1989 PLP 4913 (MLD)

In his opinion the death had occurred due to shock and haemorrhage resulting from injury No.

1. The injury was sufficient to cause death in the ordinary course of nature. Dr. Muhammad Nazir Chatha, SMO, DHO Hospital Faisalabad, PW‑10, examined Mumtaz injured accused on 8‑2‑1987, at 11‑30 a.m., and found the following injuries on his person:‑‑‑ (1) A lacerated wound 1 cm x 3/4 cm x scalp deep on the top of head. (2) Abrasion 1/2 cm x 1/2 cm on front right knee. (3) Complaining pain on right wrist. (4) Complaining pain on middle finger left hand at distal part. (5) Abrasion 1 /2 cm x 1/2 cm on back of right elbow. All the injuries were simple in nature and caused by blunt weapon.

4. The prosecution in support of its case produced 11 witnesses in all. Haq Nawaz, PW‑1 recorded the formal F.I.R., Exh. PA on the statement of Mubarik Ali. Dr. Muhammad Ajmal Mian, PW‑2, had conducted the post‑mortem examination. Aurangzeb, PW‑3, prepared site plan Exh. PC, on the direction of the police. Shaukat Ali ASI, PW‑4, produced register whereby Mumtaz accused was entered as a Member of the Club as a boxer. Ijaz Hussain, PW‑7 deposed about the incident which look place a day earlier between Ibad Ali deceased and Mumtaz accused. According to him he was informed about the incident by the deceased. The eye‑witness account has been furnished by Mubarik Ali and Abdul Ghafoor, PWs. 8 and 9 respectively. Dr. Muhammad Nazir Chatha, PW‑10 had examined the appellant. The case was investigated by Kifayat Hussain Shah, SI, PW‑11.

5. At the conclusion of the prosecution evidence the appellant was examined under section 42 Cr.P.C., wherein he refuted the entire prosecution allegations and pleaded innocence. In answer to a question he stated that he was a friend of the deceased and on the day of incident while he was passing by the hotel of the deceased, the deceased called him and again started an argument with him and also assaulted him whereupon he gave a fist blow which resulted in the death of said Ibad Ali. It is contended by learned counsel for the appellant that the case against the appellant is that he gave two fist blows which resulted in the death of the appellant. Submits that in such circumstances the application of section 304 Part II P.P.C. would be highly doubtful when the appellant had right of private defence available to him. Submits that the assertion of the appellant that he was attacked first and thereafter he gave a fist blow to the deceased is corroborated by the statement of the doctor who found the appellant injured. Submits that in any case the sentence awarded to the appellant is too harsh. The contentions have been opposed by learned counsel for the State as well as for the complainant. According to the learned counsel for the complainant, the appellant came to the shop of the deceased, dragged him from his seat into the lane and thereafter gave two fist blows. Contends that the appellant was a boxer that is why he gave fist blow with such force that even the bran of the deceased was damaged, therefore, it was a case for enhancement of punishment.

6. I have heard learned counsel and gone through the evidence with their assistance. As far as the place and time of occurrence are concerned it is accepted by both the sides The only question which requires to be determined is whether the right of private defence was available to the appellant or not and if so what offence was committed. In this respect the eye‑witness account had been furnished by Mubarik Ali and Abdul Ghafoor, P.Ws. 8 and 9, respectively. Both of them had asserted that within their view the appellant came to the hotel of the deceased and after catching him from his collar he pulled him in the street and thereafter gave two fist blows. Thereafter another brother of the deceased in order to rescue him came and gave a Danda blow on the head of the appellant. This would clearly indicate that the intention of the appellant was to teach Ibad Ali deceased a lesson for having insulted him a day earlier. The appellant chose the most vital part of the body, i.e. neck for giving fist blow. As far as the plea of the appellant is concerned that he acted in the right of private defence that is not available to him. The prosecution story that the appellant was injured after he had given fist blows to the deceased is convincing and can safely be relied upon. In such circumstances, I hold that the right of private defence was not available to the appellant. However, the intention of the appellant was clear from the fact that he went to the shop of the deceased and dragged him into the lane and thereafter gave two fist blows on the neck of the deceased which resulted in his death. In these circumstances, I feel that the sentence awarded to him may not be in proportion to the act committed by the appellant therefore while dismissing his appeal, I reduce the sentence of imprisonment from 7 years R.I. to 5 years R.I. The sentence of fine shall, however, be maintained. The appellant shall also be given the benefit of section 382‑B Cr. P.C. For the same reasons the revisions of the complainant are also dismissed. SA./M‑1659/L Sentence reduced.