1977 P Cr (PLP)

Lady Doctor Fakher‑un‑Nisa P. W. 1 on 4‑11‑72 at 10‑30 a.m. medically examined Mst. Khudija Bibi P. W. 7 and found four injuries on her person. All these injuries were simple and were caused with blunt weapon. Similarly this Lady Doctor also medically examined Mst. Abdul Jan P. W. 8 on the same day and found one injury on her person which was declared simple. Dr. Muhammad Akiam examined Lal Khan appellant on 4‑11‑72 and found following injuries on his person :‑ (1) A seabed abrasion I/2" X1/2" at the back of right elbow. (2) Three seabed abrasions 5" X 4" x 3/4" X 1/4" and 1/3" X 1/4" at the back of right upper chest. (3) A seabed abrasion 1 " X 1/4" at the back of left shoulders blade. (4) Complaint of pain back of right buttocks. (5) A seabed abrasion 1/2 X 1/5" on the right side of forehead. According to doctor all the injuries were caused with blunt weapon and were simple in nature.

6. The case of the prosecution rests on the evidence of motive, ocular testimony as provided by the two injured witnesses and Maskeen, maker of the F. I. R. As the hatchet recovered from the appellant was not found to be blood‑stained, therefore, it was not sent to the Chemical Examiner or to the Serologist for opinion. Therefore, the evidence of recovery in this case is of no significance. Lal Khan appellant while appearing before the learned trial Court made following statement when he was asked to explain that why this case was made against him: "Myself, my wife Mst. Rashidan and daughter Mumtaz were subjected to brutal aggression by the deceased and Mst. Khudija and Mst. Abdul Jan P. Ws. 1 submit my statement Exh. P. E." It may be mentioned at this stage of the case the written statement of Lal Khan appellant runs into 10 foolscape typed papers in English. The reading of which shows that the statement in fact is nothing but written arguments drawn by the learned Advocate who was defending him during the course of trial. However, the crux of the written statement is that the complainant party trespassed into his courtyard and opened an attack with stick causing him as many as 7 injuries including one on the forehead. He attributed the death of the deceased due to striking of stones hurled by the ladies from both sides and claimed that the deceased had died by stone hurled by his own women‑folk. He also claimed that he went to the police station to report this matter but nobody listened to him as the complainant party had arrived on their way. He further claims that Aziz was never present at the place of occurrence and was falsely implicated. He in the alternative also pleaded right of private defence.

7. I have heard learned counsel for the appellant as well as learned counsel for the State and have perused the record of this case carefully with their assistance.

8. It has been submitted on behalf of the‑appellant that when learned trial Court itself has held that deceased while armed with stick had initiated the attack against the appellant who was found empty‑handed at the relevant time and it was only then, when he took up a `kulhari' and landed a single blow on the rear part of the head of the deceased, therefore, learned trial court was not justified in disallowing the right of private defence to the appellant to which under law he was fully entitled. It has been further submit ted that it was in the evidence of P: W. 2 Sher Muhammad Patwari that the fight had taken place at place which was in possession of Lal Khan appellant. In view of the above submission, learned counsel vehemently argued that the case of the appellant merited acquittal on the above‑mentioned grounds only.

9. I have given my anxious thought to the contentions raised by the learned counsel and find these quite forceful. While going through para. No. 12 of the judgment of the learned trial Court, I find that it has been held by it as follows "There is however, another circumstance although not pleaded in favour of the accused. The deceased immediately on receiving the head injury had fallen down and thus could not deliver any blow on the person of Lal Khan after that." "Dr. Akram P. W. 1 who, medically examined Lal Khan has given the opinion that the injuries suffered by him could not be self‑suffered and were possibly the result of stick blows. Said Khan's daughter‑in‑law Mst. Khudija and Mst. Abdul Jan had admittedly no sticks in their hands but had only made use of stones while participating in the fight. It seems that Lal Khan had been assaulted by Said Khan first and a stick had been used in making assault. Lal Khan received a few injuries although simple, his daughter has got three and wife two injuries. One of the injuries on the person of his wife Mst. Rashida was bone fracture as revealed by X‑ray report Exh. D.

1. It appears that Lal who was already offended over the installation of a cattle shed of Said Khan in his part of the premises was driven into rage on suffering humiliation on physical assault at the hands of the other party and could not control his passions. As he and his family members were receiving injuries he could not exercise self control and got hold of a hatchet lying somewhere in the premises by way of retaliation and gave blow on the head of his enemy." This (underlining is mine). Analysis of the above will clearly show that the learned trial Court came to positive conclusion after recording the evidence of P. Ws. in this case that it was the deceased who launched an attack on the person of the appellant and struck on his vital parts i.e. head and chest. According to learned trial Court it was only when the appellant was struck by the deceased that he took up a hatchet lying somewhere at the place of occurrence and gave one single blow in retaliation on the head of enemy. With these conclusions as arrived by the learned trial Court it was hardly proper for it to record the conviction of the present appellant under section 304, P. P. C. It has been held in Khalid Mahmood and 3 others v. The State (1975 P Cr. L J 772) by a Division Bench of this Court of which I was one of its members and wrote the leading judgment as under: ‑ "The recognition of the right of private defence is simply a recognition of the importance of the instinct of self‑preservation for the well‑being of human society. Self‑defence is the nature's oldest law. It is based on the law of necessity of self‑preservation. The right of self‑defence conferred by section 96, P. P. C. is to the effect that every person has a right to hold his ground manfully and not to run away like a coward. The only consideration is that a person threatened with danger of injury should not exceed the limits fixed by the law. This, of course, depends upon reasonable apprehension of danger to the person under the particular circumstances of the case. It is reasonable apprehen sion of danger to the body and not the actual injuries received that should judge the justification of the act of the accused. The reason ableness of the apprehension is a question of fact which depends upon the weapon used, the manner of using it, the nature of assault or other surrounding circumstances." In the instant case, in view of the observation of the learned trial Court itself Lal Khan appellant was fully justified to repel the attack made by the deceased against his person as he was inflicting blows on him with lethal weapon like `sota' and therefore giving one single blow in retaliation on the part of Lal Khan would not disentitle him to the relief which law has bestowed upon persons who confronted with such situations. In view of the law laid down on this subject of self‑defence in sections 96 and 97, P. P. C. and interpreted from time to time by the Superior Courts of this country, the reasons given in para. 11 of the judgment of trial Court for holding the appellant guilty are untenable. To say that Lal Khan should have run away from the place to find some less formidable weapon or to use the hatchet so found by him at the spot lightly, would be requiring from him to weigh in golden scale his steps while formulating his defence against his enemy. Similarly in State v. Khalil-ur-Rehman (P L D 1960 Pesh. 50) their Lordships while dealing with right of private defence held: "if an accused person is found to have been injured in a fight with the deceased, it will be permissible to presume that it was the deceased who injured him, unless there is clear evidence or circumstance to the contrary, and if it is doubtful as to which of them attacked first, the benefit of doubt will go to the accused."

10. Without going into ancillary matters of this case, I am of the con sidered opinion that the appeal of the appellant is liable to be accepted. According to the finding of the learned trial Court itself, what I find is that the learned trial Court has fallen into error while interpreting the law on the subject of private defence although he was clear in his mind that the attack was initiated by the deceased and Lal Khan appellant acted to defend his person as well as to defend the person of his family members, his daughter and his wife.

11. The result is that I accept the appeal and set aside the conviction and sentence of Lal Khan appellant as visited upon him by the learned trial Court under section 304, P. P. C. He shall be set at liberty forthwith if not required in any other case. Appeal allowed.