MUHAMMAD MUNIR FARUQUI, J.-Dalmir appellant was tried along with six others by the learned Additional Sessions Judge, Lyallpur at Jhang, for causing the murder of Mst. Niamat Bibi and simple injuries to Amir and Allah Ditta P. Ws. And their brother Manzur in prosecution of the common object of an unlawful assembly formed by them on the 22nd of November 1968 at peshiwela in village Munday Syedan, Police Station Athara Hazari, District Jhang, who acquitting all the co-accused of the appellant had convicted him under section 302 of the Pakistan Penal Code only and sentencing him to death has submitted the record of the case to this Court under the provisions of section 374 of the Criminal Procedure Code for the confirmation of this sentence while the appellant has challenged this order by an appeal. These to matters will be disposed of by this judgment.
2. The prosecution case, as originally reported to the police by Amir (P. W. 10) at about 9 p. m. On the same evening, was that his son Muhammad, aged about 8 or 9 years, was belaboured by Zahur son of Allah Bakhsh (acquitted accused) on the 21st of November 1968, at noon the and to reprimand him for the same he gave a few slaps to said Zahur, who complained to his father about it. This annoyed Allah Bakhsh (acquitted accused) and to retaliate against this high-handedness he along with Dalmir appellant, Kamir, Amir, Muhammad Khan, Ahmad Khan and Ahmad Khan son of Amir (acquitted accused) came 'to his house armed with lathis on the next day at about peshiwela. They Found Allah Ditta P. W. Grazing his sheep in a nearby field so they attacked him and gave him some lathi blows and then raising a lalkara they entered his house and fell upon him (Amir P. W.) showering lathi blows on his person. His mother Mst. Niamat Bibi (deceased) tried to intervene, but Dalmir appellant is said to have planted a lathi blow on her head, who fell down on the ground. His brother Noor Ahmad also arrived in the mean--while and the alarm so raised attracted their neighbours Ahmad Khan son of Muhammad Khan (P. W. 12), Allah Ditta son of Muhammad Khan, Muhammad Khan son of Rakha and Gul Muhammad son of Khan, who separated the parties and carried the injured persons to the hospital, where Dr. Aftab Ahmad (P. W.
1) medically examined them on the same evening. He found four simple blunt weapon injuries on the person of Allah Ditta son of Sardar Khan P. W. Vide Exh. P. O. Five simple blunt weapon injuries on the person of Amir son of Sardar Khan vide Exh. P. R. To simple blunt weapon injuries on the persons of their brother Manzoor vide Exh. P. Q. And one lacerated wound, 3" x ----- x bone deep on the right side of the head 4" above the right ear of Mst. Niamat Bibi (deceased) vide Exh. P. S. She was unconscious at that the, her pulse was 45 and reparation was 15 per minute with continuous bleeding from the said wound.
This doctor then intimated the local police about the presence of these injured persons in the hospital. On this information Abdul Hakeem S. H. O. (P. W. 13) came to the hospital and contacting Amir P. W. Took him to the police station where he recorded his statement Exh. P. G. On the basis of which a case under sections 148-307/149 of the Pakistan Penal Code was registered against the appellant and his companions at 9 p.m. At Police Station Athara Hazari. As most of the material witnesses were in the hospital the Sub-Inspector took in hand the investiga--tion of the case then.
At about mid-night he came to know that Mst. Niamat Bibi bad succumbed to her injuries. He attended to her and after the necessary inquest report (Exh. P. J.) handed over the dead body to Fayyaz Husain Foot Constable (P. W. 2) for onward transmission to the mortuary, where Dr. Khadim Husain held the autopsy over it on 24th November 1968, at 8-30 a.m. Vide Exh. P. F. He found the above described solitary injury on the head. In his opinion her death was due to shock and haemorrhage caused by this injury, which was sufficient to cause death in the ordinary course of nature as right temporal bone and right parietal bone and right side of frontal bone were fractured into pieces underneath the injury.
3. The Sub-Inspector then proceeded to the spot and during inspection he took into possession blood-stained earth and sealed it into a parcel vide memo. Exh. P. A. Amit P. W. Produced before him dopatta (P. 1) which was taken into possession after sealing into a parcel vide Exh. P. B. Fayyaz Husain Foot Constable brought back from the mortuary clothes of the deceased (P. 2 to P. 4) which were also sealed into a parcel vide Exh. P. C. On 26th November 1968, Muhammad Khan, Allah Bakhsh and Ahmad son of Amir (acquitted accused) produced before the Sub-Inspector lathis (P.
8, P. 9 and P. 7) which were taken into possession vide Exhs. P. K., P. L. And P. M. Respectively. On the 28th of November 1968, on the search of the houses of Dalmir (appellant) and Kamir (acquitted accused) lathis (P. 5 and P. 6) were taken into possession vide Exhs. P. E. And P. D. Respectively, P. E/1 and P. D/1 being the rough sketches of places from where lathis were recovered.
Allah Bakhsh, Ahmad Khan son of Bari, Muhammad Khan and Amir son of Jind Wadda were arrested by him on the 26th of November 1968, while Ahmad Khan, Dalmir and Kamir were arrested on the 27th of November 1968. He got prepared site plans (Exhs. P. H. And P. H/1) from the Patwari and putting his notes in red ink on the same signed them in token of their correctness.
Dopatta (P. 1) and the earth secured from the spot were found to be stained with human blood vide reports of the Chemical Examiner Exh. P. N. And Serologist Exh. P. T.
4. On the completion of the investigation the appellant and six co-accused were challaned in Court and after the necessary inquiry they were committed to the Court of Session on charges under sections 148, 302/149 and 323/149 of the Pakistan Penal Code (on three counts) resulting in the conviction. Of the appellant alone as above.
5. At the trial Dalmir appellant and his companions denying the above allegations pleaded not guilty and set up a plea of private defence. The statement of Dalmir appellant in this respect is reproduced in verbatim for ready reference "Allah Ditta brother of Amir P. W. Complained to Amir that he had been slapped by myself, Kamir and Ahmad son of Bari. Amir, his brother Allah Ditta, their mother Mst. Niamat and Manzoor son of Koura Khan P. W. Then proceeded to the house of Mst. Nooran, my sister who has a house close to the house of Amir and others. All these four persons then caught hold of Mst. Nooran. They dragged her out of the house. She raised alarm. Myself, Kamir, Ahmad son of Bari hearing the alarm then rushed to that side. There we found that the aforesaid four persons were dragging my sister, Mst.
Nooran to their house. Mst. Niamat held Mst. Nooran by her pigtail while the others were holding Mst. Nooran by her legs and by her arms. When we came close to the aforesaid persons, Mst.
Nooran got herself released and made a attempt to run away. Amir P. W. Gave a lathi blow to Mst.
Nooran and fractured her arm. Mst. Nooran fell down at the spot. We asked the afore--said persons to refrain from picking up any further quarrel. Amir and Mst. Niamat then stated that we had given a beating to Allah Ditta and they would not thus spare retaliation and they would drag Mst. Nooran to their house, confine her in the kotha and then dispose her of. Mst. Niamat then started dragging Mst. Nooran while she had fallen to the ground: I again asked them to refrain but they did not desist. There was then a fight with the aforesaid persons. We had no lathi, Amir, Allah Ditta and Manzoor started beating us. It is in these circumstances that I received blows.
In the fight that took place myself, my brother Kamir and my sister's son. Ahmad son of Bari received injuries. At this stage Noor son of Muhammad, Muhammad son of Jalal and Muhammad son of Punnu came to the spot. They rescued us. In the course of rescuing us the aforesaid Noor son of Muhammad, Muhammad son of Jalal and Muhammad son of Punnu dealt blows to Amir and others. I cannot say whose lathi from amongst the aforesaid three persons, who had come to rescue landed on the head of Mst: Niamat. We were taken to the hospital. There we came to know that Mst. Niamat had expired."
5. The learned trial Judge did not accept this version of the appellant, but at the same the did not find it safe to rely on the prosecution evidence in respect of six of the co-accused of Dalmir appellant and giving them benefit of doubt acquitted them of the charges levelled against them and convicted Dalmir appellant alone under section 302, P. P. C. On the same evidence.
6. Learned counsel for the appellant has questioned the correctness of this order on the ground that the evidence rejected in respect of six accused could not be accepted against the seventh, on the basis of mere conjectures spun out of a stray sentence in the statement of one of the four eye- witnesses, all of whom had conceded a complete right of private defence for the appellant and his companions.
7. We have been taken through the record and find that this contention of the learned counsel is quite well founded. It appears that before the trial could commence the parties had patched up with each other, as the eye-witnesses had been at pains to neutralise their depositions by making favourable concessions to support the defence plea sponsored through their cross-examination.
The learned Public Prosecutor had not attempted to impeach their credit as he had not even requested the learned Judge for permission to cross-examine them after they had departed from their earlier statements, so the admissions made by the prosecution witnesses remained in tact.
The substance of the deposition made at the trial by Noor Khan (P. W. 9), Amir (P. W. 10), Allah Ditta (P. W. 11) and Ahmad Khan (P. W. 12) was that with a view to retaliate the beating given to Allah Ditta P. W., his brother Amir P. W., his mother, Mst. Niamat Bibi (deceased) and Manzur went to the nearby house of Allah Bakhsh (acquitted accused) and forcibly brought out his wife, Mst. Noor Bibi and dragged her to the Kharas when Dalmir appellant and his companions, attracted by her outcries, appeared on the scene and within their sight Amir P. W. Inflicted a lathi blow on her arm when she had struggled to release herself from the clutches of Mst. Niamat Bibi, who had held her from her pigtail proclaiming that she would be confined in a room to be disposed of later in a clandestine manner. The situation thus created by the complainant party certainly called for intervention by Dalmit appellant and his companions. In fact, they had a legal right to rescue their sister from the wrongful custody of the complainant party and even could use necessary force to achieve that end, and if the complainant party used violence in resisting them Dalmit appellant and his companions could meet it by force and in case any injury was caused to them their right extended to the causing of the death of any one of the other party.
8. The learned trial Judge in his otherwise well-reasoned judgment has not disputed this legal proposition but seems to have taken the view that at the the Dalmir appellant had given a lathi blow to Mst. Niamat Bibi deceased she was not dragging Mst. Noor Bibi from her pigtail, and in fact she was not physically fit enough to handle Mst. Noor Bibi in that manner, so there was no occasion for the exercise of right of private defence. For this purpose he has placed reliance on a stray sentence from the evidence of Allah Ditta (P. W. 11) that it was incorrect that Mst. Niamat Bibi continued dragging Mst. Noor Bibi after the lathi blow had been given to her by Amir P. W. A reference to the statement of Allah Ditta P. W. Would show that the learned Judge has fallen into an error in picking out this solitary sentence from the context of his entire deposition, which had clearly sub--stantiated a case of private defence for Dalmir appellant and his companions. The relevant portion is reproduced below :- "It is correct that my mother Niamat also accompanied Amir to the house of Allah Bakhsh accused.
It is correct that Amir held Mst. Nooran wife of Allah Bakhsh accused by her pigtail. Amir and Mst.
Niamat then dragged and brought Mst. Nooran near Kharas place. At that place myself and Manzoor P. W. Also joined hands with Amir and Mst. Niamat Bibi. It is correct that Mst. Niamat Bibi then stated that Mst. Nooran should be confined in a kotha and she would be ultimately dis-- posed of some where. It is correct that at this stage, Dalmir, Kamir and Ahmad son of Bari arrived at the Kharas place. It is correct that Mst. Nooran at that the in the attempt to get herself released got a lathi blow at the hands of Amir my brother. It is incorrect that after the lathi blow to Mst. Nooran, Mst. Niamat continued dragging Mst. Nooran. It is correct that hearing the out cries of Nooran, Kamir, Dalmir and Ahmad son of Bari had come to her rescue.
We received blows at the the when the aforesaid Dalmir, Kamir and Ahmad son of Bari had come to the rescue of Mst. Nooran, who was being dragged to our house. Mst. Niamat also received the blow at the Kharas place when the aforesaid three accused were rescuing Mst. Nooran."
We have underlined the solitary sentence picked up by the learned trial Judge from the testimony of the aforesaid witness, but when read along with the entire context it did not change the complex of the prosecution case at all. Taking this view of the matter, we hold that even if Dalmir appellant be held to be the author of the fatal blow received by Mst. Niamat Bibi he could not be held guilty of any offence under the admitted circumstances of the case. He would be fully protected by the cover provided to him by section 100, P. P. C. We, therefore, accept this appeal and setting aside the conviction and sentence of the appellant acquit him of the charge levelled against him. He is in jail.
His release warrants shall issue forthwith if he is not required in any other case. The reference is answered accordingly.