1969 PLP 89 (SCMR)

Abdul Wahab P. W., elder brother of the deceased Abdul Hakim was the lessee of a sarai situated near Khaksar Manzil in Mardan town. In a portion of that sarai one Khanzada used to run a tea stall together with Abdul Wahab. Khanzada had employed Bacha P. W. as a servant in that tea stall. The deceased and his elder brother Abdul Wahab lived together in a house in Kanshi Mohalla not far from the place, of occurrence. The appellant and his elder brother Hazrat Hussain were living in a quarter at the back of Khaksar Manzil. Bacha used to take tea from the tea stall of Khanzada to the quarter of the appellant and his acquitted brother. A day before the occurrence as usual, Bacha P. W. took tea to the quarter of the accused where in addition to them some guests were present. It is said that Hazrat Hussain asked Bacha to fetch some water from a nearby mosque. On his return from the mosque Bacha P. W. found Hazrat Hussain alone present in the quarter who asked him to take the hotel utensils inside his room. On entering the room its door was chained by Hazrat Hussain. He then caught hold of Bacha and asked him to lie down on a cot. On his refusal Hazrat Hussain gave him beating with the butt end of a topak. He, however, managed to extricate himself from the clutches of Hazrat Hussain and ran out of his quarter after opening the door. On the same day at about evening time Abdul Wahab P. W. came to the hotel and heard about the incident from Khanzada. Abdul Wahab got enraged and started abusing Hazrat Hussain who was absent at that time and directed Bacha not to take tea to the quarter in future. The prosecution case further is that on the day of occurrence at about 8‑00 p.m. Abdul Wahib P. W. accompanied by Abdul Hakim deceased was going from his house to the tea stall in the sarai. On reaching Khaksar Manzil they saw Aslam P. W. and Slier Muhammad in the shop of Aslam in front of the gate of Khaksar Manzil. After exchanging greetings with them Abdul Wahab and the deceased proceeded towards the sarai along the path by the side of Khaksar Manzil. When they were 6 or 7 paces from the sarai they saw the two accused emerging from behind a tree. Hazrat Hussain asked Abdul Wahab as to why lie had abused him. Abdul Wahab told that he had abused him because he had assaulted his servant Bacha on the previous day. On this Hazrat Hussain is alleged to have fired a pistol shot at him from a distance of about 8 feet, but it proved ineffective. The present appellant then is alleged to have fired from his revolver hitting Abdul Hakim who fell down and died on the spot. Out of fear Abdul Wahab P. W. ran towards Khaksar Manzil to take shelter there. Aslam P. W and Sher Muhammad also ran in the same direction. More shots were fired at them but they proved ineffective. Later on Abdul Wahab came out and saw the deceased lying dead. The dead body was carried to the sarai and thereafter Abdul Wahab accompanied by Aslam P. W. went to the Police Station, Hoti, which is at a distance of four furlongs and lodged the First Information Report at 9 p.m. Mufti Mushtaq Hussain, S. H. O., reached the spot at 9‑40 p.m. He prepared the injury sheet and inquest report and sent the dead body to the mortuary for post‑mortem examination. On inspection of the spot he removed four electric bulbs from different points. He also recovered a copy of arm license, a bandolier containing eight live cartridges of '32‑bore pistol of the deceased along with a number of cardboard pieces and two .12‑bore empty cartridges. On the following day at about 7‑20 a m. he came and inspected the spot and recovered a spent bullet from the wooden plank i e. sign board of Standard Bank and another bullet from the top of the sign board. The appellant in his examination under section 342, Cr. P. C. stated "Bacha P. W. was a keep of Abdul Hakim deceased and as he used to visit our Dhera too frequently the deceased became jealous. In consequence the deceased used to prevent Bacha P. W. from visiting our Dhera. Nevertheless, Bacha kept on visiting us to the annoyance of the deceased. The deceased suspected us supplanting our affections on his keep. There fore, the deceased armed with a pistol alongwith others came to our house and started firing. The inmates of our house returned firing and in the course of that firing, tire deceased lost his life.‑ The learned Judges of the High Court while considering the question of self‑defence observed :‑‑‑ " It is true that according to the prosecution evidence about 80 shots were fired round about the spot, but the firing of these shots does not show that they were fired by the deceased party. Moreover, these shots were fired after the deceased had been murdered on the spot and the firing of these shots after the occurrence would not give the right of defence of his person to the appellant." Leave to appeal was granted to consider whether the defence plea had received due consideration at the hands of the learned Judges. The evidence of Abdul Wahab (P. W. 6) and Aslam (P. W. 7) that the appellant was responsible for the gun‑shot injury on the deceased has been accepted by the Courts below. According to these two witnesses Hazrat Hussain was armed with a pistol and the appellant was armed with a rifle. The medical evidence has established that the injury of the deceased was caused by a bullet. Mr. Mahmud Ali, the learned counsel for the appellant argued that in the absence of any evidence as to whether the injury caused on the deceased was of a bullet shot from a rifle or a pistol, a doubt arises as to whose shot really hit the deceased. The eye‑witnesses categorically stated that Hazrat Hussain had fired first but his shot proved ineffective. It was then that the appellant fired from his rifle which hit the deceased. These witnesses had no particular reason to make the appellant responsi ble for the fatal injury on the deceased if it had really been caused by Hazrat Hussain. The learned counsel also argued that as the medical evidence showed that charring was present around the wound of entrance the evidence of these two witnesses that the appellant shot the deceased from a distance of six to eight feet goes to indicate that they had not witnessed the occurrence. In this connection our attention has been drawn to certain observations in "The Identification of Firearms and Forensic Ballistics" by Gerald Burrard at pp. 58 & 59 and "Medical Jurisprudence and Toxicology" by Glaister at pp. 254 and 262 to

264. It is true that the opinion of these authors supports the view that if the shot in question had been fired from a distance as deposed to by the eye‑witnesses there would not have been any charring. The distance between the deceased and the appellant was given by guess and therefore the conflict between the evidence of the eye witnesses and the opinion of the expert cannot be a reason for disbelieving their evidence and holding that they were not at all present at the time of occurrence. The First Information Report in this case was lodged by P. W. Abdul Wahab promptly and in that report he had mentioned the appellant as the person responsible for the injury. We therefore see no reason to disagree with the findings of the Courts below that P. W. 6 and P. W. 7 were present at the time of the occurrence. We may point out in this connection that the presence of charring supports the prosecution case rather than the defence version. The learned counsel for the appellant very strenuously argued that the recoveries of the copy of a licence and a bandolier belonging to the deceased, several cardboard pieces and two empty cartridges of ' 12‑bore at a distance of 9 feet from the house of the accused clearly go to indicate that the defence version of the case, namely, that whoever had fired at the deceased did so in self defence is true. In this connection it has also been pointed out that P. W. 6 in the First Information Report did not mention that he was fired at while running away from the place of occurrence. In the First Information Report his statement was that only two shots were fired one by Hazrat Hussain, the acquitted accused and another by the appellant which hit the deceased. The recoveries indeed indicate that more shots than two were fired and in this connection a ' 12‑bore gun was used. This fact alone, however, is not sufficient to lend support to the defence plea. The evidence in this case does not at all indicate that any shot was fired at or towards the house of the accused. The recovery of the licence and the bandolier of the deceased or absence of any explanation as to what happened to the weapon of the deceased does not, in our view, go to show that there was even a reasonable possibility that the occurrence had taken place in the manner indicated by the appellant in his statement under section 342, Cr. P. C. We are therefore of the view that it has been rightly found that the occurrence had taken place in the manner deposed to by the two eye‑witnesses and that the appellant caused the fatal injury to the deceased. The appellant has been sentenced to death. He was at the time of the occurrence aged about 20 years. The acquitted accused Hazrat Hussain was at that time aged about 29 years. The difference between the age of the two therefore was nine years. The cause of the trouble was Hazrat Hussain who no only assaulted Bacha on the previous day but was also respon sible for picking up a quarrel with Abdul Wahab at the time of the occurrence for having abused him on the previous evening. There is further clear indication in the evidence that the occur rence was preceded by some altercation between the parties when they met each other suddenly in the lane leading to the sarai of Abdul Wahab. These circumstances, in our view, are of great weight in determining the sentence of the appellant. We, therefore, feel that this is not a case in which the appellant should have been awarded the extreme penalty. We, therefore, allow this appeal to this extent that the sentence of death awarded to the appellant Sardar Ali is altered to transportation for life under section 302, P. P. C. Appeal partly accepted.