P L D 1967 Lahore 1160 (PLP)

9. Bakhsha, when examined in the committing Court, came forward with the following version "Ahmad accused was waylaid by Nusrat deceased and Nusrat P. W. The deceased felled Ahmed on the ground in true struggle. Nusrat P. W. fired at Ahmad which accidentally hit the deceased. I intervened and was attacked snatched the pistol from the hand of Nusrat P. W. who whipped out a dagger and attacked me. I fired at his leg to scare him away."

10. When examined on the close of the prosecution evidence at the trial, Ahmad Nawaz appellant came forward with the version, which runs "Four days before the occurrence, I had given shoe‑beating to Nusrat P. W. because he was wandering near the house of Fatti Kumhari with whom he had illicit connections. I am a school, teacher in Chak No.

466. My school closes at 1 p.m. daily in summer and on the day of occurrence I was returning from my school at about 1‑30 on bicycle. In the way Bakhsha accused met me on the way and on my enquiry told me that he had gone to Chak Hakamwala to recover some amount of loan from ms customers and was returning home. I took him on the carrier of my bicycle. When we reached near Chak Massu wala, and passed near the Sarkanda bushes which are situate on the road side, suddenly Nusrat P. W. and Nusrat deceased, who were hiding themselves there, came out. Nusrat deceased was armed with Bang and Nustat P. W. was armed with a pistol. As Bakhsha accused was behind me on the carrier, therefore, the deceased succeeded in giving him lathi blows and he fell down on the road and I along with the cycle fell down on the road. I ran towards the abadi of Chak Massuwala to save myself. Nusrat deceased pursued me and grappled me from behind and he called Nusrat P. W. telling him that I had been caught and that he should fire at me. Nusrat P. W. accordingly fired at me but as Nusrat deceased was grappling with me from behind the bullet hit him and he fell down. Bakhsba my co‑accused caught Nusrat P. W. saying that why he was fighting. My cycle was lying on the road at a distance of 3 or 4 Karams from me. I took the cycle and ran away. I received injuries by falling down on the road along with the bicycle. I was grappled by Nusrat deceased and some injuries I might have received in that way also."

11. When called upon to explain the injuries on his person Bakhsha appellant put forth the counter‑version which is reproduced below for the sake of convenience :‑ "I had gone to Hakamwala to recover my loan from my customers and was returning and when I was at a distance of about one furlong from Chak No. 466, Ahmad Nawaz came from behind riding on a cycle and he on my took me on his cycle on the carrier behind. When we reached near Massuwala well, there are Sarkanda bushes along the road. From there suddenly, Nusrat deceased and Nusrat P. W. came out. Nusrat deceased was armed with lathi and he gave me two lathi blows as a result of which myself, cycle and my co accused fell down on the road. Then Nusrat deceased grappled with Ahmad Nawaz accused. Ahmad Nawaz accused ran and Nusrat deceased pursued him and grappled him from behind. Nusrat P. W. had a pistol in his hand and he ran behind Ahmad Nawaz accused to fire at him. I grappled with him from behind. As soon as I grappled Nusrat P. W. he fired at Ahmad Nawaz accused. As Nusrat deceased was grappling with Ahmad Nawaz accused from behind therefore the bullet instead of hitting Ahmad Nawaz accused hit Nusrat deceased. After that I snatched away the pistol from Nusrat P. W. He grappled with me to snatch the pistol from me but I refused saying that I would produce the pistol before the police. In the meantime, Ahmad, Bahadur and Khan came running. Before they came, Nusrat P. W. again grappled with me to snatch away the pistol from me and to achieve his object he gave me knife blow on my head. I closed my fist and my finger therefore, unintentionally pressed the trigger and the pistol fired and the Oull9t hit the thigh of Nusrat. W, In the meantime, Ahmad Chaukidar, Khan and Bahadur reached and they captured and I told him the story. They took the pistol from me. I then ran to the police station and narrated story to the police. The police detained me there but my statement as not recorded. After a short‑while, Ahmad Nawaz accused reached the police station. The police detained him also saying that a person of the complainant party had died and therefore our case would not be registered. After that Dost Muhammad Lambardar came along the pistol."

12. The appellants examined Dost Muhammad Lambardar and Ahmad Chaukidar in their defence. Dost Muhammad Lambardar deposed that ten months ago at `Peshiwela' he was going to his tube‑well at Chah Massuwala when he heard an alarm. He went to the spot and saw Nusrat lying dead. Nusrat P. W. was sitting on the ground and was injured. Ahmad Chaukidar, Khan and Babadur Jappas were also present at the spot. Ahmad Chaukidar bad a pistol with him and on enquiry by Dost Muhammad Lambardar, Nusrat, P. W. told him that they had come to take revenge but one of them got killed. He also mentioned to the Lambardar that he was beaten near the house of Kumhars by Ahmad Nawaz and that he bad made up his mind to take revenge. The witness continued that he enquired from Ahmad Chaukidar as to where was Bakhsha and he told him that Bakhsha was going towards the Thana. The Lambardar took the pistol from Ahmad Chaukidar and went to the Police Station. When he reached the Police Station he found the appellants already present there. They asked the Sub‑Inspector to record their statements and to register the case but the Sub Inspector refused saying that a member of the opposite‑party had been killed. Dost Muhammad Lambardar goes on to say that he handed over the pistol to the Sub‑Inspector and he took it into possession. Dost Muhammad Lambardar appeared as a prosecution witness in the committing Court but was given up at the trial as having been won over by the accused. He did not state to the committing Magistrate that on his enquiry Nusrat P. W. told him that they had come to take revenge but one of his companions got killed. Dost Muhammad Lambardar admitted that Ahmad Nawaz appellant is the nephew of Bahadur Lambardar of his village. The Lambardar omitted to mention in his statement which he made to the committing Magistrate that he went to the `Thana', found both the accused persons present there and they told the Sub‑Inspector in his presence to record their statements and to register the case but the Sub‑Inspector refused saying that he would not register the case as one of the members of the opposite‑party was killed. Ahmad Chaukidar stated that he was present at Massuwala well when he heard the alarm and ran to the spot. He was at a distance of 15 Karams when he saw Nusrat deceased grappling with Ahmad Nawaz appellant. Nusrat P. W. was grappling with Bakhsha appellant. When the Chaukidar was still at a distance of 12 or 14 Karams he heard a pistol shot and saw a pistol in the hand of Nusrat P. W. Bakhsha was holding Nusrat P. W. from behind. The shot hit Nusrat deceased. Bakhsha snatched the pistol from Nusrat P. W. who look put a Wife from his dub and gave an injury with the knife on the hand of Bakhsha in order to snatch the pistol from him. Bakhsha fired with the pistol and the shot hit Nusrat P. W. on the right thigh. 1n the meantime, Bahadur and Khan also reached there. Ahmad Chaukidar snatched the pistol from Bakhsha. Bakhsha then started for the Thana. Shortly afterwards, Dost Muhammad Lambardar also came up and Ahmad Chaukidar handed over the pistol to him and also pointed out to Bakhsha who was going towards the Police Station. I shall advert to the defence evidence at its proper stage.

13. The motive as disclosed in the first information report was that Nusrat P. W. was suspected of having illicit intimacy with Mst. Daulan, daughter of one Nijabat, by Gaman and others. Four days before the occurrence, under consideration, Nusrat P. W. was going towards his house. When he reached near the house of Mst. Fatti Kumbari he was assaulted by Gaman and Ahmad Nawaz sons of Nijabat and by their first cousin Pira. Nusrat raised an alarm. Shamir, his uncle and Nusrat deceased, were attracted to the spot and they rescued Nusrat P. W. The story in regard to the motive was supported by Nusrat P.W. He denied that he had illicit intimacy with Mst. Daulan. He said further in his statement that ten or twelve days before the alleged occurrence he was forbidden by Ahmad Nawaz appellant from passing that way because he suspected him of having illicit intimacy with his sister Mst. Daulan and was thinking of murdering him. Nusrat P. W. omitted to mention in the first information report that Ahmad Nawaz appellant who is a brother of Mst. Daulan remarked that he intended to kill him because of illicit intimacy with his sister. Shamir fully corroborated the statement of Nusrat about the motive. Shamir is interested. His father and the grandfather of Nusrat P. W. were first cousins. Nusrat deceased was the nephew of Shamir. The mother of Nusrat P. W. is a first cousin of Shamir. The learned trial Judge believed the story about the beating given to Nusrat P. W . by Ahmad Nawaz and others four days before the occurrence and came to the conclusion that it actuated him to take revenge from Ahmad Nawaz. I am in perfect agreement with the conclusion reached by the trial Judge and hold that Nusrat P. W. was out to take revenge for the beating given to him four days before the occurrence.

14. Nusrat, Amir, Shamir, Ahmad and Shaman P. Ws. supported the story about the actual occurrence. According to the prosecution Nusrat P. W. along with the deceased and Amir Chamber were going to Chak Manara on the eventful day, at `Peshiwela', and when they had gone to a distance of one mile from Bhowana they noticed the appellants coming on a bicycle from the opposite direction. When they were still at a distance of ten Karams they got down from the bicycle. Ahmad Nawaz appellant challenged Nusrat who ran towards the north‑west followed by Nusrat deceased. When they had run to a distance of five or seven Karams, Ahmad Nawaz took out a pistol from his dub and fired. Nusrat deceased was hit and fell down. Nusrat P. W. turned round to see what had happened and received a bullet injury on his right thigh. After firing two shots, the e' appellants Oave up the pursuit. Amir P. W. caught hold of Ahmad Nawaz appellant from behind. Ahmad Nawaz handed over the why pistol to Bakhsha appellant and asked him to fire at Amir. Bakhsha tried to fire at Amir P. W. but the cartridge missed. Shamir, Ahmad and Shamman, who witnessed the occurrence, caught hold of Bakhsha appellant. Shamir snatched away the pistol from him. Ahmad Nawaz appellant succeeded in extricating himself and managed to escape.

15. Nusrat P. W. did not mention in the first information report that Bakhsha had anything in common with Ahmad Nawaz appellant. Nusrat stated in Court that Bakhsha and Ahmad Nawaz appellants were friends and they always remained together. This seems to have been introduced in order to involve Bakhsha who had nothing to do with the affair between Nusrat P. W. and Mst. Daulan, a sister of Ahmad Nawaz appellant.

16. The story narrated by Nusrat P. W. and supported by Amir about their intended visit to Chak Manara to enquire about the health of the sister of Nusrat is not at all convincing. Nusrat P. W. stated that his sister Mst. Niamate was suffering from fever. Amir P. W. was on visiting terms with the family of the husband of Mst. Niamate and that was the reason why he decided to accompany Nusrat P. W. to Chak Manara on the day of the occurrence. Amir P. W. bad also to realise some money from the husband of Mst. Niamate and had twice or thrice before the occurrence gone to Chak Manara with Nusrat P. W. for the purpose. Nusrat P. W. says that even a day prior to the occurrence Amir P. W. had gone with him to the house of his sister for realisation of the amount which he had advanced as a loan to Bahadur but was unable to give the amount which Amir had to realise from Bahadur. Nusrat was unable to say if his sister's husband had taken loan from Amir P. W. in cash or in kind. He was unable to say if Amir P. W. had recovered the loan from Bahadur a day earlier when he accompanied him to Chak Manara. It is in the statement of Amir P. W. that he had been going to Chak Manara with Nusrat deceased but never went there with‑Nusrat P. W. before the occurrence. Amir said further in his statement that he had been accompanying the deceased to Chak Manara as he had to recover the sum of Rs. 30 from the husband of Mst. Niamate, a,first cousin of the deceased. He said further that he realised the amount before the occurrence. The trial Judge believed that Amir P. W. was present at the time of the occurrence. I do not agree with him. Amir P. W. is interested. He is also inimical. He admitted that a year before the alleged occurrence certain Jappas had beaten Nusrat P. W. because they suspected that he prosecuted a love‑intrigue with a woman of their tribe. They were challaned in that connection and Amir gave evidence for Nusrat in that case. Nusrat P. W' denied that he was beaten because of illicit intimacy with some woman of Jappa tribe. He said that he was beaten by Jappas because he had to recover Rs.100 from them and they refused to pay the amount. Amir is not a truthful witness inasmuch as he expressed ignorance whether the case in which he gave evidence ended in conviction or acquittal. He lied when he stated that he did not enquire from Nusrat P. W. as to what had happened to that case. It is in the statement of Amir P. W. that he was going to the house of his maternal grandfather and thought that he would also go and enquire about the health of the sister of Nusrat P. W. It is in the statement of Amir that his father was the tenant of Sarfraz Chadhar, that the appellants purchased the land from Sarfraz and that the father of Amir was not prepared to part with possession of the land and, therefore, his father and brother, on one side and the accused on the other were arrested under sections 107/151, Cr. P. C. Amir bears no injury. He stated that he grappled with Ahmad Nawaz who fell on some pieces of broken earthenware and thus sustained the injuries. Had the version of Amir about the grappling with Ahmad Nawaz appellant been true, he could not have possibly come out unscathed. Amir P. W. did not have even a scratch on his person notwithstanding the circumstance that he admitted that he too fell down while grappling. The story of his struggle with Ahmad Nawaz appellant in order to over‑power him, therefore, falls to the ground. Amir did not state to the police that when the appellants got down from the bicycle Nusrat deceased and Nusrat P. W. ran towards the north. He did not say so even in his statement before the committing Magistrate. Amir failed to clarify in his statement to the police that Nusrat was injured on the back of his left shoulder. He omitted to mention it even in his statement before the committing Magistrate. Amir claimed to have overpowered Ahmad Nawaz and he was still in his grip when Ahmad Chaukidar reached the spot but he was allowed to escape and nobody tried to pursue him. In view of what has been stated above, it is not possible for me to rely on the testimony of Amir who admitted that Nusrat P. W. was on visiting terms with him. Since Nusrat stated that he left for the Thana after two or three hours of the occurrence, there was every likelihood that he named Amir as a witness in the first information report becausb he was on intimate terms with him.

17. Shamir and Shamman are chance witnesses. The reason assigned by them for their presence on the spot at the time of the occurrence is not convincing. They claimed to have seen the occurrence while on their way to Chak Bhattiwala to purchase fodder. Shamir is the paternal uncle of Nusrat deceased. The mother of Nusrat P. W. is a cousin of Shamir. He cultivated the land at Berwala and Mahramwala wells at a distance of 1‑1/4 miles from the spot. He resided at a distance of one mile from the place of the alleged occurrence. Shamman cultivated the land at Chah Gauruwala at a distance of one and a half miles from Mahramwala Well. Shamir stated that Shamman came to his well and they set out to purchase fodder from some refugee. Shamir admitted that they never purchased fodder from that person before nor after the occurrence. They had not even seen the green fodder which they intended to buy. They had started in search of fodder, available for sale and did not come across any field of fodder by the time, they reached the place of the occurrence, Shamman P. W. admitted that Ahmad P. W. is his first cousin. Mst. Bai is the sister of Shamman and is married to Muhammad, a brother of Ahmad P. W. This was the first occasion when Shamman accompanied Shamir in search of green fodder for sale. Shamman did not tell the police that he and Shamir were going to purchase fodder. The reason assigned by Shamir and Shamman regarding their presence at the time of the occurrence is not convincing. They are chance witnesses unworthy of credit. Ahmed P. W. is also related. Nusrat P. W. is the sister's son of Ahmad. Nusrat deceased was the son of his cousin. He too is a chance witness. He deposed that he was returning from Chak No. 466 when he saw the occurrence. His house is at a distance of one and a quarter miles from the place of the occurrence. His land is at a distance of one mile from the spot. He says that he had gone to a Hakim in Chak No. 466 for taking medicine. He was unable to give the name of the Hakim from whom he took the medicine for pneumonia and liver trouble. The witness stated to the committing Magistrate that he suffered from sexual debility. He stated, at the trial, that he was suffering from pneumonia and weakness of the liver. The distance between Chak No. 466 and village Bhowana is two miles. Ahmad would have us believe that he walked all the distance and when he reached the outskirts of Chak No. 466 he was informed by a woman that the Hakim was away. Ahmad did not wait for the Hakim. It is surprising that after the occurrence Ahmad did not go to the Hakim nor he called him at his house to examine him. Ahmad admits that Hadayat uncle of Ahmad Nawaz appellant instituted a case against Nijabat, a brother of this witness. Ahmad expressed ignorance if his brother Muhammad gave evidence for Chadhars in a case between Chadhars and the father of Ahmad Nawaz appellant.

18. The witness did not tell the police that Ahmad Nawaz appellant challenged Nusrat P. W. and that Nusrat left the road and ran towards the north. This seems to have been introduced in order to show that the deceased and Nusrat P. W. were shot at while they were running away from the spot.

19. After considering the evidence of Amir and Nusrat P. Ws. and the statements of the accused persons, the trial Judge summed up his conclusion as under :‑ "This part of the story, as stated by Amir and Nusrat P. Ws. that they along with Nusrat deceased were going to Chak Manara to enquire about the health of the sister of Nusrat P. W. and that when the accused persons drew near on the cycle, Ahmad Nawaz accused threw a challenge is incorrect. This part of the statements of the accused is correct that they were coming from Chak No. 466 on bicycle and when they reached near well Massuwala, the deceased and Nusrat P. W. who were ambushed, came out suddenly and the deceased gave blow with his lathi to `Bakhsha' accused. This fact has been admitted by Nusrat P. W. that four days before the occurrence, Abmad Nawaz accused and Gaman had beaten him with fists and shoes at Digerwela near the house of Fatti Kumbari. This being so, the motive to take revenge was for Nusrat P. W. and not for Ahmad Nawaz accused. Nusrat P. W. might have even threatened Ahmad Nawaz accused to see to him one day butt any how this has not come on the record. The beating given to Nusrat P. W. four days before the occurrence actuated him to take revenge. Both of them live in the same village and their houses are not situated at a greater distance as it was revealed at the time of site inspection and, therefore, it can be presumed that Nusrat P. W. knew that Ahmad Nawaz accused was a school master and used to come back daily at 1‑30 p. m. from the school. He has admitted in his statement that Ahmad Nawaz accused was a school master in Chak No.

466. So this story is quite believable that to take revenge Nusrat P. W. and Nusrat deceased, who were admittedly related to each other, went to take revenge and concealed themselves near the road on which the accused daily used to pass and as soon as Ahmad Nawaz accused, accompanied by Bakhsha accused, passed from there on bicycle, they attacked them. The fact that the deceased gave lathi blows to Bakhsha accused stands corroborated by the medical evidence. The nature of the injuries on the person of Bakhsha accused show that two injuries, one on the right shoulder on the back and the other on the left shoulder on the back were inflicted with a sota." The learned trial Judge proceeded to consider why Bakhsha who had nothing to do with the dispute between Nusrat P. W. and Ahmad Nawaz appellant was given sota blows. The finding which he recorded in this connection reads :‑ "So sota blows, first of all, were given to Bakhsha accused in order to disable him from saving or helping Ahmad Nawaz accused when he was being beaten."

20. Having come to the conclusion that Nusrat P. W. and the deceased waylaid and attacked Bakhsha with sota in order to disable him from saving or helping Ahmad Nawaz, the learned trial Judge reconstructed the version as to the actual occurrence and held Ahmad Nawaz liable for the murder of Nusrat deceased and an attempt on the life of Nusrat P. W.

21. If the complainant party waylaid the appellants and Nusrat P. W. opened the attack with a sota on Bakhsha, then the right of defence of person accrued. The provision of section 100 P. P. C. are relevant in this connection. The relevant portion from the section runs :‑ "Section

100. The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:‑ Firstly:‑ Secondly:‑Such Secondly.‑Such .an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such result ; Thirdly.‑ . . . . . . . . Fourthy.‑ . . . . . . . . Fifthly.‑ . . . . . . . . Sixthly.‑ . . . . . . . . Ahmad Nawaz could very‑well expect that grievous hurt if not death will be caused to Bakhsha and if under the circumstances he fired at Nusrat P. W. injuring him on the outer aspect of the right thigh, he committed no offence. The conviction of Ahmad Nawaz appellant for the attempted murder of Nusrat P. W. is, therefore, set aside and he is acquitted on that charge.

22. Ahmad Nawaz appellant received two minor abrasions in the transaction and it could not reasonably be held that he was attacked by the complainants with lathis. Had Nusrat P. W. and the deceased attacked Ahmad Nawaz with sticks, the result would have been different.

23. The plea that actually Nusrat P. W. fired with the pistol at Ahmad Nawaz while he was held by the deceased but the shot hit Nusrat deceased is simply preposterous and was rightly disbelieved by the trial Court and I have no hesitation in discarding it as worthless.

24. The story that Ahmad Nawaz fired at the deceased while he tried to flee is affirmatively proved from the "circumstance that the deceased received the injury on the back of left shoulder joint. It means that the deceased was not facing Ahmad Nawaz appellant and much less attacking him. In that view of the matter Ahmad Nawaz when he fired at the deceased acted with malice and committed the offence under section 302, P. P. C. Ahmad Nawaz appears to have been rightly convicted for the murder of Nusrat P. W. and properly punished. The sentence of transportation for life inflicted on Ahmad Nawaz appellant on that count is maintained.

25. The case of Bakhsha appellant stands on a different footing altogether. The trial Judge rightly held that Bakhsha did not share the common intention with Ahmad Nawaz. He was found guilty and was convicted for the attempted murder of Amir P. W. notwithstanding the circumstance that the missed cartridge P. 6 which was sent to the Ballistics Expert for examination was found not to have been used in pistol P. 5; the trial Judge held that even though there was no live cartridge in the magazine to the knowledge of Bakhsha when he fired an empty pistol aiming at Amir P. W. he still committed the offence under section 307, P. P. C. The conviction of Bakhsha appellant cannot be sustained. I accept the appeal of Bakhsha, set aside his conviction and the sentence and order him to be acquitted. He is in jail and I direct that he be set at liberty forthwith provided always that his detention is not necessary in connection with any other matter. K. B. A. Appeal partly accepted.