' Niaz appellant and his two acquitted co-accused Muhammad Hussain alias Bashir alias Muman and Mustafa alias Mohsan were tried by a learned Additional Sessions Judge at Okara for the murder of their co-villager Dona on account of their dispute over the trespass of a mare. On the conclusion of trial, vide judgment, dated 22-4-1987, where Muhammad Hussain alias Bashir alias Muman and Mustafa alias Mohsan were acquitted on the benefit of doubt, Niaz appellant was convicted under section 304, Part I, P.P.C. And sentenced to ten years, R.I. And a fine of Rs,10,000 or in default to further undergo three years, R.I. Half of the fine, if realised, was directed to be paid as compensation to the heirs of the deceased. The convict was extended the benefits of section 382- B, Cr.P.C.
2. The prosecution story in brief was that 5 or 6 days prior to the occurrence taking place on 22-9- 1985 the mare of Dona (deceased) strayed into the paddy field of Niaz appellant and damaged the crop. The latter seriously objected to this incident and even abused the former. During the exchange of hot words, Dona (deceased) even slapped the appellant. Shamir and Shafi intervened and separated them. Niaz appellant, however, left the place after extending threats to his opponents. On the aforesaid date at about 5-00 p.m., when Dona (deceased) accompanied by his brother Dosa complainant was returning to the village after taking a round of the crop of their brother Shamir and reached near the land of Haji Muhammad Sadiq, Niaz appellant armed with a gun, Muhammad Hussain alias Bashir alias Muman carrying a `sofa' and Mohsan empty-handed suddenly intercepted their way. Muhammad Hussain alias Bashir alias Muman and Mohsan raising a lalkara' challenged Dona (deceased) and his brother Dosa complainant, whereupon Niaz appellant fired a shot from his gun, hitting Dona on his abdomen as a result of which he fell down.
Muhammad Hussain alias Bashir alias Muman gave a `sofa' blow on the left side of the head of Dosa complainant but he snatched the same from him and caused injuries to Mohsan co- accused. The alarm raised by the parties attracted Zulfiqar and Bakhsha P.Ws. To the spot. Seeing them come, the assailants ran away. Dona was escorted in a seriously injured condition towards the Police Station and the Hospital for report and treatment but he died on the way. The matter was reported to the police by Dosa complainant and a case was registered under section 302/34, P.P.C.
During the investigation the police did not challan Muhammad Hussain alias Bashir alias Muman and only Niaz appellant and his brother Mustafa alias Mohsan were sent up for trial.
3. During the trial Muhammad Hussain alias Bashir alias Muman was also summoned to face it. All the three accused were charged under section 302/34, P.P.C. And on pleading not guilty, the prosecution led evidence against them by producing as many as 12 witnesses.
4. Dr. Nazir Hussain (P.W.1) had medically examined Dosa complainant and conducted post- mortem examination on the deadbody of Dona. He had found an abrasion simple in nature on the left side of the skull of Dosa P.W. Caused by a blunt weapon and describing this injury, proved the medico-legal report (Exh.PA.). During autopsy he had found a fire-arm injury on the abdomen of the deadbody of Dona having a wade and 29 small pallets embedded in the stomach and abdominal cavity. He proved post-mortem report (Exh.P.B.) after describing this injury. In his opinion, Dona had died of shock and haemorrhage because of the said injury which was sufficient in the ordinary course of nature to cause death.
5. Dosa complainant (P.W.2) and Zulfiqar (P.W.3) gave the eye-witness account. Muhammad Shafi (P.W.9) deposed about the motive of incident taking place five or six days prior to the main occurrence. The last witness was Munsaf Khan Inspector/S.H.O. (P.W.12). He had given the details of the investigation.
6. On the completion of prosecution evidence, the appellant and his co-accused were examined under section 342, Cr.P.C. They also recorded their statements on oath under section 340, Cr.P.C.
Muhammad Hussain alias Bashir alias Muman altogether denied his participation in the occurrence. Niaz appellant and Mustafa alias Mohsan co-accused, however, admitting their presence, took up the defence that on the day of occurrence the latter had rounded up the mare belonging to Dosa complainant and Dona (deceased) and wanted to take it to the cattle pound for getting it impounded but both of its owners attacked him and snatched it away. According to them, Mustafa alias Mohsan gave `rota' blow to Dosa complainant in self-defence but he did not desist and went on assaulting him. He raised cries attracting his brother Niaz appellant who first fired in the air in order to rescue his brother but when the assailants did not stop assaulting him, rather, advanced towards him (appellant), he fired at them in self-defence as a result of which Dona was fatally injured but he had no intention to kill him.
7. In support of their defence they produced Muhammad Aslam Revenue Patwari (D.W.1) and Dr. Sarfraz Hussain (D.W.2). The former deposed that Shamir's land was situated about 5-6 acres away from the place of occurrence towards the North-East, while Dona (deceased) and Dosa complainant did not own land within the radius of ten acres from the spot.
8. On the conclusion of the trial where the co-accused of the appellant were acquitted, he was convicted and sentenced in the manner aforesaid and aggrieved by the impugned judgment, he came up in appeal to this Court.
9. It was argued on behalf of the appellant that Mustafa alias Mohsan, the acquitted co-accused, was attacked by Dona (deceased) and Dosa complainant when he rounded up their mare which had strayed into his paddy field and was damaging the crop and was taking it to the cattle pound for getting him impounded and in that process they not only snatched away their mare but also caused him injuries, including a grievous one. According to the learned counsel, in that difficult situation when Mustafa alias Mohsan co-accused was under attack and was apprehending danger to his life, he raised alarm for help and his brother Niaz appellant, who resided at a short distance at the `dera', armed with a licensed gun came to the spot and in an effort to save the life of his brother, fired a shot which incidently hit Dona on the abdomen as a result of which he later died on his way to the hospital. In his opinion, the appellant committed no offence.
10. On the contrary, it was argued on behalf of the State that the incident regarding the trespass of the mare into the paddy crop of the accused party had taken place five or six days earlier and on the day of occurrence Niaz appellant, in order to avenge his earlier insult, intentionally killed Dona by firing at him with his shotgun when he alongwith his brother Dosa complainant was returning to the village after having a round of the crops of their brother Shamir. According to the learned State Counsel, in fact the appellant should have been convicted under section 302, P.P.C. And sentenced accordingly.
11. The occurrence took place near the land of Haji Muhammad Sadiq. It is in the cross-examination of Dosa complainant himself that the land of Haji Muhammad Sadiq was on lease with the accused party during the days of occurrence. From the statement of Rashid Ahmad Girdawar (P.W.5) it appears that Khasra No,70/21, in which the occurrence took place, was adjacent to Khasra No,70/21 which belonged to Haji Muhammad Sadiq but was in possession of Noora, the father of the appellant, as a lessee and Chah Badroon, where the accused party was residing, was at a distance of three acres away from the place of occurrence. It also transpires from his statement and that of Muhammad Aslam Patwari (D.W.1) that the complainant party did not own land in the vicinity of the place of occurrence and the land of Shamir, the brother of Dona (deceased), where he alongwith Dosa complainant had gone to have a round of the crops, was situated at a distance of about 5-6 acres away from the place of occurrence. All these facts go a long way to support the defence version that it was the complainant party which had gone over the land in possession of the accused party to forcibly take back the mare which their opponent had seized while damaging their crop and the incident took place suddenly when in the process of snatching their mare the deceased and his brother attacked Mustafa alias Mohsan and even caused him certain injuries, including a grievous injury. As a natural reaction, Niaz appellant was attracted to the spot in response to the call of his brother for help and since he was armed with a licensed gun, he fired at his assailants, one of which was hit and later died. The appellant in the circumstance had a right to save the life of his brother as the right of self-defence also extends not only to save one's own life but also the life of another person. He, therefore, committed no offence.
12. As a result, the appeal is accepted, the conviction and sentence of the appellant are set aside, and he is acquitted.