1. ' ZAFFAR HUSSAIN MIRZA, J.-Petitioner Lal Khan was tried alongwith co-accused Muhammad Ashraf, Khan Zaman, Shahwali and Ayub under section 302/307/48/149 of the Pakistan Penal Code for the murder of Muhammad Ashraf and for causing injuries to Fateh Khan and Khudayar (P. Ws.) by the learned Additional Sessions Judge, Mianwali. The trial Court, however, found the petitioner alone guilty under section 304, Part I of the Pakistan Penal Code and acquitted the remaining for co- accused. The petitioner was sentenced to life imprisonment and fine or in lieu to further rigorous imprisonment for one year under section 304-1 of the Pakistan Penal Code and was also convicted under section 324 of the Pakistan Penal Code for causing injuries to the two persons mentioned above, and was sentenced to one year's rigorous imprisonment and fine or in default three months' rigorous imprisonment on each count.
2. According to the prosecution version as revealed at the trial the occurrence took place on 21-7- 1977, at jhiki-digerwela. It is stated that Fateh Khan, complainant alongwith his nephew Muhammad Ashraf deceased and his brother-in-law Khudayar had gone to their land for sowing.
2. The petitioner being armed with a '12 bore gun, accompanied by Muhammad Ashraf also armed with a 12 bore gun, Khan Zaman and Shahwali being armed with pistols and Ayub with a hatchet emerged out of ambush and launched a murderous assault on the complainant party. Petitioner Lal Khan is said to have fired from his gun hitting the deceased on his abdomen. Co-accused Muhammad Ashraf was attributed the second shot fired with his gun hitting the complainant Fateh Khan on the left thigh. The third shot was attributed to Shahwali co-accused with his pistol hitting Khudayar (P. W.) on his right elbow. The remaining two co-accused are said to have raised lalkara.
3. The motive for the murder is stated to be the divorce of Mst. Rashida Begum daughter of the petitioner by her husband Burkhurdar, cousin of the complainant. The version of the petitioner disclosed in his 342, Cr. P. C. Statement was that his daughter Mst Rashida Begum was divorced by Burkhurdar (P. W.) and on account of this and other disputes complainant Fateh Khan became inimical towards him. As he apprehended danger to his life at the hands of Fateh Khan he migrated from 'the village of Tehsil Khushab. However, at the time of occurrence he returned to the village under the impression that by lapse of time Fateh Khan may have been reconciled. On the day of occurrence while he was present in the house of his sister, wife of co-accused Shahwali, Fateh Khan alongwith his supporters came upon his land armed with vaholas, kas is and hatchet and subsequently he was chased by them in a bid to take his life. It was in these circumstances that he fired in the air from his licensed gun to scare the assaulters but since they persisted in getting hold of him he went to the house of Shahwali. Fateb Khan and his supporters then forced their entry into the house, whereupon apprehending danger to his life, he fired two shots from his ,gun one after the other point blank and did not know whom the fired hit.
4. ' The trial Court accepted the version of the petitioner and found him guilty as already stated, for exceeding his right of self-defence. The High Court on appeal has agreed with the finding of the trial Court but reduced the sentence from life imprisonment to ten years' rigorous imprisonment under section 304-I of the Pakistan Penal Code and also set aside the conviction of the petitioner under section 324 of the Pakistan Penal Code. In maintaining his conviction under section 304-I of the Pakistan Penal Code the High Court came to the conclusion that the petitioner was persued by Fateh Khan and others to the house of his sister where he had retreated after firing a shot in the air but thereafter he fired at Muhammad Ashraf deceased and two (P. Ws.) from a close range.
5. According to the High Court it appears that the complainant party caused no bodily harm to the petitioner and there were no other circumstances in which the petitioner fired the two shots resulting in the death of one and injuries to two others. In these circumstances the High Court has taken the view that the petitioner had failed to bring out in the evidence those circumstances which gave him apprehension to cause injury to his assailants to the extent of causing death.
6. ' Now the evidence produced by the prosecution has been rejected by the High Court and it has been found that the version of the petitioner that in spite of his firing in the air, he was pursued to the house of his brother-in-law where he wanted to take refuge. These circumstances indicate that the petitioner was outnumbered by the complainant party and they were armed with some weapons, otherwise they would not pursue a person who is armed with a fire-arm. The question is whether the circumstances of this case did not create a reasonable apprehension in the mind of the petitioner that unless be fired to his attackers, he would himself be killed. A In my opinion, the mere fact that two shots were fired in quick succession in a traumatic situation where the victim was being pursued notwithstanding the scare shot fired by him, may not be a relevant ground, for coming to the positive conclusion that he had exceeded his right of self-defence. It is well established that a person is not expected to weigh and judge his action in a situation like this in golden scales.
7. ' I, therefore, feel that this is a fit case in which leave should be granted to examine whether in the circumstances of this case the petitioner was justified in firing the shots in the self-defence which have resulted in the death of the deceased. The delay of two days in presenting this petition from jail may also be condoned in view of the grounds mentioned in the application for condonation of delay. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.