1975 P Cr (PLP)

Death in this case in his opinion was the result of shock and haemorrhage resulting from injury No. 1 which was sufficient to cause death in ordinary course of nature, Injury No. 1 was the result of some sharp‑edged weapon. All other injuries were the result of blunt weapon, most probably by fall. All injuries were ante‑mortem injuries. Time between injury and death‑1 to 2 hours, Time between death and post‑mortem‑ 8 to 12 hours. Dr. A. R. Arain examined Muhammad Anwar appellant, Muhammad Malik and Khadim Hussain (acquitted accused) and found the following injuries on their person:‑-- Muhammad Anwar. (1) A septic lacerated wound 1' x ' x skin deep on the left forehsad just above the eye‑brow. (2) Reddish brown contusion 1' x ' with swelling just below the left eye. (3) Reddish brown contusion with swelling 5' x 1' on the lower Medial of left forearm. Muhammad Malik: (1) A septic contused wound 1' x 1/3' X skin deep on the right forehead 1' above the eye‑brow. (2) Reddish brown contusion 1 ' x on the back of right elbow. (3) Abrasion covered with scab ' X 1/3' on the right knee. (4) Abrasion covered with scab 1' x ' on the upper left knee. (5) Abrasion covered with scab ' x 1/3' on the inner left knee. (6) Reddish brown contusion 1 ' x 1' on the upper right back. Khadim Hussain: (1) Multiple abrasiona 1 ' x 1 ' in area covered with scab on the mid back. (2) Abrasion 2 ' x ' on the lower left back. It was covered with scab. All the above injuries were caused by some blunt weapon, were simple in nature and their duration was two to four days.

5. In addition to the above medical evidence and that of recoveries, the prosecution had relied for its case on the testimony of Inayat Ali (P. W. 6) and Inayat Ullah (P. W. 7) only while Bashir, the third eye‑witness, was given up as won over by the other side. Anwar appellant, in his turn, admitted his participation in this occur rence and setting up a plea of self‑defence gave his version as under:‑ "On 5‑5‑72 at about 6‑30 a.m, I was going towards my dera and passed through the gall which runs in front of the house of the deceased. Malik and Khadim were going ahead of me. Inayat Ullah deceased armed with dang attacked Malik accused and injured him. Khadim accused advanced to rescue him. He was also injured by Inayat Ullah deceased and when I advanced to rescue Khadim accused, I was attacked and injured by Inayat Ullah deceased also, I had a knife. I gave a knife blow to the deceased after I got up after having fallen on the ground." Learned trial Judge, however, disbelieving tine entire prosecution case including the presence of the above‑named witnesses at the spot acquitted four of his co‑accused but convicted him on the basis of his own statement holding him guilty of an offence under section 304, Part II, P. P. C., for exceeding the right of private defence. This finding has been assailed before me as misconceived and erroneous being in conflict with the law laid down by the superior Courts.

6. On going through the record with care I am inclined to agree with this contention as taking into consideration the statement of Anwar appellant in its entirety he had committed no excess whatsoever in acting as he did in the circumstances disclosed by him fn his above statement. If the learned Judge had accepted the statement as true and correct account of the occurrence then Anwar appellant was fully protected in law for causing the death of Inayat Ullah deceased while intervening on behalf of Malik and Khadim Hussain (the acquitted accused). He had found Inayat Ullah deceased causing injuries to Malik and then Khadim Hussain when he came to his rescue which certainly justified his interference on their behalf, but Inayat Ullah deceased had the audacity of dealing with him in the same manner causing no less than three injuries to him with his Bang. Anwar appellant seems to have warded off one blow by his left arm but the second fell on his forehead involving his left eye as well which created a serious apprehension to his life at the hands of Inayat Ullah deceased against which Anwar appellant was legally entitled to defend himself even to the extent of causing his death. He had, however, caused a solitary knife blow which in the heat of that moment penetrated into his abdomen and felled him to the ground. The other minor abrasions found on his knee joints in the back of his buttock seem to have been suffered by him by his fall on the ground as conceded by the medical witness in this case. Anyhow, Anwar appellant could not have been expected to modulate his defence stop by step in the situation he found himself at that time as held in a large number of cases and recently reiterated by the Supreme Court in Ahmad Din v. Faiz Ahmad and others (1972 SCMR 549).

7. As a result of the above discussion, I have no option but to accept this appeal and setting aside his conviction direct that Anwar appellant shall be set at liberty forthwith if not required in any other case by the police. Appeal accepted,