P L D 1957 Azad J & K 9 (PLP)

F. H. SHAH, C. J.‑--Mst. Gulab Noor, aged 35 years, has been convicted under section 302, A. P. C. for the murder of her husband's brother Kala Khan and has been sentenced to life imprisonment by order dated the 27th November 1956, of the Sessions Judge, Poonch. This is her appeal sent through the Jail Authorities. Briefly stated, the prosecution story is that on the 22nd of Ramzan last at 10 a.m. Kala Khan deceased was working in his field and lay down for rest under a `harri' tree near the house of Mst. Gulab Noor appellant who at that time was on the roof of the house. The appellant started to use abusive language towards the deceased saying that a false rumour in the village that she did not keep fast had been started by him. The deceased asked her to desist but she kept on abusing him, so the deceased got up and started to climb on the roof of the appellant's house by means of the wooden ladder (Exh. P. 1) and while he was doing so, the appellant threw the stone (Exh. P.2) at him hitting him on the back. The deceased, however, went on climbing the ladder and so soon as he placed one foot on the roof, the appellant pushed him with the result that he fell down on the hard ground below on his back and sustained injuries resulting in the bursting of the left lung and died a couple of hours later. The appellant denied having thrown a stone at the deceased or having pushed the deceased over board. Her version at the trial is that she had fever and was sitting in the sun in her compound when the deceased with his `rambi' came to assault her so that in order to save her life, she went on the roof of her house by the ladder and that after some time she heard that the deceased had fallen from the ladder and when she got up and looked around she found him lying on the ground. She did not produce any defence evidence. We were led through the evidence by the learned Govern ment Advocate, Kaka Khan (P. W. 1), aged 60 years, is the uncle of the deceased and stated that he saw the occurr ence from his house 5 or 6 'jareebs' away. He stated that the appellant was his relation by marriage being the wife of his nephew. Hoshnak Bi (P. W. 2) is the widow of Kala Khan deceased and stated that she saw the occurrence from a distance of 300/400 yards away. According to this witness, the appellant was abusing the deceased who was asking her not to do so but when she did not desist, her deceased husband started to go on the roof to make her understand (that he was not the cause of the rumour that she did not keep fast) and had really asked her to come down but she did not do so and then he started to climb the ladder and when he stepped on the roof, she gave him a violent push making him fall 10 feet below on the hard ground. She denied that he was taking his 'rambi' up on the roof but stated in cross‑examina tion that she saw this 'rambi' lying on the 'banna' of the field where the deceased had been working. She stated that Kaka Khan (P. W. 1) was down with fever and was lying in the court‑yard of his house at that time. She stated that she herself picked‑up the 'rambi' from the 'banna' of the field on the third day. Ali Muhammad (P. W. 3) is a collateral of the deceased, their grand‑fathers being brothers. He also saw the occurrence from a distance of 400/500 yards away, where he was ploughing his field. According to him, the appellant and the deceased were abusing each other and then he saw the deceased going by the ladder on to the roof where the appellant was and he saw the appellant throwing a stone at the deceased and then pushing him off the roof when he stepped on to it. On being asked as to why the deceased was going on the roof, he stated that he did not know with what object he was doing so. Chaudhry Dilawar Khan, Sub‑Inspector (P. W. 5) investigated the case. In cross‑examination, he stated that he inspected the spot and the place at which the deceased was working before the occurrence but he did not find any 'rambi' at that place. Doctor Shahabuddin Ahmad (P. W. 6) performed the post -mortem examination on the body of the deceased. It was the body of a stout man aged 35 to 40 years. He found a bruise near the neck between the scapula 1"x 1". On dis section, he found the left lung collapsed with a large amount of clotted blood and also the pericardium was full of clotted blood and death was due to haemorrhage. This is about all the evidence in the case. The three assessors were of the opinion that the appellant had pushed the deceased over board but she had no intention to cause her death and Sardar Muhammad Sharif Khan, assessor, opined that she had done so in the right of self- defence. However, the learned Sessions Judge came to the conclusion that when the appellant abused the deceased, he "tried to cool her down first by arguing with her from a distance". We find no support for this assertion from the evidence on record. On the other hand, Ali Muhammad (P. W.) stated that both of them were exchanging abuses, Further, the conclusion of the learned Sessions Judge that the object of the deceased to go on top of the house clearly was "to be nearer to her in order to make her understand that he never said anything against her and that she was mistaken in believing the rumours" also appears to us to be an unwarranted conclusion. After the heated arguments had started between the appellant and the deceased, it is highly improbable that he would have started to move up on the ladder in that saintly and peaceful spirit but on the other hand the circum stances appear to point to this action of the deceased as no less than being in itself an assault within the definition of section 351, A. P. C. His going on the ladder can in the circumstances be reasonably construed as a gesture intending or knowing it to be likely that such a gesture will arouse an apprehension that he was about to use criminal force to the appellant. From the evidence, it is not clear whether the deceased carried a 'rambi' in his hand yet the 'rambi' with which he was working in the field was not found by the Sub‑Inspector though the wife of the deceased stated that it had been left lying there even on the third day after the occurrence. Considering that the three eye witnesses are interested to the extent that they are near relations of the deceased, we suspect that the carrying of the 'rambi' by the deceased has been deliberately suppressed. We cannot loose sight of the fact that the appellant had stated that the deceased came after her with a 'rambi' in his hand. However, that he, it is unfair to say, as remarked by the Sessions Judge that the eye witnesses must be believed as telling gospel truth when they say that the deceased had no 'rambi'. because they are equally related to the deceased as well as the appellant. We have not been able to find on record any warrant for this assertion. The appellant has no blood relationship with the eye witnesses at all. Similarly, we do not agree with the Sessions Judge that the appellant did not take the plea of self‑defence. In any case, it is unnecessary for an accused person to specifically plead the right of self‑defence in his statement or to establish it by producing defence evidence. If from the material on the record, the right is made out, the accused person will be entitled to the benefit of it. In our opinion, on proper construction of the evidence in this case, it must be held that an argument having started between the unfortunate deceased and the appellant, between whom there was no previous bad blood, the deceased had no right to an assault and to actually trespass on to the roof of the house of the appellant and that probably he had done so with the 'rambi' in his hand with which he had been working on his field and in the circumstances the appellant would have a reasonable apprehension of meeting with grievous hurt at his hand, if not actual death. Her act of pushing him over the roof ten feet below, in the circumstances, was amply justified, irrespective of the consequences. Nor, are we convinced that she intended by this act to cause the death of the deceased. We agree with the opinion of the assessors and in particular with the opinion of Sardar Muhammad Sharif, assessor, that the appellant pushed the deceased in exercise of the right of private defence, of person. We, therefore, hold that in so far as the assault of the deceased was calculated reasonably to cause the apprehension of grievous hurt to the appellant, the right of private defence available to her extended to even causing the death of the deceased and she has committed no offence. In this view of the matter, we accept this appeal, set aside the conviction and sentence of Mst. Gulab Noor appellant and acquit her. Her release warrants to issue at once. K. B. A. Appeal accepted.