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Criminal Appeal No. 14‑K of 1986, decided on 12th August, 1986.

(On appeal from the judgment and order of the High Court of Baluchistan Quetta, dated 9‑10‑1985, passed in Criminal Appeal No.7 of 1984).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 304. Part I‑‑Right of private defence‑‑Exercise of‑‑Leave to appeal granted to examine question as to what offence was committed by appellant in light of finding of Trial Court because it was contended on his behalf that if complainant party were aggressors and had caused injuries which could have proved fatal, then apprehension could not be, at spur of moment, weighed in scales and appellant was entitled to cause such injury as he had caused to save his own life.

‑‑‑S. 304, Part I‑‑Conviction and sentence challenged‑‑Appellant charged under S. 302, P.P.C. was found to have received simple injuries during incident and had right of private defence to that extent‑‑Appellant having caused six injuries with sharp weapon, out of which two being on vital parts of body of deceased were fatal, exceeded his right of defence‑‑His case falling under Exception 2 to S. 300, P.P.C., was convicted and sentenced under S. 304, Part I, P.P.C.‑‑High Court after re‑appraisal of evidence. affirmed findings of trial Court‑‑There being no defect in appreciation of evidence nor any rule of evidence or principle of law governing dispensation of criminal justice having been violated, Supreme Court refused to interfere with findings /conviction but reduced sentence of life imprisonment to 10 years' rigorous imprisonment and allowed benefit of S. 382‑B, Cr.P.C.

Muhammad Hayat Junejo Senior Advocate Supreme Court instructed by Muzaffar Hassan, Advocate‑on‑Record.

Mir Muhammad Nawaz Marri, Assistant Advocate‑General for the State.

Date of hearing: 12th August, 1986.

This appeal is from the judgment of the High Court of Baluchistan. By the impugned judgment the appeal of the appellant, challenging his conviction under section 304 Part I of the Pakistan Penal Code for causing death of Haji Muhammad Asghar with sentence of life imprisonment and fine of Rs.1,000 or in default to undergo further rigorous imprisonment for six months and to pay compensation of Rs.10,000 to the heirs of the deceased or in default to undergo further rigorous imprisonment for six months, was dismissed except that he was given benefit of section 382‑B, Cr.P.C., as he was under custody during the trial.

2. Leave to appeal was granted to examine the question as to what offence was committed by the appellant in the light of the finding of the trial Court because it was contended on his behalf that if the complainant party were the aggressors and had caused injuries which could have proved fatal, then the apprehension could not be, at the spur of the moment, weighed in the scales and the appellant was entitled to cause such injury as he had caused to save his own life.

3. The short facts of the case are that Rasool Shah, S.H.O. (P.W. 11) received information, on 12‑1‑1982 at about 7‑30 p.m. about a quarrel having taken place and the removal of the injured to the Civil Hospital, Quetta. He visited the hospital where Mst. Dilbar Jan (P.W. 1) reported the matter to him. According to her the appellant and his father, Muhammad Jehangir, had injured her husband Haji Asghar on the said date at about 6‑30 p.m. The accused Jehangir had allegedly caught her husband and appellant had given him dagger blows whereby he was injured and fell down. The people of the Kohallah took her husband in a Rickshaw to the hospital but he died on the way. The motive alleged for the offence was that earlier the same day, the younger son of Muhammad Jehangir and the son of the complainant had quarrelled over kite flying and the appellant and the acquitted accused, Muhammad Jehangir came to her house and attacked her husband.

4. The appellant and the acquitted accused Muhammad Jehangir were charged under section 302 of the Pakistan Penal Code. The prosecution examined 12 witnesses in support of the case out of which four were eye‑witnesses. Both the accused in their statements under section 342, Cr.P.C., denied the commission of the offence. The appellant denied the recovery of the dagger at his instance. He had some injuries on his person and according to him the same were caused by the deceased and others. Both the accused submitted written statements and produced seven witnesses in their defence.

5. According to the post‑mortem examination the Medical Officer found the following injuries on the person of the deceased Haji Asghar;

External

(1) Stab wound left side of chest in front at the level of 5th rib lateral to the nipple 3" x 1/2" into cavity deep.

(2) Stab wound left shoulder out aspect 3" x 1/2" x 1/2".

(3) Stab wound right shoulder outer aspect 3" x 1/2" x1/2 "

(4) Stab wound right shoulder 1" below injury No. 3 1/2 " x 1/2 x1/4 ".

(5) Stab wound front abdomen 2" above amblices 2" x 1" cavity deep.

(6) Bruise on right knee joint " x ".

Internal

(1) Brain conjected.

(2) Plural cavity full of blood.

(3) Right lung markedly conjected.

(4) Left lung Rent in left lung 1/4 x 1/2" x 1 " in the lower lobe.

(5) Pericardium and heart both chambers empty.

(6) Peritoneal cavity full of blood.

(7) Stomach empty.

(8) Rent in small intestine at two places 1/4 in circumference.

(9) Rent in liver 1/4 x 1/4 x .

(10) Bladder empty.

According to doctor the cause of death was sudden massive haemorrhage into pleural and paritoneal cavities due to the stab in chest and abdomen, shock and death. Another doctor who examined the appellant on the same day, found that the appellant had received the following injuries, which were simple in nature;

(1) Lacerated wound on the middle plalan of third finger 1/4 x 1‑1/8" depth.

(2) Lacerated wound near the canthus of left eye 1/6" x 1/8" skin deep.

(3) Abrasion above the right eyebrow.

(4) Abrasion on the right temporal region.

6. The incident was admitted by the appellant. The only point raised before the High Court was as to the manner in which the incident had taken place and whether the right of private defence was available to the appellant or not. It was not a case of any previous enmity between the parties. Two motives were alleged; one as alleged by the complainant party and the other as disclosed in the written statement of the appellant. According to the appellant when he came to his house at 5‑30 p.m. on the day of the occurrence he was informed by his brother Tanveer Hussain that Anwar son of deceased Haji Asghar had taken him out on a Rickshaw and wanted to forcibly commit sodomy on him; that he and the acquitted accused Muhammad Jehangir went to the house of the deceased for making complaint where they were abused by the deceased and they started grappling with each other but they were separated by the people; that afterwards when he was busy in peeling apples in his house with a knife he heard knock at the door, that he went out and saw the deceased alongwith Haider and Jabbar (P.Ws) armed with sticks and immediately they attacked him; that in order to save his life he inflicted a knife blow on the deceased but then the Mohallah people separated them and after that he was arrested by the police; that he had neither used dagger nor it was recovered at his instance.

7. The eye‑witness account furnished by the complainant Mst. Dilbar Jan, widow of the deceased was in accord with the version given in the F.I.R. The other three eye‑witnesses were Abdul Jabbar, Sherdil and Ghulam Haider (P.Ws 3 to 5) who supported the prosecution case. According to them accused Muhammad Jehangir had caught the deceased from behind while the appellant had given blows with dagger. These witnesses were believed by the trial Judge according to whom they were natural, probable and true witnesses of the incident. The recovery of dagger, at the instance of the appellant, was also believed. According to the defence witnesses accused Abdul Waheed was attacked by the deceased and the witnesses. It was, however, not disclosed how the deceased had received all the injuries. On appraisal of the evidence the learned trial Judge came to the conclusion that Abdul Waheed was attacked with sticks and had received the injuries in the incident which were simple and appeared to have been caused by blunt weapon like sticks. As such the appellant had the right of private defence to the extent of the injuries received by him but he had exceeded such right and had brutally caused six injuries with a sharp weapon to the deceased out of which two injuries were on the vital parts of the body and the same were fatal to life. In the circumstances, the learned Judge found that the case was covered by Exception 2 to section 300 of the Pakistan Penal Code and punishment was awarded under Part I of section 304, P.P.C. The case set up by the appellant that he had caused only one injury with knife was found to be untrue and was not accepted by the learned two Courts in view of preponderance evidence to the contrary. The learned High Court after reappraisal of the evidence affirmed the finding of the trial Judge that the appellant was rightly convicted under section 304 Part I, P.P.C., as the offence against him was proved beyond any reasonable doubt.

8. After hearing the learned counsel and having gone through the judgments and evidence in the case, we do not find any defect in the manner the evidence has been appreciated. The learned counsel was unable to satisfy us that any rule of evidence or principle of law governing dispensation of criminal justice was violated in the case.

9. In the result we find no ground for interference with the findings of the learned High Court. However, the sentence of life imprisonment is altered to ten years rigorous imprisonment with benefit of section 382‑B, Cr.P.C. The sentence of fine is maintained. In all other respects the appeal fails and is dismissed accordingly.

M. I. Sentence reduced.

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