P L D 1984 Peshawar 192 (PLP)

NAZIR AHMAD BHATTI, J.‑Appellants Muhammad Yousaf and Zahir Khan have been convicted under section 107/34, P. P. G. and sentenced to six years' R. 1. and a fine of Rs. 10,0.0 each, or in default whereof they are to undergo further R. I. for one sad a half years by Malik Isa Khan Afridi, Magistrate under section 30, Cr. P. C. vide judgment dated 8‑2‑1984. By the present appeal both the appellants have challenged their conviction and sentence. Farman Ghani complainant has also filed Criminal Revision No. 13/84 for enhancement of sentence of the appellants. By the present judgment we propose to dispose of the appeal and the revision together.

2. The report of the occurrence lodged by Farman Ghani complainant on 29‑4‑19x2 in P. P. Yar Hussain at 12.10 p.m., where be was taken in injured condition, states that on the said day at I1‑30 a.m. he was irrigating his tobacco crop from the water of the tube‑well of Ajun Khan, resident of Yar Hussain ; that suddenly the water stopped whereupon he went to the pump and saw accused Yusuf armed with a pistol and accused Zahir Khan armed with a shovel (Bailcha) standing there ; that on his querry both the accused informed him that they had stopped the water and simultaneously accused Zahir Khan gave a shovel blow hitting him on the nose and accused Yusuf fired pistol shot with which he was injured on the chest ; that the occurrence bad been seen by his maternal uncle Muhammad Nabi and Alam Sher ; that the dispute about the water was the only motive for the offence. This report was incorporated in the F. I. R. No. 192 of P. S. Kalu Khan at 1.3.20 p.m. on the same day.

3. Both the accused were charged under section 307/34, P. P. C., to which they pleaded not guilty and claimed trial. Eight prosecution witnesses were examined by the learned trial Magistrate. Both the accused in their statements under section 342, Cr. P. C. denied the commission of the offence but did not produce any defence.

4. The injured complainant was examined by Dr. Muhammad Farooq on 29‑4‑1982, at the time incharge of Civil Hospital. Kalu Khan. He had gone abroad when the trial commenced and his medical report, Exh. P. K., was proved by P. W. 8 Zain‑ul‑Abidin, dispenser of the said hospital. According to this medical report the complainant sustained the following injuries :‑ (1) A firearm injury entrance on front of chest near throat, ' x '. (2) A firearm exit wound on back of chest 1/3 x , (3) A bruise on nose " x 1/3. According to this report injuries 1 and 2 were caused by fire‑arm and Injury No. 3 may have been caused by blunt weapon. The said doctor referred the complainant to the Civil Hospital, Mardan, where he was examined by P. W. 5 Dr. Muhammad Saleem on the same day. The complainant was admitted in emergency as a case of fire‑arm injuries to chest. The record showed that the patient was dystenotic. He remained in the hospital till 13‑5‑1982. The nature of injuries was grievous. The medical certificate of this doctor is Exh. P. W. 5/1.

5. P. W. 4 Muhammad Israr Khan investigated the case. He went to the spot, prepared the site plan Exh. P. B., recorded the statements of the witnesses, took into possession one shirt and one Banyan of the injured complainant having blood stains and cut marks. In cross‑examination he stated that he did not recover any blood from the spot ‑P. W. 6 Ali Haider D. F. C. was entrusted with warrants under section 204, Cr. Y. C. against both the accused who were not available, so he returned the warrants unserved. P. W. ‑ 7 Muhammad Irshad Khan S. 1. registered the case vide F.

1. R. Exh. P: A. on receipt of Murasila, Exh. P. A./1, from P. P. Yar Hussain.

6. There are three eye‑witnesses of the occurrence, P. W. I Farman Ghani complainant, P. W. 2 Muhammad Nabi and P. W. 3 Ajun Khan. The complainant has generally corroborated the contents of his report. He has further stated that he and accused Yusuf had grappled with each other when P. W. Ajun Khan arrived and tried to effect separation and during that time accused Yusuf fired a pistol shot with which he was hit on the chest. He has further stated that both the other eye‑witnesses reached the spot when he and' accused Yusuf' were grappling with each other, P. W. 2 Muhammad Nabi has stated that both the accused were standing on the 'warkha' where the complainant came and accused Zahir Khan gave him a shovel blow when both the accused had started grappling with him. In the meantime, P. W. Ajun Khan arrived and at that time the complainant was grappling with accused Yousaf. P. W. Ajun Khan tried to separate them and caught hold of accused Yousuf who then fired a pistol shot at the complainant who was bit. and during that time accused Yusuf rescued himself from P. W. Ajun Khan. In cross‑examination he has admitted that the firing at the complainant had already taken place when he reached them. P. W. 3 Ajun Khan has stated that on the day of occurrence the complainant was irrigating his field from the water of his pump. He was present in. his 'arhat' when he saw accused Yusuf and the complainant grappling with each other. He went near them and started separating both of them. He caught hold of accused Yousuf from his wrist and pulled him towards himself and they got separated, He was holding accused Yusuf and asked 2 or.3 other persons to catch hold the complainant but the latter was not caught hold of. The complainant came in front of accused Yusuf, who fired a pistol shot with which the complainant was hit on the chest. He had, however, not inquired about the cause of the quarrel from the complainant. In cross‑examination this witness has stated that he had not seen accused Zahir Khan present on the spot at the time of occurrence. He also did not see P. W. 2 Muhammad Nabi and P. W. Alam Sher at that time. He had seen pistol in the hands of accused Yusuf but he had not used it till the complainant came in front of the accused after they had both been separated.

7. In so far as the case of accused Zahir Khan is concerned, P. W. Ajun Khan has stated that he did not see him at the spot at the time of occurrence. Although Dr. Muhammad Farooq noticed one bruise on the nose of the complainant but this injury was not seen by P. W. 5 Dr. Muhammad Saleem, who had examined the complainant on the same day. According to the prosecution version appellant Zahir Khan was armed with a shovel and if he had, given a blow with this tool, it would have caused very grievous injury to the nose and not only a bruise. The prosecution has also not produced any evidence to show as to what happened to that shovel after the occurrence if accused Zahir Khan was also present and took part in the fight. We have given our serious thought to the case of this accused and we have come to the conclusion that the prosecution has miserably failed to either prove the presence of accused Zahir Khan at the spot or his taking part in the fight.

8. In so far as the case of appellant Yusuf is concerned, the circum stances which come to light after appreciation of the entire evidence produced in the case are, that there was no previous enmity between the parties ; apparently the complainant got annoyed over the stoppage of water and thinking that the appellant had stopped the water started grappling with him ; they were grappling with each other and till then the appellant although he was armed with a pistol did not use it ; as disclosed by P. W. 3, Ajun Khan the complainant was rushing to attack the appellant when the latter fired a pistol shot injuring him on the chest there is no premeditation for the fight and the evidence establishes that it was a sudden affair ; P. W. 2 Muhammad 1Vabi appears to be inimical towards the appellants and is also related to the complainant and more over he did not see the occurrence of firing as by .his own statement he has admitted that when he reached the complainant the firing had already taken place. To our mind P. W. 3 Ajun Khan appears to be a natural witness of the occurrence. He is neither related to any party, nor has he any enmity with any of them. His evidence is, therefore, confidence inspiring. He saw the complainant and appellant Yusuf grappling with each other and he separated them. The complainant was again rushing towards the appellant Muhammad Yusuf when the latter used his pistol and fired only one shot. It has also come in evidence that the complainant was also having a hoe (Ramba) with which he was working in his field. The possibility cannot be ruled out that he was, having this implement with him when both the parties had confronted each other.

9. In view of the aforesaid circumstances, the learned counsel for the, appell4nts contended, firstly, that the appellant Muhammad Yusuf had fired a pistol shot at the complainant in self‑defence and if this plea was not accepted then the case did not fall under section 307, P. P. C. but was covered by section 308, P. P. C. In so far as his first contention is concerned, we do not find any material on the record to show if the appellant was threatened with any serious attack or imminent danger of any fatal injury to his person. There is also no evidence that the complainant intended to use the hoe or they cause any injury to the appellant. We, therefore, do not find any material on the record to agree with the learned counsel for the appellant that the latter had committed the offence in self‑defence.

10. Regarding the second contention of Sahibzada Akhtar Munir, the learned counsel for the appellants, it shall be noted that in section 307, P. P. C. the intention and knowledge are to commit the murder but the offence falls short of death, whereas in section 308, P. P. C. the intention and knowledge are to commit culpable homicide not amounting to murder in the circumstances which develop beyond the control of the offender. If a person on grave and sudden provocation commits an offence whereby death is caused he would not be guilty of murder but would be guilty of culpable homicide not amounting to murder. This circumstance can be looked at from another angle, that if in a sudden fight and in grappling with the complainant the accused in order to get rid of the complainant commits an offence without any premeditation but with the knowledge that it may cause the death, he would be guilty of an offence under section 308, P. P. C. and not section 307, P. P. C. In the case of Ali Zaman v. The State (PLD1963SCI52) the responsibility for the outbreak of violation was on the complainant side in a sudden fight and, fire‑arms were used by the accused, the latter were deemed to have caused culpable homicide not amounting to murder and conviction from under section 307, P. P: C. was changed to one under section 308, P. P. C. The circumstances of this case are more or less like the present case. The complainant confronted the appellant, a quarrel took place leading to grappling and in the heat of passion the appellant fired a pistol shot. The fact that he fired only one shot would show that he did not intend to cause the death of the complainant and moreover he bad used the pistol as a last resort. They were quarrelling and grappling with each other and then the pistol was used by the appellant. These circumstances will show that the appellant did not intend to commit the murder of the complainant, nor he had inflicted him such injury as would result in his death. The fact that there was neither any previous enmity between the parties, nor any premeditation on the part of the appellant to commit the offence, his action can only be seen in the light of tire provision of section 308, P. P. C. We have, therefore, arrived at the conclusion that the offence committed by the appellant Muhammad Yusuf is not covered by section 307, P. P. C. but falls under section 308, P. P. C.

11. Next is the question of quantum of sentence. The maximum sentence under section 307, P. P. C. is imprisonment for life and the appellant Muhammad Yusuf was sentenced to undergo six years' imprisonment. Keeping this proportion in mind and the maximum sentence of seven years as provided in section 308, P. P. C., we are firm in our mind that the sentence of two years' R. I. would serve the ends of justice.

12. The upshot of the above discussion is that the appeal is accepted, appellant Zahir Khan is acquitted of the 'Offence with which he has been charged and his sentence is set aside. He shall be set at liberty forthwith if not wanted in any other case. The conviction of appellant Muhammad Yusuf is altered from under section 307, P. P. C. to under section 308, P. P. C. ' and sentence is reduced to two years' R. I. and a fine of Rs. 5,000 in default of payment of which he shall suffer further six months' R. I. An amount. equal to one‑half of the fine, if recovered, shall be paid as compensation to the complainant. The revision‑petition is dismissed. M.A.K. Order accordingly.