1984 P Cr (PLP)

He also examined Niaz Muhammad accused and found 6 blunt weapon injuries on his person. One of the injuries was grievous having caused fracture of second metacarpal bone of left hand and dislocation of first metacarpo phalangial joint of left thumb. He also examined Din Muhammad appellant and found the following injuries on his person- (1) A contused wound on the left side of head 3 cm x cm x bone deep about 10 cm from eye-brow and 9 cm from ear. (2) A contused wound on the right side of head 3 cm x 1 cm x muscle deep about 8 cm from ear and 15 cm from eye-brow. (3) A contused wound 3 cm x cm x bone deep about 1 cm above and towards mid-line of injury No. 2. (4) Whole of back of right palm swollen. (5) A laceration 4 cm x 1 cm on the lateral end of clavicle. (6) An abrasion 2 cm x 1 cm on the top of right shoulder. (7) An abrasion 2 cm x 1 cm x on the back of right chest about 22 cm below the top of shoulder and 7 cm from mid line. (8) An abrasion in the mid-line vertical in direction 5 cm x cm about 33 cm below the route of neck. (9) A transverse lenil scotch 7 cm long and skin deep about 28 cm below the top of shoulder and 8 cm from mid-line. All the injuries were caused with blunt weapon and were simple in nature.

6. Dr. Muhammad Muslim P. W. 1 found one sharp-edged injury on the left side of the abdomen of Muhammad Umar P. W. 5.

7. Dr. Imtiaz Ahmad Khan P. W. 2 found four injuries on the person of Muhammad Nasir P. W.

7. One of the injuries was grievous while the rest were simple in nature. Two injuries were caused by a sharp-edged weapon. He also examined Muhammad Saeed P. W. 8 and found 5 simple injuries on his person. Three of them were caused by sharp-edged weapon.

8. Din Muhammad appellant denied the prosecution allegations. Explaining the case against him he made the following statement:- "The prosecution case is false. Mukhtar P. W. was not present. He lives miles away from the place of incident i.e. Sarai Sidhu. He is interested and related to the complainant party. Mst. Rafiqan is my sister and is the wife of Rashid closely related to Muhammad Umar P. W. and others. Real facts are that about one month before the incident, she had come to our house and left her husband who is living in Hannu Ka Chajja alongwith other P. Ws. except Mukhtar. On the night of incident, Anwar deceased, Saeed, Muhammad Umar and Nasir P. Ws. armed with dangs came to our house to take Mst. Rafiqan forcibly to the house of Rashid men tioned above. They entered our house forcibly and tried to take Mst. Rafiqan who was brought to the door of the house situated in the lane. Myself and Niaz Muhammad resisted and asked them not to behave in that way. They attacked us both and caused many injuries to us. I in self-defence used a pen-knife to save myself and my father. We both were admitted in the hospital, where we were medically examined and X-rayed. In spite of our best efforts to get a case registered, the Investigating Officer who was partial and siding with the prosecution did not register our case. From our side, complaints were made to the D. I. G. other Police Officers and also to the Ilaqa Magistrate about the conduct and partiality of the Investigating Officer. The prosecution case has been registered after consultations and deliberations which is totally false and baseless. The I. O. has also changed the site of incident and has not shown the actual place of blood that was present. The witnesses are not residents of the locality. They reside at a distance of two miles away from this place in Mohallah Hannu Ka Chajja alongwith Rashid mentioned above. My brother Fayyaz was not present at the spot."

9. He examined two witnesses in defence. Dr. Saeed Ahmad D. W. 1 stated that he got X-rayed the injuries of Niaz Muhammad accused and found a fracture of second metacarpal bone of left hand and dislocation of first metacarpo phalangial joint of left thumb. Mst. Rafiqan D. W. 2 is sister of the appellant. She stated that on the day of occurrence she was present in the house of her father when Nasir, Muhammad Umar, Muhammad Saeed and Muhammad Anwar P. Ws. entered into the said house while armed with dangs. Muhammad Anwar caught hold of her and tried to drag her out. Her father and brother tried to rescue her whereupon they were given dangs blows by the said persons. In the meantime, she got herself free and rushed into a room. At the trial the prosecution examined Muhammad Umar P. W. 5, Mukhtar Khan P. W. 6, Muhammad Nasir P. W. 7 and Muhammad Saeed P. W. 8 as eye-witnesses. Muhammad Umar is father of the deceased while Muhammad Nasir and Muhammad Saeed are brothers of the deceased. Mukhtar Khan P. W. 6 is also related to the complainant.

10. The learned trial Court disbelieved the motive, recoveries and held that it was an open fight in which both the parties had suffered injuries. The trial Court observed that it was the deceased and the P. Ws. who had gone to the house of the accused where this occurrence has taken place in the street. It further observed that the circumstances of the case showed that the appellant had caused injuries to the deceased and the P. Ws. in exercise of private defence of his person and that of his father Niaz Muhammad but convicted the appellant for exceeding the right of self-defence. Niaz Muhammad accused was acquitted as according to the trial Court he had not caused any injury to the deceased and that the injuries caused by him to the P. Ws. were in exercise of the right of private defence of his person and that of Din Muhammad appellant. Fayyaz Ahmad accused was given the benefit of doubt. According to the trial Court the role of grappling attributed to him appeared to be improbable.

11. The learned trial Court further observed that genesis of the occurrence was shrouded in mystery and that the prosecution had sup pressed the part played by it. It further observed that the P. Ws. stood contradicted by the medical evidence.

12. The appellant's contention that the complaint had gone to their house to abduct his sister Mst. Rafiqan was accepted by the trial Court. It is further observed that the appellant had caused injuries to the deceased in exercise of private defence of his person and that of his father who bad suffered many injuries.

13. The appellant had also suffered a grievous injury besides other injuries. But despite this, the trial Court convicted the appellant for exceeding the right of his defence. The appellant was found bearing nine injuries on his person. Two of them were on the head, one on the neck and others on the chest. His father was found bearing six injuries. In these circumstances, the trial Court was not justified to convict the appellant because he would be fully protected in repelling the attack launched upon him and his father by the complainant party in front of their house. The question as to whether the appellant had caused more harm than necessary for the purpose of defence is not solely dependent on the number of the injuries found on the person of the deceased and the other P. Ws. Amongst other factors, the proportionate ratio and nature of harm on each side in addition to the extent, proportion and ratio of apprehension is also to be considered. Good faith on the part of the accused is also one of such factors, because the accused's act cannot be weighed in golden scales. The complainant party had no justification to go to the house of the appellant and in the circumstances of the case the appellant was justified to act in defence of his person and his father. And if he is allowed further benefit of human error in making the judgment in the heat of moment in the absence of any golden scales, the plea of self- defence cannot be denied to him. Thus, he was entitled to complete the right of private defence. Accordingly, I accept his appeal, set aside his conviction and sentence and acquit him. He shall be set at liberty forthwith if not required in any other case. M. Z. M. Appeal accepted.