1. Ghulam Safdar Siiaii, J--This appeal is directed against the judgment of the Additional Sessions Judge, Sahiwal dated 28-2-1967 by which the appellant was convicted under section 304, Part I, P.
2. P. C. and sentenced to transporation for life for the murder of Muhammad Rafique son of Lai Din.
3. The two co accused of the appellant namely Muhammad Alani son of Sultan Muhammad and Muhammad Amir son of Ghulam Muhammad were, however, acquitted.
2. The brief facts of the prosecution case are that Muhammad Alam the acquitted co-accused, had purchased certain goods on credit from P. W. Muhammad Siddique the brother of deceased Muhammad Rafique. And when Siddique asked Muhammad Alam to clear his account an altercation took place between them in front of Siddique's shop when Muhammad Alam raised an alarm which attracted the appellant and one Dullan son of Ghulam. From the side of the complainant party the attention of deceased Rafique was attracted as a result of which he also arrived at the vardat when he saw the parties lighting. The appellant is alleged to have taken out a knife from his dub and given a single blow on the left flank of deceased Rafique and thereafter he and the two accused ran away from the scene.
4. The occurrence was witnessed by P. Ws. Rehmat Ali, Muhammad Siddique and Mehraj Din. The F. J.
5. R. of the incident (Exh. P. E/2) was lodged bjf Lai Din (P. W. 3) the father of the deceased at Police Station Renala Khurd situated at about 8 miles from the place of occurrence at 3-30 p.m. on the same day. The F. I. R. was recorded by P. W.
15. Jahangir Khan S. H. O. whereafter he proceeded to Dhuniwala Hospital where Rafique was carried in injured condition. Upon arrival at the hospital be enquired from the Medical Otficer in writing (Exh. P.M.) whether Rafique was in a fit condition to make statement. And after having obtained the permission of the doctor he recorded the statement of Rafique under section 161, Cr. P. C. Thereafter he recorded the statement of P. W. Muhammad Siddique got him medically examined as he was injured and then prepared the usual statement of his injuries. On 26-8-1965 after he was informed about the death of Rafique, he proceeded to the hospital and prepared his injury statement (Exh. P, H), and the inquest report (Exh. P. J). He then sent the dead body of Rafique to mortuary under the escort of Foot Constables Ahmad Hassan and Muhammad Din and himself proceeded to the vardat. Upon arrival in the village of vardat P. W. Gliulam Rasool produced before him the appellant and co-accused Amir and he arrested them. The appellant then produced before him the crime weapon, namely knife (Exh. P. J.) which he took into possession vide memo. Exh. P. C. in the presence of two witnesses namely P. W. Ghulam Rasul and Muhammad Shoib. He then got prepared the site plan (Exits. P. E. and P. E/1) through the Offices of Draftsman Muhammad Inamullah. Thereafter he arrested co-accused Muhammad Alam on 28-8-1965 when he himself appeared in the police station. After completing the usual invistigation the accused were challaned to stand trial for an offence under section 302/34, P. P. C. which resulted in the impugned judgment.
6. The death of Muhammad Rafique is not denied. In any case this fact is sulhciently established from the evidence of P. W. Dr. Zahoorullah who had examined Rafique in an injured condition at 1-45 p. m. on the day of occurrence at Dliuniwala Dispensary and of Dr. Rashid (P. W. 2) the Medical Officer of Civil Hospital, Okara who had performed the autopsy on his dead body at 5 p. m. on 26-8-1965.
7. The death of Rafique having been established the only question is whether it was the appellant who was responsible for his murder. It may be mentioned that in his statement under section 342, Cr. P. C. the appellant denied the prosecution case and stated that he had been involved on account of enmity because his father had appeared as a prosecution witness in a case against one Muhammad Shoib a cousin of P. W. Muhammad Shoib who is related to the complainant party.
8. We have heard Mr. Khalil-ur-Rehman Klutn the learned counsel for the appellant and Qazi Ahmed Khan the learned counsel for the State. Mr. Khalil-ur-Rehman Khan took ns through the entire evidence on record but lie failed to satisfy us that the conviction of the appellant was erroneous. P.
9. W. Lai Din the father of deceased Rafique supported the contents of the F. T. R. (Exh. P. E/2) and his evidence is materially corroborated by the three eye-witnesses Rehmat Ali, Muhammad Siddique and Mehraj Din. The learned counsel for the appellant attempted to show that the said three P. Ws. are related t.0 the complainant party but he failed to substantiate his contention at least in respect of P. W. Abdullah and Shoib. It is true that the witnesses belong to the same tribes as that of the complainant party but that is not a ground upon which their testimony could be discarded.
10. Assuming for the sake of argument however that the witnesses were interested yet there is convincing corroborative evidence on record which lends credence to their evidence. This corroborative evidence consists of the recovery of blood-stained knife from the appellant which according to the report of the serologist was found to be stained with human blood. The further, piece of corroborative evidence is furnished by the fact that P. W Muhammad Siddique who was involved in the light was found injured by Dr. Zahoorullah who had examined him at about 5-30 p.m. on the same day and consequently his presence at the yard at cannot be doubted.
11. The learned counsel for the appellant however referred to certain contradictions in the evidence of P. Ws. such as that they are not unanimous as to the time when they arrived at the vardat the exact place of occurrence and the distance of their houses from the spot where the fight had taken place. But these contradictions are so minor that they cannot possibly dislodge the case of the prosecution. The learned counsel also urged that the P. W were chance witnesses and therefore they cannot be believed. This contention is also without force as admittedly the houses of the witnesses are situated near about the place of occurrence and consequently their presence at the vardat would be natural. The further reason for which the presence of these witnesses at the vardat can be believed is that their names were mentioned in the F. I. R. which was lodged without any delay and further that P. W. Muhammad Siddique who was admittedly injured as a result of the fight has also corroborated their evidence.
12. The learned counsel next urged that the bona Tides of the prosecution were questionable because the P. Ws. had completely suppressed the fact that co-accused Muhammad Alani had been injured as a result of the fight. Upon these premises the learned counsel argued that it was possible that the complainant party was the aggressor and that the single stab wound caused to deceased Rafique by the appellant was in the exercise of the right of private defence. We find no force in this contention. The learned Additional Sessions Judge has considered this aspect of the case and disbelieved the defence version.
13. We entirely agree with his said conclusion as according to P. W. Dr. Rashid the injuries on the person of Muhammad Alani could have been caused as a result of friendly hand. The opinion of Dr. Rashid appears to be convincing as Muhammad Alam had rec eived five incised injuries (1) measuring 2]- *x f" x skin deep on the lateral surface of right deltoid (2) 1" x x skin deep on the palmar surface of the root of right thumb (3)U'x]"x skin deep over the left parietal eminence, (4) Y x 1 /10" x skin deep over the right parietal eminance and (5) 1 ]* x x skin deep J" below injury No. 1 add the fact that all these injuries were just skin deep and simple in nature clearly shows that they were not as a result of any aggression but were self inflicted. The other reason which supports this conclusion is that after the fight Muhammad Alam did not go to the police station nor to the hospital until 9-15 p.m. and there is no explanation on record as to why he did not go to the hospital when the occurrence had taken place at about 11 a.ra.
14. 1 he learned counsel next urged that in the peculiar circumst ances of this case the appellant could be convicted only under section 304, Part 11, P. P. C. and not under the first part of that section and consequently the impugned judgment on (hat score including the sentence of transportation for life awarded to the appellant is illegal. By going through the evidence on record wc agree with this contention. The unanimous evidence of the P. Ws. is that the occurrence had taken place in front of the shop of P. W. Muhammad Sidditjuc and the house of the appellant is just opposite to that shop.
15. The P. Ws. are further unanimous that when lhe acquitted co-accuscd Muhammad Alain raised an alarm he was facing two adversaries namely the deceased and P. W. Muhammad Siddique and it was in this background that the appellant rushed out of his house and when lie reached the spot where the fight was taking place lie took out knife from his dub and inflicted a singly blow upon the left flank of the deceased. From this it is clear that the appellant had no intention to cause the death of Raftquc or of causing hint such bodily injury as likely to cause death particularly when admittedly there was no enmity between the parties and the light in question had taken place at the spur of the moment. Not only this but since the house of the appellant is situated at 8 karattts from the place of occurrence and consequently it cannot even be contended that he had sufficient time to take slock of (he position whether the deceased and P. W. Siddique were armed or they were disposed to cause grievous hurt to Muhammad Alain. In these circumstances the appellant who was the first cousin of Muhammad Alan) could reasonably apprehend that unless rescued P.
16. W. Siddique and the deceased were likely to cause grievous hurt to Muhammad Alam within the meaning of clause secondly of section 100, P. P. C. which reads :-- "100. The right of private defence of the body extends under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant if the offence which occasions the exercise of the right be of any of the descriptions herein after enumerated namely :-- First............................................................................ Secondly Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault."
17. Grievous hurt has been defined by section 320, P. P. C. but the definition covered by clause seventhly being relevant may alone be reproduced :--
320. The following kinds of hurt only are designated as grievous :-- First................................................................................... Secondly.............................................................................
18. Thirdly............................................................................... Fourthly............................................................................. Fifthly.......................... .................................................... Sixthly ............................................................................... Seventhly-- Fracture or dislocation of a bone or tooth.
19. Section 97, P. P. C. recognised the right of private defence of a person's own body and the body of any other person against any offence affecting the human body subject to the restrictions contained in section 99 which ill relevant part reads :-- There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.
20. The right of private defence in no case extends to the indicting of more harm than it is necessary to inflict for the purpose of defence.
21. By reading these provisions together it is clear that in the circumstances of this ease the appellant was justilied to entertain a reasonable apprehension that if not rescued from the clutches of the deceased and P. W. Siddique his cousin Muhammad Alam (who according to the observations of the learned trial Judge was a frail person) was likely to suffer grievous hurt. In other words the exercise of the right of private defence of the body of Muhammad Alam having arisen to the appellant within the meaning of section 97, P. P. C. he was justilied to cause such harm to the deceased which was no more than what was necessary for the purpose of defence. The question therefore is whether in the exercise of that right the appellant can be said to have exceeded the prescribed limits as was the view of the learned trial Judge. After having anxiously considered this aspect of the case we concur with the view taken by the learned trial Judge but nevertheless disagree with him in regard to the conviction of the appellant under section 304, Part 1, P. P. C. and the sentence of transportation for life awarded to him.
22. The prosecution ease as already noted is that when Muhammad Alain saw himself faced by the deceased and P. W. Siddique he raised an alarm as a result of which the appellant whose house was situated at about 8 kavatns rushed out and upon approaching the place where the scuffle was going on took out knife from his dub and inflicted a single blow on the left flank of the deceased. In these circumstances the action of the appellant was justified within the meaning of section 97, P. P. C. But he ccrtinly exceeded the prescribed limits within which the right of private defence is allowed to be exercised because the knife injury caused by him to the deceased was in his chest as a result of which his stomach, right lung and left pleura were cut and considerably damaged. Notwithstanding this position however the appellant for the reasons already discussed cannot be said to have intended to cause the death of the deceased or cf causing him such bodily injury as was likely to cause his death so as to justify his conviction under the first part of section 304, P. P. C. if this be so then the case of the appellant was clearly covered by the second part of section 304, P. P. C. and consequently his conviction under the first part of that section and the sentence of transportation for life awarded to him are not justified.
23. In view of this discussion we are satisfied that the appellant was guilty of culpable homicide not amounting to murder but for the aforesaid reasons we alter his conviction from section 304, Part I, P. P. C. to one under the second part of that section and consequently reduce his sentence from transportation for life to live years' rigorous imprisonment which in the circumstances of the case appears to be adequate to meet the ends of justice. With this modification this appeal is dismissed.
24. Sentence reduced.