1. Faqir Muhammad, aged 35 years, has been convicted by the leamed Additional Sessions Judge, Lahore, vide his judgment dated 30-4-1969, for an offence under section 304, Part I, P. P. C., and has been sentenced to live years' R. I. and a line of Rs. 5,000 in default whereof to suffer R. 1. for three years. Two of his co- accused, namely, Muhammad Din and Mushtaq have, however, been acquitted. Faqir Muhammad has filed Criminal Appeal No. 609 of 1969 against his conviction and sentence while Muhammad Ali P. W. has filed Criminal Revision No. 39 of 1970 challenging the acquittal of all the accused qua the charge of murder.
2. The prosecution case, as disclosed in the statement of Mehraj Din (P. W, 7) who is also the first informant and an eyewitness, is as follows :-- Both the parties are related inter sc. Mst. Anwar Bibi who is the wife of Sadiq P. W. is the sister-in-law (wife's sister) of Mehraj Din P. W. On the evening previous to the day of occurrence, which took place on 22-10-1967 at 6 a.m., Muhammad Din accused told Sadiq P. W. that his wife Mst. Anwar Bibi had given two or three seers of chillies to Mehraj Din P. W. On this, Sadiq P. W. observed that he would inquire into the matter but Mehraj Din said close relations would settle this matter. On the following morning at 6 a.m. after the morning prayer time, Sardar Ali P. W. and Nawab deceased came at the shop of Siddiq P. W. where Mehraj Din P. W. was also called. This party sent for Muhammad Din accused. When the latter came there, he abused the deceased who returned the abuse. It is in the statement of Muhammad Sadiq P. W. that the abuse given by Muhammad Din was After the exchange of abuse, Muhammad Din accused called Mushtaq (accused) and Faqir Muhammad (appellant) and told them to do away with the complainant party. Muhammad Din, whose house is near the place of occurrence, rushed to his house and having armed himself again came back to the spot.
3. Mushtaq had a takwa while Faqir Muhammad and Muhammad Din had dangs. Mushtaq gave a takwa blow on the head of Nawab Din deceased who fell down. Injuries were also inflicted on Mehraj Din and Sardar Ali P. Ws. who had tried to catch hold of the assailants. Siddiq (P. W. 10) and Nemat (P. W. 11) separated the parties whereafter the accused went away. The three injured were removed to the Dispensary at Kahna from where Dr. Ataur Rahman (P. W. 1) sent ruqqa to Police Station Kahna which is at a distance of two furlongs from the Dispensary but five miles from the place of occurrence ; whereupon Fazal Hussain, A. S. I. (P. W. 14) reached the Dispensary and recorded the statement (Exh. PA) of Mehraj Din at 10-45 a.m. On the basis of this report, a case was registered at 10-55 a.m. at Kahna Police Station ride F. I. R. (Exh. PA/1).
4. On examination, the doctor found the following persons injured with the injuries given against their names :-- tiawab deceased who "(1) An incised wound 4"xl/4"x bone was then injured. deep on the upper part and middle of the scalp. The bone is cut through and through and part of the brains substance is also involved through the cut."
5. Injury was dangerous caused by sharp (heavy) weapon.
6. Mehraj Din P. W. "(1) Laceration wound 2*x J/2'x bone deep on the right side and back part of the scalp.
(2) Contusion with swelling 2'xl* on the back part of the right hand. It was very tender.
(3) Contusion mark 1|" x 1* on the back part of the neck.
(4) Abraded contusion with swelling on the upper part and front of the scalp."
7. The injuries were caused with blunt weapon and were simple in nature.
8. Sardar Ali P. W.
(2) Abraded contusion l'x 1/2* on the right shoulder.
(3) Contusion mark 3'x 3/4* on the mid part of the back.
(4) Contusion mark H" x 1' on the lower part of the left forearm."
9. All the injuries were simple caused by blunt weapon.
10. Faqir Muhammad "(1) Lacerated wound 2"x 1/4' skin the appellant. upper part of the scalp.
(2) Abraded contusion lj'xl' on the back of right shoulder.
(3) Abraded contusion x J" on the upper part of the left pula."
11. The injuries were simple in nature and were caused by a blunt weapon.
12. Muhammad Din accused. "(1) Lacerated wound 1|" x 1/4" bone deep on the left side of the forhead.
(2) Contusion and swelling lj"xl* on back side and lower part of the left forearm.
(3) Contusion mark 2'x 1" on the right ankle inner side.
(4) Abraded contusion l'x 1/2" on back part of the loin."
13. The injuries were simple caused by a blunt weapon.
14. In cross-examination, the doctor admitted that after receiving the injury on the head, the deceased could not have caused injury to his adversary.
15. During the investigation, takwa (P. 5), dangs (P. 7) and (P. 8) were recovered at the instance of Mushtaq, Faqir Muhammad and Muhammad Din accused vide memos. Exhs. P. G., PR and PJ respectively. Blood-stained chadar of Mushtaq accused (PI) was also taken into possession vide memo. Exh. P. C.
16. At the trial, Mahraj Din, Sardar Ali, Muhammad Siddiq and Nemat P. Ws. supported the prosecution case. The doctor, who had performed the post-mortem examination, could not be examined.
17. However, it is not denied that Nawab died of the injury received by him on head and the same has been described by Dr. Ataur Rehman (P. W. I). The recoveries were supported by Mehr Din (P. W. 13) and Saadat Ali Khan, S. I. (P. W. 15). When examined under section 342, Cr. P. C., Faqir Muhammad appellant gave the main defence plea which is as follows :-- "Mushtaq accused my brother-in-law had illicit relations with Mst. Anwar Bibi wife of Muhammad Saddiq P. W. and the complainant party was inimical because of this. On 22-11-67 in the morning time Nawab Din deceased along with Sardar and Mehraj Din P. Ws. came to our house and called Muhammad Din accused my uncle who went out of the house where Nawab Din armed with takwa and Mehraj Din and Sardar with dangs were present. They asked Muhammad Din accused that he should restrain Mushtaq accused from having relations with Mst. Anwar Bibi. He said that they should also go and stop Mst. Anwar Bibi. Thereupon Nawab Din, Sardar and Mehraj Din got enraged and started abusing Muhammad Din. In the heat of these abuses Nawab Din inflicted takwa blow from its back side on Muhammad Din accused who raised hue and cry for people to come and save him. I came out of the house and Muhammad Din told me that I should save him and that otherwise he would be killed. I snatched the takwa from the hand of Nawab Din. In the meantime Sardar, Mehraj and Nawab opened attack on me. In order to save myself and Muhammad Din I inflicted takwa blow on the head of Nawab Din who fell down.
18. This is how I received the injuries. We went to the police station with this takwa but they did not register our case. Mushtaq accused has been falsely involved in this case. If I had not interfered in this case, Nawab Din would have been murdered."
19. The other two accused dittoed the statement made by Faqir Muhammad. The recoveries were denied. Dr. Shahbaz Munir who examined Faqir appellant is produced in defence. The learned trial Judge considered both the versions by placing them in juxtaposition. He disbelieved the prosecution version that the complainant party were the victim of aggression by the accused party in which Nawab Din lost his life. He accepted the defence version as contained in the statement made by Faqir Muhammad but held that even though he (Faqir Muhammad) had the right of private defence yet he exceeded the same because he had caused the death of Nawab after disarming him. As Muhammad Din and Mushtaq had not caused any grievous injury to any person nor did they directly contribute to the death of Nawab, they were acquitted.
20. I have gone through the evidence with the help of the learned counsel. The learned trial Judge did not believe the recoveries for good reasons. Learned counsel for the State had not relied upon them. I, therefore, will keep them out of consideration. All the eye-witnesses have adamantly refused to accept the position that they caused injuries to Faqir Muhammad and Muhammad Din accused. The number, nature and location of these injuries is such that they do not appear to have been self- suffered. The eye-witnesses have deliberately withheld their part in the occurrence.
21. Moreover, all the eye-witnesses are closely related to each other and to the deceased and despite the admission by at least one eye-witness that several other persons saw the occurrence, not a single independent witness has been produced. In the circumstances of this case, it can be presume that independent witnesses were withheld because the complaina party had no intention of disclosing the part played by them, agree with the learned trial Judge for reasons mentioned in judgment that there is a reasonable possibility that the accus party acted in exercise of right of private defence. On that view the matter, the acquittal of Muhammad Din and Mushtaq accu is unexceptionable. I, therefore, dismiss Criminal Revision No. 39 of 1970.
22. The next question arises whether Faqir Muhammad appellant exceeded the right of private defence. The main ground urged by the learned counsel for the State in support of the impugned judgment is that after Faqir Muhammad had disarmed Nawab Din deceased, he had no apprehension of grievous hurt at the hands of the deceased, therefore, the appellant had no right to cause his death and that he could only cause him such harm as was necessary in the circumstances of the case and which could not extend to the causing of the death. I agree that generally speaking in an ordinary case of two persons fighting with each other, if one disarms the other, the former may not have the right of self-defence extending to the causing of the death of the latter. But in a case where more than one persons on each side join in a fight and are inflicting injuries to the other side, if a person from one party snatches the weapon of another person from the other party, it cannot be said that he is no more under the apprehension of a grievous hurt from the adversary party which is composed of more than one person. The present case is the most suitable example to be cited in such a case. If Nawab deceased, Mehraj Din and Sardar P. Ws. were armed with weapons and were causing injuries to the accused, it cannot be said that in this attack if Faqir Muhammad snatched the takwa of Nawab Din, he had the right to kill Mehraj Din and Sardar P. Ws. only (as they continued to carry the sticks) and his right .4 of self-defence against Nawab deceased was reduced in some degree. According to law, the right of private defence of Faqir Muhammad and his companions was against the aggressive act of all the three persons in the adversary party. They were attacking the accused party jointly and in such like circumstances, Faqir Muhammad could not be sure whether Nawab would, after having lost his weapon, become inactive. He was still capable of taking the stick of one of his companions, namely, Mehraj Din and Sardar, or for that matter snatching back the takwa from Faqir Muhammad if he diverted his attention towards Mehraj Din and Sardar Ali. Therefore Faqir Muhammad, if he apprehended danger from Nawab and his companions as, he stated, he did, it cannot be said that he had no apprehension of any grievous injury at the hands of the adversary party including Nawab deceased. In my view therefore, in causing the single blow on the head of Nawab as a result of which he died, Faqir Muhammad did not exceed the right of private defence. The view taken by me has the support of some observations made in Division Bench judgment of West Pakistan High Court reported as Imam Bakhsh v. The State (1). In view of the above discussion, I accept this appeal, set aside the conviction and sentence of the appellant and acquit him. He shall be released forthwith if he is not to be detained in any other case or matter.
23. (!) PLD 1961 B J 22