Find a Lawyer

Criminal Appeal No. 1155 of 1976, decided on 23rd February 1977.

---S. 300, Exception IV‑‑Private defence, right of‑Accused suffering sharp‑edged weapon injuries but prosecution suppressing same‑‑ Testimony of all eye‑witnesses regarding manner of happening of incident disbelieved and conviction based on statement of accused. Himself ‑Deceased given a blunt weapon injury on spur of moment while parleys for rapprochement going on in panchayat‑Accused, held, fully entitled to right of self‑defence, in circumstances‑ Conviction and sentence set aside.

R. A. Awan for Appellant,

S. M. Wahab for the State.

Date of hearing: 23rd February 1977.

Abdul Khalid, Abdul Khaliq, Muhammad Siddique and Taqdeer Ahmad, all sons of Abdullah, were tried under section 302, P. P. C. by Mr. Jacob Isaac, Additional Sessions Judge, and Lahore. The learned trial Judge vide his judgment dated 30‑I0‑1976, while acquitting Abdul Khaliq, Muhammad Siddiq and Taqdeer Ahmad accused, convicted and sentenced Abdul Khalid accused to five years' R. I. under section 304, Part I, P. P. C. The convict has filed an appeal before this Court against his conviction and sentence.

2. The brief facts of the case are that on 22‑10‑1972 at 2‑30 a. m. a report was lodged at Police Station Moghalpura, Lahore, on the basis of a medico legal report, at the instance of Muhammad Shafi complainant regarding the death of his son Muhammad Nawaz. It was stated by the complainants that he was living in Mohallah Nabipura Araian with‑ his family and Abdul khalid appellant was also residing in the same vicinity alongwith his three children. On 21‑10‑1 at about 10‑00 p. m:, the children of Abdul Khalid appellant and the children of the complainant, quarrelled with each other while they were playing. Upon this the women‑folk also parti cipated in the quarrel‑from both sides but later on, were separated. This incident took place at noontime and in the evening a panchayat was called at the behest of the complainant to settle the previous dispute. Sharif, Feroze Din, Muhammad Iqbal and Muhammad Aslam and some Mohallahdars also joined these parleys: During the conversation which was taking place bet ween the members of the panchayat and both the parties, Abdul Khalid appellant started abusing the complainant. The complainant's son i.e. the deceased prevented him and stepped forward‑ and the brother of Abdul Khalid appellant whose name was not known to the complainant, at, that time came out his house and started beating the deceased at the instance of Abdul Khalid appellant. Abdul Khaliq (acquitted accused) who had a piece of wood in his hand used the same against the person of Muhammad Nawaz deceased. Muhammad Nawaz deceased was taken to the hospital where he was medically examined but he died subsequently.

A cross case was also registered at the behest of Abdul Khalid appellant under section 324/34, P. P. C. against Muhammad Shafi complainant, Mukhtar Ahmad and the deceased. However; it ended in acquittal on the day when judgment against Abdul Khalid appellant was announced. It will be useful to mention at this stage that Abdul Khalid appellant received eight injuries on his person, Out of which injuries Nos. 1, 2, 3 were found to be caused by a sharp‑edged weapon while the remaining were the result of some blunt weapon. All these injuries were declared simple.

3. Dr. Shabir Ali P. W. 7 who conducted autopsy on the dead body of Muhammad Nawaz deceased, found the following injuries on his person:‑

(i) Contused wound 2 " x 1/3" going deep on the right side of head 3 " at 12 O'clock antero posteriorly.

(ii) Abrasion 1" x " front mid forehead.

(iii) Contusedly swelling 3" X 1 " on the right forehead extending to cheek.

(iv) Abrasion 1 " X 1" just upper to left eye.

In his opinion injury No. 1 was caused by a blunt weapon and was sufficient to cause death in the ordinary course of nature.

4. The case of the prosecution was supported by seven witnesses including two doctors.

5. I have heard the learned counsel for the appellant as well as for the State and have perused the record of this case carefully with their assistance. Learned counsel for the appellant has drawn my attention to paragraph No. 17 of the judgment of the learned trial Judge on which he has strongly relied. Ac cording to the learned counsel the observations in this paragraph, are by itself sufficient for the acquittal of the appellant as the learned trial Court has itself disbelieved each and every piece of evidence against the appellant and his co‑accused and thus it was not justified under any circumstance to hold that the. Appellant had exceeded the right of 'self‑defence. It was further submitted that in view of law lay down in M4haMmad Khan v. State (P L D 1964 Lhr. 177) Zarid Khan, v. Gulsher (1972 S C M R 597). and Khalid Mahmood v. State (1975 P Cr. L J 772), Abdul Khalid appellant was fully within his right to defend himself against the onslaught of the deceased and thus his case was fully covered by Exception 4 to sec tion 300, P. P. C.

6. I have examined the entire judgment of the trial Court vis‑a‑vis the record of this case and I will like to reproduce certain observations of: the learned trial Judge made by him in paragraph No. 17 of his judgment.

"This is a case where the prosecution has not explained, the injuries on the person of Abdul. Khalid accused. This is a case where. Muhammad Shag P. W. has armed only person Abdul Khalid; accused in his F. I. R. and showed his ignorance about the names of the 'nether accused. This is a case where Sharif and Munir P. Ws. are not the residents of the place near the place of occurrence. They are the residents of 2 miles and one mile from the place of occurrence whereas many persons were collected at the time of occurrence according to Muhammad Shafi P. W. This is a case where the recovery is fake, as Muhammad Jaffar P. W. 5 is police tout. This is a case where the two eye‑witnesses, namely, Sharif and Munir tried to implicate all the three accused; namely, Khaliq, Taqdeer and Siddique but due to their statements which showed that they were beating about the bush and trying to make up the case under section 302/34, P. P. C. against all the askew but, they failed in their attempt. This is a case where the prosecution investigated the case honestly and deposed that first report was lodged, by Khalid accused. This is a case where the demeanour of the witnesses is of greatest importance to be considered. They have endeavoured to appeal their true, feelings. The tones of voice and the mouth are the best indexes to the state of mind of a witness. Munir remained mum when the question was asked to him. It is cruel, brutal and impolitic to examine a, witness upon the theory that, he is swearing falsely. When he believes that he is only mistaken as to certain immaterial matters in his testimony. But in this very case the witnesses seem not reliable. Courts love fair play and they are usually sagacious enough to discover from the, demeanour of a witness whether he is swearing falsely or truly. . This is a case where occurrence definitely took, place between Abdul Khalid and Nawaz deceased. This is a case were Abdul Khalid accused himself admitted that in his right of private defence he hurled bricks and stones. This is a case where Abdul Khalid accused has exceeded from his right of private defence ‑ when he inflicted injuries on the person of Nawaz deceased and with that injury he expired."

While going through the above observations of the learned trial Judge, I am at a loss to understand, how he has arrived at a conclusion that Abdul Khalid appellant bad, exceeded the right of, private defence when he, inflicted injuries on the person of Muhammad Nawaz, deceased. He has disbelieved the testimony of all the eye‑witnesses regarding the manner of happening; of this incident. He had no choice but to accept the statement of the appellant who had given his own version of this unfortunate occurrence. The law on this point is settled that of the conviction is arrived at on the statement of the accused he, then the statement is to be accepted as, a whole. In the instant case, it is on the record as well as, observed by the learned, trial, Court that Abdul Khalid appellant was the first, person to move in this matter with the police and a case under section 324/34, P. P. C. was registered his instance, against the complainant party, earlier than the present case. It, as also accepted by the learned trial Court that the prosecution injuries on the person of Abdul Khalid appellant. It is settled law that when a person apprehends that his adversary is going to cause some grievous injury, he is fully within his right to cause his death. In the present case, the matter has gone further than apprehension and it is on the record that Abdul Khalid appellant did receive sharp‑edged injuries on his person as well as blunt injuries at the hands of the deceased. Following the law laid down in the above‑mentioned authorities, I am of the view that the learned trial Court was not justified to refuse him the right self‑defence to which he was fully entitled.

7. The result of the above discussion is that I accept the appeal, set aside the conviction and sentences of the appellant and acquit him. He will be released forthwith unless he is wanted in some other case.

Appeal allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.