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-----Ss. 302/34 & 300, Exception 4‑Accused stabbing deceased with a knife when grappling between his father and deceased was going on‑Plea, that accused believed in good faith that his father was being hurt, neither appearing in his statement nor suggested to witnesses in cross‑examination‑Accused in his mistaken belief imagining a situation which did not exist and could not be called a reasonable apprehension of such a harm to his father which called for an attack with a knife‑Accused was not a party to grappling going on ; he was neither hit nor caught by any one ‑Conduct of accused in stabbing deceased not justified and his case not falling within Exception 4 to S. 300, Penal Code ‑ Conviction and sentence of imprisonment awarded to accused under Ss. 302/34, Penal Code, maintained in circumstances.

(b) Penal Code (XLV of 1860)‑‑

‑‑‑ S. 302/34‑Case of accused standing on different footing than that of co‑accused‑Accused allegedly attacked deceased with a stick but stick which he was stated to have carried was produced before police over about a month and a half after occurrence‑Such fact and other circumstances in case casting doubt on part ascribed to accused by prosecution‑Accused given benefit of doubt and acquitted.

(c) Penal Code (XLV of 1860)

‑‑ S. ;00, Exceptions‑Self‑defence, exercise of right of‑When accused did nut take up plea of self‑defence in his statement but circumstances appearing in evidence indicated that it was a case of exercise of right of self‑defence, its benefit, held, would always be extended to accused.‑[Private defence, right of].

(d) Penal Code (XLV of 1870)‑

‑‑‑ S. 300. Exceptions‑Right of self‑defence‑Right of self‑defence not to be weighed in golden scales‑Accused, held, must show that there was a reasonable apprehension of such harm that extended to him right of self‑defence.

Q. M. Salim for Appellants.

Abdur Rashid for the State.

Dates of hearing : 3rd and 5th November, 1985.

Nazeer (55) and his son Muhammad Rashid (15) were tried for the murder of Muhammad Yusuf and for having murderously assaulted Mst. Chiragh Bibi. On 12‑2‑1983. Additional Sessions Judge, Lahore, convicted both under sections 302/34, P. P. C. and sentenced them to imprisonment for life with a fine of Rs. 5,000 in default to undergo one year's R. 1. each. Fine, if realised, was ordered to be paid as compensation to the heirs of the deceased. The appeal of the convicts is before me.

2. Muhammad Yusuf (deceased) had a grosser shop in Fazlia Colony. Rasheed (accused) was a hawker and used to ply his Rehri in front of their shop. This was objected to by Yusuf deceased on several occasions. A day before the occurrence and a day before that, they had stopped the accused from parking the Rehri there but the accused paid no attention to it. On 28‑7‑1982 at 12‑30 p.m. Rasheed again parked the Rehri in front of deceased's shop. Deceased's son Tufail pushed it away, upon which they exchanged abuses. Rasheed left for his house saying that he would deal with him. After about 10/15 minutes, his father Nazeer armed with a stick and Rasheed with a Churri in his hand appeared there. Nazeer aimed the stick at the head of the deceased who warded it off and the stick broke, after hitting the ice‑box, thereafter, Nazeer held the deceased in a Jappha and his son Rasheed thrust the knife in the left side of his chest. Yusuf fell down. The occurrence was witnessed by Arif who had a milk shop opposite the place of occurrence. At that time P.W. Mueen (given up as won over) was present at the shop of the deceased. Muhammad Tufail and Arif took Yusuf in a passerby's car to Ganga Ram Hospital. Muhammad Mueen tried to catch hold of the accused but they went away. Mst. Chiragh Bibi wife of the deceased had also reached there and was about 8/10 paces away from the place of occurrence, she caught hold of Nazeer who picked up a pair of tongs and gave a blow with it on her head and got himself released. After about half an hour, the deceased succumbed to his injuries in the hospital, thereafter Muhammad Tufail proceed to make a report to the police station but met with P.W. 12 Muhammad Fazal A.S.I. at 2‑45 p.m. on the way near Shama Cinema Chowk. He made statement Exh. P.G. to him on the basis of which formal F.I.R. Exb. P.G./1 was registered at Police Station Ichhra, situated at a distance of 2 k.m. from the place of occurrence. After register ing the case, A.S.I. went to Ganga Ram Hospital, prepared the necessary documents and sent the dead body for its post‑mortem examination. He then went to the place of occurrence, collected blood‑stained earth froth there and arrested both accused the same day.

3. On 28‑7‑1982 at 3‑07 p.m. P. W. Dr. 2 Muhammad Farooq Akmal, Medical Officer, in the office of the Medico‑legal Surgeon, Lahore, examined Mst. Chiragh Bibi and found 'a lacerated wound 3 cm x .5 cm at the occipital region of the skull' The injury was simple caused by a blunt weapon.

4. On 29‑7‑1982 at 11‑00 a.m. P.W. 11 Dr. Abdul Hameed, Medical Officer, held the autopsy on the dead body of Muhammad Yusuf and found 'an incised stab wound 1.5 cm x .75 cm vertical in direction 5 cm from mid line 9 cm medially downward from the left nipple on the front of left chest.' On dissection, the doctor found that the injury was through the chest wall between 5th and 6th ribs‑the upper border of the 61h rib was partially cut. The pericardium on the front side was cut. The front portion of the heart was cut 2 x 1 cm. the front wall of the left ventricle and the left chamber of heart was cut through and through. In doctor's opinion, death was due to shock and haemorrhage caused by the injury to the heart.

5. On 1‑8‑1982, Rasheed accused, led to the recovery of his knife P. 3 from his house. It was made into a sealed parcel through memo. Exh. P.F. attested by P.W. 7 Yunus Masih and P.W. Muhammad Mueen alias Timma (given up as won over) besides the Investigating officer. On 15‑9‑1982 stick P. 4 was produced by Muhammad Tufail (informant). It was taken into possession through memo. Exh. P.H. attested by P. W. 10 Muhammad Arif, P.W. 8 Muhammad Tufail, Muhammad Ramzan (given up as unnecessary) and the S.I. After completing the investigation the accused were sent up for trial.

6. At the trial, both accused denied guilt and ascribed the case to city and suspicion. They led no evidence in defence.

7. Relying on the evidence the eye‑witnesses and the recovery of weapon from the accused, trial Court found the prosecution case satisfacto rily proved against the appellants and awarded the lesser penalty because it considered that there were mitigating circumstances in the case i e. a single blow was given by a young boy of 15/16 years of age and that the other accused namely Nazeer was attributed a Jappha only.

8. Criticising the finding, learned counsel for the appellants contend ed that in this case the transaction was one which took place suddenly over the parking of the Rehri in front of the shop of the deceased but in order to introduce premeditation prosecution split the occurrence into two incidents by saying that after exchanging abuses Rasheed went home and returned with a knife in his hand, accompanied by his father Nazeer who was armed with a stick. In any case parties do not live far away from the place of occurrence. The complainant and his father (deceased) lived behind their shop whereas the accused lived nearby in the vicinity. In this view of the matter, for Nazeer to have suddenly appeared on h‑s own was nothing uncommon. Further contended that in fact Rasheed appellant acted in defence of his father. He saw that the deceased who was enraged was grappling with his father whose stick had broken because according to the prosecution Nazeer had aimed a stick blow on the head of the deceased which he warded off and the stick instead hit the ice‑box as a result of which it broke. Building his argument learned counsel further contended that grappling which developed has been misinterpreted by the prosecution, saying that Nazir had taken Yusuf in a Jappha to facilitate the knife attack by the co‑accused. He added that in fact what Rashid appellant saw, he in good faith believed that there was reasonable apprehension of grievous hurt of his father. Thus, in the exercise of the right of defence, he inflicted the solitary knife injury to save his father. I have considered this aspect of the case. What is being attributed tot Rashid now, that he believed in good faith that his father was being hurt is neither to be found in his statement nor it was suggested to the witnesses under cross‑examination. However, in a criminal case, if an accused doe. not take up the plea of self‑defence in his statement but if circumstance appearing in the evidence show that it is a case of the exercise of the right 8 of self‑defence, its benefit will always be extended to the accused. In this case, there are no such circumstances. Rashid accused in his mistake belief imagined the situation which did not exist and cannot be called a reasonable apprehension of such an harm to his father which called for an attack with a knife. True, the right of self‑defence is not to be weighed in the golden scales but nevertheless an accused person must show that there was reasonable apprehension of such harm that extended the right. I have no doubt in my mind that it was a sudden flare up and that what the prosecution called gripping of Yusuf (Japha) by Nazir was in fact a grappling on account of the situation that developed after Nazir's stick broke and two came to grips. Since both were unarmed and were trying their strength by grappling and under such circumstances normally people would try to separate the two by catching hold of them so that it may not develop into a fight. In this view of the matter, there was no reasonable apprehension of a grievous hurt to Nazir and thus the conduct of Rashid was not justified in law.

9. The next question for consideration would be whether the case would be covered by Exception IV to section 300, P.P.C. In so far as Rashid was concerned, he was not a party to the grappling going on between his father and the deceased. He bad neither been hit nor he was caught by anyone. His conduct, therefore, would not fall within the exception. His appeal thus fails. He has already been awarded the lesser penalty on account of his youth. However, while dismissing hi appeal I reduce his sentence of fine to Rs. 1,000 (one thousand) in default to undergo one month's R.I. further. Fine if realised, shall be paid as com pensation to the heirs of the deceased. He shall be entitled to the benefit of section 382‑B,, Cr. P. C.

10. The case of Nazir appellant stands on a different footing. The stick which he was said to have carried, was produced before the police on September, 982, by the informant i.e. about a month and 19 days after the occurrence. I am in doubt about the part ascribed to Nazir by the prosecution. Mst. Chiragh Bibi was said to have caught hold of Nazir while he was running away and he got himself released by hitting a Chimta blow on her head. In the first place, the injury suffered by her is trivial in nature. Moreover, the pair of tongs which he allegedly picked up from shop of a cycle mechanic namely Rafiq was not produced nor Rafiq appeared as a witness. Even otherwise, the story put up by her did not stand to reason because there were other persons including her son but none tried to catch hold of the accused. At the trial, she said that she caught hold of Nazir saying that where was be going after killing her husband. This fact was not mentioned by her in her police statement. Her appearance at a late stage and the nature of her injury also created a doubt about her presence at the place of occurrence. In view of the circumstances, I am not satisfied with the guilt of Nazir, appellant. Giving him the benefit of doubt, I set aside his conviction and sentence and acquit him.

M. Y. H. Appeal partly accepted.

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