GHULAM RASOOL Versus STATE
This Criminal Appeal No. 116/83 and the connected criminal revision No. 3/84 arise from the judgment of the learned Additional Sessions Judge, Dera Ghazi Khan, whereby he on 17th May, 1983 convicted Ghulam Rasool appellant under section 304-1, P. P. C. for causing the death of Wazir deceased and sentenced him to imprisonment for life and a fine of Rs. 5,000 in default thereof to further R. I. for 2 years. He was also directed to pay Rs. 5,000 as compensation to the legal heirs of the deceased, in default thereof to further R. I. for 6 months. The 5 co -accused namely Ghulam Muhammad, Phiri, Fateh, Shahi and Khair Muhammad were, however, acquitted.
2. The occurrence took place on 21st September, 1981 at 8-00 p. m. on a thoroughfare in Chah Rukanwala of village Choratta Kot Haibat Khan of Police Station Saddar, Dera Ghazi Khan. The distance between place of occurrence and the Police Station is 3 miles. The F. I. R. Exh. P. A. was lodged by Amir Bakhsh P. W. 8, the maternal-uncle of the deceased at 10-00 p. m. and was recorded by Ghulam Qasim A. S. I., P. W. 10.
3. The background of the occurrence as stated in the F. I. R. is that about 7/8 years before the occurrence Asst. Bakhoo daughter of Mauj Ali and sister of Ibrahim, a given up P. W., was given in marriage to Jan Muhammad, brother of Ghulam Rasool appellant. It was agreed upon between the parties that in exchange of that marriage, Msr. Zohran, sister of Ghulam Rasool appellant would be married to Ibrahim, brother of Mst. Bakhoo. About 1 years before the occurrence the complainant asked Ghulam Rasool appellant to fulfil his promise but the accused put him off. As a last resort Muhammad Ibrahim filed suit for perpetual injunction before Judge Family Court, Dera Ghazi Khan, to restrain Mst. Zohran from marrying with any other person. It so happened that on 20th September, 1981 at the instance of complainant party a panchayat was convened. The panchayat approached the appellant. At that time Khair Muhammad and Phiri co-accused were present in the house of the appellant. They promised to marry Mst. Zohran with Ibrahim on the following day i.e. 21st September, 1981. On the next day, the complainant party learnt that Ghulam Rasool appellant and Phirt co-accused had sold away Mst. Zohran to Fateh and rukhsti had also taken place. On this Amir Bakhsh P. W. 8 alongwith his nephew Wazir deceased left for the house of the appellant. Reaching near Chah Rukanwala, they found Ghulam Rasool appellant armed with hatchet and the acquitted co-accused variously armed, taking away Mst. Zohran with them. The deceased and Amir Bakhsh P. W. 8 stopped them. The deceased reminded them their promise. In the meantime, Chibbar P. W. 9 and Jalal, a given up P. W. also reached there. The dialogues were going on between the parties when Ghulam Muhammad co-accused took out pistol and raised lalkara. Ghulam Rasool appellant then gave hatchet blow on the head of Wazir who fell down on the ground. The witnesses raised hue and cries where upon the appellant and the acquitted co-accused ran away leaving one motorcycle behind. While on his way to the hospital, Wazir succumbed to the injury.
4. On 22nd September, 1981 at 11-00 a. m., Dr. Nasir Ahmad, Senior Medical Officer R. H. C. Choti conducted post-mortem examination on the dead-body and found the following injury:-
"An incised wound about 10" x " brain deep on left side of head one-fourth inch away from the mid-line, starting from forehead and going upto back of the head, it was longitudinal in direction. The underneath bone was cut along the whole length of the wound and brain matter had come out."
The injury was ante-mortem caused by sharp-edged weapon which was grievous and dangerous in nature. In his opinion, the death was due to shock and haemorrhage caused by the above injury which was sufficient to cause death in the ordinary course of nature.
5. The appellant was arrested on 27th September, 1981. On 6th October, 1981, he led to the recovery of blood-stained hatchet Exh. P. 5 from his residential kotha. The Serologist Report Exh. P. Q. shows that the hatchet was stained with human blood.
6. In order to prove its case, the prosecution examined as many as 11 witnesses out of whom Amir Bakhsh P. W. 8 and Chibbar P. W. 9 have given the ocular account of the occurrence. They have supported the pro secution case as detailed above. Haji Jamal P. W. 7 and Ghulam Qasim A. S. I., P. W. 10 have stated that the appellant had got recovered blood stained hatchet Exh. P. 5 from his residential kotha. The rest of the evidence is more or less of formal nature. The trial Court had examined Muhammad Nawaz Khan S. D. P. O., Saddar and Ahmad Bakhsh Head Constable as Court witnesses. Muhammad Nawaz Khan stated that Ghulam Muhammad co-accused was found innocent during the investiga tion. Ahmad Bakhsh Head Constable C. W. 2 stated that he kept the sealed parcels pertaining to earth and hatchet in safe custody and handed over the parcels to Ghulam Abbas F. C. for onward transmission to the Office of the Chemical Examiner.
The acquitted co-accused when examined under section 342, Cr. P. C. denied all the incriminating circumstances of the case whereas the appellant accepted the liability of causing the death of the deceased. In answer to question as to why this case against him? He stated that:
"Ibrahim, brother of Mst. Bakho was out to get the hand of Mst. Zohran forcibly. When he failed in his attempt to get through the process of the Court, he alongwith Wazir deceased attempted to forcibly abduct Mst, Zohran when I was taking her to the house of her husband Ghazi son of Shafi. At that time, Wazir was armed with hatchet and Ibrahim was armed with sword. When I and my sister were passing, in the area of Chah Rukkanwala, the deceased and Ibrahim stopped our way, they grappled with my sister to lift her. I succeeded in snatching the sword from Ibrahim P. W and I used the same only once against Wazir in our self-defence.
I then took my sister to the house of in-laws. Afterwards the police has concocted this false case with the collusion of the complainant party. No other accused was present at that time and none of the eye-witnesses was also present there at the time of occurrence."
In defence, the appellant tendered Exh. D. B., certified copy of Nikahnama of Mst. Zoran with Ghazi.
The learned trial Court has disbelieved the motive and the ocular evidence. Believing the recovery and inculpatory part of the statement of the appellant the trial Court has convicted the appellant under section 304-1, P. P. C. for having exceeded the right of self- defence.
7. The learned counsel for the appellant submits that the prosecution case having been disbelieved, the trial Court was not justified to convict the appellant on his statement.
On the other hand, the learned counsel for the State assisted by the learned counsel for the complainant/ petitioner have submitted that the prosecution has succeeded in proving a case punishable under section 302/148, P. P. C. against the appellant and the acquitted co-accused and that the trial Court has disbelieved the ocular evidence and the other attending circumstances without cogent reasons.
8. After having applied my conscious mind to the evidence on the record and the reasons given by the trial Court for the rejection of the motive and the ocular account of the occurrence, I find that the trial Court has rightly discarded the motive. In the circumstances of the case, it appears that the motive was rather with the deceased party to harm the complainant party and abduct Mst. Zohran. As far the ocular evidence, I find that the infirmities pointed out by the learned trial Court are very much on the record. The reasons given by the trial Court for disbelieving the eye-witnesses find support from the evidence and the attending circumstances and as such no exception can be taken. On my independent assessment of the ocular account, I am convinced that no implicit reliance can be placed on it. In this view of the matter, since confessional state ment of the appellant alone holds the field; the question which requires determination is as to whether the trial Court could act upon the part of the statement of the appellant ignoring its exculpatory part. It is by now well-settled that in case the prosecution evidence is rejected or excluded from consideration and the conviction is to be recorded on the confessional statement of an accused person, then his statement should be accepted as a whole. The statement of the appellant when examined/believed in toto, indicates that the deceased bad assaulted Mst. Zohran with intent to abduct before the appellant gave him solitary blow causing his death. There is nothing on the record to falsify the exculpatory part of his statement. In these circumstances, I am convinced that a right of self-defence which had accrued to the appellant (as also declared by the trial Court) did extend to the voluntary causing of death of the assailant, i.e. the deceased. It can be said with full confidence that the act of the accused was fully protected under section 100, P. P. C. The appellant had thus committed no offence.
9. For what has been stated above, there being no satisfactory basis to sustain the conviction and sentence of the appellant, the same are set aside. The appeal is accepted. The appellant is acquitted of the charge. He shall be released forthwith, if not required in any other case. Resultantly, the connected revision is dismissed.
M. Z. M. Appeal accepted.