' JAVID IQRAR., J.-Ibrahim son of Sarwar Kban, aged 37 years, has been convicted under section 302, P. P. C. For the murder of Amir Khan and was sentenced to death plus fine of Rs, 3,000 or in default to undergo two years R. I. And if the fine was recovered, Rs, 2,000 out of the same was to be paid as compensation to the heirs of the deceased vide judgment dated the 7th of August, 1974, of the Sessions Judge, Campbellpur. His injured brother Yar Muhammad co-accused was acquitted. The appeal of the convict as well as reference for the confirmation of death sentence awarded to him are being taken up and disposed of together by this judgment.
2. The occurrence took place at about 3-00 p.m. On the 18th of June 1972, near bus stand Talagang, at a distance of half mile from Police Station Talagang, District Campbellpur. F. I. R. (Exb. P. A) was lodged by Walayat Khan (P. W. 7). Uncle of the deceased at 4-00 p.m. On the same day and it was recorded at the Police Station by Zahoor Raja, S. I. (P. W. 11).
3. The motive for crime as set up by the prosecution is that few years before the present occurrence uncle of the appellant named Ghulam Muhammad was murdered by Amir Khan deceased along with others but they all were acquitted. 1 he present occurrence took place in order to take revenge.
4. The prosecution has produced three eye-witnesses of the occurrence, namely, Walayat Khan (P.
W. 7), uncle of the deceased, Ata Muhammad (P. W. 8) bus conductor, and Painda Khan (P. W. 10) related to the deceased and stated to be a partisan. Two other persons, namely, Ali Khan and Amir Khan were mentioned as eye-witnesses but were not produced.
5. The appellant and his brother Yar Muhammad acquitted co-accused were apprehended near the spot as stated in the F. I. R. However, they were formally arrested by Zahoor Raja S. I. P. W. On the day of the occurrence i,e,. The 8th of June, 1972, shortly thereafter, '12 bore gun P. I with one empty cartridge P. 2 lying in its chamber was recovered from the appellant and taken into possession vice memo. Exh. P. B., dated the 18th of June, 1972. The attesting witnesses are Walayat Khan (P. W. 7)
Muhammad Hussain (not produced) and Zahoor Raja S. I. (P. W. 11). One crime empty P. 5 was picked from inside the bus and taken into possession vide memo. Exh. P. D , dated the 1 the of June, 1972. The attesting witnesses are vs alayat Khan (P. W. 7), Painda Khan (P. W. 10), Yaran Khan (not produced) and Zahoor Raja S. I. (P. W. 11). Gun P. 12 stated to be belonging to Walayat Khan (P. W. 7) along with bag P. 19 and live cartridges were recovered from Yar Muhammad acquitted co- accused and taken into possession vide memo. Exh. P. G., dated the 18th of June, 1972. The attesting witnesses are Painda Khan (P. W. 10), Ali Khan (not produced) and Zahoor Raja S. I. (P. W. 11).
' Sh. Muhammad Din (P. W. 9) Firearms Expert, deposed that crime empty P. 5 matched with gun P.
2 stated to be belonging to Walayat Khan (P. W. 7) ,but recovered from Yar Muhammad acquitted co-accused. He further deposed that empty cartridge P.
2. Lying in the chamber of gun P. 1 recovered from the appellant had been fired from the said gun.
His report is at Exh. P. V.
6. The appellant in his statement before the trial Court totally denied having participated in the occurrence. He stated that his gun was taken from him at the time of his arrest from his house at night that the police had fired from his gun and had allowed the empty cartridge to remain in the chamber in order to gain support for the case and that he was not present at the time of the occurrence. He further stated that he had been falsely implicated due to enmity with the complainant party and for the reason that he was brother of Yar Muhammad acquitted co- accused. Yar Muhammad acquitted co-accused admitted the motive set up by the prosecution.
However, he stated that the deceased had fired a shot at him. The deceased was the aggressor and after having tried a shot at him he tried to re-load the gun at which a passenger sitting behind him in the bus fired at the deceased in order to save the life of Yar Muhammad acquitted co- accused. As there was confusion in the bus one of the passengers hurled a brick bat at him but the passenger who had wounded the deceased escaped in the confusion. He stated that the P. Ws.
Had deposed against him due to enmity which was long standing and that there had been criminal cases of hurt and murder filed between the parties before and after the murder of his paternal uncle Ghulam Muhammad deceased. He further stated that he himself went to the police station in order to lodge the report about the occurrence but the police would not record his report.
He stated that the appellant was not present at the time of the occurrence and that he Was injured with the spot fired by the deceased at him.
7. In the F. I. R. The occurrence is reported to have taken place in the following manner: Walayat Khan (P. W. 7) and the deceased had gone to Wah Factory and on the day of occurrence arrived at Talagang bus stand. There they also met Painda Khan (P. W. 10) and Ali Khan (not produced) who had come after seeing mela at Qadirpur and were proceeding further. In the meantime the deceased happened to observe that the appellant and his brother Yar Muhammad acquitted co- accused were also present at the bus stand. Thereupon, the deceased told Walayat Khan P. W.
That they should immediately leave the bus stand because owing to the previously existing enmity.
The accused party might not cause any harm to them. Then, at about 3-00 p.m. Walayat Khan P.
W. And the deceased boarded bus No, LEF-299. The deceased sat on the three seats row of the bus whereas Walayat Khan P. W. Sat on the two seats row. When the bus covered a distance of about 50 yards on the 'Talagang Minawali Road and reached in front of the Eidgah., Ata Muhammad (P.
W. 8) Conductor of the bus told the driver Amir Khan son of Malik Khan (not produced) to stop the bus as two passengers were coming. The bus was accordingly stopped. Yar Muhammad acquitted co-accused entered the bus from its door adjoining the seat of the driver. He raised a lalkara to the effect that they would avenge the murder today. Apprehending danger Walayat Khan P. W. Stood up along with his licensed '12-bore gun which was hung on his shoulder. He stated raising alarm and at the same time to stop Yar Muhammad acquitted co-accused. In the meantime Paint* Khan P. W. And Ali Khan who were sitting in a nearby hotel rushed towards the bus. At that stage the appellant armed with a '12-bore gun entered the bus from its back door and arriving near the deceased fired his gun from a close range at his back. He fired the second shot which also hit the deceased in the back. On seeing this all the other passengers, the Bus Conductor as well as driver abandoned the bus. Yar Muhammad acquitted co-accused snatched the gun from Walayat Khan P. W. The gun was loaded. After taking away the gun from Walayat Khan P. Ws., Yar Muhammad acquitted co-accused also fired at the deceased and the shot hit on his chest and abdomen region. Walayat Khan P. W. Attempted to snatch the gun from the hands of Yar Muhammad acquitted co-accused. But Yar Muhammad acquitted co-accused gave a blow therewith to Walayat Khan P. W. The blow fell on the seat of the bus and as a result the gun broke into pieces.
Walayat Khan P. W. Also rushed out of the bus. Thereafter, the appellant and his brother Yar Muhammad acquitted co-accused alighted from the bus and attempted to run away. They were chased by Painda Khan P. W., Ali Khan and some other persons who apprehended them at some distance from the spot. The deceased died on the spot. Then Walayat Khan P. W. Went to lodge the report at the police station.
8. Dr. Muhammad Rafiq (P. W. 1) conducted post-mortem examination on the dead body of the deceased at 8-30 a.m. On the 9th of June, 1972, and found on his person eighteen injuries out of which two were caused by firearm on the back and 12 firearm injuries were on the chest and abdomen region. There was a 13th firearm wound on the left chest, two abrasion marks and one contused wound on the head. He stated that injury No, (2) at the back was the wound of entry and its exit wound was injury No, (15) on the left chest. Before the trial Court in the course of the cross- examination he stated that except the two injuries at the back which had blackening around them, injuries Nos. (3) to (14) in the front i,e, chest and abdomen region were all wounds of exit. He also stated that the contused wound could have been caused by a brickbat. In his opinion the death of the deceased resulted due to shock and haemorrhage by fire-arm injuries which were sufficient to cause death in the ordinary course of nature. The two abrasion marks and contused wound were caused by blunt weapon and these injuries were simple.
' On the same day at 5-45 p.m. The same medical officer examined Yar Muhammad acquitted co- accused and found on his person three fire wounds on the right leg and one abrasion mark. There were holes on the shalwar corresponding to the injuries. Three injuries were caused by firearm and one by blunt weapon.
9. We have heard learned counsel for both the sides and carefully perused the record. It is an admitted fact that the parties have longstanding enmity existing between them. It may further be pointed out that in the F. I. R. The appellant is stated to have fired two shots at the deceased which hit at his back whereas Yar Muhammad acquitted co-accused is stated to have fired one shot at the deceased which hit on his chest and abdomen region. It is not mentioned as how Yar Muhammad acquitted co-accused received firearm injuries. In other words the injuries on the person of Yar Muhammad acquitted co-accused have been suppressed in the F. I. R. It may further be pointed out that the recoveries made in this case have been rightly disbelieved by the trial Court for the reasons stated in para. 20 of the judgment at page 59 of the paper-book. We are, therefore, left with ocular testimony in this case provided by the three eye-witnesses, namely, Walayat Khan (P. W. 7), Ata Muhammad (P. W. 8) and Painda Khan (P. W. 10) as well as the statement of Yar Muhammad, acquitted co-accused, which is relevant at least for the purpose of sifting of the evidence in this case. Walayat Khan P. W. Stated in the cross-examination that during the occurrence Yar Muhammad acquitted co-accused had received gunshot injuries. He further stated that first the deceased fired a shot at Yar Muhammad acquitted co-accused when he tried to board the bus and it was in this manner that Yar Muhammad acquitted co-accused received firearm injuries. It was thereafter that the appellant fired two shots which hit at the back of the deceased. Ata Muhammad P. W. Had stated in the cross-examination that the correct position was that before the firing started he along with the other passengers left the bus. From his statement it would appear that he might have not seen the occurrence in the way it took place. Painda Khan P.
W. Had stated that when the appellant had fired at the deceased for the second time, some of the pellets of his shot also hit the right leg of Yar Muhammad acquitted co-accused. Zahoor Raja, S. I. P.
W. Had stated that Yar Muhammad acquitted co-accused was produced before him near the spot and at some distance from the place of occurrence, the appellant was also formally arrested by him. Yar Muhammad acquitted co-accused In his statement before the trial Court admitted that six years before the present occurrence the deceased along with others was tried for the murder of their paternal uncle, namely, Ghulam Muhammad and they all ..Were acquitted. He further stated that they had long-standing enmity with the complainant party and criminal litigation between them had continued even before and after the murder of their paternal uncle. Yar Muhammad acquitted co-accused did not deny the present occurrence altogether. He stated that the deceased was the aggressor and after firing the shot at him, he tried to reload the gun on which a passenger sitting behind him fired at the deceased in order to save the life of Yar Muhammad acquitted co-accused. He further stated that the passenger who had wounded the deceased escaped in the confusion. These pieces of evidence have been very ably discussed by the trial Judge in paras. 2i and 22 of the judgment at pages 59 and 60 of the paper-book. He is correct in arriving at the conclusion that it was reasons bly probable that when the accused party had boarded the bus. Yar Muhammad acquitted co-accused was fired at by the deceased possibly from the gun of Walayat Khan P. W. Thus "Yar Muhammad acquitted co-accused had a right to defend himself. But he did not do anything. According to him some stranger came to his rescue and fired two shots at the deceased in the back. It is not possible to believe that a stranger would come to the rescue of Yar Muhammad acquitted co-accused. It was, therefore, none else but his own brother, the appellant, about the presence of whgm on the spot all the eye-witnesses are unanimous. Consequently, probably the occurrence took place in the following manner. The appellant and Yar Muhammad acquitted\ co-accused boarded the bus in which members of the complainant party i,e,, their old enemies were also travelling. For the reasons which remain unexplained in the account of the eye-witnesses, first the deceased fired a shot at Yar Muhammad acquitted co-accused. Thereupon, his brother the appellant in the exercise of his right of self- defence fired two shots at the deceased in the back from a close range. The learned trial Judge was of the view that when the appellant had effectively fired at the deceased scortching him and disabling him, he had no legal right or justification to fire the second shot at the deceased.
According to him the firing of the second shot at the deceased by the appellant amounted to his transgressing the statutory limits allowed by law in the exercise of the right of self-defence. Here we do not agree with the learned trial Judge, although his sifting of evidence is quite proper. It appears from the evidence on record that after having fired the first shot at Yar Muhammad acquitted co-accused, the deceased might have tried to re-load the gun. It was in that state of affairs that the appellant not only fired the first shot at his back from a close range, but also fired the second shot at him in the back. If it is considered that the right of self-defence was available to the appellant because his brother was fired at by the deceased, and if his first shot had been effectively fired, it could be at the most said that his firing of the second shot at the deceased amounted to exceeding the right of self-defence. In that view of the matter in our opinion the case of the appellant was recovered by Exception 2 to section 300, P. P. C. But since A he has exceeded the right of self-defence, he should have been convicted under section 304 (I), Pi P. C.
Consequently, we alter the conviction and sentences of the appellant from section 302 to section 304 (I), P. P. C. And in the circumstances as he had exceeded the right of self-defence, we sentence him to undergo five years' R. I. The sentence of fine, however, is maintained. The appeal is accepted to this extent.
10. The death sentence is not confirmed.