1. ' The appellant Sher Ali and two others namely, Ziarat Gul and absconding accused Noorullah were accused of the murder of one Ayoob and of causing injuries to Umer Khan, Saleem and Naeem.
2. The learned Additional Sessions Judge, Karachi by his judgment, dated 29-5-1984 convicted the appellant for the said murder and sentenced him to life imprisonment and fine of Rs, 3,000 or in default R.I. For two months. By the same judgment the co-accused Ziarat Gul was convicted under section 326/34, P.P.C. And sentenced to R.I. For three years and fine of Rs,2,500 or in default R.I. For one year. The present appeal has however been filed only by the appellant Sher All against his conviction and sentence.
3. ' The prosecution case, in brief, is that Saleem, Naeem and Ayoob (deceased), sons of the complainant Umer Khan, used to bring earth on donkey-cart and pass through a lane infront of the house of accused Ziarat Gul. The latter objected to passing of the donkey-cart through his lane whereupon the relations between the parties got strained. On the day of incident which took place on 16-7-1983, deceased Ayoob passed the donkey-cart filled with earth through the same lane when Ziarat Gul once again raised objection to the passing of the cart. Thereupon all the above three brothers accompanied by their father approached accused Ziarat Gul and enquired from him the reason of his for-bidding the passing of their donkey-cart through his lane. At the time of occurrence the appellant Sher All and absconding accused Noorullah were also stated to be present at the Vardat. As soon as the complainant initiated his talk with Ziarat Gul, the latter incited his son Sher Ali and his companion Noorullah to close the lane for ever and not let anyone of the complainant party leave alive. On this Sher All brought Chhuri and caused injury to deceased Ayoob on the left of his hip. Ziarat Gul and Noorullah who were also stated to be armed with Chhuris inflicted injuries to Saleem and Naeem respectively. Thereafter all the three accused decamped. Ayoob ultimately succumbed to his injuries. As disclosed in the F.I.R. By the complainant the incident was witnessed by Sharif, Muhammad Shabbir and others. The F.I.R. Was lodged by complainant Umer Khan.
4. ' The A.S.I. Barkat Hussain who recorded the F.I.R. Took up the investigation and visited Vardat. He secured blood-stained earth from there and sealed the same in presence of Mashirs Ranjha and Sharif Khan. Both the appellant Sher Ali and his father co-accused Ziarat Gul were apprehended from their house. They volunteered to produce Chhuris. The appellant Sher Ali is stated to have taken out one Chhuri from under the earth at the place of occurrence and produced the same before the A.S.I. In presence of Mashirs Sharif and Ranjha. The Chhuri was secured and sealed vide Mashirnama Exh.8-A. As it was blood-stained it was subsequently sent to the Chemical Examiner.
5. For his report. The A.S.I. Forwarded the accused and other injured persons to Jinah Hospital. Before the deceased died he recorded his statement in the hospital. The statements of Naeem and Saleem were also recorded there. The A.S.I. Also examined Ranjha and Muhammad Bashir and Sharif. Following the receipt of the information about the death of Ayoob, his dead body was sent to the Medical Officer for post-mortem. The A.S.I. Also examined Muhammad Rafiq. The bloodstained clothes of the three accused were also secured and sealed vide Mashirnama Exh.4-G, prepared by the A.S.I. The chemical report which is positive has been, produced as Exh.16. The co-accused Noorullah could- not be arrested and, therefore, he was shown as absconder. Then the charge- sheet was submitted in the Court.
6. ' The post-mortem examination of the dead body of Ayoob revealed one surface injury. Dr. Zulfiqar (P.W.9) who conducted the post-mortem examination has described the injury as incised wound 1" x 1" x 4" on left of hip region. In the doctor's opinion this injury was caused by sharp-edged weapon such as knife. He has stated that the injury was ante-mortem and the cause of the death of the deceased was shock and haemorrhage resulting from the above injury.
7. ' Dr. Kamaldin Shaikh (P.W.12) examined Umer Khan, Saleem, Naeem, accused Sher All and co- accused Ziarat Gul. On the person of Umer Khan he found following two injuries:-
(1) Incised wound 2" x 1" x muscle deep left hand.
(2) Incised wound 1" x 1" at middle of little finger left hand.
8. ' Both the injuries, in his opinion, were simple and were caused by sharp-edged weapon. On the person of Saleem Khan, doctor found the following injuries:-
(1) Incised wound 4" x 1" cavity deep left side chest.
(2) Incised wound 1" x 1" cavity deep right upper chest.
9. ' Both the above injuries in the opinion of the doctor were caused by sharp-edged substance. Injury No,1 was grievous whereas injury No,2 was simple.
10. ' The doctor found following injuries on the person of Naeem Khan:-
(1) Incised wound 2" x 4" left upper arm.
(2) Incised wound 1" x 1" skin deep right upper arm.
11. ' In the opinion of the doctor both the injuries were caused by sharp-edged weapon and they were simple in nature. On the person of accused Ziarat Gul following injuries were found:-
(1) Incised wound 1" x 1/4" skin deep with severe swelling of 14" in diameter left lower chest.
(2) Contusion 1/4" x 1" with the area of 1" x 1" left shoulder.
12. ' In the opinion of the doctor the above injuries were caused by hard and blunt weapon. However, he reserved his opinion with regard to nature of injuries which was subsequently never given.
13. ' On the person of accused Sher Ali the doctor found the following injuries:--
(1) Contusion 4" x 1" left side chest.
(2) Contusion 2" x 1" right upper arm.
14. ' According to doctor the injuries were simple and were caused by hard and blunt weapon.
15. ' From the medical evidence discussed above, it is established that deceased Ayoob died of the injury found on his person. It is also established that the complainant Umer Khan, Saleem and Naeem had sustained injuries on complainant side and accused Ziarat Gul and Sher Ali were injured on the accused side.
16. ' The material question to be answered, however, is as to how and at whose hands the deceased and other persons received injuries. According to the prosecution, the fatal injury on the person of the deceased Ayoob was caused by appellant Sher All and the injuries on the persons of complainant and his two sons Saleem and Naeem are stated to have been caused by co-accused Ziarat Gul and absconding accused Noorullah. In proof of these allegations the prosecution have relied upon the ocular evidence, evidence of motive and recovery of incriminating articles.
17. ' As disclosed in the F.I.R. Besides complainant, Saleem and Naeem, the other witnesses who had seen the incident are Sharif and Muhammad Shabbir. As against his earlier 'version contained in the F.I.R. The complainant Umer Khan has in his evidence in Court taken the names of Ranjha, Muhammad Bashir, Sharif and Muhammad Rafiq to have witnessed the occurrence. In view of the injuries found on persons of complainant and his two sons Saleem and Naeem, their presence at the time of occurrence cannot be doubted. Both Saleem and Naeem have supported their father that Muhammad Rafiq, Sharif, Muhammad Bashir and Ranjha had witnessed the incident. The prosecution have produced Muhammd Rafiq (P.W.4), Sharif (P.W.5), Ranjha (P.W.6), Saleem (P.W.3) and Naeem (P.W.7) as eye-witnesses. They have all implicated appellant Sher Ali, his father Ziarat Gul and absconding accused Noorullah as assailants of the complainant's party. Their evidence clearly shows that deceased Ayoob, his father Umer Khan and his brothers Saleem and Naeem had received injuries at the hands of the above three accused. Even the accused themselves have not denied their pesence at the time of occurrence. But their version is that it was the complainant's party which launched attack on them causing injuries to them. According to Ziarat Gul, they had no weapon at the time of incident, though he admits the recovery of blood-stained clothes from them. Elaborating the defence version, the appellant Sher Ali has stated that he was preparing tea in his house when he heard common. As he went out, he saw co-accused Ziarat Gul being attacked by Saleem with hatchet. He has futher stated that he snatched the hatchet from Saleem but in the meantime Naeem attacked him with Danda and Saleem inflicted hatchet injury to him. He has also stated that he saw Umer Khan with Chhuri in his hand. He however did not know who attacked the deceased.
18. ' The learned counsel for the appellant argued that the appellant and his companions had caused injuries to the complainant side in their self-defence and, as such, they are not liable for any offence. In support of his arguments he placed reliance on several authorities.
19. ' The first case referred to by the learned counsel for the appellant is of Muhammad Ishaq and another v. The State PLD 1964 (W.P) Pesh. 143 wherein it was held: "It is true that the right of private defence in no case extends to the inflicting of more harm than is necessary to inflict for the purpose of defence, but we cannot ignore the fact that in the heat of the moment and while defending himself against an attack it was not possible for Muhammad Ishaq appellant in that situation to have decided on the spur of the moment whether he should fire one or more shots in order to defend himself effectively. We do not agree with the learned Additional Sessions Judge that Muhammad Ishaq appellant exceeded the right of self-defence when he fired the second shot."
20. ' The next case relied upon by the learned counsel is of Muhammad Abdullah v. Muhammad Safdar Khan 1973 SCMR 26. Their Lordships of the Supreme Court were pleased to hold as under:- "In the present case, as we have stated earlier, having found that both sides were suppressing the truth, we have, having regard to the number and the nature of injuries suffered by the accused persons, come to the conclusion that the possibility of their having acted in self-defence was more probable in the circumstances of this case. If this right accrued to them, then the firing of a single revolver shot, which unfortunately resulted in the death of one of the opposite-party, cannot be said to have been done in excess of that right."
21. ' The third case referred to by the learned counsel for the appellant is reported as Aludo alias All Bux v. The State 1976 P Cr. L J 329 where it was held as under:- "The determined effort on the part of the prosecution witnesses and the deceased to apprehend the appellant when the deceased himself was armed with a hatchet in the context of the background of enmity, leaves no room for doubt to conclude that the appellant must have apprehended imminent danger to his life. It is not necessary that heshould have received any injury before such apprehension could have been entertained as has been observed by the trial Court, for the law does not place such limitation on the exercise of the right of self-defence.
22. Therefore, the appellant was justified in killing the deceased who was armed with a hatchet and who could have used it any moment."
23. ' In the instant case the prosecution's own story is that the deceased Ayoob was alone when he was passing the donkey-cart through the lane infront of the accuseds' house and had a row with the accused over passing of the cart. It is further stated that nothing beyond wordy duel took place between the deceased and the accused at that time. It was subsequently in the day that the deceased accompanied by his father Umer Khan and his brothers Saleem and Naeem went to the accused and questioned them as to why they were objecting to the passing of the donkey-cart through their lane. Thus the fight took place between the parties on complainant's party having approached the accused. In other words the incident could have been avoided if the complainant's party had not gone to the accused and questioned their objection over passing of the cart through their lane. The other factor indicating that the complainant's party themselves had invited the occurrence is the location of the Vardat. Admittedly the place of Vardat situated just outside the house of the accused. Furthermore at the initial stage of the occurrence, there was only co-accused Ziarat Gul. The appellant Sher Ali came out of his house on hearing the commotion. The third co-accused Noorullah who is said to be absconding is not even related to other two accused. According to the defence version he came to rescue the other accused. Thus there was absolutely no premeditation or preparation on the part of the accused who were rather surprised by the complainant's party. It is also worthy of note that the complainant's party was superior in strength as it consisted of four persons as against the accused who were in all three including accused Noorullah.
24. ' According to medical evidence both accused Ziarat Gul and appellant Sher All had two injuries each, caused with hard and blunt weapon. The presence of the injuries on the accused persons clearly shows that complainant's party had been carrying some hard and blunt weapons such as 'Dandas' and 'Lathis'. If the intention of the complainant's party was just to plead with the accused to refrain from objecting to the passing of the donkey-cart, it was not necessary for them to have taken 'dandas' or 'lathis' with them. There was also no justification for all the three brothers to have accompanied their father to the accused. As soon as the deceased complained against the accused's objection his father Umer Khan could, at the most, have accompanied the deceased to the accused for requesting them to let the donkey-cart of the deceased pass through their lane.
25. Unless they had evil intention, all the family members would not have gone to the accused taking with them hard and blunt weapons. All this clearly shows that complainant's C party themselves were to blame and were responsible for inviting the occurrence.
26. However, it may be argued that even if the fight was initiated by the complainant's party, were not justified in using 'Chhuris' against the hard and blunt weapons carried by the complainant's party.
27. Since they had done so, they had obviously exceeded the right of self-defence available to them.
28. This argument does not appear to be wholly correct. The complainant's party having been armed with hard and blunt weapons the accused could justifiably apprehend danger to their life. That is to say if the complainant's party resorted to giving blows to them with hard and blunt weapons they carried, the possibility of such blows having proved fatal in some or the other case was not ruled out. In such a situation even if the accused used Chhuris and thereby caused death of Ayoub on the complainant's side, they could not be held to have exceeded their right of private defence. If their intention was to take the life of the deceased Ayoob by deliberate design, they would have caused more than one injury to him and would have caused such injuries on vital parts of his body.
29. But as disclosed in the medical evidence the deceased had only one injury and that too was inflicted on his hip which cannot be held as vital part of his body. Besides the deceased his two brothers and father had also sustained injuries. But the accused's version is that they were empty handed at the time of occurrence. According to accused Sher Ali, he had snatched 'Chhuri' from Saleem. The incident having occurred just outside the accuseds' house they seem to have brought knives from their house. Like the accused, the complainant's party have also tried to suppress the facts. They have not explained how and in what circumstances the two accused Sher All and Ziarat Gul had sustained injuries. If they were not armed with hard and blunt weapons, they were expected to furnish explanation as to presence of injuries on persons of the said accused. But no such explanation is forthcoming from them. Thus neither of the parties has come out with whole truth. In the circumstances discussed above, I am inclined to hold that the accused had caused injuries to the deceased arid two others on the complainant's side in their self-defence. In any case it is rather difficult to hold that the accused had exceeded their right of self-defence or that they caused injuries to complainant's party deliberately. The benefit of doubt, in view of the above authorities must go to the accused.
30. Accordingly the appeal was allowed and both appellants Sher Ali and co-accused Ziarat Gul were acquitted by short order, dated F 24-3-1985. It was immaterial if the co-accused Ziarat Gul had not preferred appeal against his conviction.