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Criminal Appeal No. 370 of 1965, decided on 31st July 1967.

S. 304, Part II, read with S. 97‑-Plea of self‑defence‑Parties on inimical terms‑Deceased alongwith 3 other persons assaulting and injuring accused found sitting alone at odd hour‑‑‑Accused giving knife staffs in retaliation‑Contention that accused exceeded right of self‑defence in inflicting injury with knife and liable under section 304, Part II‑Accused, held had reasonable apprehension of receiving grievous hurt and did not exceed right of private defence in causing injuries to deceased‑Conviction in circumstances set aside.

M. H. Junejo for Appellant.

Manzoor Hussain for A. A.‑G. for the State.

Date of hearing : 31st July 1967.

Baz Muhammad aged 25 yeas, along with two others, namely, Khawar Hussain and Muzaffar, was tried for offences under sections 302/34 and 324/34, P. P. C. The allegation against them was that on the 2nd of September 1964, at about 10 p. m. in the Intizar Market, Nazimabad, Karachi, they in furtherance of their common intention, committed the murder of Siddiq, aged 25, and also caused simple injuries with a sharp‑edged weapon to Abdul Qayyum P. W. By his order dated the 9th of November 1965, the learned Additional Sessions Judge, Karachi found Baz Muhammad individually liable for the murder and as such sentenced him to transportation for life under section 302, P. P. C. He also convicted him under section 324, P. P. C. and sentenced him to two years R. I. Both the sentences were ordered to run concurrently. The other two accused were, however, acquitted of the charge. Baz Muhammad has accordingly filed appeal against his convictions and sentences.

2. The facts of the prosecution case are short and may be stated as follows :‑

There was no love lost between the parties. About two months prior to the present incident, there was a scuffle between Baz Muhammad appellant on the one side and Siddiq deceased, Salim and Mir Hussain P. W. 1 on the other. Baz Muhammad appellant then reported the matter to Golimar Police (Exh. 33) on the 7th of July 1964, at 11‑45 p. m. Shan Muhammad Sub‑Inspector P. W. 10 who recorded the report, deposed at the trial that at the relevant time he had noticed injuries on the person of Baz Muhammad appellant.

Further, four days before the present occurrence, Baz Muhammad appellant had threatened Siddiq deceased with death. At this stage it may be mentioned that the trouble between the parties had originated on account of non‑payment of money by Baz Muhammad appellant which he is said to have taken on loan from the deceased.

3. On the fateful day, i.e., 2nd of September 1964, at 9‑30 p. m. Siddiq deceased accompanied by Abdul Qayyum, Mir Hussain and Inayat Hussain P. Ws. repaired to the Intizar Market to press Baz Muhammad for payment of the money. At that time Baz Muhammad was sitting alone. Siddiq deceased went ahead leaving his three companions behind. As soon as Siddiq asked Baz Muhammad for payment of the money, the latter whipped out a knife and caused him injuries hitting him on the chest and index finger, as a result of which he fell down and died after a short while. Abdul Qayyum P. W. who tried to save Siddiq deceased was also attacked by the appellant. In the meantime, Khawar Hussain and Muzaffar (acquitted accused) reached the scene of the crime and gave lathi blows to Abdul Qayyam P. W. etc.

4. As the condition of Siddiq (deceased) was precarious he was rushed to the Civil Hospital but he died on the way. On reaching the hospital, Abdul Qayyum contacted Dr. Shujaul Islam, who informed Muhammad Zaman A. S. I. of Golimar Police Station, of the incident. Thereupon, A. S. I. Muhammad Zaman entered the telephonic message, received by him from the hospital, in the Daily Dairy, and sent a copy thereof to the S. H. O. Abdul Haq at his residence. The latter, on being apprised of the occurrence, reached the Civil Hospital and found the dead body of Siddiq deceased lying there. Abdul Qayyum P. W. was also present there in an injured condition. The S. H. O. then recorded the statement of Abdul Qayyum (Fxh.29) at mid‑night and despatched the same to the Thana where the formal F. I. R. was drawn up at 12‑15 a. m. He then prepared the injury statement and the inquest report of the deceased and despatched the dead -body for post‑mortem examination. Earlier, Baz Muhammad had reached Golimar Police Station at 10‑25 p. m. and lodged the report (Exh. 27) wherein he mentioned that Siddique deceased along with two others had belaboured him with dangs. He was also examined the same night by Dr. Shuja‑ul‑Islam, C. M. O. Civil Hospital, Karachi, who found five injuries on his person, all being simple and having been caused by a blunt weapon. It is pertinent to note at this stage that out of these injuries two were on the scalp, one on the temple and the other two on the right scapular region.

On the same day, at 10‑50 p. m. the same doctor examined Abdul Qayyum P. W. and found two incised wounds on his person ; one on the right buttock and the other on the right thigh, both being simple and having been caused with a sharp- edged weapon, like a knife.

Muzaffar (acquitted accused) was also examined on the 3rd of September 1964, at 4‑25 a. m. and two contusions were found on his person having been caused by a hard and blunt weapon.

5. The autopsy on the dead body of Siddiq deceased was conducted by Dr. Anwar‑ul‑Hassan, Police Surgeon, Karachi, on the 3rd of September 1964, at 11‑15 a. m. and the following injuries were found thereon :‑

(1) An incised wound " x 1/8' x skin deep back of the right index finger.

(2) An oblique incised wound, 1 " x " into chest deep on the left shoulder blade.

(3) A transverse abrasion, 1 " x , front of right knee.

In the opinion of the doctor, the death of the deceased had occurred due to haemorrhage and shock as a result of stab wound on the chest. The doctor added that the chest injury (injury No. 2) was sufficient in the ordinary course of nature to cause death.

6. The appellant pleaded not guilty to the charge. He further pleaded that Siddiq deceased along with Qamar‑uz‑Zaman Alvi, Abdul Qayyum, Mir Hassan and Inayat Hussain P. Ws. had assaulted him when he was sitting all alone in a hotel in the Intizar Market and was given beating, and that he lodged the report with the police. He, however, produced no defence.

7. Of the three alleged eye‑witnesses Mir Hussain was examined at the trial while the statement of Abdul Qayyum and Inayat Hussain was transferred to the Sessions file under the provisions of section 33 of the Evidence Act, because they were not available. Briefly stated, their evidence discloses that Baz Muhammad appellant was sitting with Khawar Hussain and Muzaffar (acquitted accused) when Siddiq deceased approached him and asked him for the payment of the amount. At this, the appellant made the following remarks :‑

"I was making search for you in the sky but you have met in the ground, I won't leave you alive. Today, you cannot escape from my hands."

After uttering these words he whipped out a knife and stabbed the deceased resulting in his death. The appellant also caused injuries to Abdul Qayyum P. W. with a knife.

Abdul Qayyum P. W. also stated that Baz Muhammad appellant was injured by Siddiq deceased with a lathi which had fallen from the hand of Muzaffar (acquitted accused) and which he had picked up. He added that at the alarm raised Qamar‑uz- Zaman Alvi and Mahmud Siddiq P. Ws. reached the spot and they also witnessed the occurrence.

8. The learned Additional Sessions Judge, after appraisement of the evidence produced by the prosecution, arrived at the conclusion that Baz Muhammad appellant was sitting alone at tale time when Siddiq deceased along with his three companions reached there and demanded the amount. Eventually, he held that the fight was sudden and that Baz Muhammad appellant caused injuries to Siddiq deceased when the latter demanded the money. Regarding the injuries found on the person of the appellant, the learned trial Judge was constrained to hold that it was Siddiq deceased who gave blows with a stick. He accordingly acquitted Khawar Hussain and Muzaffar accused of tile charge of murder but convicted and sentenced the appellant as noted above.

9. The only question for determination in this case is w Nether or not the appellant caused the injuries to Siddiq deceased in exercise of the right of private defence. It now stands established that Baz Muhammad appellant was sitting alone when the deceased along with his three companions reached there and demanded the money. It is also clear from the perusal of the record that the parties were on inimical terms with each other so much so that four days earlier, Baz Muhammad appellant had threatened Siddiq deceased with dire consequences. Besides, two months prior to present incident, the appellant had been given lathi blows by Siddiq P. W. etc. as a result of which the former sustained injuries and lodged the report at Golimar Police Station (Exh. P. 33). In the present case also I find that die appellant had sustained five injuries with a blunt weapon. The version of the prosecution that Siddiq deceased belaboured me appellant with a dang after he himself had sustained knife injuries, is unbelievable. The post‑mortem report shows that Siddiq had received one injury on the chest which proved fatal.

On the face of it, it is preposterous to urge that after sustaining an injury on the chest the deceased was in a position to attack the appellant with a dang. The only inevitable inference, therefore, is that it was Siddiq deceased who had opened the attack on appellant, and thereafter the latter whipped out a knife and caused injuries with it to the deceased resulting in his death. There is no escape from the conclusion that the appellant Inflicted injuries in exercise of the right of private defence.

10. Learned counsel for the State contends that as Siddiq deceased is said to have caused injuries with a lathi to the appellant, the latter was not justified in inflicting injury with a knife on the deceased, which proved fatal. In short, it is contended that the appellant had exceeded the right of self‑defence and as such vas guilty under section 304 (II), P. P. C.

I am afraid the contention of the learned counsel for the State is not well‑founded. Considering that the appellant was sitting alone when he was attacked by Siddiq deceased who was accompanied by three others, he could not be expected to weigh iris action in golden scales. Apart from this, I find that the injuries with a blunt weapon by Siddiq deceased had been mostly inflicted on the vulnerable part of the body like head, which could reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. Needless to add that the very fact that Siddiq deceased took three persons along with him, shows that he had gone there at the odd hour of the night with sinister object, namely to attach the appellant, who had held out a threat to him about four days earlier.

11. For the reasons stated above, I am of the opinion that the appellant did not exceed the right of his private defence, in causing injuries to the deceased and to Abdul Qayyum P. W. 1, therefore, accept the appeal, set aside the convictions and sentences of the appellant and acquit him of the charges. He is directed to be released forthwith provided always that he is not required to be detained in connection with any other case.

Appeal accepted.

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