1988 PLP 1039 (SCMR)

MUHAMMAD HALEEM, C.J.‑‑These three criminal appeals, by leave, arise from the judgment of the High Court dated 15‑11‑1981, whereby Qalandar Khan's conviction under section 302, P.P.C. was set aside although his conviction under section 307, P.P.C. was ,maintained. Criminal Appeal No.23 of 1982 is directed against his conviction under section 307 P.P.C. while Criminal Appeals Nos.22 of 1982 and 24 of 1982 are against his acquittal on the charge of murder. The former having been preferred by Shah Nawaz while the latter by the State. Both Qalandar Khan and Noor Muhammad were tried together for the murder of Zahid Hussain and for the attempted murder of Munsif Khan. Noor Muhammad, the driver of the car in which appellant Qalandar Khan was travelling was acquitted while Qalandar Khan was convicted under section 302 P.P. C on the capital charge and sentenced to undergo imprisonment for life and to pay a fine of Rs.3,000 or in default to undergo rigorous imprisonment for one year for the murder of Zahid Hussain and also under section 307 P . P. C . for attempting to cause the death of Munsif Khan for which offence he was sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs.1,

000. Shah Nawaz PW (11) a cousin of the deceased gave his statement at the Civil Hospital, Abbottabad, at 1315 hours stating therein that at about noon while he, Jafar, Munsif Khan and Zahid Hussain were standing near Sadiq's hotel at Mangal Bazar, District Abbottabad, a white car belonging to Qalandar Khan appeared and stopped near them. They saw Qalandar Khan seated in the car and Shah Ji alias Noor Muhammad at the driver's seat. No sooner had the car stopped, Qalandar Khan stretched his hand through the rear window and fired three shots; the first went amiss, the second struck the deceased on his chest and the third hit Munsif Khan on his left thigh. Qalandar Khan thereafter immediately drove away from the spot. The two injured were taken to the hospital on Charpais, but on the way Zahid Hussain succumed to his injuries. Qalandar Khan went to Police Station Mirpur where he lodged his F.I.R. at 12.30 p.m. the same day stating therein that while at Mangal Bazar the same day he was attacked by the deceased, Shah Nawaz, Jafar, Shaukat and four others and from amongst them the deceased fired at him and the bullet struck the window pane of the rear window of his car which broke into pieces and thereafter Zahid Hussain stabbed him. Two bullet pieces were extracted one each from the body of Zahid Hussain and Munsif Khan which matched with the licensed revolver of appellant Qalandar Khan. However, what is significant to note is that no blood was seen at the spot where the two had been shot at. The prosecution examined Shah Nawaz (P.W.11) and Munsif Khan P.W. (12) who is not related to the deceased, but he is said to be his friend. Jafar, who was also mentioned in the F.I.R., was not examined at the trial. The appellant Qalandar Khan when examined under section 342 Cr.P.C. took the plea of self‑defence and stated: "Sometime before the occurrence my first cousin Arshad was wrongly accused of molesting a sister of the deceased. Zahid Hussain had beaten my cousin Arshad mercilessly for it. I had complained to Abdur Rauf Khan father of the deceased saying that Arshad professed innocence and if there was any such complaint he being my friend and neighbour should have informed me and I would have set Arshad right. This flared up Abdur Rauf Khan and he started abusing me saying that they would manage to kidnap some of our woman folk. I slapped Abdur Rauf Khan for it Immediately after what happened between me and Abdur Rauf Khan I was going with Muhammad Akram and Noor Alam in Mangal Bazar in my car. I had some errand there and after completing it sat in the front seat of my car No.HA 6507 driven by my chauffer co‑accused. In the meantime Zahid Hussain deceased, Shah Nawaz and Munsif (P. W.) alongwith five others three of whom I could not identify attacked me and my driver. Munsif caught‑hold of my neck and throttled me to do away with me. Rest of them started pulling, me out of the car. My co‑accused at the stearing, struggled to push on the car and succeeded a bit. Zahid Hussain had a pistol with which he fired at me but the shot going amiss hit the side window pane of my car smashing it with remains of the glass falling inside and outside the car. The whole gang was up to both of us. I struggled to get rid of Munsif when Zahid Hussain deceased got a dagger and stabbed me on my left arm. As it was winter I was having a shirt and a woollen jersey. Feeling helpless, in great fright and in order to save myself, my driver and the car I brought? out the licensed pistol lying loaded in the glove compartment of the car. At that juncture Zahid Hussain tried to repeat the stab blow and his companions were beating my driver. I fired twice in order to scare away the assailants in which I was successful. " On being medically examined, it was noticed that the deceased and Munsif Khan had one bullet injury each. Dr.Muhammad Faiz, who also examined Qalandar Khan and Noor Muhammad, found the following injuries on their persons: Qalandar Khan; (1) In front of left forearm just by the side of elbow joint sharp cut edged wound from lateral to medial deep to the muscles. Lateral wound measuring 1" x ? " and medial ? " x ? " probed and passed through from medial to lateral. Corresponding cut on shirt and Banian present. (2) Multiple abrasions superficial on the neck in front. (3) Contusion on the upper surface of the right thigh in the middle 2" x 1 ? " swollen and pain on the pulpation. No restricted wound. Noor Muhammad Shah (1) Contusion on the right side of cheek swollen and painful. (2) An abrasion 1/10" x 1/10" on the upper surface of the hand at the base of thumb. (3) An abrasion 1 ? " on the medial side of the left patella. One injury on Qalandar Khan was with a sharp‑edged weapon while the other two by a blunt‑weapon. The injuries on Noor Muhammad were also with blunt weapon. In assessing the plausibility of the plea of self‑defence, the trial Court seems to me to be saturated with its conclusion as to the reliability of the prosecution evidence which, in its opinion, had an edge over the ipsi dixit of Qalandar Khan. In this background the defence version was put to a serious test. The first circumstance which appeared against his story was that the incident could have been avoided if the driver had sped away instead of waiting at the spot. The second is that as no fire‑arm was recovered from the deceased, therefore, it is not possible to accept that he could have fired a shot and broken the window‑pane of the car. The third is that as the car was not found with broken pane at the spot, the possibility cannot be ruled out that this damage could have been done either by Qalandar Khan himself or his driver. The fourth is that if it is to be accepted that Qalandar Khan had fired from the short distance then certainly there would have been charring or blackening marks round the fire‑arm injuries on the person of the deceased and Munsif Khan which was not the case. The fifth is that the blood stains found on the outer surface of the car were not scrapped and sent for examination to ascertain whether it was a human‑blood. The sixth is that it is highly improbable that the deceased could have, at the same time, used two different weapons, that is, a pistol and a dagger to cause harm to Qalandar Khan. And lastly, the trial Court was of the opinion that the injuries were either self‑inflicted or caused by a friendly hand. This could also be said in the case of Noor Muhammad who has since been acquitted. The High Court on a re‑appraisal of the evidence held that the testimony of Shah Nawaz (P. W. 11) "cannot be accepted without reservation". And as for Munsif Khan, who was described to be a disinterested witness by the trial Court, the High Court evidently was of the view that although he was not related yet he was a close friend of the deceased and in his attempt to justify his dis?interestedness, he even went to the extent of saying that he did not know Abdul Rauf and Sajawal, the father and uncle of the deceased, which was nothing but a lie. In conclusion the High Court held: "in short his statement and that of the first informant is not free from taints and discrepancies." And as for the plea of self‑defence, the High Court held that Qalandar Khan had suffered injuries, but the trial Court erroneously discarded their infliction during the transaction on the premise that none of the eye‑witnesses had seen them being caused, and further that the incised injury on the left forearm was not entered by the Moharrir in the injury‑sheet at the time when the appellant lodged his first information report. In this background, the High Court held that the non‑mention of the incised injury in the report was of no avail and that it could not have been self‑inflicted as the Doctor had denied the suggestion put to him. The fact that there was a fight between the two parties in Mangal Bazar was also apparent from the record and substantiated by the injuries found on the person of Qalandar Khan. Upon an over‑all examination of the evidence, the High Court was of the opinion that as the prosecution had suppressed the causing of injuries, which could not have been explained otherwise, it was reasonable to conclude that the deceased may have caused the injuries on Qalandar Khan. Concluding, therefore, the High Court observed: "We are of the view that the chain of circumstances is indeed very strong so much so, that it rules out the contention of the prosecution that without any 'immediate cause' the appellant commenced aggression on the deceased and Munsif P.W. The seat of injury on the person of the deceased would show that the allegation of the appellant to fire in self‑defence, has substance. In our opinion, the approach of the learned trial Judge of the appraisement of the evidence of the eye‑witnesses was not based upon full consideration of all the circumstances appearing in the case, from making of the initial report, upto the recording of evidence at the trial. In short, when the evidence of the eye‑witnesses is examined in the light of the circumstances, the possibility that the accused‑appellant, acted in self‑defence cannot be ruled out. It will thus be noted that Section 100, P.P.C. can be‑successfully invoked as far as the charge of homicide is concerned. The same right, however, can be extended to him, with regard the second charge, for the reason, that the conviction under section 307, P.P. C. was not touched during arguments and that the seat of injury of Munsif P.W. would show that he had already retreated and the apprehension of commission of an offence he receded when ‑he was hit on left thigh." Though the benefit of the plea of self‑defence was given to Qalandar Khan so far as the causing of the death of the deceased was concerned, but it was denied qua the bullet‑injury caused to Munsif Khan. The reason given by the High Court was that the bullet‑injury was caused after Munsif Khan had retreated and the apprehension had ceased which, in its view, was clear from the seat of the injury itself on Munsif Khan. There is no evidence to show that he had, in fact, retreated, and as the plea that he had fired two shots on being attacked was accepted by the trial Court, there was, therefore, no room to allow partial benefit of this plea to the appellant. The learned counsel for Qalandar Khan vehemently urged that the material brought on record in cross‑examination belies the ocular testimony as to the causing of the injuries to the deceased and Munsif Khan as well as the venue of the occurrence. This argument has force as there is material on record to sustain it. It is suprising that no blood was found at the stated place where the two deceased had fallen down after being shot dead which creates a grave doubt as regards the venue of the occurrence. Further 1B Shah Nawaz (P.W.11) in his cross‑examination had first stated that the incident did not take place on the main Karakorum High‑Way, but later voluntarily added that the deceased was killed near the hotel of Aurangzeb which is on Karakorum High‑Way. This witness further admitted that Noor Muhammad had not caused any harm to the deceased but had only grappled with him alongwith Qalandar Khan and they were separated. Munsif Khan, although it was the prosecution case that he was standing alongwith the deceased when they were fired at, yet, he has stated that while he was in his Ration Shop at the time of the incident he heard noise and went towards that direction and saw Zardad, Miskeen and Malik Dad taking away Zahid Hussain towards the hotel of Aurangzeb and on his call that he would himself take Zahid Hussain to the hotel for tea, the others left him. He then went alongwith the deceased towards the hotel of Aurangzeb and as they neared it, the incident occurred. All this goes to show that the prosecution witnesses have suppressed as to what actually transpired before the main event which was not without a purpose as they wanted to mitigate their own involvement in the transaction. The points noticed in the site plan at the behest of Munsif Khan also support the version that there was a fight before the main incident at a place different from that stated by the prosecution witnesses, and when read in the context of the evidence of Azizur Rehman, SHO, Police Station, Mirpur, that he had seen the broken pieces of the window‑pane of the car on the spot which was damaged and had some red spots both inside and outside the door clearly goes to establish the plausibility of the defence plea. In that view of the matter, the High Court was in error in not allowing the benefit of the plea of self‑defence to the appellant qua Munsif Khan as well. We have heard the learned counsel in the other appeals against the acquittal of the appellant, and except for contending that the defence plea was the figment of imagination nothing substantial was argued to dislodge the conclusion of the High Court in giving the benefit of the defence plea to the appellant on the charge of murder and our conclusion that it was a case where the benefit of this plea could not have been denied to the appellant by the High Court qua the causing of the bullet‑injury to Munsif Khan. Accordingly, we would allow the appeal of Qalandar Khan. He is on bail as he has served out the sentence. His bail bonds are all hereby discharged. The other appeals are dismissed. M. Y. H./S‑135/S??????????????????????????????????????????????????????????????????????????????? Appeal allowed.