' Din Muhammad (35) was tried alongwith his father Niaz Muhammad (75) and his younger brother Fayyaz Ahmad (15/16) by the learned Additional Sessions Judge, Multan, for the murder of Muhammad Anwar deceased and for murderously assaulting Muhammad Umar, Muhammad Nasir and Muhammad Saeed P. Ws. On 31st August, 1981 at 10 p. m. With a dagger and stick in the area of Basti Bava Safra, P. S. Old Kotwali, Multan.
' The learned Additional Sessions Judge vide his order dated 31st January, 1983 acquitted Niaz Muhammad and Fayyaz Ahmad accused but convicted Din Muhammad appellant under section 304, Part II, P. P. C. And sentenced him to 10 years' R. I. And to pay Rs, 2,000 as compensation to the legal heirs of the deceased under section 544-A, Cr. P. C. Or in default to undergo two months' R. I.
2. Din Muhammad has filed an appeal against his conviction and sentence.
3. The prosecution case is that Muhammad Umar P. W. 5 and the son-in-law of Niaz Muhammad acquitted accused owned a house jointly in Hannu Ka Chajja. Niaz Muhammad wanted to forcibly evict the complainant from the said house.
' On the day of occurrence at about 10 p. m. Muhammad Umar P. W. Was on way to his house alongwith his sons Muhammad Anwar deceased and Muhammad Nasir P. W.
7. When they reached near their house the appellant came there and attacked them. Niaz Muhammad raised a lalkara that Muhammad Umar and his sons be not spared. Fayyaz Ahmad caught hold of the deceased while Din Muhammad appellant caused dagger blows to him. Niaz Muhammad injured him with his hockey-stick. Muhammad Umar tried to intervene but Niaz Muhammad caught 'iold of him while the appellant injured him. The appellant also injured Muhammad Nasir P. W. 7 and Muhammad Saeed P. W.
8. Muhammad Umar snatched hockey from Niaz Ahmad and injured the appellant and Niaz Muhammad. After the occurrence the appellant and the other accused left the spot with their respective weapons. The deceased and the other irjured were taken to Nishtar Hospital.
Muhammad Anwar expired in the hospital.
4. Ch. Muhammad Anwar S.-I. Who was present in Nishtar Hospital in connection with patrol duty recorded the statement Exh. P. E. Of Muhammad Umar while he was present in Ward No, 9 and sent it to the Police Station for registration of the case. He prepared injury statement Exh. P. M. And the inquest report Exh. P. N. Of the deceased. He also prepared injury statement Exhs. D. K./7 and D. K./8 of Muhammad Nasir and Muhammad Saeed P. Ws., respectively. The appellant was arrested on 8th September, 1981. The appellant led to the recovery of blood-stained dagger P. 1 from his house through memo. Exh. P. G. Niaz Muhammad got recovered hockey P. 2 which was broken into two pieces.
5. Dr. Riaz-ud-Din P. W. 9 conducted autopsy on the dead body of Muhammad Anwar deceased (20/21) on 2nd September, 1981 and found the following injuries thereon :
(1) An incised repaired wound on the palm of left hand. 8 cm x 2 cm x bone deep bearing 8 stitches, 5th metacarpal bone partially cut about 4 cm. Below wrist joint.
(2) An incised wound on the left side of head l cm x 1 cm x skin deep about 6 cm above the ear and 10 cm above the eye brow.
(3) A stab wound on the left side of abdomen 10 cm x 5 cm x abdominal cavity (repaired) bearing 3 stitches with a drainage tube about 6 cm from mid line and 17 cm below left nipple transverse in direction.
(4) An incised wound on the left side of back of the chest 3 cm x 1 cm x abdominal cavity about 32 cm below the root of neck and 4 cm from mid-line.
(5) Paramedium repaired surgical incised wound on the front of abdomen 16 cm x 2 cm x abdominal cavity bearing 12 stitches chest cavity full of blood.
' Death occurred due to shock and haemorrhage as a result of injuries Nos. 3 and 4 which was sufficient to cause death individually as well as collectively. All the injuries were caused with sharp- edged weapon. Injuries No, 1 and 2 were of simple nature. Time between the injuries and death was about 6 hours and that between death and post-mortem about 36 hours.
' He also examined Niaz Muhammad accused and found 6 blunt weapon Injuries on his person.
One of the injuries was grievous having caused fracture of second metacarpal bone of left hand and dislocation of first metacarpo phalangial joint of left thumb.
' He also examined Din Muhammad appellant and found the following injuries on his person :-
(1) A contused wound on the left side of head 3 cm x 1/2 cm x bone deep about 10 cm from eye- brow and 9 cm from ear.
(2) A contused wound on the right side of head 3f cm X 1/2 cm x muscle deep about 8 cm from ear and 15 cm from eye-brow.
(3) A contused wound 3 cm x 1/2 cm x bone deep about l/ cm above and towards mid-line of injury No, 2.
(4) Whole of back of right palm swollen.
(5) A laceration 4/ cm x 1 cm on the lateral end of clavical.
(6) An abrasion 2 cm x 1 cm on the top of right shoulder.
(7) An abrasion 2f cm x 1 cm x on the back of right chest about 22 cm below the top of shoulder and 7 cm from mid line.
(8) An abrasion in the mid-line vertical in direction 5 cm X 1/2 cm about 33 cm below the route of neck.
(9) A transverse lenil scotch 7 cm long and skin deep about 28 cm below the top of shoulder and 8 cm from mid-line. All the injuries were caused with blunt weapon and were simple in nature.
6. Dr. Muhammad Muslim P. W. 1 found one sharp-edged injury on the left side of the abdomen of Muhammad Umar P. W.
5.
7. Dr. Imtiaz Ahmad Khan P. W. 2 found four injuries on the person of Muhammad Nasir P. W.
7. One of the injuries was grievous while the rest were simple in nature. Two injuries were caused by a sharp-edged weapon. He also examined Muhammad Saeed P. W. 8 and found 5 simple injuries on his person. Three of them were caused by sharp-edged weapon.
8. Din Muhammad appellant denied the prosecution allegations. Explaining the case against him he made the following statement :- "The prosecution case is false. Mukhtar P. W. Was not present. He lives miles away from the place of incident i. e. Sarai Sidhu. He is interested and related to the complainant party. Mst. Rafiqan is my sister and is the wife of Rashid closely related to Muhammad Umar P. W. And others. Real facts are that about one month before the incident, she had come to our house and left her husband who is living in Hannu Ka Chajja alongwith other P. Ws. Except Mukhtar. On the night of .Incident, Anwar deceased, Saeed, Muhammad Umar and Nasir P. Ws. Armed with dangs came to our house to take Mst. Rafiqan forcibly to the house of Rashid mentioned above. They entered our house forcibly and tried to take Mst. Rafiqan who was brought to the door of the house situated in the lane. Myself and Niaz Muhammad resisted and asked them not to behave in that way. They attacked us both and caused many injuries to us. I in self-defence used a pen-knife to save myself and my father. We both were admitted in the hospital, where we were medically examined and X-rayed. In spite of our best efforts to get a case registered, the Investigating Officer who was partial and siding with the prosecution did not register our case. From our side, complaints were made to the D. I.-G. Other Police Officers and also to the llaqa Magistrate about the conduct and partiality of the Investigating Officer. The prosecution case has been registered after consultations and deliberations which is totally false and baseless. The I.
0. Has also changed the site of incident and has not shown the actual place of blood that was present. The witnesses are not residents of the locality. They reside at a distance of two miles away from this place in Moba)lah Hannu Ka Chajja alongwith Rashid mentioned above. My brother Fayyaz was not present at the spot."
9. He examined two witnesses in defence. Dr. Saeed Ahmad D. W. 1 stated that he got X-rayed the injuries of Niaz Muhammad accused and found a fracture of second metacarpal bone of left hand and dislocation of first metacarpo phalangial joint of left thumb. Mst. Rafiqan D. W. 2 is sister of the appellant. She stated that on the day of occurrence she was present in the house of her father when Nasir, Muhammad Umar, Muhammad Saeed and Muhammad Anwar P. Ws. Entered into the said house while armed with dangs. Muhammad Anwar caught hold of her and tried to drag her out. Her father and brother tried to rescue her whereupon they were given dangs blows by the said persons. In the meantime, she got herself free and rushed into a room.
' At the trial the prosecution examined Muhammad Umar P. W. 5, Mukhtar Khan P. W. 6, Muhammad Nasir P. W. 7 and Muhammad Saeed P. W. 8 as eye-witnesses. Muhammad Umar is father of the deceased while Muhammad Nasir and Muhammad Saeed are brothers of the deceased. Mukhtar Khan P. W. 6 is also related to the complainant.
10. The learned trial Court disbelieved the motive, recoveries and held that it was an open fight in which both the parties had suffered injuries. The trial Court observed that it was the deceased and the P. Ws. Who had gone to the house of the accused where this occurrence has taken place in the street. It further observed that the circumstances of the case showed that the appellant had caused injuries to the deceased and the P. Ws. In exercise of private defence of his person and that of his father Niaz Muhammad but convicted the appellant for exceeding th right of self-defence.
Niaz Muhammad accused was acquitted as according to the trial Court he had not caused any injury to the deceased and that the injuries caused by him to the P. Ws. Were in exercise of the right of private defence of his person and that of Din Muhammad appellant. Fayyaz Ahmad accused was given the benefit of doubt. According to the trial Court the role of grappling attributed to him appeared to be improbable.
11. The learned trial Court further observed that genesis of the occurrence was shrouded in mystery and that the prosecution had sup pressed the part played by it. It further observed that the P. Ws.
Stood contradicted by the medical evidence.
12. The appellant's contention that the complaint had gone to their house to abduct his sister Mst.
Rafion was accepted by the trial Court. It is further observed that the appellant had caused injuries to the deceased in exercise of private defence of his person and that of his father who ha suffered many injuries.
13. The appellant had also suffered a grievous injury besides other injuries. But despite this, the trial Court convicted the appellant for exceeding the right of his defence. The appellant was found bearing nine injuries on his person. Two of them were on the head, one on the neck and others on the chest. His father was found bearing six injuries.
' In these circumstances, the trial Court was not justified to convict the appellant because he would be fully protected in repelling the attack launched upon him and his father by the complainant party in front of their house.
' The question as to whether the appellant had caused more harm than necessary for the purpose of defence is not solely dependent on the number of the injuries found on the person of the deceased and the other P. Ws. Amongst other factors, the proportionate ratio and nature of harm on each side in addition to the extent, proportion and ratio of apprehension is also to be considered. Good faith on the part of the accused is also one of such factors, because the accused's act cannot be weighed in golden scales. The complainant party had no justification to go to the house of the appellant and in the circumstances of the case the appellant was justified to act in defence of his person and his father. And if he is allowed further benefit of human error in making the judgment in the heat of moment in the absence of any golden scales, the plea of self- defence cannot be denied to him. Thus, he was entitled to complete the right of private defence.
Accordingly, I accept his appeal, set aside his conviction and sentence and acquit him. He shall be set at liberty forthwith if not required in any other case.