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Criminal Appeal No. 51 of 1974, decided on 30th August 1974.

-----S. 304-Private defence, right of-Accused seeing deceased giving dang blows to his companions intervening for their rescue deceased treating accused in same manner and giving him three blows injuring his eye-Accused under serious apprehension of life inflicting single knife blow-Right of private defence to extent of causing death held, extended to accused in circumstances of case. Ahmad Din v. Faiz Ahmad and others 1972 S C M R 549 rel.

Muhammad Aslam Chatha for Appellant.

J. V. Gardner for A:-G, for the State.

Date of hearing : 12th July 1974.

Muhammad Anwar appellant was tried alongwith his brother Muhammad Ali, his cousins Muhammad Malik, Khadim Hussain and Muhammad Ashraf on a charge under sections 148, 302/149, P. P. C., by Sessions Judge, Sialkot, who acquitted his four co-accused and convicting the appellant alone under section 304, Part II of the P. P. C., sentenced him to R. I. for three years vide the judgment dated 28-11-1973 which forms the subject-matter of this appeal.

2. The prosecution case, in brief, is that as is usual with the cultivators on the advent of the harvest season Muhammad Ashraf (the acquitted accused) had collected some of his co-villagers including Muhammad Anwar appellant and the other acquitted accused on 5th of May 1972, and set out from his house in a procession to cut his crops. They were proceeding towards the fields dancing to the beat of drums and as they passed by the house of Inayat Ullah deceased he took exception to it dubbling it as indecent and insulting for the ladies. Inayat Ali (P. W. 6) coming out of his house also expressed the same view resulting in an altercation between the parties but it did not take any serious turn at that time and Muhammad Ashraf's party moved on to their fields.

It was alleged that half an hour later, Muhammad Anwar appellant accompanied by Muhammad Malik and Khadim Hussain (acquitted accused) each armed with Bangs, Muhammad Ali (acquitted accused) carrying a knife and Muhammad Ashraf (acquitted accused) empty-handed returned to the house of Inayat Ullah deceased and challenged him for taking objection to their dancing who came out with a dang in his hand on this lalkara when Muhammad Answar appellant, Muhammad Malik and Khadim Hussain fell upon him inflicting dang blows on Inayat Ullah deceased who launched a counter-attack and caused injuries to them in self-defence. In the course of this melee. Muhammad Ashraf is said to have exhorted Muhammad Ali (the acquitted accused) to finish Inayat Ullah whereupon he plunged a knife in his abdomen and felled him to the ground. on this, Muhammad Anwar appellant and his co-accused left the spot.

This occurrence was witnessed by Inayat Ali (P. W. 6), Inayat Ullah (P. W. 7) and Bashir (not produced) who removed the injured person to the Civil Hospital at Daska but before any doctor could attend on him he succumbed to his injuries. Inayat Ullah (P. W. 6) thereafter went to the nearby police station where he lodged his report (Exh. P. C.) about it at 8-20 a.m. the same morning.

3. Mirza Izzat Beg, S. I., after the formal registration of this case, went to the Civil Hospital and despatched the dead body of Inayat Ullah deceased to the mortuary after the necessary inquest vide Exh. P. J and the injury statement (Exh. P. J./1). He then went to the spot and reaching there at 11-30 a.m. secured some blood-stained earth from there vide Exh. P. D. and made it into a sealed parcel. He also recovered a dang (P. 3) from there vide Exh, P.E. He arrested Muhammad Anwar appellant, Muhammad Malik and Khadim Hussain on the next day who had injuries on their person as recorded in Fxhs. PN, PO and PR respectively. Each of them produced their respective dangs before him vide Exhs. PL, PM and PK and forwarded them to the hospital for their medical examination. He also arrested Muhammad Ashraf (acquitted accused) on the same day while Muhammad Ali (acquitted accused) was arrested on 15th of June 1972, by A. S. I. Farzand Ali. Bashir Masih (P. W. 4) prepared the site plan (Exh. P. A.) with its duplicate (Exh. PA/1) containing the marginal notes of the A. S. I. in red ink with his signatures there under in token of its correctness.

4. Dr. Hafiz Abdul Latif who performed the autopsy on the dead body of Inyat Ullah deceased on 5-5-72 at 5 p.m. found as under :--

"This was the body of a middle aged man, moderately built. Eyes were closed and mouth was partially opened. Rigor mortis and post-mortem staining were present. The body was covered in coloured Dhoti and white shirt.

(1) Stab wound ' x 1/3' x cavity deep right lower chest mid axillary line.

(2) An abrasion 1'x ' on the back of the right wrist joint.

(3) An abrasion 'x ' on the right knee joint.

(4) An abrasion ' circular on left knee joint.

(5) Abrasion. ' x ' x ' just below the left knee joint, front side.

(6) Abrasion 1 x ' on the right thigh upper part back side.

Abdominal cavity contained about 4 lbs of blood. Liver beared an incised cut which passed through the whole thickness of the right lobe. Cut was 1 x whole thickness x ' broad. Laceration on the portal vessels resulting into haemorrhage was present. All other organs were healthy.

Death in this case in his opinion was the result of shock and haemorr hage resulting from injury No. 1 which was sufficient to cause death in ordinary course of nature. Injury No. 1 was the result of some sharp-edged weapon. All other injuries were the result of blunt weapon, most probably by fall. All injuries were ante-mortem injuries.

Time between injury and death----1 to 2 hours. Time between death and post-mortem-8 to 12 hours."

Dr. A. R. Arain examined Muhammad Anwar appellant. Muhammad Malik and Khadim Hussain (acquitted accused) and found the following injuries on their person:--

Muhammad Anwar.

(1) A septic lacerated wound 1'x ' x skin deep on the left forehead just above the eye brow.

(2) Reddish brown contusion 1' x ' with swelling just below the left eye.

(3) Reddish brown contusion with swelling 5" x 1' on the lower medial of left forearm.

Muhammad Malik.

(1) A septic contused wound 1" x 1/3' x skin deep on the right forehead 1' above the eye-brow.

(2) Reddish brown contusion 1 " x ' on the back of right elbow.

(3) Abrasion covered with scab x 1/3 on the right knee.

(4) Abrasion covered with scab 1' x on the upper left knee.

(5) Abrasion covered with scab ' x 1/3 ' on the inner left knee.

(6) Reddish brown contusion 1 ' x 1' on the upper right back.

Khadim Hussain.

(1) Multiple abrasions 1 x 1 in area covered with scab on the mid back.

(2) Abrasion 2 x ' on the lower left back. It was covered with scab.

All the above injuries were caused by some blunt weapon, were simple in nature and their duration was two to four days.

5. In addition to the above medical evidence and that of recoveries, the prosecution had relied for its case on the testimony of Inayat Ali (P. W. 6) and Inayat Ullah (P. W. 7) only while Bashir, the third eye witness, was given up as won over by the other side.

Anwar appellant, in his turn, admitted his participation in this occurrence and setting up a plea of self-defence gave his version as under :-

"On 5-5-72 at about 6-30 a.m. I was going towards my dera and passed through the gali which runs in front of the house of the deceased. Malik and Khadim were going ahead of me. Inayat Ullah deceased armed with dang attacked Malik accused and injured him. Khadim accused advanced to rescue him. He was also injured by Inayat Ullah deceased and when I advanced to rescue Khadirn accused, I was attacked and injured by Inayat Ullah deceased also. I had a knife. I gave a knife blow to the deceased after I got up after having fallen on the ground."

Learned trial Judge, however, disbelieving the entire prosecution case including the presence of the above-named witnesses at the spot acquitted four of his co-accused but convicted him on the basis of his own statement holding him guilty of an offence under section 304, Part II, P. P. C., for exceeding the right of private-defence. This finding has been assailed before me as misconceived and erroneous being in conflict with the law laid down by the superior Courts.

6. On going through the record with care I am inclined to agree with this contention as taking into consideration the statement of Anwar appel lant in its entirety he had committed no excess whatsoever In acting as he did in the circumstances disclosed by him in his above statement. If the learned Judge had accepted the statement as true and correct account of the occurrence then Anwar appellant was fully protected in law for causing the death of Inayat Ullah deceased while intervening on behalf of Malik and Khadim Hussain (the acquitted accused). He had found Inayat Ullah deceased causing injuries to Malik and then Khadim Hussain when he came to his rescue which certainly justified his interference on their behalf, but Inayat Ullah deceased had the audacity of dealing with him in the same manner causing no less than three injuries to him with his dang. Anwar appellant seems to have warded off one blow by his left arm but the second fell on his forehead involving his left eye as well which created a serious apprehension to his life at the hands of Inayat Ullah deceased against which Anwar appellant was legally entitled to defend himself even to the extent of causing his death. He had, however, caused a solitary knife blow which in the heat of that moment penetrated into his abdomen and felled him to the ground. The other minor abrasions found on his knee joints in the back of his buttock seem to have been suffered by him by his fall on the ground as conceded by the medical witness in this case. Anyhow, Anwar appellant could not have been expected to modulate his defence step by step in the situation he found himself at that time as held in a large number of cases and recently reiterated by the Supreme Court in Ahmad Din v. Faiz Ahmad and others (1972 S C M R 549).

7. As a result of the above discussion, I have no option but to accept this appeal and setting aside his conviction direct that Anwar appellant shall be set at liberty forthwith if not required in any other case by the police.

Appeal accepted.