P L D 1954 Lahore 89 (PLP)

MUHAMMAD JAN, J.--Rahat Hussain, aged about 16 years, of Kot Isa Shah has been convicted under section 304 Part I. P. P. C and sentenced to ten years rigorous imprison ment. He has appealed. The prosecution case is that on 5th July 1952, at about 7 a.m., Akhtar Hussain, who was related to the appellant, was talking to Allah Bakhsh (P. W. 5) in front of the shop of Rahim Bakhsh (P. W. 6). He was saying disparaging things about Maulvi Ishrat Hussain who was related to him and to the appellant. The appellant told Akhtar Hussain not to speak against the Maulvi whereupon Akhtar Hussain abused the appellant and struck a blow at him with a lathi which fell on the shoulder of Allah Bakhsh and caused him a simple hurt. The appellant picked up a danda and struck Akhtar Hussain on the head with such' force that his skull was fractured and he died a few hours afterwards. There were two fractures to the skull besides three other injuries which are described by Dr. Ghaus Muhammad (P. W. 2), who performed the post-mortem examination, as contused areas on the hip, the buttock and the thigh, 3" x 3" x 6" x 4" and 4" x 1" respectively. He hid two abrasions also. The appellant's brother Waqar Hussain was also tried with him but was acquitted. The deceased appears to have been subjected to a fairly severe beating, perhaps by more than one man. The other man in the case, namely, Waqar Hussain, was acquitted because the prosecution witnesses did not say that he had struck the deceased and, so far as the appellant is concerned, they said that he had given only one blow to the deceased on the head. The impression is created that they were won over. Both the fractures of the skull under injuries Nos. 1 and 2, which were considered to be the result of lathi blows, were stated by the doctor to be individually sufficient in the ordinary course of nature to cause death. Therefore even if it be believed that the appellant caused only one injury to the deceased on the head, he inflicted an injury sufficient in the ordinary course of nature to cause death. His plea was that Akhtar Hussain aimed a blow at his head which fell on the shoulder of Allah Bakhsh and that gave him a reasonable apprehension that Akhtar Hussain would either kill him or cause him grievous hurt. The trial Court rejected that plea and held that Rahat Hussain appellant had beaten Akhtar Hussain in a sudden quarrel, without taking any undue advantage, and his case was covered by exception 4 to section 300, P. P. C. In a case of sudden fight it is immaterial which party offers the provoca tion or commits the first assault. The trial Court further held that Akhtar Hussain was given several blows by Rahat Hussain alone or with someone else and that he had no right of private defence. The learned counsel for the appellant has vehemently con tended that the order of the learned Sessions judge disallowing the plea of self-defence is perverse because the deceased had aimed a blow on the head of the appellant before the appellant struck him. The injury caused to Allah Bakhsh by the blow stated to have been aimed at the appellant was a simple bruise, 2" x 2 ". Such an' injury with an ordinary stick, even if it had been caused to the appellant himself, would not, in my opinion, have given him the right to kill the deceased. Even it be held that the appellant had some apprehension, that apprehension should not have been of anything more than simple hurt in view of the relations of the parties, the trivial nature of the quarrel and the weapon used by the deceased. To hold otherwise would be to .lay down the law that when ever a person is threatened with a stick he has the right to kill A the man carrying the stick. The appellant's case can, at the most, be covered by section 101 and not by section 100 P. P. C. In killing Akhtar Hussain he exceeded the right of private defence, if he had any, and even then his offence would fall under section 304, P. P. C. The learned counsel for the appel lant has sent in some cases which relate to apprehension of death or grievous hurt and are beside the point. I am not prepared to interfere with the conviction of the appellant but, in the circumstances of this case, I consider the sentence of ten years' rigorous imprisonment to be excessive. I, there fore, reduce the appellant's sentence from ten to five years' rigorous imprisonment and dismiss the appeal otherwise. A. H. Sentence reduced.