P L D 1963 Supreme Court 740 (PLP)

CORNELIUS, C. J.--The conviction of the appellant Shamshad under section 302, P. P. C. and a sentence of transportation for life were awarded by the High Court on appeal by the State against his acquittal of the offence of murder at trial, where he was however convicted under section 304, Part II, and awarded a sentence of 7 years' rigorous imprisonment. Accordingly, this appeal is brought before us as of right. The appellant was aged about 14 years at the time of this occurrence, in which all the participants were boys of about his own age, namely, the deceased Abdul Shakoor, aged about 15, Muhammad Shafiq, P. W. 2, about 12, Abdul Qadir, P. W. 4, about 12, Gul Muhammad, P. W. 5, about 14, and Malik Taj, P. W. 6, about

14. On the 14th July 1961, in the afternoon, the five boys other than the accused were playing in the water of a stream flowing about 10 paces away from their village Kalu Shah in the district of Mardan. In the initial report, made by the victim, Abdul Shakoor, Shamshad accused is said to have come there and ordered the deceased not to bathe in that water and to go away. Abdul Shakoor insisted on bathing there, and there was an altercation in which abuses were exchanged. Shamshad entered the water caught hold of Abdul Shakoor and gave him a ducking where upon he freed himself and ran out of the water. Shamed too came ran out and put on his clothes from which he took out a knife and struck Abdul Shakoor a single blow on the left sib of his chest. Abdul Shakoor said that the boys who were the water and one Hazrat Gul joined to release him. As for the motive, he: said that five or six months earlier, Shamshad had beaten him,, but there was no other cause of enmity. The case for the accused person was stated in the trial Court as below :‑ "On the day of occurrence, I was swimming in the same channel at a distance of 50‑600 paces upstream from the deceased and P. Ws. The deceased and all the P Ws. came and wanted to drown me in the c channel. I out of fear came out of the stream and put on my , clothes. The deceased and Muhammad Shafiq P. W. came out of the water and were dragging me to the water, when I gave a stab wound each to the deceased and Shafiq, which I was carrying with me for mending my pens etc. " The evidence of the four boy‑witnesses who appeared for the prosecution was not wholly consistent. Muhammad Shafiq said that Shamshad ordered all of them not to swim in the channel, while Abdul Shakoor's report gives the impression that the order was addressed particularly to him, because of the earlier incident of beating. Muhammad Shafiq went on to say that Shamshad removed his clothes and wearing a langoti he jumped into the channel which is only 2 or 3 feet deep and began to duck the deceased, which he did four times after which Abdul Shakoor managed to release himself and came out of the water, saying that he would go and complain to Shamshad's uncle who would teach him a lesson. In the meantime, Shamshad came out of the water, and "hurriedly put on his clothes", and then drawing a knife from the pocket of his shirt he stabbed the deceased with it. At this time, Muhammad Shafiq and the others were still in the channel. Abdul Shakoor fell down and Muhammad Shafiq running out caught hold of the right arm of the accused as he was about to strike Abdul Shakoor again. Shamshad took his knife in his left hand and struck Muhammad Shafiq on the back with it and then ran away. As for the reason of the occurrence, Muhammad Shafiq said that three months earlier, the accused had stopped Abdul Shakoor "on a particular path and had altercated with him". He could not say why Shamshad had stopped Abdul Shakoor from going along that particular path. It was only because of that occurrence that Shamshad had tried to stop them from swimming in the water. The differences as between this evidence and the statement of Abdul Shakoor stand out clearly. One has been mentioned already, namely, the deceased's version that Shamshad had pointedly stopped him alone from swimming in the channel. A second is that the deceased himself never said that coming out of the water he declared that he was going to complain to Shamshad's uncle. A third is that according to Muhammad Shafiq he was the only person who went to the aid of Abdul Shakoor, and moreover, Muhammad Shafiq's injury is not men tioned in the latters' report. Lastly, Abdul Shakoor did not say anything about Shamshad having earlier prevented him from using a particular path, an incident which Muhammad Shafiq professes to have himself witnessed. The case for the defence was put to Muhammad Shafiq in cross‑examination. It was suggested that Abdul Shakoor had followed Shamshad when the latter came out of the water, and he denied it. It was also suggested to him that he and Abdul Shakoor had given a ducking to the accused as well, and this too he denied. P. W. 4 Abdul Qadir's evidence‑in -chief supported that of Muhammad Shafiq in detail, but he added some further matters, namely, that Shamshad had already had a bath when the other boys came to the stream and had gone back to his house before he came again to the stream, started abus ing the others and then took off his clothes and jumped into the channel. To the Police, however, he said that after the exchange of abuses, Shamshad came out of the channel, put on his clothes and went to his house and then after some time returned to the stream and drew out a knife and, stabbed Abdul Shakoor. A significant omission in Abdul Qadir's earlier statement was that he never said that Abdul Shakoor on coming out of the water declared that he was going to complain to Shamshad's uncle. This is a point of importance in this way. According to the accused, the reason why he drew out his knife was because he was being dragged into the water by Muhammad Shafiq and Abdul Shakoor, (earlier, when he was in the water, all of them had "wanted to drawn him.) In Abdul Shakoor's dying state ment, no circumstance appears which could provide a motive for the stabbing, so that the impression gained is that Shamshad was in a bullying mood and not content with having ducked Abdul Shakoor while in the water, he came out, put on his clothes and while Abdul Shakoor was standing on the bank, he drew out a knife and wantonly stabbed him, as a further act of high handedness. At the trial, however, an attempt was made to provide a reason, namely, that Abdul Shakoor was threatening to complain to Shamshad's uncle, and it is significant that this statement should be totally absent from the earlier statements of several of the prosecution witnesses. Another of these witnesses is Gul Muhammad, P. W. 5, whose statement in general corres ponded in detail with that of Muhammad Shafiq. But he also had never stated earlier that Abdul Shakoor had threatened to inform Shamshad's uncle. The fourth of the witnesses, Malik Taj, like Gul Muhammad and Abdul Qadir never claimed to have joined in the attempt to rescue Abdul Shakoor. It was put to him that Abdul Shakoor and Muhammad Shafiq were trying to drag Shamshad again into the water and he denied it. He admitted however having said in the Committing Court that Abdul Shakoor and Muhammad Shafiq had been grappling with the accused on the canal bank at a distance of some 10 paces from where the other three boys were .in the water. On the prosecution version, there was no grappling at all between Abdul Shakoor and Muhammad Shafiq on one side and Shamshad on the other. But if in fact there had been grappling, then support will be available for the version of the accused, namely, that after he had put on his clothes, the other two boys came at him, seized him and tried to drag him into the water and in order to save himself he pulled out a knife and used it. To explain why he took such a dangerous step he said that "they" had earlier threatened to drown him. The case which the accused sought to set up was thus one of self‑defence, and there being no other evidence except his own statement in support, it became the duty of the trial Court as laid down by the Federal Court in the case of Safdar Ali (PLD 1953 FC 93 = (1952) FCR 238) to place the allegations for the prosecution and those for the defence in juxta‑position against the background of the proved facts and circumstances and thereafter to consider whether the case set up by the accused was not a reasonably possible one. If it should be found to be reasonably possible, then the effect of creating a reasonable doubt regarding the truth of the prosecution case could not be avoided, and this could not be without effect upon the finding as to the guilt of the accused. The learned Judge of the trial Court did indeed make a careful attempt to appreciate the facts and circumstances in relation to the opposing versions set up on the two sides. He came to the conclusion that the primary object of Shamshad in entering the water was "to tease the deceased by dipping him in the water". This being an incident among boys, all except one of whom appeared and gave evidence before the learned trial Judge, such an appreciation by him of the true nature of the incident must be allowed proper weight, since it must be presumed that he had full familiarity with the character and tendencies of young persons belonging to the area. The learned trial Judge then pointed out that there was ample proof that Shamshad first came out of the water and after him the deceased and Muhammad Shafiq came out, and he thought that there was sufficient material for him to hold that Abdul Shakoor and Muhammad Shafiq followed Shamshad and this led to an altercation and grappling where upon Shamshad stabbed Abdul Shakoor. The learned trial Judge pointed out that if it were true, that Abdul Shakoor felt aggrieved and threatened to complain to Shamshad's uncle, he must have dressed himself first and set‑off for the village, but all the witnesses are agreed that it was the accused who was dressed and Abdul Shakoor was not. This was true also of Muhammad Shafiq, namely, that when the incident occurred he had only just come out of the water. The learned trial Judge was unable to presume that Shamshad had any intention to commit murder, because the knife he used was such as is com monly carried by students. He concluded that the accused after satisfying his vanity by dipping the deceased, "came out of the water and put on his clothes, when the deceased and P. W. Muhammad Shafiq in order to take revenge from him came out of the channel and were naked, when they started quarrelling and grappling with the accused". He pointed out that P. W. Malik Taj had admitted that there was grappling between the three on the bank of the channel. Next, the learned Sessions Judge found that the action of the accused in striking only one blow showed that he had no intention to murder either Abdul Shakoor or Muhammad Shafiq. He did not believe that Abdul Shakoor came out of the channel in order to go to, Shamshad's uncle because he could have very well done that later on. He found support for the accused's version of the occurrence in the circumstance that the investigating officer found signs of struggle at the point where Abdul Shakoor had fallen. Accordingly, he came to the conclusion that although the prosecution witnesses were present on the spot, they were " telling lies by saying that the accused followed the deceased out of the channel and stabbed him on the spot". Yet, after coming to these findings, the learned Sessions Judge found it impossible to allow that the accused had acted in exercise of the right of private defence of his person. The law is clear that the right of private defence extends to the causing of death in certain specified situations, but there is such a right against any assault on the person which extends only to the causing of such harm as is necessary to avoid the danger. The ground on which the learned trial Judge found it possible to reduce the offence to culpable homicide not amounting to murder was that the incident arose out of a sudden quarrel, and that the accused acted in the heat of passion. As to the circumstance that the accused used a knife against unarmed boys, the learned Sessions Judge held that this did not prove that he acted in a cruel or unusual manner as he only used a pen knife. With this conclusion it is, with respect, not possible to agree. It is clear that the pretext that he was afraid of being forced into the water and drowned is of no avail. Having already put on his clothes, the accused might well resent and resist an attempt by the other boys to drag him back into the water, but it is impossible to suppose that he stood in any fear of losing his life. Yet, as indicated above, on the view taken by the learned Sessions Judge a right of self‑defence not extending to the causing of death was available to the accused, and in that view, the offence would still fall to be punished under section 304, P. P. C. The learned Judges in the High Court found themselves unable to accept the view formed by the trial Judge of what had occurred. They thought that it was not necessary to suppose that Abdul Shakoor would have been in a hurry to put on his clothes and rush to complain to the accused's uncle, and therefore the prosecution story that the accused dressed first and that Abdul Shakoor was still naked when he was stabbed was not incredible. They failed to observe, however, that the story of the deceased threatening to complain to Shamshad's uncle was never mentioned at an earlier stage, and that without this incentive or moving cause, the action of the accused in stabbing Abdul Shakoor was unexplained unless it be believed that his bullying nature took complete possession of his mind. Even this the learned Judges did not accept because they held that the crime was committed in "a childish display of vanity" and not for any previous serious enmity. Killing out of childish vanity may not be wholly impossible to conceive, but is this case it cannot be over‑looked that another explanation for the accused's conduct had been given, namely, that he used the knife to free himself from persons who were assaulting him with a view to drag him, dressed as he was, into the water. As to this, the learned Judges were content to say that the story was unconvincing. Firstly, they said that if the "deceased and his three companions" wished to drown Shamshad they could have done so while he was in the water. In fact, there was no question of any one being drowned. The mention of drowning only appears in a late statement by Shamshad made in order to cover fully his action in using a knife, and it need not be accepted as a proved fact and even as a likely thing that there was any talk of drowning. When, the learned Judges pointed out that none of Shamshad's clothes were torn nor did he have any injury on his person and that if he had been assaulted, as he suggested, both these circumstances would have been found. Here again, while it cannot be doubted that tearing of clothes and slight injuries might have resulted from a serious grappling, yet it must be remembered that there were merely boys of 15 and 12 respectively, and there is nothing to show that grappling continued for any length of time before the accused pulled out his knife and brought it to an end. It is clear that in making their final assessment of the case, the learned Judges in the High Court did not follow the principles and procedure laid down very clearly for application in cases of the present kind by the Federal Court in the case of Safdar Ali. When those principles are applied, it becomes plain that the explanation put forward by the accused for his conduct is at least as worthy of acceptance as that put forward by the prosecution. There are circumstances which support the accused explanation which are not consistent with the story set up by the prosecution. That being the case, effect must necessarily be given to the accused's version as reasonably possible, which re‑acts upon the credibility of the prosecution case by creating reasonable doubt regarding the truth of the incidents upon which it rests. When duly analysed the offence of the accused would appear to be that of having acted in excess of the right of private defence in stabbing Abdul Shakoor in such manner that he sustained immediately a fatal wound. A knife blow in the chest and that on the left side is well‑known to be in almost all cases fatal. Consequently, the offence of the accused falls to be punished under section 304 (Part 1), P. P. C. and we allow this appeal to the extent that we alter the conviction of the appellant Shamshad accordingly and restore the sentence of seven years' rigorous imprisonment awarded to him by the trial Court. K. B. A. Appeal partly accepted.