' RIAZ KAYANI, J.---Muhammad Sarwar alias Kala has laid challenge to the judgment of the learned Additional Sessions Judge, Kallurkot dated 22-7-1996 whereby he was convicted under section 302-B, P.P.C. And sentenced to death by way of Ta'zir. He was further directed to pay a sum of Rs,30,000 by way of compensation to the legal heirs of the deceased and in default of payment to further undergo six months, R.I. Death sentence awarded was subject to confirmation by this Court.
2. Vide the saint. Judgment Muhammad Ali, Abdul Ghani, Muhammad Sarwar alias Chabba and Muhammad Anwar were acquitted.
' Complainant Mst. Hanifan has filed Criminal Appeal No,901 of 1996 against the acquitted accused.
We intend to deal with all these matters through this single judgment.
3. The occurrence which resulted in the death of Basharat Ali took place on the night of 27-6-1995 at 12-05 a.m. In the lane outside the house of Muhammad Ali situated in Chak No,35/ML at a distance of 8 K.Ms. From Police Station Jandanwala, District Bhakkar. The complaint was made by Mst. Hanifan Bibi, mother of the deceased at the Police Station on the same day at 3 a.m. Which was recorded by Muhammad Iqbal S.-I., S.H.O.
4. The prosecution version susccinctly described in the First Information Report. Authored by Mst.
Hanifan, is that she is the resident of Chak No,36/ML and at 9 p.m. On 27-6-1995 she alongwith her son Basharat Ali, ' Muhammad Zahid Jawad and Muhammad Ashraf son of Muhammad Ali came to Chak No,35/ML for some private work with Muhammad Akram resident of the latter Chak and at 12-05 a.m. After getting free they were returning to their house and while passing in the lane outside the house of Muhammad Ali son of Abdul Hamid resident of Chak No,35/ML in the light of the electric bulb, they saw Muhammad Sarwar alias Kala armed with pistol, Muhammad Ali armed with sota, Abdul Ghani and Muhammad Sarwar also armed with sotas all residents of Chak No,35/ML suddently emerging from the house of Muhammad Ali and at the very outset Muhammad Sarwar alias Kala fired with his pistol which hit Basharat Ali on his right forearm on the front side followed by a second tire which hit Basharat Ali on left thigh, upon which Basharat returned the fire in exercise of his right of self-defence which hit Muhammad Sarwar on left thigh after which Basharat Ali fell on 'the ground and in the fallen position Muhammad Ali gave a sota blow which hit Basharat on left elbow. Second blow with sotas was given by Muhammad Sarwar alias Chabba which landed on the right leg of the deceased Basharat followed by another blow by Abdul Ghani which hit Basharat on his right foot whereafter the accused gave repeated blows with their respective sotas hitting Basharat on both his legs and hands fracturing his shinbones.
Basharat became unconscious at the spot and due to fear they did not go near Basharat to rescue him but instead concealed themselves in the bushes nearby as Muhammad Sarwar alias Kala was shouting with the pistol in his hand that if anybody comes near he would be killed and it is after the accused decamped with their weapons that she took her injured son to Jahandanwala hospital, however, he succumbed before medical aid could be administered to him.
5. Motive for the occurrence is that the accused suspected that Basharat Ali was having illicit relations with the niece of the accused, namely, Mst. Najma daughter of Muhammad Hanif and prior to this occurrence a brawl had already ensued between Muhammad Sarwar alias Kala and Basharat Ali on this matter, but they were separated by the notables. Basharat her son was murdered by Muhammad Sarwar alias Kala and others on the abetment of Muhammad Anwar.
Leaving the dead body at the hospital in the custody of Zahid and other men of the deh she came to get the report lodged.
6. Muhammad Iqbal S.I. Police Station Jhandanwala after recording the First Information Report Exh.P.A. Reached the Rural Health Centre Jhandanwala on the same day and prepared the injury statement Exh.C.B. And inquest report Exh.C.B/1 regarding the deceased. On the same day Muhammad Sarwar alias Kala appeared before him at the hospital and he got him medically examined. Thereafter, he left for the place of occurrence and prepared the rough sketch of the place of occurrence Exh.C.C. He also secured blood-stained earth vide memo. Exh.P.E. Two crime empties lying at the spot were taken in possession vide memo. Exh.P.G. Pistol 30 bore P.4 was found at the place of occurrence which was taken in possession vide memo. Exh.P.F. On the same day he arrested Muhammad Sarwar alias Kala who while in custody led to the recovery of pistol 30 bore P.7 and licence P.8 from his residential house which were taken in possession vide memo. Exh.P.I.
8. On 27-6-1995 Dr. Muhammad lshfaq while posted as Medical Officer, Rural Health Center, Jandanwala conducted the post-mortem examination on the dead body of Basharat Ali aged 27- 28 years and found the following injuries on his person:-
(1) A tire-arm wound of entry 2 x 1 c.m. On the outer side of left thigh through and through with blackening and charring of gun powder seen at and around the wound with obvious deformity of bone 20 c.m. Below the left hip joint.
(2) A fire-arm wound of exit of injury No,1 x 1/2 c.m. On the inner side of left thigh through and through with blackening and charring of gun powder seen at and around the wound 26 c.m. Below the left hip joint.
(3) A fire-arm wound of entry 1-1/2 x 1/2 c.m. Deep to the skin on the outer side of right upper arm 12 c.m. Above the right elbow joint.
(4) Multiple abrasions with selling 36 x 13 c.m. On the front and back of left forearm.
(5) A bruise with seelling 11 x 10 c.m. The back and sides of left elbow joint area.
(6) A bruise with seelling 21 x 10 c.m. On front back of right fore-arm including right hand.
(7) Multiple abrasion with seelling 45 x 20 c.m. On the front and back of right leg including right foot with obvious the deformity of bones.
(8) An abraisons 1 x 1 c.m. On the back of right side of chest 33 c.m. Below the right shoulder joint.
9. In the opinion of the doctor death was due to shock and haemorrhage which damaged the left femor of bone and artery alongwith nerves as a result of injuries Nos.1 and 2 which were grievous and dangerous to life and sufficient to cause death in the ordinary course of nature. Injuries Nos.5 and 7 were also grievous whereas injuries Nos.4 to 8 were simple. All these injuries were ante- mortem. Injuries Nos.1, 2 and 3 were caused by fire-arm wheres injuries Nos.4, 5, 6, 7 and 8 were caused by blunt weapon. Probable time between death and injuries was within half to one hour and time between death and post-mortem was within 8 to 9 hours.
10. The doctor also examined Muhammad Sarwar appellant aged 30 years and found the following injuries on his person:--
(1) A fire-arm wound of entry 1 x 1 c.m. On the back and inner side of left thigh through and through 20 c.m. Above the left knee joint with laceration of muscles.
(2) A fire-arm wound of exit 1 x I d. On the outer side of left thigh through and through 25 c.m. Above the knee joint with laceration of under line muscles. Blood-stained light brown colour shalwar containing corresponding holes bearing signatures of the doctor was handed over to the constable.
' Probable duration of the injuries was within 5 to 6 hours and were caused by firearm weapon.
11 . Appellant alongwith other were indicated, they denied the charge, pleaded not guilty and claimed a trial. Prosecution examined as many as 7 witnesses in the complaint brought by Mst.
Hanifan Bibi as she was dissatisfied with the police investigation. However, Imtiaz Hussain Muharrir Head Constable, Ghulam Siddique and Muhamamd lqbal S.1. Were remained as C.W. 1 to C.W.3 respectively.
12. Public Prosecutor tendered in evidence report of the Forensic Expert Exh.P.J. Wherein it was opined that the two empties recovered from the spot were found wedded with the pistol recovered at the instance of the appellant.
13. Muhammad Sarwar alias Kala when examined under section 342, Cr.P.C. In reply to the question as to why the prosecution has brought the case against him made the following answer:-- " P. Ws. Are related to the complainant party. As a matter of fact, occurrence did not take place as stated by the prosecution. Basharat Ali deceased had illicit relations with my niece Mst. Najama. I forbade him for many, times not to come to the house of Mst. Najma. A quarrel took place between myself and Basharat Ali deceased some days before the occurrence. On the night of occurrence, I was going to my house, when I reached near the house of Muhammd Ali co-accused I saw Mst.
Najma in the company of Basharat Ali deceased. I asked that where they were going. At this, Basharat Ali deceased fired a pistol shot which hit me on the back side of my leg. He tried to fire second shot. In the meanwhile I fired pistol shot in my own defence which unfortunately hit Basharat Ali deceased. In cross firing second shot also hit him. People of locality reached there and inflicted sota blows on the various parts of Basharat Ali deceased. I went to the police station and stated whole story to Investigating Officer I was also got medically examined by the local police but police did not register the case on my statement. Investigating Officer of this case visited the place of occurrence and informed the complainant party. After completion of preliminary inquiry a false case was registered against me and my co-accused. Neither my co-accused nor P. Ws. Were present at, the spot."
14. Learned counsel for the appellant vehemently contended that the appellant seeing the deceased in the company of Mst. Najam, his niece, a mid-night got provoked and reprimanded Basharat deceased upon which he was fired upon by the deceased and in the exercise of his right of self-defence the appellant returned fire which proved fatal. It was stated with eloquence that no one witnessed the occurrence and the reasons given by the eye-witnesses to be present at the spot were not at all convincing and unworthy of credit.
15. Conversely learned counsel for the complainant supported the judgment of the trial Judge and stated that if at all the fire was made by the appellant in exercise of his right of self-defence he exceeded the said right for which he should be punished under section 302(c), P.P.C. State counsel adopted the arguments of the counsel the complainant.
16. We have heard the learned counsels at length and have also minutely scrutinized the record.
17. Ocular testimony account has been furnished by Mst. Hanifan Bibi the first informant as P.W. And Muhammad Ashraf as P.W.2. Both these witnesses have more or less reiterated the prosecution version narrated in the First Information Report.
18. Mst. Hanifan as well as Muhammad Ashraf P.Ws. Admitted that they were residents of the adjoining Chak bearing No,36/ML which according to the Investigating Officer Muhammad Iqbal was at a distance of 2-1/2 furlongs from Chak No,35/ML where the occurrence took place. Both the eye-witnesses stated that they came to the house of Akram, who was their tenant, for some private work and left the house for their village at about midnight. What was the urgency of the work with Muhammad Akram which brought the lady with the deceased and others to Chak No,35/ML at 9 p.m. In the night is shrouded in mystery and thereafter they left the house at 12 a.m. Passing nearby the house of the appellant and others with whom a brawl had already taken place few days earlier is once again a narration which is not appealable to common sense and logic. Nature of the work which took them three to four hours at the house of Muhammad Akram has not been spelt out by the prosecution. Therefore, we have serious doubt that neither Mst. Hanifan Bibi nor Muhammad .
Ashraf - were present at the time of occurrence and their testimony to the effect that, the law' the occurrence is not free from taint and no reliance can be placed upon it. However, since the occurrence has been admitted by the appellants who is also injured with a firearm injury the evidence of Mst. Hanifan Bibi as well as Muhammad Ashraf pales into insignificance.
19. Question which remains to be answered is the business which the deceased had at the place where his dead body was found and the manner in which the fight took place becomes relevant.
Both the eyewitnesses have stated that about 15 to 20 days back appellant and the deceased fought on the issue that the deceased was having illicit relations with Mst. Najma niece of the appellant and he was forbidden not to come to the village. Presence of 30 bore pistol near the dead body which was taken in possession by the police and the admission of the eyewitness that the deceased also fired at the appellant sufficiently manifests that the deceased came armed sensing impending danger prepared to use his fire-arm, which he did. His coming to the adjoining village of the appellant at midnight armed with .30 bore pistol itself indicates that his business was nefarious in nature. The next question which attracts our attention is as to who started firing first.
The medical evidence would precisely indicate that one fire-arm injury on the dead body of the deceased was at the bicep of his right shoulder. After having suffered the said injury he could not have effectively managed to have fired at the appellant thus, conclusi rely establishing that the assault was triggered by the deceased and he was fired upon by the appellant after the appellant received the injury on his thigh. Appellant, therefore, was totally justified in the exercise of his right of self-defence to tire at the deceased in order to save his life from any further violance at the hands of the deceased. The next question which has once again focused our attention revolves around the arguments of the learned counsel for the complainant that the second shot fired by the appellant was in excess of the right of private defence allowed to him under the law. Exceecding the rights makes the offence as that of culpable homicide punishable under section 302(c), P.P.C.
20. Right of self-defence is a fundamental right guaranteed by law to a person to save his own life or life of any person from an impending danger. This right has been bestowed under section 100 of the Pakistan Penal Code to the extent of causing death of the assailant in case where assault launched by latter causes reasonable appreciation that death or grievous hurt will be the consequence of such an assault and section 102 of the Pakistan Penal Code makes the right available as long as apprehension of danger to the body continues. In other words the right of self- defence continues as long as the apprehension of use of force continues and it is just like two wheels of chariot which have to go side by side and the moment one wheel crumbles the chariot has to come to a dead stop. It may not be out of place at this juncture to mention that this right of self-defence given to us by the legislature in the year 1860 by four colonial rulers has flourished in our country more than in their own country. Under the English law right of self-defence can only be exercised by a person to save his own body from violence but in order to save the person of another from impending harm the saviour has to be related to the victim through blood or through contract like husband and wife, principal and agent or master and servant. Provisions of Chapter 4 of the Pakistan Penal Code from sections 96 to 106 confers unfettered right on the victim subject to restrictions given in section 99 of the Code, to exercise the right of self-defence either to defend his own body or property or to fend the body or property of even a stranger against any impending danger.
21. Taking up the question whether the second shot fired by the appellant was at the time when the right subsisted or after it came to an end, it may be observed that the right of self-defence at that moment of impulse cannot be measured in golden scales and it is well-nigh impossible to modulate one's attack in the exercise of right of self-defence step by step to ensure that force used is commensurate with the danger averted. In a situation where a person has been fired upon and his life is still in peril it cannot be visualized that he will act within the cool and calm of composed person so as to ascertain that no infraction of law, by exceeding the right of self-defence is perpetuated. At that point or time the only anxiety of the victim is to save himself from the on slaught launched by the assailant. Therefore, the law always gives certain degree of allowance if the right is marginally exceeded. It is only when the force used is grossly out of proportion to the danger precipitated by the assailant or the force used after danger comes to an end, that the law considers such force to be in excess of right of self-defence and then visits the perpetrator with punishment. In the instant case are satisfied, by going through the evidence, particularly the post- mortem report that the second shot fired by the appellant was to disable the deceased from causing him any further harm and as such he was very well within his right conferred upon him by law.
23. The upshot of the discussion, therefore, is that the prosecution version being tainted is not worthy of reliance and in such a situation the alternative for the Court is to accept the defence version in its totality. We, therefore, follow the latter course in the interest of safe dispensation of justice. Appellant killed the deceased in the exercise of his right of self-defence and committed no offence. Resultantly his appeal is accepted, judgment entailing the conviction and sentence of the trial Judge dated 22-7-1996 is set aside. Appellant shall be released forthwith if not required in any other case. Death sentence imposed upon Muhammad Sarwar alias Kala is not confirmed and the Murder Reference is answered in the negative.
23. Appeal against acquittal of the co-accused brought by the complainant was not pressed by the learned counsel and such the same is dismissed.