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Criminal Appeal No.56 of 1986, decided on 24thNovember, 1986.

‑‑‑S. 304, Part II‑‑Self‑defence, right of‑‑Dispute arising between accused and deceased‑‑Hot words exchanged between parties‑‑Witnesses consistent in their statements, independent and having no enmity against accused‑‑Incident taking place at spur of moment‑‑No provocation given by deceased‑‑Accused having given blow over ear of deceased‑‑Exercising right of private defence not borne out from record‑‑Plea of self defence rejected.

Aludo alias Ali Bux v. The State 1976 P Cr. L J 329 and Allah Bakhsh v. The State 1985 P Cr. L J 2152 ref.

‑‑‑S. 304, Part II‑‑Offence, nature of‑‑No previous enmity between parties‑‑Accused empty handed‑‑Dispute arising suddenly‑‑Exchange of hot words taking place‑‑Accused giving single blow with hand‑ Ingredients of S. 304, Part II, P.P.C. held, were missing and accused could only be convicted under S. 325, P.P.C. in circumstances‑‑Sentence reduced.

S.S. Sheikh and Gul Zaman Khan for Appellant.

Abdul Ghafoor Mangi A . A .‑G . for the State.

Date of hearing: 18th November, 1986.

This judgment would dispose of the appeal filed by the appellant against the conviction and sentence recorded against him and the revision application for the enhancement of the sentence.

The appellant has been convicted under section 304 Part II and sentenced to suffer R.I. for four years and to pay a fine of Rs.10,000 in default to undergo R.I. for three years. It was directed that the fine if recovered shall be paid to the heirs of the deceased.

2. The facts in brief are that A.S.I. Shabbir Ahmad lodged report on 12‑5‑1982 alleging therein that on the same day he came to his duty. Hawaldar Khan Muhammad, deceased Abdul Ghani and Naimat Gul were also on duty. At about 3‑00 p.m. one person wanted to enter inside. Abdul Ghani demanded entry pass from that man on which that person disclosed that he is man of custom but even then Abdul Ghani went on insisting him to show him the pass on which that man took out a pass waived the same infront of face of Abdul Ghani. On this there arose a quarrel between them. Hawaldar Khan Muhammad caught the accused and brought him inside the room. Abdul Ghani deceased also came there. Hawaldar Khan Muhammad tried to cool down the situation. The identity of the accused was revealed that he was Muhammad Ramzan from the custom department. On the commotion persons from the custom department also came there. They were talking with P.Ws. when Muhammad Ramzan got enraged and gave a blow to Abdul Ghani which hit him on the left side of his 'conpati'. Abdul Ghani feeling giddy fell down on the floor and blood started oozing out from his nose. The incident was witnessed by Rafique and 5‑7 other persons. S.H.O. Muhammad Sharif started investigation and then charge sheet was submitted against the accused. The accused did not plead guilty to the charge.

3. At the trial the prosecution examined complainant Shabbir Ahmad, P.Ws. Niamat Gul, Muhammad Rafique, Gul Zaman, Muhammad Sher, Ahmad Bux Magistrate, Hawaldar Khan Muhammad, Dr. Nisar Ahmad Mangi, ‑Muhammad Nazir, Muhammad Ramzan Surveyor and Muhammad Sharif. P.Ws. Gul Zaman, Muhammad Nazir, Muhammad Ramzan and Sharif are formal witnesses. Muhammad Sharif is Investigating Officer. The accused in his .342, Cr.P.C. statement denied the allegation and produced three witnesses in defence.

4. The trial Court after assessment of the evidence came to the conclusion that the appellant is guilty of offence under section 304, Part II.

5. The death of the deceased is not denied. It has been established through the ocular testimony of P.Ws. Shabbir Ahmad, Hawaldar Khan Muhammad and Rafique. Their evidence is supported by the Medical evidence which has not been disputed by the defence. The case against the appellant rests on the ocular testimony of complainant Shabbir Ahmad, P.Ws. Muhammad Rafique and Khan Muhammad. These witnesses are consistent that the deceased Abdul Ghani demanded the gate pass from the accused but the accused was not willing to show the gate pass. Ultimately the accused took out a pass from his pocket and placed the same in front of the eyes of the deceased. On this there was scuffle between the accused and the deceased. The witnesses brought the accused to the office and tried to settle the matter. Deceased Abdul Ghani also came there. Seeing Abdul Ghani accused lost his temper and gave fist blow on his ear. Abdul Ghani fell down on the ground. Dr. Nisar Ahmad performed the post‑mortem on the body of the deceased and found the following injury on the person of the deceased.

(i) On opening the skull.

After reflection of the skin on the head, there is Haematoma on the left side on the head at Parieto‑Occipital area. There is fracture of the parietal bone left side. Congestion of the blood of the brain at left parieto occipital and rift frontal area. No bleeding inside the cavity of the Thorax. No fracture of the ribs.

According to the doctor, the deceased died due to cardio respiratory failure due to coma leading to death, could be due to fracture para parieto occipital bones of the skull left side.

6. The learned counsel for the appellant has not disputed that the accused was present at the time of the occurrence. It is also not disputed that a dispute arose between the accused and the deceased. He has also not disputed that there were exchange of hot words between the parties. Learned counsel for the appellant however, contended that as the appellant was illegally arrested and detained by the complainant and the P.Ws., therefore, right of private defence accrued to the appellant. This contention has no fore. The witnesses are consistent in their statements that the accused has been removed to the office in order to pacify him and settle the matter. The witnesses are independent. There is no enmity alleged against them. The incident has occurred suddenly on the spur of moment. The deceased had not caused any provocation to the appellant. The theory set up by the learned counsel for the accused that the accused has the right of private defence is not borne out from the record. Even otherwise, it is unnatural in the circumstances of the case that the accused was arrested or detained by the complainant and the prosecution witnesses.

The learned counsel has referred to the cases of Aludo alias Ali Bux v. The State 1976 P Cr. L J 329 and Allah Bakhsh v. The State 1985 P Cr. L J 2152 but these authorities are not relevant.

In the first mentioned authority parties were on inimical terms and the deceased was armed with hatchet chasing accused alongwith prosecution witnesses. In such circumstances, it was observed that the right of private defence accrued to the accused.

In the second case, it was admitted by eye‑witnesses that the prosecution witness had given a sota blow to the accused but in the instant case neither the deceased nor the witnesses provoked the accused. In the instant case, there did not exist right of private defence to the accused person.

The next contention of the learned counsel for the appellant is that the death could be caused due to fall on the ground. He has referred to Modi's Medical Jurisprudence and Toxicology page 256. The relevant portion reads as under:‑--

"A direct impact from falling forwards may also cause depressed fracture of anterior fossa, while a backward fracture fall, when the back of the head strikes the ground may result in fracture of posterior fossa which may even extend into the foramen magnum. Any kind of impact behind the ear or crush injuries of head may involve the middle fossae on both sides. Occasionally the basal fracture of the skull may cause an arterio venous communication between the carotid artery and the cavernous sinus, through which it passes."

The doctor was not confronted with this extract of Modi. Even otherwise doctor has categorically stated that the injury caused to the deceased could not be caused due to fall on hard and blunt substance. He has further stated that this injury on the person of the deceased cannot be caused due to on his fall on bench or such type of substance. He has also stated that the injury cannot be caused due to push with force against the wall or such type of substance. In view of clear statement of doctor, it cannot be urged that the injury had been caused due to fall on the ground. Even otherwise ocular testimony is clear on the point. The witnesses had seen the incident and in their presence the accused has caused blow to the deceased.

Learned counsel next contended that one of the witnesses namely Naimat Gul has not supported the prosecution. Though this witness has not supported the prosecution but other witnesses who were present at the spot have supported the case against the appellant and there is no reason to discard their testimony. They are independent and natural witnesses.

Learned counsel for the appellant has referred to 1985 PCr. LJ 865 and submitted that the case is not free from doubt. In this case accused was empty handed and said to have caused Injuries with his head only. The facts are distinguishable. In the present case, the eye‑witnesses have categorically Implicated the appellant.

7. Mr. Gul Zaman Khan who has moved revision application for enhancement of sentence has referred to Anwar v. The State 1986 PCr.LJ 454, but this authority is in apt.

8. The next point for determination is that what offence has been committed. It is an admitted position that there is no previous enmity between the accused and the deceased. The accused has come empty handed to the place of incident. Suddenly, there arose dispute between the accused and the deceased. There were exchange of hot words. The accused had given a blow on the ear of the deceased and this injury was not caused with any weapon as he was empty handed. Therefore the ingredients of section 304, Part II are also missing. The appellant could only be convicted under section 325 P.P.C. He is, therefore sentenced to three years R.I. and fine of Rs.10,000 in default to suffer R.I. for one year. If fine is recovered the entire amount shall be paid to the, heirs of the deceased. With this modification in conviction and sentence the appeal stands dismissed. The appellant shall also be entitled to the benefit of section 382‑B, Cr.P.C.

The appeal was disposed of by a short order. The aforesaid are the reasons for the same.

S.A. Order accordingly.

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