1985 PLP r (PCRLJ)

"A stab wound 1" x 1/3" x deep going on the front of left side of chest about one inch inner to the nipple in the fifth intercostal space." The fifth rib was cut (chip was separated). Pericardium was cut and pericardial cavity was full of blood. Right ventricle of the heart was punctured. Pleura was punctured on left side. According to the doctor, the death occurred due to severe haemorrhage and shock caused by the injury which was sufficient to cause death in the ordinary course of nature. The injury was ante‑mortem and was caused by sharp‑edged weapon. .

4. The appellant was arrested who at that time was wearing blood stained shirt P.6 and Shalwar P.7 which were secured and made into a sealed parcel through memo. Exh.P.N. On 7‑5‑1977, he led to the recovery of blood‑stained Chhuri P.5 which was secured after making into a sealed parcel vide memo. Exh.P.F. The sketch of Chhuri is Exh.P.F./1. Clothes of the appellant, blood‑stained earth lifted from the spot and blood‑stained Chhuri were sent to the office of Chemical Examiner, Lahore, for detection of blood, on 7‑6‑1977. The Chemical Examiner's report Exh.P.R. and Serologist's report Exh.P.S. confirmed that the articles were stained with human blood. After completing the necessary investigation, the appellant and his co‑accused were sent up for trial to Court.

5. At the trial, the prosecution examined 15 witnesses in support of its case. It mainly relied on the ocular evidence furnished by Mst. Shamshad Begum P.W.9, sister of the deceased, Riaz Ahmad P.W.11, son of Mst. Shamshad Begum, and Manzoor P.W.12, a friend of the deceased. The ocular account was corroborated by the recovery of blood‑stained clothes and Chhuri belonging to the appellant which were deposed to by Muhammad Ali P.W.7, Manzoor P.W.12 and Ghulam Muhammad A.S.I .P.W.13. The motive was proved by Mst. Shamshad Begum P.W.9. The medical evidence proved that Nasim, deceased, met unnatural death as a result of stab wound suffered by him in the chest.

6. The appellant when examined under section 342, Cr.P.C. had stated that Nasim, deceased, was his friend with whom he married his sister Mst. Imtiaz Qamar. His sister became sick of behaviour of the deceased because he and his family used to compel her to lead an immoral life. On the day of occurrence, he went to the house of the deceased who was not present there and his sister Mst. Imtiaz Qamar beseeched him weeping bitterly that she should be taken from there. She, therefore, accompanied him. When they reached on the Pacca road, the deceased came there with a knife in his hands and threatened them. Feeling danger to their lives, the appellant and his sister started running but the deceased overtook Mst. Imtiaz Qamar near the shop of one Abdul Hamid and started dragging her back to his house in spite of her refusal. The deceased tried to stab her but the appellant intervened. They grappled with each other. In that struggle, the deceased fell down and his own knife struck in his chest per chance. He, however, declined to produce any defence evidence.

7. The learned trial Judge rejected the version of the appellant being neither plausible nor probable. The learned Judge also while analysing and assessing the evidence on record expressed his doubts about certain parts of the prosecution story, as enumerated below:‑- (a) The element of use of cars by the accused party during the occurrence was highly doubtful and appeared to have been introduced to give strength to the prosecution case. (b) Dragging of Mst. Imtiaz Qamar by the accused party was not proved as she did not appear to have suffered any injury due to the alleged dragging. Neither she was medically examined nor was she produced as a witness in the Court. (c) Manzoor Ahmad P.W. 12 was a close friend of the complainant family who was resident of a place about 11 miles away from the place of occurrence and was, therefore, a chance witness and his presence at the relevant time was not satisfactorily explained. (d) The place of occurrence was situated in a populated area of the city and there was Abadi around it where from independent witnesses were available yet nobody from the locality came forward to support the version of the prosecution. (e) The prosecution witnesses did not speak the whole truth. The entire family of Ijaz accused has been involved in this case and the possibility of false implication of six accused persons existed there and ultimately they are acquitted.

8. Having made the aforesaid important observations the learned trial Judge undertook his duty of "separating the grain from the chaff" and in this exercise he held that the ocular account corroborated by the medical evidence, motive and the recovery of Chhuri from Muhammad Ijaz, appellant, has proved beyond doubt that the appellant having armed himself with Chhuri committed trespass into the house of deceased for taking away his sister and when the deceased resisted, he inflicted the injury to him and caused his death. On the basis of this finding, he convicted the appellant under section 302/452, P.P. C. but refrained from imposing death penalty because the murder of Nasim in his opinion was committed in vindication of the family honour of the appellant.

9. I find that the learned trial Court has rightly and for good reasons rejected the plea of the appellant that the deceased received the fatal injury accidentally with his own knife while grappling with him. His conclusion that it was the appellant who caused injury to the deceased is also not open to exception, but the question is under what circumstances did he cause injury to the deceased and in doing so what offence did he commit?

10. It has been held that neither the cars were employed for abduction of Mst. Imtiaz Qamar nor was she dragged out of her husband's house per force. In view of these findings, it is not understood as to how the learned Judge held the appellant guilty under section 452, P.P.C., The fact that the occurrence did not take place inside the house or at the door of the deceased or even in its close proximity, proved it beyond doubt that Mst. Imtiaz Qamar was accompanying the appellant, her brother, of her own free will and both of them had covered distance of over 60 yards when the deceased came in the way and tried to snatch Mst. Imtiaz Qamar from the appellant for taking her back to his house. It appears that she did not agree to it, otherwise when the appellant and the deceased were grappling with each other she would have run into her husband's house but she did not do so think, in these circumstances, the deceased had no right to forcibly take Mst. Imtiaz Qamar to his house against her wishes and the appellant in order to get his sister released from the clutches of the deceased. was quite within his right to use necessary force for the purpose in view of description, "sixthly" to section 100, P.P.C. which reads as follows:

"Section 100.‑‑ The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:‑ First to fifthly,‑‑ ............................................ Sixthly,‑‑An assault with the intentions of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release." But I find that the force used by the appellant against the deceased was not proportionate in the circumstances of the case. The deceased Nasim was empty‑handed and the appellant by causing a deadly blow with Chhuri in the chest of the deceased had certainly exceeded his right of private defence.

11. In view of these circumstances, I am of the view that the facts disclosed an offence under section 304, Part‑II, P.P.C. and not under section 302, P.P. C. For the foregoing reasons, the conviction and sentence of the appellant under section 452, P.P.C. is set aside and the conviction under section 302, P.P.C. is altered to one under section 304, Part II, P.P.C. Now, there remains to decide that what should be the sentence. The records show that the appellant was lodged in Jail since 30‑4‑1977 as an under‑trial prisoner, and his trial concluded on 13‑1‑1980. By giving him benefit of section 382‑B, Cr.P.C., if the period spent by him in jail as under trial, is counted towards his sentence, then the total period of imprisonment he has served by now would be a little above five years. I, therefore, sentence the appellant to imprisonment for the period already undergone which is quite sufficient to meet the requirements of this case. It is, therefore, directed that the appellant be released forthwith if he is not wanted in any other case. The sentence of fine is also set aside. The amount of fine already deposited would be remitted to the appellant. H.A. Appeal partly accepted