MIAN BURHANUDDIN KHAN, J.--Accused/respondent Anwar Khan was condemned to death by the learned Additional Sessions Judge, Rawalpindi under section 302, P.P.C. For committing the murder of Mahmood Ejaz at about 5-30 p.m. On 8-2-1974 in village Garhi Afghana, within the limits of Police Station Wah Cantt., Tehsil and District Rawalpindi. He filed an appeal in the Lahore High Court challenging his conviction and sentence and Murder Reference was also placed before the learned Judges for confirmation of the death sentence, awarded by the learned trial Court to the accused /respondent Anwar Khan. The learned High Court allowed the appeal filed by the accused/ respondent Anwar Khan and answered the Murder Reference in the negative.
2. Khalid Javed complainant /P. W. Visited Sher Khan on 8-2-1974. While leaving the house of Sher Khan he was accompanied by Mahmood Akhtar, his nephew. Near the house of Ghulam Muhammad the complainant saw Mehmood Ejaz running in the street. Anwar Khan accused/ respondent, Gustasab and Mahmood Khan of Gari Afghana, who are inter-related, were chasing him. Anwar Khan was carrying a .12 bore pistol. Mehmood Ejaz was overtaken near the house of Karam Dad by the accused and they started giving him fist and kick blows. The deceased who was armed with a Danda, wielded the same in his self-defence, whereupon Anwar Khan, the accused /respondent called upon the other accused to get aside, and thereafter, he fired at the deceased Mehmood Ejaz who was hit in the chest, fell down and died instantaneously. The accused then decamped.
According to Khalid Javed complainant/ P. W. Two months prior to the occurrence, the deceased alongwith Zafar Khan and Yaqub Khan had quarrelled with Anwar Khan and Rafaqat Khan. A report to this effect was lodged in the Police Station Taxila and the parties were bound down for keeping peace with this grudge in his mind the accused respondent alongwith the other accused, acquitted by the learned trial Court, killed Mehmood Ejaz.
3. Report Exh.P.A. Was lodged in Police Station Wah Cantt. And thereafter Tajammul Hussain P.W.14 the Investigation officer visited the spot, and after preparing the injury statement and the inquest report, he sent the dead body of the deceased to the mortuary for post-mortem examination. He then proceeded to inspect the spot and collected from there an empty Exh. P.3 and sealed the same into a parcel vide Memo. Exh. P.C. He also seized a Danda Exh. P.4 from the spot and took the same into possession vide Memo. Exh. P.D. He searched for the accused but they were not found present in the village. He, however, arrested Anwar Khan accused /respondent on 14-2-1974 and at that time Anwar accused was found in possession of an unlicensed .12 bore pistol P.1 which was loaded with the cartridge Exh. P.2/3 alongwith 2 live cartridges Exh. P/1-2. The Investigating Officer made the pistol into a parcel and seized the cartridges and the pistol P.1 vide Memo. Exh. P.B. And the same were sent to the Ballistic and Arms Expert whose report is Exh. P.O. According to this report, crime empty marked 'C' had been fired by .12 bore pistol.
4. Dr. Abdul Halim P.W.1 performed the post-mortem examination on the dead body of Mehmood Ejaz and he found a 3" circumference on the right side of chest with eight marks of wounds of inlet pellets each of the size of 3/4" x 3/4" with edges inverted; and an oblique brown-red mark of abraded contusion 1-3/4" x 3/4" in the front left side of chest. In the opinion of the doctor death was due to haemorrhage and shock as a result of injury No. (i) which was sufficient to cause death in the ordinary course of nature.
On 18-2-1974 the same doctor medically examined Gustasab Khan, the acquitted accused and found a healing wound on left side of nose 1-1/4" and another healing wound on left side of face 1" long and edges closed.
5. At the trial, the prosecution examined Khalid Javed P.W. 12 and Mahmood Akhtar P.W.13 as eye- witnesses of the occurrence.
High Court Judges have considered the prosecution evidence in its entirety and passed the order of acquittal on reasons detailed as under: "As said above, Khalid Javed was residing in village Lossar Sharfoo, five miles away from the place of incident. It is in the evidence of Shaukat P.W. 10, that the said village was at a distance of four furlongs from the police station. During these days of speedy means of communication it could not be said that the fact that Khalid Javed had lodged the report at the police station after 1-1/2 hours of the incident which purportedly took place at 5-30 p.m. Is sufficient to guarantee his presence at the time of incident.
Haider Khan maternal-uncle of Ghulam Rasool, brother-in-law of Khalid Javed and father of Mahmood Akhtar was murdered by Muhammad Nawaz father of the appellant and his two brothers including father of Gustasab accused and they were sentenced to some terms of imprisonment ...."
The evidence of recovery was also discarded on the ground: "Muhammad Taj P.W.11 who had testified to the recovery of crime empty P.3 is also resident of Lossar Sharfoo the village of Khalid Javed P.W.12 which as said above, is at a distance of five miles from the place of incident. He says that he had visited village Garhi Afghana to fetch medicine for his ailing daughter. Shaukat Khan P.W. 10 resides at a distance of twenty miles from the place where the appellant was arrested and recovery of pistol etc. Was effected from him. Besides other defects in their evidence. "Muhammad Taj and Shaukat Khan were on their own showing, chance witnesses. As said above, village Lossar Sharfoo is at a short distance of four furlongs from Wah where all medical facilities were available. It is not understandable why the witness should have gone 4-5 miles away to bring medicine from a village for his daughter."
6. In view of the above findings of the learned High Court Judges, we may add that it is the prosecution case that the deceased was chased by the three accused and he ultimately, when cornered, used his Danda against Gustasab. The possibility, therefore, cannot be excluded that Ejaz Mehmood deceased who had a Danda with him, used it against Gustasab when he found him near the scene of occurrence and on Gustasab's cries for help, the accused/ respondent Anwar Khan came out and fired at the deceased. In such a case Anwar Khan, A accused would be entitled to the right of private defence of the person of Gustasab acquitted /accused, and such plea can be gathered from the facts of the case.
As a result of the above finding, we dismiss the appeal.