P L D 1962 (W (PLP)

G. B. CONSTANTINE, J.‑The appellant Pirano having been con victed by the learned Sessions Judge, Dadu (Mr. Agha Ali Hyder) in agreement with all the four assessors under sections 302 and 357, P. P. C. and section 19‑E of the Arms Act, and having been sentenced to death and concurrent sentences of 1 year R. I. and a fine of Rs. 500 in default 3 months' R. I. and 2 years' R. I., has appealed, and the case is also before us for confirmation. The appellant was put up for trial along with Uris, Bhooro and Dino, and charges under sections 302/34 and 357, P. P. C. were framed against all the accused, while a charge under section 19‑E of the Arms Act was also framed against the appellant alone. The other accused were convicted under section 357, P. P. C. and have not appealed. They were acquitted under section 302, P. P. C. The deceased Yar Muhammad was the brother of the first informant, Jam, while the two other main prosecution witnesses, Yakoob and Yousuf, were his maternal cousin and uncle. They, like all the accused, are Othos by caste and residents of Karampur, a village with about 300 houses. Uris and Dino are brothers‑in- law of appellant Pirano, and Bhooro is also their relative. The first information is that Yar Muhammad deceased, the younger brother of Jam, considered that Pirano was unduly intimate with Jam's wife and had, therefore, warned him not to pass their house. About sunset time on the 7th May 1960, the deceased went to the shop of Ishaque to buy bidis, and on his way back as he passed the house of Dino, he was dragged into the courtyard by the four accused, and was there shot by Pirano. The cries of Dino, as he was dragged into the courtyard, attracted not only the first informant Jam, Yakoob and Yousuf, but also one Haji Piral Machi and one Kirir, and others. These witnesses are stated to have seen Pirano shoot the deceased with a pistol in the abdomen, to have seen the other accused strike him with lathis, and to have seen Bhooro run away after taking the pistol from Pirano. The first information was lodged by Jam at Sehwan Police Station at 9 p.m. The Station House Officer, Aijaz Akbar, went to the scene, which is three miles distant, by conga and saw the vardat at about 11‑30 p.m. and secured blood stained earth therefrom. He examined the injured Yar Muhammad and Yousuf, and despatched Yar Muhammad to the Medical Officer Sehwan. At Sehwan, the dying declaration of the deceased was recorded by a third Class Magistrate at 3 a.m. on 8th May and reads as follows "To‑day, in the evening I was passing by the house of Dino, when Haji Pirano, Bhuro, Uris and Dino came and caught hold of me and dragged me in the house. I raised cries. On the cries, Jam, Haji Piral, Kirir, Yakoob and others came running. Haji Pirano fired a pistol shot on my abdomen." The deceased was in severed pain, and hence probably the Magistrate did not stay to ask him the motive of the crime. The Station House officer arrested the four accused on May 8, securing blood‑stained shirts from Uris and Pirano. Pirano stated: "I have buried the pistol, which I am going to discover." and then led the police and mashirs to a bank of a pond, and from there took a pistol from a bush which contained an empty cartridge. The Station House Officer examined Yakoob, Ismail, Abdul Nabi, Haji Piral, Mst. Khatoon (the wife of Jam) and Uris. He sent Uris and Pirano to the Medical Officer, Sehwan. On the 10th May, he sent Yousuf, Yakoob, Abdul Nabi and Ismail, and on the 16th Piral to have their statements recorded under section 164, Cr. P. C. The medical evidence is that the deceased had been shot. The entry wound was at the level of the 4th lumbar vertebra on the back right side. The shot had lacerated and ruptured the right kidney and had lacerated the colon. The injury was sufficient in the ordinary course of nature to cause death. The margins of the wound were blackened, and in addition to pellets, a wad was recovered from inside the corpse. The doctor considered that the blackening showed that the fire‑arm had been fired at "close contact". In addition, the deceased had an abrasion 2 " x 1 " on the right buttock which the doctor thought was caused by coming in contact with earth. Appellant Pirano had three contused wounds on the head, (1) on the frontal region 1 " x " x ", (2) on the parietal region " x 1/6" x 1/6" and (3) on the parietal region left side " x 1/6" x 1/6". Uris had a contusion on the frontal region 1" x " x 1/6" and an abrasion on the parietal region of head right side pea size. These injuries on Pirano and Uris appeared to have been caused by a blunt weapon such as a laths, and the doctor thought that they could not be self‑suffered or self‑inflicted. As is frequent and also legitimate, while the accused denied causing any injury to the deceased, the learned counsel for the defence by cross‑examination sought to lay a foundation for pleas of private defence and of grave and sudden provocation. That foundation is that the deceased Yar Muhammad was con ducting an intrigue with the wife of accused Dino, and that when caught trespassing for this purpose in the courtyard of Dino's house he caused the injuries to Pirano and Uris. That Pirano shot the deceased is, we think, established by the dying declaration. The shot was fired at close quarters from the side; the deceased knew Pirano both as a fellow Otho and as a fellow resident of the village ; there can thus be no question of mistake. It was indeed only faintly argued by Mr. Rafique that the prosecution had failed to prove that Pirano shot the deceased. The question, however, how it came about that Pirano shot the deceased stands on a different footing. The three prosecution witnesses, Jam, Yakoob and Yusuf are the relations of the deceased, and the witnesses mentioned in the F. I. R. and dying declaration have not been examined. It's is clear, therefore, that the evidence of these relatives as to the origin of the incident is to be received with caution. The same consideration applies to the dying declaration. It was an easy matter to describe, as the origin of the incident, the dragging of the deceased into the courtyard of Dino, instead of saying that the deceased was surprised in the courtyard, and even a dying man is likely to absolve himself from blame. It is equally likely as a matter of pure probabilities, that the deceased was intriguing with Dino's wife as than, Pirano was intriguing with Jam's wife. The learned Judge has set out six circumstances which impressed him as supporting the evidence of the three witnesses. The first is that they live close to the vardat, which is true, but witnesses not called, such as Abdul Nabi and Ismail, lived even closer. The learned Judge says that the incident happened before sunset time. Though there is nothing to fix the time as before or after sunset, since we do not know how long it took Jam to cover the three miles to Sehwan. The second circumstance is that Pirano and Uris in Court stated that the relations of the deceased had caused them injuries, but it was the prosecution case, as deposed to by all these witnesses, that it was the deceased who caused these injuries. The third circumstance is that the witnesses were close when the firing took place. This circumstance, however, is not corroborative, since whether it amounts to a corroborative circum stance or not depends purely upon their evidence. Circumstances four and five are connected. The learned Judge states that it was only in the Committal Court that Pirano alleged intimacy between the deceased and his sister the wife of Dino, while Dino himself had nothing to say about this imputation. Therefore, Yar Muhammad would not have gone to Dino's courtyard but must have been dragged there. The learned Judge has fallen into an error In saying that Dino had nothing to say about this imputation since to the Sessions Court be stated that the deceased was suspected to be on terms of illicit intimacy with his wife. The sixth circumstance is that the statement of these witnesses and the first informant are consistent with the medical evidence and the dying declaration. The medical evidence has nothing to do with the origin of the incident, while, as we have said, it was compara tively a simple matter for the deceased as well as his relatives to say that he had been dragged into the courtyard instead of being surprised there. Lastly the learned Judge has also given a reason that if the deceased was suspected of intrigue with Dino's wife one would have expected her not to be spared: it is however, not necessarily the case that a wife is always killed. It is true that the learned Judge and the assessors who heard and saw the witnesses accepted them as witnesses of truth, but they have failed to account for the injuries caused to Pirano and Uris. The witnesses ascribe these injuries to first blows given by the deceased, but that appears impossible owing to the nature of the injuries. Secondly the prosecution case appears to postulate that the accused, having seen the deceased pass Dino's house, lay in wait for his return: in that case one would expect some or all of them to be armed with lathis, as indeed the witnesses have stated. But there were no injuries ascribable to lathis on the person of the deceased. We consider, therefore, that the defence has made out a reasonable probable case that the deceased was surprised in the courtyard of Dino's house, and that the prosecution has failed to establish that he was dragged inside. The first argument of Mr. Rafique is that Pirano was justified by the right of private defence in shooting the deceased. The justification was argued as both complete so as to entitle acquittal and partial so as to reduce the offence from section 302 to section 304, P. P. C. It seems that Pirano had a right to arrest the deceased under section 59, Criminal Procedure Code, but no offence punishable with death or with transportation for life can be alleged against the deceased, and thus according to section 46, Cr. P. C., no right was given to cause the death of the deceased. The injuries cannot be ascribed to a heavy lathi; their dimensions showed that the stick used can have been hardly more than a light cane, and we do not think that any reasonable apprehension of grievous hurt arose. No suggestion has been made that any property was in danger. As regards the second exception to section 302, P. P. C., we think that the deceased must have been trying to escape the accused. A paramour surprised does not normally try to do anything except escape or give a blow intended for the purpose of defending himself, and all that Pirano had to do, in order to protect himself or his relatives, was to desist from the arrest, and as a reasonable man he must have known this. The next argument relating to grave and sudden provocation has, in our opinion, more substance. Pirano was already pro voked by finding the deceased in a site giving rise to a reasonable suspicion of intrigue with his sister; the attempted arrest of the deceased, being lawful, does not attract the first proviso to exception 1 to section 300, P. P. C., and so when blows on his head were inflicted, further provocation was caused, and fresh fuel added to his anger. The retaliatory act, namely, the shooting, was prompt : at least there is nothing to show the contrary. Finally we think it cannot be said to be disproportionate to the provocation (vide Attorney‑General of Ceylon v. Kumar Singehe Don John Perera P L D 1953 P C 9): for it appears he had no other weapon with him. We, therefore, consider that the conviction of the appellant under sections 357 and 302, P. P. C. should be set aside, and that in lieu of the conviction under section 302, P. P. C. the appellant should be convicted under section 304, Part I, P. P. C. and that the conviction and sentence under section 19‑E of the Arms Act should be maintained. Under section 304, Part I, we senctence the appellant to ten years' rigorous imprisonment, the sentence to be concurrent with that under section 19‑E of the Arms Act. S. B./A. H. Conviction altered.