1983 PLP 1220 (SCMR)

ASLAM RIAZ HUSSAIN, J.‑Through this jail appeal Yousaf kaza and Asif Raza (son of the former) have challenged their conviction and sentence. They were tried alongwith Pervaiz Raza for offences under sections 302/34 and 307/34, P. P. C. for murdering Abdul Rashid and making murderous assault on Rehmatullah P.W. The facts of the prosecution case, according to the F.I.R., lodged by Muhammad Ali Kamal P. W., are that on 29‑2‑1976 at about 11 a. m., Muhammad Hanif and Rehmatullah P. Ws. were fighting with Pervaiz Raza and Asif Raza (two sons of Yousaf Raza) appellants. The former, it is alleged, were giving slaps and fist blows to Pervaiz Raza. Muhammad Ali Kamal (complainant) and his brother‑in‑law, Abdur Rashid (deceased) tried to intervene when Yousaf Raza appellant (father of Asif Raza and Pervaiz Raza) came out with a double‑barrel gun and fired two shots at Muhammad Hanif and Rehmatullah. Asif Raza appellant also brought out his father's pistol and fired with it. Abdur Rashid (deceased) was hit by,12 bore pellet on his abdomen. Rehmatullah P. W. also got injured by the shots fired by Yousaf Raza. Muhammad Ali Kamal (complainant) took his brother‑in‑law (Abdur Rashid) to Civil Hospital in a rikshaw. Rehmatullah P. W. who was also injured was also brought to the hospital by Muhammad Hanif. The injured persons were attended to medically and information was sent to the police on telephone on which Ahmad Saeed, S. L/S. H. O.S Police Station Baghdadi went to the hospital and recorded the statement of Muhammad Ali Kamal which formed the basis of the F. I. R.

4. During the investigation the S. I. recovered two empty shells of 32 bore from the place of occurrence. The accused were arrested. A double barrel gun with 24 live cartridges was recovered at the instance of yousaf Raza and a pistol with 6 live cartridges was recovered at the instance of Asif Raza appellant. The empties as well as the aforementioned fire‑arms were sent to the Ballistic Expert. The 32 bore empties matched with the gun recovered from Yousaf Raza and the revolver empties matched with the revolver recovered from Asif Raza appellant.

5. At the trial the prosecution relied on the testimony of the four eye‑witnesses, namely, Muhammad Ali Kamal, Chanan Din, Rehmatullah and Kamal Din. It also relied on the aforementioned recoveries, medical evidence and the motive.

6. The trial Court (Additional Sessions Judge, Karachi) acquitted Pervaiz Raza but convicted both Yousaf Raza and Asif Raza appellants under sections 304, Part‑II, 307 and 34, P.P.C. It sentenced each of them to 7 years' R. I. with a fine of Rs. 1,000 each and also compensation of Rs. 2,000 each to be paid to the L. Rs. of the deceased. Under section 307, P. P. C. it sentenced both of them to 3 years' R. I. each and to pay fine of Rs. 500 each and compensation of Rs. 500 each to Rehmatullah injured P. W. In case of failure to pay fine and compensation under section 304, Part II, P.P.C. each of them was ordered to suffer one years R. I. and under section 307, P.P.C. to suffer further R. I. for 6 months.

7. They filed a joint appeal before the High Court of Sind. The High Court maintained the conviction of Yousaf Raza under the aforementioned section but reduced his sentence under section 304, Part II. P.P.C. from 7 years' R. I. to 5 years' R. 1. and at the same time enhanced the amount of fine imposed under section 544‑A, Cr. P. C, from Rs. 2,000 to Rs. 5,000 and remitted the fine under the said section. It, however, acquitted Yousaf Raza of the offence under section 304‑II but maintained his conviction under section 307/34, P.P.C. Conviction of Asif Raza under section

307. P.P.C. was converted into section 326, P.P.C. but his sentence was reduced from 3 years' R. I. to 2 Sears' R. I. The amount of compensation to be paid to Rehmatullah was enhanced to Rs. 1,500.

8. Leave was granted in the following words :‑ "Section 106, P. P. C. provides for right of private defence against deadly assault when there is a risk of harm to innocent person. According to Kabiruddin P. W., the victim of (mob) attack (Pervaiz Raza) whom the petitioners admittedly wanted to save by firing at the crowd was being beaten by hand and `stone mercilessly', the having so and there being no other motive for the petitioners to fire the shots it needs to be examined whether the petitioners have been rightly convicted. I would, while condoning the delay, granted leave."

9. The appellants argued their case personally. The learned Assistant Advocate‑General, Sind, also assisted us on our request.

10. We have heard the appellants at length and have also gone through the judgments of the learned Courts below. We notice that in the F.

1. R. there was no allegation to the effect that Muhammad Hanif and Rehmatullah P. Ws. were beating Pervaiz Raza with `stones'. The version was altered later and the allegation of causing injuries with `stones' was added. The injuries caused to Pervaiz Raza are very minor in nature and have been described as follows :‑ (i) An arbrasion measuring x on ulner side of. The right hand ; And (ii) An arbrasion 1 x 1" on the nosal bridge. In view of the above‑noted facts we cannot accept the plea that this case falls within the purview of section 106, P. P. C. and the matter does not, therefore, call for interference except that the conviction of Asif Raza, in the circumstances of the case be altered from section 307, P. P. C. to that under section 308, P. P. C. With the above modification the appeal stands dismissed. M. Z. M. Appeal dismissed.