1968 P Cr (PLP)

DORAB PATEL, J.‑By his judgment dated the 4th October 1965, the Additional Sessions Judge, Lahore, has convicted Muhammad Salim son of Ali Muhammad accused under section 304 Part I of the Pakistan Penal Code for causing the death of Riaz Ahmad deceased on the 19th April 1964, and sentenced him to 7 years' R. I. and a fine of Rs. 100 or in default further R. I. for three months. The accused was tried for the said murder jointly with Ali Muhammad, his father, and Muhammad Ejaz, a friend of the accused who were acquitted. Muhammad Salim has filed an appeal against the said judgment being Criminal Appeal No. 775 of 1965 in which he contends that in killing Riaz Ahmad deceased he only exercised his right of self defence and prays for an acquittal. The State also filed an appeal against the said judgment, being Criminal Appeal No. 290 of 1966 praying that the accused Muhammad Salim, Ali Muhammad and Muhammad Ejaz be convicted under section 302, P. P. C. for the murder of Riaz Ahmad deceased. However, by an order of this Court dated the 22nd July 1966, the appeal filed by the State against Muhammad Salim was admitted and the appeal against Ali Muhammad and Ejaz Muhammad was summarily dismissed, and the said order has become final. As‑both these appeals arise out of the same judgment, they will be disposed of by this judgment.

2. According to the prosecution, Mumtaz Begum, sister of the accused Muhammad Salim. and daughter of the said Ali Muhammad, was engaged to Riaz Ahmad deceased, who was employed as a Forest Guard at the Range Office at Ravi Road, Lahore. However, about a fortnight before the occurrence Ali Muhammad cancelled the engagement. Thereupon Riaz Ahmad deceased abducted Mumtaz Begum. Therefore, Muhammad Salim, Ali Muhammad and Muhammad Ejaz went to the office of Riaz Ahmad deceased to get Mumtaz Begum back, but Riaz Ahmad was on leave. Finally on 19th April 1964, Muhammad Salim, Ali Muhammad and Ejaz met Riaz Ahmad deceased at his office at 12 a. m. when Shabbir Ahmad P‑. W. 10 a clerk of the Range Office, Muhammad Ishaque P. W. 11, a clerk of the Forest Division and 1qba1 Javaid P. W. 12, a Tube‑well Operator of Jallow were also present. The accused asked Riaz Ahmad deceased to return Mumtaz Begum, but Riaz Ahmad answered that he had already married her, and it is alleged that Ali Muhammad and Muhammad Ejaz caught hold of Riaz Ahmad and Muhammad Salim took out a knife from his pocket and delivered a blow to Riaz Ahmad, in his chest and another blow in the left side of his abdomen and three more blows after he had fallen down. The Range Forest Office, where the occurrence took place, is at a distance of 3J miles from the police station Misri Shah. Shabbir Ahmad P. W. 10 made the statement Exh. P. B./ I about the murder of Riaz Ahmad deceased at Badami Bagh Police Post within the area of Misri Shah Police Station at 12/35 p.m. on the same day, which was recorded by Altaf Hassain A. S. I. P. W. 14, and on the basis of the said statement, the formal F.

1. R. (Exh. P/B) was recorded the same day at Misri Shah Police Station at 1‑30 p. m. by Muhammad Hayat Moharrir Head Constable P. W.

4. Riaz Ahmad deceased died almost instantaneously and, after the statement Exh. P. B/1 had been recorded, Altaf Hussain Shah, A. S. L, P. W. 14 reached the place of occurrence in about 20 minutes and completed the preliminary investigation. He prepared the injury statement (Exh. P. N) and the inquest report (Exh. P. O) and he had the body of the deceased forwarded to the mortuary on the same day through Foot Constable Shah Nawaz P. W.

2. The post‑mortem examination was held on 20th April 1964, and the body of the deceased was identified by his brother Nawaz Ali P. W.

5. Altaf Hussain Shah A. S.

1. P. W. 14 had found the dead body of the deceased lying between two rooms of the said Range Office, and he collected blood‑stained earth from both the rooms. He took into his possession a blood‑stained brick from the southern room, blood scapped from the floor of the northern room, and also some earth stained with blood on the katcha road (vide Exh. P. C., P. D. and P. E. respectively) which were duly sealed and forwarded, after considerable delay, to the Chemical Analyser for a report. The next day Malik Ata Ullah Khan, S. I., P. W. 9, took up the investigation of the case, and in due course the accused, his father Ali Muhammad and Muhammad Ejaz~ were arrested. Muhammad Salim was arrested on the 20th of April 1964, Muhammad Ejaz on the 22nd of April 1964, whilst Ali Muhammad was arrested on the 28th April 1964. On the 20th April 1964, the post‑mortem examination of Riaz Ahmad deceased was conducted by Dr. Nasib Awan P. W. 1 at 2 p. m. Exh. P. G. is a true copy of the said post‑mortem examination report and, according to Dr. Nasib Awan, P. W. 1 the deceased had received the following injuries:‑

1. An incised wound 1" x " x muscle deep below the chin.

2. A stab wound 1" x " x chest cavity deep on the front of the left chest in the middle 1 f from the middle line and 1 " from the left nipple.

3. A stab wound 2" x " x muscle deep which was cut on the back of left side 3" below the left costal margin.

4. A stab wound 1' x ' x into chest cavity deep on the back of left shoulder 3j" from the middle line.

5. An incised wound " x " x skin deep on the left face.

6. An incised wound 1 "x "x ` on the front of the right ear. According to Dr. Nasib Awan P. W. 1 except for the injuries, all the other organs were healthy, and the cause of death was shock, and haemorrhage in consequence of the said injuries. All the injuries had been caused by a sharp pointed weapon, and the second injury alone was sufficient to cause death in the ordinary course of nature. The probable time between the injuries and death was a few minutes, and between death and post‑mortem was 36 hours. Muhammad Salim accused had also received injuries. He was examined on the 20th April 1964 at 2 p.m. by Dr. Ghulam Haider Shah P. W.

17. Exh. P. H. is a trite carbon copy of Dr. Ghulam Haider Shah's report. This report has been drawn up very hardly and, according to the report, the accused received the following two injuries:‑

1. An incised wound 1 " x , x. " on the back of the left thumb.

2. An incised wound 1 " x " x on the palmer aspect of the lower part. Injuries were simple in nature and caused by sharp edged pointed weapon and within 48 hours of duration. Counsel at the Bar has confirmed that the second injury was on the lower part of the left hand palm of Muhammad Salim, and that both Dr. Nasib Awan P. W. 1 and Dr. Ghulam Haider Shah P. W. 17,had left the country at the time of the Sessions trial, and accordingly their statements before the Committing Magistrate were brought on record before the Sessions Court. Finally, it is to be pointed out that according to the prosecution, on 29th April 1964, the blood‑stained knife Exh. P. 6 alleged to have been used by Muhammad Salim was recovered at his instance from some reeds on the bund of the River Ravi by S. I. Malik Ata Ullah Khan P. W. 9 who took it into his possession vide recovery memo. Exh. P. F. and made it into a sealed parcel, on the same day, and the recovery witnesses were Nawab Khan P. W. 8, Malik Ata Ullah Khan S. I. P. W. 9. and Muhammad lqbal P. W.

13. According to the report of the Seriologist, the recovered knife was found to be stained with human blood. It may be pointed out that Muhammad Salim was arrested on 20th April 1964, and the recovery at his instance took place on 29th April 1964. The sealed parcel containing the knife was sent to the Chemical Examiner on 14th May 1964. This shows that this parcel was also sent after considerable delay, for which there is no explanation forthcoming on the record.

3. The prosecution case is based on the evidence of eye witnesses namely, Shabbir Ahmad, Muhammad Ishaque and Iqbal Javaid, motive and corroboration by the recovery of the blood stained knife Exh. P.

6. In his defence, the accused admitted the enticement of his sister Mumtaz Begum by Riaz Ahmad deceased, but he denied her engagement to him. He also admitted visiting the Range Office in order to meet Riaz Ahmed for the purpose of recovering his sister. However, in respect of his visit to the office of Riaz Ahmed deceased on the 19th April 1964 he stated that he received a message from Riaz Ahmed to come and meet him at his office. He said that when he reached there, three witnesses were sitting in the room; they closed the door as soon as he came, and they all got up. He asked Riaz Ahmed deceased for the restoration of his sister, and Riaz Ahmed answered: "Your sister will be returned now." Then Riaz Ahmed took out a knife from his pocket and attacked him. He ran to the door and tried to unbolt it with his right hand, but he was attacked by the deceased from behind. The deceased wanted to inflict an injury on the back side of his head which he (accused) warded off with his left hand and received an injury thereby. Then he ran to the table, and took out a small knife which he had with him and attacked Riaz Ahmad with that knife. Riaz Ahmad again attacked him, but he warded off the attack with his left palm, which was injured. He then attacked the deceased again to save himself. The deceased fell down, the three‑witnesses ran away, and he also ran away.

4. The learned Sessions Judge has held that the recovery of the knife Exh. P. 6 is not of assistance to the prosecution as it was sent after more than a fortnight to the Chemical Analyse for his report. There has been gross delay by the Investigating Agency in sending the knife for the report, and we agree with the A learned Sessions Judge, that, in the circumstances, no reliance can be placed on the said recovery. As to the evidence of motive it is clear that there was enmity between the accused and Riaz Ahmed deceased on account of the abduction of Mumtaz Begum by Riaz Ahmed deceased and his marriage to her in defiance of the wishes of her family. However, that enmity would be on both sides, and by itself is not inconsistent with the evidence of the accused that he killed Riaz Ahmed deceased in self‑defence in a fight. Although the prosecution case has been supported by three eye‑witnesses, the learned Sessions Judge held that there were discrepancies in their evidence and that all the eye‑witnesses had suppressed or tried to suppress the evidence of the injuries to the accused on which his defence was based. He, therefore, acquitted Ali Muhammad and Muhammad Ejaz by giving them benefit of doubt. He held that the accused had exercised his right of self‑defence in a fight with Riaz Ahmed but in so doing he had grossly exceeded that right and, therefore, he convicted the accused under section 304 Part I, P. P. C. only.

5. The eye‑witnesses are Shabbir Ahmad P.W.10 Muhammad Ishaque P. W. 11, and Iqbal Javaid P. W.

12. Shabbir Ahmad P. W. 10 is a Forest Guard. He stated that Riaz Ahmad deceased had absented himself from duty from the 28th March 1964, having made an application for leave and that Riaz Ahmad resumed duty on the 15th of April 1964. During his absence, the accused, Ali Muhammad, and Muhammad Ejaz bad visited the Range Office, Syed Ghulam Shabir P. W. 6, in his presence in order to get back Mumtaz Begum. He further said that the office used to be kept open on Sundays, and on 19th April 1964, at 12 noon, he was in his office with Riaz Ahmad deceased, Muhammad Ishaque P. W. 11 and Iqbal Javaid P. W. 12 when the accused came into the room and asked Riaz Ahmad to return his sister. Riaz Ahmad replied that this was out of question as he had married her. Meanwhile Ali Muhammad and Ejaz arrived and asked Salim "You have done nothing so far". Ejaz and Ali Muhammad then held Riaz by his hands and the accused that is, Muhammad Salim, took out a knife Exh. P. 6 from his pocket, and thrust it into the chest of Riaz Ahmad.. He then dealt another blow to the deceased in his abdomen. Shabbir Ahmad P. W. 10 said that they tried to intervene, but they were threatened and, therefore, did not do anything. Riaz Ahmad fell down and became unconscious, and his body lay across the door, which connects the room of the Forest Ranger with his own room. Salim accused dealt three further blows on Riaz Ahmad after he bad fallen. Then all the three accused ran away and Riaz Ahmad died instantaneously. Therefore, he left Muhammad Ishaque P. W. 11 and Iqbal Javaid P. W. 12 to look after the dead body and went and made his statement Exh. P. B/l. He also said that possibly Muhammad Salim had received an injury in his hand as a result of which he was bleeding. Unfortunately, there are many inconsistencies in the evidence of Shabbir Ahmed P. W.

10. Contrary to his statement that Riaz Ahmad deceased had applied for leave, Syed Ghulam Shabir P. W. 6, the Ranger Officer, stated that Riaz Ahmad deceased bad absented himself from duty without leave. Contrary to his evidence that the dead body of Riaz Ahmad deceased was lying across the door connect ing his office room with the room of the Forest Ranger, he had said before the Committing Magistrate, that "We were staying in one room and the dead body was lying in the next room". Further there are many discrepancies between his evidence and his statement Exh. P. B/1. Thus in his statement Exh. P. B/I he had not stated that Ali Muhammad and Ejaz had visited their office before the occurrence, although he did say so in his evidence before the Sessions Court. Again in his evidence he said that Ali Muhammad and Ejaz asked Muhammad Salim whether he had done anything. Thus giving them an active . role in the occurrence whereas in his statement Exh. P. B/1 he had merely stated that they came in and caught hold of Riaz Ahmad after which Slain accused took out his knife and began his assault. Again in his statement P. B/1, he merely said that one of the assailants also seemed to have been injured. In his evidence he even admitted that the Police had taken into possession earth stained with the trail of blood from the hand of Muhammad Slim accused. Muhammad Ishaque P. W. I 1 also stated in his evidence that there was a trail of blood outside the office when the accused were leaving the place of occurrence. This clearly means that the accused Muhammad Salim had also received an injury which was far from being trivial. It is, therefore, obvious that in his statement P. B/1 Shabbir Ahmad P. W. 10 had suppressed the injury of Muhammad Salim accused. This is very material because the defence of Muhammad Salim accused is based on the fact that he received a serious injury from the hand of Riaz Ahmad deceased. The evidence of Muhammad Ishaque P. W. 11 is similar to that of Shabbir Abroad P. W. 10. 1 here were, of course, discrepancies in his evidence also. In his evidence he stated that Riaz Ahmad deceased and the witnesses were just sitting in office when the accused came and he denied having stated before the Police that Riaz Ahmad deceased and be and the other eye‑witnesses were working when the accused came. In fact his statement in the Sessions Court was false, and he had stated before the Police that they were working when the accused came. Again, as to implicating Ali Muhammad, he said that he had told the Police that Ali Muhammad had shouted: "Catch hold of Riaz". In fact he had not said so to the Police. There is also a material discrepancy between his evidence and the evidence of Shabbir Ahmad P. W.

10. Shabbir Ahmad P. W. 10 said that Riaz Ahmad had come on the 19th of April 1964 on duty. But Muhammad Ishaque P. W. 11 stated that Riaz Ahmad had not been called to the office do the 19th April 1964, and he was there merely awaiting further posting. Iqbal Javaid P. W. 12 was a Tube‑well Operator at Jallow. He also supported the prosecution version. However, his presence is doubtful. First of all Jallow is a long way from the place of occurrence. When he was asked about the reason for his presence at the place of occurrence on the 19th April he said he was waiting for the Range Officer. However, Syed Ghulam Shabir P. W. 6 the Range Officer, had stated that he was on leave on the said day. Again, there are discrepancies between his statement before the Police and his deposition in the Sessions Court. He said that he had stated before the Police that Ali Muhammad had shouted at Muhammad Salim accused that he had not done anything. In fact, he had not so stated before the Police. He said that he told the Police that Ali Muhammad held Riaz Ahmad by his right arm, but he had not so stated. He also contended that he had. told the Police that he had seen Muhammad Salim bleeding from his hand. but he had not so stated. Apart from these discrepancies, Iqbal Javaid P. W. 12 has failed to explain his presence at the Range office on a Sunday and we are doubtful about his presence. Again, in view of the conflicting evidence given by Shabbir Ahmad P. W. 10 and Muhammad Ishaque P. W. i 1 about the reasons for the presence of Riaz Ahmad deceased at the Range Office on Sunday, the 19th April 1964, we do not think that the accused could have known that Riaz Ahmad deceased would be attending his office on Sunday, the 19th April. Therefore, we cannot accept the prosecution case that the accused had come to meet Riaz Ahmad deceased and, so to say, have it out with him. The only inference from the facts, as contended by the accused, is that Riaz Ahmad deceased bad himself called the accused to his office on that fateful afternoon. Riaz Ahmad deceased must have informed the accused at his meeting that he had married his sister, and it is obvious that the meeting must have been extremely unpleasant and a fight must have taken place very soon in which both Riaz Ahmad deceased and the accused were armed with knives which they both used. The learned counsel for the State has submitted that Riaz Ahmad did not have any knife with him, and that the injuries on the hand of the accused must have been caused by the knife of the accused, because Riaz Ahmad deceased must have tried to struggle with the accused, and in that struggle the accused must have been injured by his own knife. Apart from the fact that this contention is contrary to the evidence of the eye‑witnesses, according to whom Riaz Ahmad deceased passively received the injuries that killed him. Riaz Ahmad deceased did not have any injuries on his hand. In view of this, we cannot accept the contention of the counsel for the State that the accused was injured by his own knife. As we hold that there was a fight between Riaz Ahmad deceased and the accused, we have to examine whether, in the exercise of his right of self defence, the accused was justified in inflicting the injuries which killed Riaz Ahmad. The learned counsel for the accused has relied on the Judgment of this .Court in Muhammad Shafiq v. The State (P L D 1960 Lah. 339). In this case the Court held that the mere fact that the accused uses a pistol or a knife or other formidable weapon and uses it on a vital part of the body of the deceased does not by itself mean that he ‑has exceeded his right of self defence. We entirely agree with this statement of the law, but this Judgment does not in any way help the accused as, in the case cited, the Court merely altered the conviction of the accused from section 302, P. P. C. to one under section 304 Part I, P .P. C. and sentenced him .to rigorous imprisonment as has been done in this case. However, the leading case on the right of self‑defence is Safdar Ali v. The Crown (P L D 1953 F C 93). At page 114 Mr. Justice Cornelius, as he then was, in discussing the right of self‑defence, stated as follows: "A person instinctively reacting to a physical assault constituting a grave threat to his own life may well strike out impulsively and repeatedly until he senses that the danger is past. In the eye of law, he commits no excess, if in so doing he causes death, provided the probable danger to himself was grievous hurt at the least, and in this case, actual grievous hurt was sustained by Safdar Ali. Finally, Safdar Ali s conduct after the occurrence, when examined in relation to all the facts and circumstances appearing in the case, does not justify the conclusion that it was the conduct of a guilty person." With respect, we follow the law as laid down in Safdar Ali's case. There is no question that the accused was entitled to defend him self even by killing Riaz Ahmad deceased if it was necessary to kill him in order to protect himself. However, the question is whether, in view of the injuries to his hand, he was entitled to inflict so many injuries on Riaz Ahmad deceased that he was killed. According to Dr. Nasib Awan P. W. 1 the accused had inflicted six injuries, being stab wounds and incised wounds on Riaz Ahmad deceased, and every one of these injuries was on a, vital part of the body of the deceased. Therefore, we have no doubt that in causing the death of Riaz Ahmed the accused exceeded his right of self‑defence and inflicted injuries that were not necessary for his own protection.

6. In the result, we hold that the learned Sessions Judge rightly disbelieved the evidence of the eye‑witnesses and convicted the accused under section 304, Part I, P. P. C. and sentenced him to 7 years R. I and a fine of Rs.

100. We see no reason for nterfering with this judgment and, therefore, both the appeals filed by the State and by the accused are dismissed.

7. We direct that a copy of this judgment be sent to the Inspector‑General of Police so that be should take appropriate action in respect of the delay in sending the sealed parcels to the Chemical Analyser. Appeal dismissed.