Muhammad Afzal Cheema, J.--Abdullah (68) and his son Wali Mohammad (32), residents of Chak No. 302/HR, Police Station Maroot, District Bahawalnagar, were tried by the learned Additional Sessions Judge, Bahawalnagar, the former for offences under sections 302/109 and 307/109, P. P. C. and the latter for offences under sections 302 and 307, P. P. C. for having caused the murder of Muhammad Ali, a nephew of Abdullah appellant, and having made a murderous attack on his brother Ghulam Nabi on the 14th of December 1967, in their village, the allegation against Abdullah having been confined only to abetment. Abdullah was convicted under section 302/109, P. P. C. with an award of transportation for life and was exonerated of the charge under section 307/109, P. P. C.
His son Wali Mohammad, however, was convicted on both the counts with an award of death penalty and seven years' rigorous imprisonment respectively. They have filed an appeal against their convictions and sentences and the case of Wali Mohammad has also been referred to us under section 374, Cr. P. C. This judgment will dispose of the appeal as well as the Murder Reference.
2. The facts of this unfortunate occurrence, as revealed at the trial, are that the houses of the parties were contiguously situated having a common partition wall. About 8/9 days prior to the occurrence a dispute arose between Muhammad Ali deceased and his brother Ghulam Nabi P. W. on one side and the two appellants on the other over the construction of the wall. It appears that Abdur Rehman brother of Abdullah appellant, wanted to re-construct his house, which necessitated the reinforcement of the partition wall between the parties. Accordingly he pulled down a portion of the same with a view to re-construct it. It appears that in order to economise both space and expense he wanted to keep it one and a half bricks wide, which was not acceptable to the deceased and his brother, who had also to share the costs, and insisted that it should be two bricks wide. The matter was, however, settled through the intervention of Khair Din complainant P. W. 7, first cousin of Abdullah appellant.
Wali Muhammad P. W. 9, held to be a disinterested witness, and Muhammad Siddique P. W. 12, an uncle of the deceased. It was agreed that the wall, unanimously and consistently described as the common wall would be two bricks in width. It is in evidence that the wall was built from the base up to the level of the roof of the deceased with a width of two bricks as mutually agreed but it was built three feet higher than the level of toe roof and in this portion the width was reduced from two bricks to one and a half bricks equivalent to 13/1". This according to the prosecution was the first violation of the gentleman's agreement arrived at between the parties although In addition to this the allegation also seems to be, as indicated by the Inspection Note of the learned Addl. Sessions Judge, prepared after spot inspection on the 12th of October 1969, in the course of the trial that the construction of three feet height above the roof level was not raised precisely in line with the base, shown as portion B in the plan prepared by the Addl. Sessions Judge on the spot, but was slightly shifted towards and constructed above portion A of the wall towards the house of the deceased.
The witnesses are not unanimous on this part of the allegation and Mst. Munawar Bibi P. W. 10, wife of Ghulam Nabi P. VI. 8 and Mst. Amina, widow of Muhammad Ali, deceased (P. W. 11), made no reference to it. This construction appears to have been raised by the appellants in the absence of the deceased and his brother, who on the fateful day, returned from their fields at Peshiwela. They found the two appellants standing on the roof of their verandah Wall Muhammad appellant holding a gun in his hand. They also climbed up their roof and according to Ghulam Nabi, the injured P. W. stopped the masons from proceeding with the construction. The parties being (wo on either side started quarrelling, which attracted Khair Din, Wali Muhammad and Siddique P. Ws. to the spot, while Mst. Munawar Bibi wife of Ghulam Nabi P. W. and Mst. Amina Bibi widow of Muhammad Ali deceased stood in the courtyard. The deceased dismantled a brick from the newly constructed wall whereupon Wali Muhammad appellant abused him telling him that if he dismantled another brick he would teach him a lesson. The deceased abused him in return and started dismantling more bricks whereupon Abdullah appellant allegedly exhorted his son Wali Muhammad to fire at the deceased which he did hitting him in the chest who fell down and died instantaneously. Wali Muhammad then fired a second shot at Ghulam Nabi P. W. 8 hitting him in the neck. He also fell down and became unconscious. A third shot was also allegedly fired though none was hit. Kltair Din then went to Police Station Maroot and after traversing a distance of ten miles lodged the report. Exh. P. A. which was recorded by Muhammad Raftq Muharrir Head Con stable P. W.
13. He then proceeded to the spot and recovered blood stained earth from the places where the deceased and Ghulam Nabi were injured vide memos. Exhs. P. B. and P. C. A brick Exh. P. 4 hit by a pellet was also taken into possession vide memo. Exh. P. D. The pellet was sealed into a phial vide memo F.xli. P. F.. Three empty cartridges (Exhs. P. 9 to P. 11) recovered from the roof of the appellants were also taken into possession vide memo. Exh. P. F. Muhammad Raliq Head Constable prepared the injury statement Exh. P. O and the inquest report Exh. P. M. Muhammad AH deceased and sent the dead body to the mortuary at Fort Abbas. On the following day Muhammad Firdos Sub-Inspector P. W. 14 took charge of the investigation arrested Wali Muhammad the same day who produced his licensed gun Exh. P. I, copy of licence F.xli. P. 2 and a bandolier containing eight .12 bore cartridges (Exh. P. I). These were taken into possession vide memo. Exh. P. H. He got prepared the site plan Exh. P. K. It may he mentioned in this context that the empty cartridges were not found to be weeded to the gun Exh.P. 1 and in view of the nega tive report of the Firearms Expert of the Forensic Science Laboratory at Lahore a second report was sought to be obtained from the Expert at Peshawar, which was also in the negative.
5. Doctor Slier Muhammad Medical Officer, Haroonabad, performed autopsy on the dead body of Muhammad Ali on the 16th of December 1967 at 9 a.m. and vide his post-mortem re port Exh. P. L. found the following injuries on the dead body :--
(1) A circular 1" diameter penetrating wound with inverted margins on the left side of the chest i" above and lateral-to the sterno clavical joint.
(2) A lacerated wound on the left side of the lower margin of the upper lip and right first inciser and both the left incisers and adjoining tsvo teeth below were broken. Tongue was also perforated.
(3) A penetrating would with inverted margins and was lacerated type, it was circular and of J" diameter and V' above the left nipple.
(4) Two penetrating wounds with inverted margins Y x apart from each other and 4" below the injuries Nos. 1 and 3 medial to injury No. 3.
(5) A circular Y diameter penetrating wound averted margins on the back of the left ohest in between 4th rib communicating with injury No. 3 (exit wound).
The wall of the thorax was perforated under injuries Nos. 1, 3, 4 and 5 and the third left rib was broken under injury No. 4, Left clavicle was broken under injury No. 1. Left 5th rib was broken under injury No, 5, Left pleura was perforated under injuries Nos. 1, 3 and 4. The larynx and trachea were filled with blood. The left lung was perforated on the track of injuries Nos. 3, 4 and
5. Pericaridum and heart were perforated as a result of injury No. 1 and a pellet was found on the back in between the fourth dorsal body which was broken. The base of the aorta was also ruptured.
The upper lip and the tongue wan injured under injury No. 2 and four teeth in the upper jaw were also broken. The stomach was healthy and contained about one ounce of thin pultatious strachy matter. The small intestines were healthy and empty, the large intestines were healthy and contained fluid faecal matter. The spleen was enlarged and blackish. In the opinion of the doctor death was due to shock as a result of extensive inlra-thoracic haemorrhage due to the rupture of the heart and lung under injuries Nos. 1, 3 and 4, which proved fatal. The injuries were caused by a firearm from a distance of 30 to 50 feci from front and a slightly on the left side of the deceased and were sufficient in the ordinary course of nature to cause death. Three pellets were extracted from the body of the deceased which were sealed and handed over to the police. The fourth pellet from the exit wound (injury No. 5) and the pellet in the mouth remained untraccd and had been possibly coughed out. Death had occurred instantaneously and probable time between death and post-mortem examination was 24 to 28 hours.
4. On the sdinc day, the doctor examined Glnilam Nabi P. W. 8, and vide his mcdico-lcgal report Exh.
P. N. found the following injuries on his person :--
(1) Multiple nail head sized lacerated wounds with inverted margins 62 iu number in an area of 14' x 8" on the upper part of back of (he chest on both sides. Moreover, on the left chest, the direction was from left to right slanting, X-Ray No. 49 shows one pellet neat the head of the left humerus bone due to which the movements oil the left shoulder-joint arc restricted.
(2) Multiple nail head sized penetrating wounds on the left side of the back of the neck and above that on the back of the head in all 30 number.
(3) Multiple nail head sized penetrating wounds on the left side of the face 13 in number, one of them passed through and through the check breaking 2nd left upper molar tooth. A pellet was removed out of the guns and tooth was also removed.
(4) Three lacerated wounds of nail head size. 'These were superficial and one of them on the left eye-brow and the other on the root of the nose and the third on the back of the nose almost in the centre. / Most of the wounds were superficial while some of them were muscle deep. Some pellets were removed and handed over to the police. X-Ray pictures showed multiple small pellets on the sites of injuries given under caption 1, 2 and 3, whose removal was not permitted by the condition of the patient. Injuries were caused by a firearm from a distance of 30 to 40 feet slightly from the left side of the victim. Injury No. 3 was grievous in nature while the rest were simple, all having been caused from 24 to 28 hours.
5. The prosecution case received full support from the testimony of Khair Din complainant* Ghulam Nabi, the injured P. W. his wife Mst. Munawar Bibi, Mst. Amina Bibi, widow of the deceased, and Muhammad Siddique P. W.
12. The learned Addl. Sessions Judge visited the spot on the 12th of October 1969, at the instance of the defence in the presence of the counsel for the parties, and although according to the consistent version deposed to by the aforesaid witnesses the newly constructed wall "B" was two bricks wide from the base to the level of the roof yet we lind from the report that the newly constructed wall "B" was one brick wide i.e., nine inches. Further observations made in the Inspection Note, however, were that portion A of the wall towards the house of Ghulatn.Nabi was plastered with mud, and that two almirahs were fixed in the wall B which did not extend to wall A keeping it intact. The learned Judge appears to have come to the conclusion that the portion A of the common wall exclusively belonged to the deceased and his brother Ghulam Nabi P. W. Contrary to the assertion of the P. Ws. however he observed that wall B was nine inches wide up to the level of wall A but above the roof it was about I3J'in width and to the extent of 4Y over the kaoha portion of wall zl which according to him belonged to Ghulam Nabi.
6. The stand taken by Wali Muhammad appellant during inquiry and at the trial was rather inconsistent. Before the committing Magistrate he raised the plea of alibi and false substitution and stated that he was present in his held at the canc-crusher and on his return home in the evening learnt that his maternal uncle Sardar had Hred with his gun killing Muhammad Ali and injuring Ghulam Nabi. Before the learned Addl. Sessions Judge, however, he raised the plea of private defence of person and property and stated as follows :-- "My uncle Abdul Rehman who was joint with my father started the construction of the wall one brick in width along the common wall behind the kothas of Ghulam Nabi. This wall was raised to the level of the roof and it was further raised by masons to a height of three or four feet above its level.
Ghulam Nabi P. W. and Muhammad Ali deceased dismantled this wall on the plea that some area belonging to them had been included in this wall. My uncle had not included any area of Ghulam Nabi P. W. Both of them abused and slapped masons and turned them away and started dismantling the wall. On hearing hue and cry I went on the roof of my house and requested them not to do so. They did not pay any heed to my words and started hurling pacca bricks on me and continued in the demolishing of the wall which exclusively belongs to my uncle and my father. In order to prevent the damage of our property and to save myself from the brick-bats which they were throwing at me, I fired one fire in exercise of my right of private defence of person and property. The fire hit Ghulam Nabi and Muhammad Ali. They were the aggressors. I acted in self-defence. My father was not there."
7. It appears that basing his finding on his Inspection Note rather than on the testimony of the prosecution witnesses the learned trial Judge came to the conclusion that the appellants had encroached upon the portion of the wall exclusively belonging to the deceased and his brother Ghulam Nabi, who were justified in dismantling the encroachment affording no right of exercise of private defence of property to the appellants. The defence suggestion to the P. Ws. that the deceased and his brother had hurled brick-bats on Wali Muhammad who in order to protect himself from being grievously injured, fired in self-defence was discarded as an afterthought and a mere figment of imagination. Accordingly he held that the offences of murder and attempted murder were established against Wali Muhammad and their abetment against his father Abdullah.
8. Having taken us through the record of the case, learned counsel for the appellants in his short and forceful submissions only pleaded for the commutation of the death sentence of Wali Muhammad and of course for the clean acquittal of Abdullah who was admittedly empty-handed and to whom only a lalkara was attributed. On the contrary, learned counsel appearing on behalf of the State as also the learned counsel appearing for the complainant, whose request for being given the floor was acceded to by us, strenuously contended that since at the time of the arrival of the deceased and his brother Wali Muhammad was already present, at the spot armed with a gun with which he fired three shots, a lenient view was not justified in the absence of a mitigating circumstance. Regarding Abdullah, it was contended that the lalkara in his case was quite distinguishable from that of a proverbial lalkara attributed to an innocent accused, but his exhortation really amounted to abetment for which he was rightly punished.
9. Having carefully considered the evidence on the record and the Inspection Note prepared by the learned Additional Sessions Judge with the help of the two site plans placed on the record, we are clearly of the view that there appears to be no justification in treating . the entire partition wall between the residents of the parties as two different walls of which portion A may be deemed to have exclusively belonged to the deceased and his brother and portion B to the appellants. On the contrary, the prosecution witnesses have consistently and repeatedly referred to the wall as one common wall obviously belonging to both the parties. Even in regard to the fresh construction of the portion B, the expenses had to be shared between them as admitted during cross-examination by Wali Muhammad P. W. 9 and Muhammad Siddiq P. W.
12. In the circumstances, therefore, we are not inclined to agree with the finding of the learned trial Judge that the common wall could be deemed to have exclusively | belonged to either party in fifty-fifty share. On the contrary, we are of the view that a common wall remains a common wall and can be used by both the sides for resting the beams or for other structural purposes. In this view of the matter even if we proceed on the assumption that a portion of the wall above the level of the roof was constructed over portion A, which appears to have been erroneously held by the learned Additional Sessions Judge to be the exclusive property of the deceased there would be no question of an encroachment particularly when we have it in the testimony of Wali Muhammad P. W. 9, the so-called disinterested witness, that the expenses were to be shared by the parties. Once this position is conceded the appellants would not only be justified in constructing a wall abutting on portion A but even completely covering it and of course without protruding further. A wall so constructed if sought to be forcibly dismantled would apparently amount to mischief as defined in section 425, P.
P. C. which would entitle the appellants to the right ofA private defence of property as envisaged by section 103 of the Pakistan Penal Code. The alleged violation of the settlement arrived at between the parties, namely that the width of the newly constructed wall should be two bricks at the base was reduced to one and a half bricks at the top though falsified by the Inspection Note of the learned trial Judge according to which it was nine inches at the base and 131* at the top, would if at all be a case of moral turpitude amounting to no offence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. On the contrary, in the instant case, we find that the act of shooting resorted to by Wali Muhammad was completely out of all proportions to the infliction of harm apprehended or done for which there was not the least justification. The deceased and Ghulam Nabi were empty-handed and were only dismantling the wall. Having killed Muhammad Ali, Wali Muhammad did not hesitate to fire a second shot at Ghulam Nabi, who too narrowly escaped death.
10. It was contended on behalf of the State that when the deceased and his brother Ghulam Nabi reached the scene Wali Muhammad appellant was already holding a gun and this coupled with the fact that he deliberately fired two shots at them one proving fatal, would clearly indicate his intention to kill both of them in which he partly succeeded, and as such the normal penalty of death would be fully attracted in the circumstances. Having carefully considered all the pros and cons of the matter we are of the view that the case would call for a commutation of death sentence for more than one reason. In the first instance, it is in evidence that except this dispute over the wall there was no previous bad-blood between the parties who were closely related having a common ancestor in the third degree. Although the immediate genesis of the dispute on the day of occurrence is not clearly established by unimpeachable evidence yet the alleged violation of the terms of settlement by the appellants' party in reducing the width of the wall at the top and slightly shifting it towards portion A of the existing wall leading to an altercation and an exchange of abuses would go a long way to suggest that it was not a case of premeditated cold- blooded ( murder. Even otherwise as discussed above, we are of the view that on the legal plane too the complainant party was not justified in forcibly dismantling the common wall which the appellants had the right to build. Thus considered from both points of view, a penalty of death would not be called for in the instant case. Learned counsel referred us in this regard to Partapa v. E npiror (1) and Kaicha Sarcar v. State (2). In the latter case, their Lordships considered quite a large number of cases under certain sections of the P. P. C. some of which would be attracted to the instant case justifying a lenient view in the award of sentence.
Accordingly, we commute the sentence of death awarded to Wali Muhammad which is not confirmed but maintain the conviction and sentence under section 307, P. P. C. with adirection for the concurrent running of two sentences.
11. The case of Abdullah appellant is much simpler and stands on a different footing. Unlike his son Wali Muhammad he was admittedly empty-handed. He is an old man of about 70 years of age and there is nothing to indicate that he was a man of a very impetuous or turbulent nature who remained impervious to the softening and sobering effects of age. Normally, one would think that the instinctive affection and sensitivity of an old father would be more in consonance with the preventive conduct rather than an exhortative one as attributed to Abdullah. It was contended on behalf of the State that since this exhortation attributed to him was clearly and categorically mentioned in the F. I. R. it could not be considered as an afterthought particularly when Abdullah was directly involved in the dispute. A further argument put forth in this regard was the non- implication of Abdur Rehman, brother of Abdullah, who wanted to reconstruct his house giving rise to the dispute over the wall. We are fully con scious of the two authorities of the former Chief Justice Cornelius, one relating to a proverbial Ialkara reported as Abdul Aziz v. Bashir Ahmad and another
(3) and the other where Ialkara could reasonably amount to an offence of abetment as explained by his Lordship in Chiragh Din v. State (4). Apart from the consideration mentioned earlier we are of the view that it would not be safe to convict him for an offence of abetment in the instant case. In addition to the consideration of his age and the psychological propensity and normal course of paternal conduct in these circumstances we find that the witnesses have made considerable improvements on their police statements in the attribution of exhortation to Abdullah. Khair Din who, on his own showing, would also have been personally aggrieved by the abuses hurled at him by Wali Muhammad as mentioned in the F. I. R. confined himself to only one exhortation therein.
Contrary to this at the trial, the number of exhortations was increased to three by him when he tried to create an impression as if Abdullah was keen on the complete extermination of the family of the deceased and his brother. Precisely the improvement was in these words : "Abdullah accused again exhorted Wali Muhammad that one has died and the other should also not be [5] spared. Wali Muhammad then fired at Ghulam Nabi which hit him on the neck. Ghulam Nabi also fell down. Abdullah accused again exhorted Wali Muhammad that each and every child of the family of Muhammad Ali and Ghulam Nabi should be killed. ''Similar improvements were made by other prosecution witnesses. Ghulam Nabi P. W. straightaway referred to the abetment of Abdullah.
Wali Muhammad P. W. 9 was also confronted with his police statement Exh. D. A. which was confin - ed only to one ialkam to whom he attributed three exhortations at the trial. Likewise, the two ladies Mst. Munawar Bibi and Mst. Amina Bibi (P. Ws. 10 and 11) attributed three exhortations to Abdullah contrary to one before the police, in their statements under section 161, Cr. P. C. with which they were duly confronted. Obviously implicit reliance cannot be placed on the testimony of witnesses of this kind and as such we do not consider it safe to maintain the conviction of Abdullah appellant which is hereby set aside. He is acquitted and should be discharged from his bail bonds. .