1981 PLP 206 (SCMR)

FAKHRUDDIN G. EBRAHIM, J.-The petitioner Khan Bahadur alongwith his cousin, Safdar, was tried before the learned Additional Sessions Judge, Attock, for the murder of a co-villager namely. Muhammad Sadiq at Deegarwela on 23-7-1975, in Khasra No. 610 in village Subjal within the jurisdiction of the Police Station Fateh Jhang. Safdar, accused, was given benefit of doubt and acquitted of the charge, while the petitioner, Khan Bahadur, was convicted under section 302, P. P. C. and condemned to death with a fine of Rs. 2,000 which amount, if realised, was to be paid to the heirs of the deceased by way of compensation under section 544-A of the Code of Criminal Procedure. The petitioner challenged his conviction and sentence before the High Court. The matter also came up for confirmation of death sentence under section 374 of the Criminal Procedure Code and the High Court set aside the conviction of the petitioner for the offence of murder under section 302 and instead held the petitioner guilty for the offence of culpable homicide not amounting to murder under Part I of section 304, P. P. C. on the ground that the petitioner had gravely exceeded the right of self-defence in having fired three shots at the deceased, out of which two had proved fatal. As regards the sentence, the High Court took the view that the petitioner deserved maximum punishment of life imprisonment for the offence under section 304-1, P. P. C. and accordingly, the death sentence was converted into one life imprisonment. The controversy in this petition will be narrowed down if we first refer to the petitioner own version of the incident as given in his 342, Cr. P. C. statement, which appears at nag;, 76 of the trial Court record, which is, inter alia, as follows :- "I was passing near the graveyard close to the place of occurrence. There I saw the deceased Sadiq putting and fixing thorny bushes as an enclosure. So that our Field No. 610 becomes a part of adjacent field in his possession and belonging to Sultan. I asked him not to forcibly take possession of this field of ours. He replied that if Muhammad P. W. has surrendered the possession against his wishes he would not allow me to keep the possession and that he would himself keep the land with him. He used to claim himself as `Bhashani'. This led to an altercation since he insisted on fixing the enclosure. He held an iron bar for making a depression in the ground to fix the bushes. He was also carrying a hatchet to cut the bushes. In the meantime, he rushed towards a cloth lying closeby. I also ran and was the first to reach that cloth, this I had done under an apprehension that there was something underneath the cloth which the deceased leaped forward fetch and use for attacking. When I picked it I found a revolver inside which t took in my hand. In the same moment the deceased leaped backward and picked his hatchet and launched an attack on me fearing danger to my life and in a state of panic I fired the fire-arm without any intention of killing him." It was thus the petitioner's case that the revolver in question, with which he fired at the deceased, successively three times, was in fact the revolver of the deceased and the petitioner was obliged to use the same under immediate apprehension that the deceased, who was armed with a hatchet as well as an iron bar, was going to use the same against the petitioner. In so far as the revolver is concerned, the evidence is that it was recovered from the petitioner's house on 2-8-1975 in presence of P. Ws. 6 and 7 i.e., Amir Khan and Walayat Khan, which was found concealed in the residential kotha and brought out by the petitioner from under a quilt. It was again the petitioner's case that he was under a grave apprehension of bodily injury from the deceased, for the deceased was armed with a hatchet, as well as an iron bar. However, no such recoveries were made from the vardat and what is more significant, and it was so conceded by the learned counsel for the petitioner, that no question had been put to the Investigating Officer as regards the hatchet or the iron bar. Thirdly, we have noticed that the petitioner fired as many as three successive shots and the very first shot was on the chest of the deceased, which, according to the medical opinion, was grievous and fatal. The injury No. 1 itself, according to the evidence of P. W. 3, Dr. F. M. Khan, was sufficient to cause death in the ordinary course of nature. In this view of the matter, the least can be said is that the petitioner, even on the assumption that he had a right of self-defence as found by the High Court, had exceeded his right of self-defence. Mr. Bilal lastly argued that this was a fit case for reduction of sentence, but in view of what we have stated above, more particularly the successive gun shots delivered by the petitioner on the person of the deceased, the sentence awarded by the High Court is reasonable. There is, therefore, no merit in this petition and it is accordingly dismissed. Petition dismissed.