' IFTIKHAR HUSSAIN CHAUDHARY, J.---A criminal case F.I.R. No,186, dated 26-8-1993, Exh.P.E.1, for offence under sections 352/302, P.P.C. Was registered at Police Station Garh Maharaja, District Jhang on the report of Haibat Khan, S.I. The brief facts of the prosecution case are that on 26-8- 1993 at about 12.00 Noon, Haibat Khan S.I. Along with Tariq Mehmood H.C., Muhammad Nawaz, C.
And Faiz Ullah, C. Was present at Adda Sharif Abad in order to check narcotic dealers. Muhammad Nawaz son of Sher resident of village Chatta Baksha alighted from a bus and came near the police party to meet Faiz Ullah, Constable. In the meanwhile Haibat Khan S.I. Received a spy information that Sardar alias Suddo son of Ghulam Muhammad having illicit arms in his possession was present at his Dhari-residence. Raid was conducted at the Dhari of the accused and the accused was found present there having a 12 bore shotgun. On seeing the police party, the accused started running and was chased by the police party. Apprehending his arrest, the accused took shelter in the watercourse and by raising Lalkara fired a shot which hit Faiz Ullah on the left side of his bladder who fell down and died at the spot. The accused was captured by the police party when he tried to re-load the gun. Sardar accused received injury on the right side of his head in that process. The accused could not produce any valid licence of the gun. As a consequence, criminal case Exh.P.E./1 was registered at Police Station Garh Maharaja, District Jhang.
2. Haibat Khan S.I. P.W.8 after sending the complaint to the Police Station for registration of the case, secured gun Exh.P.8, five cartridges Exh.P.9/1-5 vide memo. Exh.P.8. Investigating Officer prepared injury statement and inquest report Deh.P.A/2 and sent the dead body to the mortuary under the escort of Muhammad Rafique A.S.I., Muhammad Nawaz Constable, Tariq Mehmood H.C. P.W.5 and Muhammad Nawaz P.W.6. He secured blood-strained earth from the place of occurrence vide memo. Exh.P.F. He recovered crime empty from the place of occurrence vide memo. Exh.P.G. He got prepared site plans Exh.P.C. And Exh.P.C./1 by Zulfiqar Patwari P.W.2. The investigation was then entrusted to Deputy Superintendent of Police who found the accused guilty in the case and he was sent up to face trial in the Court of Additional Sessions Judge, Shorkot.
3. Charge under section 353, P.P.C. And under section 302, P.P.C. Was framed against the accused on 7-11-1995 who denied the charge and claimed for trial where prosecution examined Dr. Mulazim Hussain P.W.1 who had conducted post-mortem examination on the dead body of Faiz Ullah Constable, Zulfiqar Ali Patwari P.W.2, Muhammad Rafique, A.S.I. P.W.3 Ahmad Sher H.C. P.W.4, Tariq Mehmood H.C. P.W.5, Muhammad Nawaz P.W.6, Ghulam Shabbir Constable P.W.7 and Haibat Khan Inspector P.W.S.
4. The accused in his statement recorded under section 342, Cr.P.C. Denied the prosecution case against him and pleaded his false involvement in the case. The accused in reply to question "Why this case against and why the P.Ws. Have deposed against you?", took the following stand: "I have been falsely involved in this case. The Police entered my house without any authority. They wanted to arrest me, although I had committed no crime. I ran along with my licensed gun but the police encircled me and shouted that they wanted to arrest me and in case I did not offer arrest they would shoot me. Haibat Khan S.I./S.H.O. Was armed with a revolver, whereas Tariq Mehmood H.C. Was armed with rifle 9-MM and advanced further while I had every apprehension that they would kill me. At this juncture Faiz Ullah Constable snatched my gun from me. I warned that the gun was loaded and it was the licensed gun but he gave injury with the butt of the gun in my head.
In this process gun went off hitting the deceased."
5. Trial Court after conclusion of trial believed the prosecution case against the accused and convicted him under section 353, P.P.C. And sentenced him to rigorous imprisonment for two years with a fine of Rs,10,000. He was also convicted under section 302, P.P.C. And was sentenced to death with a compensation amounting to Rs,50,000 under section 544, Cr.P.C. To be paid to the legal heirs of the deceased by judgment, dated 9-7-1997.
6. Sardar, convict filed Criminal Appeal No,614 of 1996. Muhammad Hayat Khan father of Faiz Ullah filed Criminal Revision Petition No,305 of 1996 for enhancement of compensation awarded to the convict. Trial Court also referred the matter to this Court for confirmation or otherwise of sentence of death awarded to the convict.
7. Learned counsel for the appellant argued that no illicit fire-arm weapon was recovered from the appellant and that was a fair indication of the fact that no raid was conducted at the house of the appellant and the deceased died on account of his misadventure and prosecution story was fabricated in order to show the incident to be a case of deliberate murder which was not the case at all. It was submitted that the record supported the defence version and the appellant deserved acquittal.
' The State supported the conviction of the appellant.
8. Sardar-convict is an ordinary agriculturist. He had not criminal antecedents and was not required by local police in any case. There apparently was no need or justification for carrying out raid at his residence. The prosecution case is that half a dozen members of the police force carried out raid at the "dhari" of the accused on source information that Sardar was keeping illicit fire-arm weapon at his resident. The accused allegedly started to run away with the illicit weapon, was followed by the police and the accused-convict in order to avoid his arrest, fired at the police fattaly hitting the deceased-Constable. The record reveals that the shotgun being carried by the accused at the time of incident was a licensed weapon. In that event, there was no need for the appellant to have run away from his house on the arrival of the police force. The so-called' informer was not brought forward to testify at the trial that he had passed on any information to the local police.. On careful analysis of the evidence on record, we feel inclined to accept the defence version to be a truer account of the incident. The prosecution story does not depict the correct picture of the occurrence.
9. It appears that the convict was present in his village and was carrying his shotgun. The deceased-constable in a vain display of authority tried to forcibly snatch away the shot-gun. The accused considering the action of the constable to be unlawful resisted his attempts in this regard and in the ensuing struggle the gun went off mortally wounding the constable. ' The medical evidence supports this inference as well. The injuries noted on the dead body were not caused from a distance as claimed by the prosecution but were caused from a close range. The locale and nature of injuries were indicative of the struggle between the alleged assailant and the deceased.
10. The facts and circumstances of the case do not show that the accused had the intention to cause death of the deceased. The deceased himself appears to have invited his death. The case is hardly of a nature where the accused could have been convicted under section 302(a) or 302(b)
Pakistan Penal Code, 1860. At the same time, we do not consider the case of the appellant to be that of acquittal. The constable probably was acting under a misconception and was not acting legally while trying to take away the licensed gun of the accused, but response of the accused who was armed with a loaded gun in the manner as was shown by the accused, was not required.
Therefore, keeping in view the circumstances in which the deceased lost his life, we convict the accused under section 302(c) Pakistan Penal Code, 1860 and impose a sentence of rigorous imprisonment for ten years on the convict. Benefit of revisions of section 382-B, Cr.P.C. 1898, shall be extended to the convict. Conviction of the appellant for offence under section 353, Pakistan Penal Code having been found to unwarranted, is set aside.
11. The criminal appeal filed by the convict is dismissed with above modification in sentence awarded to him by the trial Court. The revision petition is without merit and is dismissed.
' Murder reference is answered in the negative.
Appeal dismissed/