1. SAJJAD AHMAD, J.-Ahmad Nawaz appellant was tried jointly along with one, Bakhsha, who was stated to be his friend, for causing the murder of Nusrat son of Sanatta (section 302/34, P. P. C.) and also for attempting on the lives of P. W. Nusrat son of Sahib and P. W. Amir (section 307/34, P. P. C.- to counts). The trial Judge convicted Ahmad Nawaz alone for the murder of Nusrat and sentenced him to transportation for life. He was further held guilty on the charge of attempted murder of Nusrat P. W. And sentenced to life imprisonment on that count also. The sentences were made to run concurrently. Bakhsha was held responsible for the attempt on the life of Amir and sentenced to rigorous imprison--ment for a period of ten years. Section 34 was not applied to their cases and each was held guilty of his own individual at, that is to say, Ahmad Nawaz for causing the murder, of deceased Nusrat son of Sanatta and for causing a, fire-arm injury to Nusrat son of Sahib in an attempt to kill him. Bakhsha 'was convicted for having ineffectively fired at P. W. Amir and was absolved of the responsibility of causing fatal injury to Nusrat on of Sanatta and of the murderous assault on Nusrat son of Sahib. Both of them filed an 'appeal to the High Court which resulted in the acquittal of Ahmad Nawaz of the charge under section 307, P. P. C. For attempting on the life of P.
2. W. Nusrat son of Sahib and also in the, acquittal of Bakhsha of he charge of firing at P. W. Amir. The conviction and sentence of Ahmad Nawaz for the murder of Nusrat son of Sanatta were upheld.
3. According to the posecution case, four days before this occurrence, Ahmad Nawaz and his relations had given a beating to Nusrat son of Sahib because he was suspected of establishing a love affair with Mst. Daulan, sister of Ahmad Nawaz. This was the motive alleged by the prosecution for the present occurrence. The appellant admitted that he and his companions did beat Nusrat P.
4. W., but it was alleged that they had suspected him of a love affair not with Daulan but with one, Mst. Woondan, a niece of a Kamin of Ahmad Nawaz. According to the prosecution story, the deceased Nusrat son of Sanatta; Nusrat P. W. And Amin were going to Chak Manara, when they saw the appellant and Bakhsha coming' on a cycle from the opposite direction, who got down in order to assault them. Ahmad Nawaz was armed with a pistol with which he fired, at Nusrat son of Sanatta and killed him instantly. Thereafter, he fired at Nusrat P. W., hitting him on the right thigh. At this juncture, Amir P. W. Held Ahmad Nawaz from behind, but the latter handed over his pistol to Bakhsha who fired at Amir P. W., but missed him.
5. According to the medical evidence, Nusrat son of Sanatta had a bullet wound on the back of his left shoulder-joint directed inwards and anteriorly 2" above the posterior fold of axilla. Nusrat P. W.
6. Sustained a gunshot wound in his thigh. On the side of the accused, Ahmad Nawaz appellant had to abrasion marks, one on the upper part of his occipital area near the mid-line and second on the dorsum of the right hand. Bakhsha, the acquitted accused, had a contusion mark on the scapula spine 2" x 1", another contusion mark 3" x --" on the right scapula, an incised wound, skin deep, on the front of the right index first phalanx and-an abrasion on the dorsum of the right forearm.
7. The prosecution case was supported at the trial by P. W. Nusrat who was injured, Amir who had been fired upon ineffectively and P. Ws. Shamir, Ahmad and Shamman, who have been held to be chance witnesses.
8. According to the defence, the complainant party who was waiting in ambush for the accused, emerged from their hiding, when Ahmad Nawaz was returning from his school on a cycle with Bakhsha sitting behind on the carrier, Nusrat deceased gave stick blows to Bakhsha. It was alleged by the accused that it was at that juncture that Nusrat P. W. Took out a pistol which he fired at Ahmad Nawaz, but the bullet missed him and struck the deceased. Two defence witnesses, namely, Dost Muhammad Lambardar and Ahmad; were produced in support of this version. The learned trial Judge did not accept the version of either party, observing that the evidence led by both the parties and the statement of the accused showed that both, have not stated the occurrence as it actually happened and that eth have made additions and: subtractions whenever they suited them. However, the defence version was accepted by, the trial Judge that it was, the, complainant party that had the motive-to attack and that it had actually done so with deliberation lying in ambush for Ahmad Nawaz appellant who along with his companions was responsible for beating Nusrat P. W. Four days earlier. Nonetheless, the learned trial Judge felt satisfied that Ahmad Nawaz was carrying the pistol with which he fired at Nursat deceased arid also' at Nusrat P. W. And found him guilty of both these actions. It was held by him that the firing was not done in self- defence. About Bakhsha, it was stated that after he got hold of the pistol from Ahmad Nawaz, he did fire at Amir P: W., but as the pistol was empty at that the, no firing actually took place and no harm was caused. However, on the' finding that he had fired at Amir P. W. With the intention to kill him, he was held guilty under section 307, P. P. -C. In the High Court, the learned Single Judge has concurred with -the view of the trial Judge that Nusrat P. W. Was out -to take revenge on the accused for having given him the beating four days earlier and therefore the fight was originated by the complainant party. As a logical conclusion, the learned Single Judge held that since the complainant party had waylaid the appellant and-P. W. Nusrat had opened the attack with a sots causing injuries to Bakhsha, the right of self-defence accrued to the accused under the provisions of section S100 of the Pakistan Penal Code. Ahmad Nawaz naturally conceived a reasonable apprehension at :the the that his companion Bakhsha might be grievously, wounded, if not killed, by the other side and he was therefore, justified in firing at Nusrat P. W. And causing the injury received by, him. Ahmad Nawaz was, for that reason, acquitted of the charge of firing at Nusrat P.
9. W. However, in regard to the injuries to the deceased, it was said that Ahmad Nawaz had fired at him after the deceased had tried to flee away from 'the spot which was proved from the circumstance that the injury to the deceased, was caused on the back of the left shoulder-joint.
10. This means that the deceased was not facing Ahmad Nawaz appellant and much less attacking him, which was clear from the further circumstance that Ahmad Nawaz did not receive any hurt beyond a couple, of abrasions in this occurrence. Here, it seems to us that the learned Single Judge in the High Court has confused the roles played by Nusrat deceased and Nusrat P. W., respectively, in this occurrence, gas alleged by the prosecution. The finding of the learned trial Judge was that it was the deceased (Nusrat son of Sanatta) who had given lathi blows to Bakhsha in the very beginning. If Ahmad Nawaz opened fire at that the in order to save his companion Bakhsha from further harm at the hands of the complainant party, he did so in the complete right' of the exercise, of defending the person of Bakhsha.
11. After the Courts had discredited the prosecution version about the origin of the attack and certain important incidents of the occurrence and after they had actually accepted the defence version that the motive lay with the other party to pick up this fight and that they were the aggressors and made the assault on Bakhsha, the rejection of the plea of right of private defence as set up by the accused party deserved a more careful considera--tion than has been given to it by the Courts below. When one party makes a deliberate attack on the other in a concerted action and the other is defending itself, it would be difficult then for the latter to chose between their assailants for the degree of harm that may be caused to each one of them separately, to ward of the individual harm that each one of the other party was intending or was capable of causing. If shots were fired by the accused party, whether by Ahmad Nawaz or Bakhsha, they were all fired in the thick of the assault in order to save themselves from the onslaught of the other side which had surprised them by a sudden confrontation. The argument advanced by the Courts below that the injury to the deceased, which was on the back of the shoulder, affirmatively proved that the deceased at the the was on the retreat, is unsatisfactory and inconclusive. If the deceased was at the the beating Bakhsha with his stick as held by the Courts below it does trot matter what position Ahmad Nawaz thought best to lie taken to conveniently fire at the assailants. The firing of the shot at the deceased, even if it was done from behind him, would not impair the plea of the right of self- defence.
12. In our view, the reconstruction of the story as made by the trial Judge and partly affirmed by the High Court, does not satisfactorily warrant the conclusion that the appellant in the situation in which he was placed by the aggression of the other side in assaulting him and his companion Bakhsha, was not entitled to the exercise of the complete right of self-defence. It is doubtful even to contend that he had caused more harm than was absolutely necessary in the circumstances of the case.
13. The result is that we must give him the benefit of doubt on that point and acquit him. His appeal is accepted. He shall be released forthwith if not wanted in any other case.