SHAFI-UR-AEHMAN, J.-Gullan, aged 60 years, and his two sons Ibrahim, aged 28 years, and Dhani Bux, aged 22 years, have appealed against their conviction and sentence under section 302/34, P.
P. C. Maintained by the High Court by its judgment dated 18-4-1974.
2. Leave was granted by this Court on 5-9-1974 to examine the following two aspects of the case in particular.
(1) The proposition that the petitioners bad initially the right of their self-defence and of property would at once, take the case against them out of the purview of section 302 and bring it within exception 2, and,
(2) This would also preclude the application of section 34 to the case.
(3) The case against the appellants started on a report lodged by Gullan appellant on 21-1-1971 at 2-15 a.m. At Police Station Naushahro Feroze, District Nawab Shah. The appellant Gullan reported that be alongwith his sons was asleep in his house in Mohalla Saleempura, Naushahro Feroze when at midnight he woke up on the barking of the dogs and came out armed with a hatchet while his sons armed with Hockey sticks and lathis. They found three thieves present in the compound having already jumped over the hedge. Taking them to be thieves they attacked them, pursued and injured one of them. Two others managed to escape. The injured who died of the injuries at the spot was identified as Hafiz Memon, a resident of the same locality. The S. H. O. Faiz Muhammad (P.
W. 7), apart from registering a case on the report of Gullan appellant under section 452, P. P. C. On his own registered a case on the same facts against the three appellants and another son of Gullan under section 302, P. P. C. With regard to the death of Hafiz Memon.
4. The next version of the same occurrence finds mention in a judicial confession formally recorded by Abdul Hamid (P. W. 1) Mukhtar-i-Kar and Magistrate 1st Class. In this confession Gullan appellant stated that "two thieves escaped to north jumping over the hedge, and the remaining third thief started moving towards us. When he came in front of us, I gave him hatchet blows and my sons gave him lathi hockey blows. He fell down. We identified him as Hafiz Memon later on."
5. The third version of the same occurrence finds mention in the state--ment of the appellant Gullan at the trial which statement was adopted by his sons as well. He denied that be suspected the deceased Hafiz Memon of maintaining illicit relations with his wife, who according to him, was too old to maintain any such relationship and stated that "I had reported to the S. H. O. That thieves had entered my house and on our awaking up we pursued them, whereupon one of the thieves grappled with me, he fell me down and his companions thinking the third thieves to be me caused him several injuries and ran away. The S. H. O. Came at the wardat in the morning and he being under the report of his own and forced me to sign it, on the next day at morning time". As regards the judicial confession he stated that it was neither voluntary nor true because my female members of the house were taken out from my house and were insulted and maltreated. My sons Dhani Bux and Ibrahim were also beaten by the police and due to coercion and harassment I made the judicial confession which is neither voluntary nor true."
6. The prosecution case against the appellants rested, apart from these versions of the appellants the evidence of motive provided by Tahir (P. W. 4), an uncle of the deceased, who stated that a month prior to the occurrence Gullan had complained to him about the deceased carrying on illicit intimacy with his wife and had also threatened to kill him. He also stated that on the night of occurrence the deceased had slept at his house but he did not know when he left it during the night. The other witness Manoo (P. W. 5), a neighbour, stated about the place where the dead body was lying and the statement made by Gullan appellant with regard to the occurrence. According to him Gullan had informed him that "three thieves had come to his house out of whom two had run away and the present one who was lying dead on the ground was done to death by his own companion, while he had grappled with this thief". He supported the appellants' plea that "the, police had beaten the sons of the accused Gullan and insulted the ladies whereafter Gullan had agreed to confess the crime". Another piece of evidence produced by the prosecution was the recovery of the blood-stained clothes shirt and shalwar, of Gullan at the time when he came to police station to lodge his report. Recovery was effected in the presence of Dhani Bux (P. W. 6) who was present at the police station in connection with a different report which be had lodged.
7. The investigating officer Faiz Muhammad.(P. W. 7) reached the spot at 6 a.m. And found the dead body-lying "on the heap of rubbish at the open ground to the east in front of the house of accused Gullan" "supine with head west-wards and feet east-wards, feet were wrapped with an Ajrak, and the rest of the body was nude." A hatchet and broken sticks were also recovered from there. The dead body had as many as seventeen incised wounds and seven others caused by blunt weapons. It was lying about 12 paces or 29 feet away from the house of the deceased.
8. The trial Court believed the motive, the judicial-confession, the report lodged by Gullan appellant about the occurrence and considering it along with corroborative pieces of evidence like the recovery of the blood-stained clothes from the person of the appellant Gullan, the injuries on the persons of his two sons and the recovery and identification of the weapons used by each of the appellants and particularly noting the nature and number of injuries caused to the deceased, held it to be a case of murder without mitigation and convicted all the three appellants under section 302 P. P. C. The third son of Gullan who was also tried was given benefit of doubt and acquitted as his clothes, were not stained with human-blood and he himself had no injury. On the question of sentence the trial Court held it to be a case where the family honour was involved and for that reason sentenced each of, the appellants to life imprisonment.
9. The High. Court held the first information report lodged by the appellant Gullan to be inculpatory and hence inadmissible in evidence. Similarly, it was found not safe to place reliance on the statement of Tahir (P. W. 4) and the evidence with regard to motive was also not implicitly believed.
Nevertheless, the judicial confession was taken to be true and voluntary and sufficient corroboration was found from other factors like the presence of indistinct foot-prints inside the hedge of the house, the damage to the hedge, the appearance of the appellant Gullan at the police station, his blood-stained clothes, the injuries on the body of the deceased with varied weapons, the injuries of the two other appellants. As regards the plea of self-defence, a number of decided cases were examined by the High Court for coming to the conclusion that by causing 15 injuries with a hatchet to an unarmed and prostrate man the right of self-defence even if existing initially had been forfeited finally and the offence fell under section 302, P. P. C. And the sons shared the common intention with Gullan in the matter.
10. The learned counsel for the appellants has contended that the pro--secution evidence on the record against the appellants is scanty and supported the plea of the appellant as taken up at the trial, the earlier version being either inadmissible (first information report lodged by Gullan), or procured under duress and coercion as indicated by Manoo (P. W. 5). In view of such evidence the appellants could not at all be convicted for the offence of murder involving at the same time the common intention of the two soils. If plea of the appellants was the only material on which their conviction was to be reached then it-should have been accepted in its entirety in which case the appellants were entitled to the right of private defence of their person and property and there was no exceeding that right. As an alternative it has been contended that even on the findings recorded by the trial Court and the High Court the appellants had the right of private defence of person and property and at the worst one of them could be said to have exceeded it, without of course the sons sharing the common intention. In that case the offence of Gullan would fall under section 304, P. P. C. And not under section 302, P. P. C.
11. The first information report lodged by Gullan having been excluded from consideration the version given in the judicial confession has been accepted as truthful and voluntary. The confession was recorded soon after the arrest of Gullan appellant. It was recorded the same day early in the morning between 9 and 11 a.m. The Magistrate, as appears from the proceedings and his statement, had satisfied himself that the statement was voluntary and free from taint. He had made sure that Gullan had no marks of violence on his person nor was he under threat or duress of any nature. Having been recorded so soon after the occurrence and taken by all the authorities and Courts to be free from any taint, and as voluntary and true, and exhibiting no detracting features we have to accept it as such statement. The concessional part of the statement of Manoo P. W. On this and other matters has been explained by the neighbourly relations that he could have with the appellants.
12. The right of private defence of property and person is hedged by certain restrictions or limitations. The three restrictions relevant for the purposes of this case are those contained in (i) section 99, P. P. C. (ii) sections 100 and 103; P. P. C. And (iii) sections 102 and 105, .P. P. C. The right of private defence is no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. The right of private defence of the body extends to the voluntary causing of death only where the assault is such as may reasonably cause the apprehension inter aria that death will otherwise be the consequences of such assault. In the case of property, robbery, house- breaking by night and house-trespass causing reasonable threat of death or of grievous injury could justify the causing of death. The other set of limitation concerns the continued subsistence of such a right self-defence of person or property or both at all the relevant stages of an occurrence.
On the proved facts of this case it cannot be held that either house-breaking or house-trespass was committed. The closest that the deceased or his associates reached after jumping over the hedge was the compound enclosed by a hedge. This amounted to criminal trespass and did entitle the appellants under section 104, P. P. C. To cause any harm other than death. From the fact that Gullan who had frontally met the deceased received not a single injury and that no weapon was recovered which could attributable to the deceased, it is clear that the deceased was not effectively armed. In such a situation the appellant Gullan could not have in good fait and within the limits of the right enjoyed by him inflicted as many as 1 injuries with the hatchet on vital parts of the body of the deceased.
13. The dead body was found 29 feet away from the house of the appellants, was lying supine and had the vital blows on the neck and blade of the shoulder, which would have in any case immobilized the deceased. Six of the injuries by hatchet were clustered at one spot indicating that he was lying prostrate somewhat immobilized when he was givers repeated blows, the position in which his dead body was found in the morning. He could not have possibly moved or run away after receiving these injuries. Where the right of self-defence ceased to exist, for it exists as long as the apprehension lasts under section 102, P. P. C. Or criminal trespass continues under sec--tion 105, P. P. C. There can be no right of self-defence nor a situation leading to the exceeding of that right arises. The law does not permit injury, which is out of all proportion to the danger. The injuries inflicted by appellant Gullan unmistakably show that he was animated by a feeling of extreme vindictiveness and cruelty. His act would, in the circumstances, amount to an offence under section 302, P. P. C. And would not be covered day except--tion 2 to section 300, P. P. C. For one of the essential requirements of that section is that he should be exercising the right of private defence of person o property and acting in good faith. It cannot be said on the facts of the case that his action conformed to this requirement of the exception.
14. As regards the two other appellants, it is established that they were armed with weapons, which were handy. They used it not for inflicting any fatal injury to the deceased. It is also not clear from the prosecution case nor could it be inferred positively that the injuries given by them were all in pursuit when criminal trespass had ceased. The injuries caused by them fall within the limitations prescribed; harm other than causing of death. Besides, there could be no question of their sharing the common intention with Gullan for each one had been attracted to the scene in circumstances indicat--ing that there was no premeditation or concert as such.
15. In the circumstances and for the reasons given, the appeal of Dhani Bux and Ibrahim is accepted. They are held not guilty of the offence and are acquitted of the charges, their action being fully covered by the right of private defence of person and property. They shall be released forthwith unless their detention is required in some other case. As regards the appellant Gullan, his conviction under section 302 P. P. C. Is maintained and the appeal with regard to it is dismissed. As regards the sentence, we find that the occurrence had taken place on the 21st of January 1971 when transportation for life was the punishment prescribed by law. His appeal is accepted only to the extent that sentence of life imprisonment awarded to him is substituted by the sentence of transportation for life.