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Criminal Appeal No. 773 of 1974, decided on 18th May 1976.

S. 304 read with S. 100‑Conviction, propriety of Private defence, right of‑Attack initiated by deceased and accused, his wife and daughter receiving injuries at his hands‑Accused picking up a hatchet and giving a single hatchet blow in retaliation on head of deceased‑Accused, held, fully justified in repelling attack and defending his person as well as persons of his family members, in circumstances Conviction and sentence set aside [Private defence, right of].

Khalid mahmood and others v. The State 1975 P Cr. L J 772 and State v. Khair‑ur‑Rehman Y L D 1960 Pesh. 50 ref.

Mien Nazir Akhtar for Appellant.

Ch. Muhammad Zafar Yasin for the State.

Date of hearing: 18th May 1976.

Lai Khan and Muhammad Aziz his brother‑in‑law were tried under section 302 read with 34, P. P. C. for the murder of Said Khan by the learned Additional Sessions Judge, Rawalpindi who vide his judgment dated 28‑9‑74 while acquitting Muhammad Aziz convicted and sentenced Lai Khan under section 304, P. P. C. to undergo 8 years' R. I. and pay fine of Rs.1,500 (fifteen hundred) or in default thereof to further undergo two years' R. I. It was also directed that out of fine recovered Rs. 1,000 would be paid to the legal heirs of the deceased. Aggrieved against his conviction and sentences Lai Khan has filed appeal before this Court.

2. The brief facts of the case are that Said Khan deceased who happened to be the real brother of Lai Khan were living adjacently with a common courtyard. Some time earlier Said Khan had built a cattle‑shed in the courtyard and due to rains a few months prior to this occurrence its wall had fallen down. Said Khan started raising the wall but the appellant resisted the same and this led to an altercation and exchange of abuses on the fateful day. Lai Khan while leaving, threatened the deceased with dire consequences. At 10 a.m. (rotiwela) the appellant along with Muhammad Aziz brother‑in‑law appeared on the scene to settle their account regarding the earlier incident, which has happened at morning time. Lai Khan was armed with hatchet while Muhammad Aziz (acquitted accused) was armed with soti. Lai Khan exhorted Muhammad Aziz to attack Said Khan deceased and according to prosecution Muhammad Aziz indicted a stick blow, which fell on the right eye of Said Khan. Lai Khan at that juncture landed a hatchet blow on the rear part of the deceased's head and thus the victim fell down on the ground. When two daughters‑in‑law of Said deceased Mst. Abdul Jan and Khudija Bibi came forward to intervene but were injured at the hands of Lal and Aziz respectively. Mst. Chandani wife of the deceased also witnessed this occurrence. It is also given in the F. 1. R. that Mst. Hamida Begum wife of the appellant and Mst. Taj Bibi alias Tajo daughter of the appellant also came forward and pelted stones towards the other two ladies i.e., Mst. Abdul Jan and Mst. Khudija Bibi and in retaliation the ladies against whom the stones were hurled by Mst. Tajo and Mst. Hamida Begum also did the same. This unfortunate incident attracted the attention of Muhammad Maskeen, Muhammad Alam, Gheba and Yaseen to the place of occurrence. With the help of these P. Ws. Said Khan was put on a cot and carried on to Kahuta and then later on was preceded to Civil Hospital, Kahuta. While reaching the Civil Hospital Said Khan succumbed to his injuries. Maskeen P. W. 5 lodged an F. I. R. Exh. P. B., which was recorded by A. S. 1. Altaf Hussain P. W. 10.

3. The A. S.1. After preparing the injury statement Exh. P. G. and inquest report Exh. P. F. despatched'‑the dead body of Said Khan to the mortuary under the escort of F. C. Said Muhammad and F. C. Zahoor. On that evening the A. S. I. after reaching the spot could only record the statements of P. Ws. and on the following morning inspected the spot.

4. The accused were arrested on 3‑11‑72 and Lai Khan appellant led to the recovery of hatchet Exh. P. 1 from his house, which was taken into possession, vide memo. Exh. P. A. duly attested by Gulsher Khan P. W. 4 and one Muhammad Zahoor. Lal Khan was also found injured and was got medically examined.

5. Dr. Khalid Javed who performed autopsy on the dead body of Said Khan deceased could not be examined at the trial as according to Aziz-ur-Rehman, Dispenser, he had gone abroad. However, Aziz-ur-Rehman, Dispenser‑P. W. 6 identified the signatures of the doctor on the post‑mortem report Exh. P. K. according to which the following injuries were found on the person of the deceased: ‑

(1) A lacerated wound 3" X " X bone deep right back of head.

(2) The right eye was black with a bruise 2" X 2" eminence of right cheek.

In his opinion death occurred due to shock and haemorrhage as a result of injury No. 1 which was sufficient to cause death in ordinary course of nature. It was caused by blunt weapon.

Lady Doctor Fakher‑un‑Nisa P. W. 1 on 4‑11‑72 at 10‑30 a.m. medically examined Mst. Khudija Bibi P. W. 7 and found four injuries on her person, All these injuries were simple and were caused with blunt weapon. Similarly this Lady Doctor also medically examined Mst. Abdul Jan P. W. 8 on the same day and found one injury on her person, which was declared simple.

Dr. Muhammad Akram examined Lai Khan appellant on 4‑11‑72 and found following injuries on his person:‑

(1) A seabed abrasion " X " at the back of right elbow.

(2) Three seabed abrasions 5" X " X " x and 1/3" X " at the back of right upper chest.

(3) A seabed abrasion l " X " at the back of left shoulder blade.

(4) Complaint of pain back of right buttocks.

(5) A seabed abrasion 1 " x 1/5" on the right side of forehead.

According to doctor all the injuries were caused with blunt weapon and were simple in nature.

6. The Case Of the Prosecution rests on the evidence of motive, ocular, testimony as provided b y the two injured witnesses and Maskeen, maker of the F. I. R. As the hatchet recovered from tire appellant was not found to blood‑stained, therefore, it was not sent to the Chemical Examiner or to the Serologist for opinion. Therefore, the evidence of recovery in this case is of no significance. Lal Khan appellant while appearing before the learned trial Court, wade following statement, when he was asked to explain that why this case was made against him

"Myself, my wife Mst. Rashidan and daughter Mumtaz were subjected to brutal aggression by the deceased and Mst. Khudija and Mst. Abdul Jan P. Ws. 1 submit my statement Exh. P. E."

It may be mentioned at this stage of the case that the written statement of Lai Khan appellant runs into 10 foolscap typed papers in English. The reading of which shows that the statement in fact is nothing but written arguments drawn by the learned Advocate who was defending him during the course of trial. However, the crux of the written statement is that the complainant party trespassed into his courtyard and opened an attack with stick causing him as many as 7 injuries including one on the forehead. He attributed the death of the deceased due to striking of stones hurled by the ladies from both sides and claimed that the deceased had died by stone hurled by his own women folk. He also claimed that he went to the police station to report this matter but nobody listened to him as the complainant party had arrived on their way. He further claims that Aziz was never present at the place of occurrence and was falsely implicated. He in the alternative also pleaded right of private defence.

7. I have heard learned counsel for the appellant as well as learned counsel for the State and have perused the record of this case carefully with their assistance.

8. It has been submitted on behalf of the appellant that when learned trial Court itself has held that deceased while armed with stick had initiated the attack against the appellant who was found empty‑handed at the relevant time and it was only then, when he took up a kulhari' and landed a single blow on the rear part of the head of the deceased, therefore, learned trial Court was not justified in disallowing the right of private defence to the appellant to which under law he was fully entitled. It has been further submitted that it was in the evidence of P. W. 2 Sher Muhammad Patwari that the fight had taken place at place which was in possession of Lai Khan appellant. In view of the above submission, learned counsel vehement argued that the case of the appellant merited acquittal on the above‑mentioned grounds only.

9. I have given my anxious thought to the contentions raised by the learned counsel and find these quite forceful. While going through para. No. 12 of the judgment of the learned trial Court, I find that it has been held by it as follows:‑

"There is however, another circumstance although not pleaded in favour of the accused. The deceased immediately on receiving the head injury had fallen down and thus could not deliver any blow on the person of Lai Khan after that."

Dr. Akram P. W. 1 who medically examined Lai Khan has given the opinion that the injuries suffered by him could not be self‑suffered and were possibly the result of stick blows. Said Khan's daughter‑in‑law Mst. Khudija and Mst. Abdul Jan had admittedly no sticks in their hands but had only made use of stones while participating in the fight. It seems that Said Khan had assaulted Lal Khan first and a stick had been used in making assault, Lai Khan received a few injuries although simple, his daughter has got three and wife two injuries. One of the injuries on the person of his wife Mst. Rashidan was bone fracture as revealed by X‑ray report Exh. D. 1. It appears that Lai oho was already offended over the installation, of a cattle‑shed f Said Khan in his part of the premises was driven into rage on suffering humiliation on physical assault at the hands of the other patty and could trot control his passions. As he and his family members were receiving injuries he could not exercise self‑control and got hold of a hatchet lying some where in the premises by way of retaliation and gave blow on the head of his enemy". This underlining is mine. Analysis of the above will clearly show that the learned trial Court came to positive conclusion after recording the evidence of P. Ws. in this case that it was the deceased who launched an attack on the person of the appellant and struck on his vital parts i.e. head and chest. According to learned trial Court it was only when the appellant was struck by the deceased that he took up a hatchet lying somewhere at the place of occurrence and gave one single blow in retaliation on the head of his enemy. With these conclusions as arrived by the learned trial Court it was hardly proper for it to record the conviction of the present appellant under sec tion 304, P. P. C. It has been held in Khalid Mehmood and 3 others v. The State (1975 P Cr. L J 772) by a Division Bench of this Court of which I was one of its members and wrote the leading judgment as under :‑

"The recognition of the right of private defence is simply a recognition of the importance of the instinct of self‑preservation for the well‑being of human society. Self‑defence is the nature's oldest law. It is based on the law of necessity of self‑preservation. The right of self- defence conferred by section 96, P. P. C. is to the effect that every person has a right to hold his ground manfully and not to run away like a coward. The only consideration is that a person threatened with danger of injury should not exceed the limits fixed by the law. This, of course, depends upon reasonable apprehension of danger to the person under the particular circumstances of the case. It is reasonable apprehension of danger to the body and not the actual injuries received that should judge the justification of the act of the accused. The reasonableness of the apprehension is a question of fact which depends upon the weapon used, the manner of using it, the nature of assault or other surrounding circumstances."

In the instant case, in view of the observation of the learned Court itself Lal Khan appellant was fully justified to repel the attack made by tile deceased against his person as he was inflicting blows on him with lethal weapon like Sota' and therefore giving one single blow in retaliation on the part of Lal Khan would not disentitle him to the relief which law has bestowed upon persons who are confronted with such situation. In view of the law. Laid dawn on this subject of self‑defence in sections 96 and 97, P. P. C. and interpreted from time to time by the superior Courts of this country, the reasons given in para. 11 of the judgment of trial Court for holding the appellant guilty are untenable. To say that Lal Khan should have run away from the place to find some less formidable weapon or to use the hatchet so found by him at the spot lightly, would be requiring from him to weigh in golden scale his steps while formula ting his defence against his enemy. Similarly in State v. Khair-ur-Rehman (P L D 1960 Pesh. 50) their Lordships while dealing with right of private defence held "if an accused person is found to have been injured in a fight with the deceased, it will be permissible to presume that it was the deceased who injured him, unless there is clear evidence or circumstance to the contrary, and if it is doubtful as to which of them attacked first, the benefit of doubt will go to the accused."

10. Without going into ancillary matters of this case, I am of the considered opinion that the appeal of the appellant is liable to be accepted. According to the finding of the learned trial Court itself, what I find is that the learned trial Court has fallen into error while interpreting the law on the subject of private defence although he was clear in his mind that the attack was initiated by the deceased and Lal Khan appellant acted to defend his person as well as to defend the person of his family members A his daughter and his wife.

11. The result is that I accept the appeal and set aside the conviction and sentence of Lal Khan appellant as visited upon him by the learned trial Court under section 304, P. P. C. He shall be set at liberty forthwith if not required in any other case.

Appeal allowed.

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