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Criminal Appeal No.50, Criminal Revision No.100 and Murder Reference No.47 of 1984, decided on 18th May, 1987.

---Ss.302 & 34--Case of two versions and parties trying to blame each other of aggression--Eye-witness mother of deceased, inimically disposed towards accused and inspiring no confidence--Dying declaration losing its authenticity and genuineness having been recorded by a police officer who was allegedly present in vicinity and on hearing rumour, source whereof shrouded in mystery, reached on the spot--Capability of deceased to make statement doubtful- Another dying declaration allegedly made by deceased to his son which appeared to be an attempt at perjury, and no value could be attached to it--Recovery of gun of no 'consequence--No other prosecution evidence left to connect accused with commission of murder of deceased--Plea of self-defence, taken by accused, satisfactorily established by circumstances and reasonable possibility of plea being true could not be ruled out--Omission on part of prosecution to explain injuries on person of accused making prosecution version highly doubtful and lending support to plea of self-defence raised by accused--1eld, prosecution failed to prove its case beyond reasonable doubt--Accused benefit of doubt and acquitted in circumstances.

--S.300, Exception 2--Right of self-defence--Entitlement to benefit of such right--Test--Whether in setting up plea accused has created reasonable doubt in the case of prosecution and thereby earned right of acquittal--Even if evidence failed to satisfy the Court affirmatively of existence of circumstances entitling accused to exercise of right of self-defence, he will still be entitled to acquittal, if upon a consideration of evidence as a whole 'a reasonable doubt is created in mind of Court whether accused is or is not entitled to benefit of Exception 2, 5.300, P.P.C.

Aftab Farrukh for Appellants.

J.V. Gardner for the State.

Kh. Sarfraz Ahmad for the Complainant.

Date of hearing: 18th May, 1987.

.--This Criminal Appeal No.50 1984, Murder Reference No.47/84 and the connected Criminal Revision No.100/84 for the enhancement of the sentence, of Nazir and Muhammad Nawaz appellants, arise from the judgment of the learned, Additional Sessions Judge, Sialkot whereby he on 28-1-1984 while :acquitting Bashir Ahmad co-accused convicted Nazir Ahmad alias Shera (32), Nazir Ahmad alias Jeeroo (28) and Muhammad Nawaz (40) under section 302/34, PPC for the murder of Muhammad Khan (55) and sentenced them as under:-

(i) Nazir Ahmad alias Shera to death and a fine of Rs.2,000/- or in default two years' R.I.;

(ii) Nazir alias Jeeroo and Muhammad Nawaz to 7 years' R.I. and a fine of Rs.2,000/- in default thereof one year R.I

It was directed that half of the fine if recovered be paid to the legal heirs of the deceased.

2. The occurrence took place on 26-1-1982 at Degarwela near the house of deceased in village Gujral, 11 kilometer from Police Station Head Merala. The FIR, is statement Ex.PG of Muhammad Khan deceased which was recorded by Fazal Hussain S.I. /SHO PW.9. at 9 p.m. on the same day on the spot. The formal FIR PG/1 was drawn up by Abdur Rashid Moharrir Constable PW.5 on the same day at 10 p.m.

3. The motive as alleged by the prosecution was that Muhammad Khan deceased had a dispute with Muhammad Nawaz son of Sardar Khan over a house. The appellants were supporters of the latter. The 'deceased filed a suit against them one year before occurrence. The three appellants, Bashir Ahmad acquitted accused and Muhammad Nawaz son of Sardar Khan used to him and Dilawar Hussain PW of dire consequencne; hence this occurrence.

4. As for the main occurrence, it has been stated that at the eventful time, Muhammad Khan deceased was urinating on a Dung Store lying near his house when the three appellants and Bashir Ahmad acquitted accused came there duly armed with guns. Nazir Ahmad alias Shera fired a shot and some pellets hit the deceased on his right cheek. The deceased started bleeding. Thereafter, the other appellants and the acquitted accused fired shots on the wall of the house of the deceased. This occurrence was seen by Mst. Allah Raktli PW.7 and Manzoor (not produced). Muhammad Khan succumbed to the injuries on 31-1-1982 and section 302, PPC was added in the FIR.

5. On 26-1-1982 at 11-15 p. m. Dr. Muhammad Nawaz P. W.10 examined Muhammad Khan while he was alive. He found following injury on his person:

"Circular wound of diameter x depth not probed about 2" below the left eye. The margins of the wound was ragged and blackening (spotted and mottling) around the wound were present. The skin of the eye above the wound was 'bluish and apparently the internal organic of the eye were nad. They were bleeding per left nostril."

The patient was semi-conscious and agitated at that time. He succumbed to the injuries on 31-1-1982. The same doctor conducted post-mortem examination on his dead body on 1-2-1982 and found following injury:-

"A circular wound of V diameter. About below the left eye. On dissection meninges were contused and brain substance was also contused and cereberal haemorral haemorrhage was present in right parite-occipital region. Maxillary bone was fractured. A metallics bullet piece was removed and a sealed bottle containing the bullet was handed over to the police."

The injury was caused by fire-arm and was grievous and dangerous to life. Death was due to shock and haemorrhage as a result of the aforesaid injury which was sufficient to cause death in the ordinary course of nature. In cross-examination, the doctor stated that Muhammad Khan was in great prostration and restless. His pulse was also of small volume and blood pressure 85/60 and in this condition; was very difficult for him to 'make statement.

6. Dr. Muhammad Saeed examined Nazir Ahmad alias Shera appellant on 27-1-1982 and found following injuries on his person:-

(i) Abrasion circular. 3 cm in diameter with reddish area around the wound and crust on the wound on the right front of thigh 9" above the right knee joint and another wound 5" above and lateral to the wound number one which. 35 cm in diameter surrounded reddish area and swollen.

(ii) Abrasion. 3 cm in diameter on the medial side ulnar border of right hand 1l" below the wrist joint at the fifth metacarpal area.

(iii) Abrasion. 3 cm in diameter on the right upper arm medial side of 1" above the elbow joint surrounded by red area.

(iv) Circular abrasion within verted margin. 4 c.m. on the right side of neck. I above the clavicle with red circular surrounded area. 5" around the wound."

Injury No.l was caused by fire-arm and the rest were caused by the blunt weapon. All the injuries were simple. On the same day, the Dr. examined Nazir Ahmad allas Jeeroo appellant and found following injury on his person:

"Lacerated wound 1" x " scalp deep on the right side of the skull, on the parietal region. Injury No.l was kept under observation and was advised X-Ray which later on was declared simple on the basis of X-Ray report. Injury was caused by blunt weapon and the duration was within 18 to 20 hours."

The injury was caused by blunt weapon and was simple in nature. The duration between the injury and the examination was between 18 and 20 hours.

7. Nazir Ahmad alias Shera and Nazir Ahmad alias Jeeroo were arrested on 30-3-1982 by Ghulam Muhammad Inspector C.W.1 Muhammad Nawaz appellant and Bashir Ahmad acquitted accused were arrested by Fazal Hussain S.I. PW.9 on 3-3-1982. _On 13-4-1982 Nazir Ahmad alias Shera led to the recovery of gun P.5 from his house which was taken into possession vide Merno PB attested by Dilawar Hussain PW.1, Nazir Hussain (not produced) and Ghulam Muhammad Inspector CW.1. On the same day Nazir alias Jeeroo led to the recovery of carbine P.6 from his house which was taken into possession vide Memo PC attested by the same witnesses. No recovery was effected from Muhammad Nawaz appellant and Bashir Ahmad acquitted accused. It may be noted that no crime empty was removed from the spot and as such the recovery of guns from Nazir alias Shera and Nazir allas Jeeroo is of no consequences.

8. To prove its case, the prosecution produced ten witnesses. Ghulam Muhammad Inspector was examined as CW.1. Mst. Allah Rakhi P. W. has given the ocular account of the occurrence. She claimed to have seen Nazir Ahmad alias Sherafing shot hitting the deceased resulting in his death. She further stated that the shots fired by other appellants and the acquitted accused had hit the wall of her house. Dilawar Hussain PW.1 deposed about the dying declaration allegedly made by the deceased before him immediately after the occurrence. He stated that when he reached the spot after the occurrence, his father Muhammad Khan told him that the appellants and Bashir Ahmad acquitted accused had come to the place of occurrence armed with guns and that Nazir Ahmad alias Shera had fired shot hitting him nor the left eye, and that the other accused had fired shots on the walls of his house. Fazal Hussain S.I. /SHO has proved statement Ex.PG of Muhammad Khan which tantamounts to dying declaration,...Dilawar Hussain PW.1 and Ghulam Muhammad Inspector CW.1 have stated that Nazir alias Shera and Nazeer alias Jeeroo had got recovered guns P.5 and carbine P.6 respectively from their houses. Dr. Muhammad Nawaz PW.10 has proved the post-mortem' examination report of the deceased. Dr. Saeed PW.2 has proved the medico-legal report relating to the injuries found on the person of Nazir alias Jeeroo and Nazir alias Shera. The rest of the evidence is of formal nature.

9. When examined under section 342, Cr.P. C. the appellant pleaded right of self-defence of person. In reply to question No.8, Nazir Ahmad alias Shera stated: -

"I am innocent. About 9 years back a case regarding the abduction of Mst. Zohra Bibi the real sister of Muhammad Khan deceased was registered against me in which I was acquitted, besides that a large number of criminal cases were registered against me and my other close relatives on one side and the deceased and his relatives on the other side. A long-standing enmity was going on between the parties. About 4 days prior to the occurrence a case under section 325, PPC was registered against the deceased and others at the instance of one Gtl, lam Mustafa and a counter-case pertaining to the same incident was registered against Nazeer son of Ismaeel co-accused and others. To avenge the said recent criminal case on 26-1-1982 at about 3-00 P. M. when I alongwith Muhammad Nawaz son of Muhammad Khan and Nazeer son of Ismaeel co-accused were going towards the fields, Muhammad Khan deceased and his companions namely Shabbir, Munir, Manzoor and Dilawar waylaid us on the village path near the transformer. Muhammad Khan deceased fired at me with a .12 bore gun, the pellets of which hit me on my thigh and arms and neck. Dilawar son of the deceased threw his brickbat which resulted two injuries on the head of Nazeer son of Ismaeel co-accused. I and my companions hurriedly retreated and took position in a water channel. Muhammad Khan deceased and his companion opened fire on us and I also fired two shots with a carbine in the exercise of right of self-defence. In exchange of firing Muhammad Khan deceased sustained a pellet injury on his face which resulted in his death. The incident was witnessed by Muhammad Iqbal son of Sardar Khan, Muhammad Iqbal son of Muhammad Din, Muhammad Ali son of Fateh Din, Manzoor son of Abdul Ghani and Bashir son of Lal Din all Rajput by caste residence of village Gujral. Immediately after the incident I xoported the matter to the Head Marrala Police through my first cousin namely Rehmat Ali. I and my companions under the apprehension of any second attack at the hands of the opposite party did not dare either to go to the police station or got our self medically examined. Any how, one ASI accompanied by few constables of Head Marrala police station came to the village and with the connivance of the complainant party chose to register the case against me and others. The police also recorded my statement under section 154, Cr.P.C. Ex.D.E. The police assured me that a cross-case would be registered against Muhammad Khan deceased and others. I and Nazeer son of Ismaeel co-accused were also medically examined through the police. My version of the incident was supported by the independent respectable witnesses from the village during the investigation of the case."

The other appellants except Bashir made almost similar statement. Bashir Ahmad acquitted accused raised plea of alibi. In defence Taj Din was produced as DW. 1 who deposed about the alibi of Bashir Ahmad acquitted accused.

10. The learned trial Court acquitted Bashir Ahmad co-accused giving him the benefit of doubt and while believing the ocular evidence, the dying declaration and the motive, convicted and sentenced the appellant as stated above.

11. The learned counsel for the appellants argued that the dying duration Ex.PG made by Muhammad Khan before Fazal Hussain is in fact fake and fabricated, inasmuch as in view of the injury found on the person of the deceased and his condition immediately after receiving the same, the deceased could not have made any statement; that the dying declaration deposed by Dilawar Hussain PW is afterthought one; that Mst. Allah Rakhi is not a reliable witness. She has suppressed the injuries received by the two appellants; that Muhammad Khan deceased did not explain the injuries found on the person of the two appellants in his statement Ex. PG.; that immediately after the occurrence, the appellant had raised the plea of self-defence before the police, and that in the circumstances of the case, there is at least a reasonable possibility that the plea of the right of self-defence raised by the appellants might be true. Conversely the learned counsel for the State assisted by the learned counsel for the complainant has supported judgment of trial Court.

12. We have anxiously attended to the arguments advanced by the learned counsel for the parties. We find that it is a case of two, versions. The parties have tried to blame each others of aggression.We propose to examine the prosecution case and its evidence first, in order to come to conclusion with regard to its truth or falsity. Thereafter we may examine the two rival cases placing them in juxta position and will review the entire evidence and the surrounding circumstances at a close, to arrive at a conclusion regarding the truth or falsity of the defence plea and will estimate its total effect in relation to two questions, vie.

(i) Is the plea of self-defence raised by the appellants satisfactory established by the evidence or circumstances appearing in the case

If the answer be in the negative, then;

(ii) Is there fret a reasonable possibility that the plea raised by the appellants might be true, so as to cast a reasonable doubt upon the prosecution case

Having appreciated the instant case in accordance with the principles laid down by the superior Courts for the appreciation of evidence in cases of two versions, we find that the time of occurrence, the presence of the appellants, presence of the deceased, weapon of offence used by Nazir alias Shera appellant, firing of shot by him hitting the deceased resulting in death, are the admitted facts of the case. The receiving of five injuries including fire-arm injury by Nazir allas Shera and Nazir alias Jeeroo appellants at the time of occurrence, appearance of Nazir alias Shera and Nazir alias Jeeroo before the Police in injured condition on the day of occurrence and raising plea of self-defence vide statement Ex.PE/are the proved facts and circumstances of the case. While discussing the prosecution case we propose to start with the ocular testimony . . . . .. furnished by Mst. Allah Rakhi PW.7. Having considered her statement in accordance with the guidelines given by the superior Court for the appreciation of ocular evidence in such like cases, we find that Mst. Allah Rakha is not a confidence inspiring witness in that she is not only mother of the deceased but is inimically disposed towards the appellants. In cross-examination she has stated that the appellants had abudcted her daughter before the present occurrence. She has also suppresses the injuries found on the person of the two appellants namely Nazir alias Shera and Nazir alias Jeeroo. On her own showing she was prosecuted for inflicting injury to her mother. She was convicted till rising of the Court under section 193, P.P.C. and was also prosecuted Q for the murder of Noor Hussain although she was subsequently acquitted. She has admitted that in the murder case against her, Bashir Ahmad acquitted accused was a prosecution witness. In view of the aforesaid infirmities pointed out by us it would be in accordance with the safe administration of justice in criminal case that her statement should be excluded from consideration. Adverting to the FIR Ex.PG i.e. the dying declaration, we find that there are reasons to doubt its authenticity and genuineness. The dying decalaration was recorded by Fazal Hussain S.I. on the spot. He has stated that he was on patrol duty at a distance of one or 11 miles from the place of occurrence when he heard the rumour that an incident has taken place in mauza Gujjral so he went there and found Muhammad Khan C lying in injured condition in his house and he recorded his statement Ex.PG. This shows that the SHO conveniently happened to be present somewhere in the vicinity and on hearing rumour source whereof is shrouded in mystery, he reached the spot and recorded statement Ex.PG. The manner in which the FIR/dying declaration was recorded in the instant case is somewhat unusual. The capability of Muhammad Khan to make statement Ex.PG is also doubtful. The nature .of the D injury, its location and the statement made by the doctor that it was very difficult for the deceased to make statement throw sufficient doubt on the genuineness of statement Ex.PG. Adverting to the alleged oral dying declaration made by the deceased before his son Dilawar Hussain P. W.1 we find that this is an attempt at perjury, inasmuch as Dilawar Hussain in his statement recorded under section 161, Cr.P.C. did not depose about the dying declaration made by the deceased involving the appellants in his murder. Furthermore, in statement Ex.PG, the deceased did not state that he had narrated the occurrence to Dilawar Hussain P.W.l. We are convinced that while deposing about the dying declaration made by the deceased before him, Dilawar Hussain P.W. has told a lie. The part attributed to Nazir alias Jeeroo and Muhammad Nawaz appellants and acquitted accused Bashir Ahmad in the dying declaration that they had fired at the walls of the house of the deceased seems to be ridiculous one. It appears that the deceased in the alleged dying declaration Ex.PG had tried to involve as many persons as he could. This shows that dying declaration if made at all,' was not true. Furthermore, the injuries found on the person of Nazir alias Shera and Nazir allas Jeeroo have not been explained in the dying declaration Ex.PG. In these circumstances, no value can be attached to the alleged oral dying declaration allegedly made before Dilawar Hussain P.W. as well as the one existing in the shape of FIR Ex.PG recorded by Fazal Hussain S.I. PW. 9. After having rejected and disbelieved the ocular testimony and the alleged dying declaration made by the deceased, there remains no prosecution evidence to connect the appellants with the commission of murder of Muhammad Khan deceased. It has already been observed in para.7 of the judgment that the recoveries of guns E from Muhammad Nawaz appellant and Bashir Ahmad acquitted accused are of no consequence. That being the position, the statements made by the appellants have to be believed in toto. Although on the rejection of the prosecution evidence, we are not required to go into the plea of self-defence raised by the appellants, yet as a. matter of abundant caution. We have decided to resolve the two questions formulated by us in para.12 of this judgment. As for the first question, We fell that the plea of self-defence in satisfactorily established by the circumstances appearing in the case and that in any case, there is a reasonable possibility of the plea of the appellants being true. Nazir alias Shera appellant had raised the plea of self-defence on the day of occurrence in his statement Ex.PE; that the two appellants namely Nazir alias Shera and Nazir alias Jeeroo were found injured when they appeared before the police on the day of occurrence; that the police prepared their injury statements and got them medically examined; that the medico-legal reports show that the appellants had received 5 injuries including one fire-arm injury found on the person of Nazir alias Shera; that the medical evidence does not exclude the possibility of these injuries having been received at the time of occurrence and that the omission on the part of the prosecution to explain the injuries on the person of the two appellants certainly makes the prosecution version highly doubtful and lends support to the plea of self-defence raised by the appellants. It is by now well-settled that for entitlement settled that for entitlement to the benefit of the right of self-defence, the test is not, ' whether the accused have proved beyond reasonable doubt that he comes within any exception but whether in setting up plea, 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 entitling the accused to the exercise of the right of self-defence, he will still be entitled to acquittal, if upon a consideration of the evidence as a whole a reasonable doubt is created in the mind of Court whether the accused is or is not entitled to the benefit of the exception.

The upshot of the above discussion is that the prosecution has failed to prove its case beyond reasonable doubt. There is rather a reasonable possibility of the plea of the self-defence of person raised by the appellants being truer so giving them the benefit of doubt, the appellants are acquitted of the charge. They shall be released forthwith if not required to' be detained in other cases. Resultantly the connected revision is dismissed.

THE SENTENCE OF DEATH IS NOT CONFIRMED.

M.Y.H./N-44/L Appeal accepted.

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