1981 P Cr (PLP)

In the opinion of the doctor both the injuries were caused by some sharp -edged weapon. Injury No. 1 was sufficient to cause death in the ordinary course of nature through shock and haemorrhage. Probable time between the injuries and death was one hour and between death and post‑mortem examination it was within 9 hours. The same doctor medically examined Muhammad Sarwar (P. W. 11) and found five simple injuries on his person within 8; 9 hours duration caused by a blunt weapon of course with the exception of injury No. I which was the teeth bite. Dr. A. R. Buryal on 21‑5‑1978, medically examined Muhammad Javed (P. W. 12) and found two simple injuries on his person which were caused by a blunt weapon and were fresh. The same doctor on the same day medically examined Akbar Ali (P. W. 10) and found a lacerated simple wound on his person which was fresh. Dr. Muhammad Nazir Chatha (P. W. 13) medically examined Jived Ahmad accused and found sixteen‑simple injuries on his person. Two injuries were caused by a sharp‑edged weapon, while the rest were caused by a blunt weapon within the duration of 11 hours. The same doctor on the same day medically examined Parvez Ahmad accused and found seven simple injuries on his person caused by a blunt weapon within the duration of 11 hours.

5. The motive for this incident as given in the F. I. R. is that Javed Abmad, Parvez Ahmad appellants and lust. Nasira Parveen (acquitted co‑accused) had been challaned in an abduction case of a girl of the Mohallah named Abida Parveen and Muhammad Ramzan deceased had given evidence against them and further that the accused suspected that the deceased was helping their landlord in vacating the house an the occupation of the accused.

6. All the accused denied the prosecution allegations and pleaded not guilty to the charge. They claimed the right of self‑defence of person and showed the complainant party as aggressors and that is the plea to which they have stuck in appeal. In support of their innocence Javed Ahmad and Nazir Ahmad Butt accused have produced Abdul Hamid D. S. P. and Muhammad Sarfraz, Inspector, Crimes Branch as D. W. 1 and D. W. 2, respectively.

7. As regards the motive, I will state at the outset that the allegation that the appellants were challaned for the previous abduction case is found to be incorrect. However, there is no previous background of enmity except the estrangement of relations over the abduction matter.

8. In view of the plea of the appellants the evidence of recoveries is not very material, and in any case, the learned trial Court has not believed the same and has observed:‑‑ "Besides them there is the medical evidence, police persons' evidence and recovery evidence through P. W. 9 Muhammad Sharif who has deposed that both the accused Nos. 1 and 2 produced chhuri and hammer voluntarily from beneath the staircase and paiti lying in their house. No reliance can be placed on this recovery evidence firstly because both the accused have admitted their joining the incident and secondly because P. W. 14 Muhammad Ishaq I.O. has belied the recovery witness on a number of points including the house being locked from outside, etc." (The underlining' is mine).

9. No doubt all the three eye‑witnesses, namely, Akbar Ali (P. W. 10), Muhammad Sarwar (P. W. 11) and Javed Ahmad (P. W. 12) are injured witnesses, but it only establishes the fact that they were present at the time of incident and not the fact that what they are stating is the truth rather the whole truth, or that they have not suppressed tire material facts which go against them. They have suppressed the 16 injuries suffered by Javed Ahmad appellant and 7 injuries suffered by Parvaiz Ahmad appellant. Out of the 16 injuries suffered by laved Ahmad appellant, three are on vital organs. The Investigating Officer admits that they were suffered in the incident and the case of the appellants is that they were lying unconscious on the spot and when the police arrived after the incident, they were despatched to the hospital and since the injuries were of such a number and nature that they could not be suppressed, therefore, this aspect had to be brought on record despite the fact that the complainant had suppressed the same in the F. I. R. Akbar Ali P. W. is nephew of the deceased, Javed Ahmad P. W. is son of the deceased and Muhammad Sarwar P. W. is also, in a way, a nephew of the deceased. The relationship of all the three eye‑witnesses with the deceased is not denied. In the circumstances stated above, strong corroboration not only qua 'he participation of each appellant but also qua the truth of the prosecution version is needed which as stated later, is not available beyond reasonable shadows of doubt. The learned trial Court after analysing the case for the prosecution has granted the right of self‑defence to the appellants, but not to the extent of causing death and, therefore, held them guilty of exceeding the right of self‑defence. The learned trial Court observed:‑ "All the three eye‑witnesses P. W. 10, P. W. 11 and P. W. 12 (whose being present at the time of occurrence cannot be doubted because they were injured) have deposed that at about 6 a. m. when they along with the deceased and one Nasir (not examined) were standing near their house, accused No. 1 came and saw the deceased with angry mood and when inquired, he went away threatening that he would just tell. There is no discrepancy so far as this part of evidence viz‑a‑viz the contents of the F. I. R. are concerned. It is next deposed that two minutes thereafter the accused Nos. 1, 2 and 3 came and accused No. 4 also came out of his house and on the lalkara of accused No. 3 and on the signal of accused No. 1, accused No. 4 caught hold of the deceased when accused No. 1 inflicted chhuri blows on his chest etc. and when the complainant and P. W. Javed intervened, they were given hammer blows by the accused No. 2 and when P. W. Sarwar intervened be was given teeth‑bite by accused Javed. This part of the evidence suffers from various discrepancies when compared with the contents of the F.1. R., the most important being that accused Nasira has not been described in F. I. R. to have come along with her sons but after the describing of complete occurrence, it has been stated that she continued lalkaras. It also remains to be explained as to where was the necessity for accused No. 1 to give a teeth‑bite to P. W. Sarwar if actually he was carrying a chhuri as alleged. In regard to the responsibility of accused Nos. 1 and 2 in causing the death of the deceased and injuring the P. Ws. it may here be stated that as already indicated above they had acted in their right of private defence and this allegation of giving teeth‑bite by the accused No. 1 also supports this view. The sole question is as to whether they exceeded their right of private defence. It has been argued on behalf of the prosecution that the time when the right of private; defence accrued is missing from the writer, reply as well as the evidence. But as already indicated above it looks that accused No. 1 had no chhuri and after being inflicted with not less than 16 injuries including the sharp‑edged weapon injuries, he snatched it from P. W. Sarwar, and, therefore, right of private defence had accrued to the accused when No. 1 was being injured and so also accused No.

2. At this moment the accused No. 1 appears to have given signal to the accused No. 4 so as to catch the deceased and let him exercise the right of the said private defence. Under section 100, Cr. P, C. the right of private defence of the body extends to causing death when an act reasonably causes the apprehen sion of death or grievous hurt. In the light of this provision when 1 look carefully into the injuries of accused No. 1 it is not difficult to conclude that none of them being grievous or with force on vital parts of the body, were likely to cause death nor there could be any such apprehension reasonably. Doctor P. W. 13 who examined the accused has been suggested that death can occur by twisting the testicles but he has not stated with certainty that the relevant injury No. 14 is a result of twisting thereof. Similarly, he has opined that only the contents of the head and chest are vital parts. They were fighting with each other and in the light of nature of injuries, there could be no reasonable apprehension of death or grievous hurt. Both the said accused, therefore, in furtherance of their common intention exceeded the right of private defence by giving two sharp weapon injuries to the deceased causing the death."

10. Since the learned trial Court has conceded the right of self‑defence to the appellants, but he held them guilty of exceeding the same, therefore, 1 have thought it prudent to quote above the relevant entracts in extenso so that the reasoning in support of this finding may not have to be repeated. The Investigating, Officer accepts that the appellants suffered the injuries noted in the medico-legal reports during the course of the incident. The prosecution has chosen to suppress the same therefore, implicit reliance cannot be placed on their version. Excepting the fatal injury, the rest suffered by the both sides are of the same character and of about the same dimensions and it appears that the incident was preceded by grappling and fist blows etc. and the chhuri was not with the accused side, to begin with, as it does not stand to reason that Javed Ahmad appellant would give a teeth‑bite while he was armed with a chhuri. The attribution of teeth‑bite is suggestive of the fact that Javed Ahmad appellant was not armed with any weapon at that time and during the course of incident was almost helpless at one stage. In this view of the matter, in the absence of strong independent corro boration of the interested witnesses, qua their version and qua the implication of each accused, it is not possible to rule out with certitude the defence plea of having acted in the exercise of the right of self‑defence. It is very difficult to establish and mark the line of distinction between a fight and the right of self‑defence, though it does exist in fact, and it is settled law that the right of self‑defence is available and accrues to the victim not on the infliction of the actual harm but on a bona' fide apprehension of sufference of hurt etc. and the same extends to the causing of death if the apprehension is that of grievous hurt etc. as recognised in section 100, P. P. C. The accused is not expected to weigh in golden scales the quantum of the right of self‑defence available to him or to modulate the same from step to step during the course of occurrence and the same is available to him against each and every member of the assailant party and in this regard the conduct of the accused has to be judged, as far as possible, with reference to the charged emotions, at the time of the incident, the social background and the prevalent socio‑moral values of the society in which the accused existed at the time of the occurrence and not on the scales of a sober, educated and cool calculated mind of a trained legal personality bearing in mind the principle that the benefit of every doubt in fact and in lady goes to the accused as a matter of right and not by way of grace of the Court. In this view of the matter, it is not safe to burden the appellants with the liability of exceeding the right of self‑defence and, therefore, I would allow their appeal, set aside their conviction and sentence. They shall be set at liberty forthwith if not wanted in any other case. Parvez Ahmad appellant is on bail and shall stand discharged from his bail bonds. Appeal accepted.