1994 PLP 700 (MLD)

RAJA AFRASIAB KHAN, J.

The appellant, Dost Muhammad (27) son of Falak Sher, was convicted by the learned Additional Sessions Judge, Bhalwal, District Sargodha, under section 302, P.P.C. for the murders of Muhammad Mumtaz (30), Muhammad Nawaz (25/26), on 8-12-1990, and sentenced to death on two counts and a fine of Rs.50,000 on each count or in default to suffer ten years' R.I. In case of realization of fine, it was ordered that Rs.80,000 (eighty thousand) shall be paid as compensation to the legal heirs of both the deceased in equal shares. The co-accused Ahmad Yar was, however, acquitted by the learned Judge vide the same judgment by giving him the benefit of doubt. The convict has challenged his conviction and sentence by filing CrA. No.864 of 1990. The complainant, Muhammad Riaz has filed Criminal Revision No.74 of 1991 to challenge the acquittal of Ahmad Yar. The learned trial Court has sent Reference No.15 of 1991 for confirmation of death sentence of Dost Muhammad. We will decide these matters together by this judgment. .

2. The facts, in brief, are that Muhammad Riaz (complainant), his sister Mst. Iqbal Begum and mother Mst. Fatima, were preparing fodder for their cattle on 11-4-1988. At about 12-00 noon, Dost Muhammad drove his cattle to the field of the complainant party where wheat crop was standing. Muhammad Mumtaz, a brother of the complainant was going to the canal to water his cattle. On noticing the cattle while damaging the crop, he went ahead to drive them away. Dost Muhammad who was armed with a .12 bore gun shouted that Muhammad Mumtaz would not be permitted to proceed ahead. Muhammad Mumtaz, however, did not care for the warning. Dost Muhammad fired a shot which hit Muhammad Mumtaz on his chest. He fell down. Muhammad Nawaz another brother of the complainant, was present in his cattleshed. He ran towards the spot whereupon Dost Muhammad fired a second shot which hit him on his chest. After receiving the injury, he ran towards his house and fell down near his Haveli. Shahbaz, the third brother of the complainant came out of the Haveli, while holding the gun of the complainant. Dost Muhammad also fired at Shahbaz which luckily did not hit him. Dost Muhammad, thereafter, went towards the western side of garden and continued firing at Shahbaz. In self-defence, Shahbaz also fired and in consequence, Dost Muhammad too was injured. The people of the locality also gathered. Muhammad Mumtaz succumbed to his injuries at the spot while Muhammad Nawaz was lying injured in a precarious condition. Muhammad Nawaz was brought on a cot by the villagers for his medical treatment in the hospital. Motive is that Mst. Sahib Khatoon who is the cousin-sister of Dost Muhammad and wife of Ahmad Yar, was suspected to have illicit liaison with Muhammad Riaz. It was stated that the two murders took place as a result of the conspiracy having been, hatched by Ahmad Yar.

3. Ijaz Hussain Inspector/S.H.O. Police Station Naushera, District Khushab, recorded the formal KI.R. (Exh.PG) on the statement of Muhammad Riaz. On 11-4-1988, he visited the spot, prepared the injury statement (Exh.PK) and inquest report (Exh.PL) of Muhammad Mumtaz. The injury statement (Exh.PM) and inquest report (Exh.PN) of Muhammad Nawaz were also prepared by him. He collected the blood-stained earth from the place of murder of Muhammad Nawaz and kept it in a sealed parcel vide memo Exh.PI. Blood-stained earth from the place of murder of Muhammad Mumtaz was taken into . possession vide memo Exh.PH. Three empty cartridges P.2/1-3 were take into possession and kept into a parcel vide memo. Exh.PJ. Mansha Khan Patwari P.W.2 prepared the site-plan Exh.PC and its duplicate Exh.PC/1 under the instructions of the police officer. Muhammad Yar FC produced before the investigator last-worn clothes of both the deceased which were taken into possession vide memo Exh.PE. On 21-4-1993 Dost Muhammad was arrested by the Inspector. The accused led to the .recovery of a .12 bore gun Pl from his house which was taken into possession vide memo Exh.PD. On 25-4-1988, Ahmad Yar was apprehended. On the next day, he too led to the recovery of his licensed gun P3 which was taken into possession vide memo Exh.PP. The reports of Chemical Examiner (Exh.PQ) and Serologist (Exh.PQ/1) were positive inasmuch as it was opined by the expert that the earth was stained with human-blood The report of the Director Firearms (Fxh.PR) was that the empties sent to him were fired from the .12 bore gun Pl.

5. Dr. Riaz Ahmed Awan (P.W.1) conducted the post-mortem examination upon the dead body of Muhammad Mumtaz on 12-4-1988 and noted the following injuries:

(1) Multiple firearm wounds 6 c.m. x 5 c.m. with inverted edges and . blackening of skin, going deep into the chest in centre about 12 c.m. below juggler fossa. (2) A firearm wound of exit with everted edges 1/2 c.m. x 1/2 c.m. on back of right chest 5 c.m. below right scapula. (3) A firearm wound of exit with everted edges 1/2 c.m. x 1/2 c.m. on the back of right chest about 4 c.m. below injury No.2. (4) A firearm wound of exit with everted edges 1/2 c.m. x 1/2 c.m. on back of right chest 5 c.m. below injury No.3. In the opinion of the Doctor, death occurred on account of shock and haemorrhage as a result. of Injuries Nos.1 to 4 which were sufficient to cause death in the ordinary course of nature. The injuries were caused with firearms. These were found to be ante-mortem. On the same day at about 10-30 a.m., the same Doctor conducted the post-mortem examination on the dead body of Muhammad Nawaz and noted the following injuries:

(1) Multiple firearm wounds of entry with inverted margins in an area of 12 c.m. x 6 c.m. on front of chest with three holes going into chest about 4 c.m. below neck. (2) A firearm wound of entry with inverted edges 3 c.m. x 3 c.m. with a plastic wad in it on left side of chest, 6 c.m. above the left nipple. (3) A firearm wound of entry on left shoulder outer side 1/2 c.m. x c.m. x muscle deep. The doctor opined that death was caused on account of shock and haemorrhage as a result of injuries No.1 to 3 which were sufficient to cause death in the ordinary course of nature. The injuries were ante-mortem and were caused by firearm. Doctor Mukhtar Ahmad (P.W.8) also medically examined Dost Muhammad on 12-4-1988 at 10-00 a.m. and observed the following injuries on him:

(1) A firearm wound 1/2 c.m. x 1/2 c.m. x going deep margins inverted on the, back of left thigh upper part, pellet recovered from the opposite side of thigh lying under the skin. (2) A firearm wound 3/4 c.m. x 3/4 c.m. x going deep margins inverted above the left heel, pellet recovered from the front of left lower leg, lower part lying under the skin. The probable duration of the injuries was opined to be within 24 hours. According to the Doctor, injuries were found to have been healed without any complication as such . there was no disability and discomfort to Dost Muhammad. The injuries, therefore, were declared to be simple.

6. Muhammad Riaz P.W.10, Shahbaz P.W.11 and Mst. Fatima P.W.12 appeared as eye-witnesses in support of the prosecution case. Dost Muhammad, appellant, denied the allegations levelled against him, in his statement under section 342, Cr.P.C. He deposed that he had been implicated on account of enmity. His plea was that Mst. Iqbal Begum, a sister of Muhammad Mumtaz and Muhammad Nawaz was grazing her cattle. The cattle went astray and damaged his field of fodder. He gave a beating to the woman. She went with a complaint to her brothers, who, in turn, while armed with guns and hatchet reached the spot and launched an attack upon him. In order to save his life, he ran away. He was fired at from behind while he was already running to save his life. According to the appellant, in fact, the assailants wanted to finish him and as such he returned the fire in his self -defence, otherwise, he would have been killed by them. Ahmad Yar (acquitted co-accused) denied the allegations levelled against him in his statement under section 342, Cr.P.C. He deposed that he was not present during the occurrence by taking the plea of alibi. However, no evidence was produced by the accused in their defence. The learned trial Judge believed the prosecution version to the extent of Dost Muhammad appellant, and rejected that of the defence for his conviction and sentence as already mentioned above.

7. It is forcefully contended by the learned counsel that there was no justification ,to turn down the well-based plea of the appellant inasmuch as he was injured during the occurrence and as such he, in exercise of his right of self-defence fired at the assailants to save his life. According to the learned counsel, if the appellant had not fired at the assailants, he would have been done to death there and then. In support of his plea, learned counsel has relied upon the evidence of P.W.1 and P.W.8. The admitted position is that the appellant was injured during the incident with a firearm. The complainant himself mentioned in the ~ F.I.R. that the appellant was also injured in cross firing. The learned counsel, therefore, argues that the appellant was well within his right to retaliate in the exercise of his right of self-defence and as such he had committed no offence on the face of record. In the alternative, it is argued by the learned counsel that from the facts and circumstances of the case, commission of offence under section 302, P.P.C. was not made out against the appellant and at worst conviction could only be registered against him under section 304, Part I, P.P.C. Learned counsel for the State adopted the reasons already given in his judgment by the learned trial Judge.

8. We have heard the learned counsel for the parties at considerable length and have also perused the record with their assistance. This is undoubtedly, a case of two versions. The first version was given by Muhammad Riaz P.W.10. Mst. Fatima P.W.11 and Shahbaz P.W.12 out and out supported Muhammad Riaz P.W.10. Muhammad Riaz testified that his sister Mst. Iqbal and mother Mst. Fatima were working in their field at the time of occurrence. Dost Muhammad appellant led his. cattle towards his field on the western side of his Dera. His brother Muhammad Mumtaz was taking his cattle towards the canal to water them. On seeing the cattle while damaging his crop, Muhammad Mumtaz went there and tried to drive them away whereupon Dost Muhammad shouted and fired which hit Muhammad Mumtaz on his chest. Muhammad Nawaz who was present near the cattleshed, saw his brother while falling down and he also ran towards him in order to help him but Dost Muhammad fired a second shot which 'injured Muhammad Nawaz on his chest. Muhammad Mumtaz died on the spot while Muhammad Nawaz succumbed to his injuries after the incident. Dost Muhammad fled away with his weapon. This testimony of Muhammad Riaz was substantially corroborated by Shahbaz and Mst. Fatima. The medical evidence lends full corroboration to the ocular account. The prosecution in our view, has succeeded to prove its case against Dost Muhammad beyond doubt for killing Muhammad Mumtaz and Muhammad Nawaz. The proved fact that the appellant received fire aim injuries on his back while running from the spot will not at all make it a case of murder pure and simple within the meaning of section 302, P.P.C. The offence having been committed, therefore, may fall within the ambit of section 304, Part I, P.P.C. This is, how, the learned counsel for the appellant argued his case in the alternative. The medical evidence also lends support to the plea that the appellant, Dost Muhammad was injured when he was not facing the complainant party but was retreating from spot. This inference can certainly be drawn from the medical evidence when read together as a whole alongwith the testimony of eye-witnesses. This fact, in our view, is in line with the defence plea of Dost Muhammad. We, accordingly, hold that both the parties were armed with deadly weapons like fire-arms. We are, therefore, not convinced with the explanation of the prosecution about the injuries which were found on Dost Muhammad, we are, inclined to hold that Dost Muhammad acted in the exercise of his right of self-defence but he definitely exceeded his right in firing at the deceased. Dost Muhammad has admitted to have killed Muhammad Mumtaz and Muhammad Nawaz by firing at them in his statement before the trial Court. This being so, no further evidence is needed to prove the charge that Dost Muhammad committed double murder. This is, however certainly a case where the appellant exceeded his right of self-defence as already established by the facts and circumstances of this case when they are closely considered in the light of evidence of Dr. Mukhtar Ahmad P.W.8 and eye witnesses. After killing Muhammad Nawaz, in our view, definitely the appellant went beyond the limits of law in the exercise of his right of self-defence. The injuries on Muhammad Nawaz (deceased) would support the plea that he was at some distance from the appellant and was advancing towards him. In the given situation, he could avoid the killing of Muhammad Nawaz if he had acted as a prudent man in causing a minimum harm to the complainant party. He could fire just to frighten him and not to kill him.

9. The result of the above discussion is that the conviction and sentence of the appellant under section 302, P.P.C. is not maintainable and it is accordingly set aside. Nevertheless, he is convicted under section 304, Part I, B P.P.C. and sentenced to imprisonment for life with a fine of Rs.1,00,000 (Rupees on lac) on two counts for exceeding his right of self-defence. In case of default in the payment of fine, the appellant shall have to undergo further R.I. for 3 years. In case, the fine is realized, the whole of it shall be paid as compensation to the legal heirs of both the deceased in equal shares. The sentences shall run concurrently. With the above modification in the conviction and sentence, the appeal of the appellant is partly allowed. The death sentence of Dost Muhammad is Not confirmed. The Murder Reference is answered in the negative. 10. - In view of the above, there is no substance in the revision petition which is hereby dismissed. . N.H.Q./D-28/L-- Order accordingly.