1968 P Cr (PLP)

(1) An abrasion on right cheek ' x . (2) A contusion mark on left shoulder, 2" x 2". (3) An incised wound on lower part of medial side oblique in direction 1"x 1 x muscle deep. Injuries were simple and fresh. Injury No. 3 was caused by a sharp‑edged weapon and injury No. 2 by a hard and blunt weapon.

5. The prosecution evidence was supported by the four eye witnesses, namely, Nur Muhammad (P. W. 2), Imam Bakhsh (P. W. 3), Jan Muhammad Panwala (P. W. 4) and Lal Muhammad, B. D. Member (P. W, 5). All of them have supported the prosecution case regarding the occurrence,

6. The eye‑witness testimony is suported by the medical testimony and the first information report as also by the recoveries of the bloodstained knife from the appellant as also his bloodstained clothes. 7, The accused in his statement at the trial admitted his fight with the deceased as also the recovery from his person of the bloodstained clothes worn by him, which, he stated had been stained with the blood of the deceased He also admitted the use of the knife (Art. P. 1) as the weapon of offence in the occurrences With regard to the blood stained knife tae stated that it did not belong to him. In answer to the question as to whether he had anything else to say the accused stated that on the evening of the occurrence at 8.30 p.m. the deceased Mahewal had abused his father and there had been a quarrel as a result of which the deceased had given him a lathi blows. He claims to have run away from the spot and to have been followed by the de eased who later on attacked him and gave him some stick blows He then opened his knife to give knife blows to the appellant. The appellant tried to ward of the blows and received one knife blow on his leg. According to the appellant, the injuries on his person had been caused by the deceased while the injury on the chest of the deceased had been received by him from his own knife during the grappling and rolling: The appellant did not produce any evidence in defence.

8. The learned Additional Sessions Judge found the appellant guilty of the offence under section 304(1); P. P. C. and sentenced him to undergo rigorous imprisonment for seven years as mentioned above.

9. In appeal sent through jail the appellant mainly empha sized that he had been the victim of aggression, that he had been acting in self‑defence and prayed that the sentence should be reduced to the period already undergone if he is not to get the benefit of an acquittal.

10. During the arguments, the learned counsel for the appellant tried to make out that the fatal injury received by the deceased had not been caused by the appellant voluntarily but had been received during the grappling and the rolling on the ground during the struggle between the deceased and the appellant. The following points arise for consideration:‑ (i) Whether the fatal injury (injury No. 1) had been inflicted by the appellant voluntarily or whether it was the result of the grappling between the deceased and the appellant ? (ii) Whether the appellant had a right of private defence (iii) Whether the right of private defence bad been exceeded"

11. According to the testimony of Dr. Major A. Hassan Police Surgeon (P. W. 12) injury No. 1 received by the deceased on the left side of the front of his chest was 3' deep. On internal examination under this injury, cartilages of sixth and seventh ribs near the sternum, lower part of the lungs diaphrague, lower and front part of the left ventrical close to the base, were found cut. The injury was directed upward and inwards and was three inches deep. In the opinion of the doctor this injury was sufficient to cause death in the ordinary course of nature. The learned Additional Sessions Judge had repelled the defence suggestion that this injury could have been caused as a result of rollings and grapplings on the ground. The learned counsel for the appellant had nothing to say against this finding of the learned trial court. The depth of the injury, the damage caused by it and its direction, namely, upwards and inwards, clearly indicate that the injury had been caused not accidentally and during the grapplings on the ground but had boon caused voluntarily and, probably, in the standing position. I have no reason to differ with the finding of the trial Court of' this point.

12. Learned counsel for the appellant then argued that the appellant had a right of private defence and that the same had not been exceeded in inflicting injury No. I which proved to be fatal. It is admitted by the prosecution itself that the deceased had a better hand even during the earlier occurrence in the afternoon. It is also admitted by the prosecution that the initiative and the aggression had all along been with Mahewal deceased who had, on seeing the appellant coming behind him on bicycle at about 10‑00 p.m., got down from his bicycle, threw it away on the road and had attacked the appellant with a cane which he already had with him and had given him two or three blows. Medical examination of the appellant support; this part of the prosecution story. It is, therefore, clear that the right of private defence had accrued to the appellant when he had been attacked by the deceased. Learned counsel for the appellant has cited before me the authorities reported as Ramzan v. The State (P L D 1961 Kar. 374), Ghazi Khan arid another The, State (K L D, 1965 Quetta 33), Piyaro v The State (PLD1963Kar.771) and Imam Bakhsh v. The Start, (P L D1961BJ2). It is clear from the Quetta .Authority mentioned above that the right of private defence of the accused can be considered by the Court on the material before it, even though it was not specifically pleaded and that the accused will be entitled to acquittal even if the evidence fails to satisfy the Court affirmatively of the existence of circumstances establishing the right, if upon a consideration of the evidence as a whole, a reasonable doubt is created in the mind of the court. It was laid down in Imam. Bakhsh v. The :State that :- "The deceased was quite capable of trying to snatch back the weapon for causing a further blow to the appellant, or other wise to inflict bodily harm to the appellant. It cannot be laid down as a general proposition that once the deceased was disarmed the apprehension of danger to the appellant ceased to exist. We are in agreement with the well‑known and oft‑quoted observation that a person faced with apprehension of bodily harm from the deceased cannot be expected to weigh in golden scales the amount of force which would suffice to allay the ap prehension of danger from the aggressor, especially when the aggressor had already indulged in grappling with the accused for mastery over weapon of offence." In this authority there was only one weapon of' offence; namely dandali with which the deceased had given a blow on the head of the appellant and the latter had, after snatching the dandali, given a similar blow on the head of the deceased which had proved fatal. In Ramzan v. The State the deceased was the first to inflict the lathi blow can the back of the accused. The accused had in turn delivered a fatal blow with a hatchet. It was held that the right of private defence had not been exceeded as "the appellant would reasonably an apprehension that grievous hurt would be caused to him". In Piyaro v The State it was laid down by their Lordship that where it was doubtful whether the right of' private defence had been exceeded the benefit of the doubt should go to the accused. The result, therefore, is that the right of private defence can be considered even though not specifically claimed. If the court is in doubt as to whether this right had been exceeded, the benefit is to go to the accused and that the continuation of this right of private defence is not the actual existence of the danger but the reasonable apprehension in the mind of the accused with regard to such a danger. Grievous hurt, according to its definition in section 320 of' the P. P. C. includes any hurt which endangers life.

13. Considering the facts of this case in the light of the above rules governing the right of private defence, it appear that the right of private defence had accrued to the appellant when he had been attacked by the deceased; rod the same had not been exceeded when the fatal injury wa3 caused by the appellant to the deceased. The facts established in this case are that the deceased was a healthy person of about 30/35 years while the age of the appellant is given as eighteen years. According to the prosecution suggestion the deceased had also the upper hand in the earlier incident that evening. At the time of the occurrence the deceased was armed with a cane, had got down from his bicycle, had launched an attack on the appellant and had given him two or three cane blows. The appellant took out a knife from the fold of his trousers and the deceased started snatching the same from the appellant. The two grappled and fell down on the ground during the course of which the appellant also received a muscle' deep knife injury on one of his legs. The two again stood up and were still struggling over the possession of the knife The deceased had at no stage tried to give up the fight or his efforts to snatch the knife from the appellant. Prior to the infliction of the fatal blow the balance of the injuries on the persons of the deceased and the appellant does not indicate that the appellant was having the upper hand. In these circumstances, there could be no assurance that the deceased would not have used the knife against the appellant if he had succeeded in snatching it away from him. It cannot be said for certain that the appellant had in giving the fatal blow to the deceased, exceeded his right of private defence. 3 For these reasons, I accept this appeal, set aside the conviction of the accused and the sentence awarded to him and direct that he shall be set at liberty at once if not required in any other case. Appeal accepted.