Find a Lawyer

Criminal Appeal No. 476 of 1983, heard on 7th July, 1985.

--‑‑‑S. 302134‑‑Defence plea‑‑Accused persons allegedly overtaking deceased after chasing him and then inflicting injuries to him‑‑Deceased after receiving sharp‑edged injuries firing on two of accused persons‑ Injured accused persons raising plea that they had acted in their self‑ defence and under grave and sudden provocation when deceased had started firing on them while he was chased by accused after he 'was seen in compromising condition with their relative lady‑‑Eye‑witnesses not seeing origin of occurrence‑‑Prosecution evidence itself presenting such features as to go to establish existence of plea of grave and sudden provocation‑‑Direct evidence of circumstances giving rise to pursuit of deceased found to be absent‑‑Nothing found on record to falsify exculpatory part of statements of accused‑‑Medical evidence showing that deceased might have fired before he was given head injuries‑‑Entire prosecution evidence failing to show that accused had done deceased to death on account of his previous misdeed Evidence brought on record could will be interpreted to mean that accused had killed deceased under grave and sudden provocation as well as in exercise of right of self‑defence of person‑‑Accused, held, had succeeded in raising reasonable doubt in prosecution case in circumstances.

‑‑‑Ss. 302/34 a 100‑‑Criminal Procedure Code. (V of 1898), Ss. 46 & 59‑‑Grave and sudden provocation and right of self‑defence Defence plea that deceased was chased by accused when he was seen in a compromising position with a relative lady of accused persons and while running away deceased started firing on accused‑‑Accused while acting in their self‑defence and under grave and sudden provocation murdering deceased‑‑Defence plea found to be plausible‑‑Accused who had seen deceased in a compromising position which tantamounted to an offence under S. 10 of Hudood Ordinance VII of 1979, held, were well within their right under Ss. 46 a 59, Cr.P.C. to pursue deceased, apprehend him and in case of resistance they could cause harm short of death When deceased started firing on accused who were chasing to apprehend him, a further right of self‑defence had accrued to them‑‑Accused, held, had killed deceased under grave and sudden provocation as well a n exercise of right of self‑defence, of person‑-Accused given benefit of doubt and acquitted in circumstances.‑‑[Private defence, right oft.

----S. 302/34‑‑Medical evidence‑‑Deceased allegedly firing revolver shots on accused persons after receiving head injuries‑‑Defence plea that deceased fired shots before receiving any injury and he was in fact aggressor‑Doctor stating in cross‑examination that deceased could not do anything after receipt of head injury‑‑Possibility of firing by deceased before receiving head injuries not ruled out‑‑Defence version accepted.

Mian Nusratullah for Appellants.

Jehan Zeb Khan for the State.

Date of hearing: 7th July, 1985.

This criminal appeal arises from the judgment of learned Additional Sessions Judge, Sargodha, whereby he on 28‑6‑1983 convicted Muhammad Nawaz son of Amir, Ghulam Muhammad son of Muhammad Yar, Nawaz son of Ahmad and Nawaz son of Ghulam Muhammad appellants under section 302/34, P.P.C. for causing death: of Ghulam Raza and sentenced them to imprisonment for life and a fine of Rs.5,000 each in default thereof further R.I. for six months each. The appellants were also directed to pay Rs.1,000 each as compensation to the legal heirs of the deceased. In default whereof to undergo R.I. for six months.

2. The occurrence took place on 18‑7‑1982 at 6 a.m. outside the house of Mst. Saleh Bibi situated in village Jahanian Shah of Police Station Sahiwal. The F.I.R. is statement Exh..P.B. of Muhammad Khan the uterine brother of the deceased which was recorded on the same day at 9 a.m by Masood Ahmad A.S.I.P.W.9 at the Dera of Muhammad Bakhsh situated in village Thathi Sahibzada. The formal F.I.R. Exh. P.B./I was drawn up at Police Station Sahiwal by Muhammad Shameer P.W. 7.

3. The motive as set up by the prosecution was that the appellants were suspecting Ghulam Raza deceased having illicit, relations with Mst. Saleh Bibi their close relative.

4. As far the main occurrence, it has been stated that at the eventful time Muhammad Khan complainant P.W. 2 was in the house of his mother which is at a distance of 11 miles from the place of occurrence. He saw the deceased, coming from village Jahanian Shah and running towards Abadi Fateh Kot Shah. He was being followed by the appellants. Muhammad Nawaz son of Ameer and Ghulam Muhammad son of Muhammad Yar appellants were armed with hatchets and the rest of the appellants were having Sotas with them. The appellants overtook the deceased near Abadi Jahanian Shah. Muhammad Nawaz and Ghulam Muhammad appellants gave hatchet blows on his. head and face. The deceased who was already carrying a revolver with him fired three shots out of which two hit Muhammad Nawaz son of Amir while the third one did hit Ghulam Muhammad appellant, causing injuries in/on their abdomen and leg respectively. Thereafter the remaining appellants gave Sota blows on the person of the deceased. The occurrence was seen by Muhammad Khan P.W. 2, Allah Bakhsh P.W. 3 and Wali Dad not produced.

5. The appellants were arrested on 19‑7‑1982 by Masood Ahmad A.S.I. who removed blood‑stained shirt P.13 and Jacket P. 14 from the person of Muhammad Nawaz son of Amir appellant. The clothes were taken into possession vide memoranda P.N. Nawaz son of Ahmad and Nawaz son of Ghulam Muhammad got recovered Sotas P. 6 and P. 7 which were taken into possession vide memoranda P.G. and P.H.O n 3‑8‑1982 Muhammad Nawaz son of Amir got recovered blood‑stained hatchet P. 5 from a room which was taken into possession vide memo. P.F. On the same day Ghulam Muhammad appellant got recovered blood stained hatchet P. 4 from abandoned Kotha which was taken into possession vide memo. P.E. The Serologist reports show that the hatchets were stained with human blood.

6. Doctor Muhammad Zafar Iqbal conducted post‑mortem examination on the dead‑body of he deceased on 1Q‑7‑1982 at 7 a.m. He found following injuries:‑

(1) An incised wound 10 x 2 c.m. on the forehead on the right side. Wound was deep up to the bone.

(2) An incised wound 7 x 2 c.m. on the fortal part of the head, 2 c.m. at the distance from injury No. 1.

(3) An incised wound 2 x 1 c. m. on the doewhwad on the left side at the distance of 5 c.m. from the injury No. 2.

(4) An incised wound 4 x 2 c.m. On the right cheek.

(5) An incised wound 4 x 1 c.m. On the chin on the left side at the distance of 6 c.m. from injury No. 4.

(6) An incised wound 7 x 2 c.m. on the chin at the distance of 6 c.m. from injury No. 5.

(7) An incised wound 3 x 2 c.m. on the right forearm.

(8) A contused area 10 x 5 c.m.

(9) A contused area 25 x 6 c.m. on the left shoulder on the front part.

(10) A contused area 13 x 3 c.m. on the frontal part of the neck.

(11) An incised wound 4 x 3 c.m. on the base of the penis.

(12) A contused area 4 x 3 c. m. on the right hip joint.

(13) A contused area 5 x 3 c.m. on the illiaccrest 2 c.m. from injury No. 12."

In his opinion the death had occurred .due to shock and haemorrhage as a result of injuries Nos. 1 to 6 which were sufficient to cause death in the ordinary course of nature. The injuries were caused by sharp‑edged as well as by blunt weapons. The death was immediate. The time between the death and the post‑mortem was 24 to 30 hours. In cross‑examination he stated that the deceased could not do anything after the receipt of head injuries and must have fallen down. He could not fire the revolver after the receipt of injuries Nos. 1 and 2.

7. To prove its case prosecution examined nine witnesses. Muhammad Khan P.W. 2 and Allah Bakhsh P.W. 3 give the ocular account of the occurrence. Muhammad Khan P. W. 2 stated that he was present in the house of his mother when he heard alarm of Ghulam Raza deceased who was running towards village Jahanian Shah. At that time he was being chased by the appellants. When Ghulam Raza reached at a distance of one square towards the east of the Abadi of Jahanian Shah, the four appellants overtook him. Muhammad Nawaz son of Amir and Ghulam Muhammad son of Muhammad Yar give him injuries with their hatchets which struck him on his face and head. Ghulam Raza was holding a revolver. To save his life, he fired from it thrice. Two shots hit Muhammad Nawaz son of Amir in his abdomen whereas the third one hit Ghulam Muhammad on his leg. Ghulam Raza then fell down. Thereafter Nawaz son of Ahmad and Nawaz son of Gaman, give Danda blows on his person. The appellants then removed the revolver of Ghulam Raza and ran away. Allah Bakhsh P.W. 3 made similar statement. Amir Hussain P.W. 4, Ghulam Rasool P.W. 5, and Masood Ahmad P.W. 9 have supported the recoveries of the weapons from the appellants. Dr. Muhammad Zafar Iqbal P.W. 1 has proved the post‑mortem report of the deceased. The rest of the evidence is more or less, of formal nature.

8. When examined under section 342, Cr.P.C. the appellants denied all incriminating circumstances. Nawaz son of Amir and Ghulam Hussain son of Muhammad Yar however admitted their participation in the occurrence‑‑and have owned the death of the deceased. They pleaded right of self‑defence of person as well as grave and sudden provocation. In reply to question No. 6 i.e. how do you explain the injuries on your person Muhammad Nawaz son of Amir stated:‑

"I and Ghulam Muhammad accused are nephews of Saleh Muhammad and all of us live together. Saleh Bibi is wife of our uncle Saleh Muhammad. On 18‑7‑1982, I and Ghulam Muhammad came from our field after cutting branches of the Keekar trees. We were holding hatchets We saw Ghulam Raza deceased in a compromising position with Mst. Saleh Bibi. Ghulam Raza deceased started running and we chased to apprehend him. On this Raza deceased started firing at us and I and Ghulam Muhammad co accused in our self‑defence and under grave and sudden provocation caused simple injuries to him from the right side of the hatchet and from the wrong side of the hatchet. Nawaz son of Ahmad and Nawaz son of Ghulam Muhammad accused were not present at the spot nor any witness saw the occurrence. I reported the matter to the Police."

Ghulam Muhammad appellant made almost the same statement. Nawaz son of Ahmad and Nawaz son of Ghulam Muhammad have denied their presence on the spot. They have raised plea of false implication.

9. The learned counsel for the appellants submitted that there it no direct evidence of the circumstance in which the appellant followed the deceased; that the eye‑witnesses only saw the deceased being followed by the appellants and then causing his death and as such there is a reasonable possibility of the defence version being true. On the other hand the learned counsel for the State had supported the judgment of the trial Court.

10. I have considered the arguments advanced by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel that in the circumstance of the case, there is a reasonable possibility that the defence version given by Muhammad Nawaz son of Amir and Ghulam Muhammad might be true. The eye‑witnesses had not seen the origin of the occurrence. Muhammad Khan P.W. 2 has clearly stated in cross‑examination that III do not know what preceded before I saw the deceased being persuaded by the accused persons". Allah Bakhsh P.W. 3 was also not in a position to depose about the circum stances in which the appellants pursued the deceased, so the prosecution evidence itself presents such features as go to established the existence of the plea of grave and sudden provocation. Ghulam Hussain appellant has stated that at the time of occurrence they had seen Ghulam Raza deceased in compromising position with Mst. Salehon their close relative who seeing them started running so they chased him in order to A apprehend him; whereupon Raza started firing at them, therefore, he and Ghulam Muhammad injured him in their self‑defence and under grave and sudden provocation. There is total absence of direct evidence of the circumstances giving rise to the pursuit by the deceased and only appellants' words are available which have to be believed per force, as there is nothing on record to falsify the exculpatory part of the statement of the two appellants. Once the Court holds that the two appellants had seen the deceased in compromising position which tantamounts to an offence punishable under section 10 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 then the appellants were well within their rights under sections 46 and 59 of the Cr.P.C. to pursue the deceased, apprehend him and in case of resistance they could also cause harm, short of death. Since in the case in hand, the deceased had opened fire at the appellants causing injuries to Nawaz son of Amir and Ghulam Muhammad, therefore, a further right of self defence of person extending to the causing of the death of the deceased had occurred to them. From the statement of the Doctor, it is‑very much obvious that the deceased might, have fired before he was given head injuries which according to the prosecution case were inflicted first. The entire evidence does not by any stretch of imagination shown that the appellants had done the deceased to death on account of his previous misdeed. The evidence brought on the record can well be interpreted to mean that the appellants had killed the deceased under grave and sudden provocation as well as in exercise of right of self defence of person. For all these reasons, I am of the view that the appellants have succeeded in raising reasonable doubt in the prosecution case and as such there is a reasonable possibility of their version being correct.

11. The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction and while giving the benefit E of doubt to the appellants, they are acquitted of the charge. They shall be set at libery forthwith if not required to be detained in some other case.

H. A. K. Appeal accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.