1. CORNELEIUS, J.-The appellant is one Sultan Muhammad, whose conviction under section 3t)?, P.P.C.
2. And sentence of death awarded by an Additional Sessions Judge of Peshawar were confirmed by the Judicial Commissioner of the N.-W.F.P, along with conviction, and sentences on other minor charges. We are informed that tile death sentence has been commuted to transportation for life by the Provincial Government.
3. Sultan k1uhammad's petition for appeal leave to appeal., which was filed through the jail was allowed, for the specific purpose of examining, whether adequate consideration had been given to the, point of the right of` private defence, in fag our of tile appellant. On examining the record, we find that the plea of self-defence was not, raised at any time during the trial or the, preceding enquiry on behalf of the appellant Certain matter, appear in the prosecution evidence which go to support such a possibility, and it therefore becomes necessary to consider whether, and if so to what extent, the act of the accused is covered by the right in question.
4. It has been found by the learned Judicial Commissoner, that Sultan Muhammad with a single shot from, a rifle, voluntarily caused the death of one Khuban, inside the latter's kotha a small room measuring no more than about 12' x 6', at about mid-day on the 19th August 1950. They have found also that Sultan Muhammad entry in to the kotha was an act of house-trespass and that the object such trespass, namely to commit adultery with Khuban`s wife Mst. Sabarjan had been accomplished just before Khuban unexpectedly returned from his field to the house. Acting on an admission by counsel for the appellant that Sultan Muhammad had shot Khuban when he was surprised inside the kotha and had thereafter taken to his heels, they held that the: killing was without any justification whatsoever. It should be mentioned that the defence taken by Sultan Muhammad himself` eves the he was completely innocent, and that Khuban's death was caused by his own enemies. This plea is unsupported by evidence, excepting the statement of Mst.
5. Sabarjan to the effect that Khuhan was shot at the door of his kotha by someone who tired from outside, and that she also was stabbed by someone; whom she could not name or describe. The falsity of this version was demonstrated with tile aid of a previous statement of this witness recorded under section 164, Cr. P. C. Which will be considered in greater deal presently. AS for the defence plea, it was entirely disbelieved by the Courts below, and, as has been seen, counsel for the appellant was constrained to abandon it in arguments before the learned Judicial Commissioner. It is only necessary to add that, apart from the direct evidence which will be discussed presently, several circumstances of a cogent nature were available to establish the identity of Sultan Muhammad as the culprit.
6. The material appearing in the prosecution case which goes to support the possibility of the accused having acted in private defence is as follows. There is firstly a confession by Sultan Muhammad before a Second Class Magistrate Exh. P. W., and secondly a statement to Sher Muhammad Khan, Lambardar, P. W. 11, that "he (the accused) had fired at and hit Khuban because the latter was killing him". As regards the confession, Exh. P. W., we do not find upon the face of the document Exh. P. W., that the precautions and formalities required by law (section 164, Criminal Procedure Code) were duly taken, and it is doubtful whether the defect is cured by the mere statement of the recording Magistrate, a Naib-Tehsildar, that "all formalities were duly observed".
7. As the learned counsel for the appellant wished to rely upon this statement, which his client had repudiated as having been obtained from him by coercion, we reproduce below that part of it which is relevant to the question from decision: - "I was about to return (i.e., to, leave the house) when Khuban, husband of Sabarjan entered the house. He enquired from me as to what I was doing ; and why the mat had been spread there. I told him in reply that his wife had spread the mat and for that very reason, I was about to go out, when he came in. In the meantime, Khuban drew out a dagger, whereupon I enquired from him as to what he was doing. Mst. Sabarjan caught hold of him in order to save me. Accordingly Khuban began to deal dagger blows on his wife and having felled her down on the ground, proceeded towards me in order to stab me. I had a loaded gun. I caught his dagger with my one hand, while holding my gun in the other. When I got assured that he was not going to spare me, I fired a gun- shot at him, whereby the deceased fell down to the ground, while I made good my escape."
8. Besides the statement of Sabarjan there is another piece of direct evidence regarding the actual occurrence viz. a dying declaration by Khuban recorded within 15 minutes of the occurrence, by a police officer which is Exh. P. B. The description given in this document of the occurrence is as follows: - "When I entered the house, my wife Mst. Sabarjan caught hold of me from behind and shouted out to Sultan Muhammad, who was hiding in a corner, to clear off. I having rescued myself, picked up a dagger, lying on a charpai, and having dealt a blow to my wife Mst. Sabarjan, made her to get back. During this struggle, Sultan Muhammad while running away, fired at and wounded me with his gun."
9. Sabjrjan was herself undoubtedly an eye-witness of the occurrence, and admitted, albeit under coercion, having said in her statement recorded under section 164, Cr. P. C.
10. "On entering the house my husband started towards the corner where Sultan Muhammad was hiding. I caught hold of my husband fearing that he and the accused might kill each other. My husband in the meantime picked up a dagger which was lying on a charpai and stabbed me with it. The accused who was armed with a gun fired at my husband and hit him and then took to his heels."
11. This earlier statement is clearly inconsistent with her evidence at the trial, to which reference has already been made, and which must therefore be rejected.
12. The dying declaration of the husband is, in our opinion, strongly supported by certain circumstances appearing clearly in the case, and which also have the effect of rendering the version contained in the accused's retracted confession incapable of acceptance. The first such circumstance is that despite the fact that the incident occurred in a very small room, neither the clothes of the deceased, nor the skin or flesh at the wound of entrance created by the bullet showed any signs of charring or blackening. A heavy fire-arm viz. a .303 rifle was used, and having regard to the conditions, we feel that this circumstance by itself justifies the inference that the distance between the muzzle of the gun and the deceased's shoulder where the bullet entered his body could not have been materially less than five feet. This excludes all possibility of the shot having been fired while the two men were at grips with each other, as stated in Sultan Muhammad's confession. Again the place where the deceased fell on being shot is marked by a blood cloth on the floor of the kotha viz is approximately four feet from the corner indicated in the plan Exh. P. C. As the place where Sultan Muhammad concealed himself before Khuban entered the house. Clearly, the shot could not have been fired from this corner and the impression is at once gained that in the time which it took Khuban to shake off his wife, Sultan Muhammad had left his corner and was on his way to the exit from the kotha in the opposite corner before Khuban could turn on him. In those circumstances having by far the more effective weapon with the longer reach, and being able to escape out of the room through the door without obstruction, there was no necessity for him to fire at Khuban at all. This is precisely what is stated to the dying declaration Exh. P. B. In the words "during this struggle, Sultan Muhammad while running away fired at me", and there need, therefore, be no doubt that the statement appearing in the retracted confession and from the evidence of the Lambardar, that Sultan Muhammad fired when Khuban was about to kill him, have been rightly disregarded by the Courts below.
13. In our opinion the correctness of the appellant's conviction for the offence of murder admits of no doubt. We accordingly dismiss this appeal.