1984 P Cr (PLP)

4. On 10th October, 1965 Dr. Munawwar Ahmad, Medical Officer, D. H. Q. Hospital, Sargodha, conducted the autopsy on the dead body of Moman deceased and found a swelling 4" x 3" on the right side of skull, extending from just above the ear forward to the forehead with contusion mark 3" x 1". Right eye and the upper and lower lids were blue. There was fracture of frontal temporal and parietal bones. In the opinion of the doctor, death was due to shock and haemorrhage resulting from injury No. 1 which was sufficient to cause death in the ordinary course of nature. On 11th October, 1965 Dr. Izhar-ul-Haq examined Muhammad Shafi P. W. and found two injuries on his persons. Both the injuries were caused by blunt weapon and were declared simple in nature. On 12th October, 1965, Dr. Riaz-ud-Din, Medical Officer, D. H. Q. Hospital, Sargodha, examined Suleman accused and found four injuries on his person, simple in nature, caused by blunt weapon.

5. In support of its case the prosecution examined four eye-witnesses, namely, Mst. Shand, Abdul Ghani, Shafi and Suleman. It also relied on the evidence relating to recovery of Mst. Saidan from Suleman accused and that of lathis from both the appellants.

6. The appellants pleaded not guilty to the charge. They admitted that they had divorced the daughters of Abdul Ghani complainant. Suleman appellant, when asked to explain his injuries, made the following state ment: I was shifting from the village on fear of the parents and other relations of Mst. Shanti and was carrying my luggage when I was stopped on the way by Shafi P. W. and Moman deceased who were armed with dangs and they gave me blows claiming that I was taking the luggage belonging to Shanti. In the process Moman and Shafi received injuries. Chhotu appellant stated that he had been implicated due to enmity. However, in the committing Court he admitted his participation but gave a counter-version of the same as under " .. ...When we two brothers were going Moman deceased and Shafi P. W. armed with lathis attacked us and caused injuries to Suleman. At last, his lathis broke down at which I gave one lathis blow to Moman deceased for saving my brother." Suleman appellant examined three witnesses in defence.

7. After examining the evidence on the record, the learned trial Judge came to the conclusion that the injury to the deceased was caused in self- defence when he attacked Suleman accused. He was, however, of the view that since the injuries caused to Suleman by Moman deceased were simple, the right of private defence did not extend to the causing of death. He, therefore, convicted and sentenced the appellants as mentioned above.

8. The learned counsel for the appellants contends that Suleman appellant had four injuries out of which two were on the head and Chhotu appellant had given only one blow to the deceased, therefore, the right of self-defence was not exceeded. He further submits that Mst. Saidan aged one and a half years eras the real daughter of Suleman appellant, therefore, even if the allegation that he had taken her away, is accepted as correct, no offence under section 363, P. P. C. is made out. The learned State counsel supports the judgment of the trial Court.

9. No appeal or revision has been filed to question the finding of the trial Court that Chhotu appellant had caused the solitary injury in exercise of the right of self-defence. At the trial Abdul Ghani complainant made an improvement saying that the deceased gave 2/3 blows to Suleman appellant when the accused were about to attack him. He was confronted with the F. I. R. wherein it was not so recorded. According to the F. I. R. it was Moman deceased who opened the attack by causing injury to Suleman accused with a piece of wood. Suleman accused had four injuries on his person, out of which two were on the bead. In the circumstances the appellants could reasonably apprehend that death or grievous hurt would be the consequence of the assault if the attack was not repelled. Chhotu appellant gave only one blow to the deceased which unfortunately proved fatal on the third day. He did not repeat the blow. In the circumstances, the appellants cannot be held to have exceeded the right of private defence. In the F. I. R. the complainant stated that the deceased gave on blow to Suleman appellant with a piece of wood. As already mentioned, Suleman had four injuries. The defence version that both Shafi and the deceased caused injuries to Suleman appellant, is plausible. The appel lants were, therefore, justified in hitting back Shafi P. W.

10. As for the charge of kidnapping, Suleman appellant is the real father of the minor girl, namely, Mst. Saidan. Under the Muhammadan Law the father is the legal guardian of the minor and is deemed in law to be in constructive custody of the minor. The taking away of the child was not for any immoral or unlawful purpose. In the circumstances, nor offence under section 363, P. P. C. is made out.

11. For the foregoing reasons this appeal allowed, the conviction and sentence of the appellants is set aside and they are acquitted of the charge. They are on bail. They shall be discharged from their bail bonds. S. G. D. Appeal allowed.