P L D 1971 Peshawar 1 (PLP)

SHAH ZAMAN BABAR, J.

Rehman Gul, aged 24/25 years, along with his father Sultan, residents of village Manai, Police Station, Nowshera Kalan, District Peshawar, were tried by the Sessions Judge, Peshawar, under section 302/34, P. P. C. for the murder of Najim Khan, by firing at him with the revolver Exh. P. 1 and causing his death on 9-10-1965 at about 20-15 hours in village Maraj. The trial Judge by his judgment dated 1-4-66 acquitted Sultan of the offences under section 302, P. P. C. and convicted Rehman Gul under section 302, P. P. C., sentenced him to transportation for life, and a fine of Rs. 1,000, or in default two years' R. I. further. The fine was ordered to be paid as compensation to the heirs of the deceased. Rehman Gut was also convicted under section 13 of the West Pakistan Arms Ordinance, 1965, and sentenced to one year's R. I. Both the sentences were ordered to run consecutively. The revolver, the empties and the cartridges recovered were confiscated to the State.

2. Rehman Gut appealed from Jail (J. CR. A. No. 176/68). The Memo. of appeal is undated. The attestation note by Assistant Superintendent Central Jail, D. I. Khan, also bears no date. The office, it appears, received it on 21-10-68. Rehman Gut had preferred another jail appeal (J. Cr. A. No. 45/70) against the same judgment, which has been filed in this office on 9-3-70. As in this appeal the same judgment dated 1-4-1966 by the Sessions Judge, Peshawar, has been challenged, we consider this appeal as redundant, and do not entertain it. CRIMINAL APPEAL No. 176/68 This appeal has been preferred much beyond the statutory period of 60 days of the period of limitation provided in law for filing the appeals to this Court. The appellant has neither made an application nor has given any sufficient cause to condone the delay under the provisions of section 5 of the Limitation Act. The appeal is, therefore, obviously barred by time. After the perusal of the judgment of the learned Sessions Judge and the record of the case, we were satisfied that a serious miscarriage of justice has taken place. We, therefore, for the furtherance of ends of justice are inclined to entertain this time-barred appeal, as it would be very bard in this case if the appellant, who is in jail, is deprived of the advantage of this appeal being heard on merits. In Surta Singh and others v. The Crown (I L R 1 Lah. 508), Scott-Smith, J. at page 510, observed: "Now, in the present case where the appeal is a criminal one there is no `successful litigant' who has secured any `valuable right'. It cannot be said that the Crown has secured any valuable right by reason of the appeal not having been filed within the prescribed period. Government has nothing to gain by the appeal being dismissed as time-barred. All that the Government is, or should be, anxious for is that justice should be done." Moreover, such a great lapse of time in seeking the remedy would cause no-prejudice to the State.

3. As earlier stated, a serious miscarriage of justice has taken place, which, in our view. should not be left unnoticed and unheard. We, therefore, for the ends of justice, in the exercise B of our suo motu revisional powers under section 439, Cr. P. C. can treat, this time-barred appeal as a revision, wherein also we can exercise any of the powers of appellate Court under section 423, Cr. P. C. Reliance is placed on (1) V. Jankairamayya v. Niammagadda Brahmayya A I R 1925 Mad. 709. (2) Sarwar v. The State P L D 1959 Lah. 50, and (3) Mohammad Usman v. Habibullah P L D 1962 Quetta 5.

4. The facts of the case are summarised below:- The parties belong to village Manai, Tehsil Nowshera. They appear to be inter-related. Sultan (acquitted accused) and Yasin P. W. (now dead and his statement transferred) were brothers. Rehman Gut appellant and Usman are the sons of this Sultan. Rukhan is a son of Yasin and Mst. Bibigai is the daughter of Yasin. This Mst. Bibigai was married to this Usman-10/11 years before the occurrence. At the time of the marriage Yasin had paid an amount of Rs. 160 to his brother Sultan. Nauroz (P. W. 3), uncle of Najim deceased, and Gut Abad (P. W. 7) had stood sureties for Sultan for the payment of this amount. It is worth noting that a sister of Najim deceased is the wife of Rukhan, son of Yasin. After the marriage, Mst. Nur Jehan, wife of Sultan, vas killed. Mst. Bibigai was charged-for the murder, but was acquitted. Sultan suspected the hand of P. W. Nauroz in this murder. Two-three days prior to the present occurrence Gul Abad P. W. and Nauroz P. W. demanded the debt from Sultan for payment to Yasin. Sultan, however, refused payment on the alleged ground that Nauroz was suspected to have a hand in the murder of his (Sultan's) wife.

5. On 9-10-1965, at about 20-15 hours, when there was full moonlight, Sultan and his son Rehman Gut appellant were sitting in the village Khuwar. This Khuwar runs through the village East-West. There is a mosque also close to the southern side of the Khuwar. The houses of the appellant and the deceased lie to the south of the Khuwar while those of P. Ws. Samar Gul and Mian Khan lie to the north of the Khuwar. 'P. W. Nauroz and Najim deceased approached Rehman Gul and Sultan in the Khuwar and repeated the demand of debt of Rs.

160. Sultan again refused the demand. An altercation and grappling ensued between Sultan and Nauroz. It is alleged that Sultan ordered his son Rehman Gul to fire. Rehman Gut appellant took out his revolver and fired two effective shots at Najim. By that time, P. W. 1, Samar Gul, who was going to the mosque for khuftan prayers, had reached the site of the occurrence. Mian Khan (P. W. 2) rushed to the spot on hearing the noise in the Khuwar. Samar Gut caught hold of Rehman Gut appellant from behind and called out to Mian Khan for assistance. Mian Khan caught hold of the appellant from his front and thus Samar Gut was able to snatch the revolver Exh. P. 1 from the appellant. Rahim Shah lambardar (P. W. 4) and Nadir Chaukidar (P. W. 5) also arrived at the spot on hearing two fire shots. These two witnesses found Najim lying injured. On their inquiry Najim charged the appellant for his injuries. Samar Gut handed over the Revolver Exh. P. 1 to Rahim Shah Lambardar. The revolver had two empties, one missed and one live cartridge in its chambers. A holster containing 8 live cartridges and two empties, was also recovered from the appellant and handed over to Rahim Shah. The appellant was locked in a room. Muslim Shah (P. W. 8) brother of Rahim Shah, guarded the kotha till the arrival of the police. Rahim Shah handed over the revolver to Muslim Shah.

6. Najim was taken to Police Station Nowshera Kalan. P. Ws. Nauroz, Rahim Shah, Nadir and Israr (P. W. 6 accompanied the injured to the Police Station. The distance between the site of crime and the Police Station is 12/13 miles. Najim (injured) lodged his report Exh. P. A. at the Police Station on the same day viz. 9-10-65, at 23-45 hours. The state ment in this report is thumb-impressed by P. Ws. Nauroz, Rahim Shah, Nadir and Israr. The report was scribed by A. S. I. Rafiullah (P. W, 13), as Saifullah Khan, S. H. O. had gone out on patrol duty. The report Exh. P. A. of Najim was scribed when he was in full senses and capable to make a statement. The A. S. I. then prepared the injury sheet ERh.,P. M./2 and sent the injured to the hospital for medical examination. The A. S. I. then left out for the spot. He reached there at 4-45 a.m. He inspected the spot in full moonlight and prepared the, site plan Exh. P. N/1. After completion of the site plan the A. S. I. went to the house of Rahim Shah, where the appellant was locked in a room. The A: S. I. arrested the appellant. Rahim Shah produced 32 bore revolver Exh. P. 1 with two empties, one missed and one live round in the chamber. The holster containing 8 live cartridges of .32 bore and three empties, was also produced by the Lambardar to the A. S. I. They were taken into possession vide memo. Exh. P. B. This memo is signed by P. W. Rahim Shah as marginal witness. A. S. I. Rafiullah Jan handed over the investigation to P. W. 15, S. I. Saifullah Khan on 10-10-65, at 16-30 hours. Najim died in the hospital. Saifullah Khan S. I. prepared his inquest report Exh. P. K. The S. I. also prepared the injury sheet of the appellant, and Sultan the acquitted accused. The S. I. sent the revolver with the empties to the firearm expert. Mr. Khairul Bashar (P. W. 10), Arms Expert, opined that the two crime empties had been fired from the revolver Exh. P. 1. 7(a). Dr. Sahar Gul examined the injuries of Najim on 10-10-65 at 1-15 a.m. and found the following injuries- (1) An entrance wound " oval on the lower part root of the neck front. (2) An entrance wound, " circular on the front of the left thigh upper 1/3rd. (3) An exit wound on the back of the left thigh. (4) Bullet could be felt under the skin. Najim died at 8-10 a.m. on 10-10-65. The same doctor performed the post-mortem examination on the dead body of Najim on 10-10-1965 at 10 a.m. and confirmed the above mentioned external injuries. On internal examination thorax walls, pleura; and left lung were found injured. Cavity was full of blood. Stomach was full of undigested food. Death was due to shock and haemorrhage. The injuries were caused by firearm. The probable time between injury and death was 9 to 12 hours. The bullet Exh. P. 10 was recovered from the dead body and sent to police. The doctor opined that injury No. 1 on the deceased was sufficient to cause death, in the ordinary course of nature. He also opined that the deceased was in a position to speak and make a statement after the receipt of the injuries. 7 (b). The same doctor examined Rehman Gul appellant on 10-10-65 at 1 p.m. and found the following injuries:- (1) " skin deep contused wound on the left side skull, 2 " above the left ear. (2) " circular contusion on the right side skull half inch above behind the right ear. (3) 3" x " contusion on the outer side right shoulder. The injuries were simple in nature caused by blunt weapon. 7(c). The same doctor also examined Sultan (acquitted accused) on 10-10-1965, at 1 p.m. and found the following injuries:- (1) " skin deep contused wound on the left side skull. (2) " contused wound on the pinna of the left ear. The doctor opined that the injuries could be caused by stone or blunt weapon.

8. At the trial Rehman Gul appellant in his explanation for the demand of Rs. 160 and the grappling thereafter, stated:- "Yes. There was a demand of money which my father refused and, on which Nauroz and Najim attacked us with sticks. Apprehending, danger to my life and that of my father, I fired twice at Najim." The appellant admitted that he was apprehended at the spot with the revolver and holster, for which he possessed no license. He also admitted to have been confined in a kotha by Rahim Shah P. W, till the arrival of the police. Explaining the injuries on his person, he stated that these were caused by the deceased and Nauroz. In explanation to the question "why have you been charged by the deceased in his dying declaration and the eye-witnesses Nauroz, Samar Gul and Mian Khan", the appellant replied:- "The witnesses and the deceased have suppressed the role of the other party against. us, and to this extent they have falsely deposed against us." He produced no evidence in defence.

9. The ocular evidence of P. Ws. Samar Gut, Mian Khan, and Nauroz, and the supporting evidence of P. Ws. Rahim Shah and Nadir, coupled with the dying declaration of the deceased, leave no doubt in our mind that it was the appellant alone, who fired the two effective shots with his revolver Exh. P. 1 at Najim deceased. The appellant has also admitted having fired at the deceased but he pleads defence of person.

10. The learned trial Judge in the concluding para of his judgment, observed:- "I find that a case against Rehman Gut accused has been made out beyond reasonable doubt under section 302, P. P. C." On re-appraisal of the evidence and circumstances of the case, we are of the view that the appellant is entitled to the benefit of Exception. 2 to section 300, P. P. C., in that in his exercise, in good faith of the right of self-defence of person, he exceeded the power given to him by law and caused the death of Najim deceased against whom he exercised such right of defence. Nauroz P. W. is the uncle of the deceased. One Mir Ahmad Shah is the son of the first cousin of Nauroz. The daughter of Samar Gul P. W. is the wife of Mir Ahmad Shah. P. W. Mian Khan also appears to be a close relation of the deceased. This relation can be inferred from the denial of this relation in the statement of Mian Khan in cross-examination, when he said that Mirdad was his paternal grandfather. Hikmat Shah was paternal grandfather of Najim deceased. He did not know whether Mirdad and Hikmat Shah were brothers. Mian Khan P. W. is aged about 40 years and his denial of such a close relationship with the deceased appears to be false. These three P. Ws. and the deceased have not given a satisfactory account of the injuries on the person of the appellant. In his dying declaration the deceased also suppressed the injuries on the person of the appellant. P. Ws. Samar Gut and Mian Khan have stated in their statements before the police that there was an altercation between Nauroz, Rehman Gut and Najim followed by grappling and stone-throwing, but at the trial they deposed such statements to be incorrect. There can be no denial of the injuries on the person of the appellant. The appellant has attributed these injuries to Nauroz- P. W. and Najim deceased in their attack with sticks on him. The medical evidence, referred to above, manifestly supports the allegations of the appellant. Injuries Nos. 1 and 2 are on the skull while injury No. 3 is on the right side shoulder. Each injury, in our opinion, can probably be caused by stick blow. Injuries Nos. 1 and 2 are on the skull and were sufficient to cause reasonable apprehension of death or grievous hurt to the appellant. The prosecution evidence is that 2/3 days prior to the occurrence Sultan (acquitted accused) had refused to pay the debt of Rs. 160 to Nauroz P. W. In such circumstances, Nauroz and the deceased appear to have been aggrieved by the refusal. The deceased in his dying declaration has clearly stated that at khuftan time he and his uncle Nauroz went to the Khuwar for the demand of the debt of Rs. 160 from Sultan and Rehman Gut, where the latter two were present. This was not the normal time and place for the demand. The reasonable inference flowing from the evidence and circumstances appears to be that Najim deceased or Nauroz P. W. or both went armed with sticks to Khuwar to demand the debt from the appellant and Sultan, the acquitted accused, and that during the fight Nauroz and Najim deceased inflicted stick injuries on the person of the appellant. In retaliation the appellant, as admitted by him, fired twice at Najim with his revolver. We are thus inclined to hold the view that the appellant exceeded the right of self-defence in firing twice at the deceased. The first effective revolver shot at the deceased would have been sufficient to disable him from pursuing his attack on the appellant. The offence committed by the appellant would thus fall under section 304 (Part 1), P. P. C.

11. In conclusion, therefore, we partially accept the appeal, alter the conviction of the appellant from section 302, P. P. C. to that under section 304 (Part 1), P. P. C., and sentence him to five years' R. I. The fine, if paid, be remitted to- the appellant. The appeal from the conviction and sentence under section 13, Arms Ordinance is hereby dismissed. Both sentences are to run consecutively. S. G. D. Appeal partly allowed. Conviction altered.