Four brothers namely Noor Muhammad aged 45, Muhammad Sharif aged 20 yeart, Diam aged 37 years, Allah Yar aged 40 years, their father Lakhna, Manzoor and Ramzan were accused of having formed themselves into an unlawful assembly and in furtherance of the common object which, committed the offence of rioting, murder of on Shahamand son Sultan and murderous assault on Muhammad son of Hisham (P. W. 8 Lakhna died before commencement of the trial. The rest were put on before the learned Additional Sessions Judge, Multan; vide judgment dated 16-10-1976, he acquitted all except appellants Noor Muhammad a Muhammad Sharif who have been convicted under sections 302 & 307. P. P.C respectively. The former has been sentenced to imprison vent for life and fine of Rs. 5,000 or in default further R. I. For two years one half of amount of fine, if realized, will go to the heirs of the deceased and the latter to 3 years' R. I. And a fine of Rs. 500 or in default further R. I. For one year. They have appealed.
2. Occurrence allegedly took place at dhalli degar wela on 8-8-1972 in the area of Chak No. 15/9-R Tehsil Kabirwala 13 miles from Police Station, Tulamba. The matter was reported to the police by Pehlwan (P. W. 7) on the same day at 10.30 p. m. F. I. R. Exh. P. A. Was prepared by Nazir Ahmad S. I.
Co-accused Ramzan owed some money to Muhammad P. W. Latter demanded back the money and had even given Ramzan some slaps. On the day of occurrence Pehlwan (P. W. 7) was returning from Chak No. 14,19-R after witnessing a wrestling bout. The three accused persons, presumably on account of the beating given to Ramzan, gave beating to Pehlwan. P. W. Pehlwan (P. W. 7) reached his house and informed of the incident inter alia to his uncle Shahamand deceased and to his sister's husband Muhammad P. W. The house of Lakhna co-accused is close to the house of the complainant party. Lakhna was sitting on the bank of khal near his house. Shabamand deceased complained to him about the incident, i.e. The beating given to Peblwan P. W. By Ramzan, etc. Lakhna told him that they had taken the revenge of earlier incident in which Ramzan had been beaten. He approved of the action of Ramzan etc. Shahamand deceased asked Lakhna to be careful in future or they would deal with them. Lakhna exhorted his sons saying that they (accused party) could settle the matter there and then. The two appellants armed with guns and the acquitted co-accused armed with dangs appeared there. Two appellants fired shot each hitting the deceased and Muhammad P. W. The deceased fell down and succumbed to the injuries.
Muhammad P. W. Was taken to Civil Hospital, Khanewal. The occurrence besides Pehlwan (P. W. 7) was witnessed by Noor Muhammad (P. W. 9) and Ghulam son of Waryam, Haitam son of Shera and Muhammad son of Bahawal (latter 3 not examined).
3. Nazir Ahmad S. I. (P. W. 10) conducted the necessary investigation in this case. After recording the F.I.R. He went to the spot and collected blood-stained earth from there and made it into a sealed parcel vide memo Exh. P. C. He found at the spot an empty cartridge of 12 bore which was taken into possession and made into a sealed parcel vide memo Exh. P. B. He held- inquest in respect of the death of Shahamand deceased, drew up report Exh. P. J/1 and injury statement Exh. P. J. Lakhna co-accused was arrested by him on 11-8-1972. The two appellants inter alia were arrested on 12-8- 1972. Co-accused Muhammad Ramzan led to the recovery of two guns Exh. P. 6 and P. 7, the latter with its licence F/A, from his house which were taken into possession and made into a sealed parcel vide memo Exh. P. F. 1 and P. F.
2. He got the site plan Exh. P. H. And P. H/1 prepared by Nawab Khan Patwari. Lakhna co-accused at the time of his arrest was found injured. He prepared his injury statement Exh. P. K. And got him medically examined.
4. Dr. Abdul Rashid Khan (P. W. 4) conducted the post-mortem examination on the dead body of Shahamand deceased. Dr. Zafar-ul-Haque examined Lakhna co-accused. Muhammad P. W. Was examined by Dr. Zahoor-ul-Bhatti ((P. W. 11).
5. Shahamand deceased was found to have sustained seven gunshot injuries (described fully it the judgment of the learned trial Judge). One on the tip of nostal, the other on the left deltoid muscle going inside, the third on the, upper part of the chest, the fourth on the pinna of left ear, the fifth on left side of head behind left ear, the sixth on the left side of the neck and the last on the front of chest. Each of injuries Nos. 2 and 3 was comprised of multiple pellet wounds. Thorax was injured below injuries Nos. 3 and 7. Pleura was injured against injury No. 3. Larynx and trachea were injured under injury No. 6. Left lung was injured by injuries No. 3. Death in the opinion of the doctor occurred due to shock, tremendous bleeding by injuries to larynx and trachea and rupture of left lung caused by injuries Nos. 3 and 6. The injuries were sufficient to cause death in the ordinary course of nature. Probable time between injury and death was an hour or may be immediate and between the death and post-mortem examination about 24 hours. The deceased in the opinion of the doctor was fired at from a distance of 30 yards.
6. Lakhna co-accused had received four injuries, contused wound on the back at outer part of right hand an abrasion on the back of right wrist ; an abrasion on the back of lower part of right forearm and a contusion at the back at upper part of the right chest. All injuries were simple and caused within duration of 72 hours. Muhammad P. W. Bad sustained 4 gunshot wounds. First on the left elbow joint, the other on the middle o1 left buttock, the third on the left side of abdomen and the 4th on the lower part of the front of right forearm.
7. Appellants at the trial pleaded not guilty and refuted the allegations They took up the position that they had been involved due to enmity will the P. Ws. The same was the position of acquitted co-accused except Manzoor. He admitted his own presence and the presence of co-accused Lakhna at the spot. He stated "Lakhna was overpowered by Shahamand deceased and Muhammad P. W. Who both gave him dang blows as a result of which he fell down. Both of them were aiming further blows to cause his death. I picked up the licensed gun and in the exercise of the right a defence of Lakhna fired at them from the door of our house".
8. Prosecution at the trial relied on the ocular evidence given b Pehlwan (P. W. 7), Muhammad (P. W.
8) and Noor Muhammad (P. W. 9) recoveries of gun at the instance of Ramzan co-accused; motive and finally the medical evidence. Learned trial Judge accepted the prosecution case its entirety except that he found that the recoveries of the guns are of no avails to the prosecution. He rejected the defence plea as being improbable. He accepted the prosecution case that the fatal shot at Shahamand decease was fired by the appellant Noor Muhammad while Muhammad P. W was injured by appellant Muhammad Sharif. They have accordingly been convicted under sections 302 and 307, P. P. C. Respectively. In the case of acquitted co-accused be has taken the view that they did not active participate even on the exhorting of Lakhna co-accused and therefore cannot be said to share intention with the two appellants.
9. I have heard the learned counsel for the parties and have go through the record carefully.
10. Two questions need determination in this case. Firstly if appellants are entitled to claim the right of self-defence as pleaded co-accused Manzoor. If answer to this question is in the negative secondly whether the participation of the appellants in the occurrence is establish and they have been convicted correctly. In. This case prosecution has examined three witnesses. Pehlwan (P. W. 7) was the nephew of the deceased Muhammad P. W. Is sister's husband of Pehlwan. The only interest shown regarding Noon Muhammad (P. W. 9) is that he had joint cultivation the deceased. The presence of Muhammad P. W. At the spot is hardly doubt as he was injured in the occurrence. I do not find if there existed any long drawn enmity between the parties. Manzoor admits the occurrence. He was the servant of Lakhna co-accused. It cannot easily be accepted that the P. Ws.
Would substitute the present appellants for the real culprits. The real uncle of Pehlwan P. W. Has been done to death. Muhammad P. W. Had himself suffered injuries in the occurrence. Noor Muhammad P. W. Had no motive to implicate the appellants falsely. Therefore in so far as the participation of the 2 appellants is concerned, the same is not open to air doubt. Discrepancies pointed out in the prosecution case are not of any serious consequences. If in the F.I.R. It has not been described as to which particular shot was fired by whom; the witnesses could at the trial provide these details. Pehlwan P. W. Is the author of the F. I. R. Muhammad P. W. Was injured. He was the best witness to state as to who had fired at him. Only two shots were fired. Once the participation of the two appellants is accepted and it is known through the mouth of Muhammad P. W. As to who had fired at him, no difficulty is left attributing the mortal shot to appellant Noor Muhammad. This aspect of the case therefore does not detain me any more.
11. The second question however calls for some consideration. It is true that the two appellants have not pleaded self-defence. It is however well --settled rule that if such plea can be spelt out from the evidence and the 4 circumstances of the case, the accused should not be denied the benefit of the same only because he has not expressly pleaded it. In the instant case one of the co-accused namely Manzoor has claimed right of self-defence. In the circumstances if I find that the plea set up by Manzoor is reasonably. Plausible, benefit of the same will be given to the two appellants.
12. This brings me to the plea of self-defence set up by Manzoor. Before examining the merits of the plea I may notice that in cases where two versions are put forward the duty of the Court is to review the entire evidence and circumstances at the close, before arriving at a conclusion regarding the truth or falsity of the defence plea. All the factors favouring the belief in the accusation must be placed side by side to the corresponding factors favouring the plea of defence and the total effect should be estimated in relation to two questions, viz. :
(i) Is the explanation of the accused satisfactorily established by the evidence and circumstances appearing in the case ?
(ii) If the answer to question No. 1 be in the negative, is there yet a reasonable possibility. That his explanation may be true, so as to cast al reasonable doubt upon the-prosecution case?
13. In the instant case the prosecution's own story is that Pehlwan P. W. Had been given fists and kick blows by Ramzan, Manzoor and appellant Sharif when he was on his way after seeing the wrestling bout. His uncle Shahamand deceased, Muhammad P. W. Muhammad son of Bahawal, Ghulam and Haitam were present. When Shahamand complained to Lakhna. The Occurrence according to prosecution started when Lakhna did not listen to them and instead exhorted his sons inter alia the two appellants. And his servant Manzoor and Ramzan co-accused to deal with the complainant party however according to the defence Lakhna was attacked by Muhammad and Shahamand deceased. He was given long blows by Muhammad and Shahamand deceased. After he had fallen down they had been fired at the accused party. Injuries on the person of Lakhna have throughout been suppressed. According to the Investigating Officer he was arrested on 11-8-1972.
He was found injured, If this was the fact, one may infer that be might have suffered the injuries by a friendly hand or in some other occurrence. However I find that the investigating Officer made an effort to suppress the manner of arrest of Lakhna. According to P. W. 9 Lakhna was arrested by the police from his house on the day of occurrence. At the time of arrest this witness had noticed an injury on his person. I am therefore, inclined to hold that Lakhna sustained injuries in the occurrence and the prosecution has unsuccessfully tried to suppress his injuries. He was examined by Dr. Zafarulhaq on 11-8-1972. His injuries were found of the duration of 72 hours. This aspect therefore gives some support to the defence version. Motive set up is a trivial dispute over the return of small sum of Rs.
20. The complainant party in the first instance had given beating to Ramzan co- accused. The accused party then retaliated and gave beating the Pehlwan P. W. Pehlwan P. W.
Narrated the incident to the deceased and Muhammad P. W. It cannot therefore be accepted that they would rest content by simply bringing this matter to the notice of Lakhna co-accused. They in all probability, must have assumed a posture of threat and executing the same injured Lakhna co- accused. For all this I am inclined to hold that the deceased and Muhammad P. W. Were fired at after the complainant part had injured Lakhna co-accused.
14. This brings me to the question whether in the circumstance the appellants bad exceeded this right. In the case of appellant Muhammad Sharif the question is only of academic interest. He was sentenced to three years' R.I. And was not released on bail pending appeal in this Court. I am informed that he has completed the term of imprisonment and had bee released. I am therefore left with the case of appellant Door Muhammad alone. Under section 97 of P. P. C. Every person has a right, subject to lit restrictions contained in section 99, P. P. C. To defend his own body and the body of any other person against any offence effecting human body. Under section 100, P. P. C.
Such a right can extend to the causing of death of the assailant or of any other harm to the assailant if the offence which occasion the exercise of the right is such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. Under section 99, P. P. C. The restriction imposed is that tire right of private defence in no case extends to the inflicting of more harm than is necessary to inflict for the purpose Of defence.
The case in hand when examined in the light of these statutory provisions I find that appellant Noor Muhammad though had a right of defence of the person of his father had exceeded this right. The injuries on the person of the deceased are on the neck and the upper part of the body. He could have achieved the result of scaring away the assailants by firing at the lower part of the body In the circumstances therefore conviction of the appellant under section 302 P. P. C cannot be sustained. His conviction under section 302, P. P C. Set aside and he is convicted under section 304, Part I, P. P. C. In the matter, of sentence I feel ends of justice will be met if he is sentenced to ten years' R.I and a fine of Rs. 5,000 or in default further R. I. For two years. The amount of fine, if realized, will be paid to the heirs of the deceased. Appeal stands disposed of in the above terms.