The two appellants, namely, Mumtaz Hussain and Muhammad Ashraf were tried together with Muhammad Sharif and Muhammad Tufail for the murder of Muhammad Amin Shah, in the Chauk of the Bazar of Shahpur Town, Police Station Manawala, by Sh. Abdul Waheed, Additional Sessions Judge, Sheikhupura. Muhammad Sharif and Muhammad Tufail were acquitted. Mumtaz Hussain was held guilty under sections 302/307, P. P. C. And was sentenced to transportation for life on the first count and to three years' R. I. On the second. The sentences were to run concurrently.
Muhammad Ashraf was convicted under section 324, P. P. C. And was sentenced to one year's R. I.
2. The occurrence took place on 7th of March 1969, at 8-45 a.m. The deceased Muhammad Amin Shah was taken to the Civil Dispensary, Shahkot for treatment. He breathed his last on reaching the dispensary. The doctor incharge of the dispensary sent ruqqa to the police in response to which A.
S. I. Raja Abdul Hamid (P. W. 20) came to the dispensary and recorded the statement of Irshadul Hasan (P. W. 17) brother of Muhammad Amin Shah deceased, on which the formal F.1. R. Exh. P. A./ I was drawn up.
3. Muhammad Amin Shah deceased was carrying on a General Store on the footpath of the Bazar where the occurrence took place. His two brothers Waqarul Hasan and Irshadul Hasan had also shops in the same Bazar. Mumtaz Hussain appellant is an opium contractor in Shahkot while Ashraf appellant is an opium contractor in Sangla Hill. Mumtaz Husain appellant suspected that Waqarul Basan was carrying on illicit sale of opium. About three or four months before the occurrence there was a raid at the premises of Waqarul Hasan by the officers of the Excise Depart--ment and a case under the Opium Act was registered against him which was pending at the time of the occurrence.
4. On the day of the occurrence at about 8-45 a.m. a marriage party was proceeding in the Chauk of the city. Mumtaz Hussain was a member of the marriage party. He entered into au altercation with Waqarul Hasan and asked him to stop the contraband trade of opium. This was followed by a scuffle. Muhammad Amin Shah deceased, Abdul Rashid (P. W. 13) and Barkat A.I (P. W. 19) separated them. Mumtaz Hussain went to his shop which is at a small distance and came back with his three co-accused. They were variously armed. Mumtaz Husain and Tufail were equipped with revolvers while Sharif had a hockey and Ashraf appellant had a khurpa in his hand. All of them attacked the complainant party whose members tried to fly for safety. Mumtaz Husain fired at Muhammad Amin Shah and Waqarul Hasan successively, both of whom fell down after they were hit by these shots. Irshadul Hasan was injured by Sharif with hockey stick and Abdul Rashid P. W.
Was given khurpa blow by Muhammad Ashraf appellant.
5. Dr. Muhammad A.I (P. W. 1) performed the post-mortem exami--nation of the deceased. He found one bullet wound of entrance on the left scapular region of deceased. There was also an abrasion on the front of left leg of the dead body. A bullet was recovered from the dead body and the wound caused by it was sufficient in the ordinary course of nature to cause death.
Abdul Rashid P. W. Had a contused wound, a tooth-bite and two abrasions, one on the right elbow joint and tire other, on the right knee joint.
Waqarul Hasan P. W. Had a punctured wound with burnt margins. It was a simple injury caused by a bullet. Barkat A.I and Irshadul Hasan P. Ws. Had suffered simple blunt weapon injuries.
6. Both the appellants were found to have injuries on their bodies. The doctor who examined Mumtaz Husain appellant was not produced at the trial but his injury statement Exh. P. S. And the medico-legal certificate by Dr. Jamil Ahmad on the same document shows that he had four abrasions.
Muhammad Ashraf appellant was examined by Dr. A.I Jawad Husain (P. W. 2). He found a bruise on his left cheek, two tooth-bites and one firearm injury on the left knee. These injuries were of 8 to 12 hours duration.
7. At the trial, Abdul Rashid (P. W. 13), Ghulam Nabi (P. W. 14), Ghulam Qadir (P.W. 15), Ghulam Mohy- ud-Din (P. W. 16), Irshadul Hasan (P. W. 17), Waqarul Hasan (P. W. 18) and Barkat A.I (P. W. 19) appeared as eye-witnesses to support the prosecution story. Out of these witnesses, Abdul Rashid, Irshadul Masan and Waqarul Hasan bore injuries on their persons. Ghulam Mohy-ud-Din was not mentioned in the F. I. R. The learned Additional Sessions Judge held that the story that Mumtaz Husain appellant, after the first grappling, had gone to his shop and had brought back his co- accused was not correct. Abdul Rashid P. W. Admitted that the shop of Mumtaz Hasain was visible from the place of occurrence and if he had emerged from his shop alongwith his co-accused, all of whom were armed, the members of the complainant party could not have failed to notice them.
Abdul Rashid P. W. Admitted that he did not see the accused coming from the direction of the shop of Mumtaz Hasain. He saw Mumtaz Hasain firing at the deceased and Waqarul Hasan P. W. From a distance of ten feet when they had already started to run. Abdul Rashid and other witnesses further said that when Mumtaz Hussain appellant had fired at Muhammad Amin Shah and Waqarul Hasan, he, Barkat and Irshadul Hasan felled Mumtaz Husain to the ground but did not succeed in wresting the revolver from him. Mumtaz Husain during the scuffle admittedly did not fire at any of his assailants.
8. It was argued by the learned counsel that best evidence available was not produced in this case. The marriage party of which Mumtaz Hussain appellant was admittedly a member, had gone only ten to fifteen yards when the occurrence took place. There were other unattached persons admittedly present near the place of the occurrence, but they were not produced. The learned counsel also submitted that the finding of the learned trial Judge that Mumtaz Husain of his co- accused had no right of private defence is not based on the proper appreciation of the provision of law regarding the exercise of right of private defence.
9. After having been taken through the entire evidence I have felt persuaded to come to the conclusion that there was only one encounter between the parties which flared up suddenly in view of an altercation between. Waqarul Hasan P. W. And Mumtaz Hasain appellant. It was also admitted by Abdul Rashid (P. W. 13) that Amin Shah, Waqarul Hasan, Irshadul Hasan and Barkat A.I were not the members of the marriage party but by a strange coincidence they were all present when the occurrence took place. It was admitted by Irshadul Hasan that the accused suspected that he alongwith Barkat A.I P. W. Was carrying on illicit trade of opium. He further admitted that he had a grievance against Mumtaz Husain because he had involved him in a false case. It was also admitted by Abdul Rashid that Ashraf appellant had taken hold of the khurpa from the shop of Faqir Husain, although later on, he and other witnesses said that they did not know wherefrom the khurpa had been brought. Ashraf appellant had admittedly two tooth-bites on his left thumb and a bruise on his left cheek. These injuries were not explained by the prosecution witnesses. His fourth injury which had been caused by firearm was held to have been fabricated.
10. It appears to rue that during the altercation between Mumtaz Husain and Waqarul Ilasan the protagonists on both sides entered lists. The members of the complainant party encircled Mumtaz Husain in the first instance and Muhammad Ashraf appellant and possibly some others came to his rescue. Irshadul Hasan (P. W. 17) made a very significant admission. He said that when he reached the spot he found Barkat A.I, Abdul Rashid and Waqarul Hasan P. Ws. Grappling with Mumtaz Hasain appellant. This means that Mumtaz Husain in this contest was outnumbered by members of the complainant party. Irshadul Hasan professes to have intervened in order to separate the parties but it does not require much imagination to come to the conclusion that he must have also sided with his brother and his companions in trying to overpower Mumtaz Husain.
Under the circumstances I do not agree with the trial Court that Mumtaz Husain appellant had no right of private defence. True, that Amin Shah deceased was injured at his back but the circumstances under which he was shot appears to be different from what the prosecution would have us believe. Mumtaz Husain was admittedly encircled by four or five persons belonging to the complainant party and in order to get rid of them fired two shots at random one of which hit the deceased and the other hit Waqarul Hasan P. W. The injuries on other P. Ws. And the accused indicate that there was grappling and tooth-biting between the parties. Ashraf appellant had admittedly used a khurpa an implement used by Halwais. Rashid admitted that Ashraf had picked the khurpa from a nearby shop. This supports my conclusion that there was an affray during which the accused used different weapons in self-defence.
11. Under section 100, P. P. C. a person who apprehends death or grievous injury can go to the extent of causing the death of his assailant in order to defend himself. It does not appear in this case that the com--plainant party were equipped with any dangerous weapon. Mumtaz Husain appellant had a right to rescue himself from his assailant but he could not B go to the extent of causing the death of Amin Shah. He, therefore, exceeded his right of private defence. His offence will fall under section 304, Part 1, P. P. C. And I alter his conviction accordingly. A sentence of seven years' R. I. Will meet the ends of justice in this case. The firearm injury on Waqarul Hasan was simple. The conviction and sentence of Mumtaz Hussain under section 307, P. P. C. Is set aside.
12. Muhammad Ashruf had picked up a khurpa from the shop of a Halwai in order to rescue his relative. The injury ascribed to him is a simple one. He has, therefore, not exceeded the right of private defence. His action was within the bounds of law. He is not proved to have com--mitted any offence. I, therefore, set aside his conviction and sentence and acquit him. The appeal is decided accordingly. The Revision Petition No. 725 of 1970 filed by the State is dismissed.