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Criminal Appeal No. 121 of 1962, decided on 18th February 1963.

(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 5th February 1962, in Criminal Revision No. 270 of 1961).

‑---(Criminal case)‑Granted on consideration that prosecution witnesses had given evidence in more than one senses, and to consider regularity of use of counter‑report lodged by accused‑Constitution of Pakistan (1956), Art. 160.

Counter report lodged by accused 1-1/2 hours after complainant's report‑May be used against accused, but not as substantive piece of evidence‑May be put to accused in course of examination‑Not, however, substantive piece of evidence Criminal Procedure Code (V of 1898), Ss. 154, 161 & 342 [Evidence Act (I of 1872), S. 157]‑[Shahamad v. The State P L D 1956 S C (Pak.) 238 ref.]

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‑Not specifically pleaded by accused‑Plea would be allowed only on basis of "very clear evidence"‑Aggression by other party not established‑Plea not available to accused‑Not substantiated by presence of slight injuries on person of accused.

In a case where the accused persons themselves do not specifically plead self‑defense, the plea can only be allowed on the basis of very clear evidence available on the record, which would go at least to the extent of showing that it was reasonably possible that the accused persons had acted in self‑defense.

In the absence of proof of aggression by the opposite‑party, the plea of self‑defense is not available, and ordinarily cannot be thought to be established by the mere existence of slight injuries on the persons of the accused.

Ss. 307 & 308‑Respon sibility for out‑break of violence resting equally on complainant's and accused parties‑Sudden quarrel leading to sudden fight Stone‑throwing from complainant's side‑Use of fire‑arms from accused side‑Use of fire‑arm not resulting in death on complainant's side‑Accused deemed to have attempted to cause culpable homicide not amounting to murder‑Conviction changed from under S. 307 to one under S. 308‑Sentence reduced from transportation for life to two years.

Abdul Qaiyum Khan Senior Advocate Supreme Court (Muhammad Shafi Advocate Supreme Court with him) instructed by Muhammad Nazar Khan Attorney for Appellant.

M. A. Zullah Advocate Supreme Court instructed by Ijaz Ali Attorney for Respondent.

Date of hearing: 18th February 1963.

‑This appeal is brought before the Court by special leave granted to the appellant Ali Zaman to call in question his conviction under section 307, P. P. C. recorded by a Magistrate, which was upheld in appeal by a Sessions Judge and thereafter in revision by a learned Single Judge of the High Court.

The parties belong to village Kharkot in Tehsil Haripur, and the incident between them took place on the afternoon of the 23rd February 1961. Earlier that day there had been a quarrel in the fields, in consequence of which, when in the afternoon the complainant Haider Zaman and his father Khani Zaman returned from the fields, and met the other party namely, Ali Zaman and his nephew Ghulam Sabir who were seated in the huira, violence broke out. The case for the complainants was that Ali Zaman urged Ghulam Sabir to take revenge for the beating he had received in the morning, whereupon, Ghulam Sabir threw a stone at Haider Zaman, but failed to hit him. Then Ali Zaman fired a revolver four times, hitting Khani Zaman once, Haider Zaman twice and one Gulab with the fourth shot. The complainant party went to the thana and made a report at 7 p.m. At 9‑30 p.m. Ali Zaman also reached the thana and made another report in which he said that Khani Zaman started the stone throwing which hit him as well as Ghulam Sabir and Khani Zaman also threw at Ghulam Sabir's head an earthen kooza, which he was carrying, but it fell on the ground and broke. Ali Zaman then fired four shots with his licensed revolver in the air , and then he and his nephew Ghulam Sabir ran away.

At a later stage, Ali Zaman declined to go forward with his complaint in the Courts on the ground that all his witnesses had been won over. The other case was proceeded with, and Khani Zaman and his son in examination before the charge, supported the version in their initial report. It was denied that either of them had thrown any stones at the accused persons although it was admitted that Haider Zaman and Ghulam Sabir had fought with each other in the fields in the earlier part of the day. Previous civil litigation between the parties was admitted.

In re‑examination after the charge, however, these two witnesses totally changed their story, readily admitting that they had come from the fields in the party of nine persons, that is, Haider Zaman, Khani Zaman, Gulab, Gohar Rahman, Mir Afzal, Sultan, Muhammad Yusuf, Sikandar and Sarwar, all armed with deadly weapons such as spears, axes and sticks and had entered the hujra where Ali Zaman and Ghulam Sabir were sitting, and after an exchange of abuse, had raised their weapons to attack the two men, whereupon Ali Zaman fired. This version was rejected by the Courts below as false and artificial. The manner, in which it was obtained from the two witnesses and the complete change in the story, sufficiently showed that the witnesses were designedly varying their evidence to build up a case of self -defence in favour of Ali Zaman.

Besides these two witnesses, four persons, namely, Gulab. P. W. 3, Gohar Rehman, P. W. 4, Mir Afzal, P. W. 5, and Sultan P. W. 6 who are among the nine persons mentioned above were examined as eye‑witnesses on behalf of the complainants. Their story was at variance Seth the evidence of Raider Zaman and Khani Zaman on a crucial point, naively, who used the revolver. All four of these persons declared that it was Ghulam Sabir who took out the revolver and fired. Each one of them was cross examined by the prosecution as a hostile witness, and denied that there had been any compromise between the parties. (It should be mentioned that the parties are closely related to each other). As to the events previous to the firing, Gulab said that Ghulan, Sabir threw a stone at Raider Zaman, and followed this up by firing, but the other three witnesses said that after the stone was thrown, Khani Zaman threw his kooza at Ghulam Sabir, and then the firing followed. These statements too were disbelieves by the Courts below, as having been made to "help" the accused persons. In the result, the trial Magistrate convicted both the accused persons under section 307, P. P. C. The conviction of Ali Zaman was upheld by the Sessions judge Gulam Sabir was acquitted.

Leave was granted in this case to examine the evidence on the consideration that the prosecution witnesses had given evidence in more than one senses and to consider the regularity A of the use of Ali Zaman's report to the Police against him.

Mr. Abdul Qayum Khan for the appellant does not challenge the admissibility of Ali Zaman's report to the Police. Following the principle laid down in the decision of his court reported as Shahamad v. The State ((1956) P S C R 23=P L D 1956 S C (Pak.) 238), we consider that the initial report by Ali Zaman could be treated as having been made otherwise than in the course of the investigation into the other report, but this does not enable its use as a substantive piece of evidence. It was put to Ali Zaman when he was questioned under section 342, Cr. P. C. and he admitted having made the report but said "the paragraph (relating) to the effect that I fired four shots in the air is not correctly recorded". Without specifying where the error lay, he said his report was not read over to him after it had been recorded.

It is argued however that when the evidence and circum stances are regarded as a whole a reasonable doubt still remains whether it was not Ghulam Sabir who used the revolver. It is suggested that the evidence of Haider Zaman and Khani Zaman should be discounted by reason of the complete change, which they allowed themselves to make in their version when re examined after the charge. Reference was also made to the statements by the other four eye‑witnesses that the revolver was in fact used by Ghulam Sabir. The evidence of the four eye witnesses other than Haider Zaman and Khani Zaman is clearly unconvincing and has the appearance of artificiality to the same extent as the new story told after the charge by Khani Zaman and Haider Zaman, to support the theory of self‑defence. The straightforward evidence in the case was that given by Haider Zaman and Khani Zaman before the charge, which was the version of the complainants' side from the start, and on the crucial question who used the revolver, was supported by two strong circumstances, namely, the admission by Ali Zaman in his own initial report that he himself had used the revolver, and further, the fact that the weapon was recovered from him by the Police. We support the conclusion of the Courts below that the shot was fired by Ali Zaman.

Mr. Abdul Qayum Khan next urged that the plea of self -defence has not received the attention it deserved. The accused persons themselves never raised the plea of self‑defence. In their brief statements, they suggested that there had been a row in the course of which they themselves had been hit with stones, and Ali Zaman tried to get out of the admission in his report regarding his using the revolver, as stated above. In a case where the accused persons themselves do not specifically plead self‑defence, the plea can only be allowed on the basis of every clear evidence available on the record, which would go at least to the extent of showing that it was reasonably possible that the accused persons had acted in self‑defence. The evidence on this point is contained in the two statements ate, the charge of Haider Zaman and Khani Zaman and tile statement of a singe defence witness Abdul Qayum, who went a little further in specifying the 'weapons carried by each of the nine persons named earlier, and adding that these nine persons encircled the two accused persons, whereupon suddenly, Ghulam Sabir fired four shots, after which the people scattered. This witness combines in favour of the accused persons the "helpful" admissions variously made by the six prosecution witness. His story was disbelieved ,as were the aforesaid "helpful" admissions. In the absence of proof of aggression by the opposite‑party, the plea of self‑defence is not available, and ordinarily cannot be thought to be established by the mere existence of slight injuries on the persons of the accused.

Mr. Abdul Qayum Khan next contended that the injuries on the persons of Ali Zaman and Ghulam Sabir were not explained by the prosecution. Ali Zaman had a contusion on his right arm and Ghulam Sabir had six injuries. In his report to the Police, Ali Zaman had said that both he and Ghulam Sabir were struck with stones thrown by the other party. The point is made that this incident was taking place inside the hujra showing that the stone‑throwing was at close quarters, and could have been extremely dangerous. In the region from which this case comes, stones are very generally used as deadly weapons, and there could be a real apprehension in the minds of Ghulam Sabir and Ali Zaman that if they did not take quick action, they might easily be killed or at least subjected to grievous hurt. This would give rise to a right of self‑defence extending to the causing of death of the assailant, and in this case, no death had been caused. Though all the prosecution witnesses had said that Ghulam Sabir at once threw a stone at Haider Zaman, which missed him, none of them admitted any stone‑throwing by them selves at Ali Zaman or Ghulam Sabir. In the circumstances, the Court should hold that the aggression was from the side of the complainants, for it was not probable that they would have continued stone‑throwing after the shots had been fired with such good effect.

To this argument, the reply on behalf of the State was that the positive evidence on the point was that Ghulam Sabir had taken the aggressive by throwing a stone at Haider Zaman, which missed him, and that any stone‑throwing by the complainant party, such as caused the injuries to the two complainants may well have followed this aggressive act. It is also urged that the next move, after the beating given to Ghulam Sabir in the morning, lay with Ghulam Sabir.

The argument for the State is not without force, but the prosecution witnesses have shown such readiness to alter their evidence that to rely upon them for holding that the initial aggression was by Ghulam Sabir is not possible. We consider, that the safe dispensation of justice requires that the case be dealt with on the basis that the responsibility for the outbreak of violence falls equally on the two parties, i.e., a sudden quarrel was followed by a sudden fight, or in the words of the accused persons "a row", in which the weapons used were stones. The accused persons were apparently outnumbered, and these circumstances, Ali Zaman made use of his revolver. The question arises whether, in that view, if any of the persons hit with the revolver shots had died, the offence would have been murder In our opinion, a number say, four, of persons throwing stones at close quarters at two others cannot be said to be placed at a disadvantage against the latter should they bring into play fire arm. Each party was throwing missiles, and the chances of a bullet missing are by no means smaller than those of as stone thrown at close quarters, missing its mark.

Therefore, we consider that if it had happened that one of the persons shot had died in consequence, the offence would have been culpable homicide not amounting to murder. On this view, we alter the conviction of Ali Zaman to section 308, P. P. C. and taking into account all the circumstances, reduce his sentence to two years' rigorous imprisonment.

A. H. Order accordingly.

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