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Appeal No. 220 of 1951, decided on 11th February, 1952, from the order of M. E. Hayat, Sessions Judge, Hazara at Abbottabad, dated the 20th July 1951.
S. 300, Exception 2‑Accused in compromising situation in deceased's house with a woman surprised by the deceased who was a relative of the woman‑Accused stabbing deceased in order to avoid apprehension ‑Accused not having right of private defence held guilty of murder and not of culpable homicide not amounting to murder.
It had been proved by evidence that there was an illegal intimacy between the accused and Mst. Sahib Jan F. W. It was also clear from the evidence that as a result of that intimacy the accus ed entered the house of Sulaiman and started talking to Mst. Sahib Jan P. W., when they were surprised by Sulaiman the deceased. It was also established from the prosecution evidence as well as frorn the statement of the accused that it was dark at the time, that the accused had entered into the house of Sulaiman after sunset. He entered into it stealthily and after taking precautions to conceal his entry from Sulaiman or Ahmad Din, the husband of the woman who, he ought to have believed would exclude or eject him from the house, if trey came to know of it. His entry into the house to his knowledge was therefore to insult and annoy Sulaiman and Ahmad Din P. W. He was by getting into the house of Sulaiman after sunset clearly committing lurking house‑trespass and was conset quently committing an offence under section 456, P. P. C., which is cognizable and non‑bailable. Sulaiman, when he saw the accused committing this offence, had an obvious right to apprehend the accused under section 59, Cr.P.C., which authorizes a private person to arrest any person, who in his view commits a non‑bailable and cognizable offence. While the deceased had a right to arrest him, the accused had no right to effect his release by causing two fatal injuries to the deceased.
Exception 2 to section 300, P. P. C. was therefore inapplicable, and the accused was guilty under section 302 and no under section 304, P. P. C.
Inder Singh v. Emperor A I R 1933 Lah. 144, correctness doubted.
Appellant in jail, and Muhammad Ali, Advocate‑General for the Government.
Jumma, aged about 26‑27 years, son f f Said Azam, a Swathi of Bedadi, was committed to the Court of Session to Wind his trial under section 497. P. P. C. for having on the 21st of May 1951, committed adultery with Mst. Sahib Jan (P. W. 6), knowing her to be the late‑fully wedded wife of Ahmad Din (P. W. 7), and under section 302, P. P. C. for having at the same time and place committed the murder of Sulaiman, by international inflicting two injuries on him with a knife.
Before the commencement of the trial the charge under section 302, P. P. C. was left intact, but that under section 497, P. P. C. was altered to one under section 376, P. P. C., viz., that the accused at the same time and place had committed rape on Mst. Sahib Jan (P. W. 6).
The prosecution case as disclosed at the trial by Mst. Sahib Jan and her husband Ahmad Din (P. Ws. 6 and 7 respectively) was that the couple was living in a hamlet of Bedadi, which belonged to Izzat Khan contractor. Jumma accused also lived there. The latter contracted some illicit intimacy with Mst. Sahib Jan P. W . on account of which Abmad Din P. W. left that hamlet along with his wife and came to reside is the hamlet which was occupied by Mst. Sahib Jan's first cousin Sulaiman deceased. It appears that this hamlet consisted of only one house, which had two kothas and a verandah, and was at a distance of about 40‑50 paces from the first hamlet. On the day of occurrence it was after evening time, when the two menfolk had gone to the field for husbandry work and Mst. Sahib Jan P. W. was making Jowar bread, that Jumma accused entered the house, and took Mst. Sahib Jan P. W. into the cattle‑shed. A small child was in the lap of Mst. Sahib Jan at the time, who was made to sit on the ground outside the cattle‑shed. Mst. Sahib Jan P. W. alleged that the accused took off his trousers as well as hers and started committing rape on her against her will, when Sulaiman deceased arrived with a bundle of SHAFIal on his head. He threw the bundle on the ground, and the accused on seeing him tried to get out. Sulaiman, however, caught hold of him. The accused tried to release himself from Sulaiman deceased, and during the course of the struggle he whipped out a knife and stabbed Sulaiman deceased with it. Just at that time Ahmad Din P. W. heard an alarm and he quickened his pace: He reached the house when the accused was dealing blo.: s to Sulaiman deceased. On seeing him the accused left the deceased, who had dropped down dead, and went towards Ahmad Din P. W., who forestalled him and gave him a blow with a stick on his head, which made the accused giddy, and felled him down. The knife fell from his hands, and Ahmad Din succeeded in catching hold of him. He at the same time raised an alarm, which attracted his cousin Sain (P. W. 8) to the spot, with whose assistance the accused was secured and tied to a pillar in the house with a rope. He was naked at the time and his trousers were lying in his feet. Mehandu (P. W. 9) a first cousin of Ahmad Din, and Badiuz Zaman (P. W. 10) then arrived at the scene of occurrence, and were informed of what had happened.
Ahmad Din P. W. went to Shinkiari Police Station, situat ed at a distance of about a mile from the spot and lodged a report there at 9‑45 p.m. It was recorded by Said Ahmad Shah A. S. I. (P. W. 12), who after recording the F. I. R. went to the scene of occurrence. He found the accused tied up to a pillar with his shalwar lying on the ground. He prepared the injury statement and inquest report of the deceased. He also found the accused injured and preparing his injury statement. sent him as well as the dead body of the deceased for medical examination.
Dr. Sayed Abdul Waheed (P. W. 3) examined the dead body of the deceased and found the following injuries on it:‑
1. An incised wound 6" x 2 ", across the left side of the abdomen, about one inch above and one inch to the left side of the umbilicus.
2. An incised wound 1" x " about five inches below the left armpit, and in the mid axillary line. Death was due to shock and haemorrhage on account of the rupture of the spleen and intestines etc.
The accused was found to have the following injuries on his person:‑
1. A contused wound 1" x " x 1/6" on the right side face," lateral to right external canthus of eye.
2. A contusion mark 1" x " on the right side skull at the junction of temporal and parietal regions.
3. A contused would " x 1/8" at the root of left index finger and dorsum of left hand was markedly swollen without any visible sign of injury on it.
4. An abrasion " x " on latteral surface near the lower end of right forearm.
5. Five abrasions varying from " x 1/6" to " x " on the back of right elbow‑joint and upper end of right forearm.
6. An abrasion 1 " x 1/3" medial surface, near the middle of right forearm.
7. A contusion mark 2" x " on the back near the lower end of left forearm.
8. Six abrasions varying from 1/6" x 1/3" and 1 " x " on the back of left elbow joint and back of left forearm.
9. Two abrasions " x " and " x 1/3" on the front of right knee joint.
10. A contused wound " x 1/3", skin deep, on the dorsal surface of right second toe.
11. Two abrasions " x 1/3" and 1/8"x 1/8" on front of left knee- joint.
12. Two abrasions " x " and 1" x " in the region of the back.
After the conclusion of the prosecution evidence when the accused was called upon to make a statement, he stuck to the one which he had made before the Committing Magistrate, and which was to the following effect:
"The knife Exh. P. 1 does not belong to me. Ahmad Din P. W. owed me Rs. 5 on account of rent of my Bandi in which they had lived for sometime ago. They had also been given one maund of rice and one maund of maize while my tenants. On the day of occurrence, from the way passing by the side of the house of Ahmad Din, I called out to him to give me my debts as I am in need of it. He replied from his house that I should stay and that he is coming. Ahmad Cain came and caught hold of me. _ He was soon joined by seven others of his relation men namely Mahandu, Kala, Sain, Qalam Din, Hakam Din, Sher Zaman and Suleman deceased and they all dragged me to the house of Ahmad Din where they put me inside the Bandi. There they took off my trousers and began to beat me ar=d then they tied me with the rope. Kala wanted to stab me with the knife Exh. P. 1, but in the Melee I was missed and the blow struck to Suleman, because it was dark and therefore Suleman was injured. The door of the 11tandi was closed and it was after the light was brought inside that it was found that Suleman had been murdered. I am innocent."
Four assessors assisted the learned Session Judge at the trial. One was of the opinion that there was an intrigue between the accused and Mst. Sahib Jan as a result of which the accused went to the Bandi of occurrence in order to commit adultery with her, and in that process he was detected and by murdeied the deceased. Therefore the accused was guilty of murder alone. The second assessor opined that the accused had stabbed the deceased but without any intent to murder him. He therefore, found that the accused was not guilty of murder. As regards the rape he thought that Mst Sahib Jan was a willing party. The remaining two assessors were of the view that Mst. Sahib Jan, and the accused committed adultery with each other's consent, and in that process the deceased came and was tabbed by the accused. Accord ing to them the accused had no intention to commit the murder, and he might be held guilty of any other offence.
The learned trial Judge found that the accused was not guilty of rape, He held that the accused had committed the murder, but that in doing so he had only exceeded the right of private defence. He consequently convicted the accused under section 304 (Part I), P. P. C. and sentenced him to ten years' rigorous imprisonment.
The accused has appealed from Jail against his conviction and sentence, while the Provincial Government has filed an appeal against his acquittal under section 302, P. P. C.
This order will dispose of both the appeals.
The first question which has to be decided in the case is as to whether the deceased met his death at the hands of the accused as contended by the prosecution, or was murdered by his own party‑men, Kala, as suggested by the accused in his statement.
Mst. Sahib Jan, (P.W.6) and Ahmad Din (P.W.7) have both appeared in the witness‑box, and deposed that it was in their presence that the accused stabbed the deceased with a knife. Sain (P.W.8), Mehandu (P.W.9) and Badiuz Zaman (P.W.10) arrived at the spot immediately after the occurrence, and were informed by the above two witnesses that it was the accused, who had committed the murder of the deceased. No doubt, Sain and Mehandu P. Ws. are very closely related to the deceased but merely on account of that reason it cannot be said that their, evidence false, and should, therefore, be rejected. In any case, Badiuz Zaman is an absolutely disinterested witness and no sooner he arrived at the spot, the accused was charged for the murder. There is no reason why should his evidence be looked at with suspicion. The evidence discussed above, in our view, conclusively proves that it was the accused, who caused the fatal blows to the deceased. The contention of the accused that it was Kala, a relation of the deceased, who wanted to stab him and by mis take injured the deceased is on the face of it absurd and ridiculous. It is not possible, to believe that about eight persons had caught hold of the accused, and one of them, even if it was dark in the room, let him go and killed his own man instead.
The second question then to determine would be, whether the act of the accused in causing the death of the deceased was protected by any of the Exceptions mentioned in the Pakistan Penal Code.
The learned trial Judge has extended to the accused the benefit of Exception 2 to section 300, P. P. C., which runs as follows:‑
"Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence."
According to him the accused caused these injuries to the deceased when he ws baing brutally and mercilessly beaten by the deceased and Ahmad Din (P. W. 7). There is no evidence on the record to show that at the time when he stabbed the deceased, be was being beaten by the deceased and Ahmad Din P. W. On the contrary, the evidence which consists of the statements of Ahmad Din and Mst. Sahib Jan P. Ws. is to effect that accused was beaten after he had put Sulaiman to death. It is true that both these witnesses are interested, but then it is not possible for us to believe that the accused could have caused the fatal blows to the deceased. If Sulaiman and Ahmad Din P. W. had been beating him. It that case they would not give him an opportunity to whip out a knife and stab one of them. In any case, he could not have been given the opportunity to cause two injuries to the deceased. The infliction of two injuries would clearly show that the deceased was first stabbed, and it was then that the accused was beaten. Even if, however, the contention of the accused be accepted as correct still we think that while the deceased and Ahmad Din P. W. had the right to beat the accused, the latter had no right in law to stab anyone of his two assailants. According to the prosecution evidence the accused had entered into the house of the deceased with the intention of either flirting, or committing adultery with Mst. Sahib Jan P. W. The statement of the accused that he was going on the road, and he shouted to Ahmad Din to pay him the outstanding rent is to say the least not only unproved, but is made in order to save his own skin. There is nothing on the record to indicate that Ahmad Din P. W. owed any money to Jumma accused. The only evidence which has come on the record is that previously they were living in the Bandi of Izzat Khan contractor, where Jumma accused along with his father and wife was also living as a tenant. This being the case, it is not understandable how could Ahmad Din P. W. become indebted to the accused to the extent of Rs.5 as rent. 1f Ahmad Din P. W. owed no money to the accused, then tire latter had no business to go to Ahmad Din's house for any purpose. Even if, however, Ahmad Din P. W. did owe some money to the accused, it still be ridiculous to believe that simply because he did not want to pay that petty debt to him, he collected about seven of his relations in anticipation of the accused corning to that Bandi and demanding the debt from him, and when he came they all assaulted and thrashed him with sticks. We are, however, also not very much convinced by the prosecution evidence that at that particular moment the accused had gone to the house of Sulaiman deceased with the intention of committing adultery, or was as a matter of fact committing adultery with Mst. Sahib Jan P. W., when he was surprised by Sulaiman deceased. The only evidence, that he was committing adultery with Mst. Sahib Jan P. W., when Sulaiman came into the house, is that of the woman herself. She wishes us to believe that the accused took her forcibly into the cattle- shed, and against her will removed her trousers and started com mitting rape on her, but then the accused did not chain the door of the cattle‑shed from inside, nor did she mention the factum of rape to her husband Ahmad Din P. W., when the latter arrived at the scene of occurrence. It is significant to note that Ahmad Din in the F. I. R. did not state that when he reached the spot he was informed that the accused was actually committing adultery with his wife and Sulaiman surprised them, nor did he say that the accused was tied upwitbout trousers to the pillar which would have naturally been the case if he had been caught at the time when he was committing the rape on Mst. Sahib Jan. Again the time when it is alleged the adultery or rape was committed is such when people normally return from their fields to their houses, and such a time would not be selected by the accused for actually committing the adultery. We, however, believe that the woman at that particular moment was baking bread. The accused passed by the house and by chance saw her and started talking to her He had for that purpose entered into the house of Sulaiman. When they were talking it appears that Sulaiman deceased came and tried to apprehend him, but the accused stabbed him with a knife. Ahmad Din P. W. then arrived with a stick in his hands, and he was followed by Sain and Mehandu P. Ws. and all three then gave good thrashing to the accused.
The question is whether the deceased in trying to catch hold of the accused, and thus restricting his liberty was in law justified to do so. If he was not then the accused naturally would be entitled to the right of private defence, and in that case there would be no question of his exceeding that right, because the deceased would then be wrongfully confining the accused under the circumstances which might reasonably cause the accused to apprehend that he would be unable to have recourse to the public authorities for his release. It has been proved by the evidence which cannot be doubted that there was an illegal intimacy between the accused and Mal Sahib Jan P. W. It is also clear from the evidence, as we have already held, that as a result of that intimacy the accused) entered into the house of Sulaiman and started talking to Mst. Sahib Jan P. W., when they were surprised by Sulaiman. It is also established from the prosecution evidence as well as from the statement of the accused, wherein he had said that it was dark at the time, that the accused had entered into the house of Sulaiman after sunset. He entered into it stealthily and after taking precau tions to conceal his entry from Sulaiman or Ahmad Din, who, he ought to have believed would exclude or eject him from the house,) if they came to know of it. His entry into the house to his knowledge was therefore to insult and annoy Sulaiman and Ahmad Did P. W. He was by getting into the house of Sulaiman after sunset clearly committing lurking house‑trespass and was consequent1v committing an offence under section 456. P. P. C. which is cognizable and non‑bailable. Sulaiman, when he saw the accused committing this offence, had an obvious right to apprehend thee accused under section 59, Cr. P. C., which authorizes a private person to arrest any person, who in his view commits a non‑bail able and cognizable offence. While the deceased had a right to arrest him, the accused had no right to effect his release by causing two fatal injuries to the deceased. The learned trial Judge seem to have been influenced by the beating of the accused, but then, as has already been held, the beating in all probability was given after the stabbing. If the beating, however, preceded the stabbing, still Sulaiman and his companions under section 46, Cr. P. C. were perfectly within their right to beat him, because under that section if the person who is to be arrested forcibly resists the endeavour to arrest him, or attempts to evade the arrest, the private person has the authority to use all means necessary to effect the arrest, and beating would be one of the means and thus permissible in law. It is, therefore, not possible for us to accept the finding of the learned trial Judge that in causing two fatal blows to the deceased, the accused was entitled to a limited right of private defence. In support of his judgment the learned trial Court has referred to a case Indar Singh v. Emperor reported in (A I R 1933 Lah. 144), wherein it was held that where the de ceased came in a state of great excitement with a lath determined to use violence against his erring wife or her lover, or both, and the lover snatched the lath from him and struck him twice on the head, which resulted in his death, Exception 2 to section 300 of the Penal Code was applicable, and the conviction under section 302 Penal Code, should be altered to one under section 304 Penal Code. The facts of the case were that Mara, and his wife Mst. Kauri were living in Mehraj in Ferozepure District, where also lived one Indar Singh. The later was carrying on an intrigue with Mst. Kauri, which was protested by Mara, who told Indar Singh to break it off, but the latter refused to do so. Mara left Mehraj alorig with his wife and started working in a village at a distance of about 12 miles away. Sometime later Mst. Kauri after quarrelling with her husband left that village, and came back to Mehraj. Shortly afterwards when Mara went to Mebraj he found his wife cooking the evening meal, and Indar Singh sitting there in the courtyard. The two males altercated, and Indar Singh said that he was not going to give up his friendship with Mst. Kauri. Thereupon Mara went into the kotha, and came out brandishing a lathi, Indar Singh snatched the lath , and with it struck Mara on his head, causing an extensive fracture of his skull. In these circumstances their Lordships (Coldstream and Jai Lal, JJ.) held the following :‑
"In any case there can by no doubt that Mara came into the courtyard in a state of great excitement obviously determined to use violence against his erring wife or her lover or both. In the circumstances of this particular case I am of the opinion that Exception 2, section 300, Penal Code, is applicable."
It is not clear from the judgment as to whether the house in which the murder was committed belonged to Mara or to Mst. Kauri. At one place their Lordships write "Mst. Kauri returned to her house in Mehraj" at another place they observe that Mara went into the kotha of "his house". The judgment does not make it clear as to whether this house was jointly owned by the husband and the wife, or the wife alone, or the husband alone, or there was an other house of the husband, into the kotha of which he went and brought out a lathi. Their Lordships did not discuss the ques tion of the trespass at all, nor did they discuss as to what effect Indar Singh's snatching the lathi from the hand of Mara had in the case. Normally if the laths was snatched from the hands of Mara and there was nothing left with him to cause any injury to Indar Singh, the latter would not have the right of private defence at all. In any case, we doubt the correctness of their Lordships finding.
In the case before us we feel convinced that the accused com mitted the murder deliberately and his act was not covered by any of the Exceptions to section 300, P. P. C., much less Excep tion 2.
We consequently while dismissing the appeal of the accused, accept that of the Government, and alter the conviction of the accused from that under section 304 (Part I), P. P. C. to one under section 302, P. P. C.
As regards the sentence, we have already held that the accused did not go to the, house of Sulaiman to commit adultery with Mst. Sahib Jan. On the other hand, it appears that he was going on the road and seeing the woman alone in the house, he just stopped and entered into the house to chat with her, Sulaiman deceased arrived at that moment and tried to apprehend the accused who whipped out a knife and stabbed the former. Under the circum stances we think the lesser penalty provided by law would meet the ends of justice. We consequently sentence Jumma accused to transportation for life.
Orders announced.
A. H. Conviction altered.
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