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(Against the judgment and order dated 29‑I1‑1982 of Lahore High Court, Lahore in Crl. Appeal No. 297/82 and Murder Reference No. 102 of 1982).

(a) Constitution of Pakistan (1973‑--

‑‑ Art. 185 (3) ‑Penal Code (XLV of 1860), S. 300, Exception II-- Leave to appeal was granted to convict as well as to complainant to examine whether High Court had correctly applied S. 300, Excep tion II, P.P.C. and whether principles laid down by Supreme Court in Syed Ali Bepari v. Nibaran Mollah and others P L D 1962 SC 502 did not apply to facts and circumstances of the case.

Syed Ali Bepari v. Nibaran Mullah and others P L D 1962 S C 502 mentioned.

(b) Penal Code (XLV of 1860)‑

‑‑ Ss. 300, Exception II & 304, Part I‑Culpable homicide not amounting to murder‑Prosecution story disbelieved there being nothing to contradict plea taken by accused‑Where such factual position was found, accused's statement was to be accepted substan tially if not entirely and only that part was to be rejected which was against proved facts ‑ Where no intrinsic inconsistency of facts was found, statement of accused could not be rejected by adopting a process of appraisement, analysis and probability as if it was statement of a witness who was fully cross‑examined on oath.

(c) Penal Code (XLV of 1860)‑

---Ss. 300, Exception II, 302, 304, Part I, 100, 101 & 102‑Culp able homicide not amounting to murder‑Plea of right of self -defence ‑ Prosecution story disbelieved‑Nothing was found to contradict plea of accused‑No intrinsic inconsistency of facts was found‑Held, degree and imminence of apprehension of threat to one's person or property was not to be measured by injuries. actually found in the end to have been inflicted on accused person-- Exercise of right of self‑defence itself interrupts infliction of inju ries‑Right of defending person by keeping statutorily his right one step above that of the person invading that right e.g. is extended to causing death, inter alia, where only grievous hurt was apprehended or, if causing grievous hurt where only simple hurt was apprehen ded‑Such right commences "as soon as reasonable apprehension of danger to body arises from an attempt or threat to commit offence, though the offence may not have been committed, and it continues as long as such apprehension or danger to body continues.‑[Private defence, right of].

(d) Penal Code (XLV of 1860)‑

--Ss. 300, Exception II, 302, 100, 101 & 102‑Culpable homicide not amounting to murder‑Plea of self‑defence‑Accused received injuries in same occurrence in which deceased was stabbed‑Six inju ries were suffered by accused while he was trying to snatch weapon from deceased and his companions‑Injuries to accused were caused while he was defending himself against persons who were armed with a Lathi and had already given blows with it and had not stop ped doing so‑One injury was in fact on a vital part of body which did indicate degree and imminence experienced by accused‑Held, an individual under imminent threat to his person was not expected to "weigh in golden scales" his own reaction‑Accused, therefore, was entitled to acquittal for having not exceeded his right in inflic ting solitary fatal blow.‑[Private defence, right of].

(e) Penal Code (XLV of 1860)‑

‑‑ Ss. 300, Exception II, 302, 304, Part I, 100, 101 & 102‑Culp able homicide not amounting to murder‑Plea of self‑defence --Rejection of testimony of eye‑witness getting support from record-- As stated by eye‑witnesses injuries suffered by deceased and eye witnesses were not so numerous or of such a nature as to indicate that four persons armed with Chhuris had launched a planned attack on unarmed persons to avenge insult done to them‑None of eye witnesses had accounted for injuries of accused and co‑accused Motive given out and the way earlier incident happened were all un inspiring ‑ Testimony of such eye‑witnesses, held, was rightly disbelieved.

(f) Penal Code (XLV of 1860)‑-

---S. 304, Part I‑Culpable homicide not amounting to murder --Plea of self‑defence‑Appreciation of evidence‑No score was to be settled, no dispute was to be resolved and no preparation or antici pation existed but was a sudden dispute ‑‑Prosecution evidence rejected‑Plea of accused was clear and consistent and was found not inconsistent with facts found proved on record‑Conviction, and sentence of accused under S. 304, Part I was set aside and he was acquitted.

Syed Ali Bepari v. Nibaran Mollah and others P L D 1962 S C 502 distinguished.

Agha Aziz Ahmad Khan, Advocate Supreme Court and Ch. Akhtar Ali Advocate‑on‑Record for Appellant (in Cr. A. No. 172 of 1983).

M. B. Zaman, Advocate Supreme Court and Ijaz Ali Sheikh, Advocate -on‑Record for Appellant (in Cr. A. No. 173 of 1983).

M. B. Zaman, Advocate Supreme Court and Ijaz Ali Sheikh, Advocate -on‑Record for Respondents (in Cr. A. No. 172 of 1982).

Ch. Ghulam Ahmad, Advocate Supreme Court for Advocate‑General, Punjab instructed by Rao M. Yousaf Khan, Advocate‑on‑Record for Respondents in Cr. A. No. 173 of 1983).

Date of hearing : 8th February, 1986.

SHAFIUR RAHMAN, J.

‑Leave to appeal was granted to the convict as well as to the complainant to examine whether the Lahore High Court by its judgment, dated 29th of November, 1982 had correctly applied Excep tion II to section 300, P. P. C. and whether the principles laid down by this Court in Syed Ali Bepari v. Nibaran Mollah and others (P L D 1962 S C 502) did not apply to the facts and circumstances of the case.

The prosecution case was that on 24th of September, 1980 at about 1‑30 p m. when Umar Hayat (P.W. 10) was on way back to his house from school alongwith Pervaiz Akhtar he was abused by Sajjad, the acquitted accused whereupon not only the abuses were exchanged between them but Sajjad and the convict received slaps and kicks from them. They had then threatened to take appropriate revenge for the insult. The same day at 4‑30 p. m. the deceased Pervaiz Akhtar alongwith Umar Hayat (P.W. 10) was keeping a watch on the cattle which was grazing close to their house when the appellant Ishtiaq alongwith his three companions all armed with Chhuris came there and started, the attack. Ishtiaq appellant was the first to give two knife blows on the chest of the deceased followed by another knife blow to him from behind by Amjad, the acquit ted accused. When the deceased fell as a result of these injuries Sajjad, Asif and Amjad gave more knife blows to him. Umar Hayat (P. W. 10) advanced to protect Pervaiz Akhtar when he was also given a knife blow on his temple. Waris Khan (P.W. 11) who was proceeding fret his house towards the spot and Wazir Khan (P. W. 12) who was also grazing buffa loes in the neighbourhood were attracted to the spot on which the appel lant and his companions left the place. Pervaiz Akhtar died of his injuries at the spot.

A report about the occurrence was lodged by Waris Khan (P. W. 11) at 5‑15 p.m. at Police Station Attock at a distance of three kilometres from the spot. It was recorded by Hasan Akhtar, S. I. (P.W. 13) who proceeded to the spot and after attending to the dead body sent it for post‑mortem. He took into possession the blood‑stained earth from the spot. The appellant and his three companions wire arrested on 26‑9‑1980. Ishtiaq and Sajjad, the two brothers led to .the recovery of blood‑stained knife on 1‑10‑1980 while Amjad and Asif led to the recovery of their respective chhuris on 3‑10‑1983. These were found to be stained with human blood. Dr. Gul‑e‑Naukhez Ghauri (P.W. 5) examined the deceased, the injured eye‑witness Umar Hayat and the appellant and his companion Sajjad who also had injuries on his person. The deceased had the follow ing injuries on his dead body :‑

"(1) A cut wound 2 c. m. below right nipple, 3.2 x 0.5 c. m. muscle deep.

(2) A cut wound 2. 5 c. m. medial to injury No. 1 and an abrasion was extending from this wound upward and outward. Injury was 3.7 x 1.9 c.m. muscle deep and abrasion was 7 c.m. long.

(3) A cut wound on the right chest near arm‑pit 4.5 c.m. x 0.7 c. m. muscle deep.

(4) A stab wound on the left chest near armpit going inward and medially 2 c.m. x 7 c. m. going into the most cavity.

(5) A stab wound on the front of left shoulder 1.6 x 0.6 c. m. x 2 c. m.

(6) A stab wound on the front of left upper arm 3 c. m. below arm pit, 2.5 c.m. x 1.3 c.m.

(7) A contusion on the right cheek 2.5 c.m. x 2 c. m.

(8) A contusion on the back of left forearm 1.5 c.m. x 0.5 c.m.

(9) A stab wound on the back 3 c. m. above the armpit on the right chest.

(10) An abrasion on the right abdomen 11 c. m. x 0.2 c.m. at the level of umblicus transverse."

Umar Hayat (P.W. 1) had the solitary injury as hereunder:-

"A punctured wound on the right temporal region 1 c.m. x 3 c.m. bone deep."

Ishtiaq Ahmad appellant had the following injuries :‑

"(1) A swelling on the back of top of head 3 c.m. x 3 c.m.

(2) A contusion on the left temporal region 4 c.m. x 4 c.m.

(3) A cut wound on the palm of left hand 7 c. m. x , 0.5 c. m. muscle deep.

(4) A contusion on the back of left band 3 x 3 c. m.

(5) A cut wound on the front of middle phalynx soft middle finger 1 x 0.1 c. m. x skin deep.

(6) A contusion on the back of left shoulder in scapular region 13 c. m. x 2 c. m."

and Sajjad Ali had the following injuries

"(1) An abrasion on the left chin 3 x 0.1 c.m.

(2) An abrasion on the spines of lumber region 0.5 x 0.5 c.m.

(3) An abrasion on right cheek near nose.

(4) A contusion on the back of right thigh 1.5 c.m. x 1.5 c.m."

The doctor considered that of the injuries on the person of the deceas ed injury No. 4 alone was fatal.

The appellant and his companions when questioned about the allega tions against them denied all the allegations. The appellant explained his injuries and the case against him in the following words :-

"The P.Ws. are related inter se and also related to the deceased and inimical towards us. On the day and time of occurrence I was returning from Jabi Kas to my house after watering my buffalo and when I was on the southern side of the graveyard, on the street I heard noise of my brother Sajjad and I went to him and saw Umar Hayat P. W. with a Chhuri in his hand and trying to use it against Sajjad and the latter also got injuries. I got hold of the hand of Umar Hayat, P.W. and tried to snatch the Chhuri from him. I had not yet succeeded in my attempt though I got injuries at that time with it but all of a sudden Pervez deceased started giving blows with stick on my head and shoulder and in the mean time I snatched the Chhuri from Umar Hayat P. W. and I used it against Pervez deceased who was still giving blows to me and my brother with stick. I gave injuries to Pervez deceased in my defence of person as well the defence of my brother Sajjad. Amjad and Asif accused were not present at the time of occurrence. They have been involved on account of relationship with us."

Sajjad, the acquitted accused, gave the following explanation for the allegations against him and for his injuries :‑

On the day and time of occurrence I was coming in the street passing on the southern side of the graveyard alongwith my dog. Umar Hayat P. W. alongwith Gudu his relative was sitting in the Janazgah. He was also having a dog with him. Both the dogs quarrelled with each other. I tried to separate them but Umar Hayat P. W. abused me and we exchanged hot words and abuses. During which Umar Hayat P.W. took out a Chhuri from his Dab and tried to injure me and while warding off I gut injured. During this process I raised alarm. My brother Ishtiaq was returning from the Jabi Kas alongwith his buffalo and was passing on the said road while going to his house. He on hearing my alarm came at the spot and tried to snatch the Chhuri from Umar Hayat P.W. and he too was injured. During the snatching of Chhuri Umar Hayat P.W. also got injury. Ishtiaq was still in the process of snatching the Chhuri by placing his hand on the hand of Umar Hayat P.W. and had not succeeded yet when all of a sudden Pervez deceased started giving blows with stick to my brother and myself from behind. In the meantime, Ishtiaq caught bold of the Chhuri and give blows with it to‑Pervez deceased in self‑defence of his own as well as mine. The P.Ws. are closely related to the deceased and inimical towards us. Amjad and Asif accused were not present at the spot at the time of occurrence."

The trial Court believed the motive as given out by the prosecution witnesses and rejected that put forward by the appellant. The reasoning of the trial Court will appear from its observations as hereunder.

"The motive alleged by the accused persons has not been suggested to Hassan Akhtar I.O. P.W. 13. It has not even been suggested to him whether he investigated the present case in the light of motive put forward by the accused. The accused have not produced any evidence in support of the motive suggested by them. It is, of course, not possible to arrive at any conclusion that the accused persons acted as they alleged they did on a consideration of their state ments alone... The accused have brought the present motive at the very first time after passing about two years. The motive all god by the accused persons seem to be an afterthought. The prosecution has set its motive at the initial stage in the F.I.R. Exh. P. J."

As regards the presence of the eye‑witnesses and their credibility, the trial Court held as hereunder;

"All the three P. Ws. are the residents of that vicinity, which is proved on the face of record. Their presence at the time of occurrence is natural ... In the light of above discussion, it has been proved by the defence itself that P.Ws. 11 and 12 were present at the time of occur rence at the spot. Umar Hayat P.W. 10 was injured during the occur rence, and his presence has also been admitted by the defence."

As regards the injuries of the appellant, the trial Court held as follows:

"From all the circumstances, I am of the view that the doctor gave extraordinary concession to Ishtiaq accused and when Dr. came to know that the Police is behind the accused Ishtiaq for causing the murder of Pervez either the doctor allowed him to run away from the Hospital or he himself ran away from the Hospital due to the apprehension of the Police. In this view of the matter the possibility of his false certificate arranged to be obtained from the said doctor cannot be ruled out. Ishtiaq accused has not come with clear hand. According to the M.L.R. he had cut wound on the palm of left hand 7 c.m. x 0.5 c.m. x muscle deep and a cut wound on the front of middle phalynx soft middle finger 1 c.m. x 0.1 c.m. x skin deep. According to injuries Nos. 3 and 5 it can easily be inferred from the said wounds that blood certainly was oozed out at the time of infliction of the said injuries and the clothes of the accused Ishtiaq must have smeared with blood. The wounds Nos. 3 and 4 trans pire that the blood was also fallen down on the ground. It was the duty of the defence to hand over the blood‑stained clothes and also led the Police Officer to the spot where the blood of Ishtiaq was fallen down in order to collect it."

As regards the recoveries attributed to the appellant and his com panions, the trial Court concluded by holding as follows:

"The question of plantation of recoveries does not arise. Mere relationship does not cast any reflection on the evidence of Dawood P. W. and Rab Nawaz P. W. 9 whose testimony has been fully corroborated by Hassan Akhtar I. O. P. W. 13, an independent and disinterested witness. The accused persons have failed to produce any defence to controvert the recoveries of Chhuris which were blood‑stained made at their instance, therefore, the factum of reco veries stand fully proved against them."

On this view of the matter, the trial Court believed the prosecution case in its entirety; rejected the defence of the appellant and his com panions and held all of them guilty of the offence under section 302/34, P. P. C. sentenced Ishtiaq and Sajjad to death and a fine of Rs. 5,000 each or in default to undergo two years' R. I. with an additional amount of Rs. 5,000 each to be paid as compensation to the heirs of the deceased or in default to suffer 1 years' R. I. For the same offence, Amjad aged sixteen and Asif aged seventeen were sentenced to life imprisonment and a fine of Rs. 2,000 each or in default to undergo 1 years' R. I. and another sum of Rs. 2,000 each to be paid as compensation to the heirs of the deceased or in default to suffer 1 , years' R. I. Amjad alone was additionally found guilty under section 32,, P.P.C and sentenced to one year's R. I. and a fine of Rs. 500 or in default to undergo six months' R. I. He was also ordered to pay a compensation of Rs. 500 to Umar Hayat P. W. or in default to suffer further S. I. for six months.

On appeal and while seized of the murder references, the High Court re‑examined the entire evidence and came to a conclusion entirely different from that of the trial Court. Considering that all the witnesses, eye witnesses, the recovery witnesses and the witness of motive were related inter se and though independent witness could be available they were not produced, it was held that the earlier incident given as the motive bad not in fact taken place. It was also held that the injuries on the person of Sajjad and Ishtiaq were caused in the same occurrence, were not self -inflicted and had been received at the hands of the complainant party. Waris (P.W. 11) and Wazir (P.W. 12) were held to be not eye‑witnesses to the occurrence at all. The High Court also came to the conclusion that Amjad and Asif the two companions of the appellant had in fact in all probability not participated and were not present at the tune of the occur rence. The recoveries were also disbelieved. The plea of Sajjad of complete right of self‑defence was allowed to prevail on the following reasoning :‑

"His statement finds corroboration from the injuries borne by him and by the admission made by his co‑accused Ishtiaq. Since we have disbelieved the prosecution story so there is nothing to con tradict the plea taken by appellant Sajjad. We do not consider the evidence of recovery of Chhuri to be reliable for the reason that the only witness who has appeared to prove the recovery of Chhuri was related to the complainant, who himself has been disbelieved."

The participation of Ishtiaq appellant was held proved on his own plea. After examining the nature of injuries on his person and the manner and the stage at which they were caused the following conclusions were drawn :‑

"Similarly, it seems doubtful that injury No. 2 on the person of Ishtiaq appellant could have been caused by a Lathi because of its dimensions. In this view of the matter the position which crop; up is that after Ishtiaq appellant had snatched the Chhuri and had launched counter‑attack on the deceased, neither he nor his brother was given any injury either by the deceased or by Umar Hayat P.W.10. The fear of attack which made him re‑act to save himself and his brother was not supported by actual infliction of injuries. In these circumstances, he clearly overacted by inflicting either injuries includ ing the grievous injury in the abdomen which alone according to the doctor could have caused the death of the deceased The appel lant in the circumstances enumerated above had no genuine fears of being under imminent fear of death."

On this view the appellant Ishtiaq was found guilty under section 304, Part I, P. P. C. for the reason that he had exceeded the right of private defence and the death sentence was not confirmed. Instead, he was sentenc ed to imprisonment for life and a fine of Rs. 20,000 which on recovery was to be paid as compensation to the legal heirs of the deceased.

Mr. M. B. Zaman, the learned counsel for the convict has con tended that after having disbelieved and rejected the entire prosecu tion case and relying only on the statement of the appellant, the Court could not have evaluated and appraised the statement of the accused as if of a witness with a view to extend to him the benefit of the right of private defence of his person. Only that portion of the statement of the convict could be rejected which was shown to be against proved facts. The prosecution had failed to prove any fact and it was borne out that the appellant Ishtiaq had inflicted the solitary fatal injury when the apprehen sion or danger to his own life was not over and he still was under the threat of the deceased who was armed with a Lathi and had already inflic ted injuries. The benefit of the right of private defence of his person could not be denied to him. It was complete. There was no exceeding that right.

The learned counsel for the complainant would like us to believe, as did the trial Court, the statement of injured witness and the other two eye‑witnesses and the witness of motive. If that is done, then an offence under section 302, P. P. C. was fully proved against the appellant and read with section 34 against every one of his companions.

There are two well‑recognised principles of law which, it appears to us, have not been kept in view, while applying the law to facts as found established by the High Court itself. The unmistakable conclusion drawn by the High Court was that "we have disbelieved the prosecution story" and for that reason "there is nothing to contradict the plea taken by appellant". Where such is the factual position the accused's statement is to be accepted substantially if not entirely and only that part is rejected which is against proved facts or is intrinsically untenable. There being no proved facts, according to the High Court, and there existing no intrinsic inconsistency of facts, the statement could not be rejected by adopting process of appraisement, analysis, and probability, as if it was the state ment of a witness who has been fully cross‑examined on oath.

The second, and a very salutary principle is that the degree and the imminence of the apprehension of threat to one's person or property is not measured by the injuries actually found in the end to have been inflicted. The exercise of the right itself interrupts the infliction of the injuries. The law recognizes this right of the defending person by keeping statutorily his right one step above that of the person invading that right e, g it extends to causing death, inter alia, where only grievous hurt is apprehended or, of causing grievous hurt where only simple hurt is apprehended (sections 100 and 101, P. P. C.). Further, the right commences "as soon as reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been com mitted, and it continues as long as such apprehension or danger to the body continues" (section 102, P. P. C.). The High Court's first conclusion an facts was that the injuries of appellant were not self‑suffered and that they were received in the same occurrence in which the deceased was stabbed. The second conclusion was that the appellant "had suffered injuries Nos. 3, 4 and 5 while snatching the Chhuri from Umar Hayat and injuries 1 and 6 before he snatched the Chhuri. Injury No. 2 received after he had snatched Chhuri did not appear to the High Court to have been caused by a Lathi or stick. May be so, but it was caused while he was defending himself against a person who was armed with a Lathi and had already given blows with it and had not stopped doing so. Injury No. 2, was in fact on a vital part of the body and it did indicate the degree and the imminence of the threat experienced by him. It is for such a situation as this one that it has been said that an individual under imminent threat to his person is not expected to "weigh in golden scales" his own reaction. Therefore, on facts found proved by the High Court even the appellant was entitled to acquittal as he did not exceed his right in inflicting the solitary fatal blow.

As to the question whether the eye‑witnesses should have been believed or not and whether the High Court rightly rejected their testimony, we have re‑examined the evidence on record. We find that conclusions of fact drawn by High Court get support from the record. For example, the injuries on the person of the deceased and injured Umar Hayat P.W. 10 are not so numerous or of such a nature as to indicate that four persons all armed with Chhuris had launched a planned attack on unarmed persons to avenge the insult done to them. Besides, none of these witnesses has accounted for the injuries of the appellant and Sajjad. The motive given out and the way earlier incident happened are all uninspiring.

Syed Ali Bepari's case proceeded on different findings e.g. (i) that there was a mutual fight in which both the parties anticipated armed conflict, got themselves armed with deadly and sharp‑edged weapons and used them, (ii) the accused's plea was a mere hypothesis or a "remote possibility" and not by way of assertion of facts showing "exculpatory circumstances sufficient to cast a reasonable doubt over the prosecution case". In the case before us there was no score to be settled, no dispute to be resolved, no preparation and anticipation. It was a sudden dispute. The prosecution evidence stood rejected The plea of the accused was clear and consistent and was found not inconsistent with facts found proved on record.

In the circumstances and for reasons given, the appeal filed by the complainant fails and is dismissed, that of the convict is allowed and his conviction and sentence under section 304, Part I is set aside. He shall be released forthwith unless his detention is required in some other case.

M.B.A Convict acquitted.

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