ATTA MUHAMMAD Versus STATE
MUHAMMAD BASHIR KHAN JEHANGIRI, J. ‑‑‑ The appellants, Atta Muhammad, aged about 59 years and his son Hamidullah, aged about 28 years were tried for offences under sections 324 and 302 read with section 34, P.P.C. and sentenced to rigorous imprisonment for life and a fine of Rs.20,000 each for in default to undergo two years' simple imprisonment each for the murder of Khoshboi Jan, by the learned Sessions Judge, Bannu, vide his judgment and order, dated 12th July, 1988. Half of the fine, after recovery, was directed to be paid to the legal heirs of the deceased. Hamidullah appellant was also convicted under section 324, P.P.C. for causing, in the same transaction, simple hurt to Najib Khan P.W. and was further sentenced to two years' rigorous imprisonment and a fine of Rs.2,000 or in default to undergo simple imprisonment for six months. Both the appellants have appealed to assail their convictions and sentences. Naqibullah Khan, complainant filed revision petition under section 439, Cr.P.C. for the enhancement of sentence awarded to the convicts under section 302/34, P.P.C. from imprisonment for life each to that of death each and for separately determining the compensation under section 544‑A, Cr.P.C. This judgment will dispose of the appeal and revision petition.
2. According to the prosecution case, the incident occurred on Bannu Kurram Garhi Road, at `Digarwela' on 25th January, 1978. The report, Exh.P.A./1, was lodged by Najib Khan (P.W.10) at 17‑45 hours in the Emergency Room of District Headquarter Hospital, Bannu, who was taken there in injured condition and in there, he narrated the occurrence as follows:‑‑
That I alongwith Khoshboi Jan was on the way from our village Kotka Raharndad Nougarhi Mamash Khel to Turmeric Market, on foot. When we reached village Kotka Sher Bahadar on the road, Hamidullah shouted at Khoshboi Jan that he would not be spared and launched concerted attack with a dagger. In order to save ourselves we tried to overpower him but he succeeded to give a blow to me injuring my left hand. In the meantime, Doctor Atta Muhammad reached the spot in a Tonga, duly armed with a pistol and fired a shot at Khoshboi Jan who was hit and fell down. In the meantime, Sakhi Jan and Said Badshah P.Ws. ran towards them shouting at them to overpower the accused but we failed to do so, because we were empty handed. The culprits were, therfore, able to make good their escape.
3. The motive for the offence is that about 1‑1/2 years prior to the occurrence, Hamidullah etc. had given beating to Khoshboi Jan which incident was compromised through the intervention of the elders. Hamidullah was, however, throwing challenge since then.
4. Khoshboi Jan was placed in a Suzuki van. When they reached near Police Station Cantt. Bannu, they met Nazif Shah, A.S.I. who seeing the critical condition of Khoshboi Jan directed them to rush him to the hospital. On arrival at the hospital, however, Khoshboi Jan succumbed to the fire‑arm injury. Najib Khan, P.W. lodged the report Exh.P.A./1, at 17‑45 hours on the same evening which was recorded by Nazif Shah, A.S.I. (P.W.11).
5. After recording the report, Muhammad Nazif Shah prepared the injury sheet Exh.P.M. of Najeeb Khan (P.W.10) and injury‑sheet, Exh.P.B. and inquest report, Exh.P.C. of Khoshboi Jan deceased. Meanwhile, Munir Ahmad Shah, the then S.H.O. Police Station, Mandan, arrived in the hospital and, therefore, the report Exh.P.A./1, was delivered to him while the injury sheets, Exh.P.M. and Exh.P.B. and inquest report Exh.P.C. were handed over to a constable for onward transmission.
6. Munir Ahmad Shah, 5.1‑1.0. (P.W.12) referred Najeeb Khan injured for medical examination and despatched the dead body of Khoshboi Jan for post mortem examination to the District Headquarters Hospital, Bannu. He examined Sakhi Jan. Said Badshah and Khan Badshah eyewitnesses. He also repaired to the venue of the crime alongwith Sakhi Jan and Said Badshah and since darkness had set in, he conducted cursory inspection of the spot and deputed a constable for guarding the spot. He then proceeded to the house of the accused, but they were not available. On the following morning, he prepared the site plan Exh.P.O. at the instance of the above‑named P.Ws. He secured, vide memo. Exh.P.H. the blood‑stained earth from two places, one from the point where the deceased was and had fallen and from the place where Najeeb Khan injured was hit. After post‑mortem examination, the doctor had sent shirt, P.4 a Jersy P.5 of the deceased bearing cut marks and sealed the same into parcel vide memo. Exh.P.J. On the following day of the occurrence, Hamidullah appellant appeared before the Investigating Officer and lodged his report Exh.P.A./2. He was arrested in this case and was also got medically examined. The blood‑stained earth recovered was sent for chemical analysis. Doctor Atta Muhammad accused had absconded, therefore, warrants of his arrest under section 204, Cr.P.C. and proceedings under section 87, Cr.P.C. were also initiated against him. Ultimately, Atta Muhammad appellant was arrested on 20‑2‑1978.
7. Doctor Abdullah Khan performed autopsy on the dead body of Khushboi Jan and noticed the following injuries:‑
(1) A fire‑arm inlet wound 1/4" x 1/4" in size on the front of right chest in the third inter‑spaced 3" to the right of mid‑sternal line and 1" below the right clavical.
(2) A fire‑arm outlet wound 1/3" x 1/3" on the back right side of chest 1/4" to the right of the 7th dorsal vertebrae."
8. On internal examination, Thorax, right pleaurae, right lung, pericardium and right pulmonary artery were found injured. Chest cavity was full of blood. Stomach was healthy and empty. Death had occurred due to shock, haemorrhage and injuries to vital organs.
9. Doctor Mohabat Khan (P.W.1) noticed on Najeeb Khan (P.W.10) the following injuries:‑‑
"A stab wound 1/2" x 1/5" muscles deep on front of left forearm, 3" below elbow. The injury was caused by sharp means within a duration of 1‑1/2 hours and was kept under observation.
The patient was admitted on 25‑1‑1978 and discharged on 29‑1‑1978 as being cured."
10. Both the appellants denied the prosecution case and proclaimed innocence. Hamidullah appellant while admitted in his statement under section 342, Cr.P.C. to have given beating to the deceased which had been compromised maintained that it was the deceased who was nursing a grudge. His statement was that on the day of occurrence he was going all alone on the road when Najeeb Khan (P.W.) and Khoshboi Jan deceased launched an attack at him with sticks and, therefore, he had given dagger blows to Najeebullah in self‑defence. Nonetheless he was severely beaten by them due to which he lost consciousness. The statement of Atta Muhammad Khan appellant was one of bare denial. With regard to his abscondence from 25‑1‑1978 to 20‑2‑1979, however, he explained thus:‑‑
"I did not abscond at all. I am Chemist and Druggist and during the days of occurrence I was doing the same business. I had dealings with the Medical Centre at Peshawar, Pindi, Lahore and Karachi for purchasing medicines for my shop. Prior to the day of occurrence I had gone to Karachi in order to purchase medicines for my shop when on return I came to know that I was falsely charged by the complainant. I then surrendered myself voluntarily."
11. The prosecution examined Khan Badshah and Najeeb Khan who claimed to have witnessed the occurrence. Of them, Najeeb Khan was declared hostile, because he stated that after receiving dagger blow, he was rendered unconscious. He was, therefore, not only cross‑examined at length but his statement recorded earlier on 26‑11‑1978 before the then learned Sessions Judge, Bannu, was ordered to be transferred to this file as Exh.P.W.10/1. In his said earlier statement, he had fully supported the case of the prosecution which he had set up in the F.I.R. Exh.P.A.
12. The trial Court, after weighing the contentions for and against the guilt of the appellants, reached the conclusion that notwithstanding the fact that Najeeb Khan (P.W.) was declared hostile at the trial his presence on the spot at the time of occurrence was established beyond any shadow of doubt. In reaching this conclusion the trial Judge placed implicit reliance, firstly, on stamp of injuries which he bore on his person duly substantiated by the evidence of Doctor Mohabat Khan (P.W.1); and secondly, on the admission of Hamidullah appellant. The learned trial Judge had, therefore, rightly transferred the previous deposition Exh.P.W.10/1 of Najeeb Khan (P.W.) which he had made before learned Sessions Judge at the earlier trial. Notwithstanding his resiling from his previous statement we see no illegality in placing reliance on the testimony of Najecb Khan. Corroboration to the testimony of Najeeb Khan (P.W.) was sought from statement of Khan Badshah (P.W.9) which lends ample support to the deposition of Najeeb Khan (P.W.) on all material particulars. The defence version particularly that of self‑defence raised by Hamidullah appellant was disbelieved by the trial Judge for the reasons; firstly, that neither any defence evidence was produced nor the trend of cross‑examination of the P.Ws. suggested any such plea; secondly, that the deceased and Najeeb Khan (P.W.) are not shown to have been armed with any weapon at the time of occurrence; thirdly, that no explanation muchless than plausible one was forthcoming qua the bullet injury sustained by the deceased; and fourthly, that the so‑called cross‑case tried to be set up besides being delayed intrinsically smacked of concoction.
13. Najeeb Khan (P.W.9) and Badshah Khan (P.W.10), who were examined as eye‑witnesses in this case thus supported the prosecution case by stating that Hamidullah appellant gave dagger blows to Najeeb Khan (P.W.) and his father Atta Muhammad appellant in the meantime reached the spot and fired a pistol shot at Khoshboi Jan fataly injurying him, and that they had witnessed the occurrence.
14. After appraising the evidence on the file we rind that story of launching an attack by Hamidullah appellant at the deceased by dagger and instead causing injury to Najeeb Khan (P.W.) as deposed to by Najeeb Khan and Khan Badshah (P.W.) is proved. We also find that the case of prosecution that during the process. Atta Muhammad appellant also arrived at the spot and fired the deceased to death is established.
15. Mr. Zahoor‑ul‑Haq, the learned counsel for the appellants, has not seriously disputed the prosecution version of the occurrence. What he submitted precisely was that both the appellants could not be held guilty of culpable homicide amounting to murder in that even according to the prosecution there were two distinct transactions; one in which Najeeb Khan (P.W.) sustained injury with a sharp‑edged weapon at the hands of Hamidullah appellant; and another of firing by Atta Muhammad at Khoshboi Jan deceased. According to him despite the fact that neither any plea was taken by Atta Muhammad appellant nor any evidence had been led by him to prove the plea of self‑defence yet on the authority of: (1) State v. Khar‑ur‑Rehman P L D 1960 (W.P.) Pesh. 50, (2) Muhammad Ishaq v. State P L D 1964 (W.P.) Pesh. 143 and (3) Muhammad Altaf v. State 1987 M L, D 1168 if the plea received support to the extent of being reasonably possible from the circumstances proved by the prosecution evidence, the appellant was entitled to the benefit of the said plea. Mr. Zahoor‑ul‑Haq had urged that it is the prosecution case that in the melee that had resulted in the injury to Najeeb Khan (P.W.), Atta Muhammad appellant happened to arrive at the scene of occurrence and having seen his son Hamidullah being molested, not aware as to who had initiated the attack, he had fired the pistol shot and thus was entitled to the benefit of Exception 4 to section 300, P.P.C. and ought to have been acquitted. He also urged that Hamidullah appellant was not at all proved to have shared the common intention to murder Khoshboi Jan deceased as a result of firing by his father Ata Muhammad and, therefore, his conviction under section 302 read with section 34, P.P.C. was not warranted under the law and that at worst he was liable under section 324, P.P.C. Mr. Zahoor‑ul‑Haq further submitted that, alternatively, if we are of view that single shot fired by Ata Muhammad appellant was disproportionate to the circumstances and not commensurate with the factual aspect of case, his case would fall under section 304, Part I, P.P.C. In 'support of this proposition, reliance was placed on Muhammad Zaman v. Dost Muhammad 1988 S C M R 388.
16. Mr. Ejaz Muhammad Khan, the learned Assistant Advocate‑General, conceded to the general proposition propounded by the learned counsel for the appellants that even if no evidence was led by the accused to prove the plea of elf‑defence, yet if an inference could be reasonably drawn from the prosecution evidence that the plea could be spelled out, the benefit thereof could be extended. Nonetheless, he controverted the stand of the learned counsel for the appellants that Ata Muhammad appellant was entitled to right to private‑defence. In this context it was submitted that at the time of arrival of Atta Muhammad at the spot, Najeeb Khan (P.W.) and Khoshboi Jan deceased were not armed or at least were not armed with such a weapon as to create in the mind of Atta Muhammad appellant a reasonable apprehension of death or grievous injury to Hamidullah appellant within the contemplation of clauses 1 and 2 of section 100, P.P.C. The learned Assistant Advocate‑General strenuously canvassed that proposition basing himself on two judgments of the august Supreme Court in (1) Ahmad v. State P L D 1971 SC 720 and (2) The State v. Mushtaq Ahmad P L D 1973 SC 418. The principle deducible from Ahmad's case is that the exercise of the right of self‑defence of body or property is subject to restrictions contained in section 99 of the Pakistan Penal Code; one such restriction being that no harm is to be a caused other than what is absolutely necessary for the exercise of the right of self-defence. If the harm caused to the offending party is out of all proportions to the harm which is threatened by the other party, and which gives occasion for exercise of that right, the right of self‑defence will stand completely negatived. The principle emphasised by the Supreme Court in State v. Mushtaq Ahmad cited at the Bar which was distinguished from the rule in Safdar Ali v. Crown P L D 1953 FC 93 and Muhammad Aslam v. The Crown P L D 1953 FC 115 was that when an accused does not specifically raise a plea of self‑defence, nor does he produce any evidence in his defence, the possibility of any 'reaction' on prosecution case was excluded altogether.
17. The picture of the occurrence as constructed by the trial Court is that at the first instance Hamidullah appellant launched an attack on Koshboi Jan deceased with a dagger while Najeeb Khan (P.W.) in order to intervene sustained injury on his left hand; both the deceased and Najeeb Khan (P.W.) were unarmed or were not armed with any deadly weapons; meanwhile Atta Muhammad appellant emerged at the scene and fired a pistol shot at Khoshboi Jan hitting him on the right chest. We have no manner of doubt that from the evidence brought on the file this depiction of the occurrence is both plausible and true. With this background in view, we have considered the plea of self‑defence as raised by the learned counsel appearing on behalf of Atta Muhammad appellant. VVe are afraid, we cannot subscribe to this plea as being without substance. At the time of arrival of Atta Muhammad appellant at the spot, both the deceased and Najeeb Khan (P.W.) were unarmed. Section 99 of the Pakistan Penal Code lays down that the right of private defence in no case extends to the infliction of more, harm than it is necessary to inflict for the purpose of defence and section 104 of the Pakistan Penal Code makes it abundantly clear that the exercise of right of private defence against offences mentioned in that section is circumscribed by the limits described in section 99 ibid. If, therefore, a person intentionally does an act which he knows will result in more serious harm than the harm which the law allows him to cause in the exercise of the right of private defence it could not be said that he was acting in the exercise of the right of private defence but happened to exceed that right.
18. This proposition was exactly considered by the august Supreme Court in the case of Nazir Ahmad v. State 1976 S C M R 179. In that case also, one of the appellants in his statement under section 342, Cr.P.C. denied the presence of his co‑accused at the incident. According to his statement, it was he who was actually ploughing the: Geld while the deceased and his brother Wali Muhammad were cutting fodder. Abadan deceased in that case tried to stop him from ploughing the field and attacked him with a sickle and in self‑defence the appellant therein wielded the driving stick which he was carrying at that time. The prosecution's case in this context was that the appellant therein had given blows with Muni of Shisham wood which weighed 1.14 Seer and 2' x 11' was in length. The plea of self‑defence was repelled by his Lordship Muhammad Gul, J. on the following observations: ‑‑
What influenced the .trial Court to give effect the ispo dixit of the appellant was that it was admitted by the prosecution witnesses that as Abadan rushed forward to the appellant to stop him from ploughing the common Watt the former was armed with a sickle. From this the trial Judge concluded that the deceased himself has assumed a threatening posture with sickle in his hand and given rise to a genuine apprehension in the mind of the appellant that the deceased was going to attack him with sickle. The trial Judge also believed the statement of the appellant that he wielded the driving stick in self‑defence. On the basis of this material the trial Judge came to the conclusion that the plea of self -defence was reasonably established. The learned Judges in the High Court were not satisfied with the above conclusion and set aside the trial Court's judgment, so far as the appellant was concerned, and gave benefit of doubt to the appellant's brother Abdul Sattar. Nevertheless the learned Judges took the view that on the evidence produced, the appellant could have entertained a reasonable apprehension of attack upon him and, therefore, he had right of private defence which he had exceeded. The learned Judges failed to consider that ordinarily sickle is not a weapon of offence and it was admitted that the deceased was engaged in cutting fodder. Therefore, he had the sickle with him in the normal course of his activity at the relevant time and had not armed himself with it with a view to attacking the appellant. Another material fact in the case is that not even a scratch was caused to the appellant and this should be enough to demolish the plea of self‑defence, more so the injuries on the head of the deceased according to the prosecution case followed the wresting of the sickle by the appellant from the deceased. However, that may be, this aspect of the case is not before us.
19. We are in respectful agreement with these observations. In the present case, as stated earlier, the evidence shows that Atta Muhammad appellant arrived at the scene of occurrence and decided there and then to kill the deceased in the background of the earlier incident which formed an admitted motive for Hamidullah appellant to launch an attack with dagger upon Khoshboi Jan deceased.
20. Applying the above statement of law on the question of right of self- defence and restrictions on its exercise to the facts of the case before us, we are clear in our mind that the right stood negatived by the weapon used and the seat of injuries sustained by the deceased and it had indeed highlighted that the exercise of right of self‑defence was not rooted in good faith. Since the deceased and Najeeb Khan (P.W.) were not armed while Hamidullah appellant was wielding a dagger, therefore, Atta Muhammad appellant having seen the scuffle should have separated them. The contention of the learned counsel for the appellants that Atta Muhammad appellant having seen his son surrounded by the deceased and Najeeb Khan (P.W.) in a scuffle could legally use his pistol with a view to saving the life of his son is negated by the fact that at the relevant time when appellant Atta Muhammad had fired at the deceased his son, appellant Hamidullah, was at a safe distance from the deceased. To hold that Atta Muhammad appellant who was armed with a pistol had fired at the chest of Khoshboi Jan deceased was exercising the right of private defence of the life of his son or was merely exceeding it would be to shut one's eyes from the provision of law applicable to the case of exercise of right of private defence.
21. Keeping in view the principle laid down by their Lordships of the Supreme Court in the cases cited at the Bar by the learned Assistant Advocate‑
General, the plea of self‑defence could not be said to be available to Atta Muhammad appellant and the offence committed by him was clearly murder and not one of culpable homicide not amounting to murder. He has, therefore, rightly been convicted by the trial Court of the offence under section 302, P.P.C.
22. We shall now consider the case of Hamidullah appellant. The learned Assistant Advocate‑General has not only conceded to this proposition but it also emerges from the evidence on the record that he had nothing to do with the fatal pistol shot fired on the deceased which had been attributed to his father Atta Muhammad appellant and that he shared no common intention of such firing with his father. The provisions of section 34, P.P.C. are thus not attracted to the case against Hamidullah appellant. The conviction and sentence recorded against Hamidullah appellant under section 302/34, P.P.C. are thus not sustainable which we are inclined to set aside.
23. Nonetheless Hamidullah appellant has been rightly convicted for an offence under section 324, P.P.C. Looking to the peculiar circumstances of the case, we would reduce his sentence of two years' R.I. to that already undergone by him. He shall also be liable to pay a fine of Rs.500 or in default to suffer S.I. for one month. He shall be released forthwith if he pays fine and is not required to suffer imprisonment in any other case.
24. So far as the sentences of Atta Muhammad appellant are concerned, we subscribe to the view of the learned trial Judge that he should not be visited with the extreme penalty of death on the ground that a period of 11 years has elapsed since the occurrence had taken place. The ends of justice would be satisfied if he is awarded lesser penalty of imprisonment for life. We, therefore, maintain the sentence of Atta Muhammad appellant to rigorous imprisonment for life.
25. Criminal Revision No. 10 of 1988 filed by Naqibullah complainant for enhancement of sentences passed against the appellants consequently fails and stands dismissed.
26. By a short order, dated 3‑10‑1989, we have partially accepted the Criminal Appeal No. 18 of 1988 filed by the accused‑appellants in the above terms. The above are the reasons for it.
N.H.Q./937/0 Appeal partly accepted.