PLJ 2022 Cr.C. 523
[Lahore High Court, Lahore]
Present:
Muhammad Amjad Rafiq, J.
MUHAMMAD
RIAZ and others--Appellants
versus
STATE
and others--Respondents
Crl. A.
No. 76975, Crl. Rev. No. 424 & PSLA No. 113 of 2017,
heard on 11.11.2021.
Criminal Procedure Code, 1898 (V of
1898)--
---S.
342--Statement of accused--Status of a statement--Stance of Accused/appellant
is more convincing in light of his detailed statement u/S. 342 Cr. P.C, yet it
needs to be appreciated in light of principles of evidence including standard
to prove his plea of self defence and medical evidence--It is trite that there
are different standards to prove a fact by prosecution and defence--This
expression can further be analyzed in manner that standard of proof required
from prosecution is proof beyond reasonable doubt, reasonable doubt means,
something to which you can assign a reason--‘Beyond reasonable doubt’, a
formulation has been approved in more than one occasion by House of Lords.
[Pp.
530 & 531] C
Burden of proof--
----Standard of proof put legal burden or evidential burden on
parties to prove facts--Legal burden refers to party to satisfy court in
respect of a fact in issue--It should be noted that legal burden in respect of
different facts in issue can rest on one or other of parties within same
case--In criminal cases, it is a fundamental tenet that prosecution bears legal
burden of proving its case against accused, although it was only in 1935, in
case of Woolmington v. DPP (1935), that this was definitely
established--Reginald Woolmington was sentenced to death for murdering his
wife, who has threatened to leave him--He claimed that it was an accident, that
he brandished murder weapon, a gun, in order to frighten her into returning
home with him (by causing her to think that he was going to commit suicide),
when it accidentally went off. [P.
531] D
Presumption--
----Rule of law--Legal burden--There are certain situations
when not legal burden yet accused is under obligation to discharge evidential
burden. There are certain rules of evidence known as presumptions, which have
an effect on normal incidence of burden of proof--A presumption is a rule of
law which provides that if a party proves a certain fact (known as primary
fact) then other fact (presumed fact) will also be taken to be proved unless
evidence is adduced by opponent to ‘rebut’ presumptions, or, in other words
contradict presumed fact. [P. 532] E
Burden of proof--
----Presumption--Evidentiary
value--According to first theory, generally named after Professor Thayer, a
leading exponent, proof of primary fact creates an evidential burden in
opponent with respect to presumed fact--Therefore, presumed fact will be taken
as proved unless opponent adduces some evidence to rebut presumption, though he
need not to go so far as disproving it--If opponent does this, presumption
disappears and normal burden of proof applies as if presumption had never
existed--This sudden disappearance has led to this theory being known as
‘bursting bubble’ theory--Professor Glanville Williams describes presumptions
governed by this theory as ‘evidential presumption’.
[P.
532] F
Burden of proof--
----Evidential burden--Legal burden of proof--According to
second theory, named after Professor Morgan, proof of primary fact operates to
shift legal burden of proof of presumed fact to opponent, who must adduce
evidence to disprove it to applicable standard of proof--Professor Glanville
Williams describes presumptions governed by this theory as ‘persuasive
presumptions--This distinction is almost certainly of significance only in
civil cases, since in criminal cases, accused cannot be made to bear legal
burden of proof except on certain defined issues (which do not include
presumptions as such) and never on ultimate issue of guilt--To extent,
therefore, that prosecution could use a presumption against accused, accused
would acquire at most an evidential burden of proof as to presumed fact, and an
accused can discharge an evidential burden through cross examination of
witnesses for prosecution as well as by producing his own witnesses--Standard
of proof required of defence has been defined as “not higher than burden which
rests upon a plaintiff or an accused in civil proceedings and civil standard of
proof is rest on “the balance of probabilities”. [P.
533] G
Criminal Procedure Code, 1898 (V of 1898)--
----S.
342--Pakistan Penal Code, (XLV of 1860), S. 302(b)--Statement of accused--Legal
burden of proof--Conviction and sentence--Challenge
to--Presumption--Qatl-e-amd--Evidentiary burden-- As shall be seen from
statement of accused/appellant recorded under Section 342, Cr.P.C. he has
admitted his own presence at time and place of occurrence and further even
availability of (deceased) alongwith one (not produced) at time and place of
occurrence also remains admitted, with exclusion of (complainant PW-3) and one
who was produced by prosecution in witness box as PW-4--Above evidence of
alleged conspiracy, instead of advancing case of prosecution has materially
damaged it, for reason that throughout it has been stance of complainant that
hot words were exchanged by accused with deceased and complainant party and
that was reason that Safdar was done to death--This being sole motive set by
complainant himself, how, it could be said that conspiracy had been hatched by
accused party one week before such date--Thus, this piece of evidence takes along with it
even motive part of occurrence--In this case accuse/appellant has not adduced
the evidence nor produced witnesses in his defence, therefore, his plea of
taking life of Safdar Iqbal, in the circumstances he portrayed in his statement
u/S. 342 is considered in the light--Act of accused claiming right of self defence
is tracked in light of medical evidence--Medical evidence through PW-1 mentions
injuries on left and right thigh, yet Injury No. 1-A on left thigh shows size
of 6x5 cm and Injury
No. 2-A on right thigh also carries similar size of 6x5 cm with additional
feature of having black margins indicate that fires were made from a very close
range whereas prosecution alleged inter se distance in site-plan as
10-feet--Admission of accused of making first fire to save his life may be from
a very close range on right thigh, yet his next stance that two more fires on
left thigh in same go and in same position of parties is beyond comprehension
when size of injuries is same--This is an indication that appellant has
exceeded right of self defence and did not use proportionate force to deter
attack particularly when none of his attacker were carrying firearm weapons,
one was holding him by arms, and deceased were there to launch attack upon him
with sota and hatchet; but appellant did not target said “Z” therefore, he cannot
seek acquittal on ground of exercising right of private defence within
parameters of law--Authorized u/S. 423, Cr.P.C. finding of trial court is
altered while conviction and sentence imposed upon (the accused appellant) is
maintained; consequently, appeal filed by him is dismissed.
[Pp.
529, 530, 533, 535 & 536] A, B, H, I & J
Miss Bushra Qamar, Muddasar Naveed Chatha, Nazir Abbas,
Zafar Malik, Liaqat Bashir Mughal and Hamza Nadeem Tarrar, Advocates
for Appellant.
Miss Noshi Malik Deputy Prosecutor General for State.
Mr. Muhammad Aslam Gondal, Advocate for Complainant.
Date of hearing: on 11.11.2021.
Judgment
Murder of Safdar Iqbal was reported
with pointed fingers upon the appellant and others, yet complainant showing
distrust to result of investigation, opted to launch private prosecution
splitting into two groups of offenders; Sheraz and Bilal being juveniles
charged and tried separately, similarly, separate trial of Riaz appellant along
with others was held in a private complaint emanating from FIR No. 258/2014
under Section 302/34, PPC registered at Police Station Miana Gondal, District
Mandi Bahauddin, which resulted to his conviction and vide judgment dated
23.02.2017 the learned trial Court sentenced him as under:
Imprisonment for
life under Section 302(b), PPC with compensation of Rs. 500,000/- under Section
544-A, Cr.P.C., in default to further suffer simple imprisonment for six
months.
Benefit of Section 382-B, Cr.P.C. was extended.
2. In the early hours of day at 9.00 a.m. on 21.09.2014, Safdar
Iqbal along with Zulfiqar Ahmad (given up) went to collect chaff for cattle in
the land of one Ghulam Rasool, where on using a particular path, faced the
anger and annoyance of Riaz appellant, they revolted in the same coin giving
air to fume and fury on both sides; Riaz warned them to be ready for this
treatment; they left for destined place, complainant hearing about such
altercation also reached to the place of occurrence with Qamar PW and in the
meantime Riaz appellant carrying Repeater .12 bore along with Sheraz armed with
Gun .12 bore double barrel, Bilal carrying hatchet, Ghulam Rasool and Naeem
Umar variously armed reached there, Lalkara was raised by Bilal, two fires
ensued from the gun of Riaz appellant hitting on right thigh of Safdar Iqbal; Sheraz
also settled the score and two fires from his gun hit on the left thigh of Said
Safdar Iqbal. Accused on their toe decamped; Safdar was taken to RHC Miana
Gondal where he breathed his last.
Motive alleged as mentioned above yet hatching of conspiracy
was also alleged against Imtiaz Ahmad and Muhammad Nawaz, who stood acquitted
from the charge during trial.
3. Being dissatisfied, complainant launched private prosecution
wherein accused/appellant was summoned, he was charge sheeted to which he
denied and claimed trial. The prosecution produced Riaz Ahmad Sub-Inspector
(CW-6) who while giving details of his investigation deposed about his visit to
the spot, preparation of injury statement and inquest report and dispatch of
dead body to Hospital for postmortem examination. He also secured blood stained
earth from the place of occurrence, prepared unscaled site-plan, took into
possession last worn clothes of deceased. On 15.10.2014 arrested Riaz/appellant
and recovered gun .12 bore repeater and ultimately submitted the report under
Section 173, Cr.P.C. Muhammad Azam Sub-Inspector (CW-5) had also partially
investigated the case. Dr. Manzoor Rasul Awan (PW-1) conducted autopsy, Javed
Iqbal (CW-2) and Sikandar Hayat (PW-5) furnished evidence of abetment/conspiracy
alleged hatched by accused persons Riaz, Imtiaz, Nawaz, Sarwar. Mukhtar Ahmad
complainant (PW-3) and Qamar Abbas (PW-4) are witnesses of the ocular account.
On close of prosecution evidence, the accused/ appellant when examined under
Section 342, Cr.P.C. admitted the occurrence but came up with his own version
in the following terms:
“In fact combine
harvester was cutting paddy crop from the field owned by one Ahmad Malang
resident of the village which was cultivated by me (Riaz accused). I along with
my son Sheraz co-accused were collecting "Palra" of said paddy crop.
Zulfiqar PW along with Zafar Iqbal, Safdar Iqbal (since deceased) also came
there to collect "Palra” of paddy crop from the said field. I forbade them
that this "Palra" is belongs (sic) to us. Said Zafar Iqbal, Zulfiqar
Ahmad PW and Safdar Iqbal (since deceased) went from there. I came back to my
home. Zulfiqar Ahmad PW and Zafar Iqbal Safdar Iqbal (since deceased) also came
back from there. I released my cattle for watering them from canal. When my
cattle were returning from the canal, Riasat S/O Ahmad came there. All of a
sudden, Safdar (deceased) and Zulafiqar PW came out from gate along with their
weapons i.e Sota and hatchet and they stopped the said cattle in front of gate
of my house. Safdar Iqbal (since deceased) raised Lalkara that I be taught a
lesson for not permitting the lifting of “Palra” crop and kill me. The cattle
went into the fields of Ghulam Rasul S/O Nawab and I went into the field of my
Bajra crop with the height of 1½/2 feet. Riasat caught hold of me from my right
side and when Zulfiqar PW and Safdar (deceased) attacked on me by their
weapons, to save my life I made fire which landed on the right thigh of Safdar
(deceased). During the efforts to save myself, two further fire-shots
discharged from the gun suddenly which also landed on the left thigh of the
deceased. After hearing the voice of fire, my son Sheraz (co-accused) attracted
there. He made no fire on the deceased. I made only one fire to save my life.
If I wanted to kill the deceased, then there was no hurdle in his way to kill
Safdar Iqbal (deceased). No PW except Zulfiqar Ahmad was there. They belatedly
tried to transfer Safdar Iqbal the then injured (since deceased) due to that
his death occurred. I along with other co-accused had made no abetment. No
other accused was present at that time with me. All the other co-accused have
been implicated falsely being my close relatives. The above said fact was found
correct by the two I.Os CW.5 and CW.6 and their investigation was also verified
by the concerned DSPs and DPO of the District.”
The accused/appellant however, did not
opt to produce defence nor appeared in the witness box under Section 340(2),
Cr.P.C. ultimately, all the charged accused were acquitted while he was
convicted and sentenced as mentioned earlier.
4. Learned counsel for the appellant
contends that presence of PWs produced by the prosecution is not established.
Natural witness Zulfiqar Ahmad was given up which was major setback for
prosecution casting an adverse inference against them. Stance of
accused/appellant is more convincing yet defence is not obliged to supply
weaknesses of prosecution through his evidence; therefore, deserves acquittal
on the basis of principle laid down in a case reported as “Azhar Iqbal v.
The State” (2013 SCMR 383). On the hand learned DPG assisted by learned
counsel for the complainant stressed that statement of appellant under Sectoin
342 is a support to prosecution case, and it cannot be lightly ignored and
placed reliance on case reported as “Nasir Mehmood versus The State”
(2015 SCMR 423) while urging that conviction was on the right legal track.
5.
As shall be seen from the statement of Riaz Ahmad accused/appellant recorded
under Section 342, Cr.P.C. he has admitted his own presence at the time and
place of occurrence and further even the availability of Safdar Iqbal
(deceased) along with one Zulfiqar Ahmad (not produced) at the time and place
of occurrence also remains admitted, with exclusion of Mukhtar Ahmad (complainant
PW-3) and one Qamar Abbas who was produced by prosecution in the witness box as
PW-4.
6. The complainant (Mukhtar Ahmad) is the resident of Hisso Ana
Dakhli Chak Aalam and the place of occurrence is village Baryar, it has come in
the statement of complainant PW-3 that distance between his above residence and
the place of occurrence is one kilometer and similar is the position with Qamar
Abbas (PW-4) who is also resident of same Hisso Ana Dakhli and no plausible
explanation has come on record by which they could justify their presence at
the place of occurrence at the relevant time. It is also a fact which came on
record through the statement of complainant that the place where from Safdar
Ali proceeded to fetch “praali” is 7/8 acres from the place of occurrence.
The complainant in clear terms stated that “on the day of alleged occurrence
only Zulfiqar and Safdar (since deceased) went to collect “Paralli” prior to
the instant occurrence.” and that “I myself did not go to collect “Praali”
in the company of Zulfiqar PW and Safdar. Exactly same has been the stance of
Riaz Ahmad accused/appellant in his statement under Section 342, Cr.P.C. Thus,
the most natural and independent witnesses on above aspect could be Zulfiqar
PW, whose presence has been admitted by the accused/appellant as well, but
statement of this witness was withheld by the prosecution, though he was put
for cursory statement.
7. The presence of Mukhtar Ahmad complainant (PW-3) and Qamar
Abbas PW-4 is further doubted for the reason that though according to the
complainant the occurrence took place on 21.09.2014 at 9.00 a.m. and he has not
deposed that who told him about the earlier altercation and even their presence
at the crime scene according to site-plan is at distance from where one cannot view
the hitting of fire with exactitude. After the occurrence he shifted Safdar
injured to hospital RHC Miana Gondal situated at a distance of 14/15 kilometer
from the place of occurrence where he succumbed, but according to Dr. Manzoor
Rasul Awan (PW-1) who had conducted the autopsy, the dead body was received in
the mortuary on the same day at 5.00 p.m, complete documents were received from
the police at 6.30 p.m. and the post mortem was conducted at 6.40 p.m. Had the
complainant (PW-3) or Qamar (PW-5) been present at the time and place of
occurrence such unexplained and protracted delay would never have occurred and
the police would not have taken so long to prepare and produce the relevant
documents to the doctor for autopsy. These are the circumstances which are
found sufficient to disbelieve the statements of PWs. Further Investigating Officers
CW-5 & CW-6 categorically admitted during cross-examination that they found
only Riaz at the place of occurrence and his version of firing at Safdar Iqbal
was found correct.
8. Though Javed Iqbal (PW-2) and Sikandar Hayat (PW-5) were
produced on the aspect of alleged conspiracy and according to these witnesses
one week prior to the murder of Safdar they heard the voices of accused.
Wherein accused Imtiaz and Nawaz were asking co-accused Riaz, Sheraz and Bilal
to commit the murder of Safdar (deceased). Considering that both these
witnesses are relatives of the complainant and the deceased, it is totally
unbelievable that when both these witnesses, according to them had heard the
conversion wherein, clearly plan under discussion was to commit the murder of
Safdar, then how they could desist to report such an important factor to the
close relative of said Safdar prior to the occurrence. In this view of the
matter, this court has no doubt whatsoever to hold that this piece of evidence
was in fact self-made creation, with no actual basis.
9.
The above evidence of alleged conspiracy, instead of advancing the case of the
prosecution has materially damaged it, for the reason that throughout it has
been stance of the complainant that on 21.09.2014 at 9.00 a.m. hot words were
exchanged by Riaz accused with Safdar and Zulfiqar and that was the reason that
Safdar was done to death. This being the sole motive set by the complainant
himself, how, it could be said that conspiracy had been hatched by the accused
party one week before such date. Thus, this piece of evidence takes along with
it even the motive part of the occurrence.
10. Though recovery of a repeater .12 bore was shown to have
been effected from the accused/appellant but it remains admitted position that
no crime empties were recovered from the place of occurrence and working
condition of such gun as reported by the office of Punjab Forensic Science
Agency, Punjab after its analysis, even if believed, is inconsequential in the
circumstance.
11.
Stance of Accused/appellant is more convincing in the light of his detailed
statement under Section 342, Cr. P.C, yet it needs to be appreciated in the
light of principles of evidence including standard to prove his plea of self
defence and medical evidence. It is trite that there are different standards to
prove a fact by prosecution and the defence. This expression can further be
analyzed in the manner that standard of proof required from the prosecution is
proof beyond reasonable doubt, reasonable doubt means, something to which you
can assign a reason. ‘Beyond reasonable doubt’, a formulation has been approved
in more than one occasion by the House of Lords.[1]
and has become a phrase of common usage in the English language. In Miller v
Minister of Pensions [1947] 2 All ER 372 at 373, Denning J elaborated on
the name of proof beyond reasonable doubt in these terms:-
It
need not reach certainty, but it must carry a high degree of probability. Proof
beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law
would fail to protect the community if it admitted fanciful possibilities to
deflect the course of justice. If the evidence is so strong against a man as to
leave only a remote possibility in his favour which can be dismissed with the
sentence ‘of course it is possible, but not in the least possible’, the case is
proved beyond reasonable doubt and nothing short of that will suffice.
The
standard of proof put legal burden or the evidential burden on the parties to
prove the facts. Legal burden refers to party to satisfy the Court in respect
of a fact in issue. It should be noted that the legal burden in respect of
different facts in issue can rest on one or other of the parties within the
same case. In criminal cases, it is a fundamental tenet that the prosecution
bears the legal burden of proving its case against the accused, although it was
only in 1935, in the case of Woolmington v. DPP (1935), that this was
definitely established. Reginald Woolmington was sentenced to death for
murdering his wife, who has threatened to leave him. He claimed that it was an
accident, that he brandished the murder weapon, a gun, in order to frighten her
into returning home with him (by causing her to think that he was going to
commit suicide), when it accidently went off. The trial judge summed up as
follows:
Once it is shown to
a jury that somebody has died through the act of another, that is presumed to
be murder, unless the person who has been guilty of the act which causes the
death can satisfy a jury that what happened was something less, something which
might be alleviated, something which might be reduced to a charge of
manslaughter, or was something which was accidental, or was something which
could be justified.
For the trial
judge, then, and indeed for the Court of Criminal Appeal, it was up to Reginald
Woolmington to prove absence of mens rea; that is, the legal burden lay on him.
The House of Lords though held otherwise:
‘…. while the prosecution must prove the
guilt of the prisoner, there is no such burden laid on the prisoner to prove
his innocence and it is sufficient for him to raise a doubt as to his guilt; he
is not bound to satisfy the jury of his innocence’ (per Viscount Sankey LC).
Thus, it was for
the prosecution to establish the presence of mens rea; that is, the legal
burden lay on them.
12.
There are certain situations when not the legal burden yet accused is under
obligation to discharge the evidential burden. There are certain rules of
evidence known as presumptions, which have an effect on the normal incidence of
burden of proof. A presumption is a rule of law which provides that if a party
proves a certain fact (known as primary fact) then the other fact (presumed
fact) will also be taken to be proved unless evidence is adduced by the
opponent to ‘rebut’ the presumptions, or, in other words contradict the
presumed fact.
13. It is worth observing initially
that there has been an important contrast of approach between English and
American writers on the subject. English writers have generally stated with the
proposition that there are different kinds of presumptions, which have
different effects on the burden of proof.[2]
American writers have sought (largely in vain) a principle applicable
universally to all presumptions, but have found themselves unable to agree on
what principle it should be.[3]
14.
According to first theory, generally named after Professor Thayer, a leading
exponent, proof of primary fact creates an evidential burden in the opponent
with respect to the presumed fact. Therefore, the presumed fact will be taken
as proved unless the opponent adduces some evidence to rebut the presumption,
though he need not to go so far as disproving it. If the opponent does this,
the presumption disappears and the normal burden of proof applies as if the
presumption had never existed. This sudden disappearance has led to this theory
being known as the ‘bursting bubble’ theory. Professor Glanville Williams describes
presumptions governed by this theory as ‘evidential presumption’.
15.
According to the second theory, named after Professor Morgan, proof of the
primary fact operates to shift the legal burden of proof of the presumed fact
to the opponent, who must adduce evidence to disprove it to the applicable
standard of proof. Professor Glanville Williams describes presumptions governed
by this theory as ‘persuasive presumptions. This distinction is almost
certainly of significance only in civil cases, since in criminal cases, the
accused cannot be made to bear the legal burden of proof except on certain
defined issues (which do not include presumptions as such) and never on the
ultimate issue of guilt. To the extent, therefore, that the prosecution could use
a presumption against the accused, the accused would acquire at the most an
evidential burden of proof as to the presumed fact, and an accused can
discharge an evidential burden through cross-examination of the witnesses for
the prosecution as well as by producing his own witnesses. The standard of
proof required of the defence has been defined as “not higher than the burden
which rests upon a plaintiff or an accused in civil proceedings and the civil
standard of proof is rest on “the balance of probabilities”.[4]
16.
In this case accuse/appellant has not adduced the evidence nor produced
witnesses in his defence, therefore, his plea of taking life of Safdar Iqbal,
in the circumstances he portrayed in his statement under Section 342 is
considered in the light of case reported as Ali Ahmad v. The State (PLD
2020 SC 201) wherein status of statement of accused under Section 342, Cr. P.C
was declared as under:
Status of a statement under Section 342, Cr.P.C.
17. The words
"taken into consideration" appearing in Section 342(3), Cr.P.C. are
very wide. The statement of an accused recorded under Section 342, Cr.P.C., has
no less probative value than any other "matter" which may be taken
into consideration against him within the contemplation of the definition of
"proved" given in Article 2(4) of the QSO21 (previously Section
3 of the Evidence Act, 1872), which states that a fact is said to be proved
when, after considering the matters before it, the Court either believes it to
exist, or considers its existence so probable that a prudent man ought, under
the circumstances of the particular case, to act upon the supposition that it
exists. Muhammad Munir, J., in Rahim Bakhsh22, regarding statement
under Section 342, Cr.P.C. wrote: "I know of no law which says that an ad mission
made by an accused person in or out of court unless it is vitiated by any such
circumstances as are mentioned in the Indian Evidence Act, cannot be considered
to be a matter which the court may take into consideration in coming to its
conclusion." The circumstances which can vitiate an admission or
confession, referred to by the learned Judge, may be of inducement, threat or
promise under which a particular statement is made. A statement under Section 342,
Cr.P.C. having been made by an accused before court in presence of his counsel
has little chance of suffering from such circumstances.23 However,
an admission or confession which is improbable or unbelievable, or is not
consistent with the overall facts and circumstances of a case may not have any probative
value and thus cannot be relied upon by the court for reaching to a conclusion.24
The august court further clarifies in
supra case that if the accused takes a stance and such stance does not fulfill
the requirement of law and his act is not completely covered in legal
protection available under the law, he can well be convicted. Following is the
expression of august court:
C. Where
prosecution has failed and the statement of the accused under Section 342,
Cr.P.C. is accepted in entirety, the court is then to give due effect to the
statement of the accused, under the law, whether in favour of or against the
accused.
22.
Next comes the question, how such a statement of the accused when
"accepted as a fact45 and taken in its entirety is to be given
effect and acted upon, once the prosecution has failed to make out a case? Once
the prosecution evidence is disbelieved, rejected or excluded from
consideration, and the facts explained by the accused in his statement under
Section 342, Cr.P.C. are accepted entirely, the court is then to examine the
said facts to give due effect to the statement of the accused, under the law,
whether in favour of or against the accused.46 The object of such
examination is to determine whether or not the facts narrated by the accused
constitute an offence under the law or fit into any exception of the offence
provided under the law. In this respect, the observation of Sir Mukerji J.,
made in the case of Bhola Nath47 is quoted to explain the purpose of
this examination of the statement of the accused. The learned Judge observed,
at page 5:
"If on the whole of the statement
of the accused, taken together, his guilt is established, and his plea, say, of
acting in self -defence or of the case falling within any of the general or special
exceptions (sic) is not made out on the facts admitted, there cannot be any bar
to a conviction, simply because the prosecution evidence, by itself, would not
have secured a conviction " (emphasis supplied)
This legal
examination was also aptly expla ined and applied by Lobo C.J. in Gul Mahomed48.
The learned Judge found that accepting the statement of the appellant as true,
the act of the appellant in killing his wife and another was under grave
provocation but it was not under sudden provocation. The facts narrated by the
appellant though were accepted but those were found not to fit in the legal
parameters of Exception-I to Section 300, P.P.C. for making the case of the
appellant as one of grave and sudden provocation. Likewise, this Court,
in Muhammad Azam,49 though admitted the statement under Section 342,
Cr.P.C. as a whole, but found, even in those admitted facts, the accused to
have exceeded in his right of self -defence and convicted him accordingly.
In Sattar referred above the accused while explaining the circumstances in
which he inflicted injuries to him, claimed to have acted in the exercise of
right of self - defence. But the High Court though accepted his statement of
facts in its entirety, but convicted him under Section 304-I, P.P.C. by
treating his version not to fit in the legal requirement of the valid exercise
of right of self -defence as the accused as per his own version of facts had
chased the deceased in street who was attempting to escape from the place of
occurrence.
[Emphasis supplied]
Act
of accused claiming right of self defence is tracked in the light of medical
evidence. Medical evidence through PW-1 mentions the injuries on left and right
thigh, yet Injury No. 1-A on left thigh shows size of 6x5 cm and Injury No. 2-A
on right thigh also carries similar size of 6x5 cm with additional feature of
having black margins indicate that fires were made from a very close range
whereas prosecution alleged inter se distance in the site-plan as 10-feet.
Admission of accused of making first fire to save his life may be from a very
close range on the right thigh, yet his next stance that two more fires on left
thigh in the same go and in the same position of parties is beyond
comprehension when the size of injuries is the same. This is an indication that
Riaz appellant has exceeded the right of self defence and did not use
proportionate force to deter the attack particularly when none of his attacker
were carrying firearm weapons, one was holding him by arms, Zulfiqar and
deceased were there to launch attack upon him with sota and hatchet; but
appellant did not target
said Zulfiqar, therefore, he cannot
seek acquittal on the ground of exercising right of private defence within the
parameters of law.
17.
For what has been discussed above, authorized under Section 423, Cr.P.C. the
finding of learned trial court is altered while conviction and sentence imposed
upon Muhammad Riaz (the accused appellant) is maintained; consequently, appeal
filed by him is dismissed.
18. For the same reasons, I have not seen any reason to enhance
the sentence which in the facts and circumstances of the case fully
commensurate with the role played by the accused/appellant as well as the
standard of evidence available on the record. Criminal Revision No. 424/2017
filed by the complainant seeking enhancement of sentence, therefore, is
dismissed.
19. Similarly, PSLA brought by the complainant against the
acquittal of Imtiaz Ahmad, Muhammad Nawaz, Ghulam Sarwar and Naeem Umar is
dismissed.
(A.A.K.) Appeal dismissed
[1]. [Woolmington v DPP (HL) [1935] AC 462 at
481; Mancini v DPP (HL) [1942] AC 1 at 11; McGreevy v DPP [1973] 1 WLR 276.
[2]. [Woolmington v DPP (HL) [1935] AC 462 at
481; Mancini v DPP (HL) [1942] AC 1 at 11; McGreevy v DPP [1973] 1 WLR 276.
[3]. Thayer, Preliminary Treaties on Evidence,
314, 336; 9 Wigmore, Evidence, s. 2491(2) (Chadburn Rev 1981); Morgan and
Maguire (1937) 50 Harv L Rev 909.
[4]. R v Carr-Briant (CCA) [1993] KB 607 at 610.