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Criminal Appeal No. 190of 1966, decided on 7th August 1973.

------S. 302 read with S. 100‑Murder‑‑Private defence, right of Complainant party coming to take away girl from accused persons and causing large number of injuries to accused party on their intervention to foil forcible removal of girl‑Accused in retaliation also injuring prosecution witnesses and giving a solitary hatchet blow to deceased on spur of moment resulting in his death Accused, held, did not exceed their right of self‑defence, in circum stances‑Convictions and sentences set aside.‑[Private defence, right of].

Said, Fain, Anwar and Rura (alias Arorra), were tried by the learned Additional Sessions Judge. Sahiwal, under section 302/34 of the Pakistan Penal Code for the murder of Jan Muhammad. Said was sentenced under section 304 Part I of the Pakistan Penal Code to ten years rigorous imprisonment and a fire of Rs. 100 or in default to undergo two months rigorous imprisonment further, Anwar and Rura were sentenced under section 3:.3134 of the Pakistan Penal Code to three months rigorous imprisonment each. Faiz was acquitted. The convicts have appealed.

2. The accused are Muslim Sheikhs of Chak, No. 81/5. L in Sahiwal District. Said and Faiz are brothers and Anwar accused is, married to their sister. Rura is the son of Anwar accused. Mst. Daulan, the mother of Said and Faiz accused was the step‑mother of the father of Mst. Ghulam Fatima (P. W. 10). One Ahmad Din was utrine brother of Mst. Ghulam Fatima P. W. and consanguine brother of Mst. Shammo, Although Mst. Ghulam Fatima was also a Muslim Sheikh, she married a Jat named Massu Khan and had three sons from him, namely, Nazir Ahmad, Bashir Ahmad and Nasir Ahmad. On the death of Massu, she married Jan Muhammad deceased and began to live in his house at Sahiwal, along with her sons as well as Abroad Din and 1st. Sammo. After some time, Ahmad Din disappeared from the house with Mst. Sammo.

3. The prosecution case is that on 1st of January, 1965, one Amir told Mst. Ghulam Fatima that Ahmad Din bad died and that Said and Faiz bad sent for her. 146 also told her that her grand‑mother Mst. Daulan was also ill. Next day i. e. on 1st January, 1965 she, her husband Jan Muhammad and her sons Bashir Ahmad and Nasir Ahmad left for Chak No. 81/5. L. in their tonga. Allah Ditta (P. W. 12) met them on the way and took a lift for going to the same Chak. When the party reached near the house of Said accused, they saw the dead body of Mst. Daulan (who had died on tire preceding night) being taken out for burial. Mst. Ghulam Fatima P. W. entered the house and sat with women who were present there. Allah Ditta P. W also entered the house to have a smoke. Jan Muhammad, Bashir Ahmad (P. W. 8) Nasir Ahmad (P. W. 9) went with the dead body. On seeing them, Said and Faiz accused get enraged and abused them and asked them why Mst. Ghulam Fatima had brought them there, They came back home followed by Jan Muhammad deceased and his step sons. They then got hold of Mst. Ghulam Fatima and began to turn her out by force. When Jan Muhammad deceased tried to intervene, Faiz accused caught him by the hair and Said accused gave him a hatchet blow on the head. Anwar and Rura accused who had a dang and a seru respectively also entered the house and began to belabour Jan Muhammad deceased. The accused also beat Bashir and Nasir Ahmad P. Ws., when they tried to rescue Jan Muhammad. According to the prosecution Bashir Ahmad and Nasir Ahmad P. Ws also caused injuries to the accused in self‑defence, Hussain Bakhsh (P. W. 11), who lived in the compound of the same house. intervened and separated the parties.

4. As Jan Muhammad died immediately after the occurrence, Bashir Ahmad P. W. went to make a report to the police station. Atta Muhammad A. S L. Police Station, Burjwala (P. W. 13) happened to meet him on the way and recorded his report Exh. P, A. He thin carne to the spot and sent the dead body of Jan Muhammad for post‑mortem examination. He also collected blood‑stained earth from the spot. He arrested Faiz, Anwar and Rura accused on 3rd January 1965. Anwar and Rura accused took him to their house and produced dang P.1 and seru P. 2 (short arm of a cot) respectively. Said accused, who had been admitted to hospital, was arrested by the A. S. I. on 15^th January, 1965. As Bashir Ahmad P. W., Said, Faiz and Rura accused and one Mst. Bhagan were also injured in the fight, they too were sent up for medical examination.

5. The autopsy was held by Doctor Wasim Akhtar, Medical Officer, District Headquarters Hospital, Montgomery (P. W. 1). He found the following injuries on the dead body of Jan Muhammad ‑

(i) A incised wound 4' x ' x bone deep and cut on the right side of head half inch above the right ear.

(ii) A contusion mark measuring 2 x 2 ' on the back of the right side of the chest at the upper border of right scapular region.

(iii) A contusion mark measuring 1 ' x 1 ' on the tip of the right shoulder.

(iv) A contusion mark measuring 2" x 1' on the right side of the middle of back of chest.

(v) A contusion mark on the lateral side of middle of left leg.

On internal examination, clotted blood was found between scalp and skull bones and between the bones and brain matter below injury No. 1. Right temporal bone and occipital bones were fractured. Membrane and brain matter were injured below injury No. 1. Death was due to shock and haemorrage. Injury No. 1 was caused with sharp‑edged weapon, while injuries Nos. 2 to 5 with blunt weapon. Injury No. 1 was sufficient to cause death in the ordinary course of nature.

6. Other injured persons were examined by Doctor Muhammad Taqi, A. M. O., Mirshank, (P. W. 2). Following is the result of his examination.

Bashir Ahmad P. K.‑

(i) One transverse lacerated wound ' 1/6' x skin deep on the left side of head about 3' above left eye‑brow and 2' Jeff to mid‑line of head.

(ii) One lacerated wound 1/3' x 1/6', directed antero‑ostriorly on the right side of heal, about 2 ' above right eyebrow and ' right to midline of head.

(iii) One oblique abrasion 1 ' x 1/3' on the outer side of left arm, about 4' below left shoulder joint.

(iv) One abrasion ' x 1/3' in front of the middle of left arm.

(v) One vertical abrasion 1 x " on the posteromedial aspect of the middle of left fore‑arm.

(vi) Abrasion "x ' on the outer side of left elbow‑joint.

(vii) Two abrasion ' diameter each, upper one 1 below left elbow‑joint and the lower one 2 below the left elbow joint behind it.

(viii) One crescentic laceration ' x 1/6' x skin deep on the anterior aspect of right plain of hand, just above 2nd metacarpophalangeal joint.

(ix) One vertical abrasion ' x ', about 1 above right knee joint, behind it.

(x) One abrasion 2/3' x ", on the left side of the base of the neck.

(xi) One abrasion " x 1/6", on head, 5" above left external ear.

All the injuries were simple and were caused by blunt weapon.

Faiz accused‑--

(1) One abrasion 1/4'x 1/6' on the dorsum of left hand in between the 2nd and 3rd metacarpophalangeal joint.

(2) One abrasion 1/2'x 1/3' on the dorsum of left hand about 3/4" below left wrist joint and just on the vertical line with injury No. 1.

(3) One lacerated wound ' x 1/3' a skin deep on the posterolateral aspect of right fore‑arm, about 1 /2" above right wrist joint.

(4) One abrasion 1/4"x 1/6" on the posterior aspect of metacarpophal angeal joint of right middle finger.

(5) One vertical abrasion ' x " on medial side of the left forearm about 2 ' above left wrist joint.

All the injuries were found simple and had been caused by blunt weapon.

Said accused---

(1) One lacerated wound directed and anteroposteriorly on the left side of head situated about 1/2' left to middle head and 4' above left eye‑brow, it is " x 1/5" x scalp deep.

(2) One lacerated wound directed anteroposteriorly on the right side of his head, measuring 1 " x " x scalp deep situated 3 ' above right eye‑brow and 1 right to midline of head.

(3) One lacerated wound 1' x 1/3' directed anteroposteriorly, on the inner side of the metaparphalangeal joint, of left thumb. The joint is extremely painful.

(4) One contusion 2" diameter, over right shoulder joint.

(5) One vertical abrasion 1' x 1/6' behind and on the middle of left forearm.

Injuries Nos. 1, 2 and 3 were kept under observation. Injuries Nos. 4 and 5 were simple. All the injuries had been caused with blunt weapon.

Later on, injury No. 3 was declared to be grievous and injuries Nos. 2 and 3 simple.

Rura accused‑-

(1) One lacerated wound " x 1/3" x skin deep an outer side of right elbow joint. It. is surrounded by a swelling 1' diameter. It is extremely painful.

The injury was kept under observation and it was caused by a blunt weapon. The injury was later on declared as simple.

Mst. Bhagan‑---

(1) One crecentic lacerated wound 1 'x 'x scalp deep on the right side of head. Its anterior end lies 2 above right eye‑brow and 3' right to midline of head, concavity of the injury faces laterally and downwards.

(2) One vertical abrasion 2' w ' on the medial aspect of right forearm about 3" above right wrist joint.

(3) One abrasion 1"x 1/5' vertical, on medial aspect of right forearm, about 1' above injury No. 2.

(4) One swollen and extremely painful part 1' diameter on the posteromedial aspect of right wrist joint covering the lower end of right ulna.

Injuries Nos. 1 and 4 were kept under observation. All the injuries had been caused with a blunt weapon. Later on, Injuries Nos. 1 and 4 were declared simple. Rest of the injuries were also simple.

7. The accused denied guilt. Anwar accused stated that he had gone to the graveyard for the burial of Mst. Daulan, when the occurrence took place. He. Rura and Said accused denied the production of any weapon. Said, Faiz, anti Rura explained that the complainant party came to take away Mst, Shamnio at a time, when they had left for burying their mother. They left the (lead body on hearing the alarm and came back to the spot, where Jan Muhammad deceased and Bashir Ahmed ' P. W. were beating Mst. Bhagan, the sister of Faiz and Said for trying to prevent them from taking away Mst. Shammo. As they tried to rescue the ladies, Jan Muhammad deceased and Bashir Ahmad P. W. began to beat them with dange. They also injured them to save themselves. The accused did not produce evidence in defence.

8. Mst. Ghulam Fatima P. W. admitted before the committing Magistrate that since she had married out of caste, she and the accused were not on visiting terms and she had gone to the house of the accused for the first time on the fateful day. She also admitted that she left for the house of Said and Faiz accused with her husband and sons on the same day on which she learnt about the presence of Mst. Shammo there. Allah Ditta (P. W. 12) is said to have met them by chance on the way and taken a lift for going to the Chak of the accused. He lived in Sahiwal like the deceased and was admittedly known to Jan Muhammad deceased. He did not explain, why he was going to Chak No. 81/5. L. Although he is a Municipal Employee and was supposed to be on duty for 24 hours, he did not obtain leave for going out of station. He could not tell the time of his departure for Sahiwal that day. On reaching the Chak, he went inside in the house of Said and Faiz accused instead of going with the dead body like Jan Muhammad deceased, Bashir Ahmad and Nasir Ahmad P. Ws. All these circumstances show that the witness had also come with the complainant party to help them in taking away Mst. Shammo. It appears that they had come to know about the death of Mst. Daulan and wanted to kidnap Mst. Shammo, when the accused left for the graveyard to bury her. Even the learned Sessions Judge was of the view that the complainant party had come to take away Mst. Shammo, but he did not believe that they wanted to take her away by force. He thought that if they wanted to use force, they would not have brought an old woman (Asst. Ghulam Fatima P. W.) and an unarmed old man) (Jan Muhammad deceased) with them. But it was necessary to take Mst. Ghulam Fatima P. W. because she was the only person, who was connected with Mst. Shammo and the accused. She served as, passport for entering the house of Said and Faiz accused and provided some sort of legal cover for taking away the girl. As to Jan Muhammad post‑mortem report shows that he was about 45 years of gage. The plea that he and his companions were unarmed is belied by the presence of a large number of injuries found on the persons of Said, Faiz arid Bura accused, or swell as Mst. Bhagan, who is said to have tried to prevent forcible removal of Mst. Shammo Of course, Hussain Bakhah and Allah Ditta P. Ws. tried to show that aggression lay with the accused, but they are not impartial witnesses. As already explained, Allah Ditta P. W. had come with the complainant party as an accomplice. As to Hussain Bakhsh P. W., it was observed by the learned Additional Sessions Judge that he was a‑friendly to the accused because their landlords wanted to get rid of him. His evidence is patently false because Allah Yar (P. W. 7), who was examined as a witness of the recovery of weapon, deposed that he had gone with the dead body to the graveyard and he hid returned with him from thereafter the occurrence. The learned Additional Sessions Judge was not, therefore, tight in holding that the interested testimony of Mst. Ghulam Fatima P. W. and her sons had been corroborated by independent and reliable evidence.

9. After considering the matter carefully, I am satisfied that the complainant party had come to take away Mst. Shammo and that they had entered the house of Said and Faiz accused to secure her, that they caused injuries to Mst. Bhagan, when, she tried to present them from taking away the girl from their house by force, that they also injured Said and Faiz accused when they returned home and tried to intervene. They were therefore, justified in causing injuries to the complainant party in defence of their person and property. As only one blow was given to Jan Muhammad a deceased with a hatchet, which was picked up at the spur of the moment and as the complainant party had also caused a very large number of injuries to the accused and Mst. Bhagan, who bad tried to resist the capture of the girl, the right of self defence could not be held to have been exceeded. therefore, accept the appeal of Said, Anwar and Rura accused, set aside their conviction and sentences and acquit them. Said shall be release forthwith if not required to be detained in any other case, Anwar and Rura accused are on bail. They shall be discharged from their bail bonds.

Appeal allowed.

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