NISAR AHMAD ALIAS BOOTI Versus STATE

This jail appeal is directed against the judgment, dated 26‑1‑198 whereby the learned Sessions Judge, Bhakkar convicted Falak Sher appellant f under section 304, P.P.C. and sentenced him to 14 years' R.I. and a fine of Rs.10,000 or in default thereof to undergo further R.I. for one year. It was alsc directed that out of the fine, if recovered, a sum of Rs.5,000 shall be paid to the legal heirs of Raj Mir deceased as compensation. The benefit of section 382, Cr.P.C. was also extended to the appellant.

2. The occurrence took place on 14‑7‑1988 at 3‑30 p.m in the area of viliage Dadoo Dakhli Ghulaman District Bhakkar. The F.I.R. Exh.P.F. was registered at Police Station Kallurkot on the same day at 5 p.m. on the statement of Muhammad P.W.7 the uncle and father‑in‑law of Raj Mir deceased and the same was recorded by Muhammad Ashraf SI/S.H.O. P.W.9. .

3. The prosecution case as narrated in the F.I.R. in brief, is that n 14‑7‑1983 at 3 p.m. Muhammad P.W.7 hereinafter called the complainant, was sitting under the trees near the village Atdi alongwith Raj Mir deceased, Bashir Ahmad P.W.8, Abdul Sattar and Imam Din (given up P.W.9). The deceased tot up and proceeded towards East to collect some Kandar fuelwood). He had hardly covered a distance of about 20/25 Karams, when Sher Muhammad accused empty handed, Falak Sher appellant armed with .12 bore pistol and Rashid Ahmad accused armed with 12 bore gun came there. Sher muhammad raised a Lalkara exhorting his companions to teach Raj Mir deceased a lesson for the attack which his (Raj Mir's) father had launched on Rashid Ahmad accused. On this, Falak Sher appellant fired a shot from his 12 bore pistol which hit the deceased on his chest as a result of which he fell down. The P.Ws. stepped forward to rescue him but Falak Sher appellant and Rashid Ahmad accused straightened their fire‑arms towards them and threatened to kill them if they came near them. When the deceased succumbed to his injuries the assailants went away. The motive for the occurrence was that about a year before the occurrence Ahmad the father of Raj Mir deceased had fired a shot at Rashid Ahmad accused with .12 bore gun as a result of which he was prosecuted. It was alleged that the accused party had killed the deceased in retaliation.

4. After recording the F.I.R. Muhammad Ashraf S.H.O. P.W.9 proceeded to the place of occurrence and took into possession and sealed into a parcel the blood‑stained earth from the place where the dead body was lying vide memo. Exh.P.G. He prepared the injury statement of the deceased Exh.P.D. and the inquest report Exh.P.E. and sent the dead body to the hospital for post‑mortem examination. On 15‑7‑1988 Muhammad Irshad, Constable P.W.3 produced before the S.H.O. the last worn blood‑stained clothes of the deceased vest P.1 and shirt P.2 which were taken into possession vide memo. Exh.PA. On the same day the S.H.O. arrested Rashid Ahmad accused and Falak Sher appellant. The appellant was in injured state and he was got medically examined. On 16‑7‑1988 Sher Muhammad accused was also arrested. On 22‑7‑1988 while in custody Falak Sher appellant led to the recovery of .12 bore pistol/carbine P.3 alongwith two live cartridges P.3/1‑2 from his residential Kotha which was taken into possession vide memo. Exh.P.H. attested by Muhammad P.W.7 and Bashir Ahmad P.W.8. On the same day Rashid Ahmad accused while in custody led to the recovery of his licensed .12 bore gun P.4 alongwith his licence from his residential Kotha which was taken into possession vide memo. Exh.P.I. The S.H.O. got the site plans Exhs.P.B. and P.B./1 prepared by the Patwari and gave his notes in red ink on them. After the necessary investigation he challaned the appellant and his co -accused.

5. On 15‑7‑1988 at 7 a.m. Dr. Zafar lqbal P.W.5, Medical, Officer, Civil Hospital, Kallurkot, conducted post‑mortem examination on the dead body of Raj Mir deceased aged about 20 years. He found the following injuries on the dead body:‑

(1) A fire‑arm wound of entry 1 c.m. x 0.75 c.m. on front left chest. 4.75 c.m. below and inner to left nipple with corresponding cut on blood‑stained Bunyan.

(2) A fire‑arm wound of entry 1.50 c.m. x 0.75 c.m. on right mid‑neck.

(3) A fire‑arm exit wound of entry wound No.2, 1 c.m. x 0.75 c.m. on upper inner right back chest. 7.0 c.m. right to mid‑line.

(4) A fire‑arm wound 1.25 c.m. x 0.75 c.m. subcutaneous deep on lower inner front right upper arm.

(5) A fire‑arm wound on entry 1.25 c.m. x 0.75 c.m. on inner front mid right elbow joint. 0.75 c.m. below and inner to injury No.4.

(6) A fire‑arm exit wound 1.25 c.m. x 1.0 c.m. of entry wound No. 5 on inner upper right forearm 5.0 c.m. below inner to injury No.5.

In the opinion of the doctor all the injuries were ante‑mortem and caused by a fire‑arm. Injury No.1 was sufficient to cause death in the ordinary course of nature while the other injuries were simple. The cause of death was syncope as a result of haemorrhage due to injury No.1. The time between injuries and dean was a few minutes and between death and post‑mortem examination about 24 hours. Exh.P.C. is the correct carbon copy of his post‑mortem examination report while Exh.P.C./1 is the diagram showing the location of the injuries.

On 15‑7‑1988 Dr. Zafar Iqbal also examined Falak Sher appellant and found the following injury on his person: ‑

"An incised wound 2.0 c.m. x 0.50 c.m. muscle deep on back outer lower left upper arm with corresponding cut on blood‑stained shirt."

The injury was kept under observation but was declared simple after X‑ray report. It was caused with sharp‑edged weapon within the duration of 24 to 4 hours. Exh.D.A. is the medico‑legal report while Exh.DA./1 is the sketch of injury.

6. The appellant and his co‑accused were charged under section 302/34, P.P.C. but they pleaded not guilty and claimed trial.

7. In support of their case the prosecution examined 9 witnesses in all, including Muhammad P.W.7 and Bashir Ahmad P.W.8 the two eye‑witnesses.

8. After the conclusion of the prosecution evidence Rashid Ahmad and Sher Muhammad accused denied having participated in the occurrence and maintained that they had been falsely implicated in the present case due to their relationship with Falak Sher appellant. Falak Sher denied the allegations levelled against him and maintained that he had been falsely implicated in the present case due to enmity. When asked as to why the present case had been registered against him he made the following statement which is reproduced verbatim:‑

"On the day of occurrence the police arrested my brother Fateh Sher on the application given by Muhammad P.W. of this case. The police came in the village on the day of occurrence early in the morning and took him to the police station. The police asked me to bring illicit arm to the police station otherwise they will torture my brother Fateh Sher. I arranged a .12 bore carbine and was going to the police station. On the way to the police station Raj Mir deceased who was armed with Waholi met me and he said that on our instigation 'the police has arrested your brother Fateh Sher now there will be your turn, be ready for that. Upon this I uttered the words to him saying that you and your uncle Muhammad P.W. have done `Baighairity'. Being provoked he gave me Waholi blow which hit me on my arm. Again he tried to hit me on my to head with Waholi blow so accruing the right of my self‑defence I fired at Raj Mir with my .12 bore Carbine which hit him and he fell down on the ground and died later on. I had no grudge against Raj Mir and had no intention to kill him as it is alleged by the prosecution. I was alone at the time of occurrence. None of the P.Ws. was present at that time."

9. After the conclusion of the trial the learned trial Court vide the impugned judgment acquitted Sher Muhammad and Rashid Ahmad accused. Falak Sher appellant, however, was convicted and sentenced as stated above.

10. Feeling aggrieved the appellant has come up in appeal through jail authorities. The State has not filed any appeal against the acquittal of his co- accused.

11. I have heard the learned counsel for the State and have gone through the record very minutely.

12. The perusal of the impuged judgment shows that the learned trial Judge has held that the motive as alleged by the prosecution was not proved and that the recovery of carbine P.3 and gun P.4 did not connect the appellant and his co- accused with the offence charged against them. He, however, relied on the ocular and medical evidence. As regards the defence version he concluded that the same got support from the prosecution evidence to some extent but held that the appellant had exceeded his right of self‑defence.

12‑A. The prosecution story about motive is that a year‑before the present occurrence Ahmad the father of Raj Mir deceased had fired at Rashid Ahmad accused on which a case was registered against him and he was prosecuted but as he had been acquitted in the said case the accused party nursed grudge against the complainant party and in retaliation killed the deceased. The story stands belied by the statements of the complainant P.W.7 and Muhammad Ashraf the Investigating Officer P.W.9 who have admitted that in the said case against Ahmad a compromise between the parties was effected through the efforts of Aziz Ahmad M.P.A. under which the witnesses in the said case did not support the prosecution case and Ahmad aforesaid was acquitted. It is also admitted by the complainant that during the time between the said acquittal and the present occurrence no untoward incident took place between the parties as the accused party never tried to retaliate. In these circumstances, the learned trial Court was justified in holding that the story of motive as narrated by the prosecution was not proved.

13. As regards the recoveries, no crime empty was recovered from the place of occurrence which alongwith the carbine in question could have been sent to the Forensic Science Laboratory for opinion if the same had been fired from the said fl fire‑arm. As such the recovery of the Carbine P.3 at the instance of the appellant was of no consequence and did not connect him with the offence charged against him.

14. The ocular evidence consists of the statements of Muhammad P.W.7 and Muhammad Bashir P.W.8 who are closely related with each other and are also related to the deceased. Bashir Ahmad P.W.8 is the real brother while Muhammad P.W.7 is the paternal‑uncle and father‑in‑law of Raj Mir deceased. Background of previous enmity between the parties is admitted. The eye witnesses, therefore, are interested and inimical witnesses. Their evidence could not be relied upon without independent corroboration which is not forthcoming in this case. Even otherwise the said witnesses are untrustworthy inasmuch as they had tried to make dishonest improvements in their statements. Muhammad complainant in his statement as P.W.7 stated that Rashid Ahmad accused had also exhorted his companions not to spare Raj Mir deceased but he had not made any such statement in the F.I.R. Exh.P.F. Similarly, Bashir Ahmad P.W.8 made an assertion to the same effect. He had also not made any such assertion before the police in his statement Exh.D.B. There is yet another very important circumstance which goes a long way to prove that the eye‑witnesses in this case had not witnessed the occurrence and had made false statements. It is abundantly clear from the statement of the Investigating Officer that at the time of his arrest the appellant was found in injured state. He was medically examined by Dr. Zafar Iqbal P.W.5. The statement of the doctor confirmed that he had sustained a E sharp‑edged weapon injury on his left arm, during the occurrence. Both the eye witnesses had suppressed the said injury in their previous statements before the police as well as m their statements before the trial Court. This clearly indicates that they are not truthful witnesses and in all probability had not witnessed the occurrence. The suppression of the said injury also raises a strong presumption that it was the complainant party who was the aggressor. In this view of the E matter it was highly unsafe to place any reliance on the eye‑witnesses. Resultantly I am not pursuaded to place any reliance on them.

15. The defence version gets ample support from the material available on record. It is abundantly clear from the statements of Bashir Ahmad.P.W.8 and Muhammad Ashraf S.H.O. P.W.9 that on the fateful day, prior to‑the occurrence, the complainant had moved an application before the police against Fateh Sher the brother of the appellant as a result of which the said Fateh Sher was hauled up and taken to the police station. This fact provides sufficient support to the very basis of the defence version. It is also established from the evidence on record that the appellant had suffered a sharp‑edged weapon injury during the occurrence. Presence of this injury further fortified the defence version an" indicates that the P.Ws. had not witnessed the occurrence as they had not made any mention of it in their statements before the police and the trial Court. Even otherwise, the circumstances appearing on record also unmistakably reveal that ii was the deceased who had opened attack on the appellant inasmuch as the deceased could not inflict any injury on the appellant after receiving from him a fire‑arm injury on his chest. As such it is very obvious that the deceased had inflicted Wahola injury on the hand of the appellant before he (the appellant) had inflicted the fire‑arm injury on the deceased. I, therefore, have no hesitation in believing that it was the deceased who had initiated the attack on the appellant and had caused injury on him with a Whola which being a sharp‑edged weapon was quite dangerous. After the infliction of the said injury when the deceased tried to inflict another Wahola injury on his head the appellant in exercise of hic right of self‑defence fired at him and caused his death. I am not inclined to believe that the appellant had exceeded his said right because the circumstances appearing on record establish the existence of a strong apprehension in the mind of the appellant that the deceased would kill him or at least would inflict a grievous injury on him. I, therefore, am, of the view that the defence version which finds support from the material on record and other attendant circumstances rings true and is quite probable and natural. I have no reason to disbelieve it. As the appellant had not exceeded his right of self‑defence he could not have been convicted of any offence. His conviction under section 304, P.P.C. is unwarranted. Consequently, I accept this appeal and set aside the impugned order of his conviction and sentence. He shall be released forthwith if not required in any other case.

N.H.Q./F‑146/L

Appeal accepted.