1988 P Cr (PLP)

Mashir Malik P.W.10 has deposed that accused was not arrested in his presence nor any clothes were secured from him in his presence. When he went to the P.S. with P.W. Taj Mohammad he was informed by a police officer that they had recovered clothes. At that time accused Mukaram was in police lock‑up. In cross‑examination he has deposed that he had seen Mukaram in the lock‑up of police with his own eyes. He had bandage on his head. A.S.I.P. Moula Bux P.W.12 has deposed that on 24‑6‑1985 he was posted as A.S.I.P. at P.S. Jackson. On that day he was Duty Officer on duty from 2‑00 p.m. to 8‑00 p.m. At about 5‑00 p.m. an unknown person informed him on telephone that there had been a quarrel between two parties in Bhutta village in which a man had died. He entered the information in daily diary' at Serial No.

43. He alongwith Head Constable Wall Bahadur were going at the place of incident but on the way S.H.O. Suleman Mirza met them who also accompanied them to the place of incident and found a dead body lying there. He handed over investigation to the S.H.O. Suleman Mirza. He has produced entry No. 43 as Exh.17‑A. In cross‑examination he has deposed that S.H.O. had met him near Jamia Masjid Jackson Bazar. He denied that before recording report some of the witnesses including Lajbar Khan had contacted him. He did not remember how many persons were examined at the place of incident. The recoveries were made by Inspector Suleman Mirza and he could only say that blood‑stained earth was recovered from the place of Wardat. S.H.O. Suleman Mirza P.W.13 has deposed that on 24‑6‑1985 he was posted as S . H .0. at P . S . Jackson. The remaining investigation carried on by him has been referred in the earlier part of this judgment. In cross‑examination he has deposed that the accused was arrested from the end of Nissan Road. The house of accused was situated at the distance of one or two furlongs away from the place of his arrest. He prepared one Mashirnama for the arrest and seizure of blood‑stained clothes he prepared the same at the house of accused. He denied that accused had surrendered himself at P.S. He admitted a suggestion that accused had injuries on his head and other parts of his body, when he was arrested. It was a fact that P.W. Fahim Taj had stated in his statement under section 164, Cr.P.C. that there was a quarrel between the parties and exchange of abuses. He had further stated in his statement before him that deceased Shahid Taj had hammer in his hand. P.W. Ibne Amin had stated before police that deceased Shahid Taj had hammer in his hand. He did not make any recovery of weapon from the accused though he was in police custody for about 14 days. During the investigation it was not disclosed before him that complainant Taj Mohammad was also armed with Danda. Dr. Ghulam Muhammad P.W.14 had conducted the post‑mortem on dead body of Shahid Taj and he found that there was one stab wound 1" x ?" on the upper half left side chest. In his opinion the cause of death was Cardio Respiratory failure due to shock and internal haemorrhage resulting from stab wound in left side chest and heart. The injury appeared to have been caused with some sharp‑edged substance such as Chhuri or big knife. He had also examined P.W. Fahim Taj on the same day and found one incised wound and one contusion on the person. The injury No. 1 was grievous while injury No. 2 was simple. He had also examined. P.W. Bakht‑e‑Bedar and found one incised wound and one contusion on his person. The injuries were simple in nature. He had also examined complainant Taj Mohammad who had one incised injury which was simple in nature. He has produced post‑mortem report as Exh.19‑A and the initial as well as final‑injury certificates as Ex. 19‑B to Ex.19‑G. The chemical report was produced by the learned A.P.P. alongwith application Ex.21 and the chemical report as Ex.22. After close of the prosecution case statement of the appellant was recorded under section 342, Cr.P.C. in which he denied the allegations. He has further stated that deceased, complainant and other P.Ws. had attacked him in order to murder him. They had also abused him in the name of his wife. He had defended himself in his own right. He also examined himself on oath as envisaged by section 340(2), Cr.P.C. He has also examined Dr. Hamid Ali D.W.2 in his defence. According to Dr. Hamid Ali accused Mukaram was referred to him by Jackson Police for examination and certificate on 26‑6‑1985 at 2‑20 a.m. He examined the accused and found five injuries on his person caused by blunt substance., The injuries were simple in nature and the medical certificate alongwith photocopy of supplementary certificate have been produced as Exs.25‑A and 25‑B. The learned trial Judge after taking into consideration the evidence laid by the prosecution as well as by the defence convicted the appellant as described above. The present appeal is directed against the said judgment of conviction. I have heard Mr. Mohammad Hayat Junejo, Advocate for the appellant, Mr. Imam Bux Sheikh, Advocate for the State and have gone through the R&P of the case. It was contended by the learned counsel for the appellant that the fight was sudden and the appellant had no motive to kill deceased Shahid Taj. It was the complainant party who had motive and in fact they had attacked the accused /appellant with a hammer and Danda and caused injuries on head and other parts of his body. That the prosecution has failed to explain the injuries received by the appellant and on the contrary they had suppressed this aspect of the case. That looking to 'the circumstances of the case, the appellant had complete right of private defence of his person and, therefore, the learned trial Jud a had erred in convicting the appellant. The learned counsel for the State has contended that the complainant and P. Ws. have suppressed the injuries caused. to the appellant. That the case of the appellant is supported by a Medical Officer Dr. Hamid Ali and, therefore, the appellant was liable to acquittal. I have considered the contentions of the learned counsel. The prosecution case itself shows that: he complainant party had a motive to attack the accused/ appellant a he had refused to allow Jawaid son of deceased Shahid Taj to water from the 'Dera' of Lajbar Khan, whereas the appellant had no motive to attack the complainant party. It is also an admitted post on that the complainant party had abused the appellant on his wife and there was exchange of hot words between the parties. The appellant had received as many as five injuries out of which two are on his head. P.W. Lajbar Khan has fully supported the case of the appellant in his examination‑in‑chief and he was neither declared hostile nor cross‑examined by the prosecution. Even it was admitted by Mashir Malik P.W. 10 that when he had seen appellant Mukaram in lock‑up at P.S. he had bandage on his head. S.H.O. Mohammad Suleman Mirza, Investigating Officer has I also stated in examination‑in‑chief that when he arrested the accused on 26‑6‑1985 he had injury on his head and, therefore, he had referred the accused to Medical Officer for treatment anti 'certificate. Complainant Taj Mohammad is brother of deceased Shah Taj, P.W. Fahim Taj is sister's son of the complainant and deceased while P.W. Bakht‑e‑Bedar is cousin of the complainant. The complainant and other witnesses have failed to explain the injuries received by the appellant. Even when they were cross‑examined on this point they denied to have caused injuries to the appellant. P . Ws. Fahim Taj and Ibne Amin had stated in their 161, Cr.P.C. statements that deceased Shahid Taj had hammer in his hand but in the Court they denied to have made such statement, and the same has been proved through S.H.O. Mohammad Suleman Mirza. The accused has taken the plea of right of private defence of person in his statement. In the case of Ghazi and another v. The State P L D 1965 (W.P.) Quetta 33 it was observed that:‑-- "For entitlement to the benefit of an exception meriting acquittal, the test is not whether the accused has proved beyond a reasonable doubt that he comes within any exception but whether in setting up any defence he has created reasonable doubt in the case of prosecution and thereby earned his right of acquittal. Even if the evidence fails to satisfy the Court affirmatively of the existence of circumstances bringing the case within the exception pleaded, the accused will clearly entitle himself for acquittal if upon a consideration of the evidence, as a whole, a reasonable doubt is created in the mind of the Court (whether the accused is or is not entitled to the benefit of the exception)." In the case of Ramzan v. The State P L D 1961 (W.P.) Kar. 374 it was observed by a Division Bench of this Court that:‑

"Upon a fair appraisal of how the incident took place, it must be held that the Lathi blows which were inflicted upon the back of the appellant must have been inflicted before he gave the fatal blow to Sharif. That in the circumstances the appellant would reasonably have an apprehension that grievous hurt would be caused to him, could be a reasonable inference. He would, therefore, have a right of private defence of body, which could extend to the voluntary causing of death." In the case of Inayatullah and another v. The State P L D 1966 (W.P.) Lah. 8 it was observed that:‑

"It would be wrong in principle to hold that merely because the complainant party suffered greater number of injuries than those suffered by accused not sufficient to hold accused as aggressor. Prosecution falling to explain injuries on person of accused, such omission makes prosecution version highly doubtful and lends support to accused's plea of self‑defence." It was further observed in the a e decision that:‑

"That Courts have always viewed with indulgence the act of a person who in the heat o the moment under a strong feeling of self‑preservation working on him pursues his defence a little further than is absolutely necessary. It has often been said that the right of private defence cannot be weighed in golden scales." In the case of Ahmed Din v. Faiz Ahmed and 2 others 1972 SCMR 549 it was observed by their Lordships of the Supreme Court that:‑

"The mere fact that the deceased received three injuries whereas accused got only one, does not by itself show that accused had exceeded the right of self‑defence. His right to defend himself continued as long he had reasonable apprehension of harm from his adversary. It is well‑recognized that the right of self‑defence cannot be modulated step by step nor it can be measured in golden scales." In the case of Nadeem‑ul‑Haq and others v. The State 1985 SCMR 510 it was observed by their Lordships of the Supreme Court that in case of two versions principle recognised in P L D 1953 FC 93 to be applied that:‑

"In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt, not a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt." From the above discussion I am of the considered view that the complainant and deceased had a motive to attack the accused/ appellant, they have failed to explain injuries on the person of the appellant and the defence of the appellant is plausible and, therefore, it makes the prosecution case against him doubtful. The appellant had not exceeded the right of private defence of his person looking to the circumstances of the case, and, therefore, I allow this appeal, set aside conviction and sentence of the appellant and he is acquitted of the charge. He shall be set at liberty forthwith if not required in any other case. I had decided the above appeal on 6‑7‑1987 by a short order and these are the reasons for the same. M.Y.H,/M‑382/K??????????????????????????????????????????????????????????????????? Appeal allowed.??????????