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Criminal Appeal No. 422 of 1975, decided on 11^th February 1977.

‑‑ S. 302 read with S. 100‑Private defence, right of‑Entire prosecu tion evidence disbelieved and conviction based on accused's own statement admitting occurrence but setting up plea of provocation involving family honour coupled with apprehension of criminal assault on his sister‑Limiting plea of accused to provocation simple while discarding rest of it‑Held: III conceived and conviction untenable, in circumstances.‑[ Privtae defence, right of].

Rahim Bakhsh v. Crown P L D 1952 F C 1; Muzaffar Khan v. State P L D 1956 Lab. 1945; Ghulam Ahan v. State P L D 1965 Pesh. 11; Muhammad Idrees v. State P L D 1965 Lah. 553 ; Sadiq v. State P L D 1972 Lah. 596 and Miral alias Mir Muhammad v. State P L D 1976 Kar. 1222 rel.

‑‑ Ss. 302 & 304, Part II read with S. 100‑Conviction, propriety of---Private defence, right of‑Accused in exercise of his right of private defence of his own person as well as honour of his sister subject of criminal assault stabbing deceased to death‑Deceased unarmed and receiving six incised wounds sufficient to cause death in ordinary course of nature‑Accused held, exceeded his right of private defence, in circumstances‑Conviction under S. 302 altered to one under S. 304, Part II, P. P. C.‑[Private defence, right of].

Kh. Ahmad Iqbal for Appellant.

Kh. Shaukat Ali for the State.

Dates of hearing: 15th and 16th November 1976.

Ishtiaq Ahmad appellant was tried along with three others on a charge under section 302/34, P. P. C. by Mr. Iftikhar Ahmad Cheema, Additional Sessions Judge, Rawalpindi, for committing, in furtherance of their common intention, the murder of Zafar‑ul-Haq (deceased) after way. laying him on his return from his fields in the presence of Abdul Haq (P. W. 9), Muhammad Sadiq (P. W. 10) and Muhammad Yasin (P. W. 11) at about 8‑30 a. m. on 5th July 1974, in the area of village Kolian Hameed for his illicit liaison with Mst. Zahida, the sister of the appellant. He was sentenced to life imprisonment.

2. The report of the incident was lodged with the Police by Muhammad Yasin (P. W. 11) at 11‑15 a. m. in Police Station. Gujar Khan when Sub‑Inspector Raja Muhammad Hayat (P. W. 12) recorded his statement Exh. P. A. about it forming part of the record as first information report.

3. After the registration of the case the Sub‑Inspector proceeded to the spot and collected the blood‑stained earth vide Exh. P. B. and sealed the same into a parcel and examined under section 161, Cr. P. C. Liaquat, Abdul Haq and Muhammad Sadiq P. Ws. He then despatched the dead body of Zafar‑ul‑Haq (deceased) to the mortuary with inquest report Exh. P. K. the injury statement Exh. P. L.

On the next day Foot Constable Abdul Ghafoor (P. W. 3) produced before the Sub‑Inspector the last worn clothes shalwar (P. 1), shirt (P. 2) and vest (P. 3) of the deceased, which he took into possession vide Exh. P. E.

Sarwar and Shabbir were arrested by him on 7th July 1974 and on interrogation Shabbir accused led to the recovery of bloodstained knife (P. 4) vide Exh. P. C. On 9th July Ishtiaq and Aziz were produced before him, who likewise got recovered hatchet (P. 5) and knife (P. 6) vide Exhs. P. H. and P. J. respectively. The rough sketches of the places of these recoveries are Exhs. P. M., P. N. and P. O. respectively. All these parcels were deposited in the malkhana for safe custody on the same day for onward transmission to the Chemical Examiner. This blood was traced to be of human origin vide the report Exh. P. Q. of the Chemical Examiner and Exh. P. R. of the Serologist.

The Sub‑Inspector got prepared the site plan Exh. P. F. with its duplicate Exh. P. F/1 from Patawari Lal Husain (P. W. 5) and after his notes in red ink signed the same in token of its correctness.

4. On 6th July 1974, at 8‑00 a. m. Dr. Muhammad Aslam Arshad to W. 1) held autopsy on the dead body of Zafar‑ul‑Haq (deceased) and found the following injuries vide Exh. P. C.

(1) An incised stabbed wound 2 " x 1" on right outer part on front of outer part of right upper arm 4 " above the elbow. There was an exit wound 1' x ' on front of outer part of upper arm at 1" distance and the same side of wound was flesh deep and was partly cut.

(2) An incised stabbed wound 1" x 1/3" chest deep on outer side of the right chest 6' below the middle axilla.

(3) An incised stabbed wound 1" x " skin deep on the outer side of right chest 5" below axilla.

(4) An incised stabbed wound " x " x 1" on back of spine at middle of the back of 10th spine.

(5) An incised stabbed wound " x " chest deep on the back of right chess 4' below lower angle of scapula.

(6) An incised stabbed wound 1" x " chest deep on back of right cheat 2 " from middle line and 1 " below injury No. 5.

The diaphragm of the lungs was cut at injury No. 2. Right lung was cut in the upper portion and 2. pounds of blood was present in the chest. Liver was punctured by injury No. 5 and right kidney was cut due to injury No. 6. In his opinion the death was caused 4ue to shock and haemorrhage by injuries Nos. 2, 5 and 6 which were sufficient to cause death in the ordinary course of nature. All injuries were ante‑mortem and were caused by sharp‑edged weapon. Duration between injury and death was about one hour while death and post‑mortem about 24 hours. Exh. P. D/1 is his endorsement on the police query Exh. P. D.

5. At the trial in addition to the above detailed medical evidence and that of recoveries the prosecution had relied for its case on the testimony of the above‑named three eye‑witnesses about the ocular account of the occurrence. Muhammad Akbar (P. W. 7) and Aurangzeb (P. W. 8) deposed about the recoveries of knife (P. 4), hatchet (P. 5) and knife (P. 6).

6. Ishtiaq Ahmad appellant denying the allegations made against him by the prosecution witnesses asserted his innocence and put forth his version of the occurrence as under:‑

"On the day of occurrence in the morning when my sister went out to ease herself she was pounced upon by the deceased who wanted to rape her. She raised alarm. I picked up a churri and ran to her rescue and in order to save her honour and person and save her from being raped by the deceased I inflicted churri blow on him and rescued my sister. I later gave this churri to Sangar Khan P. W. for producing before the police but as Muhammad Yasin had falsely implicated my co‑accused ascribing different weapons therefore the police refused to take possession of churri. At the time of occurrence neither my co‑accused nor the P. Ws were there. I claim the exercise the right of defence of person and chastity of my sister. I have acted in accordance with law."

His co‑accused, namely, Muhammad Sarwar, Abdul Aziz and Shabbir Ahmad setting up a plea of false implication denied their presence at the spot at the time of the occurrence.

7. Learned trial Judge disbelieving the evidence of the prosecution witnesses about this murder as also about the incriminating recoveries detailed above accepted the version of Ishtiaq Ahmad appellant as true and correct account of the occurrence and held him alone guilty under section 302, P. P. C. and acquitted his three co‑accused which finding has not been challenged by the State under section 417, Cr. P. C. Learned counsel foe the complainant, who had filed a petition under section 439, Cr. P. C. to question the correctness of the acquittal of these accused has also been heard, but he has failed to point out any material calling for interference with the conclusions of the trial Judge about it and is being dismissed in limine.

8. The conviction of Ishtiaq appellant has been assailed before me as untenable due to mis-appreciation of the plea as set up in his statement under section 342, Cr. P. C. although the entire prosecution version had been rejected in this case.

9. On going through the statement of the appellant with care I agree with this contention as there was no material on record to falsify it. I am fortified in taking this view by the observations made in Rahim Bakhsh v. Crown (P L D 1952 F C 1), Muzaffar Khan v. State (P L D 1956 Lah. 1945), Ghulam Khan v. State (P L D 1965 Pesh. 11), Muhammad Idrees v. State (P L D 1965 Lah. 553), Sadiq v. State (P L D 1972 Lah. 596), Miral alias Mir Muhammad v. State (P L D 1976 Kar. 1222).

The sum and substance of the view taken in above cases is as under:‑

"In the absence of any direct or indirect evidence from the prosecution side to prove the circumstances of the murder we have per force to loll back on the statement of the appellant himself, which we lave to accept unless we could find any evidence, circumstantial or otherwise, to negative or contradict that statement in whole or in Part.

In giving his judgment in the case of Muhammad Idrees v. State Sajjad Ahmed, J. as he then was taking into consideration the erect of section 105 of the Evidence Act as discussed in Safdar Ali case (P L D 1953 F C 93), Muhammad Islam's case (P L D 1953 F C 115) and Sultan Muhammad's case (P L D 1954 F C 29) clearly observed that:‑

"When there is a complete lack of evidence by the prosecution providing the basis for conviction of the appellant for wilful murder of the deceased, we have, in the appellant's own statement, an explanation for the offence, admittedly committed by him, for which there is no apparent contradiction from the prosecution side, and although there are what may appear to be weak links in that version, creating a hurdle in the positive establishment of the plea of the appellant to be true, the version of the appellant in its over all effects reacts on the prosecution case to assail it with a doubt on the one band and to create a feeling on the other that the version of the appellant may probably be true."

10. In the present case entire prosecution evidence having been disbelieved the conviction of the appellant who had set up a plea of provoca tion involving family honour coupled with apprehension of an assault with the intention of abducting his sister would the untenable under section 100 (fifthly) of the Pakistan Penal Code. Learned trial Judge had to accept the v6hole of his statement and net only a part of it unless tire remaining portion could be proved to be false he had thus fallen into an error in putting his own interpretation on his plea limiting it to provocation simple and pure although there was no cogent reason to discard the rest of it relating to the private defence asserted by him in unequivocal terms. In fact these apprehensions could not be discarded as unfounded or remote, in view of the very motive attributed to the appellant in the initial report (Exh. P. A) with concession of reasonable possibility about its truth the impugned judgment itself so the denial of this legal right (private defence, of the person of his sister) to him was ill‑conceived in the circumstances of this case.

11. The appellant had, however, exceeded this right by inflicting no less than six incised stab wounds by a churri on Zafar‑al Haq (deceased) who was apparently unarmed during the enterprise undertaken by him on the eventful day. Three of these injuries were declared by the doctor as sufficient to cause his death in the ordinary course of nature due to the damage to vital parts of his body although he could thwart big evil designs by disabling him with one or two blows like the first second or fourth injury given to him. He could on that score be safely held liable for an offence under section 304 (II) of the Pakistan Penal Code. I have, therefore, to s accept this appeal to that extent and altering his conviction to that offence, reduce his sentence to rigorous imprisonment for three years.

12. I have taken a comparatively lenient view in according this sentence as he seemed to be an impulsive young boy smarting under the infamy brought upon his family by this unhealthy persuit of the deceased.

13. The fine as compensation for the heirs of the deceased is also being dispensed with on the sane grounds. Deduction warrants to issue forthwith.

Order accordingly.

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