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Criminal Appeal' No. 175 of 1981, decided on 20th April, 1983

--S. 304--Witness, reliability of--Single flaw in statement of a witness creating doubt in mind of a reasonable and prudent man, held, sufficient to discard his testimony.

---Ss. 304 & 100--Self-defence, plea of--Testimony of eye-witnesses not being worthy of credit, ruled out of consideration Complainant party opening attack duly armed and actually causing injuries to co-accused and accused causing a single blow to deceased--Question of exceeding of right of self-defence by accused, held, would not arise in circumstances--Conviction and sentence set aside.

Ch. Mahboob Ahmad Khan for Appellant.

Rana Muhammad Anwar for the State.

Dates of hearing: 19th and 20th April, 1983.

This Criminal Appeal arises from the Judgment of the learned Additional Sessions Judge, Multan, whereby he on 20-9-1981, while acquitting Abdul Majid, Muhammad Sharif, Muhammad Ramzan and Allah Wasaya co-accused convicted Barkat Ali, appellant, under section 304-1, P.P.C. for causing the death of Rahim Bakhsh deceased and sentenced him to imprisonment for life and a fine of Rs, 3,000 in default thereof to further R.I. for four months. He, also, directed the appellant to pay Rs. 5,000 as compensation under section 544-A, Cr.P.C. to the heirs of the deceased and in default thereof, to further R.I. for four months.

2. The occurrence took place on 22-12-1979 at Aserwela in a field situated in Mauza Wali Motan-Mal of Police Station Lodhran. The F.I.R. Exh. P.G. was lodged by Muhammad Ramzan on the same day at 9.00 P.M. and was recorded by Muhammad Basharat S.I./S.H.O. P.W.11. The distance between the place of occurrence and the police station is 13 miles.

3. The motive as alleged by the prosecution is that about 6/7 years before the occurrence Muhammad Ramzan P.W.7 brother of the deceased promised to give his minor daughter to the appellant in marriage and in exchange the appellant gave his sister Mat. Aisha in marriage to Khuda Bakhsh, brother of the deceased. It so happened that after six months of the marriage, Khuda Bakhsh died and Mst. Aisha, sister of the appellant was got married with Muhammad Sharif, another brother of the deceased. When Mst. Amir Mai, the daughter of Muhammad Ramzan attained puberty. Barkat Ali requested for the consummation of her marriage with him but Muhammad Ramzan refused which annoyed the appellant (Barkat Ali).

4. The immediate cause of attack as disclosed by the prosecution, is that on the eventful day Muhammad Ramzan was grazing his sheep in field owned by Lal Din in square No. 36 Killa No.il, when the appellant and Abdul Majid released their sheep in that Killa. On this, there ensued a quarrel followed by exchange of abuses. Barkat Ali and Abdul Majid, then leaving their sheep there, left for the village and Muhammad Ramzan proceeded towards his house taking his sheep with him. When he reached in Killa No.11 of Square No. 36, the appellant and his acquitted co-accused reached there duly armed with sticks. Barkat Ali raised Lalkara that they would teach a lesson to the complainant for refusal to marry Mst. Amir Mai with the appellant. All the four accused then launched assault and inflicted Sota blows on the person of Muhammad Ramzan. On hearing the alarm, Ranjha P.W. and Rahim Bakhsh, deceased, were attracted to the spot. They intervened whereon Barkat Ali, appellant, gave a Sota blow on the head of the deceased. Ranjha P.W. was injured by Barkat Ali, appellant and Abdul Majid, the acquitted co-accused. This occurrence was seen by Allah Bakhsh and Muhammad Ashiq P.Ws. Rahim Bakhsh was removed but he succumbed to the injuries on his way to the hospital.

5. On 23-12-1979 Dr. Zia-ud-Din Zaidi, Medical Officer, P. W. I conducted the post-mortem examination on the dead-body of Rahim Bakhsh and found the following injury on his person:-

Contusion mark with swelling on the vertex of the head 10 x 3 c.m. transverse obliquely with abrasion on left side of the contusion mark.

On dissection of scalp, there was clotted blood under the scalp and there was depressed fracture of the occipital bone. Membranes of brain congested. Haemotoma in the anterior cranial fossa.

6. In the opinion of the doctor the cause of death was due to injury No.1, causing the depressed fracture of occipital bone, bleeding, haematoma and coma. The injury was ante-mortem caused by blunt weapon and was sufficient to cause death in the ordinary course of nature.

7. The same doctor examined Muhammad Ramzan P.W. and found seven contused wounds, one swelling and one abrasion on his person. All the injuries were caused by blunt weapon and were simple in nature. He also examined Ranjha P.W. and found two contused wounds on his person caused by blunt weapon and simple in nature. On the same day he examined Abdul Majid, the acquitted co-accused and found one contused wound besides complaint of pain in right knee. These injuries were simple in nature and caused by blunt weapon.

8. The same doctor examined Allah Wasaya the acquitted co-accused and found one contused wound besides complaint of pain in the left elbow joint. These injuries were simple in nature and caused by blunt weapon.

9. P.W.11 Muhammad Basharat arrested Barkat Ali, appellant on 23-12-1979 who produced a Soti from his house which was taken into possession vide memo. P.L. attested by Faizullah Khan P.W 10 and Sohawa Shah (not produced). This Soti was not blood-stained,

10. When examined under section 342, Cr.P.C. Barkat Ali appellant denied all the incriminating circumstances and took the plea of false implication by Muhammad Ramzan P.W.7.

'It may be noted at this stage that the two acquitted co-accused Abdul Majid and Allah Wasaya had pleaded the right of private defence. In answer to a question No. 13 Abdul Majid stated:-

"I was given beating by Rahim Bakhsh deceased, Ranjha and Ramzan P.Ws. when I was grazing my sheep in Killa No. 11. I and Allah Wasaya accused were grazing our sheep in Killa No.11 of square No. 36 which was owned by Lal Din B.D. Member and which was given to us by him for grazing purposes. Rahim Bakhsh deceased, Ranjha and Ramzan P.Ws. forcibly let in their sheep into Killa No. 11 where we were grazing. The sheep of the above mentioned persons damaged our crops. We prevented them but they insisted that they would graze their sheep in our field. We tried to drive their sheep out of our field and thus an altercation took place. Rahim Bakhsh gave a stick blow on the head of Wassu accused. It was they who opened the attack first and forcibly committed criminal trespass into our field. I and Wasu accused defended our person and property and in that attempt Rahim Bakhsh and the remaining P.Ws. were also injured et our hands. Whatever we did in the exercise of the right of private defence and have committed no offence. None else was present on the accused side."

The statement of Allah Wasaya the acquitted co-accused is also the same. They examined Lal Khan D.W.1 in their defence who stated that Killa Nos. 10 and 11 of square No. 36 were being cultivated by Muhammad Siddique as his tenant who had grown cotton crop in it. After the picking of cotton he had allowed Abdul Majid co-accused to graze his cattle in these Killas and that Muhammad Ramzan complainant and others have nothing to do with this land.

11. To prove its case the prosecution has examined as many as 11 witnesses out of whom Muhammad Ramzan P.W.7, Ranjha P.W.8, Ashiq P.W.9 have given the ocular account of the occurrence and have supported the prosecution case as stated above.

Faizullah has supported the recovery of Soti P.8 from the appellant. The statements of the rest of the witnesses are more or less of formal nature.

12. Learned counsel for the appellant contends that the prosecution has failed to prove its case inasmuch as its evidence is not confidence inspiring and in any case the observation of the learned trial Court that the appellant has exceeded the right of self-defence is legally and factually incorrect.

As against this, the learned counsel for the State has defended the judgment of the trial Court on the ground that there is ample evidence to prove that Barkat Ali had exceeded right of self-defence.

13. After hearing the learned counsel and. going through the record I find that the trial Court in its judgment has clearly found that the prosecution has failed to prove the motive alleged by it; that the story of the prosecution as to cause of the attack is inherently improbable and unnatural that the complainant and the eye-witnesses have made efforts to suppress their part in the transactions and. to explain the circumstances under which the acquitted accused received injuries; that the P.Ws. were armed and they had caused injuries to the accused; that the inception of the main transaction is shrouded in complete mystery; that the omission on the part of the prosecution to explain the injury on the person of the accused makes the prosecution version rightly doubtful and lends support to the version of the accused; that under the circumstances it was the complainant party which entered wrongfully into the grazing rights of the accused and it was the complainant which had attacked and belaboured the accused; that the P.Ws. received injury at the hands of the accused but they were exercising their right of private defence; that Rahim Bakhsh received solitary fatal blow when he tried to intervene and that since Barkat Ali has caused fatal injury, he, therefore, has exceeded the right of private defence available to him.

14. After having appreciated the case in the light of the guiding principles laid down by the superior Courts for administration of justice in such like cases I find that Muhammad Ramzan P.W. is brother of the deceased, Ranjha is sister's son of the deceased and Ashiq is not related; that all the 'three witnesses have suppressed at the trial the injuries found on the person of the acquitted co-accused although it was stated in the F.I.R. that Allah Wasaya and Abdul Majid the acquitted co-accused had received injuries during the occurrence. This would show that the witnesses are giving evidence with a motive other than' that of telling the truth and as such are basically dishonest witnesses. I am of the considered opinion that to disbelieve a witness it is not necessary that there should be numerous infirmities in his evidence and if there is one flaw which creates doubt in a reasonable and prudent mind. it may be sufficient to discard his testimony. For all these reasons I am inclined to exclude the testimony of the eye-witnesses from consideration.

15. After having excluded the testimony of the eye-witnesses, the statement of the appellant alone remains in the field wherein he has denied the incriminating circumstances. Even otherwise I am of the opinion that if the judgment of the learned trial Court is accepted at its face value, no case of exceeding the right of self-defence is made out, inasmuch as according to the trial Court the complainant party having opened the attack duly armed and having actually caused injuries to the co-accused, the question of the exceeding of right of self-defence does not arise particularly when only one blow was given by the appellant to the deceased.

16. The upshot of the above discussion is that these being no satisfactory basis for the conviction, the same is hereby set aside. The appeal is accepted and the appellant is acquitted of the charge. He shall be released forthwith if not required in any other case.

S. G. D. Acquittal ordered.

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