P L D 1959 (W (PLP)

HABIBULLAH KHAN, J.‑In this case one Mst. Mahmooda Jan was killed and four others, namely, Faqir Muhammad (P. W. 5), Mst. Bilqis (P. W. 6), Mst. Tazim Begum (P. W. 8) and Mst. Bibi Gohar Taj (P. W. 9) were injured with gun and revolver shots on the 7th January 1957, at digar time in the house of Pir Muhammad (P. W. 4) in village Manakrai, situated at a distance of about two miles from Police Station Haripur. Bashir Ahmad (60), P. S. P., a retired Superintendent of Police of the same village, was tried in the Court of K. Faizullah Khan, Sessions Judge Hazara, on charges under section 302, P. P. C. and section 307, P. P. C., on five counts. He was convicted and sentenced as under:‑ (1) Convicted under section 304 (1) P. P. C. and sentenced to imprisonment till the rising of the Court and a fine of Rs. 6,000, or in default to 2 years' R. I. Out of the fine, if recovered, an amount of Rs. 3,000 was directed to be paid to the heirs of Mst. Mahmooda Jan deceased as compensation. (2) Convicted under section 308 P. P. C. (on three counts) in respect of the injuries caused to Mst. Bilqis, Mst. Tazim Begum and Mst. Bibi Gohar Taj, and sentenced to imprisonment till the rising of the Court and a fine of Rs. 1,000, or in default to 3 months' R. I. on each count. He was acquitted of the charge under section 307, P. P. C. (on two counts) in respect of the attempted murder of Pir Muhammad (P. W. 4) and Faqir Muhammad (P. W. 5). Bashir Ahmad has appealed. The State has also preferred an appeal against his acquittal. Two revision petitions have also been filed, one by the State and another by Pir Muhammad (P. W. 4), for the enhancement of the sentences. The two appeals and the two revision petitions are being disposed of together. The parties are related to each other. Bashir Ahmad appellant is the father of Mst. Bilqis (P. W. 6), who is the wife of Faqir Muhammad (P. W. 5), Pir Muhammad (P. W. 4) is the father of Faqir Muhammad, while Mst. Tazim Begum (P. W 8) and Mst. Bibi Gohar Taj (P. W. 9) are his daughter and wife respectively. Mst. Mahmooda Jan deceased was the wife of one Raja Muhammad Sarwar Khan, a brother of Mst. Bibi Gohar Taj. The trouble between the parties resulting in the unfortunate incident originated in the marriage of Mst. Bilqis with Faqir Muhammad. She was married to Faqir Muhammad, who is a Head Constable in Karachi Police Force, about one year prior to the occurrence. A few days after the marriage, Faqir Muhammad went to Karachi leaving Mst. Bilqis behind in his parent's house. Mst. Bilqis, due to some differences with her parents‑in‑law, shifted to her father's house about three or four months before the incident and started living there. Faqir Muhammad came to his village on the 4th January 1957, on fifteen days' leave. On the morning of 7th January, Pir Muhammad father of Faqir Muhammad approached the appellant and asked him to allow his daughter Mst. Bilqis to return to his house as her husband had come there on leave. It is alleged that the appellant told Pir Muhammad that he was angry with his son‑in‑law, because he had not come to his house to pay respects to him. Pir Muhammad informed him that Faqir Muhammad was not feeling well, because he was tired on account of the long journey from Karachi to his village and also because he was suffering from cold. He, however, assured him that Faqir Muhammad would come to his house and pay his respects after he had recovered. According to Pir Muhammad, the appellant was unwilling, but his wife allowed Mst. Bilqis to return to her husband's house and she (Mst. Bilqis) accordingly accom panied Pir Muhammad to his house. It is alleged by the prosecution witnesses that the appellant went to the house of Pir Muhammad the same day at about 2 p.m. and asked his daughter Msr. Bilqis to go back to his house with him, because his son‑in‑law Faqir Muhammad had not gone to his house to pay his respects to him. Mst. Bilqis told the appellant to allow her to stay in her husband's house till the expiry of his leave. The appellant then asked Pir Muhammad to permit Mst. Bilqis to accompany him, but he also gave the same reply. At this the appellant left the house in anger. At about 4‑30 p.m. the appellant again appeared in the house of Pir Muhammad armed with a double‑barrelled shot‑gun challenging Pir Muhammad who was standing in a verandah and remarking as to how he had declined to allow his daughter to return to his house, the appellant aimed his shot‑gun at him and pulled the trigger. The pellets missed the target, but hit the wall. The report of the shot drew Faqir Muhammad out of the kitchen where he was present. The appellant fired at him also with the shot‑gun and got him on the inner and front part of his right elbow joint. After the second shot Mst. Tazim Begum, Mst. Bibi Gohar Taj, Mst. Mahmooda Jan and Mgt. Bilqis, who were also in the kitchen, came out into the courtyard. Pulling out his 6‑chambered revolver from the pocket of his coat, the appellant fired at the four ladies one by one and hit all of them. In the meantime, Muhammad Sabir (P. W. 10), a student and a son of Pir Muhammad, returned from his school. He grappled with the appellant in order to snatch the shot‑gun and the revolver from him. Muhammad Nawaz (P. W. 11), who was attracted to the spot from his hujra, also joined Muhammad Sabir and struggled with the appellant. The appellant seized the barrel of his shot‑gun and aimed a blow with it at Muhammad Sabir, but the wooden butt‑end hit the wall and the gun broke down near its forehand stock. Muhammad Nawaz and Muhammad Sabir ultimately succeeded in disarming the appellant, who left the house and went away. Pir Muhammad first removed the five injured persons to the civil hospital and then went to Police Station Haripur where he lodged his report. The shot‑gun and the revolver of the appellant were also handed over to the S. H. O. Muhammad Yusaf Khan (P. W. 18), who recorded the report. On arrival in the village, Muhammad Yusaf Khan recovered from the house of Pir Muhammad two 12 bore empty shells, one empty haversack, seven small pellets, a cardboard disc, a revolver‑bullet and a broken forehand stock of 12 bore shot‑gun. When the appellant was arrested, he was found injured. His shirt and coat, which he was wearing, were removed from his person. Both were torn, the shirt near its collar, and the coat near its shoulder. There were black marks on the coat at two places, and it was found to be soiled with mud. The appellant has given a different story. According to him, he had allowed his daughter Mst. Bilqis on the morning of occurrence to return to her husband's house. At digar time, as was his habit ever since his retirement, he went out for an evening stroll towards the fields with his shot‑gun for any chance game shooting. He was also carrying his revolver with him as usual. When he was returning home at late digar, he happened to pass near the house of his son‑in‑law which fell on his way to see as to how his daughter fared, for she had returned to her husband's house after a long separation and estrangement. Oki entering the house, he placed his gun against the wall of verandah and laid his haversack on the floor. He had hardly taken his seat, when his son‑in‑law Faqir Muhammad, his brother Muhammad Sabir and Muhammad Nawaz picking up different weapons approached him with a threatening attitude. Faqir Muhammad remarked, what "cheek" he had to visit their house, when he was not agreeable to his daughter's living with him. Before he had an opportunity to give a reply, a stick‑blow landed on his hand and another on his hand, followed by other blows on his body. He tried to pick up his gun, but it had been already seized by Muhammad Nawaz and Muhammad Sabir. There was a struggle over the gun which went off. The struggle over the gun resulted in breaking it and thereafter the women‑folk of the house also joined the others. They surrounded him and started giving him blows with pieces of firewood. Finding himself helpless and in danger of his life, he (appellant) pulled out his revolver from his pocket and fired at his assailants at random. According to him, the danger to his life was so great that he lost all balance of mind and did not know what he was doing, and that he fired the shots instinctively in sheer self‑defence. He also stated that he was suffering from ill‑health and was deficient in body and mind, being of about 60 years of age, and that he was prone to have temporary fits of loss of senses and understanding. Accord ing to him, he could not 'have attempted the lives of, his own daughter, son‑in‑law, and Mst. Tazim Begum whom he had brought up since her childhood and had given her education, unless he was compelled by them and others to resort to firing in self‑defence. Before we deal with the arguments addressed on behalf of the parties, it will be pertinent first to mention the injuries which persons on both sides have suffered. Mst. Mahmooda Jan deceased had an entrance wound ' in diameter on the lower and front part of her left ribs near the middle line, with a corresponding exit wound " in diameter on the mid scapular line at the level of the 9th and 10th ribs. Her stomach and spleen were injured, which caused her death in the hospital on the next morning. Faqir Muhammad had 20 entrance wounds of pellets in an area of 6' x 4 " on the inner and front part of his right elbow joint. Mst. Bilqis had received an entrance wound 1/4' in diameter on the inner side of her right thigh, with a corresponding exit wound 1/2" in diameter on the back of the same thigh. Mst. Tazim Begum had sustained one entrance wound " in diameter on the left side of her umbilicus. Mst. Bibi Gohar Taj had suffered one entrance wound ' in diameter on the upper and front part of her right chest, with a corresponding exit wound " in diameter on the lower part and back of her right ribs in mid scapular line. Bashir Ahmad appellant had sustained the following injuries :‑ (1) A contused wound 1 " x 1/6' skin deep on the right side of his scalp, with the .area around swollen: (2) A bruise 1 " x " on the lower eye‑lid, right side, with an abrasion 1/2" x 1/6' on the top. (3) Two bruises each 1/3' x 1/4' on the lower lip in the middle, with the adjoining two teeth shaky. (4) An abrasion 1/3' x on the back of right hand over the knuckle of index‑finger. (5) An abraded bruise 1/2" x 1/2" on the back of the right elbow joint. (6) An abraded bruise 1 " x 1" on the outer side of the right buttock at the level of the hip‑joint. According to the Doctor, who examined the appellant, all the injuries except No. 4 were the result' of direct blows and could not be caused during a struggle. The learned Additional Advocate‑General has argued that the visit of the appellant to the house of Pir Muhammad on the second occasion was pre‑arranged, accompanied by an intention to remove his daughter to his own house by force, since on the earlier occasion the same day he had been disappointed by Pir Muhammad and his son Faqir Muhammad, who had refused to allow him to take his daughter to his house, and that as such, when the appellant killed one person and injured four others, he would be guilty of murder and attempted murders. In his view Mst. Bilqis had been sent to her husband's house by her mother against the wishes and consent of the appellant. He, however, urged in the alternative that in case the appellant's convictions under sections 304 (1) and 308, P. P. C., were upheld, the punishment awarded by the trial Court should be appropriately enhanced. Sheikh Sajjad Ahmad Jan, who appeared for the appellant, contended that his client had been suffering from mental disorder and derangement since very long, as testified to by D. Ws. Nawabzada Muhammad Farid Khan, D.

1. G. Police, Doctor J. L. Uppal, Medical Officer, Peshawar University and Faqir Ahmad Saeed, Special Magistrate, that his mental condition amounted to "unsoundness of mind", rendering him incapable of knowing the nature of his act, as contemplated by section 84, P. P. C., and that therefore he. was entitled to the protection of this provision of law. He further urged that if the appellant ‑was not found to be of unsound mind, then he was entitled to clean acquittal also on the ground that he acted in the exercise of complete right of self‑defence, because the assault on him had confronted him with a danger to his life, or at least of a grievous hurt. Next he maintained that in case the appellant was found to have exceeded his right of, self‑defence, then in view of the particular circumstances of the case he deserved leniency and reduction in the punishment. The arguments addressed at the bar raise the following points for consideration: (1) Whether the act of the appellant amounted to murder in respect of the death of Mst. Mahmooda Jan, and to attempted murder in respect of the other injured persons and Pir Muhammad ? (2) Whether he was unsound mind at the time of the occurrence. (3) Whether he has acted in the exercise of complete right of self-defence. (4) Whether he has exceeded the right of self‑defence, and if so, in respect of whom ? (5) What would be the appropriate punishment, if the appellant was found guilty of any offence ? On close examination of the evidence, we have noticed that the prosecution witnesses have not only exaggerated their story, but have also freely mixed lies with truth in their statements, and have spared no efforts to paint the appellant as black as possible. If the prosecution evidence is accepted in its entirety, then we will have no alternative but to convict the appellant of murder and attempted murders. But, if we accept that much of their story which is found to be consistent with the circumstances of the case and appears to be highly probable, then we have to arrive at a different conclusion. In order to get at the truth, we proceed to examine the salient features of the evidence. The first question to consider is, whether Mst. Bilqis was brought back to her husband's house by her father‑in‑law Pir Muhammad on the morning of the occurrence with or without the consent of the appellant. Pir Muhammad stated in the trial Court that when he approached the appellant to allow his daughter to accompany him to his house, he (appellant) expressed his anger at the conduct of his son‑in‑law Faqir Muhammad for not having paid his respects to him on his arrival from Karachi. The witness, however, pacified him with a reply, that Faqir Muhammad was feeling unwell and that he would come and pay respects to him when he recovered. The witness went on to say that the wife of the appellant allowed her daughter to accompany him, and this she did against the wishes and consent of the appellant. We are unable ‑ to believe that the man who could go armed to the house of Pir Muhammad the same day after a few hours, determined to bring back his daughter forcibly and to kill every‑body who offered resistance, was simply helpless in his own house when Pir Muhammad was taking away his daughter against his consent and in spite of his stiff opposition. It is not the prosecution case, that the shot‑gun and the revolver snatched from the appellant at the time of the occurrence were borrowed by him from some body for the purpose of carrying out his criminal plan. In fact, these are the appellant's own arms, licensed in his name. It is not necessary to examine other evidence to prove the false‑hood of this allegation, because it is quite clear from Pir Muhammad's own report that the appellant never opposed the return of his daughter to the house of her husband. In this report, Pir Muhammad stated : " My son Faqir Muhammad has come to his house from Karachi since three days on fifteen days' leave. His wife Mst. Bilqis Begum was in the house of her father. This morning I went to the house of Bashir Ahmad. Bashir Ahmad was present there and I brought Mst, Bilqis Begum to my house," This statement of Pir Muhammad in his report clinches the matter and leaves no room for doubt that the belated story that Mst. Bilqis had left her parents' house against the whishes and consent 'of her father, is a pure fabrication deliberately made with a view to preparing ground for another invention to which we will presently refer. Pir Muhammad and the injured persons have all stated in a chorus, that the appellant visited their house at 2 p.m., and demanded the return of his daughter to his house, but that they did not agree, and that thereafter he left the house and returned at about 4‑3U p.m. armed with a shot‑gun and a revolver. This story would have impressed us, if we had been convinced that Mst. Bilqis was brought back, to his. house by Pir Muhammad despite the opposition of the appellant. But, as already pointed out, we have rejected the allegation as false, that Mst. Bilqis returned to her husband's house with her father‑in‑law in spite of the opposition of her father, of against his approval. It is most unlikely that the appellant without any rhyme or reason would demand the return of his daughter to his house at 2 p.m. when hardly two hours earlier she had left his house with his consent, and nothing whatsoever had occurred during the intervening period. We feel no hesitation in remarking, that the story of the visit of the appellant to the house of Pir Muhammad at 2 p.m. has been simply cooked up with a view to magnifying the main incident, and also in order to show that the appellant had visited the house on the second occasion in pursuance of a prearranged plan to attempt the wholesale massacre of the entire family, if he was resisted. Now that we find that Mst. Bilqis had returned to her husband's house either with the express or implied approval of the appellant and that he (appellant) did not visit the house of Pir Muhammad at 2 p.m., question arises as to why the appellant went to the house of his son‑in‑law at digar time. In this connection, there are two conflicting stories. While the prosecution case is that the appellant visited the house with an intention to remove his daughter forcibly and if opposed, to kill everybody who stood in his way, the defence plea, as already mentioned, is that the appellant while on his way back home after the usual evening stroll in the fields, happened to pass near the house of Pir Muhammad which fell on his way, and went in to see his daughter who had returned to her husband's house after a long separation. We are unable to persuade ourselves to accept the prosecution story, because the appellant had no cause whatsoever to arm himself, to go to the house of Pir Muhammad and commit murders, when the matter in respect of the return of Mst. Bilqis to her husband's house had been amicably patched up at about noon time. If the appellant did not visit the house of Pir Muhammad with an evil intention, then we cannot but accept the defence version, that the visit of the appellant was casual and for an innocent purpose. Next we have to see, as to how the tragic incident started. It will be recalled that it is common ground between the prosecution and the defence, that Mst. Mahmooda Jan met her death and Faqir Muhammad and the other three ladies received their injuries at the hand of the appellant. But that alone is not sufficient for our purpose. We have to find out, whether it was the appellant who without any reason opened fire at the inmates of the house indiscriminately, killing one and injuring four others, or the mischief was started by the complainants' party. The prosecution story sounds inherently improbable, and there is also some circumstantial evidence which does, not support it. As such, we cannot accept it at its face value. We may also point out, that the defence story to a great extent accords with several of the circumstances of the case which have been brought on the record. We have earlier pointed out the injuries sustained by the appellant in the fight. Initially the burden lay on the prosecution to show satisfactorily, as to how the injuries were caused to the appellant, and if the burden had been discharged, we would have proceeded to examine the defence version to find out, whether it is possible to accept it in preference to the prosecution explanation. That all, but one, injury of the appellant are the result of direct blows is abundantly established by the medical evidence, and is not a matter open to controversy. There is no suggestion from the other side that the injuries are self‑inflicted. The F. I. R. lodged by Pir Muhammad, who is an eye‑witness, throws no light on the point, as to how the appellant was injured. It makes no mention of this fact at all: Attempt was made at the enquiry stage to find out the truth about these injuries and an opportunity was given to the prosecu tion witnesses to explain, but they all expressed complete ignorance. For the first time, they came forward in the trial Court with the somewhat artistically woven story, that after Faqir Muhammad and the four ladies were injured and the appellant left the house Muhammad Saleem, a minor boy of 10/11 years and a student of 7th class, who providentially arrived at that particular moment, picked up a danda and belaboured the appellant in the street. The story might have given con solation to the prosecution witnesses that they have satisfactorily explained away the injuries of the appellant, but we are not quite sure, whether the story has convinced the learned Additional Advocate‑General. To us it appears simply preposterous. It is significant to point out that neither this gallant student has been produced in Court for evidence, nor his stick (danda) has been exhibited. We are also unable to accept the suggestion that the appellant was beaten after the five persons were shot at and injured. It will be recalled that the persons involved in the incident are Pir Muhammad, Faqir Muhammad, Mst. Bilqis, Mst. Tazim Begum, Mst. Bibi Gohar Taj‑and Mst. Mahmooda Jan. There was no other inmate of the house present at the time of the occurrence. Pir Muhammad is a retired Subedar and is of about 65 years of age. Of all the members of the family mentioned above, he is the only person who has sustained no injury what soever. There is also no evidence on the record to show that he actively participated in the fight. It will be, therefore, reasonable to, presume that he did not give any beating to the appellant. As to the other persons of the house, all of them were wounded either with pellets or with bullets, and therefore it is not easy to imagine that after they were injured, they were in a position to overpower the appellant and cause him injuries with weapons. So far as Muhammad Sabir and Muhammad Nawaz go, they gave no blows to the appellant. The facts and circumstances referred to above clearly entitle us to draw the conclusion, that the appellant was assaulted and injured before he used his shot‑gun and revolver. We believe that he had no motive to have recourse to shooting straight way on his arrival in the house of Pir Muhammad without something having preceded the incident. There is strong circumstantial evidence which tends to show, that the appellant had gone out for a stroll and chance game shooting. The police has recovered a haversack from the scene of the occurrence, which was empty and contained nothing. It is the type of haversack, which is usually carried by Shikaris. It is not quite understandable, as to why this haversack was being carried by the appellant, if it was not for the purpose of putting in it some bird if killed. The police also picked up a number of pellets from the verandah of the house of Pir Muhammad. We have examined these pellets in Court. They are of a very small size, apparently of a No. 8 or No. 7 .12 bore cartridge. Such small pellets are seldom used for the purpose of committing murders. If the appellant had come to the house with an ulterior motive, he could have very easily loaded his double‑barrelled shot‑gun with more lethal cartridges. The shirt and the coat removed by the police from the person of the appellant after his arrest were found torn. There were black marks on the coat and it was also smeared with mud. It will be helpful to recall, that the deceased and the other ladies were in their kitchen, when the appellant entered the house. They came out when the trouble started. It appears to us that the ladies bad emerged from the kitchen with pieces of partially burnt firewood in their hands and they gave beating to the appellant with them. The black marks on the coat seem to have been caused with the impact of the firewood pieces. They do not admit of a reasonable explanation on any other hypothesis. Judging the case from the facts and circumstances mentioned above, it appears to us that the appellant while passing near the house of Pir Muhammad on his way back home just dropped in to see his daughter, who had returned to her husband's house that noon after a long separation. It was but natural for him to find out, if the husband and the wife had been actually reconciled. Faqir Muhammad, the husband of Mst. Bilqis, does not appear to us to be quite respectful towards his father‑in‑law. He had returned from Karachi some three or four days before the occurrence and yet he did not observe the ordinary rules of the Code of conduct to make a courtesy call on his elderly father‑in‑law who was living in the same village, though he had desired his wife to return to his house. It appears to us, as is stated by the appellant, that on his entry into the house Faqir Muhammad adopting a menacing attitude taunted him for his uninvited visit to their house. The appellant also might have given a retort to the taunt. Since the appellant had placed his gun against the wall of the verandah and revolver in his pocket was not visible, Faqir Muhammad finding an opportunity to settle accounts with him assaulted the appellant first. Thereafter the appellant rushed towards his gun, picked it up and fired a shot at Faqir Muhammad who was wounded. It is very difficult to say with any degree of certainty what actually happened subsequently, but it is fairly, obvious that a struggle between the appellant and his assailants started over the gun which went off and also broke down. There is no mark on the gun, nor any found by the investigating officer on the wall which is alleged to have been struck by the weapon, to indicate that the appellant aimed a blow at Muhammad Sabir, but it fell on the wall and the gun broke down. The blood of the appellant had been already heated by the assault and when he found himself surrounded by the ladies who were giving blows to him with firewood pieces, he fired at them also with his revolver. We have noticed that Faqir Muhammad and the four ladies have been all injured on the front parts of their bodies. This fact clearly indicates that at no stage of the fight had any one of them retreated and that they were standing at a short distance from the appellant, because in the normal course a shot with a revolver cannot easily hit the target from a distance. It has been argued by the learned Additional Advocate‑General that the act of the appellant was cruel and uncalled for inasmuch as he fired at ladies. His argument is obviously based on the assumption that the ladies were passive and innocent spectators and did not participate in the assault. We do not accept the argument, for the simple reason that no man in possession of proper sense would attempt at the lives of his relations, particularly his own daughter, unless they have made it inevitable for him to do so. It passes our comprehension, as to why the appellant shot at his own daughter and for that matter, at the other ladies, if they had not assaulted him. No doubt it looks cruel and somewhat unusual that a man should shoot at ladies, but we must not lose sight of the situation in which the appellant was placed. Either he had to defend himself against everybody, no matter whether he was a man or a woman, or he had to submit to the fate which had overtaken him, or he had to run away like a coward. It was for him to make the choice, and now that he has made it, it becomes our duty to find out, whether he has acted within the limits prescribed by law. We are not unaware of the requirement of section 105 Evidence Act to which the learned A. A. G., has drawn our attention, that the burden of proving the existence of circums tances bringing the case within any of the Exceptions is upon an accused person, but it shall have to be conceded, that when the prosecution story is found false on material particulars, and the accused has succeeded in creating doubt and the circums tances of the case are more consistent with his story than that of the prosecution, the benefit of doubt will be given to the accused person. It is also an established principle of criminal jurisprudence that if there are two theories, one compatible with the defence story and the other with the prosecution story, the theory compatible with the defence story shall have to be accepted. In the present case, the possibility of the truth of the defence story cannot be completely ruled out, and as such we cannot reject it straight way. As to the plea of insanity raised by Sheikh Sajjad Ahmad Jan, we believe the defence evidence, that the appellant is suffering from some sort of mental subnormality, and that the slightest provocation or a trifling matter is sufficient to fire his anger into explosive action, but that does not mean that he was of unsound mind at the time of occurrence incapable of knowing the nature of his act, or that what he was doing was either wrong or contrary to law, as contemplated by section 84, P. P. C. It appears to us that the appellant is not enjoying sound health, is short‑tempered and emotional and gets upset over a petty matter, but he is not of unsound mind so as to avail of the protection of section

84. After the factual position of the case has been stated, we will now proceed to assess the liability of the appellant in relation to each of the charges. We are not satisfied that he fired any shot at Pir Muhammad (P. W. 4). The trial Court has acquitted him of the charge in this behalf and we agree with the finding. As to the charge in respect of Faqir Muhammad (P. W. 5), the trial Court has given the appellant the benefit of complete right of self‑defence. We find that Faqir Muhammad was one of those who assaulted the appellant and actually caused him injuries. Therefore, the protection of self‑defence has been rightly extended to the appellant. We have already pointed out, that the complainants' party was the aggressor inasmuch as they were the first to assault the accused. We also take cognizance of the fact that Mst. Bilqis (P. W. 6), Mst. Tazim Begum (P. W. 8) and Mst. Bibi Gohar Taj (P. W. 9) were amongst the assailants and were carrying firewood pieces. They seem to have given blows to the appellant with their weapons, but even assuming that they did not actually hit him but had only surrounded him, still the appellant would be entitled to a right of self‑defence, because he must have apprehended some sort of hurt at their hands, and as such he could cause them any injury short of death. Consequently, giving the right of self‑defence to the appellant in respect of the injuries of these three ladies, we acquit him of the charges (on three counts). The case of Mst. Mahmooda Jan stands on a different footing. No doubt, she had also joined the other assailants and probably was carrying a firewood piece in her hand. The appellant must have felt an apprehension that hurt would be caused to him, but there is nothing on the record to show that he had an apprehen sion that the deceased would cause him a grievous hurt. He could cause to Mst. Mahmooda Jan any injury in self‑defence, but could not kill her. Therefore, in her case the appellant has exceeded the right of self‑defence, and accordingly we uphold his conviction under section 304 (1), P. P. C., on this count. This brings us to the question of punishment in respect of the death of Mst. Mahmooda Jan. We agree that in view of the particular facts and circumstances of the case as well as his old age and social status, the appellant deserves leniency and sympathy, but we have also to vindicate the majesty of law. We have given this question our anxious thought and have arrived at the conclusion, that some substantial imprisonment must be awarded. Accordingly, while reducing the fine to a sum of Rs. 3,000 only to be paid to the heirs of Mst. Mahmooda Jan as compensation, we enhance the punishment of imprison ment till the rising of the Court imposed by the trial Court to a term of 2 years' R. I. In default of the payment of fine, the appellant will undergo 2 year's R. I. He will be treated as a special class prisoner. In the result, the State appeal against acquittal is dismissed, while that of the appellant against his convictions and the two revision petitions for the enhancement of the sentences are accepted to the extent indicated above. Out of the fine, if already deposited in the trial Court, amount in excess of Rs. 3,000 should be returned to the appellant. A.H. Order accordingly.