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Criminal Appeal No. 568 of 1962, decided on 11th June 1964.

-Private defence, right of‑Right, in no case extends to inflicting more harm than necessary for purpose of defence Right exists only as long as apprehension of danger to body exists Benefit of Exception 2 to S. 300, available only if person exceeds power given to him by law during continuance or existence defence‑Provision of S. 300, Exception no applicable such right has ceased to exist‑Hurt caused after right has ceased‑Cannot be said to have been committed in exercise of right‑Question whether accused had or continued to have right of self-defence and when or whether it had come to end -- To be decided according to circumstances of each case‑Seven incised injuries with hatchet given to deceased after his challenge with stick had been effectively met and he had been felled to ground helpless by shots fired front revolver by one of co‑accused‑Accused, held, acted not in .self‑defence but out of revenge‑Conviction under S. 302, upheld.

Muhammad Ishaq and another v. The State P L D 1964 Pesh. 143 ; Imam Bakhsh v. The State P L D 1961 B J 22 ; Fazal Hussain v. Emperor A I R 1933 Lah. 665 ; Saddu and others v. Emperor A I R 1939 Lah. 393 ; Harbans Singh v. The Crown 47 Cr. L J 358 ; Emperor v. Ashraf‑ud‑Din and another A I R 1941 Lah. 45 and Queen v. Fuzza Meeah alias Fuzza Mahomed 4 W R 89 ref.

Fateh Khan v. State P L D 1957 Pesh. 122 not applied.

M. A. Zullah for Appellant.

R. A. Jeremy for A.‑G. for the State.

K. B. Mushtaque Hussain Khan for the Complainant.

Dates of hearing : 10th and 11th June 1964.

This appeal is by Nazira (16/17 years), who has been sentenced to transportation for life and a fine of Re. 1 for having committed the murder of Sultan by giving him injuries with the hatchet Exh. P. 2 on the 29th of August 1961, at about noon, in the area of village Bunga. His conviction is based on his own statement made by him at the trial. Along with him were tried his two brothers Mammu and Gulla. Gulla was given the right of self‑defence on his statement, and was acquitted. Mammu was held to have been falsely implicated, and was acquitted for that reason. There is a private petition for revision against the acquittal of Gulla and Mammu with a view to their being re‑tried under section 302, P. P. C., and for enhancement of the sentence imposed on Nazira appellant. Notice has not yet issued to the respondents in this petition.

2. Gulla was separately charged under section 19 (f) of the Arms Act for the possession of revolver Exh. P. 3. He was con victed and sentenced to six months' rigorous imprisonment. His appeal, if any, is not before us.

3. On the 9th of January 1961, Mohabbati, uncle of the appellant, was murdered and a report of the occurrence was made by Shera, brother of the deceased. It is Exh. P. O./1. For the murder Mst. Hakan, sister of Sultan deceased and two others were challaned, but they were all acquitted on the 29th of November 1961. The case had not yet been decided when this occurrence happened. It is alleged that the deceased was pursu ing the case on behalf of his sister, and the appellant and his brothers nurtured a grievance against him on that score. The appellant and his brother admitted the factum of murder, but denied that the deceased was pursuing the case on behalf of his sister.

4. The prosecution case is that on the fateful day, Sultan deceased was, at about midday, grazing his buffaloes on the roadside, when all the three appellants came from a garden on one side of the road. Mammu accused was armed with a revolver, while Nazira appellant and Gulla accused had hatchets. Mammu accused fired a revolver shot from a distance of about 5 karams at the deceased from across the khal, but it could not be said whether it hit the deceased or not. He then jumped across the khal, and coming on to the road, fired a shot from a distance of about 3 karams and hit the deceased under his chest. The latter bent on his knees and waived his soti which he had with him. Gulla and Nazira, who had also crossed over, were hit with it. Then Mammu accused fire a third shot from close range, hitting Sultan deceased in the abdomen, and then Gulla accused and Nazira appellant gave him several blows as he lay on the ground. The occurrence was witnessed by Nur Din (P. W. 13) and Karam Ali (P. W. 14), who raised a hue and cry, and the assailants ran away shouting that they had avenged Mohabbati's murder. The eye‑witnesses found Sultan alive. While Karam Ali P. W. remained with Sultan, Nur Din P. W. went to the dera of Zaman (P. W. 12), brother of the deceased, which was at a distance of about four squares from the spot, and informed him about the occurrence. Zaman P. W. came to the spot, and the deceased told him on his inquiry that Mammu, Nazira and Gulla had killed him due to Mohabbati's murder. Nur Din P. W. was .1so present at that time. He also have details of the occurrence to Zaman P. W. The deceased was carried to the road and from there was taken to the Civil Hospital at Sargodha, which is 14 miles from the spot, in a truck. Zamir Hussain, A. S. I. (P. W. 16), was present in the District Headquarters Hospital at Sargodha. Zaman P. W. made the report Exh. P. H. before him at 5‑15 p. m. It was sent to P. S. Sadar, Sargodha for formal registration of the case. Sultan died in the hospital at 8‑15 p. m. and Zamir Hussain, A. S. I., on receiving ruqqa Exh. P. G. went to the hospital and prepared the inquest report Exh. P. N. Ch. Abdur Rehman, S. H. O. (P. W. 17), went to the spot on receiving information of the occurrence at village Mari, where he was investigating another case. He reached the spot at about 9 p. m. Zamir Hussain, A. S. I. also came to the spot at 11‑30 p. m. Ch. Abdur Rahman, S. I. took blood‑stained earth from the spot on the following morning and made it into a sealed parcel. Nazira appellant and Gulla accused appeared before him at 7‑30 a. m. As they had injuries on their persons, he prepared their injury statement Exhs. P. S. and P. R. respectively. The Sub‑Inspector took Gulla's shoes Exhs. P. 1/1‑2 into possession as they were blood‑stained. On interrogation Nazira appellant offered to produce the hatchet. He took the Sub‑Inspector to his dera and produced blood‑stained hatchet Exh. P. 2 from underneath a heap of dry twigs behind his dera in the presence of Haji Muhammad Yar (P. W. 10) and Allah Bakhsh (P. W. 11). It was taken into possession and sealed into a parcel. At the instance of Gulla accused the revolver Exh. P. 3 was recovered from a place near his dera, where it lay buried under‑ground near shisham tree. It contained five fired bullets Exh. P. 4/1‑5 and a live bullet Exh P. 4/6. They were taken into possession. The revolver and the empty were separately sealed.

5. Dr. Abdul Ghafoor (P.W. 1) examined Sultan deceased on 29th August 1961, at 5 p.m., and found the following injuries :‑

(1) A contused wound, " x ", on the front of the right upper chest, second inter‑costal space, mid clavicular line. The margins were charred. This was a wound of inlet.

(2) A circular contused wound, " x ", on the right abdomen, 2 " from the umbilicus. Its margins were not charred.

(3) An incised wound, 1 " x ", on the upper part of the left neck, just below the jaws, skin deep.

(4) An incised wound, 1" x "; through and through, opening into the mouth continuous with the mouth on the left side of the cheek.

(5) An incised wound, 2" x ", skin deep, longitudinally in the mid line, on the forehead and upper part of the nose.

(6) The anterior one‑third of the tongue was cut on its upper and left side through and through.

(7) An incised wound, 4" x ", bone deep, with bone cut on the anterior part of the skull in the frontal region across the mid line.

(8) An incised wound, 2" x ", with bone cut, " below the left part of injury No. 7.

(9) An incised wound, 3 " x ", bone cut obliquely on the occipital region, across the mid line.

(10) An incised wound, curved, 2 " x ", bone cut on the right parietal region, 3" from the right ear.

(11) A contused wound, " x ", on the right back, 1 " from the mid line opposite the inferior angle of the scapula. This was outlet of injury No. 1.

The condition of the patient was serious, his life being in danger. Injuries Nos. 3, 4, 5 and 6 were simple and 7 to 10 grievous. Injuries Nos. 1, 2 and 11 were caused by firearm. All the other injuries were caused by sharp‑edged weapons. The duration of the injuries was within 12 hours. Sultan died in the hospital at about 8‑15 p. m. and Dr. Abdul Ghafoor P. W. performed the post‑mortem examination on his body at 9‑15 a.m. on the 30th of August 1961 and found the same injuries as narrated above. He found fracture of the skull due to injuries Nos. 7 to 10. The pleura was ruptured on the right side. The right lung was ruptured at the anterior and posterior surface. There was a lot of blood in the right chest. The stomach was perforated at two places due to injury No. 2. The deceased died of severe shock and haemorrhage from the right lung due to injury No. 1. Injury No. 2 had caused rupture of the stomach and peritonitis. Injury No. 7 had caused fracture of skull and intra‑cranial haemorrhage. Injuries Nos. 1, 2 and 7 were sufficient, in the ordinary course of nature to cause death individually and collectively. A bullet was recovered and was sent to the police. The time between injuries and death was within 12 hours and that between death and post‑mortem examination about 13 hours.

6. The doctor examined Nazira appellant (19 years) on the 30th of August 1961 at about 8 p.m. and found a contusion mark, " x ", on the back of the right scapula, simple in nature, and caused by blunt weapon within 36 hours.

7. The doctor also examined Gulla accused on the same day at about 8 p.m. and found the following injuries on his person :‑

(1) A contused wound, " x " x scalp deep, 3" from the left ear on the left parietal region.

(2) A contused wound 2 x ", in the middle, on the frontal region.

(3) An abrasion, " x " on‑the left hip.

He also complained of pain of left shoulder. All the injuries were simple and caused by blunt weapon within 36 hours.

8. At the trial Nazira appellant made the following statement :‑

"On the day of occurrence, at dopehrwela. I and my brother Gulla were going towards our land, which is situated, on the south of the katcha road. My co‑accused Gulla was going ahead of me at a distance of 15/20 karams. Sultan deceased was grazing his buffaloes on the roadside. On meeting Gulla, Sultan deceased gave two soti blows to him. When I reached the spot, Sultan also inflicted a soil blow on me. At that stage, my co‑accused Gulla, who had a pistol with him, fired two or three shots. Sultan was hit and he fell down and then I inflicted injuries on him with a hatchet which I was carrying with me."

Gulla accused made the same statement, and also admitted that he produced the revolver Exh. P. 3 before the police. Nazira, however, denied that he used the hatchet Exh. P. 2 or produced it before the police. No evidence was produced in defence.

8. The prosecution produced Nur Din (P.W. 13) and Karam Ali (P. W. 12) as eye‑witnesses of the occurrence. Zaman (P. W. 18) and Dosa (P. W. 15) deposed to oral dying declaration made by the deceased, naming the three accused as his assailants. The trial Judge disbelieved the evidence of the eye‑witnesses. He was of the view that Nur Din and Karam Ali P. Ws. did not probably see the occurrence, but that if they actually saw it, they had distorted‑the facts. He considered it unsafe to rely on the evidence of Dosa as he was a chance witness. Having ignored their evidence, he held, on the statement of Nazira appellant, that he was proved to have committed an offence under section 302, P. P. C., as he had no right of private defence of person, because it was admitted that on being hit by the appellant, Sultan deceased had fallen down seriously injured. It was most cruel for him to have given so many hatchet blows to the deceased in such a reckless manner. The medical evidence had shown that one of the hatchet blows was sufficient to cause the death of the deceased in the ordinary course of nature. He found, however, that Gulla had acted within the right of self‑defence, and that Mammu had been falsely implicated.

9. In this appeal by Nazira, it has been argued that the appellant acted within his right of self‑defence because the apprehension, which existed previously was still there, although the deceased had fallen to the ground. It is urged that, in any case, it is a case of exceeding the right of self‑defence. It is also pleaded on his behalf that it is a case of grave and sudden provocation and the appellant's conviction under section 302, P. P. C. cannot be maintained.

10. In support of the contention that the appellant acted in the right of self‑defence, his learned counsel relied on Muhammad Ishaq and another v. The State (P L D 1964 Pesh. 143), Imam Bakhsh v. The State (P L D 1961 B J 22) and Fazal Hussain v. Emperor (A I R 1933 Lah. 665). In the first case it was held that the circumstances appearing in support of the plea of self‑defence put forward on behalf of the appellants tended to show that it was a one‑sided attack by the deceased persons on the appellants and their brother. In the circumstances, though the right of, private defence in no case extends to inflicting of more harm than is necessary to inflict for the purpose of defence, it could not be ignored that in the heat of the moment and while defending him self against an attack, it was not possible for the appellant, in that situation, to have decided on the spur of the moment whether he should fire one or more shots in order to defend himself effectively. The appellant Muhammad was, therefore, held not to have exceeded the right of self‑defence when he fired the second shot. The facts of the present case show that this principle would apply to the case of Gulla accused and not of Nazira appellant. In the second case, there was a sudden fight between Nathu deceased, who was a cousin of the appellant Imam Bakhsh, and a quarrel arose between them over the straying of a buffalo into the field of the appellant, who was intending to take it to the cattle pound when the deceased hit him on the head from behind with a wooden dandali which he succeeded in snatching from him and hit him once with it on his head. In consequence, Nathu fell and died soon after. It was held that it could not be laid down as a general proposition that once the deceased was disarmed, the apprehension of danger to the appellant ceased to exist, for a person faced with the apprehension of bodily harm from the deceased, cannot be expected to weigh in golden scales the amount of force which would suffice to allay the apprehension of danger from the aggressor, especially when the aggressor had already indulged in grappling with the accused for mastery over the weapon of offence. Consequently, it was held that the right of self‑defence continued with the appellant when he deliver ed the blow on the head of the deceased with the same dandali as was used by the deceased. It was unfortunate that the blow delivered by the appellant had a far more serious consequence than the one delivered by the deceased to the appellant, but for that reason alone it could not be held that the appellant had exceeded the right of private defence. The facts of this case are clearly distinguishable from the facts of the present case. In the third case, according to the confession of the accused, which was the sole basis for conviction, the accused was way‑laid and attacked by two persons, who were armed with hatchets and he having snatched the hatchet from one of them hit one or both of them, in order to save his life. In the circumstances, it was held that as the attack gave him reasonable apprehension of death or grievous hurt, the case was covered by section 100, and he could not be held guilty of any offence, nor could it be said that the accused exceeded his right by inflicting more harm than was necessary on being attacked by hatchets, for his life was in danger every moment, and he could not be expected, in such circumstances, to modulate his defence step by step or be able to gauge the precise force or number of blows which would have been just sufficient to save his life. This case is clearly distinguishable on facts.

11. For the second proposition that the appellant had, in any case, exceeded the right of self‑defence, the learned counsel for the appellant relied on Saddu and others v. Emperor (A I R 1939 Lah. 393) and Harbans Singh v. The Crown (47 Cr. L J 358). In the first case, the complainant party, which was armed with weapons, went to remonstrate with the party of the accused at the letters haveli at a considerable distance from the residence of the former. After exchange of a few abuses, the accused, apprehending that if they did not defend themselves effectively they were likely to receive severe injuries or even be killed, went into their haveli and came out armed with hatchets and dangs. Thereafter, a fight, which was definitely provoked by the complainant's party, ensued in the course of which one person from the complainants' party was killed. It was held that the accused had not exceeded their right of private defence in fetch ing weapons from their haveli and, in the circumstances, their right extended to the voluntarily causing of death. In the course of the fight, a person from one party named Nura had run away and was pursued by Saddu and Wasavi of the other party, who overtaking him at a distance of over 200 karams from the place where the main fight took place, had killed him there. It was held that in so pursuing Nura they had clearly exceeded the right of self‑defence and were guilty under section 304, Part I, P. P. C. In the second case, Karam Singh went to the appellant's house and picked up a quarrel with his father Sawaider Singh and acted high‑handedly in beating him. When the appellant arrived, he found his father and Karam Singh grappling with each other. He tried to extricate his father from Karam Singh's clutches, and when the latter whipped out his karpan and wanted to attack the appellant, the latter had the right to defend himself. He succeeded in disarming him, but his conduct showed that he was carried away by the heat of the moment and though he had succeeded in disarming his opponent by taking away his weapon he went on showering blows after blows on him. The number and nature of injuries inflicted by him upon Karam Singh indicated that he acted in a spirit of revenge and not in the bona fide exercise of the right of self‑defence. Two of the incised injuries on Karam Singh's chest were very serious and each one of them was sufficient to disable him. The contention on behalf of the learned counsel for the appellant that he could hardly be expected to weigh the result of his action and that he probably thought that his life was in danger and he was not safe until he had killed his opponent was repelled as without force, because one of the most important conditions of the right of self‑defence as laid down in section 99, Penal Code, was that the right in no case extends to the inflicting of more harm than is necessary to inflict for the purpose of defence. It was held that whatever might be said regarding the other injuries to the deceased, there was no justification whatever for the appellant to inflict both the chest injuries, and that he had exceeded the right of self‑defence. He was convicted under section 304, Part I, P. P. C.

12. When we come to examine the facts of the instant case, we find that the deceased had only a stick and was opposed by two men, Gulla accused and Nazira appellant. On receiving a stick blow, Gulla accused promptly brought out a revolver and fired five shots at him (and five empties were found in it), of which two injured him fatally. According to the appellant's version also, Gulla had fired two or three shots and Sultan was hit and fell down, and he then injured him with his hatchet. Gulla alone had met the challenge effectively and rendered him ineffective. The appellant and his co‑accused were not only superior in numbers, but the deceased had been fatally injured, and his stick must have fallen from his hand. The accused had, of course, a right of self‑defence so long as apprehension of hurt or grievous hurt existed at the hands of the deceased, but such apprehension ceased to exist and came to an end when the deceased fell to the ground mortally wounded. The right of private defence lasts only so long as the apprehension exists. In Emperor v. Ashraf‑ud‑Din and another (A I R 1941 Lah. 45), it was held that assuming that Shah Mir deceased, may in the course of an alter cation, have threatened Ashraf‑ud‑Din accused with a kulhari, the circumstances did not justify a plea of self‑defence. Though Ashraf‑ud‑Din might have been justified in wresting the kulhari from Shah Mirbr even in striking him to prevent an attack on his person by Shah Mir, but the evidence in the case was that the accused first wrested the kulhari from the hands of Shah Mir and that then Khair‑ud‑Din seized the deceased by the arm, while Ashraf‑ud‑Din repeatedly stabbed him, inflicting as many as ten serious incised injuries, including a deep penetrat ing wound into the abdomen. This showed that even giving every possible consideration to the plea of the accused, this was not an act committed in the exercise of the right of self‑defence, but an act of revenge. This appears to be the case in the present case also, because no less than seven incised injuries with a hatchet were given to the deceased as he lay helpless on the ground, and one of the injuries in itself was sufficient to cause death in the ordinary course of nature. The injuries were obviously caused by way of revenge and not out of an apprehension of hurt or necessity of self‑defence in good faith.

13. Section 99, P. P. C., provides that the right of self- defence arises only in cases where there is an apprehension of hurt or grievous hurt, but the right of private defence in no case extends to the inflicting of more harm than is necessary to inflict for the purpose of defence. Where the right of private defence is being exercised and in the exercise of that right more harm is caused than is necessary, the person exceeds the right of self -defence. In such a case, Exception 2 to section 300, P. P. C., is available if there is no intention to cause more harm than is necessary for purposes of defence. Where the right of self- defence does not exist or has ceased to exist for it exists as long as the apprehension lasts, as provided in section 102, P. P. C. there can be no right of self‑defence or a situation leading to the exceeding of the right arises.

14. The question whether an accused has or continues to have a right of private defence and when or whether it has come to end is in every case essentially a question of fact, to be decided according to the circumstances of each case. If cannot even be said that the accused can in no case claim the right of private defence of person the moment the deceased is disarmed, for the apprehension of danger to the accused may not have come to an end by the fact that the weapon had been taken away from the deceased. It may be difficult to judge accurately the moment when the right of private defence comes to an end, but so long as the apprehension of hurt or grievous hurt continues to exist, the right of self‑defence continues, and an accused person cannot be penalised for not weighing in golden scales the amount of force, which should suffice to allay the apprehension of danger from the aggressor, but when the apprehension has disappeared and ceased to exist the right of private defence comes to an end, as laid down in section 102, P. P. C., and hurt caused thereafter, not for purposes of defence but for revenge, cannot be said to have been committed in exercise of the right of private defence. We would hold, on the facts of the present case, that the right of self‑defence had completely ceased to exist and the appellant in giving hatchet injuries to the deceased, as the latter lay helpless on the ground, had not acted in the exercise of the right of self- defence for he was actuated by malice, i.e. out of revenge, and he intended to cause the death of the deceased. He cannot, there fore, take advantage of Exception 2 to section 300, P. P. C. His is not merely an act in excess of the right of self‑defence, but he fully responsible for having caused the injuries which he did. He caused no less than seven injuries with a hatchet, one of which was sufficient in the ordinary course of nature to cause death. His case, therefore, falls under section 302, P. P. C.

15. There is no substance in the contention that giving two lathi blows to Gulla accused and one to the appellant amounted to grave and sudden provocation. In this connection we were referred to Queen v. Fuzza Meeah Fuzza alias Mahomed (4 W R 89) and Fateh Khan v. State (P L D 1957 Pesh. 122). In the former case, the deceased was the aggressive party, and he had assumed an attitude which could justify the prisoner in using some violence towards him. The Sessions Judge had found that the prisoner was not guilty of murder because of the provocation, but the learned Judges of the High Court came to the conclusion that though the occasion was one in which the prisoner was justified in meeting force by force, and might, therefore, have used some violence, still he was not justified in inflicting a blow which the prisoner must have known was likely to cause death, and, in doing so, he had exceeded the right of private defence. This case does not really support the contention raised, but the second case is certainly helpful to the appellant. In this case, the deceased was found to be the first to have given a knife blow to the appellant and then he walked back. Immediately thereafter, the appellant pulled out his pistol and fired three shots at the deceased, two of them hitting him fatally, Having held that the appellant was not entitled to a complete right of self‑defence and his act was covered by Exceptions 1 and 2 to section 300, P. P. C., it was observed that the knife blow and the resultant injury on the chest must have given such a grave and sudden provocation to the appellant as to deprive him of the power of self‑control, and, further, that if the appellant believed in good faith, as seemed to their Lordships that he did so believe, that he could not have successfully defended his person in any other manner except by firing at the deceased, then, in all probability, he acted in exercise of the right of private defence ; but he had exceeded the power given to him by the law, because in the first place he fired at his victim when he had already beaten his retreat and had gone a few paces, and, secondly, he used more force than was necessary in the particular circumstances of the case by firing three shots at him, two of which were effective and individually fatal. The case relates to Peshawar Division, and in the peculiar circum stances of the case, the act of giving a knife blow was held to amount to grave and sudden provocation, but we find it difficult-- we say so with great respect‑to hold that the act of causing a blow generally and in ordinary circumstances amounts to grave provocation, though it may lead to provocation. We were referred to Illustration (f) under Exception 1 to section 300, P. P. C., but there also the act of striking is a provocation, though it may excite B to violent rage.

16. For the reasons given above, we maintain the con viction of the appellant under section 302, P. P. C. and dismiss his appeal.

17. Having heard the learned counsel for the petitioner in the private petition for revision, we are not inclined to interfere with the finding of the learned Sessions Judge or to issue notice for enhancement and dismiss it also.

K. B. A.

Appeal dismissed.

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