Appellant Muhammad Ilyas has been convicted by the learned Sessions Judge, Sanghar under section 304, Part II of the Pakistan Penal Code and sentenced to rigorous imprisonment for two years and to pay a fine of Rs.10,000, in default, to undergo further R.I. For six months. The appellant has also been asked to pay compensation of Rs.10,000 to the wife and child of the deceased for whose murder he was tried, if the deceased has left behind any or in default to suffer R.I. For six months.
2. The case of the prosecution briefly is that the deceased had three brothers and two sisters. The appellant is the oldest among the brothers. The deceased Hadi Bux who was one of the brothers and was about 22 years of age was a drug addict and mostly used to remain out of the house.
Whenever he came to the house, he would demand money to purchase drugs. His family always pleaded with him to give up use of drugs, but in vain.
3. On the night of 22-8-1989 the deceased had returned to his house. His family one again impressed upon him to change his ways which was disliked by the deceased. On the day of the incident, the father, mother and sisters of the deceased had left the house on an invitation of one Saindad. His brother Mir Muhammad had gone to graze the cattle. Only the complainant, the accused and the deceased were left in the house. It was about 4.00 p.m. When the deceased one again demanded money from the accused. He also Remanded his share to the property. This resulted into a quarrel and on hearing the commotion P.Ws. Mir Muhammad, brother of the deceased and the accused and Luqman Leghari who also happened to be nearby came to the house of the accused. Thereafter, the deceased took out a country-made pistol and fired a shot at the accused. The accused in order to save his life ran inside a room but the deceased followed him there. The accused then took shelter near the door of the room and picked up a hatchet and gave several blows with the same to the deceased the deceased fell down. Thereafter, the accused went away with the hatchet.
4. The F.I.R. In respect of the incident was lodged by complainant Jan Muhammad at Police Station Sanghar at about 6.00 p.m. The same was recorded by P.W. Tufail Muhammad, Inspector, Police Station Sanghar. After lodging of the F.I.R. The said witness visited the Wardat which was shown to him by P.W. Mir Muhammad. The same was situated in village Said Khan Wassan, taluka Sanghar in the house of -the complainant. The Police Inspector saw the dead body of deceased Hadi Bux lying at the place of Wardat and he also found blood at the Wardat with pieces of brain of the deceased.
One country-made pistol was also lying near the deceased with a live cartridge. The witness then picked up blood-stained earth from the Wardat and also took the pistol and the cartridge in his possession and prepared mashirnama in presence of mashirs P.Ws. Muhammad Hassan Wassan and Yar Muhammad Wassan. The witness- then prepared inquest report of the dead body in respect of the said mashirs and sent the dead body to mortuary for post-mortem. P.W. Tufail Muhammad then recorded the statements of P.W. Mir Muhammad, Luqman Leghari and Lal Khan Wassan.
5. On 23-8-1989 P.W. Tufail Muhammad arrested the accused from village Said Khan Wassan in presence of mashirs Muhammad Khan and Yar Muhammad and prepared mashirnama Exh.11 in respect of the same. After his arrest the accused voluntarily produced blood-stained hatchet from the hedge situated on the Western side of the house. The same was sealed in presence of the said mashirs under mashirnama Exh.12.
6. On 24-8-1989 the witness produced the accused before P.W. Wahid Buy, Mukhtiarkar & F.C.M., Sanghar for recording of his judicial confession. The judicial confession which was recorded by the Mukhtiarkar & F.C.M. Reads as follows:- "We are four brothers. I am the eldest among them. My deceased brother Hadi Bukhsh was narcotics addict and he always used to receive money from me. On 21-8-1989, he demanded from me the amount but I did not give him the same, because I had not the amount. Therefore, being annoyed and issuing abuse he gone out. . Shortwhile after he returned back and spent that night at home. On 22-8-1989 in the morning, he one again demanded the money but did not give him because I had not the money. I told him that he should have to work. On which, being annoyed he gone-out. After that, my father, mother and 2 sisters went to other village for giving the invitation of `Chathi'. Only I and my younger brother Jan Muhammad were present at the house. On the same day at about 4 o'clock the deceased returned back at home. Issuing me abuse, he warned me that if I could not give him money he should commit my murder. He pulling out the pistol from his fold of `Shalwar' he tried to commit my murder. Raising cries I ran into the room of house and in order to self-defence gave him hatchet blow, which hit at the back side of head of the deceased and he had died. On this commotion Mir Muhammad and Luqman came whom I apprised the fact.
Thereafter, I fled from the house due to fear of the police then my brother Jan Muhammad lodged complaint at the P.S."
7. Thereafter, after receiving report from the Chemical Analyser in respect of the incriminating article Exh.25 and completing other formalities, the accused was challaned before the learned Sessions Judge, Sanghar to stand his trial.
8. The accused in his statement recorded under section 342, Cr.P.C. Denied to have intentionally committed the murder of his brother Hadi Bux under the circumstances enumerated above but according to him, injuries were caused by the accused to the deceased in his self-defence. The accused further denied that any blood-stained. Hatchet had been recovered by the Police at his instance, but the same, according to him, had been lying near the dead body.
9. Before the learned trial Court, the accused pleaded right of private defence. However, the learned trial Court found him guilty under section 304, Part II and convicted and sentenced him accordingly. The learned trial Court took into account the number of injuries caused by the accused on the deceased all of which were caused by a sharp cutting weapons such as hatchet. It' may be pointed out that according to the evidence of P.W. Dr. Atta Muhammad, the deceased had received six such injuries all of which were received on the vital part of the body of the deceased.
Consequently, although the learned trial Judge was of the view that the accused had acted in his- self --defence but according to him, he was guilty of exceeding such right by causing more harm' to the deceased than was necessary. He consequently, found the accused guilty as pointed out earlier.
10. Suffice it to say that there is sufficient evidence produced by the prosecution against the accused to indicate that the accused had caused the aforesaid injuries to the deceased under the circumstances as enumerated above. The prosecution case is supported by the evidence of three eye--witnesses of the incident, namely P.Ws., Jan Muhammad, Luqman and Mir Muhammad, all of whom had witnessed the said incident. Jan Muhammad and Mir Muhammad were the real brothers of the deceased as pointed out earlier. All of them had stated that the deceased after pulling out a pistol from the fold of his Shalwar took aim at the accused and ran after him.
According to them a shot was in fact fired at the accused but the deceased missed the shot.
However, thereafter, the accused ran inside the room and taking a hatchet which was placed against the door of the room gave blows on the head of the deceased as a result of which he died.
This evidence is further corroborated by the medical evidence of P.W.6, Dr. Atta Muhammad who found six incised injuries in the region of the skull of the deceased as a result of which the skull got fractured in multiple pieces and the brain membrane and meningial vessels were ruptured.
According to the doctor, death occurred on account of shock and haemorrhage as a result of multiple injuries received by the deceased over his head. The injuries received by him were collectively sufficient in the ordinary course of nature to cause his death. The above evidence is further supported by the evidence of the recovery of the blood-stained hatchet said to have been used in the commission of the crime at the instance of the accused, although the two mashirs namely P.W. 4 Muhammad Hassan and P.W. 6 Yar Muhammad did not support the prosecution on this point, as, according to them, the weapon used in the crime had been recovered by the police from the Wardat.
11. Another important aspect of the matter which requires to be noted is that, according to the evidence of the eye-witnesses, the deceased had fired a shot at the accused with his pistol but this fact does not find corroboration either from the F.I.R. Exh.5 or from the mashirnama of Wardat prepared by the accused Exh.9 or by the evidence of P.W. Tufail Muhammad who conducted the investigation in the case. Even the confession is silent on the point. P.W. Tufail categorically denied in his cross-examination that any empty was found by him on the Wardat. Although the learned trial Court has dealt with this aspect of the matter in its judgment but no definite finding appears to have been given in this regard.
12. Mr. M.A. Kazi, learned counsel for the appellant has mainly assailed the judgment on the ground that the appellant was entitled to a right of private defence under the circumstances of the case.
According to the learned counsel, as shown by the circumstances of the case, there was an imminent danger to the life of the appellant as the deceased, according to the prosecution evidence itself, had taken an aim at him and had already fired a shot from his pistol which, although, he had missed. Reliance has been placed by him on two cases earlier decided by this Court namely Gulzaman v. The State 1975 P Cr. L J 623 and Samoo v. The State PLD 1962 (W.P.) Kar.
495. In the first case, one serious injury was caused by the accused on the.Body of the deceased as the deceased had gone in a group and had tried to kidnap the accused's sister by force. Under the circumstances, the Court came to a conclusion that the accused had not exceeded his right of private defence. In the second case cited by the learned counsel for the appellant, the accused had killed the deceased with a hatchet in answer to deceased's causing two lathis blows to him, Division Bench of this Court which heard the appeal gave benefit of the right of private defence to the accused.
13. It would be worthwhile to re-examine the circumstances under which death of deceased Hadi Bux was caused by the appellant. No doubt, all the eye--witnesses have stated that deceased Hadi Bux first started abusing the appellant and then he suddenly. Took out a pistol from the folds of his Shalwar and fired a shot at the appellant while he ran inside the room. The deceased, however, followed the appellant one again taking an aim at him with his pistol on which the appellant picked up a hatchet which was lying inside the room and gave blows to the deceased as a result of which he fell down and expired. Although the version given \by the eye-witnesses in respect of firing of the pistol by the deceased at the appellant and recovery of the empty from the Wardat has not been supported by other, circumstantial evidence and that given by P.W. Tufail Muhammad but notwithstanding the fact that the eye-witnesses being related to the appellant might have tried to make obliging statements in his favour, the said evidence cannot be discarded and has to be taken into consideration by the Court. No doubt, as has been observed by the learned Judges of this Court in the case of Gulzaman v. The State that the accused is not expected to measure in golden scales the degree of threat held out to him when he exercises the right of private defence under stress of self-preservation and it was further held that in case of doubt where such right was exceeded by the accused, the benefit would still go to the accused but nevertheless the Court has to consider the circumstances of the case carefully and to determine whether the accused has exceeded the right of private defence given to him by the law. Although one has to take into consideration the fact that the accused and the deceased were real brothers and the deceased could not have held any illwill or malice against the deceased but the number and the seriousness of the injuries received by the deceased at the hands of the appellant has to be considered. The appellant had a quarrel with the deceased just before the incident and the nature of injuries received by the deceased shows that the blows had been inflicted by the appellant with an element of vengeance. One A may also take into consideration the fact that no injury was received by the appellant from the pistol from which the deceased is alleged to have fired a shot at the appellant. Mr. MA. Kazi has although argued that the fact that the deceased had fired upon the appellant must have given him sufficient apprehension of danger to his life, however, in my view, this aspect of the matter has to be considered in the light of the total circumstances of the case.
The very fact that the deceased allowed the appellant to pick up a hatchet and inflict blows with it on him, when he was himself armed with a pistol clearly suggest that there was no such serious danger to the life of the appellant. Under the circumstances, the conviction ' of the accused under section 304, P.P.C. Is not open to exception. I am also of the view that the sentence of two years and a fine of Rs.10,000 or further compensation of Rs.10,000 awarded to the dependents of the deceased is in proportion with the offence committed under the circumstances of the ease.
14. In the result, I find no force in this appeal and the same is dismissed.