' SH. IJAZ NISAR, J.--- Ghulam Murtaza, A.S.I., Ghulam Haider, F.C., Ibadat Shah and Abdur Rehman were tried for the murder of Mansab Khan and Zaraiti Khan and for making murderous assault on Nawab Khan P.W. By judgment, dated 26-10-1982, learned Sessions Judge, Attock convicted Ghulam Haider under section 304, Part II, P.P.C. And sentenced him to 7 years' R.I. Ghulam Murtaza A.S.I. Was convicted under section 365, P.P.C. And sentenced to 2 years' R.I. Plus a fine of Rs,10,000 or in default to undergo 6 months' imprisonment. Ibadat Shah and Abdur Rehman were acquitted.
' Ghulam Murtaza, A.S.I. And Ghulam Haider F.C. Have filed appeal (Criminal Appeal No,206 of 1982).
' Nawab Khan has filed Criminal Appeal No,35 of 1983 for the enhancement of the sentences of the appellants.
' Criminal Revision No,27-A of 1983 is also for the enhancement of the sentences of the appellants. It was in pursuance of suo motu show-cause notice to the appellants for the enhancement of their sentences. All the matters shall be disposed of by this single judgment.
2. The prosecution case is that a cass was registered by Nawab Khan complainant at Police Station Hazro, District Attock regarding the theft of cattle belonging to Abdur Rehman (since acquitted).
The police had recovered three cattle belonging to Abdur Rehman from a cattlefair at Hazro and three were still to be recovered. Abdur Rehman (since acquitted) had issued threats to Nawab Khan P.W. That he would recover his remaining cattle from him which according to him were with Nawab Khan and another person to his knowledge. It is alleged that Abdur Rehman aforementioned was on friendly terms with the local police. He sought their assistance in this matter. In order to compel Nawab Khan P.W. To get the remaining cattle recovered, the police took into custody his wife, namely Mst. Khan Zadi and some cattle and were taking them to the police station when on the way Mansab Khan and Zaraiti Khan deceased alongwith others persuaded the police to refrain from taking Mst. Khan Zadi and the cattle of Nawab Khan to the police station. The police refused to accede to their request which led to the present occurrence culminating in the deaths of Mansab Khan and Zaraiti Khan and injuries to Nawab Khan at the hands of the police.
The occurrence was witnessed by Nawab Khan P.W.1, Muhammad Iqbal P.W.2 and Razi Khan P.W.3.
3. Nawab Khan reported the matter to the police by lodging F.I.R. No,280 on 31-10-1980 under sections 302/34, P.P.C. At Police Station Saddar Attock.
4. On the application of Nawab Khan, P.W., District Magistrate, Attock ordered a judicial enquiry into the matter which was conducted by A.C., Saddar, Attock, who recommended that the police officials named by Nawab Khan P.W. Should be challaned under section 304, P.P.C. Instead of section 302, P.P.C. And the public men nominated in the F.I.R. Be placed in column No,2. Feeling aggrieved, Nawab Khan P.W.4 filed a private complaint against all the four accused. The police case as well as the complaint were tried together. Evidence in the complaint case was recorded.
The judgment assailed in the present appeal was passed in the complaint case.
5. The prosecution examined Nawab Khan P.W.1, Muhammad Iqbal P.W.2 and Riaz Khan P.W.3 as eye-witnesses. Dr. G.M. Ghori P.W.4 conducted autopsy on the dead bodies of Mansab Khan and Zaraiti Khan. He also medically examined Nawab Khan P.W.
6. In the post-mortem examination of Zaraiti Khan (35) two entry wounds and two exit wounds caused by fire-arms were found on his body. The autopsy of Mansab Khan showed the presence of two fire-arm injuries.
7. Two blunt weapon simple injuries were found on the person of Nawab Khan P.W.1.
8. Ghulam Murtaza appellant was also medically examined and the following injuries were found on his person:--
(1) A contused wound on the outer side of right arm 8 x 4 c.m.
(2) A circular contusion 2 x 2 mm on the back of right hand depressed inward.
' According to the doctor, both the injuries were simple. Injury No,1 could be caused by a Soti while injury No,2 could be caused by a pellet fired from a long distance.
9. Muhammad Riaz F.C. Was also medically examined and a circular contusion on the back of middle part of his right ring-finger was found. According to the doctor, this injury was caused by a blunt weapon but it could also be caused by a pellet fired from a long distance.
' Munir Shah was also medically examined and simple blunt weapon injury was found on his person which could be caused by a pellet fired from a long distance.
10. Mr. Feroze Bakhat Qazi A.D.C.(G) C.W.4 conducted a judicial inquiry into the occurrence under the directions of District Magistrate, Attock. According to him Ghulam Murtaza, A.S.I. Stated before him that he accompanied by the police officials had gone to the house of Phulla and when he was being brought in custody as thief, his co-villagers gathered and tried to rescue him and in that process Mansab Khan and Zaraiti Khan were killed. The inquiry officer stated that as per his finding some villagers had attacked the police party and some gunshots were also fired and he found that as per medical evidence guns and Dandas were used to cause injuries to the police party in order to creat hindrance in the performance of their official duty. He went on to say that the other version put up before him was that the occurrence had taken place when the police was bringing Nawab Khan and his family members from their Dhok. His report is Exh.C.W.4/1. He recommended that the case registered vide F.I.R. No,280, dated 31-10-1980 should be converted into section 304, P.P.C. From section 302,. P.P.C. He also exonerated the driver and conductor of the Wagon. He considered the presence of Ibadat Shah accused at the spot as doubtful.
11. The appellants denied the prosecution allegations. Ghulam Murtaza, A.S.I. Made the following detailed statement:- "30-10-1980, Abdur Rehman co-accused lodged a report with me at Police Post Taxila, alleging theft of his cattle by Mahboob of Pind Jindan, Ashiq Hussain Shah of Sarai Kharbuza and Phul resident of village Bolianwal. I produce the certified copy of the report (Exh.D.1). On the following early in the morning I accompanied by H.C. Sughir Hussain, F.C. Ghulam Haider, F.C. Muhammad Riaz, all in uniforms and Abdur Rehman, Asiq Hussain Shah and Munir Hussain, came to Police Station Saddar, Attock, in connection with the investigation of this case. From there, I took Mumraiz Khan F.C. With me after entering the report in the diary and accompanied by my companions went to the Dhok of Phul alias Phula in the area of village Bolianwal. I apprehended Phula and when I was taking him towards the wagon parked by us, about 25-30 persons from the village headed by Khizar Hayat, overtook us. They fired at us and even gave us beating with Lathis and forcibly rescued Phul aforesaid from my custody. When as a result of Lathi brow given to me by Sardar, I fell down and Mansab deceased attacked me with a spear, Ghulam Haider, Constable, tried to rescue me as 3 or 4 persons wanted to drag and physically lift me and in that process the rifle which was loaded went off, hitting Mansab. Thereupon, Zairaiti who too was armed with a spear attacked Ghulam Haider Constable, who in self-defence fired at him and I was injured by the firing of the villagers also. Eventually, myself and my companions went out of the cardon and ran away. I came to the Police Station Attock and lodged the report.
' He produced copy of the F.I.R. Exh.D.J., copy of the entry in daily diary of Police Post Taxila showing the departure Exh.D.1, and copy of the F.I.R. Exh.D.W. Of the case being investigated by him.
12. Ghulam Haider appellant explained the occurrence in the following manner:-- "During the days of occurrence, I was attached to Police Post Taxila. On 31-10-1980, at about 3 a.m.
A.S.I. Ghulam Murtaza co-accused took me, H.C. Sughir Hussain, F.C. Muhammad Riaz, Abdur Rehman and Ashiq Hussain Shah, and Munir Hussain Shah, to Attock, for the investigation of a theft case and I was armed with service rifle, while Muhammad Riaz F.C. Was carrying handcuffs. We all travelled in a wagon and reached Police Station Saddar Attock, at 4-30 a.m. From the police station A.S.I. Took F.C. Mumraiz with a rifle and we all went to the Dhok of Phul in the area of village Bohianwal. He was standing in the courtyard of his Dhok and was identified by Ashiq Hussain Shah.
On the interrogation of A.S.I. Ghulam Murtaza, he offered to get recovered the stolen cattle. F.C.
Muhammad Riaz handcuffed him under the direction of A.S.I. Ghulam Murtaza and when we were taking him towards the wagon and had covered 1-1/2 furlongs about 20-30 persons headed by Khizar Lambardar, overtook us. They fired at us and one of the pellets hit A.S.I. Ghulam Murtaza, Khizar Lambardar exhorted his companions not to leave the police. They all cardoned us and Sardar attacked the A.S.I. Ghulam Murtaza with a Lathi. As a result of which, he fell down. I tried to rescue A.S.I. Ghulam Murtaza and when Mansab was attacking him with a spear, I hit it with my rifle and since it was loaded it went off hitting him. Seeing this, Zairati who too was armed with a spear attacked me but I warded the attack. He went on attacking me and exhorting his companions to attack me. In self-defence, I fired two shots in the air and releasing myself ran away. Khan Doran and others forcibly rescued Phul accused from the custody of F.C. Riaz. Some persons were snatching away the service rifle of Mumraiz F.C. And A.S.I. Ghulam Murtaza scared away them by firing two pistol shots in the air. Thereafter, we ran away. We came to Police Station Attock and A.S.I.
Lodged the report."
13. Ibadat Shah made a total denial of the occurrence while Abdur Rehman made the following statement:-- ' My six heads of cattle were stolen and I had been searching for them privately. I happened to locate three of them in the manner stated above through Hazro Police and for the remaining three, I was still making efforts. I came to know through Ashiq Hussain Shah that my cattle had been stolen by Phul of Bolianwal and Mahboob of Kot Janda. Eventually, I lodged the report with Police Post Taxila to that effect and on 31-10-1980, I accompanied by the police party readed by A.S.I.
Ghulam Murtaza came to the Police Station Saddar, Attock, wherefrom he associated a constable and we all went to the Dhok of Phula in the area of village Bolianwal. Ashiq Hussain Shah who was accompanying us identified him and he was apprehended by the police after he had admitted having stolen the cattle. He offered to get the stolen cattle recovered and when he was leading us towards the east, about 30-40 persons from the village overtook us.Khizar Lamberdar raised a Lalkara and fired at us followed by 4-5 persons who too fired at us. Myself, F.C. Riaz and A.S.I.
Ghulam Murtaza, all of us suffered pellet injuries. Bahadur gave a Sota blow to A.S.I. Ghulam Murtaza, as a result of which he fell down. Then I ran away and I do not know what happened."
14. The learned trial Court disbelieved the defence version by observing that Nawab Khan had no reason to rescue Phula from the police custody and came to the conclusion that the occurrence had taken place when the police party headed by A.S.I. Ghulam Murtaza was taking Nawab Khan complainant and his family members in custody after apprehending them from Dhok and in the rescuing process Mansab Khan and Zaraiti Khan were killed. The conclusion drawn by the learned trial Court about the genesis of the occurrence is mentioned in para. 23 of the judgment which may be reproduced below:-- "What actually seemed to have happened was that when the police party headed by A.S.I. Ghulam Murtaza was taking Nawab Khan complainant, and may be also his family members, in custody to some destination in order to recover from him (complainant) the remaining three stolen cattle belonging to Abdur Rehman accused, certain persons, mostly relations, including Mansab Khan (deceased) and Zaraiti Khan (deceased), came there and insisted on their release and in that process they physically intervened for obtaining their release which led to a scuffle and in that process where A.S.I. Ghulam Murtaza showed patience and despite his suffering blunt weapon injury at the hands of his opponent he did not harm anybody and tried to scare them away by firing a few pistol shots in the air. F.C. Ghulam Haider reacted violently and impatiently fired at the rescuers, killing Mansab Khan and Zaraiti Khan on the spot. No doubt, in a situation like this some right of self-defence was available to him but not to the extent he made use of it. I am inclined to believe that Mansab Khan (deceased) and Zaraiti Khan (deceased) like their companions, were empty-handed and F.C. Ghulam Haider accused, who was armed with a service rifle exceeded his right of self-defence by recklessly using it against them. Therefore, he committed an offence under section 304, Part II, P.P.C. As he knew that as a result of his firing at the unarmed rescuers he would inevitably kill some of them. He is, therefore, convicted accordingly."
15. The learned trial Court further observed that in the circumstances of the case, A.S.I. Ghulam Murtaza appellant did not share the liability of his co-accused Ghulam Haider F.C. But he did not deserve total exoneration because his act of reaching the Dhok of Nawab Khan and taking him and his family members had no legal backing. He was, therefore, held to be guilty of an offence under section 365, P.P.C. i,e. For wrongfully confining Nawab Khan and his family members, secretly.
16. In view of the above finding, the learned trial Court convicted Ghulam Haider F.C. Under section 304, Part II, P.P.C. For exceeding the right of self-defence and sentenced him to 7 years' R.I. And convicted A.S.I. Ghulam Murtaza under section 365, P.P.C. And sentenced him to 2 years' R.I. Plus fine.
17. It is argued on behalf of the appellants that there was no material justifying the conviction of the appellant under section 304, Part II or section 365, P.P.C. And that the evidence had been unnecessarily stretched in favour of the prosecution which is full of material contradictions and improvements.
18. The prosecution version as put forth by Nawab Khan P.W.1 was that he had been arrested in a case of theft of cattle on 5-10-1980 and had been released on bail and on the day of occurrence was present at his Dhok when the police arrived there and wanted to take him, his women-folk and cattle to the police station. On the alarm raised by him, his co-villagers reached the spot and tried to rescue them whereupon the A.S.I. Fired two shots which went amiss. At his instance, the constable accompanying him opened fire hitting Mansab Khan and Zaraiti Khan deceased.
According to him, Bahadar Khan and Abdur Rehman who were accompanying the police caused stick injuries to him. The names of A.S.I. And Foot Constable accompanying him were not mentioned in the report lodged by Nawab Khan at Police Station Saddar, Att ock.
19. On the other hand, the version of the appellants is that on 30-10-1980 Abdul Rehman co- accused had lodged a report Exh.D.I. At Police Post Taxila regarding the theft of his cattle by Mahboob, Ashiq Hussain Shah and Phula. On the following day, the police accompanied by other policemen proceeded to the Dhok of Phula and apprehended him and when they were taking him towards the wagon about 25-30 persons from the village headed by Khizar Hayat overtook them, fired at them and gave them beating with Lathis and released Phula from their custody. On seeing Ghulam Murtaza A.S.I. Falling down after receipt of the injuries, Ghulam Haider F.C. (appellant) tried to rescue him and in that process his rifle went off accidentally hitting Mansab Khan. Zaraiti Khan deceased who was also armed with a spear attacked Ghulam Haider F.C. Who in self-defence fired at him. According to Ghulam Murtaza A.S.I., he was also given fire-arm injuries.
20. Registration of case at the instance of Abdur Rehman at Police Station Taxila on 30-10-1980 under section 379, P.P.C. Against Phula etc. Stands fully established by Exh.D.I. This circumstance and corroboration to the defence version that the appellants had taken Phula into custody and were taking him to the police station when on the way his co-villagers attacked the police party and succeeded in rescuing him from the police custody after causing blunt weapon and fire-arm injuries to the police officials. The medical evidence also corroborates the above version. A circular contusion was found on the person of Ghulam Murtaza A.S.I. Which in the opinion of the doctor could be caused by a pellet fired from a long distance. Besides it, a contused wound was also found on his right arm. F.C. Muhammad Riaz who was accompanying the appellants was also found injured. The doctor who medically examined him stated that the injury suffered by him could be caused by a pellet fired from a long distance. The learned trial Court observed in para 23 of the judgment that what actually seemed to have happened was that when the police party headed by A.S.I. Ghulam Murtaza was taking Nawab Khan complainant and may be also his family members, in custody, to some destination in order to recover from him the remaining cattle belonging to Abdur Rehman, certain persons, mostly his relations including the two deceased came there and insisted on their release and in that process they physically intervened which led to a scuffle and in that process while A.S.I. Ghulam Murtaza appellant showed patience and despite suffering blunt weapon injuries at the hands of his opponents did not harm anybody and tried to scare them away by firing a few pistol shots in the air, F.C. Ghulam Haider reacted violently and impartiently fired at the rescuers killing Mansab Khan and Zaraiti Khan. The learned trial Court observed that "no doubt, in a situation like this some right of self-defence was available to him but not to the extent he made use of it and thus exceeded his right of self-defence and committed an offence under section 304, Part II, P.P.C."
21. The learned trial Court observed that Ghulam Murtaza A.S.I. Did not share the liability of F.C.
Ghulam Haider because he did not cause harm to anybody despite the fact that he was armed with a revolver and had suffered an injury and some amount of humiliation.
22. We are unable to subscribe to the view of the learned trial Court that the appellants had wrongfully confined Nawab Khan complainant and were taking him to some unknown destination when his companions attacked them (the police party). The version put forth by the appellants that they were taking Pimla into custody in connection with case F.I.R. No,115 dated 30-10-1980 seems to be more plausible. The appellants had no reason to concoct the story of the arrest of Phula in the case got registered by Abdur Rchman. If that case had not been so registered they could have very conveniently stated that they had gone to the Dhok of Nawab Khan complainant in connection with the case already registered against him and taking exception to their visit, Nawab Khan and his co-villagers attacked them. The prosecution has suppressed the material facts by not explaining the injuries suffered by A.S.I. Ghulam Murtaza and Riaz F.C.
23. The learned trial Court had come to the conclusion that F.C. Ghulam Haider appellant had exceeded the right of self-defence. We do not subscribe to the views of the learned trial Court because it is well-settled that an accused is judge of his own danger and permits him to repel the attack even to the taking of life and the Courts are to judge him by placing themselves in the same position in which he was placed. The accused's version is to be accepted if it appears to be reasonably possible in the circumtances of the case. The right of private defence cannot be weighed in golden scales. Mahmood Akhtar v. The State 1983 P Cr. L J 1641 may be cited with advantage where it was held that Court should view with indulgence the acts of person who in heat of moment under strong feeling of self-preservation pursues his defence a little further than is absolutely necessary. In the present case, the appellant F.C. Ghulam Haider finding him and his colleagues surrounded by armed people and apprehending death or grievous hurt at their hands fired from his service rifle. He was, therefore, entitled to the right of self-defence extending to the causing of deaths of Mansab Khan and Zaraiti Khan deceased. He could not be denied that right merely for the reason that the complainant party had suffered greater number of injuries than those suffered by his colleagues.
' Since the appellants had lawfully arrested Phulla in the theft case and were taking him to the police station, the charge under section 365, P.P.C. Is not made out against them.
24. For the .Foregoing reasons, the appellants' conviction cannot be maintained. Consequently, we accept their appeal, set aside their convictions and sentence and honourably acquit them of the charges. They are discharged from their bail bonds.