1989 PLP 4069 (MLD)

4. On 16‑12‑1974 at 8 p.m. Dr. Muhammad Adam Qureshi examined Asif? deceased, when alive, and found an incised wound 3/4" x 1 /8" on left thigh on the medial aspect and another incised wound 2" x 1/8" x 1/ 8" on the posterio inferior aspect of left thigh. The injuries were fresh, caused by sharp‑edged weapon. Injury No.l was grievous and No.2 simple in nature. Injury No.2 was exit of injury No.l. On 17‑12‑1974, Dr. Sabir Ali, Deputy Surgeon Medico‑legal, conducted the autopsy on the dead body of Asif deceased and found the injuries referred to above on it. Both the injuries communicated with each other The femoral artery was completely cut and femoral vein was partially cut. In the opinion of the doctor, death was due to shock and hemorrhage resulting from the above injury which was sufficient to cause death in the ordinary course of nature. On 18‑12‑1974 the same doctor examined Javed Iqbal accused and found an incised wound 1 /4" x 1/8" x 1 /4" obliquely vertical on outer back lower half, left thigh. It was simple in nature, caused by sharp‑edged pointed weapon. There was an abrasion 2‑1/2" x 1/8" going obliquely transverse interiorly from the anterior lip of the wound.

5. In support of its case the prosecution examined three eye‑witnesses, namely, Muhammad Rafiq, Muhammad Yusuf and Muhammad Sadiq. It also relied on the evidence relating to motive and recovery.

6. The respondents pleaded not guilty to the charge and denied the prosecution allegations against them. Muhammad Ishaq and Muhammad Yunus prosecution that they were falsely implicated by the complainant party so that they might not pursue the case of Javed Iqbal. Both of them stated that at the time of occurrence they were working at their shop in the fruit‑market. Javed Iqbal accused admitted having caused injury to the deceased but he gave counter ?version as under:‑ "On 16‑12‑1974 when I was going back from my daily work Muhammad Asif deceased raised a Lalkara to the effect that he would teach me a lesson for registering a false case against his brother Arif and he took me unaware and threw me down on the ground and gave a dagger injury on my left thigh. This injury was caused while he was bending upon me. Moreover he was going to inflict another injury on my person on which snatched the dagger, from him as I was apprehending my death from him.? I caused a single injury on the non‑vital part of his body to save my life and to prevent further danger. My CO‑accused Muhammad Ishaq and Muhammad Yunus were not with me at the time and as a matter of fact at the relevant time they were busy in their business at Fruit Market:" No evidence was led in defence.

7. After examining the evidence on the record, the learned trial Judge came to the conclusion that the statement of Muhammad Yusuf, forming basis of the formal F.I.R., was not recorded in Mayo Hospital, Lahore, but was concocted after due deliberation and preliminary investigation at the spot. He further observed that the accused had no motive to attack the deceased whereas Asif deceased had the motive to take revenge from the accused for falsely implicating his brother Arif. After juxtaposing both the versions he was of the view that the plea of Javed 1qbal accused was more plausible and on the basis of his above findings he acquitted the accused persons of the charge.

8. Learned counsel for the petitioner contended that Muhammad Rafiq and Muhammad Sadiq P.Ws. were independent eye‑witnesses having no enmity with the accused persons, therefore, there was no reason to discard their evidence. It was further submitted that right of self‑defence, if any, had come to an end when the deceased was disarmed by Javed Iqbal respondent, therefore, there was no justification to stab the deceased after that and all the respondents are liable under section 302/34, P.P.C. Learned counsel for the respondents, on the other hand, submitted that it was fully established on the record that the F.I.R. was concocted at a belated stage after the preliminary investigation; the evidence of the alleged eye‑witnesses was in direct conflict with the medical evidence and their presence at the spot was not established. Relying on Imam Bakhsh's case reported as P L D 1961 (W.P.) B.J. 22, it was contended that even after disarming the deceased, Javed Iqbal respondent was within his right to act in self‑defence as the deceased had thrown him on the ground and he was apprehending danger to his life when he gave a solitary blow to the deceased on a non‑vital part of his body. Learned State counsel also supported the judgment of the trial Court.

9. The motive alleged by the prosecution was that on 14‑12‑1974 there was a fight between Shahid (nephew of the complainant) on one side and Javed Iqbal and Yunus respondents on the other. A case under section 324, P.P.C. was registered against aforesaid Shahid and Arif, brother of the deceased. In cross?examination Muhammad Yusuf complainant stated that his son Arif had only tried to separate the fighting parties. In the same breath he stated that he was rightly implicated in the case under section 324, P.P.C. He denied having stated before the Committing Magistrate that Arif was falsely implicated in the aforesaid case. He was confronted with his statement before the Committing Magistrate wherein it was so recorded. He appears to have changed his statement at the trial with a view to meet the argument of the defence that Javed Iqbal having falsely implicated Arif in the said case, the deceased had a motive to attack the aforementioned accused. The statement of the complainant that Arif was rightly implicated, was contradicted by Shahid (P.W.l3) who was examined to prove the motive. In cross‑examination he categorically stated that Arif was falsely implicated in the aforesaid case under section 324, P.P.C. If that is true, then no exception can be taken to the finding of the trial Court that Asif deceased had a motive to take revenge from Javed Iqbal and Yunus accused for falsely implicating his brother Arif.

10. While going through the record I have noticed that the investigation was not conducted fairly and impartially. According to the statement (Exh.P.A.) of Muhammad Yusuf complainant, besides others, the occurrence was witnessed by Abdul Waheed Kashmiri, resident of Gumti Bazar, Lahore. At the trial Muhammad Yusuf complainant stated that he did not know Waheed P.W. before the occurrence and even at the time when he was in the hospital where statement Exh.P.A. was allegedly made. He further stated that he did know the parentage and address of Waheed P.W. even at the time of making statement Exh.P.A. and he had not mentioned his name and other particulars in the said statement. The question is how the name, caste and residence of Waheed P.W. happened to figure in the statement Exh.P.A. if he had not disclosed it before Abdullah Khan Sub‑Inspector who recorded the said statement. In cross?examination aforesaid Sub‑Inspector denied having introduced the name of Abdul Waheed Kashmiri, resident of Gumti Bazar m Exh.P.A. of his own. The only conclusion which flows from the above is that the statement Exh.P.A. recorded after due deliberation. The introduction of the name of Abdul Waheed P.W. as an eye‑witness, who in fact was not even known to the first informant when his statement was recorded, goes a long way to show that from the very beginning the prosecution was at pains to fabricate evidence against the accused persons. In the circumstances, the so‑called F.I.R. in this case is of no consequence at all.

11. At the trial Muhammad Rafiq (P.W.7), Muhammad Yusuf (P.W.8) and Muhammad Sadiq (P.W.9) supported the prosecution version, as detailed in the earlier portion of this judgment. The reason given by Muhammad Yusuf first informant for his presence at the spot was that two days prior to the occurrence his nephew Shahid had a quarrel with Yunus and Javed Iqbal respondents who got a case registered against his son Arif and aforesaid Shahid. Two days after the aforementioned incident, i.e., on the day of occurrence, he `gathered respectables' of the Mohallah `and reached the shop of Bashir Halwai where the occurrence took place'. The prosecution version was that this witness and his son Asif deceased had come to the shop of Bashir Halwai to have negotiations for a compromise. Muhammad Rafiq P.W., on the other hand, stated that he did not see any respectable person present at the shop of Bashir Halwai. In cross?examination the first informant admitted that they did not send any message to the accused persons to reach the shop of Basher Halwai at 7‑30 p.m. for a compromise. If that was so, then it is not understandable with whom the negotiations for a compromise were to take place. He further admitted that he neither produced the respectables before the police nor asked the police to record their statements. In the circumstances, this compromise affair seems to be a more pretext to explain the presence of the complainant at the spot. Even otherwise, the evidence of this witness being in conflict with the medical evidence does not inspire any confidence. In examination‑in‑chief he stated that Javed Iqbal respondent gave a Khanjar blow to the deceased hitting his left thigh and he attempted to give another dagger blow but it missed as the deceased had fallen down. In his statement before the police (Exh.P.A.) with which he was duly confronted he had not stated that after the first blow Javed Iqbal had attempted to give another blow which missed. In the said statement he had rather stated 'that Javed Iqbal respondent had given two blows in quick succession on the left thigh of the deceased, as a result of which he fell down. This departure is very significant. There were two visible injuries on the left thigh of the deceased. Dr. Muhammad Aslam, however, stated that injury No.2 was the exit of injury No.1. The complainant changed his statement at the trial in order to bring his statement in line with the medical evidence, according to which both the injuries (entry and exit) were the result of one blow. All the alleged eye‑witnesses stated that Javed Iqbal did not receive any injury in their presence. This accused was arrested by Abdullah Khan Sub-?Inspector on the next day of the occurrence. He was in injured condition. The Sub‑Inspector prepared his injury statement and sent him to the hospital for medical examination. The injury was on the lower left thigh just below the middle. There was also an abrasion 2‑1 /2" x 1/8" going obliquely transverse anteriorly from the anterior lip of the wound. The incised wound had been caused with a sharp‑pointed weapon within the duration of two days. In reply to a query by the Investigating Officer, the doctor had stated that nothing could be said if the injury was suffered during scuffle or manipulated afterwards. If the accused had fabricated the injury with a view to create the plea of self‑defence he would have gone for medical examination at once after the occurrence. The evidence, however, shows that till the time of his arrest on the next day he had not gone to the hospital and it was the Investigating Officer who sent him for medical examination. The duration of the injury corresponds with the time of occurrence and it can safely be inferred that he suffered it during the same occurrence at the hands of the deceased.

12. It is also noteworthy that the most natural witnesses, namely, Bashir Halwai, his brother and employees, who were admittedly present at their shop, were not cited as eye‑witnesses. The Investigating Officer even did not bother to record their statements. Abdullah Khan Sub‑Inspector admitted that it was in his notice that Muhammad Rafiq, brother of Muhammad Bashir Halwai, was present in his shop when the occurrence took place. He expressed his inability to give any reason for not interrogating him and ultimately stated that he did not know if he (Muhammad Rafiq) had not supported the prosecution. In the circumstances, the contention of the learned counsel for the respondents that the natural witnesses were not prepared to support the prosecution, therefore, other persons were imported as eye‑witnesses after due deliberation, cannot be lightly ignored. After going through the impugned judgment, I find that the prosecution evidence was discarded for sufficient reasons.

13. The Investigating Officer admitted that Javed Iqbal accused had taken the plea of self‑defence at the time of his arrest. The plea taken by him at the trial; has been reproduced in para. 6 supra. He stated that the deceased took him unawares, threw him down on the ground and gave a dagger blow on his left thigh while bending on him. He was going to cause another injury on which he snatched the dagger from him and caused a single injury on the non‑vital part of his body to save his own life as he was apprehending his death at the hands of the deceased. The question whether the accused had the right of self‑defence is essentially a question of fact to be decided according to the circumstances of each case. The prosecution evidence having been discarded, the statement of Javed Iqbal respondent alone remains in the field which shows that he was lying down on the ground when second blow was attempted. He snatched the weapon from the deceased and caused him solitary injury on the non‑vital part of the body. It cannot be said that in no circumstances the accused can claim the right of private defence, the moment the deceased is disarmed. The law makes the accused the sole Judge of his own danger and allows him to repel the attack even to the extent of causing the death of his adversary if he apprehends that death or grievous hurt would be the consequence if the attack was not repelled. In the circumstances, the view taken by the learned trial Court was justified and I see no reason to interfere with the order of acquittal. This revision petition is, therefore, dismissed. N.H.Q./M‑1571/L Revision dismissed.