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Criminal Appeal No. 329 of 1966, decided, on 23rd January 1968.

, S. 302 read with S. 100-Private defence, right of-Number of injuries on persons of accused larger than injuries suffered by complainant party-Circumstance indicative that complainant party were first to open attack on accused Complainant party going to scene of occurrence with arms and accused having reasonable cause to apprehend that at least grievous hurt would be the consequence of complainant's assault Case held, covered by S. 100 and that accused's Night of private defence extended to causing of death of their assailants-Accused acquitted.

Malik Abdul Aziz for Appellants.

Saeed-ur-Rahman for A.-G. for the State.

-Abdul Ghani (35) and his brother Muhammad Sharif (28) along with Khair Din, Bashir Ahmad and Muhammad Din, were tried under sections 302 and 307.read with section 149 and section 148, P. P. C. for having formed themselves into an unlawful assembly with the common object of committing the murder of Allah Rakha son of Allah Ditta and for the attempted murder of Allah Rakha P. W. and in prosecution of that common object of the said unlawful assembly to have actually committed the murder of Allah Rakha and caused injuries to Allah Rakha P. W. on 30th December 1964 at about morning time in the course of same transaction near Chah Dullah Batwal in the area of village Vasdev in Sialkot District. The learned Addi tional Sessions Judge, Sialkot, who tried them acquitted Khair Din,, Bashir Ahmad and Muhammad Din of all the charges. He also, acquitted Muhammad Sharif of the major charge and section 148, P. P. C. Abdul Ghani was also acquitted of the charge under section 307/149 and section 148, P. P. C. but he convicted Abdul Ghani under section 302, P. P. C. and ordered him to suffer transportation for life. Muhammad Sharif was held guilty of an offence under section 307, P. P. C. and was sentenced to three years' R. I. The convicts have filed this appeal.

2. Briefly summarized, the facts of the prosecution case are these. On the eventful day i.e. 30th of December 1964, Allah Rakha P. W. and Allah Rakha deceased were proceeding towards village Jeoke, where they had purchased sugarcane crop from Ghulam Nabi and had also installed a sugarcane crusher. When they reached near the well of Dullah Batwal they found Muhammad Sharif, Abdul Ghani and Khair Din working at that well. Abdul Ghani and Muhammad Sharif appellants addressed Allah Rakha deceased and protested as to why he had lodged a report against them regarding the theft of his sugarcane. This resulted in exchange of abuses between them. The abuses also attracted Boots, Qasim and Anwar P. Ws. Muhammad Sharif appellant shouted and took out his knife and struck a blow on the abdomen of Allah Rakha P. W. Abdul Ghani appellant gave a knife blow, on the chest of Allah Rakha deceased. On hearing the alarm Bashir and Muhammad Din since acquitted also reached the place of incident. Muhammad Din was armed with a kassi while Bashir Ahmad had a goading stick. Muhammad Din gave a kassi blow on the left side of the forehead near eye-brow of Allah Rakha P. W. Bashir Ahmed gave a stick blow on the left arm of Allah Rakha P. W. Allah Rakha P. W. snatched the kassi from Muhammad Din and gave it to Allah Rakha deceased, who in self-defence gave a kassi blow to Khair Din on his head. Allah Rakha deceased also caused some injuries to Abdul Ghani appellant with the kassi. Thereafter Allah Rakha P. W. secured a stick from the spot and gave some blows with it to Abdul Ghani and Muhammad Sharif appellants. Khair Din and Muhammad Sharif also gave further blows to Allah Rakha deceased. Allah Rakha deceased and Allah Rakha P. W. were put on cost and taken to Civil Hospital Zafarwal. On receipt of information from the hospital authorities, Ch. Nisar Ahmad Sub-Inspector (P. W. 8) Police Station Zafarwal, reached there. He recorded the statement Exh. P. F. of Allah Rakha P. W. and sent the same to the police station for the registration of the case. The formal first information report Exh. P. F./ l was recorded by Faqir Ahmad, Head Constable (P. W. 3) at I 1-52 a. m. the same day. Allah Rakha succumbed to his injuries in the hospital the same day. The Sub-Inspector prepared the injury statement and the inquest report relating to the deceased and despatched the dead body to the mortury at Narowal for post-mortem examination. The Sub-Inspector also prepared the injury statement of Khair Din since acquitted in the hospital. He also recorded his statement Exh. P. S. and sent the same for the registration of a case. The formal first information report Exh. P. S. /I was also recorded at the police station.

3. The Sub-Inspector -handed over the investigation to Qayam-ud-Din, A. S. I. (P W. 17) on 30th December 1964. He inspected the spot and took into possession blood-stained earth vide memo. Exh. P. A. He also arrested Muhammad Sharif, Abdul Ghani, Muhammad Din and Bashir Ahmed on 31st December 1964. Muhammad Sharif the same day while in police custody led to the recovery of knife P. 2 from a cattle-shed which was taken into possession vide memo. Exh. P. C. Abdul G6ani appellant also led the police to a kotha and at his pointing out knife P. 3 was taken into possession and sealed into a parcel vide memo. Exh. P. D.

4. The autopsy on the deceased's dead body was held by Doctor Manzoor Ahmad Qureshi, on 31st December 1964 at 12 noon who noted the following injuries: -

(1) An incised wound 1" on the front of left chest, 3" below the medial third of left clavicle. The wound was transverse in direction and was stitched up. On opening these stitches the dimensions of the wounds were 1" x 1/2" going deep into chest cavity.

(2) A linear cut, f x 1/8' just below injury No. 1.

(3) An oblique incised wound, 1" x " x ", on the back of right shoulder blade middle part. The wound was stitched up.

(4) A linear cut, 1" x 1/8" on the back of right wrist.

Injury No. 1 was grievous in nature and all the others were simple. Injuries Nos. 1 and 3 were caused with some sharp-edged stabbing weapon while injuries Nos. 2 and 4 were caused with some sharp-edged weapon. Death, in the opinion of the doctor, was due to injury No. 1 which injured the lung and caused haemorrhage in the left pleural cavity. This injury was sufficient to cause death in the ordinary course of nature.

5. Allah Rakha P. W. had three injuries on his person. Two of which were with sharp-edged weapon and one with blunt. One was incised, the other was a contusion and the third was a linear cut. Muhammad Anwar P. W. suffered three injuries. Two of which were caused by sharp-edged weapon and one by some sharp-edged pointed weapon. These three injuries were incised wounds.

6. Khair Din accused received six injuries. Two of which were caused by sharp-edged weapon and the others by blunt weapon. Two of the injuries were incised wounds, three were lacerated wounds and one was a contusion mark. Khair Din remained in the hospital from 30th December 1964 till 22nd January 1965. Muhammad Sharif appellant suffered seven injuries. All these injuries were simple and caused with blunt weapon. Six were contusions and one was an abrasion. He was examined on 30th December 1964 at 3-30 p.m. with Abdul Ghani appellant was also examined the same day and two injuries were found on his person. One was incised wound and the other a contused wound. Incised wound was due to sharp-edged weapon while the contused wound was caused with blunt weapon.

7. The appellants when examined denied the prosecution allegations. No evidence was called in defence. Abdul Ghani made the following statement from the dock: -

"I sustained the injuries at the hands of Allah Rakha deceased and his companions when I and my brother Sharif went to the well of Dulla Batwal and saw that my father was assaulted and injured by them. While I tried to rescue my father, I received the injuries. On account of our intervention, Khair Din accused was saved from further harm and the deceased along with other assailants ran away to the village."

8. According to the prosecution Allah Rakha deceased had lodged the report Exh. P. R./1 at Police Station Zafarwal on 23rd December 1964, regarding the theft of sugarcane against Muhammad Din and Muhammad Sharif. It is in the evidence of Allah Rakha P. W. that the accused were summoned by the local Police that very day but the police did not proceed against them. This would have hurt the feelings of the deceased and Allah Rakha P. W. and in view of this finding it can be safely spelled out that the complainant were the aggrieved party. We may refer to the evidence of Muhammad Anwar P. W. In cross-examination he stated: -

"It is correct that Allah Rakha deceased opened the assault on Khair Din accused and hit him on his head and it was then that Khair Din inflicted a knife blow on the deceased. Allah Rakha deceased hit Khair Din accused with' the blunt side of the kassi. Khair Din accused hit the deceased on his arm."

This piece of evidence clearly suggests that the complainant party were the aggressors and the accused acted in the right of self- defence of their persons. Furthermore, we find it in the evidence of Allah Rakha P. W. that Khair Din accused and Muhammad Sharif and Abdul Ghani appellants were working at the well of Dullah Batwal and that the regular Path which connects their village to village Jeoke is at a distance of 1J acres from the well of Dullah Batwal. As such there was no occasion for the complainant party to pass near the well of Dullah Batwal in order to reach village Jeoke. We also find it in the evidence of Nisar Ahmad Sub-Inspector (P. W. 8), that Khair Din accused gave a counter version of the incident wherein he described the complainant as the aggressors. It is in the statement of Nathe Khan P. W. that Khair Din and Abdul Ghani accused were in the hospital at about 8-9 a.m. in injured condition. The subsequent conduct of the accused also weighs heavily against the prosecution version of the incident. The medical evidence also shows that 15 injuries were found on the side of the accused. As against this only ten injuries were found on the person of the deceased and the injured P. Ws. There were also sharp-edged injuries on the person of the accused and the prosecution has failed to give satisfactory account of these injuries

9. The assertion of Allah Rakha P. W. that he snatched a kassi from Muhammad Din and passed it onto Allah Rakha deceased and again got another stick from the spot and gave blows to Muhammad Sharif appellant does not appeal to reason in view of the number of injuries suffered by the accused. In view of this finding and the evidence on the record we have no hesitation in holding that the plea of self-defence raised on behalf of the accused gets support from the prosecution version of the incident of being reasonably true. The number of injuries on the persons of the accused party as compared to the injuries found on the complainant party also shows that the complainant were the first to attack the accused.

10. It is true that most of the injuries on the side of the accused were simple, but the law relating to self-defence makes the accused the judge of his own danger, and permits him to repel the attack, even to the taking of the life. We have to judge the accused by placing ourselves in the same position in which they were placed. It is now well-settled that even if the accused is not able to substantiate his defence plea by producing evidence, yet if his version gets support from the prosecution of being reasonably possible, then the accused is certainly entitled to an acquittal.

11. In the present case we have no doubt in our mind that the complainant and the deceased went to the well of Dullah Batwal with arms and were the first to attack Khair Din accused and as such the accused had reasonable cause to apprehend that at least grievous hurt would otherwise be the consequence of such assault. The case is, therefore, clearly covered by section 100, P. P. C. and the right of private defence extends to the voluntary causing of death of their assailants. In this view of the matter, the appellants are entitled to acquittal. We accord ingly accept their appeal, set aside their convictions and sentences and acquit them. They shall be set at liberty forthwith in case their detention is not necessary in any other case.

Appeal accepted.

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