MUHAMMAD MUNIR FAROOQI. J.-Sadiq appellant was tried along with his brother Sher Muhammad and his father Hast Ali by the Additional Sessions Judge, Sahiwal, for having committed in furtherance of their common intention, the murder of Arif deceased, their co-villager, on 10th December 1966, at noon time in Killa No. 1 of Square No. 47 of Chah Mohriwala in Rakh Malka Hans who acquitted his co-accused and convicted the appellant only under section 304(1), P. P. C. With a sentence of rigorous imprisonment for seven years. He has filed an appeal to question the correctness of his order, while Noor Khan, the private complainant, has moved petition under section 439, Cr. P. C. (Criminal Revision No. 650 of 1968) for setting aside their acquittal for the offence under section 302, P. P. C. Which has not so far been admitted to a regular hearing and both these matters are being disposed of by this order.
2. It was alleged that Arif deceased was suspected of having some illicit liaison with a sister of Sadiq appellant and to avenge the infamy so brought to their family Sadiq appellant armed with gandasi (P. 2), his brother Sher Muhammad with ghandali (P. 1) and their father Hast Ali with a dang attacked him on the eventful day in the said field where he was busy in peeling the sugarcane with the assistance of Ata Muhammad (P. W. 10) and Pathana (given up P. W.) while Sardar Ali (P. W. 8) and Ghaus Muhammad (P. W. 9) were smoking huqqa nearby. Sadiq appellant opened the attack with a gandasi blow on his head which felled him to the ground followed by more blows by each of them. The aforesaid witnesses intervened and saved him from further harm. The appellant and his co-accused made good their escape.
Sardar Ali (P. W. 8) went to police station and lodged his report Exh. P. A there at 3-00 p.m. The same evening, which was recorded by Fazal-ur-Rehman, Moharrir Head Constable, who sent a copy of the same to Muhammad Bakhsh, A. S. I. In the same ilaqa where he was investigating some other case. In the meanwhile Arif (deceased then alive) had been removed to the Civil Hospital at Pakpattan by his father and other relatives.
On receipt of the copy of the first information report Exh. P. A. The A. S. I. Muhammad Bakhsh came to the hospital and enquired from the doctor Incharge vide Exh. P. M., if Arif (then alive) was in a fit condition to make a statement, who replied in the negative vide Exh. P.M./1. He then proceeded to the spot and reaching there at 6-40 p.m. Recorded the statements of the prosecution witnesses.
On the same day he again went to the Civil Hospital to enquire about the condition of Arif (deceased, then alive), but he was found unconscious as endorsed by the doctor at Exh. P.M./3 on the query Exh. P.M./2. He then went back to the spot and during its inspection took blood-stained earth into his possession vide Exh. P. 8 and sealed it into a parcel. He also found some blood stains on a wall of the house of the appellant which was got removed and sealed it into a parcel vide Exh.
P. R. He was, however, relieved of the investigation of this case by Sub-Inspector Muhammad Sadiq, who arrived at the spot on the same evening.
On 12th December 1966, Arif expired and the doctor intimated the Sub-Inspector about it vide Exh. P.
F. So the offence was converted to that under section 302/34, P. P. C. The Sub-Inspector then went to the hospital and after preparing the necessary, injury statement Exh. P. G. And the inquest report Exh. P. H. Dispatched the dead body to the mortuary. Dr. Iftikhar Ahmad (P. W. 1) held an autopsy over it vide Exh. P. H. He found the following injuries:-
(1) A contused wound 2 -- " x 3/8 " x scalp deep on the left side of anterior half of skull 7/8" to the left of mid-line of head. There was bleeding through the left ear (clotted blood).
(2) Swelling area 4" x 3" over the left side of face between left eye and left ear.
(3) A contused wound 1" x 1/4" x skin deep on the left side of head 2" to the left and below injury No. 1.
(4) A swelling area 2" x 1 --' on the left side of head 1" posterior to injury No. 3.
In the opinion of the doctor, death in this case, was due to intracranial haemorrhage, resulting in compression of brain and medulla. Injury No. 1 was sufficient to cause death in the ordinary course of nature. Death in this case, according to the doctor, might have also resulted from aspiration onemonia.
On 11 December 1966, at 9-30 a.m. The same Doctor examined Sadiq appellant and found the following injuries:-
(1) A contused wound 3/4" x 1/8--- x skin deep on the left side of the head 1 -- " to the left side of mid-line of head, on anterior half.
(2) An abrasion 1N x 3/8" on the back of right calf in upper third.
Both the injuries were simple and had been caused by blunt weapon.
Sadiq appellant and his two co-accused appeared before the S. I. On 13th December 1966, at the spot when Sadiq appellant produced before him gandasi (P. 2), and Sher Muhammad (acquitted accused) produced ghandalf (P.1) which were taken into possession vide Exhs. P. C: and P. D.
Respectively. He get prepared the site plan Exh. P. J. And its duplicate Exh. P. J./1 from Khushi Muhammad Patwari and after giving his notes signed it in token of its correctness.
4. At the trial Sadiq appellant denying the above allegations gave his version of the occurrence in the following terms:- 'Our land was mortgaged with Nur Khan P. W. Father of Arif deceased. We got this land redeemed and cultivated cotton in it in Kharif, 1966. Nur Khan's Bhoosa had been attacked in my field a few days before the occurrence. There was a damage to my cotton crop of the same field in which there was a Bhoosa stack. The cotton had been picked during night from my field. Two days before the occurrence, Noor Khan P. W. Came to remove Bhoosa from the stack, I told him that be could remove the same in my presence and not during the night, as his cotton had been stolen and beth suspected that Noor Khan and his companions had picked the cotton. There was an altercation between me and him leading to exchange of abuses.
On the day of occurrence, Arif deceased and his father Nur Khan P. W. Came to our house and said why I had asked Noor Khan to remove Bhoosa fin his presence only, and that too during daytime.
Saying so, Arif attacked me with a sots, which he had brought with him and caused me injuries. I also, in self-defence, gave him a few injuries with a sota. The occurrence took place in front of our house, when the deceased came there for the purpose of attacking me. No occurrence took place in the Kamad field."
His brother Sher Muhammad and his father Hast Ali, acquitted accused, stated that they were not present at the time of the occurrence and had been falsely implicated in this case on account of their close relation with Sadiq appellant.
They, however, led no evidence in defence.
5. The prosecution had relied for its case on the testimony of Sardar Ali (P. W. 8), Ghaus Muhammad (P. W. 9) and Ata Muhammad (P. W. 10) for the ocular account of the occurrence, who have been disbelieved by the learned trial Judge on the ground that Sardar Ali and Ghaus Muhammad were close relations of the deceased and being the residents of a distant locality could not have been present at the spot at time of this occurrence, while Ata Muhammad P. W.
Could not be favourably disposed to the appellant as his younger brother Yar Muhammad was prosecuted in a theft case by a cousin of the appellant in which Noor Khan P. W. The father of Muhammad Arif deceased, had stood a surety for him, and that their evidence was extremely discrepant and inconsistent with their previous statements. These findings of the trial Judge were accepted as correct by the District Magis--trate, Sahiwal, while declining to file an appeal under section 417, Cr. P. C. Against the acquittal of the appellant and his co-accused for the offence under section 302, P. P. C. (Certified copy has been placed on record by the counsel of the private complainant in Criminal Revision No. 650 of 1968).
6. Mufti Nazar Muhammad, Advocate, appeasing on behalf of the State has not contested this finding and rightly as on going through the record, it has been revealed that Sardar Ali P. W. Was the first cousin of Noor Khan P. W. The father of Arif deceased, and Ghaus Muhammad P. W. Was his nephew as well as his son-in-law. The former resided at Chah Jindwala which was admittedly at a distance of eight squares from the spot while the latter was a cultivator at Chah Qaziwala in District Bahawalnagar. Both of them were chance witnesses, who had deliberately improved upon their earlier statements. They had originally suppressed the aggression of Arif deceased in the first information report, but after the doctor had certified the injuries found on Sadiq (appellant) they started attributing these injuries to Arif deceased as inflicted in self-defence, which was clearly an after--thought and betrayed their dishonesty. It was also conceded by these witnesses that the lands at Chah Mohriwala (place of occurrence) is owned by 5 to 6 families and the lands of Ghulam Rasool, Sher Muhammad and Sadiq Khan were adjacent to the place of occurrence. It was strange that neither of the owners of this land nor their tenants had been cited as witnesses of this occurrence, which had taken place in broad daylight in open fields quite close to their lands. Over and above this the Investigating Officer had found Hast Ali, one of the acquitted accused, as innocent and had shown him in column No. 2. The prosecution witnesses had thus from the very outset falsely implicated at least one innocent person (an old man of 70 years) in this case. Their evidence had, therefore, been rightly rejected by the trial Court. With the elimination of their evidence on the record- it had become a case of no evidence at all and the only A version of this incident which has been accepted by the learned trial Judge was that put forth by the appellant himself, depicting Arif deceased as an aggressor, who had attacked him (Sadiq appellant) at his house with a sota and inflicted two injuries on his person as borne out by the medical evidence on account of a very strong motive which has found corroboration from the prosecution evidence itself. It was urged by him (the appellant) that their lands were mortgaged with Noor Khan (father of Arif deceased) which they had got redeemed and cultivated cotton therein during the days of this occurrence and that Bhoosa of Noor Khan P. W. Had been stacked in one of his fields which he (Noor Khan P. W.) wanted to remove but was told by Sadiq appellant that he could do so in day time in his presence and not during the night as his cotton crop was being stolen by some one during those nights and he suspected him for the same. Noor Khan P. W. Had conceded all these facts as (P. W. 5) except that he denied having personally gone to take Bhoosa although he had admitted it before the Committing Magistrate in the following terms:- "A day or two before the present occurrence I went to take Bhoosa but the accused did not allow me to do so."
He was duly confronted with this portion of his statement before the committing Magistrate. The redemption of the land, the cultivation of which the complainant party had enjoyed for a pretty long time, must have offended them and this restriction on removing his Bhoosa only in day time in his presence must certainly have added injury to insult much to the annoyance of Arif deceased.
This admitted circumstance had thus lent sufficient corroboration to the story put forth by Sadiq appellant that Arif deceased had attacked him in retaliation for the same: The presence of blood stains on the wall of the house of the appellant which the Investigating Officer (Sadiq Ali) had himself secured vide Exh. P. R. Had further strengthened his plea so the learned Judge had rightly accepted the version put forth by the appellant, but he came to the conclusion that he had exceeded the right of private defence.
7. There was no doubt that section 99 of the Pakistan Penal Code had circumscribed the right of private defence by laying down that it in no case extends to the inflicting of more harm than necessary for purpose of defence but it depended on the facts of each case as to how much force or number of blows would be required to repel an assault giving rise to an apprehension of death or grievous hurt. The law relating to self-defence had thus made the victim of such an assault the Judge of his own, peril and permitted him to repel the attack even to the taking of the life of his assailant, so the Courts are to judge him by placing themselves in the same position in which he was placed as observed in Karim v. The State (PLD 1960 Lab. 990). In the present case the conviction of the appellant was based on his own admissions in his statement under section 342, P.
P. C. According to which Arif deceased had taken exception to the restrictions imposed by Sadiq appellant on the removal of their Bhoosa and annoyed over it he had come to the house of Sadiq appellant armed with a lathi and opened an attack on him by planting a blow on the middle of his head followed by another blow on the back of his leg indicating a persistent assault on the appellant which certainly involved the apprehension of at least a grievous hurt. In defend--ing himself against this violent attack Sadiq appellant had caused only four injuries to Arif deceased. A closer examination of these injuries noted by the doctor on the dead body of Arif deceased would however reveal that he was in fact given only two blows causing injuries Nos. 1 and 3, while the other two injuries (Nos. 2 and 4) were swellings only which apparently were not the result of any direct blow and appear to be either the result of internal damage or fall on the ground. Assuming for the sake of argu--ments that the appellant had given four blows, even then there was not much, disparity in the number of injuries suffered by the appellant and those inflicted by him in his defence as only one of these four injuries was declared dangerous to life. To hold that the victim of such an assault after inflicting a lathi blow on the head of his assailants in self-defence a little harder than necessary exceeded this right of feeling himself still in danger delivered one or two more blows to him would be placing a greater restriction on the right of private defence of the body than the law prescribed under section 99 of the Pakistan Penal Code required. In taking this view of the matter I am fortified by the following observations made in Ghulam Qadir v. The, State (PLD 1959 Lab. 753).
"While it is true that the right of self-defence in no case extends to the inflicting of more harm than is necessary for the purpose of defence, Courts have always viewed with indulgence the act of a person who in the heat of the moment, under a strong feeling of self-preservation working on him, pursues his defence a little further than is absolutely necessary. It is impossible for any individual for the purposes of his defence to measure in golden scales the exact amount of force which he should use in such a situation, nor can be expected to modulate his defence step by step."
This being the cardinal principle of the law relating to self-defence I am of the view that the circumstances of the present case would amply justify its application in favour of Sadiq appellant.
8. There is yet another aspect of the case which. Requires consideration. As pointed out above the evidence adduced by the prosecution was wholly disbelieved and the conviction of the appellant is solely based on his confessional statement made at the trial under section 342 of the Cr. P. C.
Which had to be taken in its entirety, if it was to be made the sole basis of conviction as held in Fazal Hussain v. The Emperor (AIR 1933 Lah. 665) and then In re: Ghulam Khan v. The State (PLD 1965 Pesh. 11) observing as under:- "The ocular evidence in this case having been disbelieved by the learned Sessions Judge the version of the appellant alone was in the field and the statement of the accused in the absence of any other evidence must be accepted or rejected as a whole. The learned Sessions Judge was not right in accepting only a portion of the statement of Ghulam Khan, wherein he admitted having caused the fatal injury, and in disregarding that portion of his statement which gave him the right of self---defence."
This view was endorsed by their Lordships of the Supreme Court in Meharban Shah v. The State (1969 SCMR 839). Where in a similar case it was observed as under:- "It was not open to the learned Judge, after having rejected the prosecution evidence as unreliable to dissect the accused---s statement and accept it in part and reject the rest of it in these circumstances.
It seems to us that this became really a case of no evidence and the conviction of the appellant, therefore, cannot be sustained, in the face of the finding that the three eye-witnesses in the case put forward by the prosecution had not told the truth on material points and were, therefore, not worthy of credence. There was nothing in the evidence on record to rebut the suggestion made by the appellant that he was the victim of the first shot fired during the incident."
10. This is what would precisely hold good in the present case as the entire prosecution evidence had likewise been rejected by the trial Judge and the version put forward by the appellant had been accepted as correct. He had, therefore, erred in accepting one part of his statement and rejecting the other. In view of the above discussion I accept this appeal and setting aside his conviction direct that Sadiq appellant shall be set at liberty forthwith, if not required in any other case.