P L D 1957 (W (PLP)

HABIBULLAH KHAN, J.‑

Fateh Khan of village Shiwa, situated in the jurisdiction of Police Station Kalu Khan, has been convicted by Mian Shakirullah Jan, Additional Sessions Judge, Peshawar, under section 302, P. P. C. and also under section 19, Arms Act, and has been sentenced to death and 2 years' R. I. respectively. He has appealed. His death sentence is also laid before us for confirmation. Khan Sher deceased and Fateh Khan appellant had their fields adjacent to each other with a common "pulla" (boundary), which was also used as a foot‑path. It had been damaged and washed away by rain a few days prior to the occurrence. On the morning of the 25th July 1956, the deceased visited his field and started repairing the "pulla" by placing stones over the damaged portion. The appellant also arrived there at about 7‑30 a.m. He asked the deceased not to repair the damage as the work was likely to interfere with the "pulla" which was common to their fields. The deceased ignored the request and continued the repair. This involved them in an altercation. Thereupon, according to the eye witnesses, the appellant whipped out his pistol and fired a shot at the deceased. It is said that a knife, which the appellant was holding, fell from his hand. The deceased immediately rushed at the knife, picked it up, and aimed a blow with it at the appellant. The appellant fired another shot at the deceased, who was hit, as a result whereof he fell down. The appellant then fired a third shot, which also proved effective. Thereafter, the appellant left the deceased on the spot and started running away. The incident was witnessed by Bahadur (P. W. 5) and Khoedad (P. W. 6) who were present in the vicinty of the spot. When they approached the deceased, the latter asked them to inform his relatives of the occurrence. One boy, Khair Muhammad, went to the village and apprised his father Yar Muhammad (P. W. 4). When Yar Muhammad arrived at the spot, he found the deceased lying murdered in his field, with Bahadur and Khoedad P. Ws. present there, who related the story to him. Earlier Muhammad Anwar Khan, A. S. I. (P. W. 18) was present in Police Post Shiwa, when he heard three shots‑ring out one after another. On coming out of the police Post, he came across a crowd near Kandi Sawali. The people informed him of the incident and also told him that the appellant after committing the murder had run away and entered the house of one Karim Dad. The A. S. I. in company of others went to the house of Karim Dad, where he found the appellant in a kotha armed with a pistol. He was arrested and relieved of his pistol and ammunition including an empty shell. The pistol smelt of freshly dis charged gun‑powder. Leaving the appellant in charge of a foot constable and the elders of the village, the A. S. I. directed Yar Muhammad to take the dead body to the Police Post, where he was going. Yar Muhammad along with other villagers carried the dead body to the Police Post where at 8 a. m. he lodged his report. After recording the report, the A. S. I. again visited the spot and recovered two freshly fired empty shells. He also found the "pulla" damaged, but partially repaired with stones. He observed blood at two places in the field of the deceased. The appellant was also found injured. According to the medical evidence, the deceased had a bullet entrance wound on the left side of his back " lateral to the spine, with a corresponding exit wound on the left side of his chest in the mid‑exillary line. He had another bullet entrance wound on his left shoulder to its lateral side, The wounds were the result of two separate shots, each of them individually sufficient to cause death in the ordinary course of nature. Both the lungs of the deceased were injured and some of his ribs were also fractured. The appellant was found to have a stab wound 1" x " and 2" deep on the left side of his chest, apparently simple in nature. On the 6th day of the occurrence the appellant was produced before Fazal Rahman Khan, A. D. M. Swabi who recorded his confession. In this confession, the appellant stated that following a quarrel over the repair of the damaged "pulla", the deceased stabbed him with a knife and injured him, and that he, (appellant) fired three shots at him in self‑defence. At the trial, however, he resiled from his con fession, and asserted that when the deceased injured him with his knife, some unknown people shouted from a grove of trees, that he (appellant) should not be allowed to run away, and that they at the same time fired shots, whereupon he (appellant) ran away. He did not say in so many words but suggested impliedly that the deceased was hit with the shots of those people. Mr. Abdul Qayum Khan the appellant's counsel has raised technical objections to the trial of the case and has argued, that the procedure followed by the learned Additional Sessions Judge in utter violation of the provisions of sections 356 and 357, Criminal P. C. has vitiated the trial inasmuch as, (1) he did not take down the evidence of the witnesses in his own hand writing in the language of the Court, which is "Urdu" (vernacular), as required by subsection (1) of section 356, (2) he did not prepare any memorandum of the evidence, as required by subsection (3), and (3) the reason given by the Additional Sessions Judge fog his inability to take down the evidence with his own hand, as contemplated by section 357, Criminal P. C. are not sufficient. The learned counsel was visibly convinced, when his attention was drawn to a notification issued by the Provincial Government on the subject. As regards the first objection, it is true that subsection (1) of section 356 requires a Sessions Judge to take down the evidence in the language of the Court, which is "Urdu", but section 357 empowers the Provincial Government to direct the Sessions Judge to take the evidence in the English language, if it is necessary. The proviso to subsection (2) of section 357 down:‑ "Provided that the Provincial Government may direct the Sessions Judge or Magistrate to take down the evidence in the English language or in the language of the Court, although such language is not his mother‑tongue." On the 26th January 1937, the Provincial Government issued Notification No. 3174‑L. D. to the following effect:‑ "Under section 357 of the Code of Criminal Procedure, 1898, the Governor‑in‑Council is pleased to direct that throughout the North‑West Frontier Province, the evidence of each witness shall, in the cases referred to in section 356 of the Code of Criminal Procedure, 1898, be taken down by the Sessions Judge or Magistrate with his own hand and in English, unless he is prevented by any sufficient reason from taking down the evidence of any witness, in which case he shall record the reason of his inability to do so and shall cause the evidence to be taken down in writing from his dictation in open Court: Provided that: If the Sessions Judge or Magistrate is not sufficiently acquainted with the English language but is sufficiently acquainted with the language of the Court, he shall take down the evidence in the language of the Court." From the notification reproduced above, read conjointly with sections 356 and 357, Criminal P. C. it becomes abundantly clear that the Sessions Judge was quite competent to record A the evidence in English, as has been done in the present case and therefore the first objection is overruled. The second ejection regarding the absence of memo randum of the substance of evidence in the hand of the Sessions Judge has no basis at all, because we find the requisite memorandum in the hand of the Sessions Judge on the record. When the memorandum was shown to Mr. Abdul Qayum Khan, he frankly admitted that he had failed to notice it through oversight. The last objection also seems to us to be devoid of any substance. Section 357, Criminal P. C. does not specify as to what particular reason the Sessions Judge must give before he causes the evidence to be taken down in writing from his dictation. It merely says:‑ " . . . the evidence of each witness shall, in the cases referred to in section 356 be taken down by the Sessions Judge . . . . . . . with his own hand . . . ., unless he is prevented by any sufficient reason from taking down the evidence of any witness, in which case he shall record the reason of his inability to do so and shall cause the evidence to be taken down in writing from his dictation in open Court." It is obvious that normally these days it would be very difficult for a Sessions Judge to record the entire evidence in a murder case in his own handwriting, particularly when there is rush of work. It is also clear that evidence of witnesses can be typed more conveniently and in lesser time, than can be done with pen. We for obvious reason don't see any legal defect in trial, if the evidence of witnesses instead of being taken 'down by a Sessions Judge in his own handwriting, if dictated to a steno who types it in the presence of the parties in open Court. In the present case, the Sessions Judge before commencing the trial noted down on the order -sheet the following order:‑ "Owing to rush of work the evidence is being dictated to my steno in open Court in order to save time." When we take all the circumstances and factors into E consideration, we feel inclined to hold, that the reasons given by the Sessions Judge in the present case are sufficient to fulfil the requirements of subsection (1) of section 357, Criminal P. C. This brings us to the merits of the case. After having examined the entire ocular and circumstantial evidence in the case, we feel no doubt in our mind, that the incident was not the result of a blood feud between the relations of the parties, as suggested by Yar Muhammad (P. W. 4), and that the immediate cause of the incident was the quarrel between the deceased and the appellant over the repair of the damaged "pulla". We are also satisfied, that neither the deceased, nor the appellant had visited their respective fields with any pre‑arranged plan to take the life of the other, though it is true that the appellant was armed with a pistol and the deceased was carrying a knife, when they got involved in the quarrel. We are not prepared to believe the prosecu tion allegation, that the appellant was carrying any knife which, when it fell from his hand, was picked up by the deceased and used against the appellant. It is evident from the statement of the Doctor, that the deceased was injured with two shots, while the appellant was wounded with a sharp‑edged‑pointed weapon. Had the deceased snatched the knife of the appellant, it would have been either found lying on the spot, or would have been produced by the relatives of the deceased to the Investigating Officer, because on their own showing the appellant after firing shots at the deceased fled away from the scene of occurrence and took refuge in the house of Karim Dad. Mr. Abdul Qayum Khan has claimed a right of complete self‑defence for his client, but on careful examination of the medical evidence and the circumstances of the case, we find ourselves unable to agree with him. If we accept the prose cution evidence as perfectly true, then the appellant would be clearly guilty of an offence of murder, but we entertain some doubts about the truthfulness of the prosecution witnesses and feel that they are exaggerating the matter. Similarly, we find it very hard to believe, that the deceased after stabbing the appellant was still advancing towards him in order to give him further blows, when the appellant fired shots at him with a view to defending himself, as suggested by his learned counsel. In that case, there should have been charring marks on the wounds of the deceased. The absence of such marks clearly indicates, that the deceased was at distance from the appellant, when the latter fired at him. It is clear from the testimony of Yar Muhammad (P. W. 4). Bahadur (P. W. 5), Khoedad (P. W. 6) and Muhammad Anwar Khan, A. S. I. (P. W. 18), that three shots were fired by the appellant. It is further evident from the statement of the Doctor, that two out of the three shots had hit the deceased, one of them on the back and the other on the left side. Therefore, it is obvious that when the appellant fired shots at his victim, the latter had retreated and had gone a few paces away from him, because if the deceased after stabbing the appellant had again attempted to deliver him further blows, he would have been hit with the bullets on the front of his body and not on his back, as we find. It appears to us that the deceased was the first to give a knife‑blow to the appellant and then he walked back. Immediately thereafter the appellant pulled out his pistol and fired three shots at the deceased, two of them hitting him fatally. Under these circumstances, the appellant would not be entitled to a complete right of self‑defence. His act would, however, be covered by Exception 1 and Excep tion 2 to section 300 P. P. C. The knife‑blow and the resultant injury on the chest must have given such a grave and sudden provocation to the appellant as to deprive him of the power of self‑control. Further if the appellant believed in good faith, as seems to us that he did so believe, that he could not successfully defend his person in any other manner except by firing at the deceased, then in all probability he acted in the exercise of the right of private defence, but at the same time he exceeded the power given to him by the law, because in the first place he fired at his victim, when he had already beaten his retreat and had gone a few paces, and secondly he used more force than was necessary in the parti cular circumstances of the case by firing three shots at him, two of which were effective and individually fatal. The result, therefore, is that the act of the appellant amounts to culpable homicide, as defined by the P. P. C. and not murder. As regards the charge under section 19 Arms Act, there is ample evidence to prove the recovery of an unlicensed pistol and ammunition from the possession of the appellant by the Investigating Officer in the presence of witnesses in the house of Karim Dad, when he was apprehended. Consequently, we alter the conviction of the appellant from under section 302, P. P. C. to one under section 304 (1), P. P. C. and reduce his sentence to 10 years' R. I. His death sentence is not confirmed. His conviction under section 19, Arms Act and the punishment of 2 years' R. I. are maintained. The two sentences are directed to run concurrently. With this modification, the appeal is dismissed. A. H. Conviction altered.