M. BURHANUDDIN KHAN, J.--Rab Nawaz son of Farman Ali, aged 50 years resident of village Roppar Khurd, Tehsil and District Rawalpindi and Ghulam Hussain, his brother, were tried by the Additional Sessions Judge, Rawalpindi under section 302 read with sections 34/307 and 323/34, who, vide his judg--ment dated 29-11-1975 convicted and sentenced Rab Nawaz, appellant, to death subject to confirmation by Lahore High Court. The trial Judge also convicted him under section 307, P. P. C.
And sentenced him to 3 years R.
1. For the attempted murder of Ali Mardan, P. W. (complainant) and a fine of Rs. 2,000, if recovered, to be paid to the heirs of the deceased Muhammad Sadiq. Ghulam Hussain appellant, was acquitted of the charges of murder and attempted murder. He was, however, found guilty under section 334, P. P. C. For causing simple injuries to Mst. Zainman under grave and sudden provoca--tion and was sentenced to one month R. I. And a fine of Rs. 500, or in default of the payment of fine, to undergo further R. I. For a period of 15 days.
2. The convicts filed an appeal against their conviction and sentence in the Lahore High Court and the death sentence of Rab Nawaz was also for confirmation by the High Court. A revision was filed by Mst. Qamar Sultana widow of deceased Muhammad Sadiq praying for conviction of Ghularn Hussain appellant under section 302, P. P. C. And also for compensa--tion under section 544-A, Cr.
P. C. To Mst. Zainman (petitioner No. 1). All these three matters were disposed of by judgment dated 26-5-1977 whereby learned Judges of the High Court upheld the conviction of Rab Nawaz plus the fine imposed by the trial Court, and maintained the sentence of Ghulam Hussain under section 334, P. P. C., and directed that the fine imposed on him shall be paid to Mst. Zainman who sustained injuries at his hands. The convicts then came to his Court through a petition for leave to appeal against the aforesaid judgment of the High Court, and leave was granted on 14-5-1978.
3. The facts which are stated in the report lodged by Ali Mardan, P. W. 12, complainant, are that a year prior to the occurrence he had a quarrel with Ghulam Hussain and Rab Nawaz accused and a case was registered against them on his report under section 325 but later on a com--promise was effected by the elders of the village and they were acquitted by the Court. Thereafter they again had a minor altercation and as a result thereof they were proceeded and apprehended again and under sec--tion 107/151, Cr. P. C. Were bound down for keeping the peace. About 6 or 7 months prior to the present occurrence there was again a quarrel and due to domestic differences it resulted in the divorce of Mst. Arab Sultana niece (sisters daughter) of Ghulam Hussain and Rab Nawaz accused, and both (sister's the accused were annoyed over this act. On the date of occurrence i. e. 19-8-1973 at about rotiwela he came out of his house to urinate and when he reached near the house of Sher son of Hayat he met Rab Nawaz, armed with a .12 bore shot-gun and Ghulam Hussain armed with a khunda. On seeing him they challenged him saying that they will teach him a lesson for divorcing Mst. Arab Sultana and simultaneously Rab Nawaz, fired a shot at him but he escaped unhurt and ran towards his house. The two accused followed him challenging in a room of his house and Rab Nawaz fired another shot which hit the door of his house. In the meantime, Muhammad Sadiq, who was his nephew (sisters son) and Mst. Zainman, mother-in-law of Sadiq deceased who were present nearby, came and Muhammad Sadiq intervened and stopped Rab Nawaz from firing and advised him (Ali Mardan) not to come out of the room, whereupon Rab Nawaz fired at Sadiq deceased who was hit on his back and he fell on the ground, Mst. Zainman started abusing the accused and upon this Ghulam Hussain gave her a khunda blow on her head. She was injured. On her hue and cry Muhammad Afsar (not produced) and Mst. Ghulam Fatima who were also near the spot, witnessed the occurrence, entreated the accused not to fire and they retraced their steps and ran back to their dhok. He left the injured Mst.
Zainman and Muhammad Sadiq who had by then expired, at the spot and proceeded to the police station where he lodged the F. I. R. Exh. P. A.
4. At the trial, the prosecution case was supported by the three eye-witnesses, namely Ali Mardan, P. W. 12, Mst. Zainman, P. W. 13 and Mst. Ghulam Fatima, P. W.
14. Ali Mardan reiterated the story given in the F. I. R. And also furnished motive for the crime. Mst. Zainman also supported the version given by Ali Mardan saying that she had heard the report of a shot from the nearby lane and Muhammad Sadiq deceased went in that direction and I followed him, and we saw Rab Nawaz and Ghulam Hussain accused, the former armed with a .12 bore gun while the latter had a khunda with him. They were abusing Ali Mardan, P. W. Who had taken shelter in his house. Rab Nawaz fired which hit the door of Ali Mardan's house. Muhammad Sadiq advised him (All Mardan) not to come out of the room whereupon Rab Nawaz accused appellant fired at Muhammad Sadiq which hit him on his back. After the receipt of the gunshot injury Muhammad Sadiq expired on the spot. The deceased Sadiq also sustained injuries while falling down. She started abusing Ghulam whereupon Ghulam Husain inflicted two khunda blows on her and she also fell to the ground. She further stated that Mst. Ghulam Fatima and Afsar (not produced) witnessed the occurrence and many persons of the locality who were seeing the occurrence from the roofs of their houses, hurled stones at the accused which hit Ghulam Hussain accused. Thereafter both the accused ran towards their dhok firing in the air while leaving the spot.
5. Mst. Ghulam Fatima, P. W. 1.4 also gave an ocular account of the occurrence and stated that she had no relationship with the complainant party and that Mst. Arfi, Mst. Aishan, and widow of Sadiq deceased hurled stones at Ghulam Hussain and Rab Nawaz accused.
6. Piran Ditta, P. S. I., Head Quarter, Rawalpindi (P. W. 15) investigat--ed the case. In August, 1973 he was S. H. O. Police Station Chauntre and was present in village Mial when Ali Mardan brought copy of the report Exh. P. A. Recorded by Jamil Shah, A. S. I. (not produced). He left for the spot and found dead body of Muhammad Sadiq lying in the courtyard of Ali Mardan P. W's house. He prepared the injury statement and inquest report Exh. P. R. And Exh. P. S. Respectively ; sent the dead body to mortuary for the post-mortem examination: He found Mst. Zainman injured and . Prepared her injuries statement Exh. P. T., collected blood-stained earth from the spot and sealed it into parcel.
He found pieces of wads and 5 pellets embedded in the wall of the room of Ali Mardan and took them into possession vide Memo. Exh P. C. And sealed them into parcel. On the following day on 20- 8-1973 he summoned the accused and arrested them. Ghulam Hussain was injured. He therefore prepared his injury statement Exh. P. U. And got him examined by the doctor. Ghulam Hussain allegedly produced khunda P. 3 which he took into possession vide Memo. Exh. P. E. While Rab Nawaz produced gun P. 1 alongwith four live cartridges and a copy of licence which he took into possession vide Memo. Exh. P. D. He took a copy of the divorce proceedings of Mst. Arab Sultana from Union Council Secretary Ghulam Haider. He also collected Qalandra under section 107/151 whereby both the parties were bound down and prepared site plan Exh. P. C. And its copy Exh. P. C. 1 by Muhammad Akram draftsman ; and stated that all the marginal notes in the red ink were in his hand and were correct. Both the accused were examined but they denied the charges.
7. Lady Doctor Saida Amin examined Kist. Zainman and found (i) a lacerated wound 3" x 1/4' x bone deep over right side of head about 2" above the hairline (ii) another lacerated wound over top of head 1.1/2' x 1/4" x bone deep towards right side and (iii) a bruise over front of chest right side 1/2' X 1/2".
Dr. Khalid Javed, P. W.9 performed post-mortem examination on the body of Muhammad Sadiq on 20-8-1973 and found (i) a wound of entry of a fire projectile 10-- " round on the right back of chest and (ii) a lacerated wound 1' x --" bone deep on the back of head. In his opinion death occurred due to shock and haomorrhage as a result of injury (i) which was sufficient to cause death in the ordinary course of nature.
Statements of Dr. Saida Amin and Dr. Khalid Javed recorded by the C. M. Were transferred to the Sessions file under section 509, Cr. P. C.
8. Learned counsel for the appellants contended that though the F. I. R. Was lodged by Ali Mardan, P. W. 12, an eye-witness but the same is con--spicuously silent regarding the injuries sustained by Ghulam Hussain appellant. This slows that the prosecution has suppressed the material facts and did not come out with the whole truth ; that injury on the back of the head of Muhammad Sadiq deceased has not been mentioned in the F. I. R. Which cast doubt on the ocular testimony of the three eye-witnesses ; that Mst. Ghulam Fatima charged Rab Nawaz for firing at the deceased .From a distance of about two paces but the doctor found no blackening or charring marks around the injury. The learned counsel further contended that the occurrence took place in the lane when suddenly the complainant side attacked Ghulam Hussain accused resulting in numerous injuries to him, and Rab Nawaz was within his right to act in the defence of his brother Ghulam Hussain.
9. On going through the evidence we find that Ghulam Hussain appellant had about 7 injuries on his person which have not been explained by the prosecution satisfactorily though some of the witnesses have stated that stones were hurled at him in the courtyard of the complainant's house but no stones were recovered from the spot by the Investigating Officer and when he was asked in his cross examination as to whether he collected any stones or the pebbles from the courtyard of Ali Mardan---s house, his answer was in the negative. So if any stones were hurled, there was no reason that these should not be not have been shown to the I. O. By the witnesses or he himself would able to collect the same as material evidence in the case.
10. Dr. Masood Aziz, Radiologist had also examined Ghulam Hussain for his injuries on the nose.
According to the X-Ray produced before the doctor he found fracture of the nasel bone as per attested copy of his X-Ray Report Exh. P. B.
11. Ali Mardan, in his cross-examination was duly confronted with the F.I. R. Exh. P. A. And he admitted that he had forgotten whether he had mentioned in his report that any body pelted stones at the accused and that before the C. M. He admitted that this fact was omitted in the F. I. R. That stones were pelted at Ghulam Hussain with which he was injured. He was further questioned regarding the place of occurrence to which he answered that he had not stated before the C. M. That the occurrence took place in a lane which is surrounded by houses on both sides, and it was found that this fact was recorded in the statement before the C. M. The Investigating Officer also did not observe any pellet marks on the wall outside it the lane which belies the statement of. Ali Mardan that he was fired upon in the they lane by Rab Nawaz in the first instance and thereafter he ran towards his house. In his cross-examination he stated "when Rab Nawaz fired the first shoot. 1 took shelter in a corner of the houses of Bashir and Ghulam Mohammad. I did not show that spot to the S. 1. And I cannot say whether any pellets hit that well or not".
12. Mst. Zainman P. W. 13 in her cross-examination, also was con--fronted with her statement before the C. M. Where she had stated hat she heard report of fire from the side of Ali Mardan's house where as in her examination-in-chief she stated that she heard the report of shot coming from the nearby lane. On this she and Sadiq deceased went towards the Gali and in front of Ali Mardan's house she saw Rab Nawaz and Ghulam Mohammed with a shot-gun and khunda, respectively.
13. Considering the salient features of the prosecution case we come to the conclusion that there was an encounter between the complainant side and Ghulam Hussain accused appellant in the course of which Ghulam Hussain sustained injuries and this must have attracted Rab Nawaz who came, armed with a gun to the spot to rescue his brother; and the complainant, on seeing him with a gun, ran towards his house in order to take shelter. It appears that at this juncture Rab Nawaz chasing Ali Mardan to his house, fired a shot which hit the door of the room of Ali Mardan where he had taken shelter and Muhammad Sadiq deceased, who at that torment was intervening, sustained gunshot injury on, his back. The injury sustained by Muhammad Sadiq also confirms this view as he had an entry wound beyond the charring range but not from a far off distance as the doctor had recovered two pellets and two pieces of corks from the injury. This the argument of the learned counsel that Rab Nawaz had acted in defence of his brother or had exercised the right of self-defence is not spelt out from the evidence discussed in the foregoing paragraphs, and we also agree with the finding that Rab Nawaz was not the victim of any aggression or else he must have sustained some injuries as Ghulam Hussain accused had running fore, Rab Nawaz had no right to pursue the complainant who was running towards his house, and fire with a gun resulting in the death of Mohammad Sadiq who was involved in the initial fight. Thus he not only exceeded the right of defence of his person or that of his brother but acted in a manner which is not justified by law and his, action would not fall under any of the general or limited exceptions. The upshot of the above discussion is that the offence falls under the mischief of section, 302, P. P. C. But would not call for the penalty of death. Therefore, we commute his sentence of death to imprisonment for life and impose a fine of Rs. 5,000 or in default 3 years R.
1. Fine if recovered, should be paid to the heirs of the deceased Muhammad Sadiq. We also hold that no case has been made out against Ghulam Hussain. His appeal is accepted and his conviction and sentence is set aside. If he be on bail, he is discharged of the bail bond liability.