% Saad Saood Jan, J.--The appellant Sarwar and his brothers Anwar and Akbar were tried by the learned Sessions Judge, Lyallpur, for the murder of one Abdullah, deceased, Anwar and Akbar were acquitted whereas the appellant was convicted for an offence under section 302, P.P. C. and sentesced to transporta tion for life and a fine of Rs. 500. In default of payment of fine he was directed to suffer further rigorous imprisonment for a period of one year.
2. The occurrence took place on 8-6-1967 at 12-15 p.m. near a bohar tree in Killa No. 11 of Square No. 43 in Chak 296/ G. B. at a distance of three miles from Police Station Toba Tek Singh. At the time of the occurrence Anwar, brother of the appellant, and Muhammad Din (P. W. 9) were sitting under the bohar tree. Anwar (P. W. 8) son of the deceased came there. Anwar brother of the appellant abused Anwar (P. W. 8) and charged him with the theft of his radio. Anwar (P. W. 8) denied the allegation and returned the abuses. This led to a scuffle between them. On hearing the noise the deceased and Muhammad Shaft reached the spot. The deceased attempted to rescue his son.
This brought the appellant and his other brother Akbar also to the scene of occurrence. Anwar and Akbar caught hold of the deceased while the appellant took out a knife and stabbed him twice on the back. The deceased fell down and expired shortly thereafter.
3. Anwar (P. W. 8) reported the incident at Police Station Toba Tek Singh at 1-15 p.m. on the same day. The appellant and his brothers were arrested on the morning of the following day. The appellant was wearing a blood-stained shirt and chadar. These were taken into possession by A. S. I. Sultan Ahmad (P. W. 11) vide memo. Exh. P. B. in the presence of Bukhtiar (P. W. 6) and Rehmatallah (P. W. 7). After his arrest the appellant led a police party to his residential kotha and from there produced a blood-stained knife (Exh. P. 3) which was lying behind some picthers. This recovery was also witnessed by Bakhtiar (P. W. 6) and Rehmat Ullah (P. W. 7). The reports of the Chemical Examiner and the Serologist show that the clothes and the knife were stained with human blood.
4. The post-mortem examination of the deceased was con ducted by Dr. Abdul Waheed, Medical Officer Civil Hospital, Toba Tek Singh. The deceased had two stab wounds. One on the right side and the other on the left side of the back. As a result of the injuries the pleura and the lungs had been cut. These injuries were sufficient in the ordinary course of nature to cause death.
5. The doctor also examined Akbar brother of the appel lant. He had four or five minor abrasions scattered in an area*N>f 1J" x 1" on the right side of the front of neck and one abrasion x |" on the inner part of right clavicle. All the injuries were simple.
6. Anwar the other brother of the appellant, had also two abrasions on his person located on the left eye-brow and left cheek bone. [2]
8. The prosecution examined three eye-witnesses in support of its allegations. They are Anwar (P.
W. 8), Muhammad Din (P. W. 9) and Muhammad Shaft (P. W. 10). Anwar (P. W. 8) as - already indicated is a son of the deceased. Muhammad Din (P. W. 9) and Muhammad Shah (P. W.
10) are barbers and menials in the village. They have attributed the knife blows received by the deceased to the appellant. Their evidence receives confirmation from the recovery of blood- stained clothes and knife from the possession of the appellant. Thus there is no room for doubt that it was the appellant who killed the deceased.
9. Now it remains to be seen whether the appellant while attacking the deceased was exercising any right of private defence of body and further, if such a right was available to him whether he had exceeded the limits laid down by law for the exercise of that right. The case of the prosecution as stated by the eye witnesses was that the brothers of the appellant held the deceased while he inflicted two knife blows on the back of the deceased. This version does not conform to the medical opinion for it does not explain how Akbar happened to receive a number of abrasions on the neck.
Muhammad Din (P. W. 9) attempted to reconcile this conflict between the ocular and medical evidence by saying that the deceased and Akbar had grappled together and placed their hands on the neck of each other while they were standing. If this indeed were so then there should have been some injuries on the neck of the deceased as well. The doctor who conducted the post- mortem examination did not find any marks of violence on the neck of the deceased. Incidentally this admission on the part of Muhammad Din (P. W. 9) also goes against the prosecution version that the deceased was attacked by the appellant when his brothers were holding him.
10. On the other hand the injuries on the neck and shoulder of Akbar as well as those found on the person of the deceased tend to support the version of the appellant that the deceased had felled Akbar and was attempting to strangle him. If this indeed were so then the appellant had the right to intervene in order to protect his brother from possible injury. However, in the circumstances of this case we are unable to hold tl)at in an attempt to save his brother the appellant was entitled to cause the death of the deceased. It is not the appellant's case that the deceased and his son Anwar were carrying any weapon with them. The injuries on the neck of Akbar were of a minor nature and the deceased was only a moderately built person in his late fifties. It should not have been therefore difficult for the appellant and his brother Anwar to push off the deceased or even to overpower him. We are also not satisfied that the appellant could reasonably entertain any apprehension that the deceased was either going to kill Akbar or cause grievous hurt to him. This being so, the appellant exceeded the right of private defence when he attacked the deceased on his vital parts with a deadly weapon. We accordingly modify his conviction from one under section 302, P. P. C. to that under section 304, Part I of the game Code.
11. As regards the sentence at the time of the occurrence the appellant was of immature mind being sixteen years of age only. The occurrence was a sudden affair emanating from a dispute between his brother Anwar and a son of the deceased; thus the element of premeditation is entirely lacking here. In the circumstances we consider that the sentence already undergone by him will meet the ends of justice. We reduce his sentence accordingly and direct that he shall be set.at liberty forthwith if not required in any other case. .