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Criminal Appeal No. 111 of 1955 decided on 28th March 1956 under section 417 Cr. P. C. against the order of Haji Muhammad Khan, Additional Sessions Judge, Peshawar, dated 4th May 195.

S. 102‑Commencement of right of private defence of body‑Reasonable apprehension of danger, not actual blows struck by assailant.

The right of private defence .of body commences the moment a person apprehends danger from his assailant, he need not wait to be attacked first.

If an assailant comes forward with a dagger in hand to attack another the latter having a reasonable apprehension of danger need not wait till the assailant has actually delivered the blow. If the person attacked forestalls the assailant and delivers a blow on him the latter has no right of private defence. He cannot excuse his fatal blows delivered with the dagger on his viction by taking the plea that he had only exceeded the right of private defence.

‑Appeal from acquittal of murder charge ----Practice of Peshawar Bench‑Not to award capital sentence.

Muhammad Ali Additional Advocate‑General, for appellant.

Arbab Muhammad Asif, for respondent.

‑Muhammad Qayum, of village Jalbai, police station Lahor, district Mardan, was acquitted by Mr. Haji Muhammad Khan, Additional Sessions Judge, Peshawar, of a charge of murder. The Government has appealed through the Additional, Advocate General against the acquittal. The accused, who was issued a notice, is present, and we have heard his counsel, Arbab Muhammad Asif Advocate.

Umar Khitab deceased was a first cousin of the accused. There was no previous enmity between them. The evidence on record reveals that when the deceased went to his field on the morning of occurrence, he found that some of the reed saplings planted by him had been uprooted by Zar Khitab, a minor son of the accused. The deceased gave Zar Khitab one or two slaps. The latter went to his father (accused) and informed him of the incident. The accused immediately came to the field of the deceased with a dagger in his hand. It is alleged that on seeing the accused approach him armed the deceased struck him with his spade, whereupon the accused delivered the deceased dagger blows. The deceased was fatally injured, and he expired shortly after on the spot. The accused then left the place and went away. Zarwali (P. W. 8), a minor son of the deceased, aged about 8 years, was present throughout with his father and witnessed the fight.

Redi Gul (P. W. 6) and Moibullah ;(P, W. 7), relations of the deceased, also claim to have seen incident from a short distance while busy removing reaped gram bundles of the deceased from his field to the village on a donkey. Redi Gul informed Mehbab (P. W. 5), brother of the deceased, who after visiting the spot, left for police station and lodged a report with Muhammad Aslam Khan S. 1. (P, W. 12) whom he met in village Manki.

The accused completely denied the charge in the trial Court and stated that he had gone away from the village in search of livelihood, and when he returned to his village at night time after the occurrence, he tumbled down in the dark, and sustained an injury.

According to the medical evidence, the deceased had (1) an incised wound, 1" x 1/3", on the front and right side of his chest between the 2nd and 3rd ribs, (2) an incised wound 3" long, with space between the thumb and index finger of the left hand. All the tissues were cut. The wound was 1 " deep; and (3) an incised wound 1" x , on the bridge of the nose, cutting through the cartilage. Great vessels of the chest were cut through. In the opinion of the doctor, the death was due to haemorrhage resulting from the cutting of the great vessels of the heart.

The accused, when examined by a doctor, was found to have a contusion, 1 " x 1 ", below and outside the left eye.

The learned trial judge accepted the evidence of Zarwali (P. W. 8) as true so far as the prosecution story was. concerned, but he was of the view that as the deceased was the first to deliver a Belcha blow to the accused, the latter was perfectly justified in exercise of the right of self‑defence to give dagger blows to the deceased and kill him. He was further of the opinion that two of the blows were delivered to the deceased when he was alive and the third when he was dead. In arriving at this conclusion he completely ignored the background of the incident and the medical evidence. If the evidence of Zarwali (P. W. 8) is relied upon as has been rightly done by the learned trial judge, then, there is no escape from the conclusion that it was the deceased, and not the accused, who acted in exercise of the right of private defence.

As already pointed out above, the medical evidence leaves no room for doubt that all the three injuries sustained by the deceased were caused to him when he was alive. The injury on his chest was definitely fatal, because his heart‑vessels had been cut. The injury on his nose was also griveous, because the cartilage had been cut through and the wound had resulted in disfiguration. On the other hand, the injury sustained by the accused was a contusion, simple in nature, and caused‑with the blunt side of a spade, when these injuries are considered in conjunction with the events immedi ately preceding the fight it becomes quite clear that the accused had no right, whatsoever, to attack the deceased.

It will be recalled that Zar Khitab, minor son of the accused, had pulled out the reed saplings planted by the deceased some time before the occurrence. This fact is proved by the evidence of the investigating officer, who actually found some of these uprooted saplings lying in the field of the deceased, and some of them in the field of the accused, when the deceased learnt that his reed saplings had been uprooted by Zar Khitab, he gave him a few slaps. Zar Khitab informed his father, the accused, who soon after came to the field of the deceased with a dagger in his hand. It is evident from the conduct of the accused that he had come to the field of the deceased with a view to taking revenge. It does not take great efforts at imagina tion that when the deceased saw the accused armed with a dagger, he must. have quite naturally apprehended danger at his hands because the accused had arrived there for no other purpose than to assault him. Under the law, the moment a person apprehends danger from his assailant, he need not wait to be attacked first, and then to deliver al counter‑blow in exercise of the right of self‑defence, because, if he did it, it is possible that as a result of the assailant's blow he may not have an opportunity at all defend his person. In the present case it was not necessary for the deceased to wait until the accused had first stabbed him with the dagger, which he was carrying in his hand. He was perfectly justified in delivering a blow with a spade before he was stabbed. It is important to note that the deceased gave only one blow, and that too with the blunt side of a spade, while on the other hand, the accused gave three blows to the deceased, and the last one when he had fallen on the ground. The statement of Zarwali (P. W. 8) on this point is so clear and straightforward that it is impossible to arrive at any other conclusion except that the deceased gave a blow to .the accused only when he was appre hending danger to his life at his hands.

The learned counsel for the accused‑respondent has contended that at the most his client has exceeded the right of private defence. We are unable to share his view, because the accused had adopted an aggressive attitude from the very beginning when he armed himself with a dagger, and came to the field of the deceased, to attack him. He delivered the deceased no less than three blows. The matter was so trivial, in view of the close relationship between the parties, that the accused should have better ignored the incident. In our opinion, the question of exceeding the right of private defence does not arise in the case.

For the aforesaid reasons, we accept the appeal, set aside the acquittal of the accused‑respondent, and convict: him of murder under section 302 P. P. C. It is not the' practice of this Court to award capital sentence in such cases when an appeal against acquittal, is accepted. Consequently, we sentence the accused‑respondent to transport ation for life. '

A. H.

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