Mulazim Hussain, Manzoor and Falak Sher appellants were convicted by the learned Sessions --- Judge, Jhang, on 28 October, 1980, under section 304, Part I, P. P. C. And each of them was sentenced to undergo rigorous imprisonment for ten years and a fine of rupees two thousand each or in default in payment of fine to suffer further rigoruous imprisonment for two years. It was further ordered that out of fine, if recovered, rupees five thousand shall be paid to the heirs of the deceased by way of compensation. They were acquitted of the charge under section 307/34, P. P.
C.
2. The case was registered on the statement of Khadim Hussain (P. W.) which he made on 2nd December, 1979, at 5-i0 p. m. Before Ghulam Rasool A. S. I. Near Bus-stand, Haveli Bahadur Shah.
This statement was sent to the Police Station, Shorkot and the formal F. I. R. Was recorded the same day at 6-45 p.m. Originally, the case was registered under section 307/34, P. P. C. But on the death of Muhammad Nawaz which occurred the following night, the offence under section 302, P.P. C.
Was added. Khadim Hussain complainant and his brother Manzoor Hussain (P. W.), Muhammad Nawaz deceased and Sharif lived in village Budh Rajbana. Sharif was married to Mst. Manzooran sister of Falak Sher, appellant and had two children. In exchange of this marriage Nikah of the daughter of Muhammad Nawaz deceased was performed with Falak Sher appellant but Falak Sher married another lady. On .1st December, 1979, the three appellants came to Budh Rajbana and stayed in the house of Mst. Nasri. Munawar Ali Khan summoned the complainant party at his Dera for a talk with the appellants but the complainant party did not go there. On the following day, i. e.
2nd December, 1979 at 8-00/9-00 a. m., the three appellants went to the house of Khadim complainant and they asked Mst. Manzooran to accompany them. She got ready but Kbadimth Hussain complainant, his brother Nawaz deceased and Manzoor P W.) stopped her, whereupon the three appellants, who were carrying sticks caused injuries to Nawaz deceased and Manzoor P. W. It was further alleged by the complainant that Munawar Ali Khan, who was accompanying the three appellants gave butt blows to the complainant. On the noise raised by the complainant party, Shabbir, Bashir, Dad, Amir, Mst Bharai and Sher came there, who witnessed ;.He occurrence and rescued the deceased and the witnesses. After completing the investigation, challan was submitted in Court.
3. The prosecution examined ten witnesses in support of the case. Shabbir was given up, as he had been won over whereas Shera (father of the complainant), Mst. Bharai (mother of the complainant), Allah Ditta and Muhammad Sharif were given up as unnecessary.
4. It stood established from the statement of Dr. Mumtaz Ahmad that the three appellants sustained injuries during the same occurrence as the duration of their injuries and the duration of the injuries of the deceas--ed and the witnesses was the same. Mulazim Hussain had two injuries.
Both the injuries were kept under observation. X-Ray was advised but the accused was not willing to be X-rayed. Falak Sher had two injuries, one on the head and the second on the right forearm.
Both injuries were simple. Manzoor Hussain had four injuries. Injury No. I was on the skull. Injury No. 3 was a dislocation of the upper incisor tooth. This injury was dec--lared grievous in nature. Against eight injuries on the persons of the appel--lants, the deceased and the two injured witnesses- had seven injuries. Injuries of Manzoor Hussain and Khadim P. W. Were simple in nature. Manzoor Hussain and Falak Sher appellants had taken up the plea of self--defence while Mulazim Hussain appellant stated that he received injuries when he tried to rescue the appellants from the deceased and the two injured witnesses.
5. Only Khadim Hussain and Manzoor, real brothers of Muhammad Nawaz deceased appeared in Court to support the prosecution version, Shabbir, Bashir, Dad and Khuda Bakhsh, who were mentioned in the F. I. R, as eye-witnesses and were disinterested persons were not produced in Court. Khadim and his brother Manzoor did not approach the Court with. Clean hands. They did not explain the injuries of the three appel--lants in their statements made before the trial Court.
Khadim Hussain complainant stated that the accused did not suffer any injury during the occurrence. Similarly, Manzoor Hussain stated during the cross-examina--tion that during the occurrence none of them picked up any weapon no", did they assault the accused. Their statements were belied by the medical evidence. The learned Sessions Judge came to the conclusion that the plea of right of private defence raised by the accused persons looked more plausible than the case of the prosecution. It was further observed in the judgment that the accused had acted within their limits to defend them--selves from the attack. After coming to the said conclusion, he acquitted the three appellants from the charge under section 307/34, P. P. C.
But he convicted the appellants on the ground that they had exceeded the right of private defence by causing injuries to the deceased on the vital parts. This finding was not correct and in accordance with law. When the right of private defence of person accrues, it continues so long as the apprehen--sion of death or grievous hurts exists. As mentioned earlier, the com--plainant and the deceased received seven injuries in all against eight injuries of the three appellants. The solitary injury of the complainant had been attributed to Munawar Ali Khan, who bad not been challaned in the case. Thus the deceased and Manzoor had six injuries on their persons. Falak Sher appellant received two injuries, one of those was on the head. Similarly, Manzoor had four injuries and one of those injuries was on the head. He had also suffered a grievous injury. When a person is attackee by another person and he has a reasonable apprehension of death or grievous injury, he is within his right to cause death of the other person. Blows cannot be weighed in scale, nor the seats of injuries can be chosen during the occurrence. The three appellants were attacked by the deceased and his brothers when Mst. Manzooran accompanied her brother Falak Sher. The appellants acted in the exercise of right of private defence when they, were caused injuries by the deceased and the two injured witnesses. The question of exceeding the right of private defence of person did not arise in this case.
6. For the reasons stated above, the appeal is accepted and the impugned judgment is set aside.
The three appellants are acquitted of the charge. They are in custody. They shall be set free forthwith, if not required in any other case.