1969 P Cr (PLP)

2. On 7th April 1963, the deceased Saeed Ahmad was driving a truck on the Kandhkot‑Shikarpur road in the former province of Sind and reached a spot named Beghari bridge at about 2‑30 p.m. His destination was Sukkur Railway Station where the gram bags which were loaded on the truck had to be delivered. The truck belonged to the employers of Saeed Ahmad who were one Satia Pal and his partner Sundar Khan. The cleaner of the truck Muhammad Yusuf, P. W. 1, was accompanying the deceased in the truck and was sitting by his side. Four labourers are also said to be on the truck sitting on the bags of gram. They were supposed to unload the gram bags at the destination. When the truck reached Beghari bridge Saeed Ahmad stopped it near a water shed from which the travellers on the road get water to drink. Saeed Ahmad then asked the cleaner to fetch some water for him. Both of them got down from the truck and the cleaner went to the shed which was about 13/14 paces away from the truck. Accused Abdul Hakim at that time was sitting by the shed. He was an employee of Faiz Muhammad Transport Company of Shikarpur and it was his duty as such employee to check the buses which passed on that road. It is the case of the prosecution that Abdul Hakim walked up to the place where Saeed Ahmad was standing and asked him as to why he was taking the four persons on the truck as passengers, and that Saeed Ahmad is said to have replied that they were the labourer employed upon the truck and he was not carrying any passengers. It may be stated here that according to the defence the cleaner who had gone to the water shed had tried to canvass a party consisting of two men and a few women who were waiting for transport to board the truck and it was upon this that Abdul Hakim took objection and went up to the driver to question him about it. However, when Abdul Hakim came up to the driver he not only questioned him but abused him saying that "You Bahenchoad always take passengers on your truck". In return Saeed also called him a Bahenchoad and asked him to stop talking nonsense. Upon this Abdul Hakim called him a swine and Saeed Ahmad returned the complainant. Thereupon Abdul Hakim took out cartridges from his pocket and loaded his double‑barrel gun which he was carrying with him and fired at Saeed Ahmad which hit him in the chest and he fell down. The cleaner Muhammad Yusuf was at that time about 7 paces away with glass of water in his hand. Saeed Ahmad died on the spot. About this time a passenger bus of Faiz Muhammad arrived there and the accused got into that bus which was heading for Shikarpur. As Abdul Hakim had still one of his barrel loaded and was in a threatening mood no body attempted to catch him. The cleaner Muhammad Yusuf then leaving the truck and the labourers there proceeded to a Police out‑post named Garhi Tegho which was about 2 miles away from the scene of the occurrence. There he found two Police constables, namely Panjal, P. W. 8 and Bakhshan, P. W.

9. The Head Constable of the out‑post was not there. The practice is that when a report of a cognizable offence is made at an out‑post the head constable records it upon a parcha and hands it over to the informant to be taken to the police station where the report is recorded in the F. I. R. register. It may be stated that the offence had been committed within the jurisdiction of Police Station Rustam. Muhammad Yusuf informed the two constables of what haul happened and told them that the dead body of Saeed Ahmad was lying near the place where the truck had been parked. Police constable Panjal, P. W. 8, made a mere entry of his departure in the diary of the out‑post and in it recorded the fact that Muhammad Yusuf had come and informed that Abdul Hakim, checker of passenger lorry, had murdered Saeed Ahmad, the driver of the truck, with his gun and the dead body was lying at the scene of the offence. The entry is Exh.

21. Both these constables then accompanied Muhammad Yusuf to the scene of the occurrence and there constable Panjal stopped near the dead body and the other constable Bakhshan, P. W. 9, accompanied Yusuf to Rustam Police Station. The distance between the place of the incident and the Police Station was 17 miles. Yusuf and the constable Bakhshan reached the Police Station at about 9‑15 p.m. and there Yusuf's report was recorded by Head Constable Pir Bux who was officer‑in‑charge of the Police Station ct that time. The Station House Officer Anwar Ali was away on patrol duty in the same area in which Beghari bridge fell. The head constable after recording the first information report sent Yusuf and constable Bakhshan back to the place of the occurrence. Sub‑Inspector Anwar Ali having learnt of the incident while on his patrol duty reached the place of occurrence it about 10 a.m. and there he found constable Panjal and the labourers, namely Kamal, P. W. 2, Rasool Bux P. W. 3, Wahid Bux P. W. 4 and also the fourth labourer Gullu who has not been examined in the case. Constable Bakhshan and Yusuf came back to the place of occurrence and Bakhshan handed over the copy of the first information report to Sub Inspector Anwar Ali at 1:00 O'clock the same night. He recorded the statement of the four labourers and the next morning he sent the dead body of Saeed Ahmad to Shikarpur hospital through constable Panjal for post‑mortem. He also recorded the statement of Panjal and Bakhshan. He examined some other persons as well.

3. The accused Abdul Hakim who after the incident had got into the passenger bus on reaching Shikarpur went to the Lakhidar Police Station and reached there at about 4‑45 p.m. There he made a report which was recorded by Sub‑Inspector Syed Itrat Husain, P. W.

11. Abdul Hakim was still carrying his gun which was seized from him and this contained an empty cartridge in one barrel and a live cartridge in the other. The empty cartridge accounted for the shot which the accused had fired on the scene. In the report made by the accused and which was recorded in the Roznamcha it was stated that he while on duty came to Beghari bridge at about 3 p.m. and found that a wedding party had come there consisting of 7 women and two males and they were waiting for the bus at the stand near the water shed. A little later a truck came from Kandhkot which was loaded with bags and it stopped there. The cleaner asked the wedding party to go in his truck. This party wanted to go to the Kalhora village which fell on the way to Shikarpur. On the cleaner asking the wedding party to board his truck he (Abdul Hakim) went to the driver and told him that a passenger bus was coming and lie need not take these passengers on truck. On this the driver abused him and got down from his truck with an open knife and the cleaner also came and both of them attacked him. Muhammad Ali Soomro, one of the wedding party, caught hold of the driver but he did not remain silent and again attacked him. Thereupon he (Abdul Hakim) retraced about 20 paces and showed his loaded gun to the driver and told him not to come near him. The driver, however, replied that he did not fear his gun and abused him calling him a pig and attacked him. It was then that in his defence Abdul Hakim fired his gun at the chest of the driver and he fell down. At that time a passenger bus came from Shikarpur and he got into that bus in which he went as far as a place named Machi Bandi and then got into another bus and then came to the Police Station to make the report. It was added that the driver was then alive and the cleaner had taken him in the same truck to Kandhkot. The gun along with the licence was produced by Abdul Hakim. This report was not taken into consideration by the learned Sessions Judge upon the ground evidently that it was inadmissible in evidence as being a statement to the Police in the course of the investigation. But Mr. Brohi, the learned counsel for the appel lant, before us stressed that this report was admissible under section 8 of the Evidence Act and did not come within the mischief of section 162, Criminal Procedure Code.

4. Sub‑Inspector Itrat Hussain who had recorded the report and seized the gun made a note that an offence under section 307, P. P. C. had been committed by the accused whose gun had been seized and who had been arrested. The accused then along with the articles and a carbon copy of the Roanamcha report was sent to the Station House Officer, Rustam Police Station, within whose jurisdiction the offence was committed. The investigating officer of the case S. I. Anwar Ali of Rustam Police Station held an identification test of the accused on 11‑4‑63 in which the cleaner and all the four labourers took part.

5. The evidence against the accused at the trial consisted of the testimony of the cleaner Yusuf, P. W. 1, the three labourers Kamal P. W. 2, Rasool Bux P. W. 3 and Wahid Bux P. W.

4. In addition there were two more witnesses of the marriage party, namely Muhammad Bux P. W. 5 and Muhammad Ali P. W.

6. The name of Muhammad Ali was mentioned in the report which was made by the accused at the Lakhidar Police Station as one of the two male members of the wedding party. The other person was described as being a little lame. This description applies to P. W. Muhammad Bux who was at one time a police constable but retired in 1950 having received gunshot wounds in one of his legs from an absconding criminal. The presence of these two witnesses and of Yusuf Cleaner on the scene at the time of the shooting was not disputed by the appellant's counsel before us. All these six eye‑witnesses supported the prosecution version as stated above and asserted that it was Abdul Hakim who had started the abusing and strongly repudiated the sugges tion that the driver or the cleaner had at any time attacked Abdul Hakim. The accused in his statement in the committal Court when asked if he had intentionally caused the death of Saeed Ahmad by causing him gun‑shot injuries, replied in the negative and said that he was innocent. He added that he was standing at the Beghari bridge for the purpose of checking his buses when the loading truck came and stopped there. A marriage party was already standing there for a lift in a bus and the driver Saeed Ahmad and cleaner Yusuf asked them to go in the truck on which he objected. On this both of them abused him and he also abused them. Saeed Ahmad deceased then took out a knife and assaulted him. Yusuf wanted to hold him (Abdul Hakim) from the back and wanted to snatch the loaded gun. Upon this he cried not to snatch the gun as it was loaded but Yusuf snatched it and the trigger then went off causing injuries to Saeed Ahmad who died. He added that it was an accidental death. When asked about his report at the Lakhidar Police Station lie said that it was not correct and it had not been recorded at his dictation. He, however, admitted his signature on it. He also denied the presence of the labourers on the truck. In the Sessions Court his explanation with regard to the manner in which the accident took place was a little altered. Replying to the question whether he had made report, Exh. 24, at the Lakhidar Police Station, he said :‑ "I reported at Lakhidar Police Station that driver Saeed Ahmad and cleaner Muhammad Yusuf were carrying passengers on the loading truck on account of which I raised objection. I had the gun in my hand which was loaded. The driver and the cleaner were talking to me. The gun was hanging on my shoulder. The cleaner was by my side. He came near me and his hand touched the butt of the gun which was already loaded. The shot was discharged from the gun and struck the driver who had come to my back side to which the barrel of the gun was facing. Thus the shot struck him and he fell down and died."

6. Mr. Brohi, the learned counsel for the appellant, urged before us, firstly that the existence of these four labourers on the truck was a myth and that there was no body on the truck except the deceased and the cleaner Yusuf. He next contended that the altercation between the deceased and the accused had taken place not because the deceased was taking the labourers on the truck but because the members of the wedding party had been canvassed for a lift and that as checker of his transport company was interested in seeing that passengers did not use a truck for transport as this would cause loss to the transport company. He further urged that the story of the accused taking out two cartridges from his pocket and loading it in the presence of the driver and the cleaner before shooting the former was not true and that the gun of the accused was already loaded. He drew our attention to two statements in the police diary of witnesses Muhammad Bux and Muhammad Ali, P. Ws. 5 and 6 respectively. Both of them had stated before the police that the gun of the accused was already loaded. Muhammad Ali had also stated that the cleaner had come to fetch water and he had said (to the members of the wedding party) that they should go by the truck and he would take them. These statements were put to these witnesses but were denied by them. As to the canvassing by the cleaner it may be noted that this fact appeared only in the statement of Muhammad Ali in the police diary.

7. As to the question whether the labourers were present on the truck and had witnessed the offence we have carefully gone through their evidence and the lengthy cross‑examination of them by the defence counsel and we have reached the conclusion that they were in fact present. Constable Bakhshan, P. W. 9, who had accompanied Yusuf from the Garhi Tegho out‑post to the scene of the offence has deposed to the presence of these four labourers at the scene when he arrived there. This police out post is only at a distance of about 2 miles from the place of the occurrence, and we do not think that these four labourers could have been so quickly produced on the scene by the prosecution in order to set them up as eye‑witnesses to the incident. Even otherwise, having regard to the nature of the evidence which 3 out of these 4 labourers gave at the trial, we are satisfied of their presence at the scene of the offence and that they were on the truck which was being driven by the deceased Saeed Ahmad. We are also of the opinion that having regard to the circumstances of the case it would hardly have been necessary for the prosecution to procure four false witnesses from amongst labourers to give evidence as eye‑witnesses of the offence. However, with regard to the question whether the gun was already loaded, we are inclined, to accept the contention of Mr. Brohi that it was so. Both Muhammad Ali and Muhammad Bux had so stated before the Police. On the other question also whether the cleaner had offered to give a lift to the members of the wedding party we are inclined to hold that this had been done it is quite likely that Abdul Hakim had objected to the offer of a lift made to the wedding party as also to the presence of the four persons on the truck, but if it was a question of merely these four persons we are inclined to think that Saeed Ahmad's explanation that they were the labourers of the truck might have satisfied Abdul Hakim and the matter would not have gone as far as it did. We are, however, afraid that these conclusions do not help the appellant. Mr. Brohi contended that he was entitled to urge both the defences in favour of the accused, namely the defence set up in the report made by the accused at the Lakhidar Police Station, in which he had pleaded his right of private defence and also that of the accident as taken by the accused in Court.

8. Now, with regard to the plea of the right of private defence which was based upon the report of the accused, Exh. 24, it is stated therein that upon the exchange of abuses between the accused and the driver Saeed Ahmad upon the question as to why he was wanting to take the members of the wedding party in his truck, the driver got down from the truck with his open knife and the cleaner also came along with him and both of them attacked the accused and even though Muhammad Ali Soomro attempted to restrain the driver he did not listen to him (accused) and thereupon he retraced his steps 20 paces and having first shown the loaded gun to the driver and asked him to desist from his action and on his saying that he did not fear the gun he fired and hit the driver in his chest who fell down. Now, the medical evidence of Dr. Muhib Shah shows that there was charring on the injury of entry which was 2' in diameter. Considering the amount of damage to the lung, heart, stomach and intestines and that 9 pellets were secured from inside the body it is plain that the cartridge contained pellets of small size and it was fired at a point blank range. This is clear from the charring as well as the dimension of the wound of entry which was 2". The pellets at the time of entry had not spread at all and went into the body snore like a bullet. Now, if the accused had gone back 20 paces or even less and fired from there, the nature of the injury would have been different. Again, as regards the allegation that the deceased and the cleaner had attacked the accused and that the deceased had a knife in his hand we are of the opinion that if such an attack had been made or attempted it would have, in all probability, succeeded and the accused could not have remained completely immune and untouched. The accused is an old man of 60 years and of a weak constitution where as the driver Saeed Ahmad was a young Pathan of 35 years. The cleaner Yusuf is also a young Pathan aged 20 years. If these two young men had attacked the accused, one of them with a knife we are of the opinion that the attack would have succeeded and we are also of the opinion that if such an attack had been made the accused would have had no time to use his 12 bore gun against the deceased. We are also inclined to think that considering that the accused was an old man these two young Pathans would have been quite content to abuse him back and the story that one of them attacked him with a knife without causing even a scratch appears to be fanciful. In fact, it was not considered good enough by the accused himself and his counsel in the trial Court who set up the plea of accident. The defence counsel has put this plea of accident to the eye‑witnesses in the case. Mr. Brohi referred us to the well‑known authority of the Federal Court in that case of Safdar Ali, but it is quiet clear that it has no applica tion to the facts of the present case. The story of the exercise of the right of private defence as put forward in this case in our opinion cannot be considered as reasonably possible.

9. With regard to the plea of accident, apart from the variation with regard to it in the two statements of the accused we are of the opinion that neither of the stories is true and the version given therein is far too clumsy. If the gun was hanging on the shoulder of the accused we are not able to see how it could go off merely because the hand of the cleaner touched the butt of the weapon or even if he tried to snatch it from behind. Even if the gun went off we do not see how in that position it could have hit the deceased. The nature of the injury shows that the gun was fired by putting it at a level with the chest of the deceased.

10. For the reasons given we reject both the pleas of private defence and accident. We held that it has been established that the accused intentionally shot the deceased and that there was no occasion for the exercise of the right of private defence. We accordingly maintain the conviction of the accused under section 302, P. P. C.

11. However as regards the sentence of death we are not inclined to confirm it. The learned Sessions Judge referred to the case of Dost Muhammad v. The State (P L D 1963 S C 285), but the facts of that case were entirely different. It is true that in order to justify the awarding of the lesser sentence under section 302 there has to be some justification and otherwise the normal punishment of murder would be death. However, in the present case, it must be noted that the attempt of the cleaner in the water shed to induce the passengers who were waiting for a bus to board his truck would give a reasonable excuse to the accused to strongly protest against it. It is a matter of admission that upon such a protest an altercation started and filthy abuses were exchanged. It is true that it was the accused who first started the abuse but that is not', material for the present purposes. It has also to be remembered that the accused was an old man of 60 years and the deceased was a young man and when each was calling the other a swine the accused at the spur of the moment used his gun and shot him. The whole incident took place in a few moments and considering all the circumstances we are of the opinion that the sentence of transportation for life in this case would meet the ends of justice. We accordingly do not confirm the sentence of death and substitute in its place the sentence of transportation for life under section 302, P. P. C. With this modification in the sentence we dismiss the appeal. Sentence reduced.