SHAH ZAMAN BABAR, J.-Zardad, aged 51 years (Sub-Inspector of Police under suspension), his brother Mr. Akbar, aged 56 years, school teacher, both sons of Muhammad Khan, residents of Nangal Dakhli, Lora, Police Station Lora, Tehsil Abbottabad, District Hazara, stood trial under section 302/34, P. P. C. For the murder of Abdur Rehman Khan and his brother Muhammad Zaman, both sons of Samandur; Khan of Lora, which occurred on 17th August 1967, at about 11 a.m. In the fields of village Nangal. The trial was held by Sessions Judge, Hazara, who by his judgment dated 25-11-68, acquitted Mir Akbar accused and convicted Zardad accused under section 302, P. P. C. (two counts), and sentences him to death under each count, subject to confirmation of the sentence by the High Court.
2. Zardad has come up on appeal. Proceedings under section 374, Cr. P. C. For confirmation of the death sentences, have also been submitted. This judgment will dispose of the appeal and the murder reference.
3. Zardad appellant was posted as additional S. H. O. At Police Station Saddar, Peshawar. He was on 10 days leave at his village during the days of occurrence. He also brought the service revolver No. 334372 with him. Mir Akbar (acquitted accused) was a Lambardar as well as schoolmaster for villages Kass, Nangal, Lora and Namb. There had been civil litigation of a suit for declaration with respect to Khasra Nos. 1268 and 1270, measuring 91 kanals 13 marlas situate in the area of Lora between Muhammad Zaman deceased and others on one side and Zardad, Mir Akbar, sons of Muhammad and others, on the other side. Mir Akbar, Zardad and others defendant-appellants were successful in their appeal before the District Judge, Hazara, vide judgment (copy Exh. D.D at pages 24 and 25 of the print book) dated 8-7-67.
4. On 17-8-67 at about 11 a. m. Muhammad Yaqub, P. W. 11 (on leave from 76 Armoured Workshop, E.
M. E. Company, Multan) had gone to the graveyard to offer Fateha at the grave of his father.
Muhammad Yaqub was attracted by a noise in the vicinity of the house of one Zardad, son of Painda Khan. He saw Zardad and Mir Akbar accused exchang--ing abuses with some women.
Zardad had his revolver flung round his waist. Mir Akbar accused was armed with a soti.
Muhammad Yaqub was in the process of pacifying the accused when Abdur Rehman deceased came over there. Abdur Rehman remonstrated with the accused that he had given the accused place to live, developed relationship and now the accused were not allowing their children even to pass over their lands. Abdur Rehaman came near Zardad appellant and both started ex-- changing hot words. Muhammad Yaqub P. W. Tried to calm down both the parties, but Zardad appellant and Abdur Rehman deceased started grappling with each other. In the meantime Muhammad Zaman deceased (brother of Abdur Rehman deceased) also came there armed with a soti. Mir Akbar accused and Muhammad Zaman deceased grappled with each other. Inathe meantime Zardad appellant fired with his revolver at Abdur Rehman deceased. The latter was hit and fell down. During the grappling of Mir Akbar and Muhammad Zaman both struck against a banna whereby accused Mir Akbar fell down. Zardad appellant then fired with his revolver at Muhammad Zaman. The latter was bit and he also fell injured. Both the accused then ran towards their house. It is alleged that at the time of occurrence Muhammad Farooq (P. W. 12) son of Abdur Rehman deceased and Mst. Razia Bibi (P. W. 13), a sister of the two deceased, were also present at the site of occurrence. Abdur Rehman had died instantaneously while Muhammad Zaman was still alive when P. W. Muhammad Yaqub left for the Police Station Lora for lodging a report. Muhammad Yaqub lodged a report (copy Exh. P.A.) at the police station on the same day, viz. 17-8-67 at 11-50 a. m. The distance between village Nangal and Police Station Lora is 1 J miles. This report was recorded by Muhammad Akram H. C. P. W.
3. It appears that Muhammad Akram H. C. (P. W. 15) proceeded to the spot along with P. W.
9. Muhammad Yasin. Muhammad Akram H. C. Recovered five blood-stained stones Exh. P.5 from below the dead body of Abdur Rehman deceased, which were taken into possession vide memo. Exh. P. W.
5. He also took into possession the blades of Grass Exhs. P.6, 8 pieces of blood-stained stones Exh. P. 7, recovered from underneath the dead body of Mohd. Zaman and another blood-stained stone Exh. P. 8, recovered from near the two dead bodies, ride the same memo. And sealed them into a parcel, on the same day viz. 17-8-67. He also picked up a plastic belt Exb. P. 9, by memo. Exh. P. W. 5/1. He also picked up a spent bullet Exh. P.
10 from underneath the dead body of Muhammad Zaman and two pieces of butt of pistol P.
11. At a distance of about 4 paces from the dead body of Muhammad Zaman vide memo. Exh. P. W. 5/2. He also picked up a pencil Exb. P. 12 vide memo. Exh. P. W. 5/3. On the same day that is on 17-8-57 Mst.
Razia Bibi P. W. Produced a handkerchief Exh. P. 4, a bunch of keys Exh. P. 2 and a pair of chapplis Exh. P. 3 to the H. C. Which he took into possession vide memo. Exb. P. W. 5/4.
5. Maulvi Abdul Jabbar Khan S. 1. (P. W. 18), P. S. Lora was away to Abbottabad, on that day. On his return to the police station the S. I. Was informed of the occurrence. The S. I. Then proceeded to the spot. Muhammad Zaman injured had also expired by that time. The S. I. Prepared the injury sheets and inquest report of Abdur Rehman and Muhammad Zaman. He inspected the scene of occurrence on the same day along with P. W. 6, Salabat Khan Patwari, who prepared the sketch Exh. P. W. 10/8, at the instance of Muhammad Yaqub P. W. Point I on the site plan indicates a place where the deceased Abdur Rehman was killed. Blood was found on this point. Point 2 indicates the place where Muhammad Zaman deceased had fallen injured. Blood was also found on this place.
Blood--stained stones were also found at point No. 3. Pieces Exh. P. l I of butt of the revolver were recovered from point No. 4; which is in a depression. Pencil Exh. P. 12 was picked up from point No. 5.
Pieces of plastic belt Exh. P. 9 were picked up from point 5-A. A blood-stained stone was recovered from point 6 Point 7 indicates a wall of partition between the land of decease party and that of the accused. The house of the accused shown at point No. 8, distance about 190 paces from the scene of occurrence. Point 9 indicates the house of Zardad son of Painda Khan (brother-in-law of the two deceased), which is at a distance of 27 paces from point No. I and 31 paces from point No. 2. The graveyard indicated by point 10 is at a distance of 208 paces from the spot. The house of Muhammad Zaman deceased, shown at point No. 11, is at a distance of 226 paces from point No. 2.
The house of Abdur Rehman deceased 7 denoted by point 12, is about one furlong from the house of Muhammad Zaman deceased. Blood stains were found on a big boulder at the scene of occurrence. Two pieces Exh. P. 13, carrying blood stains were broken away from the boulder and taken into possession vide memo. Exh. P. W.
6. A piece of poplin Exh. P. 14 was also taken into possession by the same memo. After the inspection of the venue of the occurrence, the S. I. Along with the witnesses went to the house of Zardad appellant. Some constables were found there on watch. Zardad appellant produced his revolver No. 334372, the butt of which was broken, along with five empties in the chamber of the revolver, which the S. 1. Took into possession by memo. Exh. P. W.
6/1 in the presence of P. W. 10 Taj Muhammad Khan. The S. I. Also prepared the injury sheets of Zardad and Mir Akbar accused.
6. Sh. Muhammad Din, Examiner of Fire-arms (P. W. 14), had examined, one .455 bore revolver, bearing No. 334372, one .455 bore crime bullet marked by him as B. 1, one .455 bore crime bullet marked by him as B. 2, and five .455 bore crime empties, marked by him as C-1 to C-5. The expert was of the opinion that all the five .455 bore crime empties C-1 to C-5 were found fired from the revolver in question. He also found the crime bullets B-1 and B-2 to have been fired from the same revolver.
7. H. C. Muhammad Akram P. W. 3 had also recorded the counter F. I. R. On the basis of a Murasila sent by Zardad appel--lant to the police station. On this report a cross-case under sections 307/149 and 148, P. P. C. Was registered against Muhammad Yasin P. W. 9, Muhammad Yaqub (P. W.
11), Islam Din and others. This case was recommended for cancellation by Mian Ajmer Shah Inspector Police (P. W. 5).
8. Dr. Muhammad Saeed (P. W. 1) performed the autopsy on the dead body of Abdur Rehman deceased on 18-8-67 at 8-10 a. m. And found the following injuries:-
(1) A bullet wound of entrance 1/4" in diameter on the left arm in front, five inches below the top of left shoulder.
(2) Through and through bullet wound;
(a) wound of entry in anterior left axillary line three inches below the left nipple,
(b) wound of exit, 1" in diameter in the right scapular line, 1" below the top of right shoulder.
(3) An abrasion, 2" x 1/6" vertically on the pit of stomach.
(4) A contusion, 1" x 1" on the centre of the left collar bone. ,
(5) A contusion, 1" x 1" on the centre of right collar bone. Contusions 4 and 5 were due to passage of bullet through injury No. 1 as the bullet had fractured the upper part of sternum and both collar bones.
On internal examination the bullet having passed through injury No. 1 in front of the left side of the chest fractured the left collar bone and blown the blood vessels and who pipe in front of the _ neck. It was found embedded in the right shoulder. Death s was due to shock and haemorrhage on account of injury to the blood vessels of neck, lungs, spleen, small and large intestines. Death, in the opinion of the doctor, was instantaneous. The doctor opined that both the bullet injuries on the person of Abdur Rehman deceased were individually sufficient in the ordinary course of nature to cause death. He found no charring mark on any of the injuries of this deceased.
9. The same doctor had also performed the post-mortem examination on the dead body of Muhammad Zaman on 18-8-67 at 8 a. m. And found the following injuries:-
(1) An abrasion, 1/2" x 1/2' on the centre of left shin.
(2) A contusion, 3" x 3/4" across the left side of back six inches below the left shoulder.
(3) Multiple abrasions in an area of 2" x 2" on the back of left shoulder.
(4) A bullet wound grazing 1--" x 1/4" bone deep on the top of head five inches above and in straight line from the centre of eye-brew.
(5) Through and through bullet wound:
(a) wound of entry, 1/4" in diameter situated in front of chest in the middle.
(b) wound of exit on the left mid-axillary line 8" below the pit of left axilla and half an inch in diameter.
On internal examination he found the bullet had entered in front through the sternum and passed through the lungs, then entered the heart ventricle making a through and through wound of heart, entry wound 1/2" in diameter, and exit wound 1" in diameter, then it entered the diaphragm and spleen which were injured, and came out after fracturing the 9th rib. Left side of the chest cavity was full of blood. Death was instantaneous and was due to injury to heart, caused, by bullet. The doctor opined that the injury was individually sufficient to cause death, but there were no charring marks on the injuries of this deceased also.
10. Dr. Safdar Zaman (P. W. 17) had examined Zardad accused on 18-8-67 at 11-15 a. m. And found the following injuries on his person, vide injury sheet Exb. P. W. 17/3:-
(1) Lacerated wound 1/2" x 1/10" x 1/10" on the left side of head, 3" above the left ear.
(2) Bruising 1" defined of left temporal area.
(3) Abrasion, 1" x 1/2" right mid-mandibular area of right face.
(4) Multiple linear scratches on the poster medial side of the left forearm upper part.
(5) Abrasion on lateral side of left thumb, 1/2" x 1/4".
(6) Small bruise on medial side of right wrist.
(7) Abrasion 1/2" x 1 /4" and 1/2" x 1/10" above the left iliac bone posteriorly.
(8) Abrasion 1/2" X 1/3" above the right iliac bone posteriorly.
(9) Multiple abrasions on antero medial side of right knee. The nature of the injuries was simple, caused by the blunt weapon. The doctor did not observe any pellet injuries at injuries 4 and 5. He opined that injury No. 1 and the bruises on the left temporal region of Zardad accused are the result of direct blows.
11. The same doctor also examined Mir Akbar (acquitted accused) on 18-8-67 at 10-30 a.m. And found the following injuries on his person vide injury sheet Exh. D. B: -
(1) Abrasion 1/5" x 1/5" on anterolateral side of right ring finger.
(2) Three small scratches, 2" below the right nipple.
(3) Lacerated wound 1" x 1" scalp deep, 3" above the right ear on the right side of head.
(4) Small few scratches on the left back.
The injuries were caused by blunt object and simple in nature. The doctor opined that injury No. 3 on the person of Mir Akbar accused was the result of a direct blow.
12. Dr. M. A. Siddiqui (P. W. 16) X-rayed the left hand and forearm of Zardad accused on 29-8-67 on the request of Medical Officer, District Jail, Abbottabad. The X-ray revealed that two pellets were seen in the left forearm and two pellets were seen close to one another at the base of the thumb.
No abnormality was detected in the X-rays of the left ankle and lumbo sacral spine. On a query of P. W. Mian Ajmer Shah, Inspector Police, this doctor stated that the pellets were only skin-deep and were small, therefore, they could be introduced easily through small punctures made in the skin.
13. At the commencement of the trial, Zardad appellant pleaded not guilty to the charge. In his statement before the committing Magistrate, he denied the charge of the murders of Abdur Rehman and Muhammad Zaman. Explaining the injuries on his person, he stated:--- "I was attacked by the deceased and his party with fire-arm and blunt weapons in my own field along with my brother as a result of which I received injuries. The butt of my service revolver was broken."
He admitted that when he was attacked, he had to run for safety and that in that confusion he left behind bunch of keys Exh. P.2, handkerchief Exh. P.4, pair of chapplis Exh. P. 3, pencil Exh. P.12 and plastic belt Exh. P.
9. He stated that on his report cross-case was registered but he did not know what happened to that case. He claimed right of private defence and deferred to give a detailed statement in the Court of Session. At the trial he disclaimed the charges and stated:- "On 12-8-67, I proceeded on ten days leave. I spent about five days at Abbottabad and then on 16- 8-67 1 sent to my village. Next day, i.e. 17-8-67 I went to see my land accompanied by my brother accused Mir Akbar in Parri Bar. At about 10-30 or 11 we started back home. When we passed through my Khasra No. 1270, the complainant party, including the deceased persons, Gul Hamid, Mustafa, Yaqoob and others and who were hiding themselves in the maize crop, came out all of a sudden and attacked us saying that we should be killed. My brother ran towards his house while I ran west--wards. Gul Hamid fired at me with a gun inflicting injuries on me. Then P. W. Yaqoob came who caught hold of me. Mustafa also came there. This Mustafa is the nephew of the deceased persons, being their sister's son. They all started stoning at me. The butt of my revolver, while it was in the holster, was struck by one such stone, and was broken into pieces. I had a corresponding injury on my wrist. I had a head injury wherefrom blood was oozing. The darkness came before my eyes. I took out the revolver and fired two shots at the spot in self-defence. Then I started running away and fired another shot in the air. I had seen my brother falling on the ground before I had opened the fire. I was so injured and I stayed at the hospital for 22 days. In spite of my repeated requests the X-ray examination was carried out of only my hand and arms injuries whereas I have pain even now all over my body.
Khasra No. 1270 and the other land is my property. A civil suit was proceeding between me and the complainant party. I produce certified true copy of the judgment of District Judge, Abbottabad, passed in appeal as Exh. D. D. (two leaves)."
The appellant declined to produce defence evidence.
14. The learned counsel for the appellant contended that the evidence of P. W. 12, Muhammad Farooq and that of P. W. 13, Mst. Razia Bibi is not worthy of any credence. The learned counsel also argued that the evidence of Muhammad Yaqub (P. W. 11) suffers from suppression of material facts and is contradicted by the medical evidence, and as such the evidence of this witness also is not worthy of reliance. The learned counsel proceeded to argue that in such an expediency the whole of the statement of the appellant at the trial, wherein he has claimed complete right of self- defence, is liable to be accepted. The contentions of the learned counsel, except his first contention, are worthy of rejection, for the reasons given hereinafter.
15. Muhammad Farooq P. W. Is the son of Abdur Rehman deceased. Mst. Razia Bibi(P. W. 13) is the sister of the two deceas--ed. Muhammad Yaqub (P. W. 11) did not mention their names as eye- witnesses in the F. I. R. Exh. P. A. And nor mentioned their names in his statement under section 164, Cr. P. C. Recorded two or three days after the occurrence. The site plan was prepared by P. W. 18, S. 1.
Abdul Jabbar through the Patwari and the presence of these two witnesses has not been depicted by any point therein. Abdul Karim Khan (P. W. 4), D. S. P. Haripur, recorded the police statement of Muhammad Farooq and Mst. Razia Bibi on 19-8-67 at 9-10 a.m. i.e. On the 3rd day of the occurrence although Mst. Razia Bibi had produced keys, chapplis and other articles to Muhammad Akram P. W.
15 on 17-8-67 vide memo. Exh. P. 5/4. Under the circumstances, the evidence of these two witnesses is liable to be excluded from consideration.
16. The wives of Sultan-ul-Arifin, a nephew of P. W. Mohd. Yaqub and Irfan, son of Abdur Rehman deceased, are sisters. P. W. Muhammad Yaqub is not interested in the false implication of the appellant. He lodged the F. I. R. Promptly after the: occurrence. For the appraisal of his evidence a precise of the same may be given with advantage. This witness stated in examination-in-chief :- "At the time of occurrence I was saying Fateha at the grave of my father. It was about lunch time.
To the south of the: graveyard I heard noise. I finished the Fateha Khawani quickly and went towards the place wherefrom the noise was coming. When I went there, I saw that near the house of one Zardad son of Painda Khan the present two accused persons. On one side and some women on the other were exchanging abuses. I went near the accused persons, greeted them and told them that they were respectable persons and that it was not proper on their part to abuse womenfolk. I also advised them to contact men folk of those ladies and settle the dispute in an amicable way. Then deceased Abdur Rehman came there and told the accused persons that he had given, the accused the place to live, developed relationships and now these accused were not allowing their children even to pass over their lands. When Abdur Rehman came near, both the parties started exchanging hot words. I tried to calm down both the parties but accused Zardad and deceased Abdur Rehman started grappling with each other. In the meantime deceased Muhammad Zaman, brother of Abdur Rehman also came there. Accused Mir Akbar started grappling with deceased Muhammad Zaman. I was astonished and in the meantime, I heard a fire shot. Zardad had fired at deceased Abdur Rehman and I saw deceased Abdur Rehman falling down.
Accused Zardad fired with the pistol Exh. P. 1 shown to me in the Court. Accused Mir Akbar was grappling with deceased Muhammad Zaman and in that state they both struck against. a banna whereby accused Mir Akbar fell down. After that deceased Muhammad Zaman turned round in order to move towards accused Zardad when Muhammad Zaman was also fired at by accused Zardad. He was also hit and fell down. Both the accused persons then ran towards their house . . . . .
T lodged the report Exh. P. A., which has been read over to me today and the same is correct."
"Deceased Muhammad Zaman had a small stick about foot long in his hand. It is correctly recorded in the F. I. R. That when Muhammad Zaman arrived at the scene of occurrence accused Mir Akbar and Muhammad Zaman started giving soti blows to each other. I cannot say if accused Mir Akbar received injuries but I saw him falling down on the ground at the hands of Muhammad Zaman, and when Abdur Rehman was shot at, Mst. Razia threw stones at Mir Akbar I did not mention in the F. I. R. Or in the statement before the committing Magistrate that Mst. Razia had thrown stones at accused Mir Akbar because no such question was asked from me. It has been correctly recorded in the F.
1. R. That after the firing some womenfolk and children came to the scene of occurrence whom I did not recognize. I cannot say if accused Zardad was injured. It is incorrect to suggest that deceased accompanied by Islam Din and Yasin had fired at the accused persons and had also given sod blows to them and in retaliation the accused fired at the deceased. I do not know if I was also nominated as one of the accused in the counter case under section 307, P. P. C. I cannot say as to how the batt of the revolver Exh. P. 1 was broken but when accused Zardad jumped after having fired the revolver also fell down on the ground. I could not make out at the time of occurrence as to where the injuries were sustained by two deceased. I might have stated before the committing Magistrate that accused Zardad took out his pistol and placed it under the armpit of deceased Abdur Rehman and fired (confronted, and so recorded at portion B to B in his statement, dated 18-3-68). I had however, stated before the com--mitting Magistrate that accused Zardad fired a second shot in the abdomen of deceased Abdur Rehman .. . . . . . . . I had not stated in my statement before the committing Magistrate that deceased Muhammad Zaman had no soti in his hand (confronted and so recorded at portion C to C in statement, dated 18th March 1968. I cannot say if I had stated before the committing Magistrate that my state--ment in the F. I. R. That accused Mir Akbar and deceased Muhammad Zaman gave soti blows to each other was in--correctly recorded (confronted, and so recorded at portion D to D in his statement dated 18-3-68)."
17. The learned counsel for the appellant was critical about, the statement of Muhammad Yaqub chiefly stated that he had heard one fire shot by Zardad at Abdur Rehman deceased, and that he could not say if accused Zardad was injured. He agued that Abdur Rehman deceased before two wounds of entry on his body while Zardad appellant had sustained multiple bruises and abrasions besides a lacerated wound on the left side of head. P. W. Muhammad Yaqub has clarified his statement that he heard one shot of Zardad appellant at Abdur Rehman deceased, in his cross- examination wherein he stated that he stated before the committing Magistrate that accused Zardad fired a second shot in the abdomen of deceased Abdur Rehman. Moreover, the state-- ment of P. W. Muhammad Yaqub that he could not say if Zardad accused was injured does not tantamount to a denial of the injuries on the person of Zardad appellant. The injuries on the person of Zardad accused in the form of bruises and abrasions may have escaped the notice of this witness in the confusion of the moment. Thus in a case like the present one, where it has succeeded in making out the main facts, the prosecution cannot be thrown out merely because the prosecution evidence is to be, as characterized by the defence, regarded as unreliable on a few points. In -this view of the case, the evidence of P. V1 Muhammad Yaqub is worthy of full credence.
18. The question whether the accused is entitled to the right of private defence is in every case essentially a question of fact to be decided according to the circumstances of each case and decided cases are not of much help except as indicating generally the principles which should be borne in mind in deciding A the question (Reference Bharwad Yibha Ghoga v. State (AIR 1955 Saur.
1) and Imam Bakhsh v. The State (PLD 1961 B 122). As a general principle of law, A Court has to accept or reject the statement of the accused as a whole and it cannot pick and choose and accept only the incul-patory portion and reject the exculpatory part as incredible or false. In the present case there is no material on record to support the plea of self-defence in the manner put forward by the appellant. The medical evidence is available on this record for show that the two pellets seen in the left forearm and two pellet seen close to one another at the base of the thumb in X-ray exposure by D. M. A. Siddiqi, on 29-8-67, were not observed by Dr. Safdar Zaman in his earlier examination of the appellant on 18-8-67, and that these pellets could be introduced easily through " small punctures made in the skin. This medical evidence negatives the explanation put forward by the appellant. Moreover, the explanation of the accused of his conduct is in--consistent with the story set up by the prosecution and as sue is not worthy of acceptance.
19. In Shahra and others v. The State (PLD 1968 Lah. 974) it has been observed: " The story put forth by Shahra that he was injured as a result of firing by Lalu deceased by means of a pistol is clearly negatived by the medical evidence. The doctor opined that the injury on the person of Shahra could be self-suffered. We have minutely examined the statement of the medical witness and looked at the nature of the injury sustained by Shahra leaves no manner of doubt in our mind that it was not inflicted in the manner alleged by the defence. The plea that Shahra or his co-appellants acted in exercise of the defence of persons, therefore, falls to the ground."
20. The plea of right of private defence could still be allowed to the accused provided such a plea is clearly and explicitly inferable from the facts and circumstances on record, as being reasonably possible despite the fact that the accused in his statement had indulged in falsities.
PLD 1962 Kar. 495) it has also been observed: --- "The learned Judge has also been wrong in discarding the plea of self-defence of the appellant by holding that the state--ment of the appellant in every detail was not true or was not, at any rate probable, The truth or falsity of the statement given by the appellant will not be a correct criterion for coming to a right conclusion in a case. It is the prosecution evidence on which the case of the prosecution will always sink or sail. If the prosecution evidence is such that from it a reasonable benefit of the right of exercise of private defence could be extended to an accused, it shall not be refused to him merely because the statement given by him is not in total consonance with the probabilities in the case."
PLD 1967 SC 356) it has been ruled:- "The visible defects of falsity and inconsistency in the statements of the accused persons cannot be relied upon, as furnishing proof in support of the prosecution case, whose acceptance must rest on a proper appreciation of the facts and circumstances proved. The correct principle is that falsities appearing in the statements of accused persons do not bar the allowance to them of an advantage that the law permits, on the basis of facts that are found on a consideration of all the evidence and circumstances that can be accepted in the case." "ln all cases where the Court comes to the conclusion that the accused person acted in the exercise: of the right of private defence of person or property, it is the duty of the Court to examine the further essential question whether the right was not exceeded in the particular circumstances of the case. If this is not done, there is a likelihood of a manifest failure of justice."
21. Regard being had to the common course of natural events and human conduct in their relation to the facts, injuries on the person of the applicant and Abdur Rehman deceased, an the surrounding circumstances, it can be reasonably inferred that the fight between the appellant and Abdur Rehman deceased, who was not in any way armed, began with their grappling; they extricated themselves and resorted to mutual stone throwing, which were available on the terrain.
During the stone throw in the appellant as well as Abdur Rehman deceased received injuries. The appellant being overawed drew out his loaded revolver, which was slinging round his waist and fired at least two effective fatal shots at Abdur Rehman deceased felling him dead. Under these circumstances the appellant was not justified as against the equally matched stone hurling adversary to get hold of his loaded revolver and fire at Abdur Rehman deceased dropping him dead [);,cause he could not reasonably expect to be killed or receive grievous injury and could put an end to the aggravation of stone pelting by use of much lesser force or even retreating from the scene. For these reasons, the accused appellant, in our view, was not justified in killing Abdur Rehman deceased and has exceeded his right of self-defence. As such he is guilty of culpable homicide not amounting to murder. His appeal on this count is partially accepted, his conviction under section 302, P. P. C. Is altered to a conviction under section 304 (Part 1) P. P. C. And he i, sentenced to ten years R. 1.
22. The case against the appellant on the charge of murder of Muhammad Zaman deceased stands on a different footing. P. W. Muhammad Yaqub has stated that accused Mir Akbar was grappling with the deceased Muhammad Zaman and in that state they both struck against a banna whereby Mir Akbar fell down. After that deceased Muhammad Zaman turned round in order to move towards accused Zardad, when Muhammad Zaman was also fired at by accused Zardad.
Section 100, P. P. C. Provides that the right of private defence of body extends to the voluntary causing of death, or of any other harm to the assailant, if the offence which occasions the exercise of that right be such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault, or such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. Thus the right of private defence of person extends to the causing of death only if there is a reasonable apprehension that the assault i-ion the person would cause death or grievous hurt. Whether the apprehension was reasonable or not is always a question of fact. The weapon used, the manner of using it, the nature of assault and 'p the other surrounding circumstances are to be taken into account for this purpose. It is always necessary that the apprehension of such injury must be natural and probable. (Reference Ganga Charan Das and others v. The Crown (PLD 1957 Dacca 281) ). Section 351 of the P. P. C. Defines "assault" and lays down: "Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault."
The deposition of Muhammad Yaqub P. W. In the words that "Muhammad Zaman turned round in order to move towards accused Zardad", do not amount to a threat of an attack, nor such words can be regarded as gestured or preparation which will cause the appellant to apprehend that Muhammad Zaman deceased by such gestured or preparation is about to use criminal force to him so as to create Justification for causing the death of Muhammad Zaman. The appellant thus could not avail himself of the benefit of section 100, P. P. C. Thus, under the circumstances, the conviction of the appellant under section 302, P. P. C. On this count is maintained.
23. The question of sentence, however, requires judicial consideration. The nature of the conflict, the mariner in which it developed, the momentous confusion in the taw of mind culminating in the heat of passion in the mind of the appellant by seeing his brother Mir Akbar belabored and injured at the hands of Muhammad Zaman deceased with a soti can justifiably be regarded as mitigating circumstances for commuting the penalty of death sentence to the lesser sentence of transportation for life. We, therefore, alter the death sentence of the appellant to that of transportation for life on this count.
24. The sentences on both the counts arc to run con--secutively.
25. The death sentence of the appellant on both the counts is not confirmed.
S. A. H.