' Appellant Munawar (65) was convicted by Additional Sessions Judge, Sahiwal, vide order, dated 4-5-1981, under section 304, Part I, P.P.C. For having caused the death of Muhammad Fazil, aged 40 years, and sentenced to ten years' R.I. The learned trial Court has also sentenced the appellant to pay a fine of Rs,10,000, in default whereof to suffer six months' S.I. Fine, on recovery, has been directed to be paid as compensation to the relations of the complainant. The convict has filed appeal.
2. The occurrence took place at 1-00 a.m. During the night 30th June/1st July, 1980, in the courtyard of Mansha, in village Odanwali, Police Station Depalpur. F .I.R. (Exh.P.D. /1) was registered at Police Station Depalpur on 1-7-1980 at 7-00 a.m. By Muhammad Anwar, H.C. (P.W.3), on receipt of statement (Exh.P.D.) of Liaqat All (P.W.6), recorded by Manzur Hussain, S.I. (P.W.10) in village Amli Moti at 5-45 a.m. On the same day.
3. Manzur Hussain, S.1. (P.W.10) after despatching the statement (Exh.P.D.) to the police station for registration of the case, reached Kot All Akbar, where the body of the deceased was lying. After preparing the inquest report and the injury statement, he despatched the dead body for post- mortem examination and reached the spot, wherefrom he collected empty cartridges and blood- stained earth. Munawar appellant was arrested on 2-7-1980. He was found injured. The S.I. After preparing his injury statement got him medically examined by Dr. Muhammad Afzal (P.W.9). The appellant was found to have suffered 10 injuries. There was faint swelling on the left parietal eminence of head and swelling on the back of right forearm. He had also suffered contusions and abrasions on various points on left arm and some contusions and abrasions on the right arm up to shoulder. All the injuries were declared simple.
4. The same doctor had conducted the autopsy on the dead body of Muhammad Fazil and noted a fire-arm injury on his abdomen, as a result of which small intestines had protruded out. The doctor had recovered about 47 pellets and pieces of wad from the dead body. The doctor had opined that death was due to shock and damage to vital organs, as a result of fire-arm injury. According to his opinion the shot was fired from a close range, as there was black staining around the hole in the Kurta, which the deceased was wearing.
5. On 3-7-1980, Munawar appellant led to the recovery of gun (P.6) from heap of Tori, which was taken into possession vide memo. Exh.P.J. It was a licensed gun of Khalid, a brother of Nasrullah, employer of the appellant. It may be noted here that Nasrullah and Khalid are real brothers of Ali Akbar, father of Liaqat Ali, complainant.
6. After completion of necessary investigation, the challan was put to Court.
7. Liaqat Ali P.W. While lodging the F.I.R. Had stated that on 30-6-1980 at 10-00 a.m. He alongwith P.Ws. Shahbaz Khan, Saadullah and Fazil deceased were putting maize in the gunny bags in the fields near Abadi Odanwali when a cow of his uncle Nasrullah Khan trespassed into the thrashing field of maize. Munawar appellant followed the cow to take it back. His servant Fazil objected as to why he had allowed the cow to trespass, whereupon both of them lost tamper and started quarrelling but he alongwith his companions separated them. Munawar appellant threatened Fazil that he will avenge the insult. He had stated that for the night he slept at the thrashing field alogwith Muhammad Fazil (deceased), Saadullah and Shahbaz P.Ws. For guarding maize gunny bags. At about 1-00 a.m. Saadullah went to the tube-well of Nasrullah to take water. A short while later, hearing the cries of Saadullah, he alongwith Fazil deceased and Shahbaz went to the house of Mansha, from where the noise was coming. In the moonlight they saw Munawar appellant standing armed with a gun and abusing Saadullah, whom he had made to lie on the ground. When he saw them, he threatened that if anyone comes near him, he will be killed. Muhammad Fazil, however, went forward to save Saadullah. Munawar fired a shot at him, which hit Fazil on his abdomen, who fell down. He has further stated that he alongwith his companions tried to catch Munawar. Munawar raised gun to save himself. Shahbaz gave a Lathi blow on the gun, as a result of which the Butt of the gun was broken, whereafter Munawar appellant ran away with the gun.
They lifted Fazil (deceased) in an injured condition and took him to Basti Kot Akbar Ali. They started for Depalpur by placing the deceased in the car but he died on the way. His dead body was brought to Basti Kot Amir Ali, whereafter he proceeded to lodge the report. He met Manzur Husain, S.I. At village Amli Moti, who recorded his statement (Ex.P.D.).
8. At the trial Shahbaz (P.W.5), Liaqat Ali (P.W.6) and Saadullah (P.W.7) have narrated the eye- witness account. All the three witnesses have corroborated the statement (Exh.P.D.) of Liaqat All P.W. On the basis of which F.I.R. Was registered. Each one of them, however, had made improvement by saying that Shahbaz P.W. Had caused injuries to the appellant with Sota which he had picked up from the courtyard where the occurrence had taken place. Shahbaz was confronted with his statement (Exh.D.A.) before the police, wherein this fact was not found stated. Liaqat Ali P.W.
Was confronted with his statement (Exh.P.D.), wherein he was also not found to have stated this fact. Similarly, Saadullah was confronted with his statement (Exh.D.B.) before the police, wherein this fact was also not found to have been stated. Shahbaz (P.W.5) and Liaqat (P.W.6) have admitted that they were arrested by the police alongwith Amin, Shahadat alias Shadoo in the cross-version putforth by the appellant and that the allegation was that they had attacked the appellant alongwith Fazil deceased and had caused him injuries. They have admitted that they were sent to jail but were later released on bail.
' Manzur Husain, S.I. (P.W.10), who had investigated the case has also stated that Liaqat Ali, Shahbaz, Amin and Shahadat were arrested under section 307/452/148/149, P.P.C. On the counter-version putforth by the appellant that they alongwith Fazil deceased had attacked who ran to the house of Mansha, he was chased and was given injuries in the house of Mansha. He has stated that the case was also investigated by Mr. Abdul Qadir Bhatti, A.S.P., Depalpur. He has further stated in cross- examination that Ali Muhammad, S.H.O. Had submitted a report under section 173, Cr.P.C. Against the persons arrested under section 307/452/148/149, P.P.C. But later the case was got cancelled on the opinion of the P.D.S.P. This witness in cross-examination has also stated that neither the complainant at the time of lodging the F.I.R. Nor the complainant or any of the witnesses named in the F.I.R. Had come up with any explanation regarding injuries of appellant during investigation. He has also stated that at the time of arrest, the appellant in his first statement had come up with the plea of self-defence while stating that in fact he had been attacked by the complainant party and that when he was being injured, he fired a shot from the licensed gun of the brother of his employer to save his life. The evidence of recovery of gun and the empty cartridges was also led but that need not be recapitulated because the appellant has not denied to have fired a gunshot at the deceased and had also admitted that he had produced the licensed gun of Khalid, brother of his employer.
9. The appellant when examined under' section 342, Cr.P.C. Denied the whole prosecution case including the motive set up by the complainant party. In answer 'to the questioq "why this case against you", he has stated:- "A few days before the occurrence, I had given beating to Ijaz over a dispute of turn of water.
Complainant party was, therefore, aggrieved and it so happened that on the fateful night I was sleeping in front of my house at the tube-well of Nasrullah; that at about mid-night Fazil deceased, Shahbaz P.W. Armed with Sotas, ghahadit, Amin also carrying Sotas and Liaqat All P.W. Armed with a gun launched a murderous assault on me in order to avenge the beating of Ijaz. I had at that time a licensed gun of my employer. In order to save my life I ran towards the house of Mansha.
However, the above-stated persons followed me and attacked me. They gave me beating. In order to save my life, I opened fire and this fire hit Fazil deceased. Then the P.Ws. Took away Fazil deceased. This occurrence was witnessed by Mansha, Gulsher, and Hanif. During the investigation my version was accepted as correct and the P.Ws. Along with Amin and Shahadit were actually arrested and challaned. But subsequently at the advice of P.D.S.P. The challan against those persons was dropped. I am innocent. The complainant party was the aggressor and I had acted only to save myself. Malik Abbas Khokhar who had been a police S.I. Had been helping the complainant' party during the investigation and the police had falsely challaned me due to influence of the complainant party."
10. The learned trial Court has not believed the incident of motive and has discarded the evidence of the prosecution and has accepted the version put forth by the appellant. I have gone through the judgment of the trial Court and record of the case and have considered the contentions raised by the learned counsel for the parties.
The observations of the learned trial Court that the incident of motive cannot be believed for the reason that the Investigating Officer had not found either the cots or the gunny bags or maize lying at the place from. Where the witnesses have stated to have proceeded to the place of occurrence, seems correct. The learned trial Court has also taken into account the fact that in view of the presence of so many servants, there was no occasion for Liaqat Ali to have remained at the spot.
Further observation, of the trial Court that the statements of the P.Ws. That by working for the whole day to put maize in gunny bags, they had filled only 16/17 bags, cannot be accepted to be true, also is not questionable.
' The finding of the trial Court that the eye-witnesses cannot be believed and that their evidence does not inspire confidence is also based on sound reasonings. I do not find any material to differ with the same. None of the witnesses had given any explanation during the investigation of the injuries suffered by the appellant. Obviously they had withheld this fact with some ulterior motive, otherwise, the number of injuries was such that the same could not have slipped the notice of the witnesses. The story that Saadullah was dragged to the place of occurrence, that he was made to lie and was being abused when the witnesses reached there, also does not seem correct, for the reason that there was no fun for the appellant to have dragged him without either causing him any harm on the tube-well or when he had made him lie down at the place of occurrence. Had the occurrence taken place in the manner the prosecution witnesses have stated Fazil, deceased, because of the previous incident, would not have dared to go ahead knowing fully well that the appellant was armed with a gun and will do him so harm. In this view of the matter, the findings of the trial Court on this account are also not questionable.
The liability of a person who sets up plea of self-defence has to be judged keeping in view the number of persons who had launched the attack, nature of weapon wielded, number and nature of injuries received by him and the action taken by him in defence. In this case five persons had attacked the appellant. They were all armed with blunt weapons. Although the appellant was found to have suffered ten injuries, but except one swelling on the head, all other injuries were on non- vital parts. They were all simple. In this view of the matter, it cannot be safely presumed that he had apprehension of death. He might have apprehension of grievous injury. The weapon which he had picked up was more dangerous than the weapons with which his adversaries were armed. He could have avoided the attack by firing on non-vital parts of any of his assailants. The shot fired by him had struck the deceased in the abdomen, the result of which in all probability had to be death of the person fired at. In the circumstances, the appellant had exceeded the right of private defence. His conviction under section 304, Part 1, P.P.C. Is, therefore, upheld. However, the sentence awarded to him is not proportionate to the act done by him. The sentence is, therefore, reduced from ten years' R.I. To five years' R.I. The sentence of fine is also reduced from Rs,10,000 to Rs,5,000, in default whereof to suffer further R.I. For six months. With the alteration in sentence, the appeal stands dismissed.
' The appellant shall be given the benefit of the provisions of section 382-B, Cr.P.C.
' Order accordingly.