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Criminal Appeal No. 208 of 1960, decided on 21st June 1960.
Right of‑Accused judge of his own danger‑Penal Code (XLV of 1860), S. 100.
The law relating to self‑defence makes the accused the judge of his own danger, and permits him to repel the attack, even to the taking of life. The Courts are to judge him by placing themselves in the same position in which he was placed.
Accused not able to produce defence evidence but his version getting support from prosecution‑Entitled to acquittal.
Even if the accused is not able to substantiate his defence by producing evidence, yet if his version gets support from the prose cution to the extent of being reasonably possible, then the accused is certainly entitled to an acquittal.
Shamir alias Shamla v. The State P L D 1958 S C 242 rel.
Ss. ICO & 300, Exception 4--- Application.
In view of the Explanation to Exception 4 of section 300, Penal Code, 1860 it would be immaterial which party offers the provocation or commits the first assault. But before this excep tion is applied, the essential conditions, laid down in it must exist. This Exception applies only to those cases, where on a sudden quarrel, both the parties begin to fight upon an equal footing. In such cases, it is immaterial, which party offers the provocation or commits the first assault, because the combat is mutual. It does not, however, mean that if on a sudden quarrel a person attacks another with some weapon, then the person attacked, if he kills his assailant, cannot avail of the plea of self -defence. In a case of this nature the person attacked cannot be held guilty of any offence because under the provisions of section 100 of the Penal Code, 1860 he is perfectly justified in killing his assailant. Exception 4 to section 300 of the Code would have no application to the facts of such a case. But if both the persons simultaneously take out their weapons and attack each other, then exemption 4 to section 300 of the Code, would certainly apply.
Appellant through Jail.
Ali Ahmad for Respondent.
Date of hearing : 16th June 1960.
This judgment will dispose of two Criminal Appeals Nos. 208 and 209 of 1960, which have been filed through jail by Karim and Manzoor, respectively. The two appellants along with six others, namely, Rahim, Sikandar, Lai, Anwar, Haider and Noora were tried by the Additional Sessions Judge, Lyallpur Division at Jhang, under sections 148, 302/149 and 323/149 of the Pakistan Penal Code. He convicted Karim and Manzoor accused under section 304, Part II, P. P. C., for causing the death of Mahni and Shera, respectively, and sentenced them to undergo five years' rigorous imprisonment each. He also convicted Karim accused under section 323, P. P. C. for causing injuries to Manak P. W. and sentenced him to three months' rigorous imprisonment. Rahim, Lai, Sikandar and Anwar accused were convicted under section 323, P. P. C. and sentenced to undergo three months' rigorous imprisonment each for causing injuries to Manak, Mutali P. Ws., Mst. Niamat (C. W.) and Mahni deceased, respectively. Haider and Nura accused were acquitted of all the charges.
2. Briefly summarized the facts of the prosecution case are these. Mahni deceased, his brother Manak (P. W. 3) and their mother Mst. Sattan owned about 18 acres of land in Chak No. 238, out of which Manak P. W. had six acres under his cultivation. The remaining land had been leased by Mahni deceased and Mst. Sattan to Haider accused, a few months before the occurrence. Haider accused, who originally was a resident of Chak No. 240, had come to live in Chak No. 238 some time before he took the land on lease from Mahni deceased. Anwar, Sikandar, Karim and Rahim are real brothers of Haider. Lai accused is his cousin. Nura accused is his father‑in‑law and Manzoor is the son of Nura. These seven accused are residents of Chak No. 240. ' This Chak is at a distance of 3 miles from Chak No. 238. It was alleged by the prosecution that Manak P. W. had sown some melons in one of his fields and somebody used to steal his melons. On the morning of the 4th of June 1959, Ahmad (P. W. 13), son of Manak P. W., aged about 16 years, went to have a round of his fields and saw Dulla son of Haider accused picking melons from the field. He had also let loose his horse in the melon field. Ahmad P. W. remonstrated with him and' there was an exchange of abuse between him and Dulla, whereupon Ahmad P. W. gave a few slaps to him. Haider accused was ploughing his field nearby and, on hearing the alarm, he came up but in the meantime Mahni deceas ed, uncle of Ahmad (P. W.), also arrived, upon which Haider accused and his son Dullah went away abusing Ahmad. On the same evening Mst. Nuran (P. W. 5), wife of Manak P. W. and Mst. Fatima, wife of Haider accused had an exchange of abuse over the morning incident, at the oven of Mst. Haliman (P. W. 14), the wife of Shera deceased. When this altercation was going on Manak P. W. appeared on the scene and was 'about to give a shoe‑beating to Mst. Fatima, but Shera deceased intervened and Mst. Fatima went away saying that she would see to it.
3. On the following day, at about 10‑30 a.m., Manak P. W. went to the dera of Yara Tarkhan (P. W. 6), where Haider accused and Muhammad Yusuf Lambardar (P. W. 10) were also sitting. Manak P. W. and Haider accused started abusing each other over the previous day's incident, but Muhammad Yusuf P. W. inter vened and both of them went away to their houses.
4. After taking their midday meals Manak P. W., accom panied by his son Muttali (P. W. 4) and his wife Mst. Nuran (P. W. 5), went to their dera in the land of one Farid, towards the north‑west corner of the village abadi and sat there under the shade of a tree. At about peshiwela they saw eight persons coming out of sarkanda bushes from the side of the bed of the old river. When the party reached near them, they identified the eight accused. Nura accused, who is aged 75, was empty‑handed, Haider accused had a phawra in his hand, while the remaining accused were armed with lathis. On seeing them coming towards them, Manak, Mutalli and Mst. Nuran P. Ws., apprehending danger, ran towards the village, but the accused overtook them and attacked them in front of the house of Yara P. W. Karim and Rahim accused were the first to open the attack by giving lathi blows to Manak. Lal accused gave lathi blows to Mutalli P. W. When Manak and Mutalli P. Ws. raised an alarm, Shera and Mahni deceased, Yara (P. W. 6), Mst. Fatima (P. W. 7) and Mst. Niamat (C. W. 1) were attracted to the spot. Shera deceased entreated the accused not to beat Manak and Mutalli, but at the instigation of Haider accused gave a lathi blow on his head and he fell down at the spot. Manzoor accused gave another blow on his head and he became unconscious. In the meantime Mahni deceased, who was entreat ing the accused not to fight, was given a lathi blow by Karim accused which hit him on his head and he fell unconscious at the spot. After he had fallen, Anwar accused give a lathi blow on his back. Sikandar accused gave a lathi blow to Mst. Miamat C. W. By this time, Karam Ali (P. W. 11), son of Manak, arrived. He had a lathi with him and he started giving blows to the accus ed, upon which the eight accused ran away towards the east by passing through the village abadi. Yara (P. W. 6), Muhammad Yusuf (P. W. 10), Karam Ali (P. W. 11) and Mutald (P. W. 4) chased the accused, Muhammad Panah, Gulzar and some other villagers also joined in the chase and they surrounded the accused in the land of Kangars and they succeeded in securing the accused. Muhammad Yusuf Lambardar P. W. took into possession the lathis, Exhs. P. 7 to P. 13, from the accused and brought them to the dera of Yara Tarkhan, where they were secured.
5. Manak P. W. then went to the police station Bhowana, at a distance of 8 miles where he lodged the report Exh. P. T. at 5‑45 p.m. After recording the report, the Sub‑Inspector Chaudhri Muhammad Abdullah (P. W. 20) prepared the injury statement of Manak and sent him to Civil Dispensary Bhowana for medical examination. He then proceeded to the village, where he found that Shera had died. After preparing his injury statement and inquest report he sent the dead body to Chiniot for post‑mortem examination. The Sub‑Inspector also prepared the injury state ments of Mutalli P. W., Mahni (who was lying unconscious) and Mst. Niamat C. W. and sent them to the Civil Dispensary Bhowana for medical examination. Muhammad Yusuf Lambar dar P. W. then produced the eight accused and the lathis, Exh. P. 7 to P. 13, before the Sub‑Inspector. All the accused had injuries on their persons and, after preparing their injury statements, the Sub‑Inspector got them medically examined. He collected some bloodstained earth from in front of the house of Yara Tarkhan. Mahni died in the Civil Dispensary Bhowana on the 6th of June 1959, at 11‑30 a.m. and an intimation to that effect was sent by the Medical Officer, Bhowana Dispensary, to the Police Station Bhowana. Moharrir Head Constable Muhammad Sadiq (P. W. 19) after preparing the inquest report relating to Mahni, sent the dead body to Chiniot for post‑mortem examination. After complet ing the investigation, the eight accused were sent up for trial.
6. At the trial, twenty-one witnesses were examined in support of the prosecution case and Mst. Niamat was examined as a Court witness. The accused denied the allegations of the prosecution and stated that as Mahni and his brother, Manak, wanted to eject Haider accused from the land which he had taken on lease from Mahni, all the accused had gone in a Jirga and, while the negotiations were going on in front of the house of Yara Tarkhan, the complainant party attacked them and some of them gave blows in self‑defence. They did not call any witness in their defence.
7. The learned Additional Sessions Judge disbelieved the prosecution case that there had been an exchange of abuse between Mst. Nuran, wife of Manak P. W., and Mst. Fatima wife of Haider accused at the oven of Mst. Haliman, and that there had been two incidents on the day of the occurrence in front of the house of Yara Tarkhan. He also disbelieved that the eight accused had come armed from their Chak to attack Manak P. W. He further disbelieved the story that the accused after giving beating to the two deceased and the P. Ws. had run away towards the east and had been captured by the P. Ws. in the field Kangars. After carefully reviewing the evidence on the record, he accepted the defence version that the accused had come there in a jirga to request Mahni deceased and Manak P. W. not to eject Haider from the land, and held that while the negotiations were going on, a sudden fight had developed in which both the parties were injur ed. He also held that the accused had no motive to cause the death of either Shera or Mahni. He further held that each of the accused was responsible for his own act. He accordingly convict ed and sentenced the accused as mentioned above.
8. I have gone through the evidence very carefully and for the cogent reasons given by the learned Additional Sessions Judge I agree with all his findings except one that it was a sudden fight within the meaning and scope of Exception 4 to section 300 of the Pakistan Penal Code. The learned counsel, who appeared on behalf of the State, did not challenge the other findings before me. The learned Additional Sessions Judge has in his well con sidered judgment, dealt with almost all the relevant points, but he has somehow omitted to consider the most important plea raised on behalf of the accused. Their plea was that the two deceased and Manak and Mutalli P. Ws. were the aggressors and it was only in the exercise of the right of private defence, that some of the accused had caused injuries to the opposite party. The learned Additional Sessions Judge does not seem to have applied his mind to this aspect of the matter and has not given any finding on it. The medical evidence shows that 36 injuries were found on the persons of the accused who were all injured. As against this, only 11 injuries were found on the persons of the two deceased and Manak, Mutalli P. Ws. and Mst. Niamat C. W. In view of the findings of the learned Additional Sessions Judge and the evidence on the record, I have no hesitation in holding that the plea of self‑defence raised on behalf of the ac‑used gets support from the prosecution to the extent of being reasonably possible. When the case for the prosecution is subject to such grave doubts as have been enumerated by the learned Additional Sessions Judge, there is no justification for holding that it was a sudden fight in the sense that both the parties bad simultaneously started attacking each other. The large number of injuries found on the persons of the accused as compared to the small number of injuries found on the persons of the complainant party, clearly show that the complainants were the first to attack the accused. The fact that all the accused were captured at the spot further indi cates that they were outnumbered. It is impossible to believe that Karam Ali and Mutalli P. Ws. could have caused so many injuries. It is indeed significant that Karam Ali P. W. bad escaped unhurt. In the circumstances of the case, it is reasonable to infer that while the accused were being attacked by the complainant party, some of them had managed to cause a few injuries to the two deceased and the P. Ws. It is true that in the case of both the deceased the fatal injury had been caused with considerable force, but that is immaterial for judging whether the accused had acted in the exercise of the right of private defence or not. It is also true that all the injuries found on the persons of the accused were simple, but that again is besides the point. The law relating to self‑defence makes the accused the judge of his own danger and permits him to repel the attack, even to the taking of life. We are to judge him by placing ourselves in the same position in which he was placed.
9. It is now well‑settled that even if the accused is not able to substantiate his defence by producing evidence, yet if his version gets support from the prosecution to the extent of being reason ably possible, then the accused is certainly entitled to an acquittal. It has been so held by the Supreme‑Court of Pakistan in Shamir alias Shamla v. The State (PLD1958SC242). It will, however, be correct to says that in view of the Explanation to Exception 4 of section 2 00. P. P. C. it would be immaterial which party offers the provocation or commits the first assault. But before this Exception is applied, the essential conditions, laid down in this Exception must exist. I am of the opinion that this Exception applies only to those cases, where on a sudden quarrel, both the parties begin to fight upon an equal footing. In such cases, it is of course immaterial, which party offers the provocation or commits the first assault, because the combat is mutual. It does not, however, mean that if on a sudden quarrel a person attacks another with some weapon, then the person attacked, if he kills his assailant, cannot avail of the plea of self‑defence. I would like to illustrate this point by giving an example. Suppose two persons who bear no ill‑will against each other, are sitting in a restaurant talking to each other, and in the course of the talk they suddenly begin to quarrel. If in the course of the sudden quarrel one of them whips out a knife and starts giving blows with it to the other, can it be said that if the person attacked kills his assailant by shooting him dead, the plea of self‑defence is not open to him, and he is only entitled to the benefit of Exception 4 to section 300, P. P. C. In a case or this nature, I am of the view that the person attacked cannot be held guilty of any offence because under the provisions of section 100 of the Pakistan Penal Code he is perfectly justified to n kill, his assailant. But if both of them simultaneously take out their weapons and attack each other, then Exception 4 would certainly apply.
10. In the present case, I have no doubt in my mind that the complainants and the two deceased were the first to attack the accused with lathis and as such the accused had a reasonable cause to apprehend that at least grievous hurt would otherwise be the consequence of such assault. The case is, therefore, clearly covered by section 100 of the Pakistan Penal Code, and the right of private defence extended to the voluntary causing of death of their assai lants. In. my opinion, Exception 4 to section 300, P. P. C. had no application to the facts of the case. In this view of the matter the appellants are entitled to an acquittal. I accordingly accept these appeals and, setting aside their convictions and sentences, acquit them. They shall be set at liberty forthwith.
11. Although the remaining accused, namely, Rahim, Sikan dar, Lal and Anwar have not filed any appeal against their convic tions and sentences, and by now they must have undergone their sentences, yet in the view which I have taken as regards the' merits of the case, they are also entitled to an acquittal. I, therefore, set aside their convictions and sentences also, in the exercise of the revisional jurisdiction of this Court under section 439 of the Code of Criminal Procedure.
K. B. A. Appeals accepted.
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