1994 PLP 1161 (SCMR)

The dead body of Allah Bakhsh deceased had two gun fire injuries. Injury No.1 led to tearing of blood vessels of the neck and No.2 resulted in laceration of brain matter. Both the injuries were, individually and collectively, sufficient to cause death in the ordinary course of nature. Medical examination of Noor Muhammad accused disclosed 15 injuries on his person. Injuries Nos. 7, 7/A, 8/A and 10 consisted of multiple contusion marks. Injuries Nos. 5, 6 and 12 (on right fore‑arm, back of left hand and left fore‑arm, respectively) were grievous. Liaqat appellant had 15 injuries on his person. Injuries Nos.2 to 5 and 11 consisted of multiple contusion marks. Injuries Nos.6 and 12 consisted of 4 and 2 contusion marks, respectively. Injury No.10 on the left hand was declared grievous.

3. The case was investigated by Noor Hussain, ASI, who reached the spot on the same day. Noor Muhammad P.W. produced 12 bore gun P.6 with an empty cartridge P.7 and Soti P.8 before him which he took into his possession vide memos Exhs. PM and PN, respectively. The gun and the cartridge were made into a sealed parcel. He arrested both the accused on the same day and got them medically examined. After the usual investigation they were sent up to stand their trial.

4. In support of its case the prosecution examined five eye‑witnesses, namely, Manzoor Ahmad, Ghulam Rasool, Noor Muhammad, Allah Ditta (P.Ws. 6 to 9) and Ghulam Oadir P.W.12. It also relied on the medical evidence and the report of Forensic Science Laboratory, according to which the crime empty referred to above was found to have been fired from the gun snatched from Liaqat appellant.

5. The accused persons pleaded not guilty to the charge. Acquitted accused Noor Muhammad, when asked whether he and his son (Liaqat appellant) were beaten by the P.Ws. after the occurrence with the same Soti and gun which they had snatched from them, stated as under:‑‑ "It is totally false. I was attacked by the two deceased and their. companions, who were armed with sticks. My son Liaqat came all of sudden and tried to rescue me. He was also attacked by the deceased and their companions. We were ruthlessly beaten, by them and in consequence thereof, we received injuries and became senseless. One of the companions of Bashir and Allah Wasaya was armed with a gun. I have a licensed rifle in my house". When asked why this case against him, he made the following statement:‑‑ "Muhammad Bakhsh the real cousin of Manzoor complainant had got registered a false case of abduction 'against the Imam Bakhsh and others about abduction of Mst. Manzoor which was later found to be false and we were discharged. My son Liaqat accused is a P.W. in an other case of abduction against said Muhammad Bakhsh, Faze, and other relatives of the Manzoor complainant. This case is still pending in the Ilaqa Magistrate Lodhran. On the day of occurrence at 12 noon I slapped Manzoor son of Ghulam Rasool because he had beaten my son while coming back from the School. The said Manzoor went to his home in a weeping condition. For this reason I was attacked, while I was sitting at my Dera. The shop of Ahmad Bakhsh is very close to my Dera." Liaqat appellant explained his injuries and those of his father as under:‑‑ "‑‑‑‑‑‑‑‑‑‑‑‑. Neither I nor my father was armed at the time of occurrence. Hearing the noise, while I was present in the Tobacco field. I came at the spot all of a sudden I saw my father being beaten with stick by the, deceased Bashir and Allah Wasaya and other companions. I came to rescue my father. I saw my father in a very pitiable condition. He was lying on the ground in an injured condition and was bleeding but I too was attacked and was beaten ruthlessly. I too fell on the ground after receiving the injuries became senseless. One of the companions of the deceased party was also armed with a gun. The place of occurrence is in our possession which belongs to Sh. Sami which has been leased to us two years before this occurrence. My father has a licensed Rifle in his house".

6. Relying on the ocular account furnished by Manzoor Ahmed, Allah Ditta, Noor Muhammad and Ghulam Rasool, the medical evidence and reports of the Chemical Examiner and Fire Arm Expert, the learned trial Judge convicted Liaquat appellant under section 302, P.P.C. and sentenced him to death and a fine of Rs.10,

000. His father Noor Muhammad was however acquitted on the benefit of doubt.

7. The learned Judges of the High Court rejected the contention of the counsel for the appellant that the deceased persons were hit by the fire of their own partymen and on a detailed scrutiny of the evidence came to the conclusion that right of self‑defence was available to the appellant but by causing two deaths he had exceeded the limits allowed by law and was liable under section 304 Part I of the P.P.C. The relevant portion of the judgment is reproduced below:‑‑ "From the circumstances of the case, particularly from the manner Noor Muhammad acquitted accused stood overpowered by some eye witnesses after having been felled on the ground as a result of the push given by someone from the complainant party, it became the moral as well as legal duty of his son Liaqat appellant to rescue him from his opponents and in these circumstances right of self‑defence as envisaged by section 97, P.P.C. became‑available to him but only to the extent of saving his father and not to the extent of killing two young men who were not directly concerned with the incident giving rise to the unfortunate occurrence. In other words, Liaqat appellant exceeded his right of self‑defence while rescuing his father from their opponents. This being so, he is liable to be convicted under section 304 Part‑1, P.P.C. and not under section 302, P.P.C. as his act comes within the ambit of culpable homicide not amounting to murder. His conviction is therefore altered from section 302, P.P.C. to 304 Part‑I, P.P.C. on each of the two counts."

8. In this case leave to appeal was granted to consider the contention that the High Court had erred in law in altering the conviction from section 302, P.P.C. to section 304 Part‑I, P.P.C. as the case fell within the purview of section 106, P.P.C. Learned counsel for the appellant has reiterated the submission made by him at the leave stage. Learned counsel for the State has however supported the impugned judgment.

9. The finding of the High Court has not been challenged either by the complainant or by the State. After going through the record we feel that the view taken by the High Court with regard to the availability of the right of self defence is reasonably possible. The facts and circumstances indicate that Noor Muhammad accused was lying on the ground in injured condition with members of the complainant party all around when Liaqat appellant responded to his call and reached the spot. In Jamal Din's case (1971 SCMR 800), in somewhat similar circumstances this Court, repelling the contention that by firing two shots, the accused had exceeded the right of self defence, acquitted him with the observation that he was not expected to measure the right in golden scales or to modulate his defence step by step. From the facts and circumstances of the case it appears that at the fateful moment the appellant was so situated that he was not in a position to effectually exercise the right without risk of harm to those who were near of around his father, including the two deceased persons who, according to the complainant, "also came there" in the meantime "after hearing the alarm". The case of the appellant is thus covered by section 106 of the P.P.C. For the foregoing reasons we allow this appeal, set aside the conviction and sentence of the appellant and acquit him of the charge. N.H.Q./L‑67/S Appeal allowed.