' The appellant was convicted under section 302, P.P.C. For committing the murder of Ghulam Akbar deceased and was sentenced to imprisonment for life and a fine of Rs,10,000 or in default to undergo R.I. For two years. He was also directed to pay Rs,10,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Vide judgment dated 18-2-1990 passed by Mr. Akhtar Mahmood Khan, the then learned Sessions Judge, D.G. Khan.
2. The facts leading to the aforesaid conviction are that on 6-11-1987 a about 4.00 p.m. Sobha complainant lodged a report Exh.P.J. With the police tha he along with the deceased Ghulam Akbar were present in their house situate a Chah Jalwala (Mauza Chhurata), Police Station Sadder D.G.
Khan. Thi appellant passed near their house and peeped therein from the outer wall. He was seen by Ghulam Akbar who got offended and asked the appellant to be ashamed. It led to an altercation as the appellant told the deceased that he had done the peeping in the house and that the latter may do anything he wanted to do. On hearing these remarks from the appellant the deceased went out of the house empty handed followed by the complainant who apprehending danger picked up a sword. On coming out of the house the complainant saw the appellant Muhammad Yousaf and his brother Muhammad Umar (acquitted accused). The appellant was armed with a 12 bore gun whereas his brother was carrying a sword. Both of them abused the complainant and the deceased. They were however, reprimanded by the deceased that first they had infringed the privacy of their house and now they were abusing them. The appellant thereupon fired at the deceased hitting him in the chest, who fell on the ground. On hearing the noise Ibrahim and Muhammad and (given-up P.W.) reached the spot. Ibrahim and Muhammad inflicted Sota blows to the appellant to prevent his assault. The gun allegedly fell on the ground. Meanwhile Umar acquitted accused inflicted sword blows to Sobha complainant and Mst. Jindo Mai P.W. During the commotion Mst. Shahro mother of the appellant also reached the spot and sustained injuries while trying to intervene to save her son. The deceased succumbed to his injuries on reaching the hospital. All the injured persons from both sides were taken to the hospital where the police reached and registered the case upon the statement of the complainant.
3. The prosecution examined oral evidence of the injured P.Ws. To bring home the guilt against both the assailants. The medical evidence and the witnesses of the recovery of weapons of offence were also examined at the trial.
4. The learned trial Court recorded conviction against the appellant as aforesaid whereas acquitted the co-accused Muhammad Umar after giving him the benefit of doubt.
5. The learned counsel for the appellant has submitted that in fact the complainant side was aggressor as would be clear from the defence version disclosed by the appellant in his statement under section 342, Cr.P.C. And his statement upon oath under section 340, Cr.P.C. In fact the appellant was allegedly assaulted with a sword by the deceased and his accomplices including the complainant and his two relatives namely Ibrahim and Muhammad which led to a melee in which her mother Mst. Shahro also joind after fetching his licenced gun from the house, which she handed over to him in order to save his own life and the life of his mother. He allegedly fired at the deceased after he was assaulted and had received 8 injuries on his person while his mother Mst.
Shahro received 4 injuries during the occurrence.
6. The learned counsel for the appellant referred to sections 96, 97, 100 and 102, P.P.C. To show that it was a case of private defence of person during which Ghulam Akbar unfortunately died and persons from both sides were injured; that the story of the prosecution does not ring true as disclosed in the F.I.R. Because the occurrence took place in the land owned by the father of the appellant, which was towards the south of the house of the deceased at the distance of 50 Karams. It means that complainant' side was aggressor as they had gone to assault the appellant which resulted into melee in which persons from both sides had received number of injuries; that anything done in self defence was not an offence provided this right was exercised within the reasonable limits without acting in a cruel or unusual manner; that the right of private defence was invoked by the appellant at the earliest stage during the investigation of this case and hence it would be considered to be a truthful story qua the story given by the complainant side; that one of the co-accused has been given the benefit of doubt and acquitted on the basis of same evidence upon which the appellant has been convicted although the acquitted accused had been attributed a specific role of causing injures to the P.Ws. While armed with a sword, Hence the conviction against the appellant was also not sustainable as the whole case of the prosecution would become doubtful.
7. Lastly it was contended by the learned counsel for the appellant that the Investigating Officer had also supported the plea of self defence on the basis of the statements of some witnesses examined during the investigation who had stated that the complainant side was aggressor and that the appellant had acted in self-defence.
8. The learned counsel for the State, however, supported the judgment on the ground that the truthfulness of the witnesses cannot be doubted as they were injured during the occurrence and their evidence was corroborated by the medical evidence and the recovery of weapons of offence.
The presence of the appellant cannot be doubted as he also sustained injuries at the hands of the complainant side after he had fired at the deceased with his gun; that the story about the self- defence would not be credible because after receiving the injuries as alleged in the defence version, it would not have been possible for the appellant to use the gun against the deceased. In this regard it was contended that the injuries on the person of the appellant were of such a nature that it would not have been possible for him to wield the gun in response to the injuries he had received on his person. Injury No,1 was so serious that the thumb of his hand was only attached with a tag of skin and was profsuely bleeding. The injuries on his head were of such a nature that it would render him incapable to exercise the right of self-defence by shooting at the deceased with his gun. As such the story of self defence was without any substance and that the prosecution had proved its case beyond any reasonable doubt against the appellant as held by the learned trial Court.
9. I have considered the foregoing submissions made at the Bar. There are two versions about the same occurrence. The first version is given by the complainant side. According to it the deceased was done to death by the appellant/convict who while armed with a 12 bore gun had given fatal injury to the deceased, after the incident of peeping in latter's house leading to some sort of altercation between the two sides. The other story is given by the defence in which the appellant has contended that he was attacked while he was present at the field of his father by the complainant side. The deceased Ghulam Akbar was armed with a sword which he wielded to cause him injuries and while apprehending danger he raised hue and cry which attracted his mother Mst. Shahro to the spot who brought his licenced gun from his house and gave it to him and in order to save his life he fired a shot at the deceased, which unfortunately proved fatal. In the light of the above facts, it is to be seen as to which one of the two stories is more truthful and credible. It is in evidence that both the parties were not on speaking terms with each other since the time of their forefathers. They had stopped coming to each other's house even to share the occasions of joy and sorrow. There appears to be some tussle between the parties as according to the complainant on the fateful day the appellant had peeped over the outer wall into the house of the deceased, which led to the occurrence as aforesaid. On the contrary, the appellant contended in his statement under sections 342 and 340, Cr.P.C. That the complainant Sobha had peeped in his house on 1-11-1987, of which he complained to complainant's father but without any effect. On the following day, appellant stopped the complainant, who in return abused him and threatened with dire consequences which resulted in the unfortunate tragic occurrence. The deepeer analysis of the evidence brought on record shows that both the parties were not telling the whole truth. It is true that they were not on good terms but they were living in the same village despite of bad blood.
They were, however, suspecting each other for peeping into their houses of which they allegedly felt aggrieved. The outer wall of the house of the deceased was of shoulder height and anybody passing by the side of the house could look into the house without making any special effort, whereas the boundary wall of the house of the appellant was higher than the mans height and as such his house could not be easily peeped in. It therefore, appears that something had abruptly and suddenly happened which led to a fight between the two sides resulting into the melee. This impression is supported by the evidence brought on record because according to the statement of complainant (P.W.7) the women-folk of both sides were parda observing and would not appear in public. According to the complainant if a man passes through the land where the occurrence took place, his head will be visible from his haveli because the walls were less than shoulder height. He also added that none of the women-folk from his family had ever complained against the conduct of any of the accused which shows that the infringement of privacy was a superficial story probably based on suspicion but without any firm foundation. Like wise the defence version given by the appellant also appears to be non-convincing. It could not be physically possible for the appellant to fire at the deceased from his gun after he had received 7 or 8 injuries out of which injury No,1 was profusely bleeding and his thumb was attacked with his hand only through a thin tag of skin. After receiving such grievous injuries including vital parts of the body it would have not been possible in the ordinary course of nature for the appellant to shoot at the deceased as alleged by him. It, therefore, opens up a possibility of third version stemming out of the facts of the and case that there was something else which led to an open fight between the parties instead of infringement of privacy. The parties have played a game of hide and seek to bring on record the true facts leading to the fight between them. Keeping in view the chequered history between the two families something happened immediately on the spur of the moment which ignited both the parties and involved them in a free fight, resulting into a melee in which lethal weapons like swords, a gun and the lathis were used from both the sides resulting into two fire arm injuries on the person of Sobha P.W. And two incised wounds on the person of Mst. Jind Mai P.W. From the other side the appellant suffered 7th injuries including injuries on the vital parts of his body such as chest and head, etc. His mother received 4 injuries out of which one injury was caused with sharp edged weapon and other 3 injuries were caused with blunt weapon. In this melee not only the injured persons were involved, but Ibrahim a brother-in-law of Sobha P.W. And Muhammad another close relative of Sobha had also joined as they wielded lathi blows during the unfortunate occurrence. It is, thus, obvious that in such a melee it is not to be seen as to which out of the two sides was being responsible for the first assault during the fight. It is enough to say that it was an occurrence without premeditation leading to a sudden fight in the heat of passion upon a sudden quarrel without the offenders having taken undue advantage or acted in a cruel or unusual manner. In the instant case, after having discarded the version of the complainant and cross-version of the defence, one is led to the conclusion that it was an occurrence without premeditation on the spur of the moment followed by a quarrel in which none of the offenders had taken undue advantage or acted in a cruel or unusual manner. Both the parties were injured and were armed with deadly weapons. Hence, the case would fall within the ambit of Exception 4 of section 300, P.P.C. As it stood before the introduction of Qisas and Diyat law. Resultantly, the case of the appellant would fall within part I of section 304, P.P.C. As the appellant intended to cause death of the deceased as he had fired from his 12 bore gun on his chest. In the situation, the appeal of the appellant is partly accepted and his conviction under section 302, P.P.C. Is set aside and altered into conviction under Part-1 of section 304, P.P.C. As it stood before the promulgation of Qisas and Diyat law. The sentence of imprisonment for life awarded under section 302, P.P.C. Is therefore, altered to 10 years R.I. Under section 304, P.P.C., but the sentence of fine and compensation as awarded by the learned trial Court are upheld with the consequential sentences of imprisonment in case of default of payment of fine and compensation. The appellant is on bail and shall surrender to his bail bond. He shall be taken into custody to undergo his remaining unexpired sentence.
' Since the appellant is not present, therefore, non-bailable warrants of arrest shal be issued and sent to the District Magistrate, D.G. Khan for execution under intimation to this Court. The benefit of section 382-B, Cr.P.C. Shall be given to the appellant.