Report of FSL regarding status of pistol--Mere recovery of pistol was not sufficient to corroborate ocular account, as ocular account was not believable.

 PLJ 2012 SC 234

Pakistan Penal Code, 1860 (XLV of 1860)--

----Ss. 302(b) & 302(c)--Criminal Procedure Code, (V of 1898), S. 342--Conviction and sentence recorded against accused by trial Court--High Court converted the conviction from S. 302(b), PPC to S. 302(c), PPC and reduced sentence of death--Challenge to--Case of two versions--High Court did not give any reason for holding that accused had exceeded in exercise of right of self defence--Appreciation of evidence--Validity--When both the versions were kept in juxtaposition version put forth by accused in his statement recorded u/S. 342, Cr.P.C. appeared to be plausible for reasons that after having received fire-arm injuries at hands of deceased as lost resort, accused fired from his postal in order to save his life from culprits in his self defence which unluckily hit deceased due to which fortified by statement of Dr. who appeared in witness box and deposed that he found five fire-arm injuries on the person of accused--Accused had received injuries during the incident but his injuries were suppressed by prosecution, as such, the eye-witnesses could not be termed as truthful witness--Both eye-witnesses denied that accused had received any injury during incident as PWs had not spoken truth as they suppressed injuries--Except for oral statements of PWs there was nothing which could establish the presence of PWs at spot and as presence at spot appeared to be doubtful--Evidence could not be relied upon in order to convict the accused on capital charge as statements of PWs did not find any corroboration from any piece of independent evidence--Since accused had exercised his right of self defence after receiving fire-arm injuries, observation of appellate Court had not force at all--Right of self defence was recognized by law of land but it was to be exercised if circumstances so warrant as every citizen was entitled to resist attack and defend himself and his property when he or his property was faced with danger--Wherein appellate Court had convicted the accused u/S. 302(c), PPC while holding that although the accused had exercised his right of self defence but he had exceeded the same--Accused had not at all exceeded his right of self defence rather he rightly acted in self defence as such, Supreme Court believed the version of accused u/S. 342, Cr.P.C. in toto and disbelieved the prosecution evidence--Appeal was allowed.    [Pp. 238, 240 & 241] B, C, D, E, G, H & I

PLD 1988 SC 25, 1992 SCMR 1592, PLD 2002 SC 792 &
2007 SCMR 203, ref.

Benefit of doubt--

----Accused was entitled to benefit of doubt not as matter of grace but as of right because prosecution had not proved its case beyond reasonable doubt.       [P. 239] A

Ocular account--

----Report of FSL regarding status of pistol--Mere recovery of pistol was not sufficient to corroborate ocular account, as ocular account was not believable.      [P. 240] F

Mr. Mir Afzal, ASC and Ch. Akhtar Ali, AOR for Appellant.

Mr. M. Irfan Malik, Addl. P.G. for Respondent.

Date of hearing: 7.12.2011.

 PLJ 2012 SC 234

[Appellate Jurisdiction]

Present: Mian Shakirullah Jan, Jawwad S. Khawaja & Ijaz Ahmed Chaudhry, JJ.

MUHAMMAD AKRAM--Appellant

versus

STATE--Respondent

Crl. A. No. 146 of 2011, decided on 7.12.2011.

(On appeal from the judgment dated 18.10.2010 in Cr. A. No. 898/2005, M.R. No. 466/2005 passed by the Lahore High Court, Lahore).

Judgment

Ijaz Ahmad Chaudhry, J.--This criminal appeal has arisen from Jail Petition No. 571 of 2010 filed against the judgment of Division Bench of the Lahore High Court, Lahore dated 18.10.2010 through which conviction of the appellant has been converted from Section 302(b) PPC to Section 302(c) PPC and sentence of death was reduced to fifteen years R.I. with direction to pay compensation of Rs.1,00,000/- to the legal heirs of the deceased under Section 544-A Cr.P.C. or in default to further undergo six months S.I.

2.  Incident in the present case took place at 10.30 a.m. on 26.4.2003 within the area of Chak No. 546/ GB at a distance of 16 kilometers from P.S. Mamu Kanjan. On the statement of Rustam Ali complainant (Ex.PG) FIR was recorded by Amjad Ali, MHC on the same day.

3.  The Brief facts of the case are that on the day of occurrence complainant Rustam Ali along with his paternal cousin Wali Dad, Liaqat Ali and Muhammad Ali proceeded towards Chak Bazarwala for the purpose of buying a buffalo. Wali Dad was at some distance from the complainant and others. When Wali Dad reached near the land of Safiri Bhatti etc., Muhammad Akram appellant, Muhammad Ashraf and Muhammad Aslam emerged and Muhammad Ashraf took Wali Dad into his clasp (Japha) and Muhammad Akram made a fire from his pistol which hit Wali Dad on his mouth and Muhammad Aslam made fire which hit on the upper arm of Wali Dad. The complainant along with Liaqat Ali and Muhammad Ali while making hue and cry rushed to the place of occurrence. The accused upon seeing the complainant party fled away from the spot. Wali Dad succumbed to his injuries at the spot. The motive behind the occurrence statedly was that three years before the occurrence Wali Dad, deceased had injured Muhammad Arshad, brother of Muhammad Akram appellant while making a fire shot.

4.  A cross version was also recorded in this case on the complaint made by one Muhammad Anwar against the accused Wali Dad, deceased, Liaqat Ali, Muhammad Ali, Rustam Ali, Abdul Sattar and Muhammad Khan alleging that on 26.4.2003 at about 10.30 a.m. in the area of Chak No. 546/GB within the jurisdiction of P.S. Mamun Kanjan, Faisalabad, they while armed with deadly weapons, formed an unlawful assembly and in furtherance of their common intention they being armed with deadly weapons launched a murderous assault upon Muhammad Akram and caused him fire-arm injuries.

5.  Before the Trial Court the prosecution produced as many as eleven witnesses to prove the charge against the appellant and his co-accused, out of whom PW-9 Rustam Ali complainant and PW-10 Muhammad Ali appeared as eye-witnesses whereas PW-2 Dr. Muhammad Azam Athar Gill produced the medical evidence. To prove the charge against the accused of the cross version, five witnesses were produced before the Trial Court out of whom Dr.Mian Tahir Javaid appeared as PW-5 to prove the injuries on the person of the appellant. The Trial Court also examined all the accused in both the cases under Section 342 Cr.P.C. The learned Trial Court, after conclusion of trial and appraisal of evidence available on the record convicted the appellant Muhammad Akram under Section 302(b) PPC and sentenced him to death with direction to pay compensation for Rs. 100,000/- Rupees one lac) to the legal heirs of the deceased or in default thereof to suffer six months S.I. On appeal, however, the learned Division Bench of the Lahore High Court altered the conviction of the appellant from 302(b) PPC to Section 302(c) PPC and sentenced him to fifteen years R.I. with compensation in the terms as awarded by the Trial Court.

6.  Learned counsel for the appellant has contended that the learned High Court has not given any reason for holding that the appellant has exceeded in exercise of his right of self-defence and has convicted the appellant under Section 302(c) PPC. It is further contended that same evidence has been disbelieved qua the involvement of co-accused Muhammad Aslam by the learned Trial Court, therefore, the same evidence cannot be relied upon for recording conviction against the appellant. It is further contended that the prosecution evidence has not been discussed by the learned High Court as the judgment passed by the learned High Court is totally silent. It is further contended that the prosecution witnesses had not spoken the truth as they had concealed the injury on the person of appellant Muhammad Akram. PW-5 Dr. Mian Tahir Javaid had medically examined the appellant on the same day at 11.30 a.m. and had observed five fire-arm injuries on the body of the appellant. The witnesses produced by the prosecution had suppressed this fact, therefore, were not worthy of credence.

7.  Learned Additional Prosecution General when questioned, has conceded frankly that reasons had not been advanced by the learned Appellate Court for recording conviction of the appellant under Section 302(c) PPC and had not discussed the fire-arm injuries which were received by the appellant during the incident.

8.  We have heard learned counsel for the parties and have gone through the impugned judgments of the Courts below. No doubt it is a case of two versions, one pleaded by the prosecution and the other by the defence according to which the prosecution case as unfolded in the FIR is that on the day of occurrence complainant Rustam Ali along with his paternal cousin Wali Dad, Liaqat Ali and Muhammad Ali proceeded towards Chak Bazarwala for the purpose of buying a buffalo. Wali Dad was at some distance from the complainant and others. When Wali Dad reached near the land of Safiri Bhatti etc., Muhammad Akram appellant, Muhammad Ashraf and Muhammad Aslam emerged and Muhammad Ashraf took Wali Dad into his clasp (Japha) and Muhammad Akram made a fire from his pistol which hit Wali Dad on his mouth and Muhammad Aslam made fire which hit on the upper arm of Wali Dad. The complainant along with Liaqat Ali and Muhammad Ali while making hue and cry rushed to the place of occurrence. The accused upon seeing the complainant party fled away from the spot. Wali Dad succumbed to his injuries at the spot. The motive behind the occurrence statedly was that three years before the occurrence Wali Dad deceased had injured Muhammad Arshad, brother of Muhammad Akram appellant while making a fire shot, whereas the defence version, as reflected in the statement of the appellant recorded under Section 342 Cr.P.C., is that:--

            "About three years prior to this occurrence Wali Dad deceased in this case injured my brother namely Arshad while he had come to commit dacoity in our house and my said brother resisted. I got a case registered against him U/Ss. 324/379/411 PPC vide FIR No. 3/2000, P.S Mamun Kanjan, Faisalabad. Having been released on bail, Wali Dad pressurized me to come to compromise, which I refused. On the fateful day I and Muhammad Aslam were going to Mamun Kanjan to deposit Electricity Bills. I was possessing the said bills as well as money of my co-villagers also as I was President of Welfare Society. When we reached near the land of Dost Muhammad Bhatti, a Motor Cycle was parked near a heap of earth. Suddenly Wali Dad, Rustam, Muhammad Ali, Liaqat Ali PWs and their two companions namely Abdul Sattar and Muhammad Khan, all armed with pistols and carbines stopped us. Wali Bad deceased raised a lalkara to teach me a lesson and asked to hands-up. He also tried to search me, which I resisted. PW Rustam fired at me with his pistol hitting  me on my left shoulder. Wali Dad deceased fired twice hitting me on right side of my chest. I tried to run away but Muhammad Ali fired at me hitting on my buttock. Abdul Sattar their companion also fired at me, which hit me on my left buttock. I fell down semi-conscious. Liaqat and Muhammad Khan also fired straight at me and Muhammad Aslam. Felling myself in extreme danger, I also fired with my licensed pistol to save my life. During this occurrence Wali Dad lost his life and a case was falsely registered against me by his relatives. The PWs in this case are relatives of Wali Dad deceased and accused of my Cross Case. They have deposed against me due to their relationship with the deceased and enmity with me. Further more, they have deposed against us to save their skin from punishment in Cross Case."

It is cardinal principle of law that in such like cases of two versions, one is to be believed in toto and not in piecemeal. This proposition of law is well settled by now as reflected in the case of Safdar Ali v. Crown (PLD 1953 FC 93) wherein it has been held that in a criminal case it is duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after examination of the whole evidence the  Court  is  of  the  opinion that there is reasonable possibility that the defence put forth 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. The aforesaid principle has been further elaborated in the case of "Nadeem-ul-Haq Khan and others v. The State" (1985 SCMR 510).

9.  While following the above-referred principle of law, we have minutely examined versions of both the parties and when both the said versions are kept in juxtaposition, version put forth by the appellant in his statement, recorded under Section 342 Cr.P.C., appears to be plausible for the reasons that after having received the fire-arm injuries at the hands of the deceased and his companions, as a last resort, the appellant fired from his licensed pistol in order to save his life from the culprits in his self-defence which unluckily hit Wali Dad deceased due to which he breathed his last. The version of the appellant is further fortified by the statement of Dr. Mian Tahir Javed who appeared in the witnessbox as PW-5 and deposed that he found five fire-arm injuries on the person of the appellant. In the opinion of the said doctor the appellant was admitted in the hospital at 11:30 a.m. and at that time the injuries were fresh which were caused by fire-arm weapon. The time of occurrence is mentioned in the FIR as 10:30 a.m. whereas the appellant was admitted in the hospital at 11:30 a.m.. The distance in between the place of occurrence and the hospital, where the appellant was admitted for treatment, was 16 kilometers, as such, it is established on record that the appellant was admitted in the hospital within one hour of the receipt of injuries. The factum of sustaining fire-arm injuries by the appellant, in the instant case, and his admission in Mamun Kanjan Hospital was admitted by Allah Rakha SI, PW.11, who registered the FIR and conducted the investigation. He also admitted that he had gone to hospital and when he came to know that Muhammad Akram was admitted in the hospital, he telephonically called the Head Constable and Constables and retained them to guard Muhammad Akram appellant. He also admitted that he registered the cross version on the order of the Superintendent of Police on 8.5.2003. He also admitted during cross-examination that a number of persons who appeared before him during investigation had stated that the version of the accused party was correct and Wali Dad deceased and his companions were the aggressors. He also admitted that the deceased was a history sheeter and notoriously  bad  character.  We have noticed that it has been established on record, from the statements of Allah Rakha, PW-11, and Dr. Mian Tahir Javed, PW-5, that the appellant had received injuries during the incident but his injuries were suppressed by the prosecution, as such, the eye-witnesses cannot be termed as truthfull witnesses.

10.  While further dilating on the prosecution witnesses we are not persuaded to believe the statements of Rustam Ali, PW-9 and Muhammad Ali PW-10 who furnished the eye-witness account of the occurrence for the reasons that Rustam Ali is paternal cousin of deceased Wali Dad whereas Muhammad Ali, PW-10, is real brother of the deceased, as such, both the eye-witnesses being closely related inter se and with the deceased makes their statements highly doubtful. Both the eye-witnesses, during their cross-examination, denied that the appellant Muhammad Akram had received any injury during the incident, as such, it appears that both the eye-witnesses have not spoken the truth as they have suppressed the injuries on the person of Muhammad Akram, appellant. Except for the oral statements of eye-witnesses there is nothing on record which could establish the presence of both the eye-witnesses at the spot and as their presence at the spot appears to be doubtful, no reliance could be placed on their testimonies to convict the appellant on a capital charge. Since the same set of evidence has been disbelieved qua the involvement of Muhammad Aslam, as such, the same evidence can not be relied upon in order to convict the appellant on a capital charge as the statements of both the eye-witnesses do not find any corroboration from any piece of independent evidence. Even the report of Forensic Science Laboratory regarding the status of pistol, recovered from the appellant alongwith crime empties though the same were sent to the Forensic Science Laboratory, was not produced by the prosecution. Mere recovery of pistol from the appellant alone is not sufficient to corroborate the ocular account, as such, the ocular account is not believable. When both the versions, as aforesaid, are kept in juxtaposition the version put forward by the appellant appears to be natural and is believable.

11.  So far as the observation made by the learned appellate Court while altering the sentence of the appellant from Section 302(b) PPC to 302(c) PPC and reducing his sentence from death to 15 years,
it appears that something else has happened immediately before
the occurrence and the appellant while exceeding the right of self-defence has fired at the deceased which resulted in his death, is concerned we after examining the circumstances of the case are of the firm  view  that since the appellant had exercised his right of self-defence after receiving five fire-arm injuries, therefore, the said observation of the learned appellate Court has no force at all. Right of self-defence is recognized by law of the land but it is to be exercised if the circumstances so warrant as every citizen is entitled to resist the attack and defend himself and his property when he or his property is faced with danger and when immediately the state machinery is not readily available. In such a situation the citizen is entitled to protect himself and his property.

12.  Now the question of conviction is to be discussed in the light of observations made above as well as the findings of the learned Lahore High Court wherein the appellate Court has convicted the appellant under Section 302 (c) PPC while holding that although the appellant had exercised his right of self-defence but he has exceeded the same. In this respect, the stance taken by the appellant seems to be plausible that he after having received five fire-arm injuries at the hands of the deceased and his companions fell semi-unconscious and in such state of affairs only and only in order to save his life fired a single shot which unluckily hit the deceased due to which he lost his life. The explanation and stance of the appellant appears to be natural as the deceased and his companions were not abstaining themselves from further firing on the appellant and their further firing could have taken the life of the appellant and in such a situation he has acted in his self-defence and not exceeded the same. In this respect, reference is made to the cases of "Munshi Ram and Others v. Delhi Administration" (AIR 1968 SC 702), "Mashal Khan v. The State" (PLD, 1988 SC 25), "Muhammad Younas v. The State" (1992 SCMR 1592), "Mukhtar Ahmad v. The State" (PLD 2002 SC 792) and "Saeed Muhammad v. The State" (2007 SCMR 203).

13.  In view of the law referred above, it is crystal clear that in the facts and circumstances of the present case the appellant has not at all exceeded his right of self-defence rather he rightly acted in his self-defence, as such, we believe the version of the appellant put forward by him in his statement under Section 342 Cr.P.C. in toto and disbelieve the prosecution evidence.

14.  For what has been discussed above, the judgments of both the Courts below are set-aside and the appeal is allowed. The appellant Muhammad Akram is set at liberty. He be released forthwith if not required in any other case.

These are the reasons of our short order of even date announced in Court.

(R.A.)  Appeal allowed