occurrence in question and to avenge that beating Muhammad Azam deceased slapped Ahmad Yar accused 20 days before the occurrence.

4. Two days before the occurrence in the evening Shera and Iqbal P.Ws came to the Dera of the complainant and the deceased and told them that on the same day in the morning Allah Yar, Ata Muhammad and Dosa accused persons instigated their co-accused to kill the deceased.

5. At the start of the trial, Ahmad Yar, Manzoor Ahmad, Bashir, Muhammad Nawaz and Muhammad Afzal accused persons were charged under section 148, P.P.C. for having formed an unlawful assembly resulting in violence, under section 302/149, P.P.C. for having murdered Muhammad ALam deceased in prosecution of the common object of that unlawful assembly arid under section 324/149, P.P.C. for leaving made murderous assault on Nazira 'complainant in prosecution of the common object of that unlawful assembly. Allah Yar, Ata Muhammad and Dos an acquitted accused were charged under section 302, P.P.C. read with section 109, P.P.C. for having abetted and instigated their co-accused to kill Muhammad Azam deceased. The accused persons denied the charge and claimed to be tried.

6. At the trial the prosecution examined as many as 11 witnesses. Manzoor Ahmad, Shera, Khawaja, Allah Yar and Shamsher Ali, Constable P.Ws. were given up as unnecessary. Nazir, P.W.l and the complainant and Muhammad P.W.2 furnished the ocular account of the occurrence. They reiterated what the complainant had stated in the F.I.R. and also deposed about the motive. Iqbal P.W.3, supported the charge of abetment. Muhammad Nawaz P.W.4, identified the dead body before the doctor. Muhammad Yousaf P. W.5 witnessed the recovery of gun P.1 of Manzoor accused. The remaining recoveries were attested by Muhammad Inayat P.W.6. Doctor Amjad Iqbal P.W.7 made autopsy on the dead body. Muhammad Ashraf, Revenue Patwari P.W.8, prepared the site plans Exhs.PH and PH/1. Constable Sikandar Zulqamain P.W.9, got post-mortemed the dead body and attested the recovery memo. Exh.PI in respect of last worn clothes of the deceased. He also transmitted a sealed parcel of earth from the police station to the office of the Chemical Examiner, Lahore. Muhammad Mumtaz Head Constable P.W.10, kept the said sealed parcel in his custody for some time. Faiz Muhammad, Inspector P.W.11, investigated the case. On 6-7-1991 at 4-30 p.m. Doctor Amjad Iqbal P.W.7, conducted post mortem examination on the dead body of Muhammad Azam deceased and found the following injuries:-- (i) A wound of entry with inverted margins 1-1/4 x 3/4 c.m., going in, on the right side of nose 1 c.m. below the inner angle of right eye. The margins of the wounds were showing darkening. (ii) A wound of entry with inverted margins 1-1/4 x 3/4 c.m. going in on front and base of left side of neck 1-1/2 cm above the medial end of left clavical. Darkening was present on the margins of the wound. (iii) A wound of entry with inverted margins 1-1/4 c.m. x 3/4 c.m. going in, on the front to lateral aspect of the left lower chest. (iv) Buldged area 2 c.m. on the posterio lateral aspect of right chest in lower limit of middle 1/3rd of right chest. (v) Buldged area 1-1/2 c.m. 1-3/4 c.m. on the lumber region of the back 3-1/2 c.m. x on the left side of midline at the level of 4th lumber vertabrae. On dissection under injury No.1 the pellet entered through this injury and penetrated through skin, maxillary bone of right side, ethomoid bone and base of skull and stopped in the lateral side of foremen magnum. The pellet entered through injury No.2, passed from skin to muscles and soft tissues of neck with the angle from left to right and backward and theft crossed oesophagus obliquely from above to downwards and entered the right lung from the lower portion of above lobe and left it from the lateral and lower portion of middle lobe and then passed through the 8th inter costal space and stopped under injury No.4 from where the pellet was recovered. The pellet entered through skin from injury No.3 and damaged 10th rib without fracturing it and crossed the colon from above downwards and backwards and then stopped under the skin near injury No.5 from where the pellet was recovered. The doctor found ten ounces of semi-digested food in the stomach. Small intestines were healthy while large intestines had been damaged. Bladder was empty. In the opinion of the doctor death was occurred due to accumulative effect of all the three injuries, which was sufficient to cause death in the ordinary course of nature. These were ante-mortem and were caused with a gun. Probable time that elapsed between the injuries and death was immediate while that between death and post-mortem examination was within five hours. The doctor certified under his report Exh.PG that the deceased suffered death by violence.

8. Faiz Muhammad Inspector P.W.11, drafted the F. I. R. Exh.PA on the statement of Nazira complainant P.W.1 at 2-30 p.m. on 6-7-1991 and then reached the spot. He prepared injury statement Exh.PJ and inquest report Exh.PK about the deceased and dispatched the dead body to the mortuary through Constable Zulqarnain. Thereafter, he collected blood-stained earth from the spot and made it into a sealed parcel under memo. Exh.PB. He had examined the P.W. under section 161, Cr.P.C. and also took into possession last worn clothes of the deceased after post-mortem examination vide memo. Exh.PI. Ahmad Yar, Manzoor Ahmad and Bashir accused were arrested in this case on 25-7-1991. Muhammad Nawaz accused was apprehended on 1-8-1991. While in police custody, Ahmad Yar accused got recovered blue coloured car No.204/MIA from his Dera which was taken into possession under memo. Exh.PD. He also led to the .recovery of his licensed gun P.3 which was secured vide memo. Exh.PF. Manzoor Ahmed accused got recovered gun .12 bore P.1 from his Dera which was taken into possession through memo. Exh.PC. Bashir accused produced Sota P.2 and the same secured under memo. Exh.PE. After completion of the investigation, all the accused were challaned to Court. 9 When examined under section 342, Cr.P.C. all the accused persons denied the charge once again and rebutted each piece of prosecution put to them. In an answer to a question as to why this case against him, Ahmad Yar accused replied as follows: "On the day of occurrence, I alongwith Manzoor and Bashtr accused was going to Qazi Hakim of village Miaraa Chah to get medicines and when we reached near village Mateela the tyre of our car was punctured and we went to village Mateela to get the tyre repaired, that after getting the tyre repaired, we proceeded to village Miana Chah, ot)tained medicines from the said Hakim and returned, that when we reached near bridge Piranwala in the area of village Mateela on the eastern bank of Kirana Rajbah, a fireshot hit the car from the western side breaking the rear left side glass, that we alighted from the car and fired in defence of person and that in the cross-firing Muhammad Azarr, deceased was hit. " No witness was examined in defence nor the accused made statement on oath in disproof of the allegation. 10 The learned trial Court had convicted and sentenced Ahmad Yar and Manzoor appellants, while acquitting the rest of the accused, vide the impugned judgment, as stated above. 11 The learned counsel for the appellants, the State and the complainant were heard.at length and record of the case perused with their assistance. The learned counsel for the State has supported the impugned judgment end contended for maintaining the conviction and sentences awarded to the appellants. 12 On, the other hand, the learned counsel for the appellants argued for allowing the present appeal and setting aside the impugned judgment and submitted as follows:-- (a)That the case against the appellants, as charged, was not proved, as the prosecution had failed to prove their guilt beyond reasonable doubt. \ (b) That the conviction and sentences awarded to the appellants under the provisions of section 303(a), P.P.C. is not sustainable, as there is no definitive finding to the effect that the complainant party was put in fear of instant death or instant permanent impairing of any organ of body etc. as the learned trial Court had, on the contrary, come to the firm conclusion that the parties had fired in self-defence at each other, pursuant to chance meeting, as stated in para.14/page 19 of the impugned judgment. (c) That as the said section 303(a), P.P.C. had beer made part of the Pakistan Penal Code recently, therefore, there being no case-law, as yet, dealing with the interpretation and enforcement of the said provisions, reliance had to be placed on the established principles of law in interpreting and enforcement of the requirements of proof for the provisions of the said section. (d) And finally argued, in the alternative, that if the finding of the learned trial Court was to be accepted, i.e. that both the parties had opened fire at each other, as they apprehended danger to life from each other, then the complainant party, being equally guilty of the provisions of the said section, should have been charged and sentenced accordingly in accordance with the principles of parity and consistency. 13.The Court has given its anxious consideration to the contentions raised by the learned counsel for the appellants. To deal with the said contentions, it shall be appropriate to reproduce the charge preferred against the appellants and their acquitted co-accused by the learned trial Court, which .is as follows:-- "Firstly: That on 6-7-1991 at about 1-00 p.m. within the area of village Mateela, Tehsil Bhalwal you Ahmed Yar and Manzoor accused armed with guns, Muhammad Afzal accused arrived with rifle, Nawa, and Bashir accused armed with Sotas formed an unlawful assembly which resulted in violence and thereby committed an offence punishable under section 148, P.P.C. within the cognizance of this Court. Secondly: That on the said date, time and place you the aforementioned w accused persons armed as above, in prosecution of the common object of that unlawful assembly murdered Muhammad Azam deceased by firing at him and thereby committed an offence punishable under section 302, P.P.C. read with section 149 of the same Code within the cognizance of this Court. Thirdly: That on the said date, time and place in prosecution of the common object of that unlawful assembly one of your assailants Muhammad Afzal made murderous assault on Nazir Ahmed complainant by firing at him with such intention or knowledge if he had been killed as a result of firing, you all would have been guilty for his murder and thereby committed an offence punishable under section 324, - P.P.C. read with section 149, P.P.C. within the cognizance of this Court. Fourthly: That on 6-7-1991 in the morning at the Dera of Paluana within the area of village Mateela you Allah Yar, Ata Muhammad and Dosa instigated and, abetted your above-named co-accused to kill Muhammad Azam deceased and that with your abetment the co-accused killed him on the same day at about 1-00 p.m. and thereby' committed an offence punishable under section 302, P.P.C. read with section 109, P.P.C. within the cognizance of this Court." It shall be further appropriate to reproduce the provisions of section 303(a), P.P.C. under which provisions, the appellants were finally convicted and sentenced by the learned trial Court, vide the impugned judgment. The said provisions are as follows:-- "

303. Whoever commits Qatl,-- r (a) under lkrah-i-Tam shall be punished with imprisonment for a term which may extend to twenty-five years but shall not be less than ten years and the person causing ' Ikrah-i-Tam' shall be punished for the kind of Qatl committed as a consequence of his Ikrah-i-Tam." The definition of Ikrah-i-Tam as stated in subsection (g) of section 299, P.P.C. is as follows:-- "(g) ' Ikrah-i-Tam' means putting any person, his spouse or any of his blood relations within the prohibited degree of marriage in fear of instant death or instant permanent impairing of any organ of the body or instant fear of being subjected to sodomy or Zina-bil-Jabr."

14. As is evident from the wording of the charge reproduced above, the prosecution had embarked upon trial. of the appellants and their acquitted co accused specifically alleging that the accused had been guilty of Qatl-e-Amd under the provisions of section 302, P.P.C. Section 302, P.P.C. is as follows:-- "

302. Whoever, commits Qatl-i-Amd shall, subject to the provisions of this Chapter be-- (a) punished with death as Qisas: (b) punished with death, or imprisonment for life as Ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available, or (c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable." Qatl as defined in subsection (j) of section 299, P.P.C. means causing death of a person.

15. The case of the prosecution against the appellants and their acquitted co-accused was to the effect that they had caused the death of the deceased Muhammad Azam. It has been' further taken notice of that the crux of the entire prosecution evidence produced at the trial was also to the same effect, but the learned trial Court had not accepted the case of the prosecution thus set up against the accused and had come to the conclusion that the death of the deceased Azam had taken place under the circumstances that only proved the case against the present two appellants under the provisions of section 303(a), P.P.C. and not under the provisions of section 302, P.R.C. as stated in the impugned judgment. Therefore, the Court is of the view, that the vital ingredients of the provisions of the said section 303(a), P.P.C. were to be proved beyond reasonable doubt for their conviction to be sustained under the said provision of law. Therefore, it shall be relevant to discuss as to what ingredients are essential to establish the A offence covered by subsection (a) of section 303, P.P.C. A reading of section 299(g), P.P.C. duly highlights the following requirements:-- "(i) . Putting any person, his spouse or any of his blood relations within the prohibited degree of marriage in fear of instant death, or (ii) Instant permanent impairing of any organ of the body, or (iii) Instant fear of being subjected to sodomy or Zina-bil-Jabr. "

16. The relevant ingredient of the said section 303(a), P.P.C. in the instant case -is, whether or not, the deceased; in the first instance, or any other member of the complainant party, having blood relations within the prohibitory degree of marriage to the said deceased, had been put in fear of instant death or instant permanent impairing of any organ of the body, at the time of the fateful occurrence in question.

17. In this respect, a perusal of the prosecution evidence highlights that the testimony of both the eye-witnesses namely, P.W.1 Nazir and P.W.2 Muhammad is to the effect that both the parties had a chance meeting on the canal in question while being on the opposite banks of the said canal and that it further stands admitted by the said two eye-witnesses during their cross examination that they had also fired at the accused party, through claiming to have done so in self-defence, whereas the two appellants herein namely, Ahmad Yar and Manzoor had taken up the same plea of having fired in self-defence while recording their statements under the provisions of section 342, Cr.P.C., thus negating the conclusion arrived at by the learned trial Court vide the impugned judgment to the effect that the appellants had put the deceased and his companions in fear of instant death or instant permanent impair of any organ of the body or instant fear of being subjected to sodomy or Zina-bil-Jabr. In this respect, it may be further elaborated that a chance meeting between two inimical groups, both being armed with deadly weapons at the relevant time, cannot be interpreted to hold only one party had been put in fear of instant death etc. Specially in the present situation, wherein both the parties had admittedly fired at each other with their respective weapons. Further circumstance that, needs to be highlighted in that respect is that both the parties were on different banks of the canal and thus were separated from each other by the width of the canal, as is evident from the site plan Exh.PH/1 and the testimony of P.W.8 Muhammad Ashraf, Revenue Patwari, and that, therefore, the only conclusion that can be drawn under such facts and circumstances is to the effect that both the parties had stood their ground to open fire at each other with their respective fire-arms. Therefore, pursuant to the above discussion, it is hereby held that the instant case was not covered under the provisions of section 303(a), P.P.C. and as such the conviction and sentence imposed on the appellants vide the impugned judgment under the said provisions is not sustainable in law.

18. Therefore, the Court is constrained to examine the case against the appellants as charged in the first instance i.e. under the provisions of section 302; P.P.C. read with section 148/149/109, P:P.C. The Court taking up the case of the acquitted co-accused of the present appellants as urged on behalf of the complainant/revision petitioner, deems it sufficient to observe that the learned trial Court's reasons stated for their acquittal are fully supported by the evidence on the record and the learned counsel for the revision petitioner failed to make out a case for interference with the order of their acquittal recorded vide the impugned judgment, This brings the Court to the case of the prosecution against the appellants as charged. The Court is .constrained to observe that the prosecution had failed to prove the said charge against the appellants beyond reasonable doubt. In this respect, it is emphasised that whereas the motive cuts both ways, which, Because of the established enmity between the parties, by itself fails to advance the case of the prosecution against the appellants in any ,, manner and that the recovery of the licensed gun of appellant No. l Ahmad Yar " is of no avail to the prosecution to support the said charge against the appellants. Similarly, the recovery of the car in question vide Exh.PD, damaged by the fire shots admittedly fired by the complainant Nazir P. W.1, also goes in favour of the appellants, as it strengthens their case of having come under direct fire by the complainant and further strengthens their defence version regarding having fired in self-defence. Whereas the post-mortem examination report Exh.PG supported by the testimony of P.W.7 Dr. Amjad Iqbal raises serious possibility' of the deceased having died by a single shot, which further weakens the case of the prosecution and prevents the Court from coming to a definitive conclusion to ascribe the said shot specifically to either of the appellants. Furthermore, the testimony of P.W.2 Muhammad is of very weak nature, as the reasons stated for his being present at the time and place of the occurrence, cannot be relied upon, as he himself admitted in his cross-examination that he had neither stated the said reason before the police nor has any rather material been brought on the record to prove that the reason stated by him regarding the purchase of buffalo etc. can be relied upon. In addition thereto the said eye-witness P.W.2 Muhammad categorically denied that the complainant P..1 Nazir had fired tan the accused party, whereas the said P.W.1 had himself admitted to have done so during his testimony before the Court and that, therefore, for the aforestated reasons, it is hereby held that the possibility of the said P.W.2 not being present on the spot cannot be ruled out in positive terms and that consequently the benefit thereof has to go to the appellants.

19. Resultantly, the Court is left with the sole testimony of complainant P.W.1 Nazir, which cannot be relied upon to either prove the charge or to uphold the conviction and sentences awarded to the appellants as discussed earlier, without independent corroboration which, under the. circumstances stated above, is not forthcoming. Therefore, it is hereby concluded by holding that under such facts and circumstances, the only piece of evidence that can be taken into consideration is the statements of the appellants themselves under the provisions of section 342, Cr.P.C. which are to the effect that the appellant No.1 Muhammad Yar, had only fired in retaliation to defend their persons, which was their legal right, but merely the said statements cannot be made basis of convicting them under the provisions of section 302, P.P.C., as taking their statements in their entirety the right of self-defence cannot be weighed in golden scales to determine their liability for the injury or death that they may have thus caused to any one-including the deceased. Further notice has been taken of the fact that the said statements of the appellants duly find support from the conclusion arrived at pursuant to the investigation conducted by the police in the instant case, as is borne out by the testimony of P.W.11 Faiz Muhammad, Inspector.

20. The aforestated conclusions are fully supported by placing reliance upon the following precedents:-- Palvinder Kaur v. The State (AIR 1952 SC 354), wherein it has been held that confession and admission must either be accepted as a whole or rejected as a whole and the Court is not competent to accept only the inculpatory part while rejecting the exculpatory part as inherently incredible. Muhammad v. Ghaus and 4 others (1972 SCMR 264), wherein it has been held that where each side claims the other to be aggressor, the mere fact that the complainant party suffered greater number of injuries, would not relieve it of the initial act of aggression. Arif Nawaz alias Goldy and 2 others v. The State (PLD 1983 Lahore 594), wherein it has been held that the eye-witnesses being not on better footing than the complainant and not acting independently and they having different case before the police and at trial, cannot be relied upon. ' Ghulam Murtaza v. The State (PLD 1989 Karachi 293) wherein it has been held that no implicit reliance can be placed on the statements of interested eye-witness in absence of corroboration. Sultan Khan v. Sher Khan and others (PLD 1991 Supreme Court 520), wherein it has been held that the statement of the accused recorded under section 342, Cr.P.C. must be accepted or rejected as a whole and the Court cannot select out of it the passage which goes against the accused. Wajid Umar alias Gogi v. The State (1992 PCr.LJ 1536), wherein it has been held that the accused has the inalienable right to impeach the character, integrity and credibility of the witness by confronting him with any material that may establish that the said witness was not a just _(Adil) witness, and that it is the essential requirement that there should be two such Adil witnesses to prove a case of Qisas against the accused. The State v. Muhammad Hanif and 5 others (1992 SCMR 204.7), wherein it has been held that where the prosecution evidence-stands rejected in its totality, the statements of the accused has to be accepted in its totality and without scrutiny and that amplitude of right of self defence under Injunctions of Islam is far wider than is available under Pakistan Penal Code. Ali Muhammad v. The State (1993 PCr.LJ 557), wherein it has been held that the statement of the accused being quite in accordance with the medical evidence, had to be accepted in totality and without scrutiny, especially when the prosecution story is contradicted by the medical evidence. In this respect, further strength is drawn by placing reliance upon the publication titled ' Qisas-wa-Diyat' published by ' Idarah Tehqiqat-e-Islami' wherein at page 141 it is held as follows:-- Muhammad Idrees v. The State (PLD 1965 (W.P.) Lahore 553). In this Division Bench Judgment it was held that the burden of establishing right of self-defence cannot be as heavy as burden resting on the prosecution as the context of circumstances of the case did not enable the Court to fix the stage or point of time at which accused ought to have ceased causing further harm to the deceased, therefore, excess, if any, committed by accused was condoned and his conviction under section 302, P.P.C. was set aside. Jamal Din v. The State (1972 SCMR 800), wherein. it was held that the accused could not measure his right of self-defence in golden scales or to modulate his defence step by step and was acquitted of the charge of murder by further holding that he was entitled to complete right of self defence. Mahmood Akhtar v. State (1987 PCr.LJ 1641), wherein it was held that the right of private defence cannot be weighed in golden scales, further holding that the Court to view with indulgence to acts of person who in heat of moment under strong feeling of self-preservation peruses his defence a little further than is absolutely necessary. Ghulam Murtaza and another v. The State (1993 PCr.LJ 1646), wherein it was held that the right of private defence cannot be weighed in golden scales and that the accused is the judge of his own danger and law permits him to repel the attack even to the taking of life and that the accused's version is to be accepted if the same appears to be reasonable/possible in the circumstances of the case.

21. Therefore, pursuant to the above discussion, it is hereby held that the prosecution had failed to prove its case as charge against the appellants and it is further held that the conviction and sentences awarded to them by the learned trial Court under the provisions of section 303(a), P.P.C. was not sustainable in G law, as stated above. Resultantly, the present criminal appeal is allowed, the impugned judgment is set aside and the appellants are acquitted of all the offences charged. They shall be released forthwith, if not required to be detained in any other matter.

22. For the aforestated reasons, Criminal Revisions Nos.96 of 1992 and 725 of 1992, directed to be heard alongwith the present criminal appeal, are hereby dismissed. N.H.Q./A-90/L Appeal allowed.