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Criminal Appeal No. 114 of 1983, heard on 8th November, 1986.

(a) Penal Code (XLV of 1860)‑‑

‑‑‑S. 302‑‑Death due to fire‑arm injuries‑‑Crime empties recovered from the spot and sent to Malkhana on the very day of occurrence‑‑Gun recovered at a later date and both gun and empties sent together to forensic expert‑‑Held, had empties been sent earlier position would have been different; but positive report of expert was of no help to prosecution in circumstance.

(b) Penal Code (XLV of 1860)‑

‑‑‑Ss. 302 & 304, Part I‑‑Criminal Procedure Code (V of 1898), S.382‑B‑‑Sudden quarrel between accused and deceased‑‑Circumstance showing shot to have been fired by accused in self‑defence‑‑Conviction under S. 302, P.P.C. altered to one under S. 304, Part I, P.P.C. and sentence of life imprisonment reduced to eight years' R.I.‑‑Benefit under 5.382‑B also extended.

Ijaz Hussain Batalvi and M.A. Zafar for Appellant. Sh. Ehsan Ahmad for the State.

Ashiq Hussain Rizvi for the Complainant.

Dates of hearing: 26th, 27th October and 8th November, 1986.

Bashir Ahmad (35), Rashid Ahmad (32) and Muhammad Anwar (30) sons of Ali Muhammad were tried for the murder of Muhammad Aslam and for having murderously assaulted Irshad Bibi, Bashiran Bibi, Nazeeran Bibi, Sajida Parveen, Munawar Hussain and Muhammad Khaliq PWs. On 16‑1‑1983, Additional Sessions Judge, Faisalabad convicted Bashir Ahmad under section 302/307 P.P.C. and sentenced him to imprisonment for life with a fine of Rs.10,000 in default to undergo two years' R.I. further. The fine, if realised was ordered to be paid as compensation to the heirs of the deceased. On the second count, he was sentenced to three years' R.I. with a fine of Rs.1,000 in default to suffer one year's R.I. Fine, if realised be paid to the injured. The remaining three accused were acquitted of the charge. The appeal of the convict and the revision filed by Sultan Ahmad, informant, are before me. .

2. Muhammad Aslam (deceased), his brother Muhammad Iqbal had joint cultivation with their uncle Sultan Ahmad (informant). They had a common cattle‑shed which was adjacent to the house of the accused. The drainage water of accused's house used to pass in front of their cattle‑shed. On 28‑7‑1980, Sultan Ahmad, and his nephew Muhammad Aslam stopped them, upon which, the accused abused and pushed them aside and said that they would not stop the flow of water. The complainant party blocked the drain, upon which, the accused threatened to avenge their conduct. According to the prosecution on 31‑7‑1980 at 4 p.m. Muhammad Aslam (deceased) came to his Haveli with fodder for the cattle, just then, Bashir Ahmad armed with a .12 bore gun, Muhammad Anwar and Rasheed Ahmad empty handed came out of their house. The last mentioned two incited Bashir Ahmad not to spare Muhammad Aslam and should be taught a lesson for abusing and hitting them, Bashir Ahmad fired a shot at Muhammad Aslam which hit him on the face and chest. Thereafter, Bashir Ahmad fired the second shot which hit Mst. Irshad Bibi, Bashiran Bibi, Naziran Bibi, Sajida Parveen, Munawar Hussain a young boy, and Abdul Khaliq the passers‑by, thereafter the accused went inside their house. Muhammad Aslam succumbed to the injuries at the spot. Besides Sultan Ahmad, the occurrence was also witnessed by Mukhtar Ahmad and Nazeer Ahmad. Leaving the dead at the spot, PW 7 Sultan Ahmad reached Police Station Sumandri after covering a distance of twelve kilometer, there he made FIR Ex.P.T. to PW 10 Sana Ullah SI at 4‑30 p.m. After registering the case, the SI went to the place of occurrence, prepared the necessary documents and sent the dead body for its post‑mortem examination. From the place of occurrence, he also collected two crime empties P.3/1‑2, which were made into a sealed parcel through recovery memo. Ex.P.R. attested , by PW5 Muhammad Yaqoob and Muhammad Iqbal (given up as unnecessary) besides the investigating officer.

3. On 31‑7‑1980 at 6‑30 p.m. Dr. Ghulam Rasool Medical Officer, Civil Hospital, Samundri, examined the injured and found the following injuries on them:

Mst. Irshad Bibi

(1) A fire‑arm wound cm x cm x skin deep upon right corner. of fore‑head with swelling 3 cm x 3 cm around it. Its margins were inverted neither black nor scorched.

(2) A fire‑arm wound cm x cm x not probed upon anterior abdominal wall in right middle portion of abdomen, 7 cm from right Ant: sup: iliac, spine. Its margins were inverted neither black nor scorched.

Mst. Naziran

A fire‑arm wound cm x cm x bone deep upon front and inner side of right knee. Its margins were neither black nor scorched.

Mst. Bashiran

A fire‑arm wound cm x cm x skin deep upon right side of face. Ist margins were neither black nor scorched.

Sajida Parveen

A fire‑arm wound cm x cm x skin deep upon left lower eye‑lid with swelling of whole of left eye‑lid. Its margins were neither scorched nor black.

Munawar Hussain

A fire‑arm wound cm x cm x not probed upon right side of abdomen.

Muhammad Khaliq

(1) A fire‑arm wound em x c.m. x not probed upon forehead just above inner end of left eye brow. Swelling of whole of left upper eye lid.

(2) A fire‑arm wound cm x cm x skin deep upon left side of scalp 11 cm from left ear.

(3) A fire‑arm wound cm x cm x skin deep upon left side of scalp about nine em from left ear.

On 1‑8‑1980 at 7 a.m. the doctor also held the autopsy on the dead body of Muhamad Aslam and found the following injuries on it:‑

(1) Fifteen fire‑arm wounds 1/3 em x 1/3 cm x bone deep and muscle deep except one which was 2 cm x 2 em x muscle deep upon left angle of mouth, three upon forehead, four upon right ear (through and through), four on right side of face and three on left side of face. Margins of all wounds were inverted and were black in colour.

(2) Thirty fire‑arm wounds 1/3 cm x 1/3 em x muscle deep, bone deep and chest cavity deep upon front of both sides of chest upper 1/3rd front of shoulders and front and sides of neck. Margins of these wounds were inverted and black in colour.

In his opinion, death occurred due to shock and haemorrhage caused by injury No.2 which hit the aorta and lung.

4. PW 10 Sanaullah S.I. arrested the accused on 3‑8‑1980. Same day Bashir Ahmad produced before him his licensed gun P.4, it was taken into possession through memo Ex.P.S. attested by PW9 Nazir Ahmad and Bashir Ahmad (given up as unnecessary) besides the investigating officer. The investigation was completed and the accused were tried in due course.

5. At the trial, all accused denied guilt and explaining the case against him, Bashir Ahmad made the following statement:‑

"Hand pump is installed in our residential Ihata and its water falls in a small ditch dug out by us in the main street and whenever the ditch water overflows, it runs into a drain which passes in front of the Haveli of the complainant party. Same is the case with the other residents of the village. The deceased wanted to demolish the drain but I resisted and in my absence, he demolished it but before the occurrence, I had reconstructed it and the water again started flowing into it. On the day of occurrence when Aslam deceased came from his fields, he saw the water flowing in the drain. He took an exception to it, went inside his Haveli, came out with a spear and started hurling abuses. I was present in my house. I came out with my licensed gun for my protection and asked him to desist from abusing me but he further felt infuriated and proceeded towards me to assault me. I out of fear of receiving a fatal injury at the hand of the deceased with spear and to save my life fired one shot which hit him and its stray pellets hit some of the passers‑by in the street. If I had not fired at the deceased, he would have killed me."

The remaining accused denied their presence at the spot No accused led evidence in .defence.

6. Disbelieving Bashir Ahmad's version and relying on the evidence of the three eye‑witnesses namely PW 7 Sultan Ahmad, PW 8 Abdul Khaliq and PW 9 Nzir Ahmad trial Court found Bashir Ahmad alone guilty of the offences. It concluded that the prosecution was unable to link the remaining three accused with the crime. It, therefore, gave them the benefit of doubt and acquitted them.

7. Criticizing the finding, learned counsel for the appellant contended that there were circumstances appearing in the evidence of the case which lent ample support to the statement of the appellant which the trial Court has not appreciated, instead, placed reliance on the three eye‑witnesses who were closely related to the deceased. In support of the argument, it was contended that out of the six injured persons, prosecution produced only one namely PW 8 Abdul Khaliq and did not produce Irshad Bibi, Mst. Naziran, Bashiran, Mst. Sajida and Munawar. Evidence of PW Abdul Khaliq would show that he had. not seen what transpired between the appellant and the deceased before the firing. However, his evidence is exaggerated because the position taken up by him was that he was passing through the bazar on his way home from the fields, but before the police wherein, he took up a different position and had said that he came out of the house after hearing the alarm and thereafter received the injuries. As such, his statement before the police confirms that he was not aware of what transpired between the parties before the shot was fired. The witness said that after receipt of the injuries, he became unconscious. It may, however, be added at this stage that he was confronted with affidavit Exh. D.C. which was alleged to be his statement exonerating the accused. Though, the witness admitted his signatures on the affidavit. but he denied its contents yet he did not explain how his signatures were obtained. This to my mind, cast adverse reflection on his evidence. The remaining two eye‑witnesses are closely related to the deceased and are not injured. In so far as PW 9 Nazeer Ahmad is concerned, he too has not mentioned in his statement before the police that he was passing through the Bazar and was attracted towards the spot. At the trial, this witness asserted that Sultan Ahmad and Mukhtar Ahmad had witnessed the occurrence but in his statement before the police, their names did not figure. The question of his presence at the spot was also a doubtful matter. Prosecution is left with the statement of PW Sultan Ahmad who claimed to have seen the alleged occurrence from start to finish but it is noteworthy that he has not suffered any injury. Admittedly, he was inside the Haveli and would be so because he claimed to be seventy years old. In all probability, he too may not have seen the occurrence from start to finish and may have come out after the shot was fired.

8. The sole question for determination in this appeal would be whether a case of the exercise of right of self‑defence could be spelled out of the circumstances appearing in the prosecution evidence, to my mind, it is not so. However, the circumstances in the evidence do go to show that the dispute over the reconstruction of the drain developed in a sudden fight and there was no premeditation. Admittedly, the only dispute between the parties was the drainage of appellant's hand‑pump water which had been flowing and had never been objected to either by the deceased or for that matter by any other villager. It is an admitted fact that a drain did exist but one fine morning, the complainant party took an objection to it which was resisted by the accused. Under the circumstances, it appears that since the accused rearranged the drain which the complainant had demolished, it provoked them, upon which, there was an altercation and a sudden flare up in which both sides pulled out their weapons which were within their immediate reach and before the deceased could inflict a spear blow, the appellant fired at him. It is also noteworthy that the single shot fired by the appellant could also cause injuries to the passersby who came in the range of the shot. The prosecution story about the second shot fired by the appellant does not appeal to reason because it is in the evidence of the informant that after the first shot, the deceased fell down and thereafter, the appellant re‑loaded the single barrel gun and fired the second shot at the deceased. Had it been so, then he would have aimed at a lower level because the deceased had fallen down, in that case, there would have been more injuries to the deceased on different parts of the body and none to the passersby who were away from the deceased. The fact that passersby have been injured shows that the deceased received the injuries while he was standing and the passersby were also in the range of the shot fired at him. Even the medical Evidence did .not support the prosecution version i.e. the second shot was fired at the deceased while he lay on the ground. It may also be mentioned here that out of the six injured witnesses, prosecution produced only PW 8 Abdul Khaliq whose evidence has already been discussed by me.

9. In so far as the recovery of two empties from the spot was concerned, suffice it to say that although these were deposited in the Malkhana on the day of occurrence i.e 31‑7‑1981 but were sent to the expert on the day, the gun was recovered i.e. 3‑8‑1981 and the same day, its parcel had reached the Malkhana which was sent to the expert on 11‑8‑1981. True, the empties and the gun were not A sent together, nevertheless, the gun had been recovered the day, the empties were sent to the expert. Had the empties been sent a day earlier, then the position may have been different. Under the circumstances, the positive report of the expert was of no help to the prosecution. Even otherwise, from the circumstances appearing in the evidence of this case, discussed above, a single shot appears to have been fired by the appellant. No doubt, the investigating officer admitted under cross‑examination that the plea of self‑defence was taken at the earliest opportunity by the accused, but in view of the circumstances appearing in the evidence of this case which have been discussed in this judgment, I am of the view, that it was a case of a sudden fight. I, therefore, alter the conviction from section 302, P.P.C. to section 304 Part I P.P.C. and reduce the sentence of the appellant to eight years' R.I. Sentence of fine is, however, B maintained. His conviction and sentence under section 307 P.P.C. is also maintained. Both the sentences will, however, run concurrently. The appellant will also be entitled to the benefit of section 382‑B, Cr.P.C.

K . B . A . / B‑30/ L Appeal partly accepted

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