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Criminal Revision No. 237 of 1968, decided on 18th February, 1984.

--- S. 304 read with S. 100-Private defence, right of-Accused receiving four injuries on his person out of which two on bead while co-accused giving single blow to deceased proving fatal on third day after occurrence--Defence version that both deceased and a pro secution witness caused injuries to accused, appearing plausible --Accused, held, could not be said to have exceeded their right of private defence, in circumstances- Conviction and sentence set aside.-[Private defence, right of].

-- S. 363-Kidnapping, offence of-Father, held, legal guardian of minor and deemed in law to be in constructive custody of minor-- Taking away of child by father not being for immoral or unlawful purpose, no offence under S. 363, P. P. C., held further, made -)ut against him.

Ch. Muhammad Abdul Wahid for Petitioners.

Ch. Altaf Muhammad Khan for the Slate.

Date of hearing: 29th January, 1984.

Suleman (44) and Chhotu (25) sons of Imam Din, residence of Chak No. 72-A/S. B. Police Station Saddar Sargodha, were tried by the learned Sessions Judge, Sargodha, under sections 302, 323 and 363 read with section 34, P. P. C. on the allegation that on 8th October, 1965, abut peshiwela, in the area of Chak No. 72-A/S. B. in furtherance of their common intention, they committed the murder of Moman deceased, voluntarily caused simple injuries to Muhammad Shafi P. W. and kidnapped Mst. Saidan, aged one and a half years, from the lawful guardianship of her mother Mst. Shanti. By judgment dated 20th March, 1968 they were convicted under sections 304 (Part-11, 323 and 363 read with section 34, P. P. C. Under sections 304 (Part II)/34, P. P. C. they were sentenced to R. I. for five years each, under section 323/34, P. P. C. to R. I. for three months and under section 363/34, P. P. C. to R. I. for one month each with the direction that all the sentences shall run concurrently. The convicts have appealed.

2. The F. I. R. version is that 10/12 years prior to the occurrence Mst. Shanti daughter of the complainant was married to Suleman accused. About three months prior to the occurrence Suleman accused divorced her and she alongwith her daughters Mst. Nasreen and Mst. Saidan aged one and a half years started living in the house of her father in Chak No. 72-AM B. Another daughter of the complainant was married with Chhotu accused. She was also divorced. Suleman accused demanded the custody of her daughters but the complainant did not concede to his demand. On 8-10-1965 Suleman and Chhatu accused who were then residing in village Tangowali came to Chak No. 72-A/S. B. At about peshiwela Suleman accused picked up Mst. Saidan, aged one and a half years, when she was playing outside. On seeing the accused, Mst. Shanti raised alarm, upon which Abdul Ghani complainant and his brother Moman deceased chased the accused and overtook them near the Saim Nala. Moman deceased had a piece of wood in his hand with which he gave a blow to Suleman accused. The piece of wood broke down. Then Chhotu accused gave a soti blow to Moman on the right temple as a result of which he fell down. He also advanced a threat of death to the complainant who did not go near him out of fear. In the meantime, Muhammad Shafi P. W. also reached there. Suleman accused gave him lathi blows on the head and hand. Suleman P. W. also saw the occurrence. Both the accused then took away Mst. Saidan. Soon after, Moman deceased got up. He was taken to his house. He had no visible injury except the swelling on the right temple. On the night between 9/10th October, 1965 his condition deteriorated upon which he was taken to D, H. Q. Hospital, Sargodha, but on reaching there he succumbed to the injury. Leaving the dead body in the hospital, Abdul Ghani complainant reported the occurrence at Police Station City at 10-30 a.m. vide F. I. R. Ex. P. E.

3. Rana Ahmad Salim, S. H. O., Police Station Sadar Sargodha, investigated this case. He reached the spot on 10-10-1965. On the night between 11/12th October, 1965 he raided the house of the accused and got recovered Mst. Saidan who was sleeping with her father Suleman accused. He arrested both the appellants and recovered lathi (P. 1.) from Suleman accused vide memo. Exh. P. B. and lathi (P. 2) from Chhotu accused vide memo. Exh. P. E. P. C. Suleman accused was in injured condition. He got him medically examined. After investigation the accused were challaned under section 304, P. P. C.

4. On 10th October, 1965 Dr. Munawwar Ahmad, Medical Officer, D. H. Q. Hospital, Sargodha, conducted the autopsy on the dead body of Moman deceased and found a swelling 4" x 3" on the right side of skull, extending from just above the ear forward to the forehead with contusion mark 3" x 1". Right eye and the upper and lower lids were blue. There was fracture of frontal temporal and parietal bones. In the opinion of the doctor, death was due to shock and haemorrhage resulting from injury No. 1 which was sufficient to cause death in the ordinary course of nature.

On 11th October, 1965 Dr. Izhar-ul-Haq examined Muhammad Shafi P. W. and found two injuries on his persons. Both the injuries were caused by blunt weapon and were declared simple in nature.

On 12th October, 1965, Dr. Riaz-ud-Din, Medical Officer, D. H. Q. Hospital, Sargodha, examined Suleman accused and found four injuries on his person, simple in nature, caused by blunt weapon.

5. In support of its case the prosecution examined four eye-witnesses, namely, Mst. Shand, Abdul Ghani, Shafi and Suleman. It also relied on the evidence relating to recovery of Mst. Saidan from Suleman accused and that of lathis from both the appellants.

6. The appellants pleaded not guilty to the charge. They admitted that they had divorced the daughters of Abdul Ghani complainant. Suleman appellant, when asked to explain his injuries, made the following state ment:

I was shifting from the village on fear of the parents and other relations of Mst. Shanti and was carrying my luggage when I was stopped on the way by Shafi P. W. and Moman deceased who were armed with dangs and they gave me blows claiming that I was taking the luggage belonging to Shanti. In the process Moman and Shafi received injuries.

Chhotu appellant stated that he had been implicated due to enmity. However, in the committing Court he admitted his participation but gave a counter-version of the same as under

" .. ...When we two brothers were going Moman deceased and Shafi P. W. armed with lathis attacked us and caused injuries to Suleman.

At last, his lathis broke down at which I gave one lathis blow to Moman deceased for saving my brother."

Suleman appellant examined three witnesses in defence.

7. After examining the evidence on the record, the learned trial Judge came to the conclusion that the injury to the deceased was caused in self- defence when he attacked Suleman accused. He was, however, of the view that since the injuries caused to Suleman by Moman deceased were simple, the right of private defence did not extend to the causing of death. He, therefore, convicted and sentenced the appellants as mentioned above.

8. The learned counsel for the appellants contends that Suleman appellant had four injuries out of which two were on the head and Chhotu appellant had given only one blow to the deceased, therefore, the right of self-defence was not exceeded. He further submits that Mst. Saidan aged one and a half years eras the real daughter of Suleman appellant, therefore, even if the allegation that he had taken her away, is accepted as correct, no offence under section 363, P. P. C. is made out. The learned State counsel supports the judgment of the trial Court.

9. No appeal or revision has been filed to question the finding of the trial Court that Chhotu appellant had caused the solitary injury in exercise of the right of self-defence. At the trial Abdul Ghani complainant made an improvement saying that the deceased gave 2/3 blows to Suleman appellant when the accused were about to attack him. He was confronted with the F. I. R. wherein it was not so recorded. According to the F. I. R. it was Moman deceased who opened the attack by causing injury to Suleman accused with a piece of wood. Suleman accused had four injuries on his person, out of which two were on the bead. In the circumstances the appellants could reasonably apprehend that death or grievous hurt would be the consequence of the assault if the attack was not repelled. Chhotu appellant gave only one blow to the deceased which unfortunately proved fatal on the third day. He did not repeat the blow. In the circumstances, the appellants cannot be held to have exceeded the right of private defence.

In the F. I. R. the complainant stated that the deceased gave on blow to Suleman appellant with a piece of wood. As already mentioned, Suleman had four injuries. The defence version that both Shafi and the deceased caused injuries to Suleman appellant, is plausible. The appel lants were, therefore, justified in hitting back Shafi P. W.

10. As for the charge of kidnapping, Suleman appellant is the real father of the minor girl, namely, Mst. Saidan. Under the Muhammadan Law the father is the legal guardian of the minor and is deemed in law to be in constructive custody of the minor. The taking away of the child was not for any immoral or unlawful purpose. In the circumstances, nor offence under section 363, P. P. C. is made out.

11. For the foregoing reasons this appeal allowed, the conviction and sentence of the appellants is set aside and they are acquitted of the charge. They are on bail. They shall be discharged from their bail bonds.

S. G. D. Appeal allowed.

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