1969 P Cr (PLP)

Muzaffar (acquitted accused) was also examined on the 3rd of September 1964, at 4‑25 a. m. and two contusions were found on his person having been caused by a hard and blunt weapon.

5. The autopsy on the dead body of Siddiq deceased was conducted by Dr. Anwar‑ul‑Hassan, Police Surgeon, Karachi, on the 3rd of September 1964, at 11‑15 a. m. and the following injuries were found thereon :‑ (1) An incised wound " x 1/8' x skin deep back of the right index finger. (2) An oblique incised wound, 1 " x " into chest deep on the left shoulder blade. (3) A transverse abrasion, 1 " x , front of right knee. In the opinion of the doctor, the death of the deceased had occurred due to haemorrhage and shock as a result of stab wound on the chest. The doctor added that the chest injury (injury No. 2) was sufficient in the ordinary course of nature to cause death.

6. The appellant pleaded not guilty to the charge. He further pleaded that Siddiq deceased along with Qamar‑uz‑Zaman Alvi, Abdul Qayyum, Mir Hassan and Inayat Hussain P. Ws. had assaulted him when he was sitting all alone in a hotel in the Intizar Market and was given beating, and that he lodged the report with the police. He, however, produced no defence.

7. Of the three alleged eye‑witnesses Mir Hussain was examined at the trial while the statement of Abdul Qayyum and Inayat Hussain was transferred to the Sessions file under the provisions of section 33 of the Evidence Act, because they were not available. Briefly stated, their evidence discloses that Baz Muhammad appellant was sitting with Khawar Hussain and Muzaffar (acquitted accused) when Siddiq deceased approached him and asked him for the payment of the amount. At this, the appellant made the following remarks :‑ "I was making search for you in the sky but you have met in the ground, I won't leave you alive. Today, you cannot escape from my hands." After uttering these words he whipped out a knife and stabbed the deceased resulting in his death. The appellant also caused injuries to Abdul Qayyum P. W. with a knife. Abdul Qayyum P. W. also stated that Baz Muhammad appellant was injured by Siddiq deceased with a lathi which had fallen from the hand of Muzaffar (acquitted accused) and which he had picked up. He added that at the alarm raised Qamar‑uz- Zaman Alvi and Mahmud Siddiq P. Ws. reached the spot and they also witnessed the occurrence.

8. The learned Additional Sessions Judge, after appraisement of the evidence produced by the prosecution, arrived at the conclusion that Baz Muhammad appellant was sitting alone at tale time when Siddiq deceased along with his three companions reached there and demanded the amount. Eventually, he held that the fight was sudden and that Baz Muhammad appellant caused injuries to Siddiq deceased when the latter demanded the money. Regarding the injuries found on the person of the appellant, the learned trial Judge was constrained to hold that it was Siddiq deceased who gave blows with a stick. He accordingly acquitted Khawar Hussain and Muzaffar accused of tile charge of murder but convicted and sentenced the appellant as noted above.

9. The only question for determination in this case is w Nether or not the appellant caused the injuries to Siddiq deceased in exercise of the right of private defence. It now stands established that Baz Muhammad appellant was sitting alone when the deceased along with his three companions reached there and demanded the money. It is also clear from the perusal of the record that the parties were on inimical terms with each other so much so that four days earlier, Baz Muhammad appellant had threatened Siddiq deceased with dire consequences. Besides, two months prior to present incident, the appellant had been given lathi blows by Siddiq P. W. etc. as a result of which the former sustained injuries and lodged the report at Golimar Police Station (Exh. P. 33). In the present case also I find that die appellant had sustained five injuries with a blunt weapon. The version of the prosecution that Siddiq deceased belaboured me appellant with a dang after he himself had sustained knife injuries, is unbelievable. The post‑mortem report shows that Siddiq had received one injury on the chest which proved fatal. On the face of it, it is preposterous to urge that after sustaining an injury on the chest the deceased was in a position to attack the appellant with a dang. The only inevitable inference, therefore, is that it was Siddiq deceased who had opened the attack on appellant, and thereafter the latter whipped out a knife and caused injuries with it to the deceased resulting in his death. There is no escape from the conclusion that the appellant Inflicted injuries in exercise of the right of private defence.

10. Learned counsel for the State contends that as Siddiq deceased is said to have caused injuries with a lathi to the appellant, the latter was not justified in inflicting injury with a knife on the deceased, which proved fatal. In short, it is contended that the appellant had exceeded the right of self‑defence and as such vas guilty under section 304 (II), P. P. C. I am afraid the contention of the learned counsel for the State is not well‑founded. Considering that the appellant was sitting alone when he was attacked by Siddiq deceased who was accompanied by three others, he could not be expected to weigh iris action in golden scales. Apart from this, I find that the injuries with a blunt weapon by Siddiq deceased had been mostly inflicted on the vulnerable part of the body like head, which could reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. Needless to add that the very fact that Siddiq deceased took three persons along with him, shows that he had gone there at the odd hour of the night with sinister object, namely to attach the appellant, who had held out a threat to him about four days earlier.

11. For the reasons stated above, I am of the opinion that the appellant did not exceed the right of his private defence, in causing injuries to the deceased and to Abdul Qayyum P. W. 1, therefore, accept the appeal, set aside the convictions and sentences of the appellant and acquit him of the charges. He is directed to be released forthwith provided always that he is not required to be detained in connection with any other case. Appeal accepted.