Law:

Section:

Penal Code (XLV of 1860), S. 302 read with S. 300, Excep­tion 2-Murder-Private defence, right of-Accused, taking deceased to be a burglar concealing himself inside their house, killing deceased by repeated shots of rifles and with blows of blunt and sharp-edged weapons-Accused having two rifles could easily have saved their property and even captured deceased intruder by use of much less ,force-Volume and degree of force employed, held, was out of all proportion to necessity, offence could not be saved by Exception 2 to S. 300 and case fell within S. 302-Appeal dismissed. M. Anwar, Advocate Federal Court instructed by M. A. Rahman, Attorney for Appellants. Asadullah Khan, Advocate Federal Court instructed by Iftikharuddin Ahmad, Attorney for the Crown. Date of hearing : 1st November 1954. JUDGMENT CORNELIUS, J.-This is an appeal by Zarin Khan and Bakht Wali from their conviction for murder and sentences of transporta­tion for life, which have been confirmed on appeal by the Court of the Judicial Commissioner at Peshawar. The murdered man was named Ghulam Jan, and belonged to a village about two hours walking distance from Shahkot where the accused persons live. He was killed in the house of Zarin, which adjoins that of Bakht Wali, uncle to Zarin, on the night of the 7th March 1952. The principal injuries on the body were four contused wounds on the head and chest, three incised wounds on the legs, and four bullet holes through the body. The initial report is said to have been made to the police by Zarin Khan, but the latter was never questioned, on this point and did not himself admit having made the report. However, both accused persons made confessions to a Magistrate accepting responsibility for killing Ghulam Jan whom they said they had taken for a burglar. No other direct evidence was offered in the case. Zarin Khan's statement was as follows:­--- "Q.-Did you kill Ghulam Jan son of Hassan Gul, Gujjar deceased of Pattian ? A.-It so happened that on 7th March 1952 at khuftan time I was sleeping in my house when the dog started barking. In the meantime my uncle Bakht Wali came and asked me as to what was the reason for the dog was barking. I got up and beard…

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