1. ' The appellant Ali Muhammad son of Allah Dino Bakari was tried by the learned IInd Additional Sessions Judge, Thatta. He was convicted by him under section 302(b), P.P.C. And sentenced to undergo imprisonment for life on 30th November, 1996. The appellant has challenged the said conviction through this appeal.
2. ' The case of the prosecution is that the appellant fired upon Gul Hassan and Babu from a single barrel gun as a result whereof they sustained injuries and fell down. This incident took place when the complainant Allah Bachayo accompanied by his brother Gul Hassan, Chandro and Babu went to open watercourse No,2-R upon which their land was settled for irrigation. The flow of water from the said watercourse stopped due to its closure. When the complainant Allah Bachayo and his companions named above, went back to check their watercourse they found the appellant and his brother Urs was armed with a hatchet. The appellant challenged Gul Hassan and told him that they were irrigating only their own land. After saying so, he fired from his gun upon Gul Hassan and Babu. The appellant and his brother Urs then went away to their house after firing in the air. P.Ws.
3. Lakhano and Sanwan came to the scene of offence and they found that Gul Hassan had succumbed to his injuries whereas Babu was lying unconscious. The complainant Allah Bachayo then left for Police Station Thatta and lodged First Information Report of this incident in terms material particulars whereof have been reproduced hereinabove.
4. ' P.W. Amir Khan Qureshi who was Sub-Inspector of Police, Thatta registered First Information Report of the above incident. It was lodged by the complainant Allah Bachayo on 13-4-1992 at 7-30 p.m.
5. After the registration of F.I.R., the said Police Officer proceeded to the scene of offence. He held inquest over dead body of Gul Hassan. He also prepared Mashirnama of injuries on the person of P.W. Babu. The Mashirnama of Vardat was also prepared by him. Four empty cartridges and blood- stained earth were secured from the scene of offence. This property was sealed on the spot.
6. ' All these Mashirnamas were prepared in presence of Mashirs Gul Muhammad and Ramzan. The S.I.P. Amir Khan then recorded 161, Cr.P.C. Statements of P.Ws. Chandro, Lakhano and Sanwan and he referred the dead body of Gul Hassan to Civil Hospital, Thatta for post-mortem examination. He also referred injured Babu to Civil Hospital, Thatta for examination treatment and certificates.
7. ' The appellant accompanied by Rafique (who was also injured) appeared at Police Station, Thatta voluntarily on 17-4-1992 and he was arrested by the abovenamed Police Officer in presence of Mashirs Gul Muhammad and Waris. The appellant was also injured. He lodged First Information Report against the complainant party namely Dhani Bakhsh, Babu and Gul Hassan. The Mashirnama of injuries on the person of the appellant was also prepared by this Police Officer. The appellant then led the police party headed by the same S.I.P. Amir Khan to his house situated in Deh Doomani and he voluntarily produced a single barrel gun alongwith six live cartridges from his house. The appellant also produced licence for the said gun. Such Mashirnama of recovery of gun and licence was prepared. The appellant was then referred to hospital for examination treatment and certificate. The appellant was produced before Mukhtiarkar and F.C.M., Thatta for recording his judicial confession on 19-4-1992. The appellant was then remanded to judicial custody by the Magistrate.
8. ' The S.I.P. Amir Khan arrested Urs on 19-4-1992 in presence of Constable Ali Bux and A.S.I.P. Maroof.
9. After interrogation Urs was released on the said date. The gun, empties and blood-stained earth were sent to the Ballistic Expert and the Chemical Examiner respectively. After the investigation was completed by S.I.P. Amir Khan, he handed over the papers to the Station House Officer, Police Station, Thatta for challaning the appellant.
10. ' The report of the Ballistic Expert was that only two .12 bore crime empties were fired from the abovementioned .12 bore single barrel shot gun. With regard to the other four .12 bore crime empties his report said that no definite opinion could be expressed on these four crime empties due to lack of sufficient identifiable dates.
11. ' Dr. Ashfaque Ahmed Memon, Medical Officer, Civil Hospital, Thatta performed autopsy on the dead body of Gul Hassan Chandro and he found the following injuries on his person:--
(1) Fire-arm lacerated wound 5 c.m. In diameter x cavity deep x blackening of skin x edged inverted on the left side of front of chest with clinical fracture of fifth rib (wound of entrance).
(2) Multiple fire-arm lacerated wounds about 17 in number x 1/4 c.m. In diameter x skin deep with edges inverted on the front of chest. Each wound is 1 c.m. Apart from each other.
(3) A lacerated wound 5 c.m. x 2.5 c.m. x skin deep on the medial surface of left forearm near left wrist-joint.
12. ' From the internal and external examination of body of the deceased Gul Hassan, the above Medical Officer was of the opinion that death occurred due to haemorrhage and shock as a result of injury No,1 which was caused by discharge from a fire-arm weapon and it was sufficient to cause death in the ordinary course of nature. Seventeen pellets were removed from the body of deceased Gul Hassan and sealed in a bottle and sent to police station.
13. ' The appellant was also sent to Civil Hospital, Thatta for examination, treatment and certificate. He was examined by P.W.5 Dr. M. Iqbal on 17-4-1992 and two lacerated wounds of 5 c.m. Each were found on his person. In one of the wounds pellet was pulpable. The doctor described both these injuries as superficial he was of the opinion that they were caused by a fire-arm. Since no fracture was detected after X-ray, these injuries were declared as simple. The probable duration of injuries was 4 to 5 days. (The period during which these injuries were caused to the appellant thus coincided with the time of incident as given by the complainant Allah Bachao in his F.I.R.
14. ' The abovenamed Medical Officer also received injured Rafique. He had found following injuries on his person:--
(1) Black colour contused wound round in shape at right eyebrow 0.5 c.m. x 0.5 c.m. In diameter healed, superficial pellet palpable.
(2) Black colour contused wound round in shape on back of right neck 0.5 c.m. x 0.5 c.m. Healed, superficial pellet palpable.
(3) Black colour contused wound frontal region 0.5 c.m. x 0.5 c.m. Healed, superficial pellet palpable.
(4) Black colour contused wound on right shoulder back 0.5 c.m. x 0.5 c.m. Superficial pellet palpable healed.
15. ' According to the doctor all these injuries were caused by fire-arm. Since no fracture was found, all the injuries were declared as simple. The probable duration of injuries was 4 to 5 days. (In the case of injured Rafique also, the time of receipt of his injuries coincided with the time when Gul Hassan and Babu received injuries in this case).
16. ' P.W.4 Dr. Ghulam Nabi, Medical Officer, Civil Hospital, Thatta received injuries P.W. Babu for treatment examination and certificate on 13-4-1994. The following injuries were found on the person of P.W. Babu:--
(1) Three fire-arm injuries on the left side of the face.
(2) Two fire-arm injuries on the forehead.
(3) Two fire-arm injuries on left hand.
(4) Two fire-arm injuries on left side of chest.
(5) Two fire-arm injuries at left thigh.
17. ' All these injuries were caused by fire-arm. Since no report from Civil Hospital, Karachi was received, no final medical certificate was issued by this Medical Officer in respect of injuries caused to P.W. Babu.
18. ' P.W.4 Dr. Ghulam Nabi who examined P.W. Babu on 13-4-1992, also received injured Gul Hassan son of Yar Muhammad Bakari for treatment examination and certificate on the same date.
19. Following injuries were found on the person of injured Gul Hassan Bakari:
(1) Swelling on the front side of nose.
20. ' This injury was caused with hard and blunt object. According to the final medical certificate issued by the Medical Officer, this injury was declared to be Shajjah-e-Hashmeha.
21. ' The evidence against the appellant consisted of the ocular testimony of P.W.1 Allah Bachayo and P.W.2 Babu. The deceased Gul Hassan was brother of P.W.1 Allah Bachayo who is father of P.W.2 Babu. The eyewitness Chandro was given up by the prosecution on 25-9-1994 vide statement Exh.7.
22. So were the other two witnesses Lakhano and Sanwan who according to the statement Exh.7 were formal witnesses.
23. ' The other evidence against the appellant consisted of the testimony of P.W.7 Mashir Ramzan who has testified regarding Mashirnamas of P.W.7 Mashir Ramzan, who has testified regarding Mashirnamas of dead body. Inquest, injuries, securing of blood-stained clothes of deceased Gul Hassan, Wardat and finally Mashirnama Exh.P.16 relating to the recovery of gun alongwith six live cartridges. Apart from the above evidence, three Medical Officers P.W.3, Dr. Ashfaque Ahmed Memon, P.W.4 Dr. Ghulam Nabi Khushk and P.W.5 Dr. M. Iqbal, who performed autopsy on deceased Gul Hassan and injured/or examined injured Babu and appellant and injured Rafique, were examined by the prosecution. The injuries found by these doctors on the person of the deceased and the injured named above are already mentioned in the earlier part of this judgment.
24. ' The judicial confession of the appellant was recorded by P.W.9 Jessa Ram who was posted as Mukhtiarkar and F.C.M., Thatta on 19-4-1992.
25. ' The last witness was P.W.11 Amir Khan who investigated this case. He produced Ballistic Expert's Report Exh.P.22 and the report of Chemical Examiner Exh.P.23. This witness also produced the F.I.R.
26. Exh.P.24 lodged by appellant All Muhammad on 17-4-1992 under section 307/323/34, P.P.C.
27. ' After the prosecution closed its side on 17-4-1996 vide Exh.21, the statement of the appellant under section 342, Cr.P.C. Was recorded by the trial Court wherein he denied to have fired upon Gul Hassan. He also denied to have made by confession. As regards the recovery of gun from him, he stated that it was his licensed gun but he did not use it in this crime. He further stated that the witnesses deposed against him due to enmity over land. The appellant's answer to question No,6 was that while he was working on the garden of Muhammad Ali Khoja alongwith Rafique Goongo, Gul Hassan who was armed with a double-barrel gun and Babu who was armed with a single barrel gun and Dhani Bux who was armed with a hatchet came at the said garden. Gul Hassan fired from his gun upon the appellant. The shot hit him on right side of his face and shoulder. Gul Hassan fired another shot over Rafique Goongo. Babu also fired which hit deceased Gul Hassan.
28. The appellant stated that he fired two shots in the air. He further stated that this incident occurred in their own land and that he had no concern with watercourse No,2-R as their land was settled for irrigation over watercourse No,1-R. The appellant stated that Babu, Dhani Bux and Gul Hassan had asked him to vacate the garden.
29. ' The appellant further stated that he alongwith Rafique went to Karachi to inform their Zamindar who was not there. On his return after three days, the appellant was advised to lodge F.I.R. Which came to be recorded as Crime No,47 of 1992. The Sessions Case No,137 of 1992 which was the outcome of his F.I.R., was also pending before the same trial Court where in Babu and Dhani Bux were sent up to stand trial. The appellant produced deposition of Dr. M. Iqbal as Exh.22-A alongwith his statement under section 342, Cr.P.C. He further stated that dead body of Gul Hassan was removed from their land to watercourse 2-R and that there was no truth in the allegations made in F.I.R. No,43 of 1992 (lodged by the complainant Allah Bachayo in this case).
30. ' I have heard Mr. A.Q. Halepota learned counsel for the appellant and Mr. Muhammad Saleh Panhwar the learned Advocate for Advocate-General for State.
31. ' Mr. A.Q. Halepota submitted that cases falling under old section 304, P.P.C. (exceptions) are now to be dealt with under new section 302(c), P.P.C. In this context he placed reliance on the case of Ali Muhammad reported in PLD 1996 SC 247 with relevant observation on page 290. He further submitted that the appellant and his companion Rafique and Gul Hassan Bakari received fire-arm injuries on vital parts of their body. Gul Hassan Gandro and P.W. Babu received fire-arm injuries from the side of the complainant party, Gul Hassan, however, died due to the injuries received by him.
32. ' Mr. A.Q. Halepota has, however, argued that since both the parties received fire-arm injuries and number of persons who received injuries was more on the side of appellant (they were in three in numbers) this is a fit case, where the appellant be given benefit of exception 2 'to section 300, P.P.C.
33. And section 100, P.P.C. And he may be acquitted on the plea of right of private defence of his person. Mr. Halepota submitted that the appellant was entitled to this benefit notwithstanding his failure to affirmatively establish his right of private defence from evidence. Reliance was placed on the case of Shoukat Ali and another v. The State reported in PLD 1974 Kar.
179. In this regard Mr. Halepota has placed further reliance on the case of Ghazi Khan and another v. The State reported in PLD 1965 Quetta 33 and argued that right of private defence, even though not pleaded specifically, may be allowed, provided such plea was clearly inferable from evidence on record. Mr. Halepota submitted that right of accused to defence himself continued as long as reasonable apprehension of harm persisted' and that right of self-defence cannot be modulated step by step nor could it be weighed in golden scales. It was argued by Mr. Halepota that merely because the deceased received more injuries than the appellant, did not by itself show that accused exceeded right of self-defence. Reliance was placed on the case of Ahmed Din v. Faiz Ahmed and another reported in 1972 SCMR 549. Reliance was placed on this authority at page 597 in the case of Zarid Khan v. Gulsher and others and it was argued by Mr. Halepota that onus is entirely on the prosecution to prove its case beyond reasonable doubt. If in the facts and circumstances of the case, there appears a likelihood of the existence of a right of private defence the accused is entitled to the benefit of this right, for such a situation will react on the whole prosecution case and will lead the Court to hold that prosecution has failed to prove its case beyond any reasonable doubt. It is argued by Mr. Halepota that it cannot be said that because the accused has not discharged the burden of proof of special plea raised by him, the Court has to convict him in spite of existence of such a doubt. He submitted that decision has to be taken on the entire evidence and not on the special pleading. Mr. A.Q. Halepota relied upon the case of Ahmed Nawaz v. State reported in 1972 (sic) p.309 and case of Safdar Ali v. Crown, reported in PLD 1953 FC 93 and that of Muhammad Aslam v. Crown reported at p.115 of the same authority. Finally reliance was placed on the case of Sultan Muhammad reported in PLD 1954 FC 29. In this authority the view taken in the cases of Safdar Ali and Muhammad Aslam was reiterated by the Federal Court. All these decisions were cited to canvass for the proposition that the appellant was entitled to acquittal in the facts and circumstances of this case.
34. ' Mr. Muhammad Saleh Panhwar the learned counsel for Advocate-General for the State supported the judgment of the trial Court and argued that the prosecution has proved its case against the appellant beyond reasonable doubt and that the judgment of the trial Court did not call for interference by this Court.
35. ' I have considered the submissions made by the learned counsel for the appellant and that of State. I have also gone through the record and proceedings of this case with the assistance of the learned counsel for the parties.
36. No doubt the complainant P.W.1 Allah Bachayo and injured witness P.W.2 Babu have supported the prosecution version, but the perusal of their evidence shows that they have suppressed the injuries received by the appellant and his brother Rafique Goongo and Gul Hassan Bakari. The appellant also lodged a counter-F.I.R. Injured Babu and Dhani Bux were sent up to stand trial in the case which was sent up as a result of counter-F.I.R. Lodged by the appellant. There were thus, counter- cases between the parties. Unfortunately Gul Hassan died, but the fire-arm injuries received by the appellant and his abovenamed two companions were not that serious in nature. From the cross- examination of the complainant Allah Bachayo and that of injured P.W. Babu it appears that the appellant took the plea of right of private defence from the very first opportunity available to him.
37. The perusal of the judicial confession also shows that the appellant fired upon Gul Hassan since deceased and Babu in self-defence after picking his gun which was kept at the farm. It is stated by the appellant in the said confession that Gul Hassan and Babu sustained injuries as a result of shots fired by the appellant. No doubt this confession is retracted at the trial and the appellant has denied having made any such confession but in view of the plea taken by the appellant in cross- examination of eye-witnesses particularly that of Babu and version given by him in the counter- F.I.R. Exh.P.24 lodged by the appellant wherein also he stated that he fired two shots in self-defence which hit Gul Hassan and Babu, the appellant's version under section 342, Cr.P.C. Is not acceptable.
38. In the circumstances the plea of self-defence is very much inferable from the evidence recorded in the case.
39. ' Now the only question for consideration is whether the appellant exceeded the right of private defence or not? I am of the considered view that the appellant exceeded the right of private defence. He fired two shots from his gun. The shot hit Gul Hassan on his chest. Even Babu received fire-arm injuries on his head and chest. The harm caused to the appellant and his two companions named above, was muchless than the one caused to the party of complainant. The fire-arm injuries sustained by the appellant and his brother Rafique Goongo and Gul Hassan Bakari were not so serious in nature. In the circumstances the appellant should have exercised restraint and he could have stopped shot of hitting Gul Hassan on chest and causing his death. But since, the appellant also received fire-arm injuries and one of those injuries was received by the appellant on his shoulder region which is also a vital part of body. The shot seems to have been aimed for chest of the appellant but it missed its target and hit the shoulder, of the appellant. The injuries were caused to Rafique Goongo brother of the appellant also with fire-arm, and they were also on vital parts of his body.
40. Keeping in view the above facts and circumstances of the case, and the decision in PLD 1996 SC 247 the conviction of the appellant is altered from section 302(b), P.P.C. To section 302(c), P.P.C.
41. And sentence of imprisonment for life awarded to him by the trial Court is also altered and the appellant is sentenced to rigorous imprisonment for five years only. The benefit of section 382-B, Cr.P.C. Is given to the appellant in respect of the period for which he remained as an undertrial prisoner. With this modification in the conviction and sentence, the appeal is dismissed.