P L D 1962 (W (PLP)

BASHIR‑UD‑DIN AHMAD, J.‑Muhammad Hussain Pervaz, who was tried for the murder of Nur Muhammad on the 31st of August 1960 by the learned Sessions Judge, Montgomery at Lahore, was convicted and sentenced under section 302, P. P. C. on the 25th of August 1961 to transportation for life. The convict appeals.

2. The story for the prosecution is that on the morning of the fateful day the deceased Nur Muhammad, claimed Muhammad Hussain Pervaz to be his son, went to house of Wazir Muhammad in the Grain Market at Montgomery with whom Muhammad Hussain Pervaz lived in those days as it was rumoured that Wazir Muhammad was keeping the boy for immoral purposes, which Nur Muhammad disliked. Muhammad Hussain Pervaz was not willing to leave the service of Wazir Muhammad, and when Nur Muhammad persisted he shot him with the revolver of his master. Muhammad Buta, Jan Muhammad, Sardar Muhammad and Muhammad Amir, who were attracted to the spot on hearing the gunfire, witnessed the occurrence.

3. The report (Exh. P. 4) regarding the occurrence was made by Muhammad Buta at 7‑30 a.m. on the 31st of August 1960 at Police Post No. 3, Montgomery, and it was taken down by Muhammad Ramzan, Assistant Sub‑Inspector, (P. W. 21), who forwarded it to Police Station Sadar for registration of the case. The formal first information report Exh. P. A/Z was drawn up by Assistant Sub‑Inspector Manzur Ahmad (P. W. 13).

4. The case was investigated by Muhammad Ramzan, A. S. I. (P. W. 21), who took Into possession the revolver Exh. P. II and five empty cartridges Exh. P/12‑16 and sealed the same into a parcel vide Memo. Exh. P. F. He also took into possession sixteen live rounds and sealed them into two separate parcels. The licence Exh. P. G, was also taken into possession by the investigating officer vide memo. Exh. P. H. He took into possession blood stained bricks Exh. P/1‑4 from the deorhi of the house of Wazir Muhammad and sealed them into a parcel vide memo. Exh. P. B. The blood‑stained parna Exh. P. 7 of the deceased was taken into possession and was sealed into a parcel vide memo. Exh. P. D. He scraped bloodstained earth and sealed it into a parcel vide memo. Exh. P. E. Barkat Ali (P. W. 16), Sardar Muhammad (P. W. 19) and Muhammad Amir (P. W. 20) witnessed the recoveries. Thereafter the investigating officer proceeded to the Civil Hospital, Montgomery, and prepared the injury statement Exh. P. U. relating to Nur Muhammad and got his dying declaration Exh. P. Z. recorded by Ch. Rashid Ahmad, Tahsildar (P. W. 11). Nur Muhammad succumped to the injuries in the Civil Hospital during the night. The Assistant Sub‑Inspector drew up the inquest report Exh. P. V. relating to Nur Muhammad and then despatched his dead body to the mortuary for post‑mortem examination. The appellant was arrested on the 31st of August 1960.

5. Dr. Zafar Durrani (P. W. 1) examined Nur Muhammad on the 31st of August 1960 at 8 a.m. and noticed the following injuries on his person: ‑ (1) A bullet wound with dark brown margins, " x 1/6", skin deep, going obliquely, superficially backward in the middle part of the left thigh up to a distance of 2" from where a bullet was taken out. (2) A bullet wound, " x ", on the outer part of the anterior aspect middle length of the left thigh. (3) A bullet wound, " x " x 4", on the back of the upper part of the left buttock, depth going forward. (4) A bullet wound, " x " x 4", on the radial border mid length of the left forearm, going forwards under the skin in front and coming out as injury No. 5. (5) A bullet wound, " x ", on the volar aspect mid length of the left forearm, communicating with injury No. 4. (6) A bullet wound, " x ", depth not explored, on the right front chest, on its upper and medial part.

6. The autopsy on the deceased's dead body was held on the 1st of September 1960, at 12‑30 p.m., by the same doctor and he found practically the same injuries as noted above. On internal examination it was found that the bullet which had caused injury No. 6 had perforated the chest wall in the second inter‑space, tearing the right branch of the pulmonary vessels, the diaphragm, the back part of the liver which was badly lacerated, the right kidney, which was also badly lacerated, and the coils of investine having been perforated at a number of places. In the opinion of the doctor the man died of severe bleeding from pulmonary vessels, liver and kidney. Injury No. 6 was alone sufficient in the ordinary course of nature to have proved fatal.

7. At the trial, Buta (P. W. 17), Jan Muhammad (P. W. 18), Sardar Muhammad (P. W. 19) and Muhammad Amir (P. W. 20) gave direct evidence regarding the commission of the crime. Ch. Rashid Ahmad (P. W. 11) proved the dying declaration Exh. P. Z. of Nur Muhammad, Khushi Muhammad (P. W. 14) and Sher Muhammad (P. W. 15) were produced to prove that Nur Muhammad called Muhammad Hussain Pervaz as his son. Ten days before the occurrence Khushi Muhammad carried the bedding of Nur Muhammad from his house and left it at the house of Wazir Muhammad, Sher Muhammad was asked by Nur Muhammad to assist him in getting back Muhammad Hussain Pervaz. Sher Muhammad talked to Muhammad Hussain Pervaz, who remarked that Nur Muhammad was defaming him. Sh. Din Muhammad, Firearms Expert (P. W. 12), who examined the crime empty cartridges and the weapon of offence, declared that except ing Exh. C. 4 the rest of the crime cartridges had been fired from the revolver Exh. P.

11. The rest of the evidence is all formal.

8. The defence of the appellant was that his father was killed at the time of the holocaust in 1947 and thereafter his mother lived with Nur Muhammad for a number of years as a keep, but eventually deserted him as Nur Muhammad was a drone. She took up residence in Chak No. 65/4‑R and got the appellant employed with Wazir Muhammad. The deceased Nur Muhammad did his best to persuade the mother of the appellant to return to his house, but she refused, whereupon he decided to take the appellant to his house by force, and with that object in view the deceased came to the baithak of Wazir Muhammad on the day of the occurrence, armed with a khunda, and tried to take away Muhammad Husain Pervaz appellant by force, who resisted, and upon this the deceased Nur Muhammad pounced upon him. The appellant took the revolver of his master and in the struggle that ensued the revolver went off and the deceased got injured on his forearm and the thigh. Continuing, the appellant stated that Nur Muhammad aimed a blow with the lathi and the appellant fired with the revolver in self‑defence, hitting the deceased Nur Muhammad in the chest who dropped to the ground after receiving the bullet injury. The appellant asserted that none of the persons who claim to be the eye‑witnesses was present at the time of the occurrence. He said further that the eyewitnesses gave evidence against him due to enmity as the house in which Wazir Muhammad lived was in the possession of Allah Ditta, Fateh Muhammad and Ghulam Muhammad who are related to Muhammad Buta and Sardar Muhammad Wazir Muhammad got them ejected by the Rehabilitation Department with the help of the police and they harboured. a grudge against him. The appellant produced certified copies Exhs. D. A. D. B. D. C. and D. D. of orders made by the Rehabilitation Authorities in regard to the house where the occurrence took place and also relied on certain photographs showing that the door of the deorhi where the occurrence took place had a chick on it and as such it was not possible for any person present outside to see the occurrence. The appellant examined Foot Constable Khadim Husain and Umar Elahi in his defence. The former had taken sealed parcels to the office of the Chemical Examiner, West Pakistan, Lahore. He stated that he was given the report Exh. D. E. which he delivered at the office of the Superintendent of Police, Montgomery. The witness said further that he took a sealed envelope to the Serologist at Karachi and was given the report Exh. D. F. which he handed over in the office of the Superintendent of Police, Montgomery. The evidence of Umar Elahi is not of much assistance as he took certain photographs. The story regarding the existence of a chick on the door of the deorhi was denied by the eye‑witnesses. The story regarding the existence of a chick, even if believed, does not in any way go to prove that nobody saw the occurrence. Muhammad Ibrahim (P. W. 8), who took photographs of the deorhi on the 1st of September 1960, did not find any chick at the door of the deorhi. Even if it be believed that there was a chick at the door of the deorhi, it is not possible to accept the version that nobody saw the occurrence, because the ocular evidence is to the effect that the eye‑witnesses were attracted to the spot on hearing gunfire.

9. The occurrence being admitted, the only question that needs consideration is which of the two rival stories is correct. The prosecution version is supported by a number of witnesses who are completely disinterested and independent. Their evidence is consistent and is free from material discrepancies. They are unanimous that when they went up to the spot on hearing gunfire they found Muhammad Husain Pervaz armed with a revolver and within their sight he fired more than one shot at Nur Muhammad, causing him injuries that proved fatal. There is no reason for us to disbelieve their testimony, which we accept.

10. The question that now falls for determination is what offence Muhammad Hussain Pervaz committed in this case. The learned counsel for the appellant argued that his client acted in the exercise of the right of private defence, for the deceased Nur Muhammad attempted to take away Muhammad Husain Pervaz by force and as such he attempted to commit the offence of abduction, against which the appellant had the right of private defence of person which extended even to the causing of death. We do not agree. The absence of injuries on the person of the appellant completely negatives the assertion that the deceased Nur Muhammad, who was well built and carried a khunda at the time of the occurrence, attacked the appellant after grappling with him unsuccessfully to disarm him and then the appellant fired at Nur Muhammad with the revolver in self‑defence. The appellant did not sustain even a scratch on his person, which indicates that the story regarding the assault on Muhammad Hussain Pervaz by the deceased is jejune.

11. Next we come to the question whether the appellant whom the deceased tried to take away by force from the house of Wazir Muhammad, had the right to defend himself, and if so, whether that right extended to the causing of death. The deceased Nur Muhammad claimed Muhammad Hussain Pervaz as his son, but the appellant did not acknowledge Nur Muhammad as his father. The appellant admits that after the death of his father at the time of Independence his mother lived with Nur Muhammad for a number of years when the appellant was still a child. It means that the appellant was brought up by Nur Muhammad and probably that was the reason which impelled Nur Muhammad when he heard the rumour that Wazir Muhammad, who had ostensibly engaged the appellant as a servant, was having immoral connection with him that be tried to wean away Muhammad Hussain Pervaz from immoral life, and with that object 1n view Nur Muhammad not only himself tried on one or two occasions to take 'the appellant back holler but also asked one or two persons to Intervene and help him in having Muhammad Hussain Pervaz restored to him. Nur Muhammad had no evil design, and even the appellant did not say so in his statement. If Nur Muhammad went to the house of Wazir Muhammad on the morning of the fateful day to renew his efforts to take Muhammad Hussain Pervaz to his house, he did not commit any offence, even if it be believed that to achieve his object Nur Muhammad persisted or tried to take Muhammad Hussain Pervaz away forcibly to his house. For although his act fell within the definition of section 362, P. P. C., it did not amount to an offence punishable under the Penal Code, because the requisite Intention or knowledge as is referred to in sections 364, 365, 366, 366‑A, 367, 368 and 369 could not be Imputed to him and as such the case of the appellant does not fall under clause fifthly of section 100, P. P. C. Where A compels 8 by force to accompany A to do A's work, B cannot cause A's death in exercise of right of private defence of body as A's conduct amounts merely to abduction as defined in section 362, P. P. C. and is not an offence punishable under the Penal Code. Since the act of the deceased in compelling the appellant to go with him did not amount to an offence punishable under the Penal Code, it did not give rise to any right of private defence to the appellant under the Code. In this view of the matter the appellant, when he fired five shots at Nur Muhammad with a deadly weapon and hit him successfully, his offence certainly fell under section 302, P. P. C. In our opinion the appellant Muhammad Hussain Pervaz was rightly convicted and properly punished. There Is nothing in the appeal and we dismiss it. A.H. Appeal dismissed.