NAZIR AHMAD BHATTI, J.--On 17-3-1981 at 1530 hours the appellant Ghazi Gul had an altercation with Nisar and Niamat Khan residents of Labour Colony, Sugar Mills, Mardan near Mardan Nowshera Road over the vacation of a quarter and was passing by a nearby police post of the Labour Colony having an automatic pistol in his hand. Constable Bahadur Khan was standing outside the Chowki in his police uniform and he asked the appellant to stop but the latter instead of stopping threatened the said Constable with the pistol and started running away. Constable Bahadur Khan pursued him and after covering some distance the appellant tuned round and fired pistol shots at the said constable with which the latter was injured and fell down A.S.I. Khan Mohammad, A.S.I. Ahmad Mukhtar and F.C. Amanullah saw the incident and they also started pursuit of the appellant. F.C. Amanullah fired a shot with the Government rife at the appellant in order to stop him from absconding with which the latter was hit and after some pursuit was apprehended by Khan Mohammad A.S.I. Along with the unlicensed automatic pistol of .32 bore containing one live bullet in its chamber. In the meanwhile the aforesaid three police officials came back to Constable Bahadur Khan and found him dead with four wounds on his front chest and two wounds on his back. The appellant was also injured on the buttock. Khan Mohammad A.S.I. Sent report of this occurrence, copy Ex.P.A./I, to police station `A' Division Mardan at 17800 hours where F.I.R. No. 86, copy Ex.P.A. Was recorded. After investigation the appellant was sent up for trial before the Addl. Sessions Judge, Mardan who charged him under section 353/506/302, P.P.C. To which the appellant pleaded not guilty and claimed trial. The State produced eleven witnesses in support of the prosecution case, out of whom P.W.5 Khan Mohammad A.S.I P.W.6 Ahmad Mukhtar A.S.I. And P.W.7 Amanullah F.C. Are eve-witnesses to the occurrence. The appellant was examined under section 342, Cr.P.C. And also appeared as a witness under section 340, Cr.P.C. But did not produce any defence. The learned Additional Sessions Judge vide judgment, dated 11-7-1984, convicted the appellant under section 302, P.P.C. And sentenced him to undergo imprisonment for life and also to pay a fine of Rs.10,000 or in default to suffer further R.I. For two years, out of the fine if realised, a sum of Rs.5,000 was to be paid to the legal heirs of the deceased Bahadur Khan as compensation. The learned trial Judge also convicted the appellant under sections 506 and 353, P.P.C. And sentenced him respectively to suffer one year's R.I. And to pay a fine of Rs.500 or in default to suffer R.I. For one month and one year's R.I. And to pay a fine of Rs.500 or in default to further suffer R.I. For one month.
The learned trial Judge also ordered that all the sentences shall run concurrently. The appellant has challenged his conviction and sentences through the present appeal.
2. The prosecution case as disclosed in the evidence of P.W. 5 Khan Mohammad A:S.I. Is virtually the same as reported by him in the report, copy Ex.P.A./I, and has been fully supported and corroborated by the other two eye-witnesses. P.W.6 Ahmad Mukhtar A.S.I. And P.W.7 Amanullah F.C.
The prosecution story as disclosed by the eye-witnesses in short is that the appellant passed by the police post having a pistol in his hand. He was asked by deceased Bahadur Khan F.C. To stop whereupon the appellant started running. He was chased by the deceased. After covering some distance the appellant fired four pistol shots at the deceased with which the latter was hit on the front of chest and died at the spot. The appellant was then chased by the three P.Ws. Khan Mohammad, Ahmad Mukhtar and Amanullah. The latter also fired a shot with his Government rifle with which the appellant was hit on the left buttock and was then overpowered by aforesaid three witnesses and arrested. P.W.5. Khan Muhammad A.S.I. Also recovered the said pistol from the possession of the appellant. P.W.9 Fazli Waheed Khan S.I. Reached the spot at 1850 hours and found the dead body of Bahadur Khan on the spot in police uniform. He took into possession the belt, cap and boots of the deceased and sent the dead body for post-mortem examination. This witness found four empties of .32 bore from the spot and took them into possession. He also took into possession the official rifle along with one empty shell produced by P.W.7 Amanullah. He sent the pistol and four empty shells of .32 bore to the Arms Expert whose report, Ex.P.N./1 shows that one of the empties was fired from the pistol in question. P.W.10 Mohammad Irshad Inspector Police took into possession the shirt, Banyan, Jersy and Pantaloon of deceased Bahadur Khan which was brought by P.W.11 Mashal Khan from the Civil Hospital Mardan after post-mortem examination of the deceased.
3. P.W.1 Dr. Mohammad Yusuf Khan, Medical Officer examined appellant Ghazi Gul on 17- 3-1981 at 6-30 p.m. And found:- .
(1) One fire-arm entrance wound left buttock lateral aspect 1/4" x 1/6" muscle deep.
(2) One fire-arm exit wound left lateral aspect iliac crest 1/2" x 1/4".
P.W. 2 Dr. Abdur Rehman, performed post-mortem examination on the dead body of F.C. Bahadur Khan on 18-3-1981 at 8-10 a.m. And found the following injuries:- External Examination.
(1) Fire-arm entrance wound on the middle of precordial region 1/3" x 1/3".
(2) Fire-arm entrance wound below the left nipple 1/3" x 1/3".
(3) Fire-arm entrance wound right lower front of chest 7th intercostals space 1/3" x 1/3".
(4) Fire-arm entrance wound right front 9th intercostal space 1/3" x 1/3".
(5) Fire-arm exit wound right postero-lateral lower part of chest 1/2" x 1/2".
(6) Fire-arm exit wound right lumber region 1/2" x 1/2".
On internal examination the doctor found thorax walls, ribs, and cartilages injured. Pleura, right lung, left lung, pericardium heart, blood vessels also injured. The doctor also found peritoneum, diaphragm and liver injured. According to the doctor the death was instantaneous and was caused due to injury to vital organs, causing shock and haemorrhage.
4. The appellant in his statement under section 342, Cr.P.C. Admitted that he was living in a room of one quarter of the said Labour Colony but he denied that any altercation had taken place between hi-n and Niamat Khan and Nisar. To the question as to what was his statement and why he had been charged he stated as follows:- "I am innocent and falsely charged. I have got enmities of blood feud. On the day of occurrence while I was looking after the loading of my luggage in the bus I was fired at by a person whom I did not know and was injured. He was going to fire another shot at me and apprehending danger to my life and thinking reasonably that the said persons might be some hired assassin and engaged by my enemies to kill me, I acted in exercise of the right of private defence to my life. The prosecution has not produced a single ocular witness from the public though the occurrence took place on Mardan Nowshera Road near the petrol pump of the Mills and also close to the premises of the factory of the Mills as well as offices thereof and the other houses both in the Labour Colony and those adjacent thereto. Similarly village Rorya is adjacent to the spot and no public witness was produced in support of the prosecution case.
5. From the prosecution evidence and the statement of the accused it has been proved that the appellant was apprehended at the spot by the aforesaid three eve-witnesses while he was in possession of a pistol of .32 bore. It has also been proved that the appellant had fired shots from his pistol at the deceased. The prosecution case is that the appellant was passing by the police post having pistol in his hand and he was ordered to stop whereupon he started running and after covering some distance turned round and fired four shots at the deceased Constable Bahadur Khan and then in order to effect his arrest P.W.7 Amanullah fired one shot with his Government rifle with which the appellant was injured his buttock and then overpowered. On the contrary the case of the appellant is that he was fired at first and injured and in self-defence he fired at the deceased taking him to be some hired assassin and engaged by his enemies to kill him. But this version of the appellant has not been proved from the circumstances of the case. The perusal of the cite plan, Ex.P.B., will show that the appellant came from the quarter of Niamat Khan situate towards the east of the police post, he passed by the police post where the deceased was standing at point No. 1 who asked him to stop when he was at point No. 2 from where he started running and was chased by the deceased. He was armed with a pistol and the deceased was doing his official duty in asking him to stop and was subsequently chased for considerable distance to effect his arrest. The site plan will show that the appellant was chased by the deceased for 208 steps and then he turned and fired four pistol shots at the deceased. The deceased was at that time in police uniform which will clearly establish the fact that the deceased was doing his official duty in apprehending the appellant whom he had seen armed with a pistol. Not only that the plea of right of private defence of body of the appellant is not established but on the contrary he was running from law.
Under section 46 of the Cr.P.C. It was the duty of the deceased to arrest the appellant and under subsection (2) he could use all means short of death to effect the arrest. The appellant had no legal right of private defence against his arrest for the simple reason that he was seen by the deceased in possession of a pistol and the latter was also in police uniform. The appellant also cannot claim the right of private defence of body because the deceased F.C. Was chasing him empty handed. This circumstance is proved from the fact that the deceased suffered four injuries at the hands of the appellant. At that time they were confronting each other and if the deceased was armed he could have also caused fire shot injury to the appellant, on the front. The fact that the appellant was injured on the buttock would show that he was running when lie was fired at. The circumstance of the case clearly shoe that the appellant was the first to fire at the deceased and then he was fire at by P.W. 7 Amanullah. In these circumstances no right of private defence of body was available to the appellant and in fact he was the one who fired first and injured the deceased.
6. From the aforesaid circumstances we have come to the conclusion that the offences with which the appellant had been charged were proved against him beyond any doubt whatsoever.
Although he committed the gravest offence but the extreme penalty of death has not been awarded to him by the learned trial Judge who came to the conclusion that the offence was not committed with a premeditation. The impugned judgment is not exceptionable on any ground. We would: there uphold the conviction and sentence of the appellant and would dismiss this appeal.
The appellant shall however, be entitled to the benefit of the provisions of section 382---B; Cr.P.C.
Which was not given to him by the learned trial Judge.