1989 P Cr (PLP)

The learned trial Judge while relying upon the above ocular evidence, and recovery of blood‑stained Chhuri and clothes has convicted the appellant as described above. 'The present appeal is directed against the said judgment of conviction. I have heard the learned counsel for the appellant and learned counsel for the State and have gone through the R&P of the case. It was contended by the learned counsel for the appellant that there was none present at the time when the incident started and the eye‑witnesses produced by the prosecution have not said a word as to how the incident took place. It was further contended that the appellant was a young boy and the stand taken by him in his defence appears to be probable. It was supported by circumstances and therefore, he had complete right of private defence of his person and respect. In support of his contentions the learned counsel for the appellant has relied upon P L D 1978, SC 200 and P L D 1965 Lah.

553. The learned counsel for the State has contended that there is no evidence to show as to how the incident started and the plea taken by the appellant could be probable. In view of the above circumstances he was of the view that since the accused was a young boy he could be given benefit of doubt regarding his plea of right of private defence. I have considered the contentions of the learned counsel. There is no dispute as far as the incident was concerned. Even the learned counsel for the appellant has not seriously challenged the evidence produced by the prosecution. As far as the death of deceased Muhammad Sadiq was concerned, it stands proved through the 'evidence of Medical Officer and ocular evidence of complainant Syed Ali, P.Ws. Abdur Razzak, Muhammad Abbas and Noor Muhammad. Even the learned counsel for the appellant has not denied this aspect of the case. The only question that remains to be decided by this Court is whether the accused had acted in exercise of right of private defence of his person. Section 100, P.P.C. which relates to right of private defence reads as under:‑ Section 100.‑‑ The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:‑ First.‑ .................................................................................................. Secondly.‑‑ .......................................................................................... Thirdly. ................................................................................................ Fourthly.‑‑ An assault with the intention of gratifying unnatural lust; In the case of C3hazi Khan and another v. The State P L D 1965 (W.P.) Quetta 33' it was observed that: "For entitlement to the benefit of an exception meriting acquittal, the test is not whether the accused has proved beyond a reasonable doubt that he comes within any exception but whether in setting up any defence he has created reasonable doubt in the case of prosecution and thereby earned his right of acquittal: Even if the evidence fails to satisfy the Court affirmatively of the existence of circumstances bringing the case within the exception pleaded, the accused will clearly entitle himself to acquittal if upon a consideration of the evidence, as a whole, a reasonable doubt is created in the mind of the Court (whether the accused is or is not entitled to the benefit of the exception)." In the case of Muhammad Idrees v. The State P L D 1965 (W.P.) Lah. 553 it was observed that:‑ P.P.C. Sections 100 fourthly, 99 and 302 and Evidence Act section 105:‑‑ "Accused, a boy of 15 alleging to have killed deceased in self‑defence against deceased's attempt to commit sodomy. Absence of direct or indirect evidence to prove circumstances of murder. Reasonable possibility that defence set up by accused might be true. Burden of establishing, right of self‑defence m such circumstances can not be as heavy as burden resting on prosecution. Context of circumstances of case not enabling Court to fix stage or point of time at which accused ought to have ceased causing further harm to deceased. Excess, if any, committed by accused condoned and conviction of murder set aside." In the case of Najeeb Raza Rehmani v. The State P L D 1978 SC 200 it was observed that‑ "the appellant had stated in his confession that he had fired at the deceased after the deceased bpd opened the string of his trousers. In other words, he had fired al the deceased after the deceased had attempted to commit sodomy on him, and under section 100, P.P.C. the right of private defence of the body extends even to the voluntarily causing of death, `if the offence which occasioned the exercise of this right is an assault with the intention of gratifying unnatural lust:' In view of the above discussion and the legal position it is clear that the appellant was a young boy while the deceased was a Rajput and a young sturdy man. He had taken the accused to his room on the pretext of getting him a job. He was living single and his wife had died about 12 years back. Under these circumstances, the plea taken by the accused could also be probable, therefore. A the accused had a complete right of private defence against the attack made by the deceased in order to commit sodomy on him. Therefore, while extending benefit of doubt I allow this appeal, set aside the conviction and sentence of the appellant and he is acquitted of the charge. He shall be released forthwith if not I required in any other case. I had decided the above case on 22‑7‑1987 by a short order and these are the reasons for the same. M.A.K./B‑99/K Appeal accepted.