1. M. R. KHAN, J.-This appeal, by special leave, is against the judgment and order of the High Court of West Pakistan, Lahore, in Criminal Appeal No. 184 of 1968 and Murder Reference No. 83 of 1968, by which the convictions of the respondents 1 to s and their sentences under various sections including the sentence of death on the first respondent Nazir Hussain were set aside and all of them were acquitted.
2. The parties in this case are inter-related. All the prosecution witnesses except Labha (P. W. 7) are related to the parties. They live in a Katri called Krishna Foundry in Faiz Bagh, Lahore. On the 20th July 1966, Mst. Khurshid Begum (P. W. 11), a sister of deceased Mehraj Din was getting the drain outside her house cleaned. With regard to the deposit of the refuse from the drain, there ensued an altercation between Mst. Khurshid Begum and Mst. Phaman, the wife of the fourth respondent Noor Muhammad. On that occasion, the respon--dents Haji Mushtaq Ahmad and Noor Muhammad gave Mst. Khurshid Begum a beating. Over that incident, Mst. Khurshid Begum made a report (Exh.
3. P. D.) at the police station the same day, at about 2.20 p.m. Mst. Barkat Bibi, the wife of the second respondent Haji Mushtaq also made a report at the police station about the same incidental at 1.15 p.m. The same day, vide Exh. P. W. 16/2. The police did not take any action on either of these reports.
4. Abdur Rashid (P. W. 5), another brother of Mst. Khurshid Begum was told about this incident by his sister after he had returned home. Abdur Rashid then went to the house of Haji Mushtaq and complained about this matter and came back after exchange of abuses. Two days thereafter, that is, on the 22nd July 1966, at about 9 a.m., Abdur Rashid (P. W. 5), Muhammad Siddiq (P. W. 6) and Mehraj Din, deceased were going to their work. As they reached near the house of Noor Muhammad, the respondents 1 to 5, namely, Nazir Hussain, Haji Mushtaq Ahmad, Muhammad Sharif, Noor Muhammad and Muhammad Siddiq suddenly appeared on the road from the house of Noor Muhammad. Of them, Nazir Hussain and Muhammad Sharif had knives and Noor Muhammad carried a dang. Haji Mushtaq and Muhammad Siddiq were, however, empty-handed. Haji Mushtaq having raised a lalkara clasped Mehraj Din, deceased in his arms whereupon Nazir Hussain gave a knife blow in the deceased's abdomen. The respondent Siddiq caught hold of Siddiq (P. W. 6) and Muhammad Sharif gave a knife blow in the belly of P. W. Siddiq. When Abdur Rashid (P. W. 5) went forward, he was given a dang blow by Noor Muhammad. As P. Ws. Abdur Rashid and Siddiq raised an alarm, Labha (P.W.7) and Muhammad Hussain (P. W. 8) were attracted to the spot. These persons also claimed to have witnessed the occurrence. Also Mst. Khurshid Begum (P. W. 11), a sister of the deceased and Mst. Khurshid Bibi alias Moran, a daughter of the respondent Haji Mushtaq appeared at the scene. These two women tried to snatch the knives from the respondents Nazir Hussain and Sharif and, in this attempt, they themselves sustained knife injuries. Having committed the offence, the respondents left the place of occurrence. Thereafter P. W. Abdur Rashid, with the assistance of P. Ws. Labha and Muhammad Hussain, placed the injured persons in a car and took them to the Mayo Hospital. On medical examination by Dr. Riaz Ahmad, one stab wound was found in the abdomen of Mehraj Din who was then still alive. He, however, died the next day at 5 p.m. On post--mortem examination of the dead body the same stab wound was found in the abdomen.
5. Death of Mehraj Din, in the opinion of the doctor, was due to that injury. On the date of occurrence, Dr. Riaz Ahmad examined also Muhammad Siddiq (P. W. 6) and found one stab wound just above the left iliac crest. This injury was declared to be grievous. Dr. Muhammad Khalid Chaudhry who held the post-mortem examination on the dead body of Mehraj Din had, on the previous day, namely, on the date of occurrence, examined the respondents Nazir Hussain, Noor Muhammad and Haji Mushtaq. On the same day, he also examined Mst. Khurshid Bibi alias Moran, a daughter of Haji Mushtaq. The same doctor also examined P. W. 5 Abdur Rashid the same day. The injuries found on these persons were as follows:- P. W. 5 Adur Rashid:- A bruise on the right side of the chest.
6. Nazir Hussain (respon- (1) A contused wound 1/2" x 1/8" x dent No. 1)1" deep extending upwards under the skin on the back of the head.
(2) A bruise 2" x 1" back of left elbow joint.
(3) Swelling on the outer side of the left buttock.
7. Noor Muhammad (res. (1) A swelling and a contused pondent No. 4)wound --' x 1/8 " x superficial layer of scalp deep upper surface of head.
(2) There was a swelling over the sides and front of neck and the ; parts were tender. The voice was hoarse.
(3) Abrasion below the left knee joint cap.
8. Haji Mushtaq Ahmad (1) An incised wound 1" x 1/8"
9. (respondent No. 2)bone deep on the inner side of the left thumb and deep to its nails.
(2) An incised wound 1/2 x 1/8 muscle deep on the outer side and in front of left thumb terminal phanlans.
(3) An elongated bruise 4" x 3/8" about 1--to the left of lower part of thoracic spine.
10. Mst. Khurshid Bibi(1) An incised wound 1" x 1/8" x alias Moran muscle deep, over left half of fore-- head.
(2) An incised wound 1" x 1/8" x skin deep 4" above the left ear.
(3) The right half of upper lip was swollen and there was a contused vertical wound 1/2" x 1/8" x muscle deep on its inner surface.
11. Injury No. 3 was found to be grievous.
12. On the 25th July 1966, Mst. Khurshid Begum (P. W. 11), the sister of the deceased was examined by Lady Doctor S. Akhtar Begum. On examination one incised wound 1--x --" x --" was found on the lateral surface of the left fore-arm, in addition, three contusions and one scratch mark were found on her person.
13. The police arrested Haji Mushtaq, Noor Muhammad and Nazir Hussain at 3 p.m., on the date of occurrence and secured the arrest of Muhammad Sharif and Muhammad Siddiq the next day. Of them, Nazir Hussain led to the recovery of a knife (Exh. P. 2) from his house. It was stained with blood. Muhammad Sharif led to the recovery of another knife (Exh. P. 3) from his house which was also blood-stained. These were sent to the chemical examiner and the serologist for examination.
14. As a result of the examination, it was found that the blood on the knife Exh. P. 2 disintegrated, but the knife Exh. P. 3 was found to be stained with human blood.
15. The respondents 1, 2 and 4, in their defence, admitted the occurrence, but pleaded the right of private defence of their person. When examined in the trial Court Haji Mushtaq made the following statement:- "I was in the house on the morning of the day of occurrence. Nazir accused and Noor accused my sons-in-law were with me. It was about 8 a.m. Somebody knocked at my door. I went out to see who he was. On coming out I saw Mehraj deceased with a knife and Rashid and Siddiq P. Ws. With sotas. Suddenly Mehraj Din inflicted a blow with his knife upon me. I raised my hand to ward off the blow and my thumb was injured. I raised alarm. My daughter Khurshid Bibi, Nazir and Noor accused came out. Noor had a soti. Khurshid Bibi, my daughter, intervened between myself and Mehraj deceased and received injuries from Mehraj deceased with his knife. He had already given me another injury which "I had received on my hand. In the meanwhile Rashid P. W. Gave a blow with soti to Noor accused and Noor accused returned the blow of Rashid P. W. Nazir held the wrist of the deceased and snatched the knife from him. Mehraj deceased took the lathi of Rashid P. W. And gave a blow with the same to Nazir accused who in self-defence gave a knife blow to Mehraj deceased. Siddiq P. W. Also hit my daughter with a huj of his lathi.
16. Siddiq P. W. Was given a knife blow by Nazir accused when the former gave the latter a blow, Rashid P. W. Caught hold of Noor accused by his throat and tried to throttle him."
17. This statement was adopted by the respondents Nazir Hussain and Noor Muhammad as their statements under section 342 of the Code of Criminal Procedure at the trial. The remaining two respondents Muhammad Sharif and Muhammad Siddiq pleaded alibi. Muhammad Sharif denied the recovery of the knife Exh. P. 3 at his instance. On the allegations stated above, the five respondents were placed on trial for offences under sections 148, 302/149 and 307/149 of the Pakistan Penal Code. The trial Court convicted them under sections 302, 307 and 323, read with sections 149 of the Penal Code for having caused the death of Meraj Din and making murderous assault on Muhammad Siddiq (P. W. 6) and also causing simple hurt to Abdur Rashid (P. W. 5). In addition, Haji Mushtaq and Muhammad Siddiq were convicted under section 147 and the other three respondents under section 148 of the Penal Code. Nazir Hussain was sentenced to death under section 302/149, ' whereas the remaining respondents were sentenced under that section to transportation for life. All the respondents were sentenced to 7 years' rigorous imprisonment under section 307/149 and to 6 months' rigorous imprisonment under section 323/149 of the Penal Code.
18. Haji Mushtaq and Muhammad Siddiq were sentenced to one year's rigorous imprisonment under section 147, whereas the other respondents were sentenced to two years rigorous imprisonment under sec--tion 148 of the Code. The sentences of imprisonment were to run concurrently.
19. The convictions and the sentences of the respondents rested on the evidence of the two injured witnesses, namely, Abdur Rashid (P. W. 5) and Muhammad Siddiq (P. W. 6) and also on the evidence of Labha (P. W. 7), Muhammad Hussain (P. W. 8) and Mst. Khurshid Begum (P. W. 11) who had also sustained injuries. The recovery of the blood-stained knife Exh. P. 3 and the medical evidence as regards the injuries on the persons of the deceased and the witnesses furnished corroboration to the evidence of the eye-witnesses.
20. On appeal and reference, the learned Judges of the High Court, for the reasons given by them, did not put any reliance on the evidence of Labha (P. W. 7) and Muhammad Hussain "P. W. 8). Of the respondents, Nazir Hussain, Nur Muhammad and Haji Mushtaq sustained injuries and these were described in the earlier part of this judgment. Abdur Rashid (P. W. 5) who had lodged the F. I. R.
21. Made no statement therein with regard to the injuries sustained by these three respondents Their injuries were completely suppressed not only in the F. I. R. But also in the evidence of Abdur Rashid given at the trial. Again, none of the alleged eye-witnesses Nos. 6, 7 and 8 said anything about the injuries sustained by the respondents Nazir Hussain, Noor Muhammad and Haji Mushtaq. This fact very much weighed with the learned Judges in assessing the evidence in this case. They were of the opinion that there was a fight between the parties in which both the parties sustained injuries but the complainant-party were the aggressors Having regard to the injury found on the neck of Noor Muhammad, the learned Judges were of the opinion that the said injury lent support to the statement made by Haji Mushtaq at the trial. Tile learned Judges were, accordingly, of the opinion that the oral evidence of the prosecution witnesses was not worthy of credence and, as such, they gave the benefit of doubt to the respondents and acquitted them.
22. The medical evidence leaves no room for doubt that persons on both sides sustained injuries. They were examined on the very date of the occurrence and injuries were found on them. The stab injury sustained by Mehraj Din, however, became fatal and resulted in his death. It is, thus, obvious that a fight between the parties took place in front of the house of the respondent Noor Muhammad where the incident had taken place. Three of the respondents admitted the fight, but pleaded the right of private defence of their body. In this stage of things, the question of giving the benefit of doubt to the respondents did not really arises; what, however, did arise for consideration was whether the respondents had the right of private defence of their person as claimed in the defence. The learned Judges of the High Court, while giving the benefit of doubt to the respondents, did not directly consider the plea of self-defence. We have, accordingly, examined this plea taken in defence.
23. It is an admitted fact that two days before the incident, that is, on the 20th July 1966, there was some trouble between the parties for which one report was made to the police by P. W. 11 Mst.
24. Khurshid , Begum and another report was made by Mst. Barkat Bibi, wife of the respondent Haji Mushtaq. P. W. Abdur Rashid admitted that he had gone to Haji Mushtaq to complain about that incident but there was then an exchange of abuses between him and Haji Mushtaq. There was, therefore, a reason for Abdur Rashid's being annoyed with Haji Mushtaq. The annoyance of the complainant-party was all the more there given to the deceased's sister A1st. Khurshid Begura by some of the respondents two days before the incident. Abdur Rashid stated that he had felt offended on hearing the complaint made by his sister Mst. Khurshid Begum. P. W. 6 Muhammad Siddiq stated that they were angry because their sister Mst Khurshid Begum had been beaten by the respondents and also because P. W. 5 Absur Rashid had been insulted when he complained to Haji Mushtaq about the beating given to Mst. Khurshid Begum. The above evidence goes to show that the complainant-party was nursing a serious grudge against the respondents. Of the respondents, Haji Mushtaq and Muhammad Siddiq admittedly came to the place of occurrence empty-handed. Had the respondents pre--planned a sudden attack on the complainant-party, then, Haji Mushtaq and Muhammad Siddiq would not have appeared at the scene without any arms whatever. Accordingly, the opinion of the learned Judges that the complainant-party were the aggressors does not appear to he unfounded. The doctor found a swelling over the sides and front of the neck of the respondent Noor Muhammad. The parts around the neck were found tender and his voice was hoarse. This injury, as stated by the learned Judges, indeed, lent support to the statement of Haji Mushtaq that Abdur Rashid (F'. W. 5) caught hold of Noor Muhammad by the throat and tried to throttle him Apart from the unexplained injuries on the persons of Noor Muhammad and Haji Mushtaq, there were three injuries on the person of Nazir Hussain which also remained unexplained. Although, the injuries on the persons of Nazir Hussain and Noor Muhammad were suppressed by the prosecution, this came to light because they had voluntarily appeared for examination before the same doctor who had held the post-mortem examination of the dead body of Mehraj Din. However, the injury No. 1 which was a contused wound --" x1/8" x1" deep extending upwards under the skin on the back of the head sustained by Nazir Hussain is on a vital part of the body, although it did not cause any grievous hurt. Such injury on the vital part of the body must have caused a reason--able apprehension in the mind of Nazir Hussain that his life was in danger or his body in risk of grievous hurt. Accordingly, he had the right of private defence of his person which, under section 100 of the Penal Code, extended to the causing of death of Mehraj Din.
25. Some- of the respondents having received either dang blows or knife injuries in the hands of the complainant) party, the injuries caused to P. W. 5 Abdur Rashid and P. W. 6 Muhammad Siddiq, were equally justifiable in self-defence Our interference with the High Court's order of acquittal is not] therefore, called for. The appeal is, accordingly, dismissed.