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Criminal Revision No. 1511) of 1983, decided on 18th April, 1984.

‑‑‑S. 439‑‑Penal Code (XLV of 1860), S. 302‑‑Evidence Act (I of 1872), S.32‑‑Revision against acquittal‑‑Deceased making dying declaration to his parents but prosecution failing to produce accused's parents‑‑Non production, held, could validly lead to presumption that had they been produced they would not have supported prosecution version.

‑‑‑S. 439‑‑Penal Code (XLV of 1860), Ss. 302 & 300, Exceptions‑‑Revision against acquittal‑‑Presence of eye‑witnesses at scene of occurrence doubtful‑‑Occurrence taking place at night and prosecution not able to locate actual culprit had accused not admitted occurrence‑‑Accused acting under sudden and grave provocation in order to save himself from unnatural lust at hands of deceased‑‑Provisions of section 300, Exception 4, Penal Code, attracted‑‑Order of Sessions Judge extending benefit of section 300 Exception 4 to accused, held, neither irregular nor illegal‑ Interference declined in revision.

‑‑‑S. 439‑‑Penal Code (XLV of 1860), Ss. 302 & 300‑‑Revision‑‑Prosecu tion failing to establish its case on its own side and basing its conviction on admission of accused‑‑Statement of accused, held, could either be believed in toto or rejected straightaway.‑‑[ Admission]

‑‑‑S. 439‑‑Penal Code (XLV of 1860), S. 300, Exception‑‑Revision Where law condemns murder of person and inflicts major penalty for such offence it also; held, entitles another person when he feels apprehension of death or dishonour to commit murder with a view to save his person and honour.

‑‑‑S. 439‑‑Penal Code (XLV of 1860), Ss. 302 & 300, Exception‑ Revision‑‑Act committed in accordance with law, held, was no offence as where law admitted of certain acts commission of such acts became lawful.

S. Zafar Abbas Zaidi for Petitioner.

Muhammad Ishaq Khan Kundi for Respondent No.1.

H. Saadullah Khan Miankhel, A.A.‑G. for the State.

Date of hearing: 18th April, 1984.

In this Criminal Revision petition Mir Abbas son of Bhai Khan, resident of Kali Wandah, Police Station Paniyala, Tehsil and District Dera Ismail Khan has challenged the order dated 17‑4‑1983 of Malik Muhammad Parvez Khan, Sessions Judge, D.I. Khan, whereby he acquitted Amanuilah son of Akbar Khan, Lawal Khel, Police Station Paniyala of the charge under section 302, P.P.C.

2. Facts leading to the instant Criminal Revision may be briefly summarised thus. On 4‑8‑1982 at 2‑30 a.m. petitioner Mir Abbas lodged a report in Police Station Paniyala that the night intervening 3‑8‑1982 and 4‑8‑1982 at 11‑30 p.m. while he alongwith his brother Amanullah (deceased) and their uncle Pashmin Khan were present in the Baithak of Noor Ghulam, Amanullah accused armed with a 'topak' came there and sat with Amanullah (deceased) on the same 'charpai'. Amanullah (deceased) made him smoke 'chillum' and Amanullah (accused) stood up in order to go to his house. Immediately he fired a shot at Amanullah (deceased) with which lie was hit and the accused fled from the spot. On the report of fire shot, his mother and father also arrived on the spot whom Amanullah (deceased) narrated the occurrence charging Amanullah (accused) for firing at him. The deceased, however, succumbed to the injury soon after. This report was recorded vide F.I.R. No. 105, dated 4‑8‑1982 of P.S. Paniyala. After recording the report, Umar Hayat Khan, S.H.O., P.S. Paniyala proceeded to the spot and leaving a foot constable with the deceased of Amanullah (deceased) he went to the house of the accused who was arrested therefrom alongwith an unlicensed shot gun. A case under section 302, P.P.C. and 13, Arms Ordinance was registered and after due investi gation the challan was put in the Court of Sessions fudge, D.I. Khan.

3. At the trial the prosecution produced as many as eight witnesses in support of its case. The material prosecution witnesses are Dr. Muhammad Hashim Khan (P.W.4), Rehmatuilah Khan, E.A.C. and M.I.C. D.I. Khan (P.W.5), Mir Abbas (P.W.6), Pashmin Khan (P.W.7) and Umar Hayat Khan S.I. (P.W.8). Umar Hayat Khan (P.W.8) who was posted as S. H. O. Paniyala during those days had recorded the F. I. R. Exh. P. A. and had also arrested the accused from his house, alongwith the unlicensed shot gun, P.6. He had prepared the injury sheet, Exh. P.B and Inquest report, Exh. P.C. of the deceased. He also collected blood‑stained earth from the spot and took the same into possession. He also took into possession one charpoy P.1 and a 'Chillum' P.2, besides a shirt, P.3, Shalwar P.4 and a vial, P.5, containing five pellets produced before him by F.C. Bhawal Khan who had brought the same from the mortuary which were handed over to the latter by the Doctor after post‑mortem examination. This P.W. had also prepared the site plan, Exh. P.I. at the instance of Mir Abbas complainant and Pashmin Khan (P.W.).

4. Dr. Muhammad Hashim Khan, Medical Officer, Civil Hospital, Wana who during those days was posted as Medical Officer, Civil Hospital, Paniyala, had conducted autopsy on the dead body of Amanullah (deceased) on 4‑8‑1982 at 8 a.m. and on external examination had found one wound of entrance of firearm 1I" in diameter on the left buttock, two inches away from the anus with corresponding hole in the Shalwar. On internal examination he had found the abdominal walls, peritoneum and small and large intestines injured. Peritoneal cavity was containing blood and vestival contents. Bones muscles of left buttock were also found injured. In the opinion of the doctor death was the result of injury to large and small intestines, resulting in bleeding and shock. Probable time that elapsed between injury and death, according to the doctor, was 20 to 30 minutes and that between death and post‑mortem examination was 819 hours. Post‑mortem Report is Exh. P.D.

5. Mr. Rehmatullah Khan E. A. C‑III and M. I. C., D. I. Khan had recorded the confessional statement of Amanullah (accused) on 5‑8‑1982 which is Exh. P.J, after performing all the legal formalities.

6. Mir Abbas Khan P.W.6 and Pashmin Khan P.W.7 claimed to be the eye‑witnesses and gave the details of the incident.

7. Amanullah (accused) in his statement under section 342, Cr.P.C. admitted to have gone to the 'baithak' of Pir Ghulam. He also admitted his arrest from his house alongwith the unlicensed shot gun. He affirmed the contents of the confessional statement Exh. P.J. In his detailed statement he gave the following version:‑

"The deceased used to pasterms for having illicit relation with him. On the night of occurrence I was going back to my house, it was dark and I was carrying on my shot gun in which I had loaded a catridge for the purpose of safety. Unfortunately while passing by the 'baithak', I got there in the company of the deceased, where I was attracted to have a smoke. When I was rising up, he caught hold of me and threw me on the 'charpai'. He wanted to commit sodomy on me. I have placed my gun on the foot side of the 'charpai'. In this struggle it also fell down on the ground. He gain rose and caught hold of me. We struggled for some time when I gave him a push and he, fell down face downwards on the 'charpai . I went down to pick up my shotgun and from the same position I fired at him. I then ran away to my house. We have no enmity at all with each other. I had committed this Act both in defence of my honour and body as well as under grave and sudden provocation. None of the so‑called eye‑witnesses were present at all. They are false witnesses and there was only one 'charpai' on which the deceased was sitting. The 'baithak' belongs to Pir Ghulam and visited by different people occasionally and I also used to go there off and on. I had produced shotgun and surrendered to the Police on the following day of occurrence."

8. Arguments of the learned counsel for the parties have been heard and record of the case examined.

9. Mir Abbas Khan P.W.6 stated in his statement that on the night of occurrence, he alongwith his deceased brother and Pashmin Khan P.W. were present in the 'baithak' of Noor Ghulam when at about 11/1130 p.m., Amanullah (accused) armed with a firearm arrived there and sat with the deceased on the same 'charpai'. Both the accused and the deceased smoked 'chillum' and the accused in order to leave the 'baithak' got up. But simultaneously fired a shot at the deceased with which he was hit. The accused decamped from the spot and his father and mother also arrived on the report of fire shot to whom the deceased narrated the occurrence whereafter he died. In cross examination he admitted that there were three 'charpais' in the 'baithak' and all the three namely the deceased, the P.W. and Pashmin Khan P.W. were sitting on separate 'charpais'. At the trial neither the mother nor the father of the deceased have been produced. They were abandoned by the prosecution as unnecessary witnesses. It is the prosecution case that the deceased had made a dying declaration before his parents. Their non‑production at the trial can validly be presumed that, had they been produced they would not have supported the prosecution version. It is again not supported by the site plan prepared by the I.O. at the instance of Mir Abbas and Pashmin Khan because only one 'charpai' was recovered from the spot by the I.O. and in the site plan as well only one 'charpai' is shown to be lying on the spot. This also goes a long way to suggest that the two P.Ws. Pashmin Khan and Mir Abbas were not present at the time of occurrence. Mir Abbas P.W. had stated that when the deceased was fired at he had his face towards them. Pashmin Khan on the other hand stated that the deceased had his back towards them and not his face. Besides in his statement at the trial Mir Abbas stated that at the time when the accused got up after having a smoke his deceased brother laid himself down on the 'charpai' but this fact is not recorded in his statement before the Police. Similarly Pashmin Khan also claimed that after having taken a smoke the accused got up and the deceased laid down on the 'charpai' but he too did not say so in his statement before the Police. Mir Abbas admitted that his house is situated at the distance of 90 paces from the spot and that first of all house of Saddullah son of Bahawal comes in the way then they proceed towards their house. If the assertion of the prosecution witnesses is taken to be true the natural presumption would arise as to why the inmates of the house of Saadullah Khan were not attracted to the spot. It is a fact that Mir Abbas P.W.6 is the brother and Pashmin Khan P.W.7 is a real uncle of deceased Amanullah. They being, closely related to the deceased, their evidence requires thorough scrutiny. No doubt a relative witness is that much a reliable one as disinterested person, at the same time in an offence where the accused is charged for a capital offence the statement of witness who is closely related to the deceased requires corroborative support. In this case besides the contradiction and improvement made by prosecution witnesses their presence on the spot at the relevant time is not supported by the mere fact that while they say that they were present in the Chowk lying can separate 'charpai' with a view to stay for the night there in the 'baithak' the I.O. recovered only one 'charpai' on which the deceased was lying. Thus their presence at the odd hour becomes doubtful. It is in their evidence that houses of other people are situate near the 'baithak' but neither of the disinterested persons out of the entire locality has been produced by the prosecution to render support to its version. Even the position of the deceased at the time of occurrence and that of the accused is contradicted by the pivot prosecution witnesses. It is a case of night occurrence and prosecution would not have been able to locate the actual culprit had the accused not admitted the occurrence.

10. Once I have held that the prosecution has miserably failed to bring home guilt to the accused, I am left with the solitary statement of the accused recorded under section 342, Cr.P.C. read with the judicial confession made by him before a Magistrate which is Exh. P.J. The accused has in clear words admitted the murder of Amanullah (deceased) under sudden and grave provocation in order to save himself from the unnatural lust at the hands of Amanullah deceased. In a case where the prosecution fails to establish its case on its own side and bases its conviction on the admission of the accused, it becomes all the more pertinent to either believe statement of the accused in its totalitarian or to reject it straightaway. The accused has taken the plea of self defence of his honour and under sudden and grave provocation. Where the law condemns the murder of person and inflicts major penalty for such offences, it also entitles another person when he feels apprehension of death or dishonour to commit the murder with a view to save his person and honour. Since I have the only material in the shape of the confessional statement and the statement recorded under section 342, Cr.P.C. of Amanullah (accused) before me it on its face leads to the conclusion that to prevent the deceased to commit sodomy on the accused and the fact that prior to the firing, there was struggle of attempt and rescue between the deceased and the accused, it definitely gravely provoked the accused who was armed with a shotgun to use it in the exercise of the right of his honour and person. The law laid down in section 100 Exception (4), P.P.C. definitely comes to help the accused. There can be no dispute that an act committed in accordance with law is no offence. Where the law admits of certain acts, the commission of C such acts becomes lawful. The learned Sessions Judge, D.I. Khan. extended the benefit of right of private defence to the accused as contemplated by section 100, Exception (4), P.P.C. and I see no reason to disagree with the findings arrived at by the learned trial Judge. H Accordingly seeing no irregularity or illegality in the judgment of the learned trial Judge, this criminal revision petition needs no interference and accordingly I dismiss it.

M. Y. H. Petition dismissed.

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