P (PLP)

MUHAMMAD JAN, J.‑--Rehmat Ullah Pathan, aged 32 years, employed as a Constable in the Border Police Force at Chatar, situated on the border between Pakistan and India, has been convicted by the learned Sessions Judge, Sialkot, under section 304 I. P. C. and sentenced to three years' rigorous imprisonment. He has appealed through jail and states in the memorandum of appeal that he had no previous enmity with the deceased Sohrab Gul who was also employed in the Border Police, Chatar. He says that on the 6th December 1948 he was posted on duty at 6 a. m. His wife, who lived with him in a house situated at a distance of 20 yards or so from the place where he was on duty, came to him naked and said that a‑ man had entered the house in his absence and had outraged her modesty. She had locked him up in the house and had come to inform him. The appellant lost self‑control, went to his house, and fired three shots at the deceased, the last one of which felled him to the ground. It was dark and he fired three shots because the first two appeared to have missed the deceased and he stopped firing as soon as the latter fell down, on being hit by the third shot. He pleads grave and sudden provoca tion and prays for acquittal. The medical evidence shows that the deceased was killed by only one shot. There was one bullet wound of entrance and one wound of exit on his body. The position taken up by the appellant has been accepted by the trial Court, excepting his statement that his wife had come to him naked. Mst. Said Mirjan, wife of the appellant, appeared as the only witness for the defence. She stated that as soon as her husband had gone on duty someone knocked at the door and, believing that it was her husband she opened it. A stranger rushed into the house and caught her by the breasts and kissed her.' He tried to open her pyjama string but she struggled and released herself. Her shirt was torn and removed from her body. She, however, managed to get out of the house and shut the door from outside to prevent the culprit from running away. She then went and informed her husband who ran to the house with the rifle which he was holding and on entering it he fired three shots at the stranger who was found to be Sohrab Khan Constable. The statement relating to the removal of the shirt is not borne out by any other evidence and is indeed contradicted by Farid‑ud‑Din, Inspector Police (P. W. 1) and Sahib Shah, Head Constable (P.W.2) who have stated that Said Mirjan had her clothes on when they went to the house immediately after the occurrence and she did not point out any torn clothes to them. Be that as it may, the appellant pleaded grave and sudden provocation and this was conceded by the trial Court; otherwise he was tried on a charge of murder and should have been sentenced to death, but for the plea of provocation. The question of private defence does not arise in this case because it is not even suggested by the appellant or his wife that the deceased was shot dead in order to prevent him from committing assault on Mst. Said Mirjan or in order to save her from any other harm. The shooting was done by the appellant purely as an act of punishment and the right of private defence could not be invoked. The appellant had undoubtedly committed an offence under section 304 I. P. C. as held by the trial Court and the sentence of three years' rigorous imprisonment is by no means excessive. The appeal is, therefore, dismissed. A. H. Appeal dismissed.