MUHAMMAD AMIR MALIK, J.- Muhammad Arif appellant along with his brother, were tried by the Additional Sessions Judge, Depalpur for the murder of Sohna deceased, the brother of Ghulam Muhammad complainant (P.W.1), vide judgment dated 20.10.1993. Akram co-accused was acquitted and the appellant convicted under Section 304 Part I PPC and sentenced to ten years R.I.
And a i.e of Rs. 10,000/- or in default thereof two years R.I. The i.e, if recovered, was ordered to be paid to the legal heirs of the deceased. The appellant was granted the benefit of section 382-B Cr.P.C. He has come up in appeal.
2. The occurrence took place at 6.00 p.m. Along with the Khaal of Killa No. 1 square No.56 on 23.8.1991 and matter was reported to Muhammad Ramzan, S.I. (P.W.6) the same day by Ghulam Muhammad complainant at 9.05 p.m.
3. The version given was that at 2.00 p.m. When the appellant and his co-accused were passing from in front of the Dhari of the complainant, they were accosted by the dogs and when Sohna deceased went to hold back the dogs there was exchange of abuses between the appellant, his co-accused and Sohna. Allegedly, to avenge this insult, in the evening when Sohna, Ghulam Muhammad complainant and their brother-in-law Sace Khan (P.W.2) were having a round of the land, Arif appellant armed with .32 bore pistol and Akram with .12 bore gun came out of the cotton crop and fired one shot each when Akram's i.e missed the complainant but one i.e by the appellant hit Sohna in the abdomen who fell down and died at the spot.
4. The time place of occurrence is admitted but the counter version of the appellant was that the complainant and the deceased had diverted his water and when he went to the place where the water had been diverted, he was fired at injuring him as well as his nephew Riaz and another child Javaid and he in self- defence fired at the deceased.
5. The eye-witness account was furnished by Ghulam Muhammad and Sace Muhammad (P.W 1 & 2), the latter was not believed by the learned trial Judge. The learned trial Judge also concluded that the origin of fight was shrouded in myself and yet he concluded that it was a sudden affair. If the origin of the fight is shrouded in myself, then the benefit of doubt must go to the appellant and not to the prosecution. In view of this clear-cut finding it could not be further concluded that the affair was a sudden one. One party or the other must have initiated the attack inviting trouble for the other. In such circumstances the benefit must go to the appellant.
6. There are apparent reasons on the record supporting the appellant's case. Riaz and Javaid are young boys of 9 & 7 years and they as well as the appellant are injured by i.e-arm. These injuries have been suppressed as concluded by the learned trial Judge and this fact was conceded by Yamin, S.I., the investigator (P.W.9). The story of dogs was not believed by the learned trial Judge. It appears that the water was diverted by the complainant family where the appellant reached along with the children who seem to have followed him from the nearby Dera which was i.e acres away and there the occurrence took place. The origin of the fight is not clear and there being every probability that the deceased opened the attack first, the single shot fired by the appellant hitting the deceased would, therefore, be justified in self-defence in view of Section 100 of the P.P.C.
7. The conviction was badly recorded under Section 304 Part I PPC, the same having been repealed by the Qisas & Diyyat Ordinance. The act of the appellant in firing at the deceased was protected as a measure of self-defence in view of Section 1.00 PPC. The appeal is, therefore, accepted and the conviction and the sentence are hereby set aside. He be set at liberty forthwith, if not required to be detained in any other case.