GHULAM HUSSAIN Versus STATE

1. SHAFIUR RAHMAN, J .‑‑Leave to appeal was granted to the convict under section 302, P.P.C. sentenced to death to examine the question of exclusion of a reasonable possibility of self‑defence version q on the touchstone of the rule in Safdar Ali's case P L D 1953 F C 93.

2. About three days before the occurrence which took place on 10th of January, 1976, the deceased Fateh Muhammad had gone to the well of Ahmad Khan (P.W.8) for purchasing a lamb. There, the appellant had physically rubbed his shoulders against Mst. Sughran wife of Ahmad Khan (P. W.8) whereupon not only Mst. Sughran had abused him, the deceased Fateh Muhammad had given him stick blows while Ahmad Khan (P.W.8) had slaped him. The appellant had, it is said, extended threat to the deceased.

3. On the 15th of January, 1976, Khuda Bakhsh (P.W.6) an uncle of the deceased, alongwith the deceased and Fateh Muhammad (P.W.7) was returning from Faridpur after settling accounts with one Allah Ditta. They had reached near their well Chan Chhattuwala and were on the footpath when the appellant emerged from a bush, raised a Lalkara and fired at Fateh Muhammad deceased causing him an injury on the chest. He died soon thereafter. Khuda Bakhsh went to the Police Station Lodhran at a distance of about ten miles and lodged the report about the occurrence at 8‑30 p. m. It was recorded by Muhammad Bakhsh, A.S.I. (P.W.9). Muhammad Bakhsh, A.S.I., took up the investigation also and from the spot recovered an empty Exh.(P/7). The appellant appeared before him on 17‑1‑1976 and led to the recovery of an unlicensed pistol (Exh.P/4) with which the empty recovered from the spot ultimately matched. As the appellant had injuries on his person, he was examined by Muhammad Bakhsh, A.S.I. and his injury statement was prepared on 18‑1‑1976 and the same day he was sent for medical examination of his injuries.

4. Dr. Muhammad Siddique Sabir (P. W.3) performed autopsy of Fateh Muhammad and found the following injury:‑

5. "There was firearm wound " round, scortching present with inverted edges (wound of entry) between 6th and 7th inter costal space, on left side of front of chest, 4" below the nipple, and the wound of exit not found."

6. He was extensively questioned about the passage of the bullet inside the body and he gave the opinion that the wound of entry was on upper level from the spot where the bullet was found embedded which was recovered and handed over to the constable. He gave the opinion that:‑

7. "If both the victim and the assailant are standing at a similar level three paces apart from each other with straight revolver such a track would not be possible if fire‑arm is discharged from front side and the back. Such track is possible if the assailant is on a higher level or he raised the weapon forming a similar direction in which the track of the bullet is."

8. He was also of the view that scorching of the bullet wound would be present if the weapon is fired from a distance of 6" or less from the target and not beyond it.

9. The same doctor also examined Ghulam Hussain appellant at 1 p.m. on 18‑1‑1976 and reported the following injuries on this person:‑

(1) An abrasion healed up " x " just below the left ear.

(2) An abrasion healed up "x "on the lobule of the left ear.

(3) A contusion mark 2 " x 1 " on the back medial side of left fore‑arm, 2" above the left wrist joint.

(4) Minute abrasion 1/6" x 1/6" on the palm of right hand on its medial side."

10. Though he gave the opinion that these injuries were of one week's duration, in cross‑examination, he gave the opinion that these could well be within the duration of three or four days or so. What is to be noticed at this stage is that in the injury statement of the appellant prepared by Muhammad Bakhsh, A.S.I., on the same day, there is mention of one injury on the buttock of the appellant which the doctor had omitted to notice or record and about which, it appears, no further inquiry was made by the Investigating Officer.

11. The appellant when examined about the occurrence denied having acted in the manner and for the reasons stated by the prosecution and instead made the following statement explaining the case against him:‑---

12. "The fact of the matter is that Fateh Muhammad deceased had taken exception to my passing through his well about a month before the occurrence. On the fateful day, I was returning from Lodhran after receiving my outstanding money from Hassan Bakhsh commission agent of Lodhran at about Peshiwela. When I happened to pass through Chhattuwala, as the same falls on my way from Lodhran to Chah Jalleywala, Fateh Muhammad came across and he attacked me saying as to why I had dared pass that way again. He gave me numerous stick blows. Finding myself and life in danger, I pulled out a pistol and fired a shot in my self‑defence. I am a businessman and carry money on my person occasionally and also one Hazarey Khan and his family had attacked me twice in the past, therefore, I used to carry an unlicensed pistol with me. I had appeared before the Thanedar Karam Khan, when I had many injuries on my person the Thanedar produced me before the Medical Officer very late and then challaned me in this case. I had no enmity whatsoever except the incident I have stated above with regard to the deceased. This P.Ws. are closely related to the deceased."

13. He denied having led to the recovery of the pistol (Exh.P.4). He produced in defence Karam Khan Lambardar (D.W.1) who stated that the appellant was produced before the police in his presence and immediately on his appearance he had told the police that he was passing through Chah Chhattuwala on his way from Lodhran when he was attacked by Fateh Muhammad and in order to save his life he had fired at the deceased.

14. The trial Court considered Fateh Muhammad (P.W.7) an eye‑witness to be completely an independent witness and also held that the two eye‑witnesses had no motive to falsely implicate the appellant in a case on capital charge. The discrepancy which was suggested in the eye‑witness account and the medical opinion was resolved by referring to the decision of this Court in Yakoob v. State P L D 1976 SC 53 and held that:‑--

15. "In the instance case the testimony of both the eye‑witnesses is of very high quality and has to be given preference to the medical evidence, also for the reason that the accused himself has not stated that he had fired inches away from the chest of the deceased. In view of the admission of the accused that he had killed the deceased by fire‑arm, the discrepancy of distance between the assailant and the victim narrate the illiterate eye‑witnesses is not sufficient to discredit."

16. The trial Court also held that apart from motive, the recovery of pistol (Exh.P.4) with live bullets and the matching of the empty (Exh.P.7) all established the guilt of the appellant and finding no mitigating circumstances, convicted him under section 302, P.P.C. and sentenced him to death. He was also ordered to pay compensation of Rs.2,000 or in default to suffer rigorous imprisonment for two years.

17. On appeal and while dealing with the confirmation of death sentence, the learned Judges of the High Court re‑examined the entire evidence and found on the facts of the case that there was no material discrepancy between the medical evidence and the ocular account. The learned Judges also rejected the plea of self‑defence put forward by the appellant observing as follows:‑--

18. "If the appellant was so well prepared to protect himself, it is improbable that he should wait that long and suffer four injuries before deciding to defend himself. It is difficult to assume that the earlier incident was a got up story. If that were so, a less compromising story would not have been beyond the ingenuity of the prosecution. No husband will agree to mention on the name of his wife unless it was the truth. The contention that the appellant acted in self‑defence finds no support from the facts of the case."

19. The death sentence was confirmed and the appeal of the convict‑appellant was dismissed.

20. Mr. M. Bilal, Advocate, the learned counsel for the appellant; has drawn our attention to what he considered a material and substantial discrepancy between medical and ocular evidence. According to the learned counsel, though the prosecution evidence at all stages has been that the assailant and the victim were on the same level, the passage of the bullet in the body clearly suggests that the assailant was on upper level. Besides, according to the learned counsel, the presence of scorching on the inlet wound clearly suggests that the firing had taken place from a very close quarter and considered with the injuries on the person of the appellant ‑it would indicate that it had taken place in grappling or while the appellant was under physical attack. According to the learned counsel, the defence put forward by the appellant, is not only plausible in itself, it finds substantial support in the prosecution evidence.

21. The level of the accused and the victim and the passage of bullet inside the body is of no consequence to the case if it is kept in view that the bullet had hit the rib and must have been deflected. The fracture of the rib appears not from the statement of the doctor recorded at the trial but from the medico‑legal report prepared by him at the time of autopsy wherein it is mentioned that on dissection fracture of upper border of seventh rib of left side was found.

22. There was admittedly no background of enmity, bad blood or illwill between the parties, except for one event, a recent one, denied by the appellant, but alleged by Ahmed Khan P.W.9, who had witnessed it and Khuda Bakhsh P. W.6 who had heard of it from the deceased. It is true that Mst. Sughran, the directly affected person, has not appeared as a witness in Court to support it yet as Ahmed Khan P.W.8 had appeared to state about it and to stake his reputation and that of his wife, the two Courts have justifiably believed its correctness. On that occasion, Ahmed Khan P.W.8 claims to have only slapped the appellant, the deceased is said to have played a more dominant role by giving him stick blows, a stick which his uncle Khuda Bakhsh says, he habitually carried with him. With this event in the recent background, it would not appear surprising or out of place, as contended by the appellant himself that the deceased had asked him not to be seen in the vicinity of his well.

23. What is of particular importance to the case is whether the appellant appeared from a bush to commit the crime or it was more likely a chance encounter. The place where the occurrence took place is close and attached to Chhuttuwala well, the place where the deceased and his family, including the two eye‑witnesses resided. The exact spot is on or near a footpath on both sides of which there was wheat cultivation. There were, according to the witnesses "Jaal" bushes along the path near the spot. Allah Wasaya a Revenue Patwari (P.W.2) stated about the presence of, and his estimate must be taken to be not wide off the mark "few bushes of "jaal" which would be about 2 or 21 ft. Muhammad Bakhsh A.S.I. (P.W.9) stated "the place of occurrence is a regular pathway and it is surrounded by many bushes through which the deceased was allegedly passing at the time of occurrence. The said regular way would be about two Karams wide". Fateh Muhammad (P.W.7) the eye‑witness to the occurrence, stated "There is no regular way or pathway in between our Chah Chhattuwala and Chah Fareedpur. One can reach there by traversing the boundaries of the fields (bannas)". Khuda Bakhsh P.W.6 stated "The persons coming from Lodhran with their destination to Chah Jalleywala and Jahansarwala pass along Chah Chhattuwala". The appellant was a resident of Jalleywala well. It is clear from these statements that this spot fell on his path from his well to Tehsil Headquarter Lodhran. The outing of the deceased and the time of his return would not have been ordinarily known to others. If known, it was hardly a prized opportunity because the deceased happened to be in company of two other adults while going and returning. Bushes two feet in height, or the wheat crop in the month of January would have hardly provided him with any cover.

24. What clinches the issue is the scorching present at the inlet injury received by the deceased. No doubt, wide margin is allowed to illiterate witnesses in the estimate of distance. But a person armed with a pistol advancing with the set purpose of firing at his victim in any case keeps himself at arms length from the victim, more so when the victim is carrying a stick, is accompanied by two adults and has been forewarned by Lalkara. There is no question of his coming so close as to be inches away from the victim before firing at him.

25. Ghulam Muhammad (P.W.4) stated that the appellant had appeared before the police at 9 or 10 a.m. and he was produced by the Lambardar Karam Khan. Karam Khan (D.W.1) did not claim to have produced the appellant but stated that he appeared before the police in his presence and had taken up the plea of self‑defence of his person. Muhammad Bakhsh, A . S.I. , also admitted that when he arrested the appellant he had injuries on his person and he prepared his injury statement (Exh P. K .) . He also admitted that Karam Khan had produced the appellant before him and he also admitted that the earliest statement made by the appellant was that he was passing through Chah Chhattuwala when the deceased Fateh Muhammad attacked him saying as to why he was passing again through his well and started giving him Soti blows and it was then that he fired the pistol in order to save his life.

26. The delay of a day in preparing the injury sheet has not been explained by the Investigating Officer nor the discrepancy in the injuries detected by him and those found by the doctor. The High Court took note of this aspect of the prosecution case and observed as follows:‑---

27. "The story that the appellant was lying in ambush for the deceased might be a case of mistaken impression because he had been reprimanded not to pass that way and there he was again. It may even be an immaterial exaggeration. All the same the visit of the appellant to the place, particularly to the lands belonging to the father of the deceased, armed with a pistol after being told not to come again, was not an innocent one."

28. In Safdar Ali's case, the following law was laid down:‑

29. "In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt."

30. Considering all aspects of the case, keeping as well the tendency of the witnesses to play down their own aggression, it appears morel probable that the appellant and the deceased had a chance meeting on? a path close to the well of the deceased and physical encounter did, take place as evidenced by the injuries of the appellant and the delay~ of the Investigating Officer in noticing and dealing with them. But; then that is not all, for neither the background of illwill nor the encounter, or the injuries received by the appellant fully justified the firing at and killing of the deceased, He clearly exceeded his right of) private defence of his person. As he was on alien ground, but as a matter of right and under threat of violence which apparently did not extend beyond receipt of simple injuries and rough handling by the deceased, his act of killing the deceased would make the offence of culpable homicide not amounting to murder and punishable under section 304, Part I, P P. C. In the circumstances, we allow the appeal, set aside conviction and sentence under section 302, P.P.C. and substitute it with conviction under section 304, Part‑I, P.P. C. and sentence him to ten years' R.I. The order of compensation is maintained intact but the rigorous imprisonment awarded in default is reduced to six months.

31. M.I./G‑15/5 Order accordingly.