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Criminal Appeal No. 622 of 1954, decided on 23rd Nov ember 1954, from the order of Muhammad Akbar, Sessions Judge, Attock at Campbellpur, dated the 3rd July 1954.
S. 102‑Private defence, right of‑Cannot continue after assaulter has been disarmed‑ Not merely exceeding right of private defence but making it a pretext to cause death‑Offence, murder.
According to section 102, P. P. C. the right of private defence of the body commences as soon as a reasonable apprehension of danger the body arises and continues as long as such apprehension of danger to the body continues.
In this case it was the appellant's own version of the incident that it was after he had disarmed the deceased that he caused injuries to him. As soon as the deceased had been disarmed and the appellant was holding the knife, the right of private defence of person, which accrued to the appellant in the beginning, could riot be said to continue.
After the deceased had been disarmed, the appellant caused no less than 18 incised wounds, with the knife taken from the deceased, on different parts of the body of the deceased.
The number and nature of injuries showed that the appellant intended to cause the death of the victim and as the act which caused death was not merely in excess of the right of private defence but a palpable pretext of the exercise of that right the case fell within the definition of murder and the conviction of the appellant under section 302 of the P. P. C. was upheld.
Iftikhar‑ul‑Haq Khan, for Appellant.
S. A. Mahmud, Assistant Advocate‑General, for Respon dent.
Sentencing Fazal Dad, son of Majid, a Gujjar of Dhok Anjarsar, in the District of Campbellpur, to be hanged by the neck till he be dead for an offence of murder, Mr. Muhammad Akbar, Sessions‑Judge, Campbellpur, has referred the case to this Court as required by section 374 of the Code of Criminal Procedure for confirmation of that sentence. There is also an appeal preferred by the condemned man questioning his conviction, which and the reference for confirmation will be disposed of by this order.
One Said Ghulam alias Mana was also tried with the appellant for the offence of murder but as the learned trial Judge found that the case against Said Ghulam ''was not proved he acquitted him. The occurrence took place on the night between the 4th and 5th of April 1954, near the jandar of Gheba, the victim of the occurrence, in village Bai in the District of Campbellpur and a report with regard thereto was made at about 5 a.m. on the 5th of April 1954, by Muhammad Iqbal at Police Station Hasan Abdal which is at a distance of about four miles from the scene of the occurrence. The report stated, inter alia, that the informant, who is a Nambardar of village Bai, had been told at about midnight by Miskin Gujjar that Gheba Lohar was lying murdered near his jandar and Fazal Dad appellant was shut up in a kotha which was being guarded by a number of persons so that he may not escape. The informant went to the jandar and took Fazal Dad out of the kotha. Fazal Dad had some injuries on his person and blood on his clothes. The body of Gheba having a number of injuries on it was lying near by. It was further stated the report that Fazal Dad, who was a frequent visitor to the house of the deceased, had illicit intimacy with Mst. Nemat Jan, wife of the deceased, and had, therefore, killed her husband.
The report had not stated if there was any eyewitness of the occurrence and if anyone other than Fazal Dad appellant had taken part in it but the police after investiga tion came to the conclusion that the appellant had two companions, namely, Said Ghulam alias Mana, the acquitted accused, and Ghulam Ahmad. This Ghulam Ahmad was tendered a pardon under section 337 of the Code of Criminal Procedure and was produced as a witness at the trial.
Evidence connecting the appellant with the death of Gheba was given at the trial by the approver Ghulam Ahrnad (P. W. 14) and Mst. Nemat Jan (P. W. 12). The approver stated that it was after they had decided to murder Gheba that the appellant in the company of the witness and of Said Ghulam alias Mana went on the night of the occurrence to the jandar of the deceased. When they reached there dogs kept on the jandar started barking which brought Gheba deceased and his wife, Mst. Nemat Jan, outside. While Mst. Nemat Jan stood in the doorway Gheba incited the dogs to catch the intruders and asked them who they were. Fazal Dad gave his name and asked Gheba to control his dogs. The deceased did so and soon after Fazal Dad gave a blow to Gheba with a khunda carried by him. The handle of the khunda broke but, the deceased and the appellant grappled with each other and both fell to the ground with Gheba deceased on top. Fazal Dad cried out for help at which he (the approver) caught hold of the hands of the deceased and soon after Fazal Dad hit the deceased with a knife from below while Mana, the acquitted accused, caused him injuries with his chhuri. The learned trial judge came to the conclusion that Ghulam Ahmad (P. W. 14) appeared to be a false witness and no reliance could be placed on his statement.
Mst. Nemat Jan (P. W. 12), the 27‑years‑old widow of Gheba, who, at the time of his death, was over 50 years of age, deposed that she was married to Gheba about eight years before his death and that Fazal Dad appellant, who used to visit her husband's house, had contracted with her an illicit intimacy which continued till the death of her husband. On the night of the occurrence her husband and she were lying in their jandar, known as Jabiwala jandar, when they heard their two dogs barking. She and her husband got up and her husband went towards the side where the dogs were barking. He shouted who was there at which Fazal Dad appellant replied aloud that it was he and the dogs should be controlled. Her husband went towards the wheat field from which the voice of Fazal Dad had come and soon after she heard him shouting that he was being killed. Out of fear she did not go towards her husband but instead went to a kotha inside the jandar. Shortly afterwards the appellant came inside the jandar and she saw that his hands had some injuries on them and his clothes were besmeared with blood. On coming in Fazal Dad asked her to elope with him adding that he had "murdered" her husband. She told the, appellant that she would elope with him but as the best thing was that she should take her ornaments and clothes with her he should wait till she brought them. She proceeded to say that her intention in telling the appellant this was to make him stay in the jandar till she brought people to arrest him. She went to the neighbouring houses of Nur Muhammad, Faqir and Miskin and telling them what had happened re quested them to capture Fazal Dad. Miskin and Faqir accompanied her to the, jandar to which place Wali, Haider Shah and Nur Muhammad also came shortly after. Miskin chained the door of the jandar from outside and enquired who was inside, at which Fazal Dad replied that it was he. Miskin was sent to inform Muhammad Iqbal Nambardar and others, who came and took Fazal Dad out of the jandar after which they tied his hands and feet. She denied the suggestion that it was on her invitation that Fazal Dad appellant had come to the wheat field that night with a view to having sexual intercourse with her. The statement of Mst. Nemat Jan was corroborated by Miskin, who appeared as P. W. 13 at the trial. After the statement of Miskin was recorded the Public Prosecutor stated that Faqir and Nur Muhammad, whose production as witnesses he did not consider necessary, were present in Court and could be produced if the defence wanted to cross‑examine them, at which the two counsel for the defence stated that they did not want to cross‑examine Faqir, Nur Muhammad and Munawar Khan. Muhammad Iqbal Nambardar, who had made the first information report, appear ing as P. W. 9 at the trial, corroborated the statement of Mst. Nemat Jan P. W. 12 and Miskin (P. W. 13) in all material details.
Another witness whose statement is worthy of notice was Nur Ilahi (P. W. 6). He deposed he was the son of Gheba and a stepson of Mst. Nemat Jan and that she had illicit intimacy with Fazal Dad appellant. As this intimacy became the talk of the village he asked his father to stop the visits of Fazal Dad to. the jandar and the old man stopped Fazal Dad from visiting his house,
In his statement in the Court of the Committing Magis trate the appellant denied that he had committed the offence of murder by intentionally killing Gheba though he admitted that he had illicit intimacy with Mst. Nemat Jan. He was questioned about the injuries on his person and said that he will make a statement with regard to them and the presence of bloodstains on his clothes in the Court of Session. He was asked if it was a fact that he was found chained inside the jandar on the night when Gheba met with his death, to which he replied that this was not so. Replying to the question as to why the case had been brought against him the appellant said in the Court of the Committing Magistrate that he will make a detailed statement in the Court of Session.
When questioned by the learned trial judge the appellant admitted that he had given blows with a sharp‑edged and sharp‑pointed weapon to Gheba deceased which caused his death. Asked to explain why he used violence against the deceased the appellant made the following statement :‑
"I had illicit connections with Mst. Nemat Jan, wife of Gheba. She was after me and pestering me. She wanted that I should elope with her. On the night of occurrence I went to Hasanabdal. I was coming back 'from Hasanabdal and passed by the jandar of the deceased. Neither Mana nor Ghulam Ahmad was with me. I was all-alone Knife P. 1 belonged to Gheba. When the dogs barked at me, Gheba deceased came to me. He abused me as to why I had stopped the dogs. He was armed with a khunda. Gheba deceased attacked me with a khunda of which the handle is P. 2; khunda was broken at the spot. Then he took out his knife P. 1. He gave me blows causing me injuries. Then I and Gheba grappled with each other. I caught hold of the sharp blade of the knife P. 1. Then Gheba threw me down and sat over me. I considered that he will murder me. I apprehended my instant death. As luck would have it, I caught hold of the knife P. 1 and with it I gave all the blows to Gheba killing him, otherwise he would have killed me. Then I went to the ' jandar of the deceased and I sat outside the jandar. Then I raised an alaram. Miskin, Nur Muhammad P. Ws., arrived at the spot on my alaram. It is entirely false that I was caught inside the jandar or I was shut up inside the jandar or I was tied down. I gladly remained present at the jandar and police arrested me at the jandar. Whatever I did, I did in exercise of my right of private defence.
He was asked other questions, one of which was if he admitted that Ghulam Ahmad (P. W. 14), the approver, was his step nephew, as he claimed to be, to which he replied in the negative. In reply to another question, he said that it was entirely wrong that the door of Gheba's jandar was chained from outside by some of the neighbours and he was subsequently taken out of the jandar by Muhammad Iqbal and others. No evidence was produced in defence.
I have gone through the statement of the approver Ghulam Ahmad (P. W. 14) and considered the reasons given by the learned trial judge for not accepting the claim of the witness that he had taken part in the occurrence but can find nothing which might make it necessary to differ with the view the learned trial judge with regard to the weight to be attached to the statement of the approver. I might add that I am not in complete agreement with the reasons given by the learned trial judge in this matter but in view inter alia, of the fact that the statement, which Ghulam Ahmad made to the police on the 5th of April 1954, was to the effect that Fazal Dad was innocent it would be safer to keep the statement of Ghulam Ahmad (P. W. 14) out of con sideration. The statement of the approver having been kept out of consideration the question for decision is if the guilt of the appellant with regard to the offence of which he has been convicted has been established to the degree of certainty which one requires before convicting a person of a criminal offence.
It can hardly be doubted that the appellant had killed Gheba because if it were not so he would not have been shut up in the jandar, tied hand and foot and reported against at the police station. Mst. Nemat Jan has stated that the appellant had confessed to her to having killed her husband and asked her to elope with him. The evidence discloses that there was illicit intimacy between Mst. Nemat Jan and the appellant and this is admitted by the appellant himself in his statement at the trial. In these circumstances, it is by no means unlikely that after killing her husband near his house the appellant went to his paramour to persuade her to elope with him now that the legal impediment to the sexual connection between them had been removed. The mere fact, however, that Mst. Nemat Jan in her statement said that the appellant had told her that he had "murdered" her husband is no ground for holding that the death of Gheba was not caused in the manner alleged by the appellant but in that alleged by the prosecution.
With regard to the actual occurrence there is no direct evidence, because not having seen the attack on her husband Mst. Nemat Jan could not depose as to how it had begun. It is possible that the death of Gheba was caused by the appellant as a result of a conspiracy between the two paramours to do away with him so that they could either marry or live together without any valid objection from anybody but there is no evidence with regard to that conspiracy. The learned counsel for the appellant wanted an inference to be drawn against the prosecution from the fact that when Mst. Nemat Jan went to Miskin and Faqir she did not tell them that the appellant had asked her to elope with him but this reticence of hers is by no means inexplicable. If she had told Miskin and Faqir that after killing her husband the appellant had asked her to elope with him it would have amounted to an admission that she had illicit intimacy with him because no murderer of a man could have the audacity to go to the wife of the murdered man and tell her to elope with him as he had murdered her husband, unless the wife were either in league with the murderer or his paramour. The mere fact, therefore, that Mst. Nemat Jan did not tell Faqir and Miskin that she had been asked by the appellant d, J to elope with him would not be of any assistance to the defence. Nor do I think is there any force in the contention of the learned counsel for the Crown, that because the appellant told Mst. Nemat Jan that he had "murdered" her husband the plea of the appellant that he had killed Gheba when he was attacked was false, because it is obvious that what the appellant intended to tell his paramour was that her husband had died at his hands and it cannot be presumed that he wanted to convey that it was a murder in the legal sense.
The learned counsel for the Crown also contended that as the appellant had not told Mst. Nemat Jan when he went to her soon after the death of Gheba that it was after he was himself attacked that he caused injuries to her husband, it must be held that the plea which the appellant took at the trial was baseless. I find no force in this contention, because on account of her intimacy with the appellant she must have been suspected by the villagers and the police of a hand in the murder and to save herself may keep back things favourable to the appellant.
With regard to the nature of the offence, if any, com mitted by the appellant one has, therefore, to take his statement as a whole, because if the Court acts on the statement of an accused person alone it cannot use the inculpatory part against the accused without giving him the benefit of the exculpatory part unless it is proved that the exculpatory part is false. In support of his contention that the exculpatory part of the confession was, at least to a certain extent, false, the learned counsel for the Crown referred to the statement of Mst. Nemat Jan (P. W. 12) wherein she had said that the handle of the khunda, which weapon was stated by the appellant to have been used by the deceased, did not belong to her husband. I am, however, not prepared to place implicit reliance on the statement of the woman with regard to this matter because, as I have already indicated, it was not beyond the realm of possibility that the death of Gheba was caused as a result of a conspiracy between the appellant and Mst. Nemat Jan and if that was so and she was suspected of the conspiracy she would, in order to save her own skin, make the case against the appellant as strong as possible. In one part of his judgment the learned trial judge conceded that if the conviction of the appellant were to be based on his statement alone its exculpatory parts could not be kept out of consideration unless it were established that they were false, but said that as the con viction was not being based on the confession alone the rule of taking the confession as a whole had no application. As I have not been able to find any evidence on the record which would establish that the appellant killed Gheba, I cannot agree with the learned trial Judge that the con fession was not the sole basis of the conviction, and will proceed to consider the confession and see if it proved any offence against the appellant.
The learned counsel for the appellant urged that if the confession of the appellant were to be accepted, he must be deemed to have acted in the exercise of a right of private defence of his person because he caused injuries to the deceased after he had been attacked. The statement the appellant made in the Court of the trial judge makes it clear that the khunda which the deceased carried had broken and become useless as a weapon of offence. The deceased was allegad to have taken out a knife and to have caused injuries with it. The injuries found by Doctor Manzur Hussain (P. W. 2) on the person of the appellant on the 5th of April 1954, were as follows :‑
(1) An incised wound, " x 1/16" x skin deep, on the front of left thumb lower part. Margins were clean cut and wound was tapering at both ends. Slight oozing of blood was present.
(2) An incised wound, " x 1/16" x skin deep on the front of right index finger, middle part. Margins were clean cut. No bleeding present.
(3) An abrasion, " x ", on the front right knee. Nature of injuries was simple. Injuries Nos. 1 and 2 were caused by a sharp weapon and injury No. 3 by a blunt weapon. Probable duration of the injuries was about 24 hours.
There is some force in the contention of the learned counsel for the Crown that these injuries did not appear to have been caused by some one attacking the appellant but looked like having been received by the appellant when he was himself using the weapon, but as the first two injuries may well have been caused by another man, it cannot be held that the statement of the appellant that the injuries were caused by the deceased was proved to be false.
Learned counsel for the Crown argued that as Fazal Dad had trespassed into a field of the deceased and the deceased, knowing that he had illicit intimacy with Mst. Nemat Jan, would naturally infer that the appellant was in the vicinity of the jandar late at night for committing adultery, the deceased had a right of private defence and, therefore, when he attacked the appellant the latter did not have any right of private defence. Even if I accept the contention of the learned counsel for the Crown that the deceased suspected that the visit of the appellant was with the purpose of committing adultery and assume that the land in which the assault was committed was in the possession of the deceased, the right of private defence that accrued to the deceased would not be unlimited. The right of private defence, if it accrued, would be governed by sections 101 and 104 of the P. P. C. and be subject to the provisions of section 99 which lays down, inter alia, that the right of private defence can in no case extend to the inflicting of more harm than it is necessary to inflict for the purpose of defence. The appellant had made no assault on Mst. Nemat Jan and, therefore, section 100 of the P. P. C. could have no application, nor could section 103, which deals with the right of private defence of property, have any application because none of the provisions of that section could be made applicable to the case which the learned counsel for the Crown wants to set up for the deceased. It being at most a case of a trespass on land the deceased could not voluntarily cause death and if he attempted to do So, it is obvious that he was guilty of an offence. If a person who has a right of private defence exceeds it he commits an offence and the person against whom that offence is about to be committed cannot be deprived of the right of private defence simply because the other person had a right of private defence to some extent. If the law were as urged by the learned counsel for the Crown a person who attempts to commit a simple assault on another will not be able to defend himself without committing an offence if that other wants to shoot him down for the trivial assault that he intended to commit though the act of the man who wants to shoot would be an offence if it were done. t am of the view that as soon as the force used in the exercise of right of private defence exceeds the limits within which the law allows it to be used the person against whom the excessive force is sought to be used becomes entitled to use force in order to save himself from a harm which the other has no legal right to inflict on him. I would hold, therefore, that the mere fact that the deceased may have had a right to order the appellant off his land would not give him a right to assault the appellant in a manner that will give the appellant reasonable ground for apprehending that unless he acted promptly either death or grievous hurt, neither of which could be caused by the deceased in the exercise of the right of private defence, would be the result. As it must be assumed that the deceased was armed with a khunda and a knife it can be safely held that if the appellant entertained an apprehension that unless he acted promptly he would receive a serious injury which, if it did not prove fatal, would at least amount to grievous hurt, the apprehension was by no means unreasonable and the appellant would have a right of private defence of his person.
That, however, does not conclude the matter because it is the appellant's own case that it was after he had disarmed the deceased that he caused injuries to him. As soon as the deceased had been disarmed and the appellant was holding the knife, the right of private defence of person, which accrued to the appellant in the beginning, could not be said to continue as section 102 of the P. P. C. will be attracted. This section lays down that the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises and continues as long as such apprehension of danger to the body continues The danger to the body of the appellant came to an end when he disarmed the deceased and after that it was not necessary to inflict injuries to the deceased with the knife or with the khunda. If a person in possession of a formidable weapon, as the appellant in this case was, thinks that his adversary who is unarmed can do him any harm, the apprehension cannot be reasonable and if the armed man claims that he acted in the exercise of the right of private defence of person he has to place before the Curt the circumstances which made him entertain an apprehension which would not be ordinarily entertained. Placed as the appellant was with regard to the deceased at the time when he attacked the deceased he could not have had any appre hension of any harm and the right, of private defence which had accrued to him had come to an end. The body of the deceased when subjected to post‑mortem examination by Dr. S. M. Moonis (P. W. 1) on the 5th of April, 1954, at 3‑30 p.m. was found to have no less than 18 incised wounds on different parts and it will be stretching the point almost to its breaking to say that all these injuries were reasonably considered necessary for the purpose of defence. The number and nature of injuries prove that the appellant intended to cause the death of the victim and as the act which caused death was not merely in excess of the right of private defence s but a palpable pretext of the exercise of that right the case falls within the definition of murder and the conviction of the appallant under section 302 of the P. P. C. is upheld.
The question of sentence presents some difficulty. On the one hand is the fact that it was the murder of a husband by a paramour of the wife which kind of murder ordinarily calls for the exaction of the extreme penalty. On the other hand, there is the fact that the deceased attacked the appellant though he could have easily avoided doing so. Considering all the circumstances I am of the view that the sentence of death was not called for. Consequently, while maintaining the conviction of the appellant under section 302 of the P. P. C., I reduce the sentence to one of transportation for life and decline to confirm the sentence of death.
I agree.
A. H. Sentence reduced.
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