P L D 1969 Lahore 738 (PLP)

SHAUKAT ALI, J.

‑Azmat Khan .(20); was prosecuted under section 302, P. P. C., for having caused the death of Khadi Khan, on 2nd of March 1966, in village Qila Daoke, within the jurisdiction of Police Station Chung, District Lahore. The Additional Sessions‑ Judge, Lahore, Camp Kasur, who tried him, found him guilty under section 302, P. P. C., and ordered him to suffer death. The condemned person appeals. There is a, usual reference before us for confirmation of the sentence of death.

2. The prosecution version was as follows: On 2nd March 1966 at about 11 a.m; the appellant was found cutting linseed crop from the field of Sardar Khan P.W. He turned up. On seeing him the appellant decamped leaving a sheaf of linseed. The same day at about 2 p. m:, Sardar Khan P. W. sent for his ion Abdur Rehman P. W. 9, Khadi Khan deceased, Akkay Khan P. W. 10, Abdur Rehman P. W. 11, son of Budhan and Abdur Rehman P. W. 12, son of Kanwal Khan, and apprised them of cutting of linseed crop by Azmat Khan appellant. When they were still sitting in front of the house of Sardar Khan P. W., the appellant came there. The appellant and Khadi Khan exchanged abuses. When Khadi Khan stood up the appellant ran away. After ten minutes he came armed with a gun. He abused Khadi Khan and challenged him, who stepped forward but the appellant retreated. He was chased by Khadi Khan and others. When Khadi Khan reached in front of the shop of Ismail the appellant fired at him. The burst hit him. Kaadi Khan collapsed and died at the spot. Abdur Rehman P. W. 9, one of the pursuers, who was armed with a hatchet, inflicted a blow at the back of Azmat Khan. He fell down. Abdur Rehman P. W. deprived him of his gun. The appellant managed to escape. The occurrence was witness; d by Sardar Khan. P. W. 8, Abdur Rehman P. W. 9, Akkay Khan P. W. 10, Abdur Rehman P. W. 11 and Abdur Rehman P. W. 12.

3. Leaving others at the spot, Sardar Khan P. W. proceeded to Police Station Chung, which is at a distance of 11 miles from the scene of occurrence. On the way he met Bashir Hussain A. S. 1. (P. W. 14), at Manga Bus Stand and made report of this incident to him. The A. S. I. recorded statement Exh. P. A. of Sardar Khan P. W. which concluded at 3‑45 p. m. A formal first information report Exh. P. A./1 was recorded at 4‑45 p. m., tree same day by Ghulam Sarwar M. H. C. P. W. 6, at Police Station Chung.

4. Bashir Hussain A. S. I., proceeded to the spot. He prepared the injury statement and the inquest report of Khadi Khan deceased and despatched the dead body for post‑mortem examination to the mortuary at Lahore. Abdur Rehman P. W. 9, produced gun P. 9, which had a spent cartridge P. 10 in it and hatchet P.

1. These were taken into possession and made into separate sealed parcels vide memos. Exh. P. C. and P. D., respectively. Sardar Khan P. W. produced a sheaf of linseed crop. It was taken into possession vide memo. Exh. P. B. Hurmat Khan, brother of the appellant, produced licence P. M. of the gun. The same was taken into possession vide memo. Exh. P. N. The A. S. I. also took into possession from the place of incident blood‑stained earth and shoe P. 2 of Azmat Khan, vide memos. Exh. P. E. and P. F., respectively. The appellant was produced before the A. S. L, the same day at 10 p. m. He was put under arrest. The appellant was injured. The A. S. I., prepared his injury statement and got him medically examined.

5. Doctor Muhammad Zaheer Khan, P. W. 1, conducted the post‑mortem examination on the dead body of Khadi Khan, on 3rd of March 1966 at 12‑40 p. m., and found the following injuries thereon:‑ (1) Multiple entrance wounds of pellets in an area of 9" x 7", on the front of chest. Three pellets were found from the wound of the chest. (2) A lacerated wound, 3" x 2" x ", on the dorsum of left hand, i.e. left index and middle finger. Underlying bones of the fingers were fractured and crushed. Death, in the opinion of the doctor, was due to shock and haemorrhage as a result of pellet injuries to the both lungs and heart caused by tire‑arm. Injury No. 1 was caused by fire‑arms and injury No. 2 by blunt weapon. Injury No. 1 was sufficient to cause death in the ordinary course of nature.

6. Doctor Muhammad Alam Qureshi, C. W. 1, Casualty Medical Officer, Mayo Hospital, Lahore examined Azmat Khan appellant on 3rd of March 1,966 at 1.00 a. m. and found the following injuries on his person:‑‑ (1) An elliptical incised wound, 4" x l", vertical in direction, maximum breadth, depth explored on the right scapular region, 3 from the midline. (2) A lacerated wound vertical indirection, 1" x 1/8" skin deep, middle of frontal region of, the scalp in the hairline. There was no neurological signs. Injury No. 1 had been caused by a sharp‑edged weapon. Injury No. 2 was simple in nature and had been caused by blunt weapon.

7. The defence of the appellant was that he was coming from his field holding a small stick in his hand. When he came across Khadi Khan who abused him and inflicted a takwa blow on his head. The blow hit his stick and part of it struck his forehead from its blunt side and that Khadi Khan gave him another takwa blow at his back, he fell down, and when the deceased was going to strike yet another blow, his brother Hurmat Khan D. W., who had a licensed gun fired at the deceased to save him. He examined Hurmat Khan D. W. in defence.

8. In support of the prosecution version five witnesses, namely, Sardar Khan P. W. 8, Abdur Rehman P. W. 9, son of Sardar Khan, Akkay Khan P. W. 10, Abdur Rehman P. W. 11, son of Budhan and Abdur Rehman P. W. 12 son of Kanwal Khan, were examined. All these witnesses supported the prosecution case. They say at the trial that they assembled to discuss the theft of linseed crop when the appellant came there and abused Khadi Khan, whereupon Khadi Khan attempted to apprehend him, who escaped. After a few minutes he came armed with gun P.

9. He threw a challenge to Khadi Khan, who chased him, and the appellant fired at him resulting in his instantaneous death. It is also in their evidence that Abdur Rehman P. W. 9, inflicted a hatchet blow on the appellant and that after suffering the injury he escaped. Out of these witnesses, Sardar Khan P. W. 8, Abdur Rehman P. W. 9 and Akkay Khan P. W. 10 are the relations of the deceased, Abdur Rehman P. W. 12 is from his brotherhood while Abdur Rehman P. W. 11 belongs to his community. The mere fact that these witnesses are the relations of the deceased, do not, in our view, detract the value of their testimony. The fact that they are the relations o A from his community shows that they were the most likely persons to be present at the scene of the incident.

9. After analyzing the evidence on the record, the Additional Sessions Judge took the view that it was hard to believe that the deceased would run towards the appellant empty‑handed and that at the time of the second visit the appellant challenged the deceased, the deceased answered the challenge, ran towards the appellant armed with hatchet P. 1, both grappled with each other whereupon the appellant fired at him; and Khadi Khan fell down. He held that hatchet blow was inflicted at the back of the appellant by Abdur Rehman P. W.

9. He also held that the prosecution witnesses did not tell all the truth and there were discrepancies in their statement. He lastly held, and rightly too, that the first information report was recorded at the place of incident. These conclusions arrived at by the learned Additional Sessions Judge were not challenged by the learned counsel appear ing for the State.

10. It has come in evidence of Akkay Khan P. W. 10 and Abdur Rehman P. W. 11, that when the appellant was running with a gun he was chased by Khadi Khan who was armed with a hatchet. We also found other discrepancies which need not be repeated as they form part of the judgment of the learned Addi tional Sessions Judge, suffice it to say, that the prosecution witnesses have introduced falsehoods and it is difficult to accept the story as told by them is its entirety. The defence evidence has rightly been discarded by the trial Court and the defence did not lay much emphasis on it.

11. After examining the entire evidence on the record we can reconstruct the scene of incident as follows. The appellant appeared on the scene and retired after the exchange of abuses with Khadi Khan. A few minutes later he came armed with gun P.9. He challenged Khadi Khan. The challenge raised the temper of the complainant side. Khadi Khan armed with a hatchet stepped forward. The appellant receded. He was chased for 36 yards by Khadi Khan and the eye‑witnesses. While running the appellant took turn and fired at Khadi Khan who sank to the ground. Abdur Rehman P. W. 9 inflicted a hatchet blow on him. He was disarmed but managed to escape. The conduct of the appellant was throughout reprehensible. He committed the theft He appeared on the scene with a gun to revive the quarrel and gave provocation to Khadi Khan and others. In face of this conduct it looks strange and difficult to accept that the appellant is entitled to the plea of self‑defence when he himself was the aggressor, provoked the attack, brought on a combat or an encounter, and finding no match retreated, but as he could not escape he killed the opposite side. It is well settled that the law does not confer the right of self‑defence on a person who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self‑defence conferred by law or preserved by law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify the exercise of such a right. Likewise, the right of self‑defence is available to those who .pct honestly and in good faith. In no case, can it be employed as a shield to justify aggression. An accused cannot invoke self‑defence as a device for provoking an attack in order to slay his assailant and then to plead self‑defence. Furthermore, once the provocation is given by an offender himself he cannot subsequently urge that his rival had acted in a provocative manner in Balbir Singh Balwant Singh v. The State (A I R 1959 Pb. 332), G. D. Khosla and Tek Chand, JJ., delivered themselves as follows:‑ "Four cardinal conditions must have existed before the taking of the life of a person is justified on the plea of self-defense: Firstly, the accused must be free from fault in bringing about the encounter ; Secondly, there must be present an impending peril to life or of great bodily harm, either real or so apparent as to create honest belief of an existing necessity; Thirdly, there must be no safe or reasonable mode of escape by the retreat; and Fourthly, there must have been a necessity for taking life.

12. From the evidence placed on the record we find that the appellant thought that he was no match for a duel and decided to escape by retreating. He was chased by the deceased and his companions. After traversing some distance he found it difficult to escape, turned round and fired a shot. In face of this finding it can be said that the appellant was justified in defending c himself against the attack. We also hold that an attack with a hatchet was likely to create a reasonable fear of grievous hurt been caused to the appellant and that he was justified to act in self‑defence to the extent of causing grievous hurt or even death. What we have said above, seems to be in accord with the view in the case reported as Ram Sweal v. Emperor (A I R 1925 All. 313 (2)) where Mukherji, J. observed:‑ Where the accused had picked the quarrel and tried to hit another but ran for his safety from the subsequent attack with lathis and after running some distance, the accused found that he could not very well make his escape and turned round and hit a blow, it was held that it must be held that he hit in self‑defence.

13. After giving careful consideration to the fact and circumstances of the case, we are of the view that this appeal must be allowed. Accordingly, we accept the appeal, set aside the conviction and the sentence of the appellant and acquit him. The sentence of death is not confirmed. K. B. A. Appeal allowed. Conviction set aside.