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Criminal Appeal No. 575 of 1969, decided on 7th August, 1983.

--S. 100 & 304 (1I)-Right of private defence of person, extent of- Accused party attacked first and accused giving a single blow on head of deceased with kassi, using in loading manure in a cart-Situation demanded of accused to do something not only to save himself but also his aged father-Motive part of pro secution story also not believed by trial Court-Held: A case of self-defence falling under S. 100, secondly, P. P. C.--Con viction and sentence under S. 304, Part II, P. P. C. set aside, in circumstances.-[Private defence, right of].

Muhammad Farooq for Appellant.

Muhammad Amin Khan for A. G. for the State.

Dates of hearing: 22nd, 30th and 31st July, 1983.

This is an appeal by Mansab Ali son of Ibrahim, caste Arain, resident of Chak No. 336/G. B., P. S. Rajana, district Layallpur, against his con viction under section 304, Part-II; P.P.C. as recorded by Muhammad Mian, the then Additional Sessions Judge, Layallpur, in his judgment, dated 5-7-1969 awarding him R. I for two years.

2. The occurrence took place at 5 p. m., on 7-6-1968 outside the house of the deceased Umer Din where he and his sons Muhammad Sharif, Bashir Ahmad and Nazir Ahmad were sitting. The appellant Mansab Ali, his brother Asghar Ali and father Ibrahim were all loading manure nearby. Suddenly, Ibrahim and Asghar Ali caught hold of the deceased Umer Din whereas appellant Mansab Ali struck a blow with kassi on his head resulting in his instantaneous death. The informant Muhammad Sharif and his brothers stopped in to rescue their father, but were hit back by the accused causing injuries to Nazir Ahmad and Bashir P. Ws. On their alarm. Noor Muhammad and Naseer Din P. Ws. turned up and saw the occurrence. It was reported to the Police the same evening at about 7-30 p. m. by Muhammad Sharif. The motive stated therein was that the deceased, who was a real brother of the accused Ibrahim, had purchased land from their three out of five sisters, thereby by causing annoyance to him and, therefore, they hit them out of vengeance.

3. The post-mortem examination showed that the deceased's skull bones were fractured resulting in his death. Besides, two persons on each side suffered number of injuries, which were excepting one, simple blunt weapon and of the same duration.

4. The appellant's father Ibrahim, brother Asghar Ali and Bhanja Muhammad Anwar were also initially arrayed but Anwar Ali was dis charged by the Committing Magistrate. Later, in the trial Muhammad Ibrahim and Asghar Ali were acquitted whereas the appellant Mansab Ali was convicted.

5. P. Ws. tried to support the version that they had been attacked by the appellant, etc. The defence version conversely was that the deceased with his sons came down to the accused to stop them from lifting their manure on a claim that it belonged to him, and when they refused, they fell upon them resulting in an exchange of blows with whatever sorts of sticks came to their hands and thereby caused injuries to each other.

6. There was a clear shift on the part of the P. Ws. showing that their deceased father Umer Din had been badly lifted to a distance of four to five Karams from their house. This version did not find mention before the Police nor even before the Committing Magistrate. It was introduced during trial to give an impression that the deceased had been dragged to the locale which incidentally fell nearer the pit of the appellant's manure. This improvement on the part of the prosecution corroborated the view that the fight was not pre-planned and that it erupted when the accused were prevented from taking away their own manure. If really the accused had to attack the deceased Umer Din at his door stood, they would have brought with them weapons of certain types and correspondingly the injuries would have been entirely different. The fact that the deceased sustained a singular fatal blow suggested that the idea was not to perpe trate a designed attack. Ibrahim accused being his elder brother of 75 would have at that stage of his life taken care to avoid any furore involving himself, his sons and nephews, etc.

7. The motive as stated by the prosecution was not believed by the learned trial Judge and rightly too. He thought that the defence plea was more probable but then took the view that there was some excess in the exercise of self-defence. To say that Ibrahim accused had an objection to the purchase of land by the deceased Umer Din from sisters ten years ago, was indeed not much inspiring. Efflux of such a long time ever since would have certainly reduced its pungence. Further, it is on the record that daughters of those sisters were married to the sons of the deceased and thus in a way he was comparatively poised nearer them as compared to the accused Ibrahim. This too was a factor which weighs against the motive advanced by the prosecution. When once it was doubted and the opposite version was considered inspiring, the question to be determined was how far the appellant could measure up his right of self-defence in a right scale. Apparently, they were attacked first as the venue happened to be nearer their manure. The kassi applied by the appellant to the deceased was an implement naturally used by him in loading manure on the cart. It negatived the contention that he had brought it with a purpose. When they were confronted with injuries, particularly on his father, aged 75, I think he was well within his right to apply it, and if he did only it, once there was no excess of the right of defence. The situation demanded of him to do something not only to save himself but also his father etc. It was ruled in Ali Muhammad v. The State (1968 P Cr. L J 60) and Jalla and another v. The State (1968 P Cr. L J 1022) that in such an event, it is difficult to modulate the blow inflicted in defence in any golden scale so as to avoid disproportionate damage. The decision has to be taken in a heat of moment leaving no time to ponder about the quantum of force to be used in defence and hence even if there be a little excess, the law is not meticulous about it. The prosecution case was discredited over motive and two out of the three accused were acquitted, by the lower Court. It seems to have caused an irretrievable dent to it. In this background to hold that the appellant failed to modulate his blow to keep it within limits, was in fact too much to expect of him. It is germane in the exercise of such a right that he has to be allowed a measure of concession.

9. I am unable to subscribe to the view adopted by the trial Court. It turns out to be a case of self-defence falling under section 100. Secondly P. P. C. Accordingly. I allow the appeal, set aside the conviction and the sentence of the appellant and acquit him. The appellant is already on bail. He shall stand discharged from his bail bonds.

S. G. D Appeal allowed.

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