Allah Wasaya (24) his sister's husband Bashir (35) were tried for the murder of Muhammad Saeed alias Sheeda. On 19-11-1985 Additional Sessions Judge, Kasur, convicted Allah Wasaya under section 304, Part II, P.P.C. And sentenced him to four years R.I. With a fine of Rs.1,000 in default to undergo six months' R.I. Further. Bashir was, however, acquitted. Deceased's father Muhammad Amin and Ramzan informant have come up in revision against the acquittal under section 302.
P.P.C. And for the enhancement of sentence. Convict has not appealed. During the preliminary hearing, I deemed it fit that notice be issued to State to go into the question of the legality of sentence in this case.
2. Muhammad Ramzan, informant, had his power looms in village Baggar Kot, Kasur. Adjacent to the power looms, Allah Ditta had a grocer shop. Mst. Jeelo also used to help her father in running the shop. Allah Wasaya who did not bear a good moral character used to visit that shop. The people of the Mohallah including Muhammad Screed objected to it. Often, there was a dispute between the deceased and Allah Wasaya over this matter but Allah Wasaya did not stop.
According to the prosecution, on 12-6-1982 at 8.30 p.m. Muhammad Saeed deceased and Ramzan informant were standing in the street just then Allah Wasaya appeared there and they reprimanded him. There was exchange of abuses. Ramzan intervened and Allah Wasaya went away threatening to avenge the insult. After a while Allah Wasaya armed with a Chhuri and Bashir empty-handed appeared there. Bashir raised a Lalkara and caught Saeed in a Jappha, thereafter Allah Wasaya thrust the knife in his chest who fell down. The accuses fled away with the weapon.
Saeed injured was taken to the hospital where he died. After covering a distance of 1--, miles Ramzan went to Police Post No. 4. Kasur and made statement Exh. P.D. On the basis of which formal F.I.R Exh. P.D./ 1 was registered at Police Station City Kasur the same day. After registering the case, P.W. 14 Altaf Baigh S.I. Went to the hospital and sent the dead body for its post-mortem examination. He thereafter went to the place of occurrence, collected blood-stained earth and recorded the statements of the witnesses.
3. On 13-6-1982 P.W.6 Dr. Sadiq- Hussain Naqvi, Medical Officer, D.H.Q. Hospital Kasur held the autopsy on the dead body of Muhammad Saeed and found a stab wound on the front left chest at third and fourth inter-costal spaces 3 c.m. Away from the midline size 3-- c.m. x 2 c.m. Chest cavity deep. It had cut the third rib. Pleura. Periticardium and the heart. Stomach contained 8 ounces of semi-digested food. In doctor's opinion death was due to shock internal and external haemorrhage caused by the injury which was sufficient to cause death in the ordinary course, of nature.
4. On 18-6-1982, the S.I. Arrested Allah Wasaya on 25-6-1982 he led to the recovery of blood-stained Chhuri P. 3 from the heap of wood lying in his house. It was made into a sealed parcel through memo. Exh. P.H. Attested by P.W. 10 Barkat Ali and Sher Muhammad (not produced) besides the Investigating Officer. Allah Wasaya was separately challaned under the Arms Ordinance. On 3-7- 1982 Bashir was arrested. After completing the investigation both were sent up for trial.
5. Admitting the occurrence Allah Wasaya put up the plea of right of self-defence and made the following statement:-- "The fact is that Saeed deceased tried to have illicit connection with Mst. Jeelo, the daughter of Allah Ditta son of Qaim Din, shopkeeper, but he could not succeed in the mission. The deceased thought that Mst. Jeelo was interested in me and he grumbled over it. I tried to pacify the deceased that I had no connection with Mst. Jeelo but of no use, as the deceased was burning in the fire of jealousy and he wanted to take revenge against me. The deceased was standing in the street at about 8.30 p.m. At the place of occurrence on the fateful night to attack me. I was coming to my house after doing my job. When I reached the place of occurrence, the deceased abused me and attacked me with a Chhuri. I stepped aside in order to save my life and caught the arm of the deceased and twisted it whereupon the Chhuri fell down from his hand on the ground. We both tried to pick up Chhuri but ultimately I succeeded to pick up the Chhuri. The deceased tried to snatch it from me and grappled with me. Apprehending the danger of death to my life, 1 in the exercise of the right of self-defence gave a Chhuri blow to the deceased in order to disable him so that he may not overpower me and kill me. Had I not snatched the Chhuri from the deceased and injured him, he would have certainly killed me. The P.Ws were not present at the spot and they have deposed against me due to enmity with me and due to relationship with the deceased. The house of the deceased is situated in a different street. As I used to return to my house at about 8.30 p.m., therefore, the deceased was standing at the place of occurrence near my house in order to attack me. The house of Ramzan P.W. Is also situated in a different street and he could not be expected to be present at the place of occurrence at the relevant time. Bashir accused was not present at the spot and he has been falsely implicated in this case because he happened to be my brother-in- law. I am quite innocent."
Bashir denied his presence at the place of occurrence and said that since he was related to Allah Wasaya, therefore, the case was foisted against him due to enmity. No accused led evidence in defence.
6. Trial Court came to the conclusion that Allah Wasaya had exceeded his right of self-defence.
Criticizing the finding learned counsel for the petitioner contended that the accused-respondent had no right of defence at all, and that it was a premeditated attack. Allah Wasaya convict has not appealed. Since I was not satisfied with the finding I, therefore, issued notice to the State and have gone through the record. I am not impressed with the submission that the accused, after exchange of abuses with the deceased went home and came back with the knife. It may be straightaway mentioned here that Muhammad Saeed is not a resident of the street where the occurrence took place. On the other hand Allah Wasaya admittedly lived at a 'distance of 15-20 yards from the place of occurrence and was on his way home when the deceased checked him, to mend his 'ways. Prosecution case is that Allah Wasaya used to sing obscene 'songs and misbehave with Mst.
Jeelo daughter of Allah Ditta, therefore, Muhammad Saeed used to check him and it was over this the occurrence took place. Allah Ditta whose shop was close to the place of occurrence, is not a witness in this case. His daughter Mst. Jeelo who is about 18 years of age and used to assist her father in running the shop is also not a witness in this case. In fact,' except for P.W. 4 Muhammad Ramzan there is no evidence of motive. This witness too said that the deceased had told him that he tried to check Allah Wasaya three/four days .Before the occurrence. There is no corroboration of this story. P.W. 12 Muhammad Rafiq made no mention of this motive story. He is closely related to the deceased like P.W. Ramzan. Admittedly, there were other shopkeepers present in their shops at the time of occurrence and other Mohallahdars were there whose presence Muhammad Ramzan admitted under cross-examination but they are not witnesses of the occurrence. P.W. 13 Muhammad Ahmad is a chance witness. He has deposed nothing about the first part of the incident alleged by Ramzan. In view of these weaknesses in the prosecution evidence trial Court rightly came to the conclusion that the motive story as alleged has not been proved. On the contrary it appears that Saeed deceased had some kind of interest in Mst. Jeelo, therefore, he stood in the way of Allah Wasaya on the fateful night. In all probability he was jealous of him Admittedly Saeed did not have his house in the lane where the occurrence took place. The overall effect of all the aforementioned circumstances appearing in the evidence of this case is that the prosecution did not satisfactorily prove its case. Trial Court rightly came to the conclusion that the accused had the right of self-defence. It, however, fell into error by denying its maximum benefit to him on the erroneous finding that Allah Wasaya had exceeded the right by striking at the vital part of the body of tie deceased. Trial Court weighed the right of self-defence in the golden scale, which has resulted in a miscarriage of justice. True Allah Wasaya claimed to have disarmed Muhammad Saeed as according to him while grappling the knife fell on the ground but his right of defence did not disappear because both pounced upon the knife and. Allah Wasaya was successful in picking it up. Even at this stage the right did not -become extinct because the deceased struggled hard to snatch the knife from him. Under these circumstances had the convict retreated at this stage, the deceased would have then overpowered him who was after him. In my view the right continued so long as the apprehension of danger to life of the convict continued. In this view of the matter, I am not satisfied with the guilt of the convict Allah Wasaya. Giving him the benefit of doubt I acquit him of the charge. The complainants' revision thus fails and is dismissed.