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Criminal Appeal No. 515 of 1967, decided on 8th July 1968.

Ss. 97 & 100‑Private defence, right of ‑Accused found to have received few minor scratches as a result of grappling with unarmed opposite party Accused stabbing two persons with chhuri and injuring another who had tried to intervene‑Held, there was, in circumstances, no question of exercise of right of private defence by accused.

Ali Zaman v. The State P L D 1963 S C 152 distinguished.

S. 307‑Attempt to murder Intention‑Intention has to be inferred from act itself‑Accused stabbing opposite party in vital part of body (stomach) in a manner that but for sheer luck of victim consequences would have been very serious‑Held, in circumstances, obvious intention was to cause death.

Nawab Ali v. The State P L D 1962 Kar. 269 disagreed.

Khalil‑ur‑Rahman for Appellant.

Malik Abdul Hamid for A.‑G. for the State.

Date of hearing: 8th July 1968,

Inayat Ullah appellant was convicted under section 307, P. P. C. and sentenced to 4J years' rigorous imprisonment, with a fine of Rs. 50.00 or in default to further undergo rigorous imprisonment for two months by Section 30 Magistrate, Lahore. His brother, Allah Rekha was acquitted. The appellant, against his conviction and sentence, has preferred this appeal.

2. The facts of the case briefly stated are that Allah Rakha, acquitted accused, runs a Paan and Cigarette shop in Chowk Mohni Road, Lahore. Zulfiqar Ali (P. W. 1) also resident of Mohni Road, Lahore, used to take Paan Cigarettes etc. from that shop. On the 4th of January 1965, at about 1 p.m., Zulfiqar Ali P. W. happened to pass by that shop and Allah Rakha, demanded the money which he owed for the purchase of Paan, etc. Zulfiqar Ali P. W. told him he had no money with him and that he would pay him in future. Allah Rakha thereupon caught hold of him from gireban and then started grappling with each. Allah Rakha also shouted to his brother, Inayat Ullah appellant, who came there armed with chhuri Exh. P. 1, and stabbed Zulfiqar Ali P. W. in his stomach. Abdul Qayyum (P. W. 6) at that time bad come out from the shop of Muhammad Siddique Barber (P. W. 9) and when he reached the chowk of Mohni Road, he saw both Allah Rakha and Zulfiqar Ali P. W. grappling with each other. He witnessed Inayat Ullah appellant inflicting a blow with his chhuri in the stomach of Zulfiqar Ali P. W. He tried to intervene by catching hold of the chhuri and in that process got the thumb of his right hand injured. Besides him the occurrence was also witnessed by Muhammad Mushtaq (P. W. 2), Mistri Muhammad Yousaf (P. W. 3) and Zahur Ahmad (P. W. 10). Muhammad Mushtaq P. W. also went to the rescue of Zulfiqar Ali P. W., but was given a chhuri blow by Inayat Ullah appellant on the right side of his chest. At about 2‑30 p.m. on the same day Assistant Sub‑Inspector Nasir Ahmad (P. W. 11) came to chowk Mohni Road on patrol duty. Abdul Qayyum P. W. made statement Exh. P. G., which the A. S. I. recorded at his dictation and sent it to Police Station New Anarkali, Lahore, where Head Constable Ali Muhammad (P. W. 7) at 3‑20 p.m. drew up formal first information report Exh. P. G/1 on its basis. The A. S. I. then went to the hospital where both the injured persons, namely, Zulfiqar Ali and Muhammad Mushtaq were present but he was informed that they were not in a fit condition to make statements. The A. S. I. arrested both Inayat Ullah appellant and Allah Rakha, acquitted accused, on the same day. Inayat Ullah appellant produced chhuri Exh. P. 1, which the A. S. I. took into his possession vide memo. Exh. P. A. The above recovery was witnessed by Muhammad Yousaf (P. W. 3). Since the appellant and the co‑accused were injured the A. S. I. got them medically examined.

3. Doctor Muhammad Tasleem (P. W. 4) on the 4th of January 1965, at 11‑30 p.m., examined Zulfiqar Ali P. W. and found an incised wound 3/4" x 1/2" on the left lower chest. The wound was in the left 8th inter‑costal space going obliquely downwards into the peritoneum cavity through the diaphragm and had caused perforation in the interior wall of the stomach and two small lacerations in the left lobe of the liver. An opening was found in the lower portion of the left pleural cavity. In the opinion of the doctor the injury was grievous.

On the same day at 1‑35 p.m., the doctor examined Muhammad Mushtaq P. W. and found an incised wound 1" x ", on the right upper chest. In the opinion of the doctor the injury was simple.

4. On the same day at 4‑30 p.m., Doctor Syed Ghulam Haider Shah (P. W. 5) examined Abdul Qayyum P. W. and found a linear cut 1 " long on the base of the right thumb, palmer aspect. The injury was found to be simple.

On the same day at 5‑15 p.m. the doctor examined Allah Rakha, acquitted accused, and found the following injuries on his person :‑

(1) A scratch, 1/3" x 1/10" just below the lower lid.

(2) Two scratches 1 1/3" x 1/10" each on the lower middle of neck.

(3) A scratch, " x 1/10" on the back of right hand.

The injuries were simple and were found to have been caused by nails.

On the same day the doctor examined Inayat Ullah appellant and found the following injuries :‑‑

(1) An abrasion, 2" x 1" on the back of right forearm near the elbow joint.

(2) He complained of pain in the left thigh.

In the opinion of the doctor both the injuries were simple and were caused by a blunt weapon.

5. The appellant denied his guilt, but admitted his presence at the time of the occurrence. He stated that Zulfiqar Ali, Abdul Qayyum and Muhammad Mushtaq P. Ws. had attacked him and Allah Rakha, that he had a chhuri with which he was peeling onions, and that during the struggle while he was warding off their blows, the aforementioned P. Ws. sustained injuries from him. He denied that chhuri Exh. P. 1 was the same with which he had caused injuries to the P. Ws. In his defence he examined Muhammad Yousaf (D. W. 1). Anwar Husain (D. W. 2), Amir Afzal (D. W. 3), Muhammad Tufail (D. W. 4) and Muhammad Ashraf (D. W. 5). Muhammad Yousaf D. W. stated that while he was present at the shop of Inayat Ullah appellant in order to take his food, Zulfiqar Ali and Muhammad Mushtaq P. Ws. accompanied by two other persons came there and attacked Inayat Ullah appellant, and that when he (this witness) came out of the shop he saw some other persons, whom he did not know, had also attacked Allah Rakha, acquitted accused. He also stated that Inayat Ullah appellant tried to rescue his brother, Allah Rakha, and that in order to save him he had caused injuries to Muhammad Mushtaq, Zulfiqar Ali and others with the chhuri, with which he was peeling onions. He further stated that the other party had caught hold of Allah Rakha, acquitted accused, by the throat. In his cross‑examination he admitted that he had neither appeared before the police in connection of this case nor he had made the above statement to anybody before. Anwar Husain P. W. stated that at the time of the occurrence he was working in his Bakery and on hearing the alarm of women he came out of his shop and saw two or three persons grappling with Inayat Ullah appellant and two or three other persons grappl ing with Allah Rakha, acquitted accused, and that Inayat Ullah appellant freed himself and ran to save his brother. Allah Rakha, whose assailants then ran away. He admitted that he had neither appeared before the police in this connection nor he had mention ed this incident to anybody else before. Amir Afzal D. W. merely stated that Inayat Ullah appellant bore a good character. Muhammad Tufail D. W. stated that Zulfiqar Ali P. W. accompa nied by one another person went to the shop of Inayat Ullah appellant and Allah Rakha, acquitted accused, that on hearing the alarm he (this witness) ran to the spot, and saw Zulfiqar Ali and the other person going back and returning after ten minutes accompanied by four other persons, two out of whom catching hold of Allah Rakha, acquitted accused, and the remaining three catching hold of Inayat Ullah appellant. He also stated that a large number of persons collected there, and that he did not know what happened after that. In his cross‑examination he admitted that he did not join the police in the investigation of this case, and that only fist blows were exchanged. He denied that any knife blow was given. Muhammad Ashraf D. W. stated that Zulfiqar Ali and one another person came out of the hotel of Inayat Ullah appellant, while abusing him, that about an hour later they returned accompanied by Amir Ali and three other persons, that Zulfiqar Ali and two others caught hold of Inayat Ullah appellant, while Amir Ali and another person caught hold of Allah Rakha, acquitted accused, by the throat, and that the appellant in the exercise of his right of private defence gave injuries to the aforementioned persons and rescued his brother, Allah Rakha, acquitted accused. In his cross‑examination he admitted that he could not say if Zulfiqar Ali P. W. had received a knife injury.

6. The prosecution in order to prove its case examined Zulfiqar Ali (P. W. 1), Muhammad Mushtaq (P. W. 2), Mistri Muhammad Yousaf (P. W. 3), Abdul Qayyum (P. W. 6), Muhammad Siddique (P. W. 9) and Zabur Ahmad (P. W. 10). The last two witnesses did not support the prosecution. Zahur Ahmad P. W. merely stated that he had not witnessed the occur rence, whereas Muhammad Siddique (P. W. 9) stated that he had not actually witnessed the occurrence himself, and that when he reached the spot, many people present there were saying that Inayat Ullah appellant had stabbed Zulfiqar Ali P. W. The other eye‑witnesses, namely, Muhammad Mushtaq, Muhammad Yousaf, Abdul Qayyum have fully supported Zulfiqar Ali P. W. There is nothing on the record to show that they had any enmity against the appellant in order to falsely implicate him and under these circumstances there is no reason to disbelieve their testimony.

7. The defence version that Inayat Ullah appellant had inflicted injuries in the exercise of his right of private defence when he and Allah Rakha had been caught hold of by the P. Ws. does not appear to be plausible. If they had actually been caught hold of they would have certainly received many more injuries, but from the medical evidence on the record I find that they had received only few minor scratches. In any case there could be no apprehension of death or grievous injuries having been caused because the P. Ws. were unarmed and, there fore, there was no question of the exercise of right of private defence by Inayat Ullah appellant. The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. In the present case Inayat Ullah appellant not only caused an injury to Zulfiqar Ali P. W., but also stabbed Muhammad Mushtaq P. W., who tried to intervene and it is lucky that they both survived in spite of the fact that both these injuries were caused on the vital parts of their bodies and the injury received by Zulfiqar Ali P. W. was also grievous in nature. The testimony of the defence witnesses does not inspire confidence. Muhammad Yousaf and Anwar Husain D. Ws. neither appeared before the police nor mentioned the incident to anybody except when they appeared in Court during the trial. Their version anyhow is different to the version given by Muhammad Tufail and Muhammad Ashraf D. Ws. According to Muhammad Yousaf and Anwar Hussain D. Ws. when they came out of the shop, they saw Zulfiqar Ali and Muhammad Mushtaq accompanied by two or three other persons attacking Inayat Ullah and some other persons attacking Allah Rakha, and that Inayat Ullah, who was holding a chhuri with which he was peeling onions, caused injuries to Muhammad Mushtaq and Zulfiqar Ali in order rescue Allah Rakha. Muhammad Tufail D. W., in the other hand, stated that on hearing the alarm he reached the spot and saw Zulfiqar Ali and another person coming out of the shop of Inayat Ullah and Allah Rakha, and that they went back and returned after ten minutes accompanied by four other persons. He also stated that two of them then caught hold of Allah Rakha, while the remaining three caught hold of Inayat Ullah appellant and thereafter a large number of persons gathered there and he (this witness) did not know what happened afterwards. He was definite that no knife blow was caused. Muhammad Ashraf D. W. stated that he saw Zulfiqar Ali and another person coming out of the hotel while abusing, that after an hour Zulfiqar Ali accompanied by Amir Ali and three others came back, that Zulfiqar Ali and two others caught hold of Inayat U1lah while Amir Ali and another person caught hold of Allah Rakha by his throat and that Inayat Ullah in the exercise of his right of private defence gave knife injuries to them and thus rescued his brother, Allan Rakha. In cross‑examination he stated that he could not say that Zulfiqar Ali had received a knife injury. The version given by these two D. Ws. is not corroborated by the medical evidence because I find that three persons, namely, Zulfiqar Ali, Muhammad Mushtaq and Abdul Qayyum had received knife injuries. Thus their presence at the spot appears to be doubtful. In view of the above no reliance can be placed on their testimony.

8. The learned counsel for the appellant, however, argued that it was a sudden fight in the beat of passion upon a sudden quarrel and, therefore, the appellant should be dealt with leniently. I, however, find no force in this argument because the appellant had taken an undue advantage by acting in a cruel manner by causing one stab wound to Zulfiqar Ali P. W., and another to Muhammad Mushtaq P. W. The learned counsel placed reliance on cases Ali Zaman v. The State (P L D 1963 S C 152) and Nawab Ali v. The State (P L D 1962 Kar. 269). In case Ali Zaman v. The State it was observed:---

"We consider that the safe dispensation of justice requires that the case be dealt with on the basis that the responsibility for the outbreak of violence falls equally on the two parties, i. e. a sudden quarrel was followed by a sudden fight, or in the words of the accused persons a row', in which the weapons used were stones. The accused persons were apparently outnumbered, and in these circumstances, Ali Zaman made use of his revolver. The question arises whether, in that view, if any of the persons bit with the revolver shots had died, the offence would have been murder In our opinion, a number say, four, of persons throwing stones at close quarters at two others cannot be said to be placed at a disadvantage against the latter should they bring into play firearm. Each party was throwing missiles, and the chances of a bullet missing are by no means smaller than those of a stone thrown at close quarters, missing its mark.

Therefore, we consider that if it had happened that one of the persons shot had died in consequence, the offence would have been culpable homicide not amounting to murder."

This case relates to Tahsil Haripur, where stones are generally used as deadly weapons and there could be real apprehension in the minds of the two accused in that case that if they did not take action, they might easily be killed or at least subjected to grievous hurt. The facts of the present case are totally different and there was no initiative taken by Zulfiqar Ali P. W. to start the fight. It was Allah Rakha, acquitted accused, who first pounced upon him and caught hold of him by his gireban and started grappling with him, when he informed him that he was not able to pay the money and, therefore, there was no question of Allah Rakha acquitted accused, and Inayat Ullah appellant having apprehension in their minds that if they did not take quick action, they might be easily killed or at least subjected to grievous hurt. , Under these circumstances I find that the above ruling does not apply to the facts of the present case. In case Nawab Ali v. The State two convictions against the appellant under section 307, P. P. C. were set aside and in lieu thereof the appellant was convicted under sections 326 and 324, P. P. C. In this case the appellant stabbed one Abdul Waheed in the abdomen and Ahdur Rahim in the chest. The former injury was grievous and dangerous to life while the latter was muscle deep. It was observed :‑

"The Code does not define attempt : it is true that the title of section 307 cannot modify the plain grammatical meaning of the words of the section itself, but in applying the section regard should be had both to the title and the body of the section. The ordinary meaning of attempt is that an act falls short of its intended result owing to some extraneous cutting short, miscalculation, or unknown factor. Here none of these causes of failure of intention was present. The presumption is that a man intends the natural and probable consequences of his act: but that presumption, except in exceptional cases, does not extend to consequences which have not occurred. Here the man having recovered, the injury was not sufficient in the ordinary course of nature to cause death, and I see no reason in this case to presume that he intended anything beyond inflic ting the injury which in fact he did inflict‑namely an injury which was not sufficient in the ordinary course of nature to cause death. It is not necessary for me to discuss whether sufficiency to cause death is a matter of pure fact as held by the Supreme Court of India in Virsa Singh's case (A I R 1958 S C 465), or is a matter of intention as appears to be contemplated by the last sentence of illustration (b) to section 300, P. P. C. For if the former proposition is correct, then the intention in clause third is qualified by the condition that in fact the injury must be sufficient, while if the latter proposition is correct, then I I hold that intention is not proved."

With due respect to the learned Judge, who decided that case I find myself in disagreement with the observation made by him. The intention has to be inferred from the act itself. In the present case the appellant stabbed Zulfiqar Ali P. W. in his stomach, which is one of the vital parts of human body, and it was by sheer luck that peritoneum and the left lobe of the liver C were not hurt, otherwise the consequences would have been very serious. Therefore, it is obvious that his intention was to cause his death. The learned counsel also cited few more rulings, which do not apply to the facts of the present case.

9. In the result I find no merit in this appeal, which is hereby dismissed.

Appeal dismissed.

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