1. SALAHUDDIN AHMED, J.---The appellant who was at the relevant time a Sub-Inspector of Police and is now under suspension, and his brother Mir Akbar, a School Teacher, were both tried on two counts under section 302/34 of the Pakistan Penal Code for the murders of Abdur Rehman and his brother Mohammad Zaman on the 17th of August 1967, at about 11 a.m. The Sessions Judge, Hazara acquitted Mir Akbar but convicted the appellant and sentenced him to death on both the counts under section 302 of the Pakistan Penal Code. On appeal and reference the High Court upheld the appellant's conviction under section 302, P, P. C. In respect of the murder of Mohammad Zaman but commuted his sentence to transportation for life. So far as the death of Abdur Rahman is concerned, the appellant's conviction was altered to one under section 304, Part 1; P. P. C. And he was sentenced to 10 years' rigorous imprisonment.
2. In this case the prosecution relied on the ocular testimony of three persons, namely, P. W.
3. Mohammad Farooq, a son of deceased Abdur Rehman, P. W. Mst. Razia Bibi, a sister of the deceased and P. W. Mohammad Yaqoob. The Courts below have disbelieved the testimony of the son and the sister as they were not named either in the First Information Report or in the statement of the informant recorded under section 164, Cr. P. C. The appellant admitted the incident and set up the plea of self---defence. His plea so far as the killing of Abdur Rehman was concerned, was substantially accepted by the High Court and the appellant was held guilty of only culpable homicide not amounting to murder. His conviction, as regards the killing of Abdur Rehman was, accordingly, altered to section 304, Part I, P. P. C. And his sentence was reduced to 10 years' rigorous imprisonment. In respect of the murder of Mohammad Zaman, however, the appellant was not given the benefit of right of private defence and although his conviction under section 302, P. P. C.
4. Was maintained his sentence was commuted to transportation for life.
5. The case of the appellant was that he had fired in self-defence and in defence of his brother, Mir Akbar, when they were attacked by the deceased party with a gun and stones.
6. Leave to appeal has been granted to re-examine the evidence and to consider as to how far if at all, the appellant's plea of self-defence should nave been accepted in this case with respect to the killing of both Abdur Rehman and Mohammad Zaman.
7. The occurrence took place on the 17th of August 1967, at 11 a.m. On a public path, adjacent to the Abadi of village Nangal, Police Station Lora, District Hazara and a First Information Report was lodged at the said Police Station, 1--miles off from the spot by P. W. 11, Mohammad Yaqub, 50 minutes after the occurrence. Both the brothers were shot and killed by the appellant with his revolver. The appellant has admitted in his examination under section 342 of the Criminal Procedure Code before the Sessions Judge, Hazara that he had fired two shots with his revolver but said that he had done so in self-defence and in defence of his brother Mir Akbar. It appears that there had been civil litigation between the deceased and others on one side and the two accused persons and others, on the other, over certain land. The accused party became successful in the appeal before the District Judge, Hazara on the 8th July 1967. On the 17th August 1967, at about 11 a.m. P. W. Mohammad Yaqoob who had been offering Fateha at the grave of his father, was attracted by noise in the vicinity of the house of one Zardad (not the appellant) 20$ paces away and when he proceeded there, he found the appellant and Mir Akbar exchanging abuses with some women. The appellant had his revolver flung round his waist while his brother Mir Akbar was armed with a `soti'. While P. W. Mohammad Yaqoob was trying to pacify the accused persons, Abdur Rehman deceased arrived and remonstrated with the accused and said that although the deceased had given the accused persons place to live in and also developed relationship with them, they did not allow the children of the deceased even to pass ever the land of the accused.
8. This was followed, first, by exchange of hot words between the parties and, then, by grappling between them. In the meantime, Abdur Rehman's brother Mohammad Zaman arrived armed with a sot! And soon he and Mir Akbar grappled with each other the appellant fired his revolver at Abdur Rehman and the latter fell down dead. Mir Akbar fell down in course of grappling with Mohammad Zaman. The appellant fired once again with his revolver, this time at Mohammad Zaman and the latter fell down injured and died shortly after. Both the accused then ran away towards their house 119 paces away from the spot. The occurrence was also alleged to have been witnessed by P. W. 12, Mohammad Farooq, son of Abdur Rehman and P. W. 13, Mst. Razia Bibi, sister of the two deceased persons.
9. The Police arrived at the spot as a result of the First Information Report and recovered 5 blood- stained stones, Exh. P. 5 from the ground underneath the body of deceased Abdur Rahman and some blood-stained stones from the ground underneath the body of Mohammad Zaman and some more blood--stained stones from near the two bodies. Among other things a spent bullet Exh. P. 10, from underneath the body of Mohammad Zaman and 2 pieces of butt of pistol, P. 11, from a distance of 4 paces from the dead body of Mohammad Zaman were also recovered. The police went to the house of the appellant and seized a revolver with its butt broken along with 5 empties in the chamber of the revolver. According to the Ballistics Expert, all these empties and the crime bullet recovered from the spot had been fired from the said revolver.
10. The medical evidence disclosed inter alga two bullet entrance wounds, one on the left arm and one below the left nipple of deceased Abdur Rehman, and one bullet wound of entry in front of chest of deceased Mohammad Zaman. There were also abrasions and contusions on both the bodies. Death in both cases was found to be instantaneous.
11. The appellant Zardad was examined on the 18th of August 1967, at 11-15 a.m. And the following injuries were found on him:
(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 posteromedial 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.
12. No pellet injuries were found on him at injuries Nos.4 and 5. However, on 29-8-1967, on X-Ray by P.
13. W. 16, Dr. Siddiqui, two pellets were revealed in the left forearm and one at the base of the thumb.
14. The pellets were small and penetrated only skin deep and according to the doctor they could be introduced easily through small punctures made in the skin.
15. The High Court has rightly observed that the right of private defence is essentially a question of fact. The appellant made the following statement in his examination under section 342, Cr. P. C.
16. Before the Committing Magistrate: "Q.-How do you explain the injuries on your person?
17. A.-I was attacked by the deceased and his party with firearm 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.
18. Q.-Do the bunch-keys Exh. P. 2 along with the handkerchief Exh. P. 4, the pair of footwear, Exh. 3 belong to you and were left behind by you on the scene of the occurrence. And also the pencil P. 12, plastic belt piece Exh. P. 9 belong to you and were left by you on the scene of occurrence?
19. A.-Yes. They belong to me. When I was attacked and I bad to run for my life. In that confusion the articles were left behind.
20. Q.-What is your statement and why are you charged?
21. A.-I am innocent and falsely charged. I claim the right of private defence and would give my detail statement in the Court of Sessions. On my report cross-case was registered but I do not know what happened to that case."
22. In his statement under section 342, Cr. P. C. Before the Sessions Judge the appellant, inter alia, stated as follows: ---Q.-It is alleged by the prosecution that Exh. P. 1 is the service revolver issued to you in your official capacity as a police Officer. What have you to say?
23. A.--It is correct. It has been issued to me for personal safety.
24. Q.-It is alleged by the prosecution that this revolver was recovered on your production before the Investigation Officer along with five empties Exh. P.17 which were in its Chamber. What have you to say?
25. A.-It is correct.
26. Q.-It is alleged by the prosecution that handkerchief Exh. P. 4, bunch of keys, Exh. P. 2, and pair of Chappals, Exh. P. 3, plastic belt Exh. P. 9, pencil Exh. P. 12, all belonging to you were recovered from the scene of occurrence. What have you to say?
27. A.-It is correct."
28. The appellant further stated "On 12-8-1967, I proceeded on ten days' leave. I spent about five days at Abbottabad and then on 16-8-1967, I went 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 for 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 westwards. 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 bolster, was struck by one such stone, and was broken into pieces. I had a corresponding injury on my waist. 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."
29. It may be mentioned here that the aforesaid keys, handkerchief and the pair of Chappals were made over to the Foot-Constable by P. W. 13, Mst. Razia Bibi and they were seized under a Memorandum, Exh. P. W. 5/4.
30. It appears that a cross-case, that was registered at the instance of the accused party, has failed.
31. No defence witness was examined in support of the plea set up by the accused.
32. It seems rather curious as to why the evidence of P. W. 13, Mst. Razia Bibi, sister of the two deceased persons whose presence has been deposed to by several witnesses, was disbelieved although it was she who had produced the aforesaid keys, handkerchief and Chappals, to P. W. 15 on the very day of occurrence, namely; the 17th of August 1967. Be that as it may, P. W. Mohammad Yaqoob does not appear to be a witness who was interested in falsely implicating the appellant. His evidence has received ample corroboration from the articles recovered from the spot as well as the pistol with five empties from the houses of the appellant and the evidence of the Ballistics Expert that the crime bullet recovered from the spot was fired from the said revolver.
33. So far as the plea of right of private defence is concerned, it is evident from the facts and circumstances mentioned above that it was the appellant who had come in front of the house of the said Zardad (not the appellant) and exchanged abuses with the women of the deceased party there. This naturally drew protests from Abdur Rehman and his brother Mohammad Zaman. Abdur Rehman was unarmed while his brother Mohammad Zaman was armed with a soti only. The grappling that followed between them and the appellant and his brother, and even if it was subsequently followed by exchange of stones between the appellant and some members of the deceased party, afforded little justification on the part of the appellant to bring forth his revolver and shoot not once but twice at Abdur Rehman. In any event, there is no evidence to show that Mohammad Zaman deceased who was alleged to have been grappling with the appellant's brother and succeeded in making him fall, did anything to cause an apprehension in the mind of the appellant that unless he shot at Mohammad Zaman the life of the appellant or his brother was in danger or that any of them might receive grievous injuries at the hand of Mohammad Zaman deceased. The evidence shows that Mir Akbar merely had 3/4 simple injuries on his person, which is consistent with the prosecution case that he and Zaman deceased grappled with each other.
34. Zarnan deceased had only a small stick 2 feet long and there is no evidence that he had used it against Mir Akbar. In his statement under section 342, Cr. P. C. Mir Akbar never said specifically that he was injured with a stick. It appears from the evidence that before the appellant had shot at Mohammad Zaman deceased, he had already shot at and killed his brother Abdur Rehman. In these circumstances it is highly improbable that Mohammad Zaman, armed with only a small stick would give cause for such apprehension as mentioned above. The pellets alleged to have been recovered from the fore-arm of the appellant are highly suspicious, for, if they were really there, Dr. Safdar who examined him on the 18th of August 1967, could not have failed to notice them. There is no evidence, whatsoever, to show that any member of the deceased party was armed with any fire-arm or that any such weapon was used on their side. It is highly improbable that if any member of the deceased party had been armed with a fire-arm and he had used it the appellant or his brother would have escaped without any serious fire-arm injury.
35. We accordingly think that at least so far as Mohammad Zaman deceased is concerned, the appellant had no right of private defence of person. Whether there did or did not exist a right of private defence is a question of fact determinable on the appreciation of evidence which is normally not the function of this Court. It was perfectly within the jurisdiction of the High Court to hold that it did not exist in the case of the death of Mohammad Zeman.
36. We may observe that even with regard to Abdur Rehman deceased, who was unarmed, there was no act on the part of this deceased which could cause any reasonable apprehension in the mind of the appellant that unless he fired with his revolver at the deceased, the life of the appellant would be in danger or he would be grievously injured.
37. In the facts and circumstances of the case, however, the commutation of the appellant's death sentence to transportation for life for the murder of Mohammad Zaman deceased, appears to us rather unfortunate. Allowing the appellant to escape a death sentence after having shot dead two persons in broad daylight is fraught with grave consequences to the society. This will further undermine the already waning confidence of the people in the administration of justice, and is likely to further aggravate the feeling of private vengeance in this part of the country. In the absence of any appeal by the State against the c order commuting the sentence death to transportation for life, we do not think it desirable to interfere with this sentence.
38. The appeal is accordingly, dismissed.
39. SAJJAD AHMAD, J.-I agree that this appeal be dismissed, but with all respect I do not share the comments of my learned brother Salahuddin Ahmed, J. In regard to the appellant's guilt for the murder of Abdur Rehman nor in the matter of the appellant's sentence for the murder of Muhammad Zaman, as awarded by the High Court. The High Court's finding that the appellant had exceeded the right of self-defence in killing Abdur Rehman, and he was, therefore, guilty under section 304, Part I, P. P. C. Has not been challenged before us. This finding and the consequent conviction having become final, any comments on the same are gratuitous, particularly as neither the State nor the complainants have chosen to bring the matter in appeal before us. Similarly, in the matter of commutation of the appellant's death sentence from death to transportation made by the High Court, I would refrain from making any comments to question the discretion exercised by the High Court in awarding the sentence, which is otherwise legal. In fact, on the findings of the High Court, which remain unchallenged, one could extend to the appellant the benefit of exceeding the right of self--defence for the murder of Muhammad Zaman, who came to the spot armed with a stick, as compared to his brother, Abdur Rehman, who was unarmed, and provoked the attack by the appellant. Muhammad Zaman's militancy did not come to an end even after his brother was shot dead, as according to the evidence, he grappled with the appellant's brother and had felled him down. But as the harm caused to the other side was wholly disproportionate to what was absolutely necessary for purposes of defence under the limitation contained in section 99 of the Penal Code, I do not feel inclined to interfere with the appellant's conviction on the murder count of Muhammad Zaman. However it seems clear to me, on my analysis of the evidence in this case, that this tragedy was due more to the fool-hardiness of the complainants than any pre-conceived deliberate design on the part of the appellant to kill any one. He did not take out his service revolver for use until he reached a point of desperation brought about by the conduct of the complainants.
40. As I am upholding the appellant's conviction under section 302, P. P. C. For the murder of Muhammad Zaman, I cannot interfere with the lesser sentence awarded to him by the High Court on that charge. The appellant may, if so advised, move the Government on the mercy side.