1976 P Cr (PLP)

‑‑ S. 302‑Murder‑Self‑defence, right of‑Accused ravishers of deceased's daughter given chase and attacked by deceased and his companions and given injuries‑Accused retaliating by giving Chhuri blows to deceased resulting fn his death‑Deceased not justified in attacking and injuring accused instead of having recourse to law‑Accused, held, acted in exercise of his right of self‑defence, in circumstances--Conviction and sentence set aside.‑[Private defence, right of]. Petitioners through Jail. S. M. Abdul Wahab for the State. Date of hearing : 26th January 1976. Muhammad Nawaz and Ismail prisoners have appealed against their convictions and sentences passed by the learned Additional Sessions Judge, Mohammad Nawaz was convicted under section 302, P. P. C. and sentenced to life imprisonment and a fine of Rs. 500 or to undergo. six months' R. I. more in default of payment of fine. He was also convicted under section 376, P. P. C. and sentenced to seven years' R. I. and a fine of Rs. 500 or in default of payment to undergo six months' R. I. more. Ismail appellant was convicted under section 376, P. P. C. only and sentenced to seven years R. I. and a fine of Rs. 500 or, to undergo six months' R. I. in default of payment of fine.

2. The facts of the prosecution case stated briefly are that Mst. Muniran was working in the maize crop when Ismail appellant came there and committed rape upon her. The cries made by her attracted Muhammad Nawaz appellant, brother of Ismail appellant. Ismail seeing him Bed away and Muhammad Nawaz then committed rape upon her. Her cries raised at the time when she was being raped by Muhammad Nawaz attracted Siraj and Muhammad Din P. Ws. on whose arrival Muhammad Nawaz appellant ran away. Mst. Muniran went home and narrated the incident to her father, Chanan Din deceased and her brother Asghar complainant. Asghar complainant, Chanan Din deceased and Arif went to the house of Jamal Din, father of the appellants and com plained against the conduct of the appellants. Muhammad Nawaz appellant was present there who seeing them ran to his house. He was pursued by Asghar complainant and his companions. when they reached in the street, Muhammad Nawaz appellant came there armed with a chhuri and gave chhuri blow to Chanan Din on the neck. Tire incident was seen by Qasim Ali also who was sitting at his shop nearby. All of them including Chanan Din deceased thereafter caught hold of Muhammad Nawaz appellant and Arif snatched the chhuri from him. In the acute Muhammad Nawaz received injuries. However, Chanan Din could not sustain the injury and fell down and died. The occurrence was reported by Asghar complainant at the police station.

3. The police on reaching the place of occurrence arrested Muhammad Nawaz appellant, and removed from his person his blood‑stained clothes. The blood‑stained chhuri was seized from Arif P. W. vide memo. Exh. Y G. Blood‑stained earth was recovered from the place of occurrence and the room of Muhammad Nawaz appellant. Injury statement of Muhammad Nawaz appellant Exh. P. Q. was prepared and he was got medically examined. Shalwar Exh. P. 4, stained with blood and shirt Exh. P. 5 were removed from the person of Mst. Muniran whereas dry stock of maize from the crumpled crop was seized from the place where the lady is alleged to have been raped. Ismail appellant was arrested on the same day and his underwear and loin cloth Exh. P. 12 and P. 13 were removed from his person vide memo. Exh. P. BB. Mst. Muniran Bibi was also got medically examined for age and for the commission of rape. She was found to be having injuries on her person. Three separate challans were submitted but joint trial was held by the learned Additional Sessions Judge under section 239, Cr. P. C. on the ground that although the offences were distinct, they form part of the same transaction. There was no eye witness about the rape alleged to have been committed by Ismail appellant upon Mst. Muniran except the victim herself. She supported the prosecution case in that behalf. So far as rape alleged to have been committed upon her by Muhammad Nawaz appellant is concerned, Siraj and Muhammad Din P. Ws. were examined before the committing Magistrate and statement of Muhammad Din was transferred to the Sessions file as he had since died. Muhammad Din P. W. 15 had supported the prosecution case in that respect. Siraj Din P. W. stated only this much before the committing Magistrate that he saw Mst. Muniran lying in maize crop and Muhammad Nawaz running away from the spot. But at the trial he stated that he had seen Muhammad Nawaz appellant actually lying upon Mst. Muniran. So far Mst. Muniran is concerned, she supported the prosecution case against Muhammad Nawaz also. The statement of Mst. Muniran to the effect that both the appellants one after the other committed rape upon her cannot be easily discarded. She stated in her examination‑in‑chief that she received injuries when she resisted the commission of rape. It was not suggested to her in cross -examination that she did not resist the rape or that she did not receive any injuries. It was also not suggested to her that she received .the injuries afterwards through friendly hand. Even this question was not put to her that she was a consenting party, to the rape committed upon her. Since she had injuries upon her and both the appellants also received injuries, it is clear that Mst. Muniran was not a consenting party. So far as the question whether Mst. Muniran was subjected to intercourse is concerned, there appears to be no doubt because the medical evidence is that hymen was ruptured newly. The only question to be seen is whether she was a consenting party which in the circumstances of the case cannot be said that she was. The fact that the maize crop was found crumpled at the place where rape was committed upon her further supports the prosecution case that sexual intercourse was committed upon Mst. Muniran by the appellants one after the other without her consent. If there had been no injuries on the person of Mo. Muniran as well as the two appellants, it could be said that she was consenting party. It, therefore, appears that in reality she was subjected to rape by the two appellants and they were rightly convicted under section 376, P. P. C. In the circumstances of the case the punishment of seven years' R.I. and a fine of Rs. 500 inflicted upon the appellants under section 376, P. P. C. does not appear to be excessive.

4. However, so far as the question of conviction of Muhammad Nawaz under section 302, P. P. C. is concerned the prosecution has failed to prove the case beyond any shadow of doubt. If the deceased and his companions bad no mind to attack Muhammad Nawaz, they would not have chased him when he seeing them had run to his own house. This is not believable that on the one hand Muhammad Nawaz had committed rape upon Mst. Muniran and when her parents had gone there to complain against his misconduct, he became prepared to attack them. On the other hand since the deceased and his companions were highly provoked against the misconduct of the appellants, it is believable that they chased Muhammad Nawaz appellant to attack him. So it appears that some of the injuries sustained by Muhammad Nawaz appellant were caused to him by the deceased and his companions to take revenge. Muhammad Nawaz, therefore, hit the deceased in self‑defence. He knew that he had committed rape upon Mst. Muniran and her parents had either come to kill him or to cause grievous hurt to him, so he gave injury to the deceased in self‑defence. The deceased and his companions were not justified to chase Muhammad Nawaz appellant and to attack him. If they had reached the place where the rape was committed during the commission of the rape and had attacked Muhammad Nawaz, it could be said that 6 they did so in order to save Mst. Muniran from being raped but sine that transaction had come to an end, the deceased and his companions were not justified in attacking Muhammad Nawaz and should have recourse to law by getting a case registered against him and Ismail appellant under section 376, P. P. C.

5. As a result of the observations made above I partly accept the appeal and maintain the convictions under section 376, P. P. C. and the sentences awarded there-under to the appellants but acquit Muhammad Nawaz appellant from the charge of murder. Order accordingly.