P (PLP)

ABDUL MAJID, C. J.‑Seven persons namely, Badar Din, Sher Khan. Said Muhammad Khan, Ghulam Nabi, Mota Khan, Sooba and Yaqub were placed on their trial before Sardar Muhammad Ayub Khan, Sessions Judge, Mirpur, for the offence of murder. It was alleged that these accused on the 27th December, 1948, while return ing from the Front‑line sought shelter at the house of one Ali Muhammad in the absence of the latter. While the female inmates of the house were cooking meals Ali Muhammad returned to the house. The accused, Badar Din, insisted on Ali Muham mad to kill a goat to feast the guests. A demand was also made on Ali Muhammad to provide the guests with beddings. Ali Muhammad pleaded his inability to serve the accused with the result that hot words were exchanged between Ali Muhammad and the accused party. Ali Muhammad shouted to his fellow villagers that some strangers were beating and looting him. Hear ing Ali Muhammad's out‑cry the villagers ran poste‑haste to his house and caught hold of three of the accused and seized their rifles. Badar Din accused, however, took to his heals. In the way Muhammad Khan deceased confronted Badar Din accused. Badar Din accused struck Muhammad Khan with .a sword on the head with great force. On receiving injury Muhammad Khan fell down and died on the spot. A report was made to the police within an hour of the incident in which Badar Din was named as an assailant of the deceased. The police arrived on the spot and arrested all the accused except Badar Din who was taken into custody next morning. The defence of the accused was that they had put-up on the night of the occurrence at the house of one Nikka, a neighbour of Ali Muhammad. Ali Muhammad who had some grudge against Suddbans of Pallandhari to which tribe some of the accused belonged started abusing the party and shouted to the villagers who at his instance seized their rifles and beat them. The learned Sessions judge found that the story told by the prosecution was only partially true, and what happened was that the accused party had an altercation with Ali Muhammad at the house of Nikka and when the villagers rushed to the said house on the cry raised by Ali Muhammad the accused other than Badar Din did nothing and the villagers seized the rifles' possessed by the accused party and thereafter Badar Din accused ran away and caused fatal injury to Muhammad Khan deceased with a sword when the latter confronted him in the way. The is learned Sessions judge accordingly convicted Badar Din accused under section 302 A. P. C. and sentenced him to transportation for life and a fine of Rs.5 and the remaining accused were acquitted. Against his conviction and sentence Badar Din has preferred an appeal to the Court. So far as the main facts of the case are concerned the learned counsel for the appellant has not been able to successfully challenge the findings of the learned Sessions Judge. He has; however, argued that on the facts found by the learned Sessions judge it cannot be said that the accused party were aggressors in the matter and consequently the injury suffered by the deceased if it be believed that it was caused by Badar Din appellant cannot be taken to have been caused in the exercise of right of private defence. The learned counsel for the appellant has further argued that there is no strong evidence on the record to prove that it was the appellant and none else who had caused the fatal injury to the deceased. Both the contentions of the learned counsel for the appellant are devoid of force. Even if it be taken that the accused party were not aggressors in the matter then also the appellant had no right of private defence against the deceased unless there is evidence that the latter in any manner interfered' with the action of the appellant giving rise to an apprehension on the part of the appellant that if he did not use the sword possessed by him then he won‑id suffer hurt of and kind. Neither the prosecution nor the defence evidence establishes that the deceased attacked the appellant while he was proceeding to the house of Ali Muhammad. The appellant, therefore, had no juris diction whatsoever in striking the deceased with his sword. The name of the appellant was mentioned in the F. I. R. which was made within an hour of the incident as the assailant of the deceased. The fact dispels all doubt about the identity of the deceased's assailant. The night of the occurrence was no doubt a dark one but a lantern was burning in the court‑yard of Nikka's house and it was quite easy for the persons there to identify the assailant of the deceased, the scene of the offence being in the vicinity of 'Nikka's house; I am, therefore, satisfied that it was the appellant who struck the deceased with a sword on the head arid caused his death. I am further satisfied that the evidence on the record does not establish that the appellant caused the fatal injury to the deceased in exercise of the right of private defence. The last question that falls for determination is the nature of the offence committed by the appellant. It is not denied that at the time of occurrence the appellant was running to avoid his arrest by the villagers. It is, therefore, quite possible that the appellant struck the deceased with a sword under misapprehension that the latter was coming to catch hold of him. In the circum stances I think it would be safe to convict the appellant under section 304 (1) A. P: C. instead of under section 302 A. P. C. I. accordingly set aside the conviction of the appellant under section 302 A. P. C. and convicting him under section 304 (1) A. P. C. substitute the sentence of seven years' rigorous imprisonment for the life imprisonment. The appeal is accepted to this extent. K. M. A. Appeal partly accepted.