' This Criminal Appeal No,660 of 1983 and the connected Revision No,626 of 1984 filed by Muqarrab Khan for the enhancement of the sentence of the appellants arise from the judgment of learned Additional Sessions Judge, Mianwali whereby he on 30-10-1983 while acquitting Khawas Khan, Abi Zar, Draz Khan and Ghulam Hur co-accused convicted Mehr Khan, Ahmad Khan and Ayaz Khan appellants under section 304(1), P.P.C. For causing death of Isab Khan and sentenced them as under:-
(1) Mehr Khan appellant to imprisonment for life and a fine of Rs,5,000 in default thereof four months' R.I. He was also directed to pay Rs,5,000 as compensation to the legal heirs of the deceased or in default thereof four months' R.I.
(2) Ahmad Khan appellant to five years' R.I. And a fine of Rs,3,000 in default thereof three months'
R.I. He was directed to pay Rs,3,000 as compensation to the legal heirs of the deceased or in default thereof three months' R.I.
(3) Ayaz Khan appellant to 10 years' R.I. And a fine of Rs,4,000 in default thereof three months' R.I. He was also directed to pay Rs,4,000 as compensation to the legal heirs of the deceased in default thereof three months' R.I.
2. The occurrence took place on 21-6-1981 at 9 a.m. Near the house of Mehr Khan appellant situated in village Sawans of Police Station Mouch. The distance between the place of occurrence and Police Station is 12 kilometer. The F.I.R Exh.P.E. Was lodged by Muqarrab Khan P.W.6 at the Police Station on the same day at 11-15 a.m. Which was recorded by Muhammad Anis S.I. P.W.8.
3. The prosecution case was that the complainant had got a plot from Din Muhammad adjacent to his residential house in Sawans and he also obtained possession of the same. On 11-6-1981 the complainant was informed that the accused Ahmad Khan who was living near his house wanted to illegally dispossess the complainant of the said plot and wanted to raise a wall on the plot to establish his possession. On 12-6-1981 the complainant alongwith with his son Isab Khan deceased, Saif Ullah and Alam Khan P.W.7 reached the spot at about 9 a.m. They found the accused erecting the wall on the plot. Accused Ahmad Khan, Ayaz Khan, Khawas Khan and Abi Zar were armed with rifles while remaining accused Mehr Khan and Draz Khan and Ghulam Muhammad were armed with guns. The complainant party asked the accused to resist from commission of such illegal act on which accused flared up. Accused Ahmad Khan challenged that they should not be spared on which Mehr Khan and Ayaz Khan fired with their respective weapons which resulted in injury to Isab Khan on the chest whereafter all the accused fired towards the complainant party but the shots remained ineffective. Isab Khan fell down and the accused went to their houses when Muqarrab Khan' father of the deceased lodged the report at the Police Station Exh.P.E. The same was recorded by Muhammad Anees S.I. P.W.8.
4. Dr. Muhammad Akram Khan Medical Officer, D.H.Q. Civil Hospital, Mianwali P.W.5 conducted post- mortem examination on the dead body of Isab Khan and found following injuries on his person:-
(1) A fire-arm wound of entry 11 c.m. x 10 c.m. On front left side chest. It was 24 c.m. Below the left clavical and 11 c.m. From mid line.
' On internal examination the thorax the left side of the wall was punctured. The pleaura was punctured on left and right side. Trachea was cut. Right lung was perforated at upper level. Left lung was perforated at upper level. Blood vessels were perforated. The abdomen esophagus was perforated. Stomach contained 4 to 6 ounces of blood mixed with food. Small intestine contained traces of digested food and the large intestine was full of faecal matter. Bladder was empty. The rest of the organs of the viscera were healthy. One pellet recovered from under the right scapula, was sealed and handed over to police alongwith the clothes.
' In his opinion the death was due to shock and heart-failure because of injury No,1, which was sufficient to cause death in ordinary course of nature. The injury was caused by fire-arm. Probable time between injury and death was 5 to 30 minutes and between the death and post-mortem was 6 to 12 hours.
5. The appellants were arrested on 22-6-1981 by Sardar Ali Inspector P.W.9. On the same day, Mehr Khan produced gun P.6 alongwith live cartridges P.7 which was taken into possession vide memo.
P.C. Attested by Sher Khan P.W.9 and Muhammad Akbar (not produced). The recovery was effected by Sardar Ali S.I. On the same day Ayyaz Khan produced rifle Exh.P.4 alongwith a bullet P.5 which was taken into possession vide memo. P.C. Attested by the same witness. No recovery was effected from Ahmad Khan appellant. The memoranda was prepared by Sardar An S.I. P.W.9. It may be noted that no crime empty was recovered from the spot. Since no crime empty was recovered from the spot therefore the fire-arms recovered from the appellants were not sent to Forensic Science Laboratory.
6. To prove its case, prosecution examined 9 witnesses. Muqarrab Khan P.W.6 and Alam Khan P.W.7 have given the ocular account of the occurrence. They claim to have seen the three appellants and four acquitted accused in furtherance of their common object duly armed with fire-arms launching attack on the deceased and thereby causing his death. Sher Khan P.W.4 and Sardar Ali P.W.9. Have supported the recovery of the fire-arms from the appellants. The rest of the evidence is of formal nature.
7. When examined under section 342, Cr.P.C. Ahmad Khan and Ayyaz Khan denied all incriminating circumstances including their presence on spot at the fateful time. In a reply to the question as to why the case against him, Ahmad Khan appellant stated: "Plot alongwith Khola was owned by Din Muhammad and after his death it was owned by his sons Sher Muhammad Haji, Ghazi and Niazi, caste Dirkhan, residents of Sawans. They were in possession of this plot. The complainant wanted to purchase his plot but Sher Muhammad on 23-1-1980 vide sale-deeds D.E/1-10 sold away the plot and the Khola to me and delivered the possession. I was in possession of it since the date of sale. On the day of occurrence I alongwith my women folk and Ghulam Ahmad mason were constructing wall when Isab Khan deceased alongwith his brothers Asgher Khan, Faiz Ullah, Fateh Khan and Mir Baz, armed with guns, appeared there. They challenged me and assaulted. I alongwith my women folk and the mason, due to fear entered my house which is situated nearby. All the aforesaid persons, alongwith the deceased came up in front of my house and started firing on my house. During the reckless firing the deceased was hit by stray pellet and was injured. The prosecution witnesses in order to conceal their aggression showed a wrong venue of occurrence. During investigation correct facts were initiated by the Investigating Officer. I was empty handed at that time. The Police found me innocent alongwith Khawas Khan, Abi Zar, Draz Khan and Ghulam Hur accused."
' In defence he produced Raja Khan who has proved documents Exh.D.E/1 to 10.
8. The learned counsel for the appellants submitted that since the trial Court has held that it was a case of exceeding exercise of right of self-defence therefore each of the accused was responsible for his individual act and as such Ayaz Khan and Ahmad Khan could not have been convicted under section 304-1, P.P.C. For causing death of the deceased inasmuch as they had not caused any injury to him and that as far Mehr Khan appellant the learned counsel requested for reduction in sentence. Conversely the learned counsel for the State has supported the judgment of the trial Court. No one appeared for petitioner in the connected revision.
9. I have considered the rguments advanced by the learned counsel for the parties with care. I find that the trial Court has appreciated the case in accordance with the guiding principles laid down by the superior Courts for the appreciation of evidence in such like cases and has rightly come to the conclusion that while causing death of the deceased Mehr Khan had exceeded the right of self-defence. It is now well-settled that in case of exceeding of right of self-defence the person who actually causes the death alone would render himself to punishment for culpable homicide not amounting to murder punishable under section 304-I, P.P.C. And others would be responsible for individual act. Since Ayaz and Ahmad Khan had not caused any injury to the deceased therefore, they could not have been convicted for the death of the deceased. To my mind the learned Additional Sessions Judge has convicted them without legal justification.
10. This brings me to the question of the sentence of Mehr Khan. I find that in view of the finding that the appellant Mehr Khan was forced to act in exercise of right of self-defence, the trial Court should not have sentenced him to imprisonment for life for exceeding the right of his self-defence. The sentence awarded to him thus appears to be excessive and the same is hereby reduced to 10 years' R.I. And a fine of Rs,10,000 in default thereof two years' R.I. He is also directed to pay Rs,5,000 as compensation to the legal heirs of the deceased in default thereof six months' S.I.
11. For what has been stated above, the appeal is partly accepted. Ayaz Khan and Ahmad Khan are acquitted of the charge and the sentence of Mehr Khan is reduced as stated above. Ayaz Khan and Ahmed Khan are on bail. They stand discharged of bail bonds. Resultantly connected revision is dismissed.