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Criminal Appeal No. 32 of 1979, decided on 9th March, 1980.

--- Ss. 304 (II) & 100--Appeal (criminal)-Private defence, plea of- Accused attacked by deceased and his brother and suffering a lacerated wound on top of his head by a blunt weapon in nature of a heavy sota besides contusion marks-Accused very much hard pressed in his defence and going to extent of even biting deceased-Infliction of injuries by accused to deceased held, appears to be justified and accused acted in exercise of right of self-defence of his person-Conviction and sentence set aside, in circumstances.---[Private defence, right of].

Muhammad Yagoob Sheikh for Appellant.

Sh. Zia-ud-Din for A.-G. for the State.

Dates of hearing: 23rd February and 1st March, 1980.

Rashid and Ismail were tried by the Sessions Judge, Sialkot, under section 302/34, P. P. C. for the murder of Nazir Ahmad deceased. By his judgment dated 7th December, 1978, the learned Sessions Judge convicted Rashid under section 304-II, P. P. C. and sentenced him to five years' rigorous imprisonment and a fine of Rs. 1,000 or, in default of the payment of fine, to undergo further rigorous imprisonment for one month and to also pay compensation of Rs. 1,000 to the legal heirs of the deceased under section 544-A, Cr. P. C. or, in default thereof, to undergo rigorous imprisonment for one month. Ismail accused was given the benefit of doubt and acquitted of the charge. Tile appeal of Rashid convict is now before me for disposal.

2. The brief facts of the prosecution case are that on 1-9th January 1978, at evening time, Khurshid, P. W. 8 the complainant alongwith his younger brother Muhammad Yaqoob (P. W. not produced) was coming back to his house situate in village Mianwali from the brick kiln of Abdullah where they worked for transporting bricks with the donkeys. Nazir deceased their brother also joined them from near the bridge of the canal. When they reached near the village, the complainant and Muhammad Yaqoob (P. W. not produced) stopped on the road side, whilst Allah Rakha, P. W. 10 and Nazir deceased proceeded ahead. When the deceased was at a distance of 100 yards from them, all of a sudden Ismail and Rashid accused emerged. Ismail accused caught hold of Nazir deceased in his fold and Rashid accused injured him with knife, hitting him on his chest and left flank. Ch. Bashir Ahmad, P. W. 9 resident of village Mianwali came there and he also witnessed the occurrence. Rashid accused was apprehended by them alongwith the knife, while Ismail accused ran away. Nazir died on the spot due to the injuries. Leaving the other P. Ws. with the dead body, Khurshid, P. W. 9 proceeded to the Police Station Satrae and lodged the F. I. R. Exh. P. F. there on the same date at 6-30 p. m. The motive for the occurrence was that Rashid accused demanded the hand of the daughter of Inayat, the elder brother of Khurshid, P. W. 8 who was dead, and Khurshid, P. W. 8 and his brothers were not willing to give her band to him and due to this grievance, the accused had murdered Nazir deceased.

3. At the trial Rashid appellant in his statement under section 342, Cr. P. C. admitted having caused injuries to Nazir Ahmad deceased in self-defence. The learned trial Judge, whilst rejecting the prosecution evidence and accepting the version of Rashid appellant, held that he had exceeded his right of private defence by inflicting injuries with knife on the person of the deceased. The only point raised in this appeal is whether Rashid appellant was justified in inflicting the injuries which he did and is entitled to an acquittal or whether he exceeded his right of self defence and his conviction and sentence should be maintained.

4. I have heard the arguments of the learned counsel for the appellant and the State and have also perused the record. The prosecution case has been rightly rejected and this need not bother me any further, Moreover, there is no appeal against the State as regards the non-convic tion of the appellant under section 302, P. P. C. The only question, therefore, that arises is whether the appellant vas entitled 'to inflict the injuries, which he did, on the deceased in his self defence. According to the statement of the appellant under section 342, Cr. P. C, he had gone to village Mianwali a few days before the occurrence in order to see his sister Mst. Inayat Bibi. He was staying with her in her house. A few days before the occurrence Nazir Ahmad deceased had threatened him not to visit village Mianwali as he and his brother Khurshid, P. W. 8 wanted to resile from their commitment of engaging their niece Mst. Salima Blbi with him, and they wanted to give her band in marriage elsewhere. Due to this reason they did not like him to visit village Mianwali at all. On the day of occurrence Nazir Ahmad deceased accompanied by his brother Bashir called him out from his sister's residence and attacked him with sotas and inflicted injuries on his person. When they were going further to attack him, he apprehended immediate death at their hands and inflicted injuries on the person of Nazir Ahmad deceased in the exercise of his right of defence of his person. The appellant denied the recovery of knife P. 4 at his instance. He submitted that he had only used a penknife and that the knife P. 4 was planted on him. Dr. Muhammad Nawaz Chaudhry P. W. 5 found the following injuries on the dead body of Nazir Ahmad deceased during the post-mortem examination

(1) Incised wound " x ' chest cavity deep on the outer side and front aspect of middle of left chest about 2" below and outer to left nipple.

(2) Incised wound, " x ' chest cavity deep on the front of left chest 2 " below the left nipple and 1" above and front of injury No. 1.

(3) A contusion 1" x " on the front of left side of head close to the upper border of the forehead.

(4) Two abrasions " x 1/6" each on the left side of nose in its middle

(5) Teeth bite 1" x 1" round on the front of left shoulder joint.

On the same day he also examined Rashid appellant and found the following injuries on him

(1) Lacerated wound " x " skin deep on the top and left side of head close to the midline.

(2) Abrasion with contusion, " x " on the front and middle of upper lip.

(3) Contusion, 5 x 4 , on the outer front and upper part of left shoulder near the upper end of the arm.

(4) Contusion, 3" x 1", on the front of right thigh in its lower part.

(5) Abrasion, ' x ", on the front and middle of right leg.

(6) Abrasion 1" x ", on the front of left knee joint.

The appellant of only suffered a lacerated wound on the top left side of his head but two contusion marks 5" x 4' and 3" x 1 on the top left shoulder and lower right thigh apart from three abrasions on the upper lip, right leg and left knee joint respectively. The dimensions of the contusions clearly show that formidable blunt weapon in the nature of a heavy sota was used. Since the appellant suffered a lacerated wound on the head the fact that he had a reasonable apprehension that death or grievous hurt may ultimately result, cannot be entirely excluded. The teeth bite mark on the person of Nazir Ahmad deceased also shows that the appellant was very much hard pressed in his defence and he went to the extent of even biting the deceased. In such a situation, the appellant could not have measured the extent or nature of his action in golden scales. Even otherwise, the statement of the appellant must be read as a whole. According to his statement, he was attacked by the deceased and his brother with sotas. In these circumstances, the infliction of injuries by the appellant to the deceased appears to be justified. The appellant appears to have acted in the exercise of his right of self defence of his person and he is, therefore, not guilty of any offence.

5. For the foregoing reasons, this appeal is accepted and the convic tion and sentence of Rashid appellant is set aside. He shall be released forthwith, if not required in any other case The fine and/or compensa tion, if realised from him, shall be refunded to him.

Appeal allowed.

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