1976 P Cr (PLP)

Muhammad Latif appellant was convicted under section 302, P.P.C. with a section of transportation for life on 29th October, 1968. by the Additional Sessions Judge. Lahore at Kasur, for having committed the murder of Sultan his co‑villager on 8th of April 1967, at about 7‑30., in his own house in the Town of Bhai Pheru. He submitted this appeal through Jail on the ground of mis-appreciation of his plea of ‑defence.

2. The prosecution in brief is teat Muhammad Latif appellant had arranged the marriage of Sultan (deceased) with Mst. Nasim (P. W. 18) in lieu of Rs. 1,000,00 paid to her father Nawab of Kasur which took place on 7th April 1967 and he arrived in his village with the bride in evening. As he went in the room of the bride during the night he found that she was an elderly lady of about 50 dears in age and offended over this fraud played upon him. In the morning he went to noose of Muhammad Latif appellant along with Wali‑ud‑Din (P. W. 14) Muhammad Jamshed (P. W. 15) and complaining to him about it demanded the return of Rs. 1,000.00 which led to exchange of hot words between them in the course of which Muhammad Latif appellant asked to wait there anti he would bring the money. Shortly thereafter appeared on the roof of his house with a gun in his hand and calling to him fired two successive shots which felled Sultan to the ground appellant slipped away along with the gun. Wall‑ud‑Din and Muhammad Jamahed P. Ws. put him on a cot rushed him to tile local civil hospital with his brother Suleman P. W. other residents of that abadi who also arrived there on hearing about occurrence while Wali‑ud‑Din P. W. went to the police station and lodged the report Exh. P. A. about it there at 7‑50 a. m. the same day. After the formal registration of this case under section 307, P. P. C. against Muhammad Latif appellant Sub‑Inspector Nasir Ahmad (P. W. 19) came to the hospital and enquired from the Doctor vide ruqqa (Exh. P. H.) if the injured person was in a fit condition to make a statement who found unconscious and made his endorsement Exh. P. H./I about it.

3. On 8th April 1967, at 8‑10 a.m. Dr. Abdul Khaliq (P. W.1) examined Sultan and found the following injuries on his person:‑ (1) Gunshot wound with about 35 pellet marks in an area of 3' x 3' on the back of left hand. There was black tatooing at the mark of some pellets. The distance between the pellet marks was different from Y to nil. The area of injury extends above to the back of wrist. The shirt cuff' was torn by one pellet. The second metacarpal bone was fractured underneath. (2) A gunshot wound with about 80 pellet marks in an area of IV x 5" on the front of abdomen and right thigh extending from umblicus to the upper 1/6th of the right thigh. At the right inguinal area there was 2" x 1" laceration in the centre of the wound. Some pellets were felt under the skin. The shirt and shalwar and chadar were also torn. Both the injuries grievous and caused with gunshot. In view of his serious condition immediately referred him to Mayo Hospital at Lahore. The Sub‑Inspector then went to the spot deputing Muhammad Awais, A.S.I. (P. W. 16) for the search of the appellant and inspected the same in the course of which he secured blood‑stained earth from the courtyard of the house of the appellant vide Exh. P. C. He also recovered 17 pellets (P. 1/1‑17) and four wads (P. 2/1‑4) which he sealed into a parcel vide Exh. P. D. On going over the roof he found two empty cartridges (P. 3 and P. 4) and prepared a separate parcel thereof vide Exh. P. E. After some time A. S. I. Muhammad Awais (P. W. 16) produced Muhammad Latif before him at that very place along with gun (P. 11) and two cartridges (P. 12/1‑2) and the relevant memo is Exh. P. M. Sultan the victim of this assault succumbed to his injuries in Mayo Hospital at 5‑30 p.m., on the same day, so the offence was altered to that under section 302, P. P. C.

5. On 11th April 1967, at 3-30 p.m., Dr. Major Muhammad Khaliq Chaudhry (P. W. 2) held autopsy on the dead body of Sultan Ahmad and found the following injuries vide Exh. P.N:--‑ (1) Multiple gun pellet wounds covering an area of 3"x 3" on the back of left hand and wrist. Smoking was evident around and in‑between the pellet marks. On dissection haemotoma present under the skin and second matacarpal bone was fractured. Each pellet wound measured 1/8" x 1/8". (2) Multiple gunshot wounds covering an area of 10" x 5" over the front of abdomen upto umbilicus and upper part of right thigh. Some of the pellets is had penetrated into the peritoneal cavity after piercing the skin, fasciae, muscles and had bruised the coils of small intestines and the large intestines. Collection of blood was present under the skin and the substance of muscle. Some of the pellets had penetrated into the retroperitoneal, tissues and had led to profuse haemorrhage there. The right kidney was surrounded by the collection of blood. All the coils of small intestines were congested and blood mixed with mucopus was found in the peritoneal cavity. The parietal paritoneum was also congested. Some gunshots had been recovered from the paritoneal cavity and from the retroperitoneal tissues These had been handed over to the police in a sealed bottle. (3) A pellet wound over the front of the right knee cap. (4) A pellet wound over the front of left knee cap. A shot had been recovered from the wound. (5) Multiple gun pellet wounds over the outer side of the right forearm and right forearm right upper arm. (6) Multiple gun pellet wounds over the buttocks. In his opinion death occurred due to shock, haemorrhage, Peritonitis and septicaemia because of injury No. 2 which was sufficient to cause death in the ordinary course of nature.

6. Assistant Sub‑Inspector Muhammad Awais (P. W. 16) had within an hour or so traced out Muhammad Latif appellant from a field Platu Khan along With gun (P. 11) and two live cartridges (P. 12/1‑2) which were sealed into a parcel vide Exh, P. M. and produced him before the Sub‑Inspector at the spot as stated above.

7. Muhammad Latif appellant pleading not guilty had set up a plea of self‑defence in tire following terms :‑ The fact is that Sultan (deceased) armed with a gun came to my house on the day of occurrence and demanded Rs. 1000.00irom me. I told him that the money was given to Nawab for haying clothes and ornaments for his wife who was in his house with these articles. At this an altercation took place between us. He fired at me. But I saved myself. He again loaded the gun for the second time. I ran into the room and in self‑defence fired at the deceased who was going to fire at me. He was bit and later on dad.

8. Learned trial Judge was pleased to reject this plea as extremely improbable and relying on the direct evidence of the occurrence supplied by Wali‑ud‑Din and Muhammad Jamshed P. Ws who had supported the above narration found him guilty of the charge which finding has been assailed as erroneous and ill-founded. On going through the record with care I am not inclined to agree with the conclusion arrived at by the learned trial Judge in this case as the investigation smacks of crude padding which does not permit of any credence in the testimony of the two alleged eye‑witnesses, whose own conduct in the affair did not inspire confidence at all. Moreover the version put forth by Muhammad Latif appellant was more probable in view of the location and nature of the injuries.

9. I will first take the evidence of Fateh Muhammad and Ata Muhammad P. Ws. about the gun (P. 11) which on the face of it was absurd : firstly, because Muhammad Latif appellant himself owned a licensed gun Which in the alleged circumstances he could immediately take from inside his kotha for retaliation rather than go to the house of Ata Muhammad P. W. situate at a distance of half a mile to fetch his gun. Secondly in the absence of Ata Muhammad P.W. his wife and children, his brother Fateh Muhammad (P.W.10) would not have permitted him to take away his gun and ammunition without his permission. It is unbelievable that he would have permitted Muhammad Latif appellant to enter his kotha without telling him anything about the purpose of his visit as stated by him. Anyhow Fateh Muhammad P. W. stated that after the occurrence he went to the police station and lodged his report (Exh. P. Q.) about Muhammad Latif's taking away the gun in that manner although it had already been recovered and produced before the Sub‑Inspector at the spot. Ata Muhammad P. W. had, however, contradicted his mother about his going to police station and lodging any such report. The conduct of Fateh Muhammad P. W. was unnatural as he knew that if this gun was used by Muhammad Latif in causing injuries to any one his brother would get into trouble. He wood have rather chased him raising hue and cry and thus saved the consequences that followed. I am, therefore, not inclined to accept this evidence,

10. The same was true of the evidence of its recovery from Muhammad Latif appellant which the learned Judge had himself dubbed as doubtful.

11. To crown ail this the Sub‑Inspector had also tried to create evidence that the licensed gun of Muhammad Latif appellant was not with him on the day of occurrence and registered a tae about its misappropriation by a Foot Constable of his own police station on the next day. All this spoke volumes about the bona fides of the Sub‑Inspector in the investigation of this case which would certainly reflect adversely on the other evidence collected by him.

12. As regards the direct evidence given by Wali-ud‑Din and Muhammad Jamshed P. Ws. I have the same feeling that t1oy have been set up by him which is quite evident from their own conduct as in order o pose as disinterested persons both of them had Vied to show that they were closely related to the appellant as well, but when questioned about in cross‑examination they failed to establish any such relationship with him. They, however, admitted their relationship with the deceased. Their conduct at the spot during the occurrence was all the more unnatural as they kept sitting quietly on a cot nearby while Sultan (deceased) altercated with Muhammad Latif appellant who then left telling them to wait till he brought the money being demanded from him. It was strange that they had been taken a tang as respectables to help him in the matter but they did not intervene at all during the exchange of hot words. Their testimony was also littered with discrepancies. Wali‑ud‑Din P. W. stated that Sultan (deceased) came to his house along with Muhammad Jamshed P. W. while the latter deposed that Wali‑ud‑Din P. W. had accompanied Sultan (deceased) to his house. According to Wali‑ud‑Din P. W. the wife and children of Muhammad Latif appellant were present in his house at the time of this occurrence and Muhammad Jamshed P. W. belied him about it as well. Wali‑ud‑Din W. stated that the statement of Muhammad Jamshed P. W. was recorded the Sub‑Inspector in the hospital which was also contradicted by Muhammad Jamshed P. W. himself as he deposed that his statement hay been recorded at the spot. Wali‑ud‑Din P. W. bad remained with the police at the spot till 3‑30 p.m. and Muhammad Latif appellant was produced before the Sub‑Inspector according to him at 1‑30 or 2‑00 p.m . while Jamshed P. W. stated that he left the spot after about half an hour of the arrival of the police at the spot and in the meantime Muhammad Latif appellant had also been produced there along with the gun and the cartridges which is not consistent with statement Wali‑ud‑Din P. W. All these discrepancies were quite material for the decision of the case which had absolutely impaired the credibility of these witnesses. I, therefore, do not consider it safe to rely on their testimony.

13. Their evidence is also not in conformity with the medical evidence as Wali‑ud‑Din P. W. had stated that both the shots were fired Sultan (deceased) when he was facing the appellant and he had raised his hand beseeching him riot to fire. The accused however fired and injured his hands and chest but there are no injuries on the chest of the deceased. According to the demonstration given by this witness the deceased could not have suffered injuries on the back of his hands and arm but in that case the pellets would have hit the inner side of palms and arms. They have also not explained the multiple injuries found on the buttocks of the deceased.

14. To my mind the scrutiny of the medical evidence would show that the version of the occurrence put forth by the appellant is nearer the truth, at least more probable. Sultan (deceased) was admittedly offended over this fraud played upon him by the appellant so he must have gone there armed with a gun to demand the amount paid by him in this manner and finding him to armed Latif appellant seems to have rushed inside his kotha and brought his gun and fired shots when Sultan (deceased) had aimed his gun at him. His left hand holding the barrel gad the fingers of the eight bane, the trigger fell a target along with his abdomen to the first shot as would be borne out from the location of the injuries on the back of both the hands and arms as also the abdomen. On receipt of this shot he turned to escape when the second shot was fired and some of its pellets hit at his buttocks. This picture of the occurrence being more in consonance with the seat and location of injuries inspires some confidence in the defence version.

15. Anyhow after the exclusion of the entire; prosecution evidence I have no option but to accept the plea set up by the appellant and that too as a whole. This will, however, not absolve him altogether as he bad definitely exceeded the right of private defence available to him in that situation. Having disabled him by the first shot the second shot) fired by the appellant was certainly uncalled for, more so when his adversary had turned his back apparently to escape.

16. Taking this view of the matter I partly accept this appeal and alter his conviction to that under section 304 (I), P. P. C.

17. As regards the sentence the appellant has by now undergone rigorous imprisonment for about five years after his conviction in the case and had remained in Jail as an undertrial for a year and a half. He must have earned remissions of about one year during this period bringing the total to over seven years which shall meet the ends of justice in this case, so I reduce his sentence to imprisonment already undergone by him and direct that he shall be set at liberty forthwith, if not required in any other case. Order accordingly.