P L D 1964 (W (PLP)

(8) An incised wound, 2" x ", with bone cut, " below the left part of injury No. 7. (9) An incised wound, 3 " x ", bone cut obliquely on the occipital region, across the mid line. (10) An incised wound, curved, 2 " x ", bone cut on the right parietal region, 3" from the right ear. (11) A contused wound, " x ", on the right back, 1 " from the mid line opposite the inferior angle of the scapula. This was outlet of injury No.

1. The condition of the patient was serious, his life being in danger. Injuries Nos. 3, 4, 5 and 6 were simple and 7 to 10 grievous. Injuries Nos. 1, 2 and 11 were caused by firearm. All the other injuries were caused by sharp‑edged weapons. The duration of the injuries was within 12 hours. Sultan died in the hospital at about 8‑15 p. m. and Dr. Abdul Ghafoor P. W. performed the post‑mortem examination on his body at 9‑15 a.m. on the 30th of August 1961 and found the same injuries as narrated above. He found fracture of the skull due to injuries Nos. 7 to

10. The pleura was ruptured on the right side. The right lung was ruptured at the anterior and posterior surface. There was a lot of blood in the right chest. The stomach was perforated at two places due to injury No.

2. The deceased died of severe shock and haemorrhage from the right lung due to injury No.

1. Injury No. 2 had caused rupture of the stomach and peritonitis. Injury No. 7 had caused fracture of skull and intra‑cranial haemorrhage. Injuries Nos. 1, 2 and 7 were sufficient, in the ordinary course of nature to cause death individually and collectively. A bullet was recovered and was sent to the police. The time between injuries and death was within 12 hours and that between death and post‑mortem examination about 13 hours.

6. The doctor examined Nazira appellant (19 years) on the 30th of August 1961 at about 8 p.m. and found a contusion mark, " x ", on the back of the right scapula, simple in nature, and caused by blunt weapon within 36 hours.

7. The doctor also examined Gulla accused on the same day at about 8 p.m. and found the following injuries on his person :‑ (1) A contused wound, " x " x scalp deep, 3" from the left ear on the left parietal region. (2) A contused wound 2` x ", in the middle, on the frontal region. (3) An abrasion, " x " on‑the left hip. He also complained of pain of left shoulder. All the injuries were simple and caused by blunt weapon within 36 hours.

8. At the trial Nazira appellant made the following statement :‑ "On the day of occurrence, at dopehrwela. I and my brother Gulla were going towards our land, which is situated, on the south of the katcha road. My co‑accused Gulla was going ahead of me at a distance of 15/20 karams. Sultan deceased was grazing his buffaloes on the roadside. On meeting Gulla, Sultan deceased gave two soti blows to him. When I reached the spot, Sultan also inflicted a soil blow on me. At that stage, my co‑accused Gulla, who had a pistol with him, fired two or three shots. Sultan was hit and he fell down and then I inflicted injuries on him with a hatchet which I was carrying with me." Gulla accused made the same statement, and also admitted that he produced the revolver Exh. P. 3 before the police. Nazira, however, denied that he used the hatchet Exh. P. 2 or produced it before the police. No evidence was produced in defence.

8. The prosecution produced Nur Din (P.W. 13) and Karam Ali (P. W. 12) as eye‑witnesses of the occurrence. Zaman (P. W. 18) and Dosa (P. W. 15) deposed to oral dying declaration made by the deceased, naming the three accused as his assailants. The trial Judge disbelieved the evidence of the eye‑witnesses. He was of the view that Nur Din and Karam Ali P. Ws. did not probably see the occurrence, but that if they actually saw it, they had distorted‑the facts. He considered it unsafe to rely on the evidence of Dosa as he was a chance witness. Having ignored their evidence, he held, on the statement of Nazira appellant, that he was proved to have committed an offence under section 302, P. P. C., as he had no right of private defence of person, because it was admitted that on being hit by the appellant, Sultan deceased had fallen down seriously injured. It was most cruel for him to have given so many hatchet blows to the deceased in such a reckless manner. The medical evidence had shown that one of the hatchet blows was sufficient to cause the death of the deceased in the ordinary course of nature. He found, however, that Gulla had acted within the right of self‑defence, and that Mammu had been falsely implicated.

9. In this appeal by Nazira, it has been argued that the appellant acted within his right of self‑defence because the apprehension, which existed previously was still there, although the deceased had fallen to the ground. It is urged that, in any case, it is a case of exceeding the right of self‑defence. It is also pleaded on his behalf that it is a case of grave and sudden provocation and the appellant's conviction under section 302, P. P. C. cannot be maintained.

10. In support of the contention that the appellant acted in the right of self‑defence, his learned counsel relied on Muhammad Ishaq and another v. The State (P L D 1964 Pesh. 143), Imam Bakhsh v. The State (P L D 1961 B J 22) and Fazal Hussain v. Emperor (A I R 1933 Lah. 665). In the first case it was held that the circumstances appearing in support of the plea of self‑defence put forward on behalf of the appellants tended to show that it was a one‑sided attack by the deceased persons on the appellants and their brother. In the circumstances, though the right of, private defence in no case extends to inflicting of more harm than is necessary to inflict for the purpose of defence, it could not be ignored that in the heat of the moment and while defending him self against an attack, it was not possible for the appellant, in that situation, to have decided on the spur of the moment whether he should fire one or more shots in order to defend himself effectively. The appellant Muhammad was, therefore, held not to have exceeded the right of self‑defence when he fired the second shot. The facts of the present case show that this principle would apply to the case of Gulla accused and not of Nazira appellant. In the second case, there was a sudden fight between Nathu deceased, who was a cousin of the appellant Imam Bakhsh, and a quarrel arose between them over the straying of a buffalo into the field of the appellant, who was intending to take it to the cattle pound when the deceased hit him on the head from behind with a wooden dandali which he succeeded in snatching from him and hit him once with it on his head. In consequence, Nathu fell and died soon after. It was held that it could not be laid down as a general proposition that once the deceased was disarmed, the apprehension of danger to the appellant ceased to exist, for a person faced with the 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 apprehension of danger from the aggressor, especially when the aggressor had already indulged in grappling with the accused for mastery over the weapon of offence. Consequently, it was held that the right of self‑defence continued with the appellant when he deliver ed the blow on the head of the deceased with the same dandali as was used by the deceased. It was unfortunate that the blow delivered by the appellant had a far more serious consequence than the one delivered by the deceased to the appellant, but for that reason alone it could not be held that the appellant had exceeded the right of private defence. The facts of this case are clearly distinguishable from the facts of the present case. In the third case, according to the confession of the accused, which was the sole basis for conviction, the accused was way‑laid and attacked by two persons, who were armed with hatchets and he having snatched the hatchet from one of them hit one or both of them, in order to save his life. In the circumstances, it was held that as the attack gave him reasonable apprehension of death or grievous hurt, the case was covered by section 100, and he could not be held guilty of any offence, nor could it be said that the accused exceeded his right by inflicting more harm than was necessary on being attacked by hatchets, for his life was in danger every moment, and he could not be expected, in such circumstances, to modulate his defence step by step or be able to gauge the precise force or number of blows which would have been just sufficient to save his life. This case is clearly distinguishable on facts.

11. For the second proposition that the appellant had, in any case, exceeded the right of self‑defence, the learned counsel for the appellant relied on Saddu and others v. Emperor (A I R 1939 Lah. 393) and Harbans Singh v. The Crown (47 Cr. L J 358). In the first case, the complainant party, which was armed with weapons, went to remonstrate with the party of the accused at the letters haveli at a considerable distance from the residence of the former. After exchange of a few abuses, the accused, apprehending that if they did not defend themselves effectively they were likely to receive severe injuries or even be killed, went into their haveli and came out armed with hatchets and dangs. Thereafter, a fight, which was definitely provoked by the complainant's party, ensued in the course of which one person from the complainants' party was killed. It was held that the accused had not exceeded their right of private defence in fetch ing weapons from their haveli and, in the circumstances, their right extended to the voluntarily causing of death. In the course of the fight, a person from one party named Nura had run away and was pursued by Saddu and Wasavi of the other party, who overtaking him at a distance of over 200 karams from the place where the main fight took place, had killed him there. It was held that in so pursuing Nura they had clearly exceeded the right of self‑defence and were guilty under section 304, Part I, P. P. C. In the second case, Karam Singh went to the appellant's house and picked up a quarrel with his father Sawaider Singh and acted high‑handedly in beating him. When the appellant arrived, he found his father and Karam Singh grappling with each other. He tried to extricate his father from Karam Singh's clutches, and when the latter whipped out his karpan and wanted to attack the appellant, the latter had the right to defend himself. He succeeded in disarming him, but his conduct showed that he was carried away by the heat of the moment and though he had succeeded in disarming his opponent by taking away his weapon he went on showering blows after blows on him. The number and nature of injuries inflicted by him upon Karam Singh indicated that he acted in a spirit of revenge and not in the bona fide exercise of the right of self‑defence. Two of the incised injuries on Karam Singh's chest were very serious and each one of them was sufficient to disable him. The contention on behalf of the learned counsel for the appellant that he could hardly be expected to weigh the result of his action and that he probably thought that his life was in danger and he was not safe until he had killed his opponent was repelled as without force, because one of the most important conditions of the right of self‑defence as laid down in section 99, Penal Code, was that the right in no case extends to the inflicting of more harm than is necessary to inflict for the purpose of defence. It was held that whatever might be said regarding the other injuries to the deceased, there was no justification whatever for the appellant to inflict both the chest injuries, and that he had exceeded the right of self‑defence. He was convicted under section 304, Part I, P. P. C.

12. When we come to examine the facts of the instant case, we find that the deceased had only a stick and was opposed by two men, Gulla accused and Nazira appellant. On receiving a stick blow, Gulla accused promptly brought out a revolver and fired five shots at him (and five empties were found in it), of which two injured him fatally. According to the appellant's version also, Gulla had fired two or three shots and Sultan was hit and fell down, and he then injured him with his hatchet. Gulla alone had met the challenge effectively and rendered him ineffective. The appellant and his co‑accused were not only superior in numbers, but the deceased had been fatally injured, and his stick must have fallen from his hand. The accused had, of course, a right of self‑defence so long as apprehension of hurt or grievous hurt existed at the hands of the deceased, but such apprehension ceased to exist and came to an end when the deceased fell to the ground mortally wounded. The right of private defence lasts only so long as the apprehension exists. In Emperor v. Ashraf‑ud‑Din and another (A I R 1941 Lah. 45), it was held that assuming that Shah Mir deceased, may in the course of an alter cation, have threatened Ashraf‑ud‑Din accused with a kulhari, the circumstances did not justify a plea of self‑defence. Though Ashraf‑ud‑Din might have been justified in wresting the kulhari from Shah Mirbr even in striking him to prevent an attack on his person by Shah Mir, but the evidence in the case was that the accused first wrested the kulhari from the hands of Shah Mir and that then Khair‑ud‑Din seized the deceased by the arm, while Ashraf‑ud‑Din repeatedly stabbed him, inflicting as many as ten serious incised injuries, including a deep penetrat ing wound into the abdomen. This showed that even giving every possible consideration to the plea of the accused, this was not an act committed in the exercise of the right of self‑defence, but an act of revenge. This appears to be the case in the present case also, because no less than seven incised injuries with a hatchet were given to the deceased as he lay helpless on the ground, and one of the injuries in itself was sufficient to cause death in the ordinary course of nature. The injuries were obviously caused by way of revenge and not out of an apprehension of hurt or necessity of self‑defence in good faith.

13. Section 99, P. P. C., provides that the right of self- defence arises only in cases where there is an apprehension of hurt or grievous hurt, but the right of private defence in no case extends to the inflicting of more harm than is necessary to inflict for the purpose of defence. Where the right of private defence is being exercised and in the exercise of that right more harm is caused than is necessary, the person exceeds the right of self -defence. In such a case, Exception 2 to section 300, P. P. C., is available if there is no intention to cause more harm than is necessary for purposes of defence. Where the right of self- defence does not exist or has ceased to exist for it exists as long as the apprehension lasts, as provided in section 102, P. P. C. there can be no right of self‑defence or a situation leading to the exceeding of the right arises.

14. The question whether an accused has or continues to have a right of private defence and when or whether it has come to end is in every case essentially a question of fact, to be decided according to the circumstances of each case. If cannot even be said that the accused can in no case claim the right of private defence of person the moment the deceased is disarmed, for the apprehension of danger to the accused may not have come to an end by the fact that the weapon had been taken away from the deceased. It may be difficult to judge accurately the moment when the right of private defence comes to an end, but so long as the apprehension of hurt or grievous hurt continues to exist, the right of self‑defence continues, and an accused person cannot be penalised for not weighing in golden scales the amount of force, which should suffice to allay the apprehension of danger from the aggressor, but when the apprehension has disappeared and ceased to exist the right of private defence comes to an end, as laid down in section 102, P. P. C., and hurt caused thereafter, not for purposes of defence but for revenge, cannot be said to have been committed in exercise of the right of private defence. We would hold, on the facts of the present case, that the right of self‑defence had completely ceased to exist and the appellant in giving hatchet injuries to the deceased, as the latter lay helpless on the ground, had not acted in the exercise of the right of self- defence for he was actuated by malice, i.e. out of revenge, and he intended to cause the death of the deceased. He cannot, there fore, take advantage of Exception 2 to section 300, P. P. C. His is not merely an act in excess of the right of self‑defence, but he fully responsible for having caused the injuries which he did. He caused no less than seven injuries with a hatchet, one of which was sufficient in the ordinary course of nature to cause death. His case, therefore, falls under section 302, P. P. C.

15. There is no substance in the contention that giving two lathi blows to Gulla accused and one to the appellant amounted to grave and sudden provocation. In this connection we were referred to Queen v. Fuzza Meeah Fuzza alias Mahomed (4 W R 89) and Fateh Khan v. State (P L D 1957 Pesh. 122). In the former case, the deceased was the aggressive party, and he had assumed an attitude which could justify the prisoner in using some violence towards him. The Sessions Judge had found that the prisoner was not guilty of murder because of the provocation, but the learned Judges of the High Court came to the conclusion that though the occasion was one in which the prisoner was justified in meeting force by force, and might, therefore, have used some violence, still he was not justified in inflicting a blow which the prisoner must have known was likely to cause death, and, in doing so, he had exceeded the right of private defence. This case does not really support the contention raised, but the second case is certainly helpful to the appellant. In this case, the deceased was found to be the first to have given a knife blow to the appellant and then he walked back. Immediately thereafter, the appellant pulled out his pistol and fired three shots at the deceased, two of them hitting him fatally, Having held that the appellant was not entitled to a complete right of self‑defence and his act was covered by Exceptions 1 and 2 to section 300, P. P. C., it was observed that the knife blow and the resultant injury on the chest must have given such a grave and sudden provocation to the appellant as to deprive him of the power of self‑control, and, further, that if the appellant believed in good faith, as seemed to their Lordships that he did so believe, that he could not have successfully defended his person in any other manner except by firing at the deceased, then, in all probability, he acted in exercise of the right of private defence ; but he had exceeded the power given to him by the law, because in the first place he fired at his victim when he had already beaten his retreat and had gone a few paces, and, secondly, he used more force than was necessary in the particular circumstances of the case by firing three shots at him, two of which were effective and individually fatal. The case relates to Peshawar Division, and in the peculiar circum stances of the case, the act of giving a knife blow was held to amount to grave and sudden provocation, but we find it difficult-- we say so with great respect‑to hold that the act of causing a blow generally and in ordinary circumstances amounts to grave provocation, though it may lead to provocation. We were referred to Illustration (f) under Exception 1 to section 300, P. P. C., but there also the act of striking is a provocation, though it may excite B to violent rage.

16. For the reasons given above, we maintain the con viction of the appellant under section 302, P. P. C. and dismiss his appeal.

17. Having heard the learned counsel for the petitioner in the private petition for revision, we are not inclined to interfere with the finding of the learned Sessions Judge or to issue notice for enhancement and dismiss it also. K. B. A. Appeal dismissed.