1976 P Cr (PLP)

5. Dr. Sabir Ali P. W, Surgeon Medico‑legal Punjab, on 27‑4‑1972, at 2‑30 p. m. conducted the post‑mortem examination on the dead body of Nawab Din and found a stab wound, 2" x 1/4" x going deep just on the inner canthus of left eye. In the opinion of the doctor the injury was inflicted with a sharp‑edged, pointed weapon and was sufficient to cause death in the ordinary course of nature. The cause of death was injury to brain, haemorrhage and shock.

6. On the same date the same doctor at 9 a. m. medically examined Munawar Hussain appellant and found one contused wound, 2" x 1/6" x scalp deep, one semi‑circular incised wound, 1/2" x 1/8" x skin deep and the third injury was swelling on the outer right eyebrow. Injury No. 2 was caused by sharp‑edged weapon and the rest with a blunt weapon: All the injuries were simple.

7. Dr. Rifat Latif of Fatima Jinnah Medical College, on 26‑4‑1972 medically examined Sharaf Din P. W. and found two injuries. Injury No. 2 was grievous caused by a sharp‑edged weapon. The doctor also examined Ghulam Rasul P. W. the same day and found one injury. The doctor also examined Muhammad Din P. W. and found one simple injury caused by a sharp‑edged weapon.

8. Munawar Hussain appellant denied his guilt and in answer to a question, `have you anything else to say', he made the following statement:‑ "I am innocent, Nawab Din deceased and all the P. Ws. are closely related inter se. Nawab Din deceased's face was blackened by the residents of locality over teasing the girls and I was taken responsible for that act by the deceased and the P. Ws. Nawab Din deceased and Sharaf Din P. W. summoned me in the office of the Peoples Party to take the revenge where Nawab Din deceased abused me and I also abused him in reply on which he flared up and attacked me with m knife and thereby caused me injury with it. I ran to the house to save my life, but the deceased and Sharaf Din, Ghulam Rasul P. Ws, chased me and took me over in the lane where again Nawab Din deceased tried to give me a knife blow and the P. Ws. actually gave me lathis blows. I snatched knife from the deceased whereupon he again grappled to snatch it from me and under these circumstances, I caused injuries to the P. Ws. and the deceased to save my life, In fact there was no party meeting or any other meeting, it was the family, meeting to cause me harm for the insult of Nawab Din deceased." The appellant did not produce any defence.

9. I have heard the learned counsel for the appellant and also the State counsel and have gone through the evidence on record. The learned Additional Sessions Judge has disbelieved the motive as observed in para. 12 of his judgment. He has also disbelieved the recovery witnesses as also the eye‑witnesses. In para. 22 of the judgment the trial Judge has observed that in the circumstances the appellant caused the injuries to the P. Ws. and the deceased to save his life and the version of the appellant is supported by Abdul Hamid and Sharaf Din P. Ws. and it also finds support from the testimony of Muhammad Din P. W.

10. The main contention of the learned counsel for the appellant was that the conviction of the appellant has been based solely on his statement and that statement must be taken in its entirety and it was not open to the Court to rely on the incriminating portion of the statement of the appellant and to exclude from consideration the exculpatory part thereof. I see force in this contention. All the eye‑witnesses produced by the complainant party are closely related Inter se and also related to the deceased. According to the testimony of the eye‑witnesses the fatal blow to the deceased has been attributed to Muhammad Sharif (acquitted accused). Sharaf Din P. W. has admitted in his cross‑examination that it was correct that Munawar Hussain appellant ‑received the injury with knife and that he had seen the knife in the hand of Nawab Din deceased and further that knife of Nawab Din deceased was produced by his brother Naseer Ahmad complainant before the police. Abdul Hamid P. W. an eye‑witness, as admitted by the other eye‑witnesses, has stated in his cross‑examination that Nawab Din deceased wipped out a knife and caused injury with it to the appellant, who ran for his life but the deceased, Sharaf Din, Ghulam Rasul and Muhammad Din P. Ws. ran after him. Sharaf Din and Ghulam Rasul P. Ws. had sticks and they caught hold of the appellant; there ensued a scuffle between the appellant and Nawab Din .deceased. The appellant snatched the knife from Nawab Din and gave injuries to the deceased and the P. Ws. The appellant was given beating with sticks. This witness has excluded the presence of Muhammad Sharif (acquitted accused) at the spot.

11. There is ample authority for the view that where there is no other evidence to show affirmatively that a portion of the exculpatory statement of the‑accused is false, the Court must accept or reject his statement as a whole and cannot accept only the inculpatory element while rejecting the exculpatory element as inherently incredible. I am, therefore, of the opinion that in the absence of any positive evidence to show that the statement of the accused is false, he cannot be convicted of any offence merely. on the basis of his version being highly improbable and incredible.

12. The learned Additional Sessions Judge has conceded the right of private defence of the accused but has convicted him on the ground that he should have known before inflicting the injury to the deceased that the deceased had already been incapacitated from further aggression. In the peculiar circumstances of the case, however, I am not prepared to accept this .argument. In my opinion while he was giving blow to the deceased in the exercise of his right of self‑defence he could not have known at that time that the only blow had resulted in fatal injury to the deceased. But in the heat ‑and excitement of the moment and in that frame of mind to expect from the accused that he should have judged the nature of each and every blow given in self‑defence and then should have modulated the right of private defence accordingly, is to expect the impossible from a human being placed in such an awkward position.

13. Having carefully considered the statement of the appellant and all the circumstances of the case, I am of the view that the appellant had not exceeded his right of private defence. I, therefore, accept this appeal, set aside the conviction and sentences of the appellant and acquit him of the charges. The sentence of fine is also remitted. The appellant shall be released forthwith if not required in any other case. Appeal allowed.