1. Two Criminal Appeals Nos. 167 and 168 of 1981 filed by the same appellant namely, Punhoon alias Rahim Bux were disposed by common short order, dated 10-2-1986 for reason to be recorded separately. By the said short order Appeal No. 167/1981 was allowed and in Appeal No. 168 of 1981 while maintaining the conviction, the sentence awarded to the appellant was reduced to the one he had already undergone and subject to such modification in the sentence the last mentioned appeal was dismissed. Following are the reasons in support of the aforesaid short order.
2. The prosecution case, in brief, is that about fifteen months before the occurrence which took place on 18-9-1979, motor-cycle of Ibrahim brother-in-law of complainant Moula Bux was stolen. No report was lodged with the police about the theft of the motor-cycle. However efforts were made to unearth the motor-cycle privately until, it came to light that the stolen motor-cycle was with Tharo Moondho. When the said Tharo was contacted he revealed that he had purchased the motor-- cycle from accused Punhoon Jatoi and Piroo Rajpar. He further promised his help in getting Punhoon arrested.
3. On the day of occurrence Ibrahim and Ali Muhammad who had been at Moro on receipt of message from Tharo Moondho met the latter and he pointed out to them Punhoon Jatoi. When Punhoon was approached by complainant and two witnesses namely, Ibrahim and Ali Muhammad and was told that he was the thief of their motor-cycle, there had been exchange of hot words between the two sides. Thereafter as the accused tried to run away, the complainant and his witnesses captured him whereupon he suddenly took out a pistol and fired it complainant who, however, missed the shot. The complainant and his witnesses took the accused alongwith pistol to the Police Station where F.I.R. Was lodged and the Pistol with three live cartridges and one empty cartridge were handed over to police. A separate case was also registered against the accused in respect of pistol and cartridges. After due investigation the accused was challaned in both the cases separately. In the case covered by Appeal No. 167 of 1981 he was convicted under section 307, P.P.C. And sentenced to R.I. For five years and fine of Rs.10,000 or in default R.I. For two years by Assistant Sessions Judge, Moro, vide his judgment, dated 30th July, 1981. On the same day he was also convicted in the case covered by Criminal Appeal No. 168 of 1981 under section 13-E, Arms Ordinance and sentenced to R.I. For three years. The accused has challenged the conviction and sentence passed against him by two separate appeals with the result mentioned above.
4. The complainant Moula Bux in his evidence (Exh.7) has almost repeated the prosecution case as briefly stated above. According to him he was posted as Tapedar in Moro when he accompanied by Muhammad Ibrahim and Ali Muhammad went to meet the accused Punhoon Jatoi at Bandhi Bus Stand. He has stated that when accused was confronted with the theft of the motor-cycle he pleaded his ignorance assuring them that he was not the thief. Nevertheless the complainant's evidence shows that the accused was asked by the complainant and his witnesses to accompany them for talks in presence of the witnesses. It is further stated by the complainant that as the accused refused to go with them he grappled with the accused with the result that his clothes were torn and on this he took out a pistol from folds of his trouser and fired at him but the shot did not hit him. Meanwhile, he further states, the accused was overpowered and taken to the police station with the help of his companions. The accused and the pistol recovered from him alongwith cartridges were delivered to the police.
5. Apart from complainant, the prosecution have examined Ali Muhammad (Exh.9) and Ibrahim (Exh.12). They have more or less supported the complainant's statement. The prosecution have also examined Suleman (Exh.11) who also supports the evidence of above witnesses inasmuch as that while he was holding his 'Tangs' on Bandhi Road he heard fire-shot and when he went to the place of occurrence, he found amongst others Muhammad Ibrahim and Ali Muhammad who had caught accused Punhoon who was having pistol in his hand. There is nothing to show that above witnesses had any motive to falsely implicate the accused. Therefore, they can be believed in as much that they came across the accused at the Bandhi Bus Stand where they had conversation with the accused about theft of the motor-cycle and that he denied the allegation and that when the complainant and his witnesses insisted upon him to go with them for 'Faisla', he refused whereupon they grappled with the accused. Meanwhile the accused took out pistol from folds of his trousers and fired a shot but it did not hit any of the witnesses. Ultimately he was taken alongwith pistol and three live cartridges and one empty cartridge to the police station and was handed over to the police and the pistol and cartridges secured from him were also delivered to police.
6. It is clear from the above evidence that the accused resorted to firing only after the complainant and his witnesses grappled with him on his refusal to go with them for 'Faisla' about the stolen motor-cycle. Therefore, question arises whether the accused made the firing in his self-defence as has been argued by the learned counsel for the appellant. To answer this question it has to be seen whether the complainant and his witnesses were justified in grappling with the accused. If not, the grappling was nothing short of wrongful physical restraint put upon the accused. It is an admitted position that theft of the motor-cycle in. Question had occurred fifteen months prior to the incident of this case and furthermore no report had been lodged with the police about the said theft. It has also come on record that the stolen motor-cycle was found by the complainant's party with one Tharo Moondho and it was from him that they learnt that accused was the thief of the motor-cycle. But unfortunately for reasons best known to the prosecution. Tharo Moondho has not been produced in evidence. Thus, the prosecution failed to prove that the accused was thief of the motor-cycle. Since the accused denied the allegation that he was the thief of the motor-cycle of complainant's party, he was right in refusing to go with them for 'Faisla' about the motor-cycle.
7. Consequently there was absolutely no justification for the complainant's party to insist upon him to go with them for 'Faisla' and on his refusal to physically capture him. Since the accused was subjected to wrongful restraint, he was obviously within his right to get himself free from the clutches of the complainant's party. In doing so, he is shown to have fired the pistol which he took out from the folds of his Shalwar. It was argued at this stage that the accused might have fired in the air only to create a scare in the minds of his captors so as to get himself released from their clutches. Obviously no one has been hurt by the pistol shot. Since accused had resorted to firing after he was captured by the complainant and his witnesses, it looks rather incredible that in that situation he could have aimed the shot at any of the witnesses. If he had done so the shot would not have missed. Therefore, it looks more reasonable that the shot was fired in the at. In the circumstances pointed out above, the accused was justified in firing the shot in air in his defence.
8. Consequently I am of .The view that accused had committed no offence by firing a shot from the pistol. As the prosecution have failed to prove their case, his Appeal No. 167 of 1981 was allowed and conviction and sentence passed against him in that case were set aside.
9. However, it has been proved beyond reasonable doubt that country-made pistol with three live cartridges and one empty- cartridge was secured from the accused's possession and he had no licence for the same. Accordingly he has been rightly held guilty under section 13-E, Arms Ordinance and convicted under that section. However that case has been pending ever since 1979 and the accused has remained in jail for more than 1 -- years. Moreover after admission of his appeal he has remained on bail for more than four years. In these circumstances, it would not be justified to send him back to jail to serve out the C remaining sentence. Accordingly the sentence awarded to him under section 13-E, Arms Ordinance was reduced to the period of imprisonment he has already suffered. Subject to this modification in the sentence, Appeal No. 168 of 1981 was dismissed as stated above.