' MUHAMMAD HALEEM, J.-Appellant Aludo alias All Bux was tried for the murder of Bhaji and for being in possession of an unlicensed firearm, convicted under section 302, P. P. C. And 13-D of the Arms Act 1965, and sentenced on the first count to imprisonment for life and on the second to one year's R. I. By the learned Additional Sessions Judge, Dada vide judgment dated 13th December 1973, The appellant has appealed to assail his conviction and sentence.
2. According to the prosecution case, the incident occurred at 5-45 p.m. On 6th November 1971 in the berry cultivation of Ali Bux Machi in Deh Kolachi, Taluka Mehar. This place is at a distance of a mile where the initial incident occurred It is said that the deceased along with his brother Misri and Ramzan were thrashing paddy and at that moment the appellant appeared and demanded that his sister Mst. Sumri, who was married to their brother Faiz Mohammad should either be given divorce or that they should maintain her, upon which they replied that there was no question of giving divorce and that they were willing to maintain Mst. Sumri, if she returned to her husband. This reply annoyed the appellant, who took out a country made pistol (12 bore) and fired, but the cartridge mis-fired. Thereupon the appellant ran towards the west followed by Misri, Ramzan and Bhaji who chased him for a mile and finally they came near him and seeing that he would be caught, the appellant fired at the deceased killing him at the spot. At that moment, a police constable by the name of Mohammad Sullaiman who was returning after serving processes, also saw the incident and helped the other two to capture the appellant while he was reloading the pistol, and recovered from his possession a country made pistol, one live cartridge and one spent cartridge. The appellant was then taken by the constable to the Police Station Mehar where he produced the articles which were seized under a mashirnama. Misri lodged the F. I. R. At 9 p.m.
Which was recorded by Abdul Razzaq A. S. I.
3. After recording the report, A. S. I. Repaired to the wardat where he saw the deceased lying dead with gun shot injuries and blood on the ground. He secured the blood-stained earth and grass from there and sent the dead body for post-mortem examination. The A. S. I. Next examined Mohammad Sullaiman, Ramzan, Dogar, Faiz Mohammad and Mst. Sumri. The spent cartridge and the pistol were sent for matching to the Forensic Laboratory while the blood-stained earth was sent to the chemical analyser. Mukhtiar Ahmad, the ballistic expert has opined that the spent cartridge was fired from the pistol. The report of the chemical analyser discloses that the earth and the grass were stained with human blood.
4. Dr. Shamsul Hag, performed autopsy on the dead body and noticed the following injuries:- "(1) Gun fire wound 1' above the left nipple measuring 1" x
(2) Gun fire injuries consisting of small multiple circular and oval pea sized lacerated and blackened wounds around the injury No, 1 sprayed in an area 4" x 3"." ' which in his opinion were caused by the discharge from a firearm as a result of one shot having been fired from a close range and that Injury No, 1 was sufficient in the ordinary course of nature to cause death. According to the doctor, both the injuries were wounds of entrance.
5. The appellant denied his involvement in the crime and pleaded that he did not seek for the divorce of Mst. Sumri from Faiz Mohammad. In reply to the question as to why the prosecution witnesses had deposed against him, he stated that he had enmity with them; and as for Sullaiman he stated that because he was a police man, he was therefore, supporting the prosecution case.
6. It has come in evidence that the sister of the appellant Mst. Sumri was married to Faiz Mohammad, a brother of the deceased and the prosecution witnesses. In exchange, the prosecution witnesses and the deceased had given their sister Mst. Lali in marriage to Mohammad Bux, a brother of the appellant. Both Mst. Lali and Mohammad Bux died 10-12 years back and it was alleged that the appellant had taken away his sister Mst. Sumri about six months prior to the incident. There was a dispute over it and it is the prosecution case that the appellant was demanding divorce and so also maintenance which was refused. Another incident also occurred in which the deceased and his brother Ramzan had forcibly snatched away the licensed gun of Noor Mohammad, father of the appellant, which was recovered in broken condition from the deceased and that the deceased and Ramzan were called and detained at the Police Station, about three or four months prior to the incident. These two grievances were the subject-matter of the strained relations between the appellant on one side and the deceased and the prosecution witnesses on the other.
7. The learned counsel for the appellant has advanced the plea of self-defence in mitigation of the offence which plea was rejected by the trial Court for the reasons, firstly, that "the pursuit cannot necessarily be considered as aggressive"; secondly, that neither the deceased nor the other two had assaulted him and, thirdly, that the police constable had already intervened to disarm the appellant. We, however, regret to say that the trial Court did not scrutinize the evidence in its proper perspective which entitles the appellant to the benefit which he claims. The appellant and the complainant party resided in adjoining houses and, therefore, it was unlikely that the appellant would have gone to the thrashing floor, but even on that assumption, if at all the cartridge had misfired and the appellant had taken to his heels, there was no reason for the prosecution witnesses and the deceased to have chased him for a mile, when all along the way the appellant was yelling out not to chase him. In the circumstances, when the appellant had himself run away, it is difficult to accept that the pursuit was not aggressive in the background of strained relations and it appears to us that it is more consistent with the suggestion put in the evidence that the appellant while passing by the side of the thrashing floor was chased by the prosecution witnesses and the deceased without knowing that he was armed. Again if the appellant had come earlier to take revenge, then in all probability he would not have allowed himself to be chased for a mile but would have rather fired at his pursuers to avoid being apprehended. The theory of chase in the circumstances appears to us to be dubious, and more so, when they had known that the appellant was armed and they were not in an advantageous position. A room for doubt is left as to the to a fides of the pursuit when it was a determined effort in the context of the strained relations between the parties and, particularly, when no mis-fired cartridge was recovered. It was also not possible to accept as true what Ramzan and Sullaiman have stated that they were un-armed, for in this eventuality the object of pursuit was meaningless as in all probability, the intention was to subdue the appellant. However, Misri has admitted that the deceased was armed with a hatchet and while holding it he grappled with the appellant who fired at him killing him at the spot. The medical evidence also corroborates it, for the shot is stated to have been fired from a close range. It cannot be accepted that Sullaiman had also intervened. In all probability. He must be near them. It cannot also be stated that by his mere presence, this situation could have been avoided, for it is not known whether he was wearing his uniform or that the appellant knew him.
8 The determined effort on the part of the prosecution witnesses and the deceased to apprehend the appellant when the deceased himself was ranted with a hatchet in the context of the background of enmity, leaves no room for doubt to conclude that the appellant must have apprehended imminent danger to his life. It is not necessary that he should have received any injury before such apprehension could have been entertained as has been observed by the trial Court, for the law does not place such limitation on the exercise of the right of self-defence.
Therefore, the appellant was justified in killing the deceased who was armed with a hatchet and who could have used it any moment. He is thus entitled to the benefit of section 100, P. P. C. The reasons given by the trial Court for denying this benefit to the appellant are not substantial and do not take into consideration the general doubt created in the prosecution evidence.
9. Before parting with the judgment we might also add that Doorgar, whose name has transpired and who was examined at the wardat was not produced at the trial without giving any reason for not examining him. He B was an independent witness and could have thrown some light on the incident His non-examination creates presumption that if examined, he would have deposed against the prosecution. The learned Assistant Advocate General has fairly conceded that the appellant was entitled to exercise the right of self-defence as there was imminent danger to his life. The learned counsel for the appellant has not questioned the conviction of the appellant on the charge under section 13-D for being in possession of an unlicensed pistol.
10. In the result, we would set aside his conviction and sentence under section 302, P. P. C. But maintain that awarded under section 13-D of the West Pakistan Arms Act. We are informed that he has already undergone the sentence, as such he should be set at liberty forthwith if not wanted in any other case. Subject to the above modification the appeal is allowed.