1. SAJJAD AHMAD, J. Jamal Din, the appellant before us, was tried along with his brother, Shamsuddin, for the murder of Muhammad Younus under section 302/34, P. P. C. And also on 4 counts under section 307/34, P. P. C. For committing murderous assaults on P. Ws. Habib, Muhammad Yamin, Muhammad Idrees and Mst. Asghari.
2. The occurrence took place at noon time on the 1st of November 1964, in the area of Chah Thanedarwala, attached to the Police Station Kabirwala (Multan), where a report was lodged at 4 p.m. The same nay.
3. The learned. Sessions Judge convicted both the brothers, and sentenced each of them to transportation for life on the murder charge and to 6 years' R. I. Each on each of the counts under section 307/34, P. P. C. On appeal to the High Court at Lahore, Shamsuddin was acquitted. The offence of the appellant was altered to section 304, P. P. C. With a sentence of 4 years' R. I., and his conviction under section 307/34, P. P. C. Was altered to one tinder section 307, P. P. C. And his sentence Was reduced to 3 years' R. I. On the view taken by the learned Judges of the Division Bench in the High Court that the appellant had acted in the right of self-defence while defending his brother, Shamsuddin, who was beaten by the complainant party, but that be had exceeded tile same inasmuch as he had-fired two shots, although one would have sufficed for the purpose of that defence. In the words of the High Court "Although, therefore, Jamal Din, appellant, can be said to have fired at Younus and Habib and others in the exercise of the right of private defence of person, lie certainly exceeded that right in killing Younus, deceased, by firing his gun more than once". In order to examine the correctness of this view, it is necessary to refer briefly to the facts of this occurrence, as revealed at the trial. A day before, i.e., on the 31st October 1964, the appellant and his brother, Shamsuddin, had raised the boundary of their land in Killa No. 24, which divided the land of the complainant party comprised in Killa No. 25. On the day of occurrence, the appellant and his brother placed brambles (chhapas) on the banna along the demarcation line on the side of the appellant's land without protruding on any part of the complainant's land on the other side of the banna, as per statement of P. W. Muhammad Tufail, the Patwari of the Ilaqa. P. W. Habib remonstrated with the appellant for obstructing his way Habib placing the chhapas over the boundary line, which resulted in altercation and exchange of hot words. Habib immediately went to his house, which is situated at a distance of 11 bighas from the banna in question, and returned accompanied by his nephew, Muhammad Younus, deceased, and started removing the chhapas.
4. They were engaged in removing tile chhapas when the appellant and his brother appeared, the former armed with a gun and the latter with a rifle. Shamsuddin fired a rifle shot, which hit Habib on his left side. Jamal Din then fired his gun, hitting Younus, deceased. P. W. Muhammad Yamin, a brother of Muhammad Younus, deceased, P. Ws. Muhammad Idrees and Mst. Asghari, both first cousins of Muhammad Younus, deceased, and one, Ghulam Muhammad Karnana, came to the spot. The appellant also fired at them and injured all of them, except Ghulam Muhammad. The medical examination of the deceased and injured P. Ws. Showed that all of them suffered gun shot injuries, and that no one had received a bullet shot. The deceased, Muhammad Younus, received two gun shot wounds of entry on the outer aspect middle of right arm and one gun shot wound on tile back and lower part of right fore-arm, two on the interior aspect of right fore-arm, one on the right scapular region, another on the right shoulder and three on the right side of the chest. Two corresponding exit wounds were also detected. The other two injured P. Ws. Had also received gun shot injuries, which were the result of frontal shots, as none of the injuries on any one of them was on their backs. Shamsuddin, the brother-of: the appellant, who has been acquitted, suffered 10 simple injuries caused with a blunt weapon.
5. The learned trial Judge and the learned Judges in the High Court have disbelieved the evidence of Ghulam Muhammad, and have held that the injured witnesses, naively; P. Ws. Habib, Yamin, Idrees and Mst. Asghari, have not told the real truth. Their allegation that the acquitted accused (Shamsuddin) had fired a rifle shot, was obviously false, as it was contradicted by the medical evidence. The learned Judges in the High Court have concluded that the appellant had fired more than one shot and had thus exceeded the right of self-defence. This finding, in our view, ignores the sequence of events that occurred in this case, as partially admitted by the prosecution witnesses themselves. The complainant party is clearly to blame for having, in the first instance, started trouble by objecting to the covering of the banna with chhapas by the appellant and. His brother, although, as stated above, it did not cause interference with their land, nor did it intercept their way. The injuries on the person of Shamsuddin clearly show that he was the victim of the initial assault. If the appellant and his brother had come to the spot armed with fire-arms, as alleged by the prosecution, there was little or no chance of any of the complainant party coming near them to beat Shamsuddin. P. W. Habib, in his evidence, stated as follows :- "I had a soti in my hand. When Shamsuddin had his face towards Idrees and other P. Ws., I struck soti blows to Shamsuddin. Jamal Din again fired at me and I received gun shot injury on my left hand. Shamsuddin fell down with the injury-I had given to him with the soti."
6. Similarly, P. W. Muhammad Yamin stated as follows :- "When Shamsuddin started firing at us, Habib gave lathi blows to him. Thereupon Jamal Din fired at Habib."
7. It is obvious from these statements that Shamsuddin was being subjected to beating when Jamal Din fired the shot, and since Shamsuddin's life was in danger, the appellant had full right to save his brother from further harm, which could be very grievous according to his natural apprehensions conceived at the time. In the situation in which he found his brother placed, surrounded and attacked by the opposite-party, the appellant could not be expected to measure his right of defending his brother in golden scales or to modulate his defence step by step. Whether he fired one or two shots, is of no consequence in determining that right if the shots were fired by him under a serious apprehension that his brother would come to serious harm if lie did not act to save his life.
8. As pointed out by tile learned counsel for the petitioner, there is no indication that either the first or the second shot was fired by the appellant at the complainant party, after they had given the beating to Shamsuddin. All the injuries suffered by the complainant party are on the front portion of their bodies, which proves that they were pursuing their assault on Shamsuddin all that while.
9. In the light of this discussion, we feel that the appellant, is entitled to the complete right of self- defence in the circumstances of the case, and he must get that right. We accept this appeal and acquit him. He was allowed bail by this Court during the pendency of this appeal. His bail bonds are discharged.