1990 PLP 249 (MLD)

4. The post‑mortem on the dead body of Muhammad Bakhsh was conducted by Dr. Muhammad Akhtar Khan PW‑1, who had reported the following injuries on his corpse:‑ (1) Penetrating wound on the left side of back just outside the lateral border of scapula 3‑1/2 c.m. x 2/3 c.m. (2) Penetrating wound in the region of left posterior axillary fold, 3 cm x 3/4 cm. (3) Penetrating wound about 2 cm x below lateral one‑third of left clavical 3‑1/2 cm x 3/4 cm. (4) Penetrating wound close to the angle of mandible on left side 3 cm x 3/4 cm. This Medical Expert has opined that all the injuries were collectively sufficient to cause death in the ordinary course of nature and semi digested food was found in the stomach of the deceased.

5. Muhammad Siddiq PW‑8 has narrated the incident, as stated in the F.1.R. He is also a witness of the recoveries of the knife P.7, Hawai Chappals P.8/1‑2, amulet P.9, lock. P.11 and brick P.12. When subjected to the cross examination, he has stated that the deceased in an injured condition had only stated before them that the assailant was a thief, who was killing him. His shop is situate in Chowk Bazar, Bahawalpur, at a distance of one mile, but he had come to have his meals at the time of this incident. He has pointedly stated that when he returned from his shop at 3‑30 p.m., he had seen Muhammad Bakhsh, while passing in front of his house, going inside his house after parking his bus and he heard an alarm from his house ten minutes later. It shows that Muhammad Bakhsh was already in his house when the incident took place. About the F.I.R., he has elucidated that he made a statement to the ASI 'in the narrative form and had asked the police that one person had injured another with a knife behind Lari Stand, Bahawalpur, and they should come there promptly and the police went to the spot and he followed them and the ASI then made inquiries about the occurrence from the complainant, Allah Bakhsh and other people, who were present there. His signatures and the signatures of Allah Bakhsh were obtained by the police on papers and his signatures were obtained on the same paper and not on a separate paper.

6. Allah Bakhsh PW‑9 has endorsed the fact that he was present in his house and he heard the voice of Muhammad Bakhsh, who was calling thief, thief, and he and Muhammad Siddiq went there and saw the appellant injuring him with a knife. He has stated that he had heard the alarm after about half an hour of reaching Muhammad Siddiq in the house.

7. Faiz Bakhsh PW‑10 has testified that the accused was apprehended by them near Octroi Post Bindra. Maddad Hussain ASI PW‑11 had investigated this case. He has deposed that he had recorded F.I.R. Ex.P.C. and had effected the recoveries. He has added that no bunch of keys or any implement for theft was recovered from the appellant and no keys were found with the deceased when he conducted the investigation.

8. The appellant, in response to question No.8 of his statement made under section 342 of the Cr.P.C., has explained as under:‑‑ "Muhammad Bakhsh deceased was a driver of the bus. I came in contact with him at Driver Hotel, Musafirkhana, where I was servant. I was turned out from that hotel. Muhammad Bakhsh promised that he would get me employed as conductor of the bus. He brought me to his house with him. He wanted to commit sodomy with me there. He also put the condition of commission of the said act for my employment. I refused and wanted to run away. He tried to overpower me. In order to save myself from the commission of act of sodomy, I picked up a knife meant for vegetable cutting from there and inflicted injuries on the person of the deceased. I had myself gone to the Police Station to inform the police about the occurrence. The fake recovery of knife P.7 was planted on me."

9. The prosecution case is that the appellant was stealing the articles of Muhammad Bakhsh when he reached there and, as a thief, he had injured Muhammad Bakhsh. Muhammad Siddiq PW has specifically stated that he had seen Muhammad Bakhsh entering his house while parking his bus outside and the incident took place ten minutes later. Allah Bakhsh PW has stated this time as thirty minutes. When Muhammad Bakhsh deceased was present in his house, it was not expected of the appellant to have stolen his articles at day time. The story that the appellant had opened the door of the courtyard, as proved from the site plan Ex.P.8/1, does not seem to be true because the house of Muhammad Bakhsh deceased was located in a populated area and the appellant was not expected to break the lock fixed near the lane by a brick in the presence of the inhabitants of the neighbouring houses. In the F.I.R. it has been stated that Muhammad Bakhsh had named Muhammad Zaki, who had broken his lock and was stealing his articles. It shows that Muhammad Bakhsh deceased knew the name of Muhammad Zaki appellant before this incident. In case, the deceased had come after the arrival of the appellant in his house, he must have a key in his pocket or in his hand to open the door of his courtyard. But no such key was found with him by the police.

10. According to the medical report, the mandible of Muhammad Bakhsh had been cut and the left lung had also been punctured. There are only four injuries on the person of Muhammad Bakhsh. When the complainant and Allah Bakhsh went there, Muhammad Siddiq PW was having his meals and it is not probable that he reached there abruptly to see the assailant giving injuries to Muhammad Bakhsh, as if the four injuries could be inflicted in a moment. The appellant had thrown his knife there and two persons like Muhammad Siddiq and Allah Bakhsh could have apprehended a lad of fifteen years on the spot.

11. The eye‑witnesses did not know what happened just before this incident. The person, who is a sodomist will not make an alarm that he wanted to commit sodomy and he would make some other pretext in raising the alarm to attract the people. In the circumstances, the defence version put forth by the appellant rings true. He was a lad of Fifteen years at the time of this incident and has explained that he was jobless and the deceased had promised to get him the job of a bus conductor and he went to his house where the deceased endeavoured to gratify his unnatural lust and he, in exercise of the right of his private defence, gave knife blows to him.

12. Muhammad Rafiq PW‑6 has conceded the fact that the wife of the deceased had predeceased him and no other family members of the deceased resided with him in Qasim Colony, Bahawalpur. He posed ignorance about the fact that the deceased was a drunkard and the inhabitants of the Mohalla were weary of his habit of drinking. Furthermore, the recovery of the amulet from the spot is indicative of the fact that there was some struggle between the deceased and the appellant. It lends credence to the fact that an attempt to commit sodomy was really made.

13. Mr. Muhammad Akbar, Advocate, learned counsel appearing for the State and Mr. A. H. Gilani, Advocate, learned counsel appearing for the revision petitioner, have contended that even if the version put forth by the appellant is taken to be true, then he had exceeded his right of private defence and he could have run away after inflicting one or two injuries. I do not countenance this argument because under section 100 of the PPC, the right of private defence, in cases where the sodomist attempted to commit sodomy, extended to the causing of death. In a similar case, namely, Muhammad Ilyas. v. The State 1981 P Cr. L J B 76, seventeen injuries were caused on the person of the deceased by the appellant and the Division Bench of this Court had held that some excess in causing harm to the deceased was condonable. The same principle has been enunciated in Muhammad Idress. v. The State PLD 1965 (W.P.) Lahore 553, Najib Raza Rehmani. v. The State P L D 1978 Supreme Court 200 and Bahawani Shankar. v. The State ( 1989 P Cr. L J 504). It may be noted that Muhammad Siddiq PW has stated that he had gone to the Police Station in order to make a report that one person was injuring another and then he accompanied the Police Officer at the spot and signed there. He has added that the Police Officer had made inquiries on the spot from the people. It shows that the F.I.R. was lodged after due deliberations.

14. In the circumstances of the case, I accept this appeal and set aside the conviction and sentence awarded to the appellant and acquit him of the charge framed against him. He was released on bail. He stands discharged of his bail bond.

15. As the appeal has been accepted, the Criminal Revision intended for the enhancement of sentence stands dismissed. N.H.Q./M‑1804/L Appeal accepted.