' Rustam Zaman (30) son of Rchmat Din, resident of village Talokar, Tchsil and District Haripur, was tried for the murders of Nazakat son of Yousaf and Gul Zaman son of Jamroz under section 302, P.P.C. On two counts and also on two counts under section 307, P.P.C. For committing murderous assaults on Gul Zaman son of Haider Zaman and Muhammad Akram son of Hayat Muhammad by firing at them. The occurrence took place at 10-25 a.m. On 11-2-1990 in Panian Chowk, on Hazara Trunk Road, leading from Havelian to Hassan Abdal within the jurisdiction of Police Station Haripur.
2. The report of the occurrence was drafted by Munawar Sultan, Head Traffic Constable, Haripur, who alongwith Qaisar Munir and Dildar Traffic Constables was present at the Chowk performing his traffic duties. The learned Sessions Judge convicted Rustam Zaman appellant under section 304, P.P.C. On two counts and sentenced him on each count to rigorous imprisonment for 10 years and a fine of Rs,5,000 or in default to suffer further rigorous imprisonment for 6 months. He was further convicted under section 308, P.P.C. And sentenced to rigorous imprisonment for three years for causing injuries to Gul Zaman. All the sentences were directed to run concurrently. Half of the fine on realization was directed to be paid to the legal heirs of the deceased. The appellant was, however, acquitted of one charge of murderous assault on Muhammad Akram (P.W.13).
3. Feeling aggrieved Rustam Zaman appellant has come up in appeal to this Court.
4. The occurrence described in the Murasila Exh.P.A./1 drafted by Munawar Sultan has taken place in the following manner: On 11-2-1990 at 10-25 hours Munawar Sultan T.H.C. (P.W.9), Qaisar Munir (P.W.10) and Dildar P.W. (not examined) T.F.Cs. Were present on traffic duty at Panian Chowk, Haripur, when Suzuki Pick-up No,AD-559 being driven by Parvez (P.W.7) stopped near the Fruit Cabin of Abdul Majid (P.W.8) and 5 persons alighted therefrom. One of them who was later on named as Nazakat son of Yousaf, resident of Darwaish, and was armed with a pistol of .30 bore forcibly picked up Abdul Majid (P.W.8) with the help of his co-accused and attempted to place him in the Suzuki Pick-up upon which driver Pervez (P.W.7) switched off the Suzuki Pick-up and got down. Abdul Majid (P.W.8) was resisting his abduction, upon which Nazakat opened fire and simultaneously started hurling threats restraining every one from coming near them. Munawar Sultan (P.W.9) went ahead to catch hold of Nazakat upon which the latter also fired at the former but luckily the fire went amiss. A person standing in front of the Fruit Cabin of Abdul Majid (P.W.8) whose name was later on disclosed as Rustam Zaman returned fire in order to save himself and Abdul Majid (P.W.8) as a result of which Nazakat and his co-accused Khan Zada and Gul Zaman were hit. Muhammad Akram a "Rehri Wala" who was selling his fruit near the spot who was not a party to the firing was also hit as a result of the cross-firing. Nazakat after getting injured handed over his pistol to his compatriot, who later on disclosed his name as Arshad but Qaisar Munir (P.W.10) succeeded in snatching it from him upon which Arshad was able to make good his escape. Dildar P.W. (not produced) Traffic Constable attempted to apprehend Liaqat brother of Nazakat who was armed with a dagger but he threw k in the Suzuki Pick-up and took to his heels.
Rustam Zaman appellant was overpowered by the police officials aforesaid and deprived of his pistol. All the injured were rushed to the nearby civil hospital where Nazakat succumbed to his injuries. Rustam Zaman had furnished the background of the occurrence saying that Liaqat and Abdul Majid (P.W.8) had a quarrel on the previous day which had been compromised but the opposite-party was not satisfied and, therefore, they had attempted to avenge the earlier quarrel.
5. Muhammad Farid Khan, S.H.O., Police Station, Havelian, (P.W.16) on receipt of information rushed to the spot where Munawar'Sultan (P.W.8) handed over to him the report Exh.PA./1 which was despatched to police station for registration of the case and on the basis of which the F.I.R. Exh.PA.
Was drawn up. Muhammad Farid Khan (P.W.16) prepared the injury sheets Exh.P.W.16/1 of Muhammad Akram, Exh.P.W.16/2 of Gul Zaman, Exh.P.W.16/3 of Khan Zada, Exh.P.W.6/6 of Nazakat and his Inquest Report Exh.P.W.6/5. He prepared the site plan .Exh.P.B. At the pointation of the complainant and the eye-witnesses. During spot inspection he took into possession blood and 4 empties of .30 bore P.11 which were sealed into a parcel vide memo. Exh.P.W.11/2. Munawar Sultan (P.W.9) produced to him a pistol P.1 of .30 bore alongwith a magazine containing two live cartridges P.2 of the same calibre belonging to deceased Nazakat which had been snatched by Qaisar Munir (P.W.10) was also secured vide memo. Exh.P.W.11/1. Similarly, another pistol of .30 bore P.3, "a magazine containing 4 live cartridges P.4 and another magazine containing 5 live cartridges, a bandolier P.6 containing 8 live cartridges alongwith licence copy P.7 in the name of the convict- appellant, his Identity Card P.8, dagger P.9 belonging to Liaqat accused, axe P.10 which was recovered from Suzuki Pick-up No,AD-559, the ignition key and the registration copy were produced to the I.O. Vide recovery memo. Exh.P.W.11/1. He sealed into a parcel pistol P.1 of .30 bore belonging to Nazakat while in parcel No,2 the pistol of Rustam Zaman appellant. The two pistols and the empties recovered were sent to the Arms Expert vide the application Exh.P.W.16/3. The reports of Arms Expert and the Serologist have been placed on the connected file No,18/8 of 1990.
The clothes of Nazakat deceased were also taken into possession by a separate memo. Similarly the clothes of Muhammad Akram P.W. Who had also sustained injuries were also taken into possession and sealed into separate parcels. The report of the Chemical Examiner has also been placed on the connected Sessions Case No,18/8 of 1990. Muhammad Farid Khan, S.H.O. (P.W.16) recorded the statements of the P.Ws., arrested accused Liaqat and Rustam Zaman, whereas the other accused were arrested by Muhammad Nazir A.S.I. During the investigation by application Exh.P.W.15/1 Rustam Zaman appellant was produced on 15-2-1990 before a Magistrate of the First Class for recording his confessional statement which he did make the same day. Khan Zada accused died in the hospital on 19-2-1990 at 6 a.m. His injury sheet Exh.P.W.4/2 and inquest report Exh.P.W.4/3 were also prepared by Muhammad Nazir A.S.I. (P.W.14). After investigation of the case, as stated earlier, the appellant was placed on trial, where the learned Sessions Judge, Haripur, on conclusion of the trial convicted and sentenced him as aforesaid..
6. The prosecution examined 16 witnesses in all. The evidence of Parvez (P.W.7), Abdul Majid (P.W.8), Munawar Sultan (P.W.9) Qaisar Munir (P.W.10) and Muhammad Farid Khan (P.W.16) is relevant for the purpose of this appeal.
7. At the trial, the accused-appellant denied his guilt in his statement under section 342, Cr.P.C. He admitted his presence in the Fruit Cabin of Abdul Majid (P.W.8) and maintained that Nazakat deceased, his brother Liaqat, Khan Zada deceased and their two compatriots Gul Zaman and Arshad had emerged at the spot armed with deadly weapons, picked up Abdul Majid forcibly with a view to abducting him when in the meantime Munawar Sultan (P.W.9) and Qaisar Munir (P.W.10) were attracted to the spot upon whom Nazakat deceased also fired. He denied to have made any confessional statement and questioned its truthfulness as well as voluntariness. When asked as to why the P.Ws. Have deposed against him the convict-appellant replied as under:-- "All the P.Ws. Who appeared before this Honourable Court admitted this fact that Nazakt deceased alongwith others came to the spot who wanted to abduct Abdul Majid P.W. Forcibly and they also attempted at the life of complainant Munawar Sultan and other P.Ws. And they fired on me also and I only fired' in the air. There is no evidence against me regarding the murder of the deceased.
Nor I was charged by any of the relatives of the deceased or injured. Even the injured themselves have not appeared before the Court for evidence against me. The other P.Ws. Are official.
Muhammad Farid Khan P.W. Forcibly introduced the 'fact of murder against me and the confession was the result of torture and undue influence."
' When questioned as to what was his statement and why has he been charged that is what the convict-appellant had stated-- "I am innocent and have falsely been involved. On the day of occurrence I was present in the Cabin of Abdul Majid P.W. Meanwhile, Nazakat deceased alongwith others armed with deadly weapons came on a Suzuki and wanted to forcibly abduct Abdul Majeed P.W. Traffic H.C. Munawar complainant and other F.Cs. Rushed towards them on which Nazakat deceased opened fire on the traffic police. I also came and Nazakat and his fellows also opened fire on me. I in order to save the skin of Abdul Majeed P.W., local police and my skin fired in the air. The accused party started firing from all corners and they sustained injuries due to their own firing. I on the spot handed over to the traffic police my licensed pistol and a license copy. I did not cause any injury to deceased or other injured. All the P.Ws. Who appeared in this Court admitted this fact that I in order to save the skin of Abdul Majeed P.W. And the local police and my skin fired in the air."
7. After taking me through the evidence Mr. Muhammad Akbar Khan Swati assisted by Mr. Saeed Akhtar Khan, Advocates for the convict-appellant, contended that the learned trial Judge had fallen into an error to convict and sentence the appellant under section 304, P.P.C. On two counts and under section 308, P.P.C. On one count in that the plea of self-defence which lends complete support not only from the ocular evidence of three eye-witnesses namely, Parvez (P.W.8), Munawar Sultan T.H.C. (P.W.9) and Qaisar Munir T.F.C. (P.W.10) but also from the circumstantial evidence as well as the confessional statement of the convict-appellant which have not been appreciated in their true perspective.
8. Mr. Muhammad Aslam Khan, A.A.-G. Appearing on behalf of the State has supported the judgment of the learned trial Judge and submitted that even from the evidence of the P.Ws. Who were quite fricntly to the appellant he is proved to have exceeded the right of private defence. He further urged that the deceased and his companions had merely come to abduct Abdul Majid P.W., therefore, the appellant had a right to ward off attack and nothing more but in firing indiscriminately at the accused which resulted in killing two persons and injuring three others was a clear indication that he had absolutely exceeded his right of self-defence. In this context he invited my attention to the fact that as soon as Nazakat accused was injured and thereby incapacitated, there was no occasion for the appellant to have continued with firing at otheRs, He referred to the evidence of Qaisar Munir (P.W.10) in support of his contention. According to him, the allegation of firing in the air attributed to the appellant was a friently concession by the prosecution to help the accused because had it been so the two persons could not have succumbed to injuries which they had sustained on the front of their bodies.
9. Munawar Sultan, T.H.C. (P.W.9) had deposed in the trial Court that during the days of occurrence he was posted in Traffic Staff, Haripur. On the date and time of occurrence he alongwith Qaisar Munir (P.W.10) and Dildar T.F.C. Was present on duty at Panian Chowk on Hazara Trunk Road. In the meantime, Suzuki Pick-up No,AD-55t came from the direction of the Court and stopped near the Fruit Cabin belonging to Abdul Majid (P.W.8). Five persons occupying the seats in the Pick-up got out of it, of whom one was Nazakat who was holding a pistol of .30 bore in his hands. He exhorted his companions to forcibly take Abdul Majid (P.W.8) and put him in the vehicle. Parvez (P.W.7) who was driving the Suzuki got down from the Suzuki and took out the ignition key. Munawar Sultan rushed towards the spot and tried to catch hold of Nazakat accused but he fired at him. He was lucky to have escaped unhurt. Nazakat is stated to have also threatened others not to get near them. Rustam Zaman appellant who was standing in front of Cabin fired in the air to save his life and those of Munawar Sultan, Qaisar Munir and Abdul Majid, which hit Khan Zada, Gul Zaman and Muhammad Akram. Both the parties started firing. Nazakat accused after being injured handed over his pistol to Arshad from whom Qaisar Munir T.F.C. (P.W.10) snatched the pistol, after which Arshad co-accused of Nazakat decamped from the spot. Liaqat brother of Nazakat accused who was armed with a dagger threw it in the Pickup and decamped from the spot, when Dildar T.F.C.
(P.W. Not examined) tried to catch hold of him. Rustam Zaman accused was deprived of his pistol by Munawar Sultan and all the injured were shifted to nearby civil hospital where Nazakat accused succumbed to the injuries. The appellant had furnished the motive for the occurrence to Munawar Sultan saying that Liaqat brother of Nazakat deceased and Abdul Majid (P.W.8) had a quarrel on the preceding day which had been patched up. He further stated that the pistol of Nazakat which had been snatched by Qaisar Munir with two live cartridges in the magazine and pistol of Rustam Zaman with 4 live cartridges alongwith a bandolier having 8 cartridges and a spare magazine, identity card, dagger, axe and registration book of the Pick-up were taken into possession.
10. To the same effect is the evidence of Parvez (P.W.7) driver of the Suzuki Pick-up and that of Qaisar Munir T.F.C. (P.W.10).
11. Unfortunately the report Exh.P.W.8/3 of the Arms Expert was not brought on this file and instead it was placed on the connected Sessions Case No,18/8 of 1990. Even the copy thereof was not brought on this file, therefore, no reference can be possibly made thereto. Nonetheless both the pistols which showed that the three crime empties marked C-1, C-2 and C-3 had been fired from .30 bore pistol marked 'A' in question. Similarly one .30 bore crime empty marked C-4 had been fired from a .30 bore pistol No,22687 marked 'B' in question.
12. Almost to the same effect is the confessional statement of the accused-appellant which has not been exhibited but has been retracted by the appellant.
13. From the prosecution evidence, it is obvious that Nazakat and his co-accused had first attempted to forcibly catch hold of Abdul Majid (P.W.8) from his cabin and took him towards the Suzuki Pick-up. On seeing this Munawar Sultan (P.W.9) went towards the spot and tried to catch hold of Nazakat but was fired at by the former. At this juncture Rustam Zaman appellant is stated to have fired in the air to save his own life as well as of Munawar Sultan, Qaisar Munir, Abdul Majid P.Ws. Two fire shots of Rustam Zaman appellant had hit Khan Zada, Gul Zaman accused and Muhammad Akram P.W. In the cross-examination, however, Munawar Sultan admitted that Nazakat had opened fire at the appellant and that in order to save his skin and that of Abdul Majid at the hands of Nazakat and others, Rustam Zaman had fired shots in the air.
14. There is thus no difficulty in fixing the responsibility at least of the appellant for causing the murder of Nazakat and Khan Zada deceased accused as has been deposed to by Munawar Sultan and Qaisar Munir police witnesses and Parvez P.W. Who was also a natural witness being the driver of the Pick-up in which the opposite-party had come to abduct Abdul Majid (P.W.8).
15. The appellant has taken up a specific plea of self-defence under section 100, P.P.C. Which stands amply proved from the evidence of the prosecution witnesses as well as from the confessional statement which has no doubt been retracted. This confessional statement would be taken into consideration against the accused appellant whether retracted or not retracted and can in law he relevant for determination of the plea of self-defence being correct or otherwise against its maker.
As far as I have been also to see, the accused-appellant is proved to have fired two shots: one hit Nazakat and another injured Khan Zada, after Nazakat is proved to have attempted to abduct Abdul Majid and fired at the police officials as well as the appellant. If it had been a case of fight between the two persons i,e. The appellant and the deceased then I would not have hesitated in saying that the right of private defence had been exceeded but such an inference would be wholly unwarranted in the instant case. Obviously the appellant had the apprehension of death, nonetheless, even if it was not so still it only stands to reason that defence in cases of grave attack by several armed persons cannot be minutely planned in calculated manner to be modulated step by step according to the attack nor can the blows in such circumstances be weighed in golden scales. The observations made in Ganga Charan Das v. The Crown PLD 1957 Dacca 281 are reproduced below:-- "Whether apprehension of death was reasonable or not is a question of fact. The weapon used, the manner of using it, the nature of assault and other surrounding circumstances are to be taken into consideration in determining the question of reasonable apprehension. A man acting under an apprehension of death cannot be expected to judge too precisely the force of his own blow. He is not bound to modulate his defence step by step according to the attack before there is reason to believe that the attack is over; he is not obliged to retreat but he may continue to resist till he finds himself out of danger and if in a conflict between them he happens to kill his adversary such killing is justifiable. Where the assault has once assumed a dangerous form every allowance should be made for one, who, with the instinct of self-preservation strong on him pursues his defence a little further than to a perfectly cool bystander would seem absolutely necessary. The question in such cases will not be whether there was an actually continuing danger but whether there was reasonable apprehension of such danger. The law always makes just allowance for the sentiments of a person placed in a situation of peril and who has no time to think. Similarly, if a person has genuine apprehension that his adversary is going to attack him and reasonably believes that the attack will result in a grievous hurt he can go to the length of causing the latter's death in the exercise of the right of private defence even though the latter has not inflicted any blow on him. A subsequent blow will also be justified on the same ground if there is every probability that the latter, if not altogether disabled, will try to hit the former."
' In Jamal Din v. The State 1971 SCMR 800 Sajjad Ahmed, J. As his Lordship then was, speaking for the Bench elaborated the right of self-defence in the following paragraph:-- "It is obvious from these statements that Shamsuddin was being subjected to beating when Jamal Din fired the shot, and since Shamsuddin's life was in danger, the appellant had full right to save his brother from further harm, which could be very grievous according to his natural apprehensions conceived at the time. In the situation in which he found his brother placed, surrounded and attacked by the opposite party, the appellant could not be expected to measure his right of defending his - brother in golden scales or to modulate his defence step by step. Whether he fired one or two shots, is of no consequence in determining that right if the shots were fired by him under serious apprehension that his brother would come to serious harm if he did not act to save his life."
16. The instant case when examined in the light of the proposition that the entire evidence and circumstances, before arriving at the conclusion regarding the truth or falsity of the defence plea, should be placed in juxtaposition to the corresponding factors favourable to such a plea admits of only one answer that the plea of self-defence is reasonably plausible. The entire prosecution evidence shows that the appellant in all probability acted in the defence of his person as also of Abdul Majid and the police officials to ward off the concerted attack by the two deceased and his three companions. Under section 100, P.P.C. The right of private defence of the body extends, under the restrictions mentioned in section 99, P.P.C. To the voluntary causing death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions, inter alia, that such an assault as may reasonably cause the apprehension that the death or grievous hurt otherwise will he the consequence of such assault. The appellant and his friend and the two police officials having been fired at by Nazakat deceased when he was himself armed with a pistol and having in fact fired as many as 4 shots causing injuries to two of his own accused could reasonably apprehend such a result at the hands of the deceased.
17. For all that has been stated above, I accept this appeal, set aside the D convictions and sentences of the appellant and acquit him. He shall be released forthwith if not required in any other case.
18. For the reasons to be recorded, a short order to this effect was passed by me on 15-6-1993. The present judgment provides the reasons for the same.