1. ' The appellant was charged under section 302, P.P.C. And tried before the learned 1st Additional Sessions Judge South Karachi who has convicted and sentenced him to suffer imprisonment for life and to pay a fine of Rs,10,000 or in default to further undergo R.I. For two years.
2. ' The brief facts giving rise to the present appeal are that on 20-12-1985 one Syed Ali son of Habib Khan lodged a report at Police Station Jackson, Karachi, inter alia, alleging therein, that the Quarter of his brother Sadiq is adjoining to his Quarter. Today at 8-15 a.m. He was present in the Quarter when he heard noise of his brother Muhammad Sadiq as 'save me' whereupon he went running to the Quarter of his brother. Abbas Ali and Abdur Razzak also went to the Quarter with him and saw that his brother was lying on the cot having fresh marks of injury above stomach and was bleeding.
3. A boy named Bhawani Shankar son of Hari Ram was standing there having Chhuri in his hand.
4. Abbas Ali and Abdur Razzak snatched Chhuri from Bhawani Shankar. His brother told him that `he had taken loan from him and he had come to take loan today again, so I refused to give him loan, on this he took out Chhuri and gave the blow which has struck on my stomach'. On saying so his brother breathed his last. He apprehended Bhawani and produced him along with Chhuri at the police station.
5. ' The above F.I.R. Was recorded by Inspector Khan Afzal S.H.O. P.W.7. The F.I.R has been produced as Exh.7. He arrested accused and recovered Chhuri from him, and prepared such Mashirnama in presence of Mashirs Abdur Razak and Abbas Ali. The Mashirnama has been produced as Exh.9.
6. Thereafter he visited the Wardat in presence of the same Mashirs and prepared such Mashirnama, which has been produced as Exh.10. Thereafter he prepared inquest report of the dead body, and the same has been produced as Exh.11. He then referred the dead body of Muhammad Sadiq to Civil Hospital for post-mortem examination and report. Thereafter he recorded statements of P.Ws.
7. Syed Ali, Abbas Ali, Abdur Razak, Muhammad Nadeem, Abdul Ghafoor, Munshi Khan and Noor Mithammad. On 21-12-1985 he examined P.W. Hassan Ali. He also sent blood-stained earth, blood- stained clothes and blood-stained Chhuri to the Chemical Examiner. The chemical report has been produced as Exh.22. After necessary investigation the appellant was challaned before the Court.
8. ' A formal charge was framed against the appellant to which he pleaded not guilty.
9. ' At the trial prosecution examined complainant Syed Ali P.W.1, he has produced the F.I.R. As Exh.7, Abdur Razzak, an eye-witness, P.W.2, he has produced memo. Of arrest and recovery of cloths as Exh.9 memo. Regarding examination of dead body Exh.10, inquest as Exh.11, Abbas Ali, an eye- witness and co-Mashir P.W.3, Noor Muhammad P.W.4, Muhammad Rafi, an eye-witness P.W.5, Siraj Ahmed City Surveyor P.W.6, he has produced the sketch of Wardat as Exh.20, S.H.O. Khan Afzal investigating Officer P.W.7, he has produced-the chemical report as Exh.22, Dr. S.M. Nizamani P W 8, he had conducted the postmortem on the dead body of deceased Muhammad Sadiq and the post-mortem notes have been produced as Exh.25.
10. ' After the close of the prosecution case the statement of the appellant was recorded in which he has stated that he wanted to commit sodomy on him forcibly and, therefore, he snatched Chhuri from the hands of Muhammad Sadiq and stabed him in order to save his honour and life. The appellant also examined himself on oath as envisaged by section 340(2), Cr.P.C.
11. ' Complainant Syed Ali P.W.1 has fully supported the contents of his F.I.R. He has further stated in his cross-examination that the house where deceased was residing consists of three rooms and a courtyard. The wife of the deceased had expired about 12 years back and he was residing in the said Quarter alone. As soon as he entered in the Quarter he saw Muhammad Sadiq in the compound: He had shown that Charpai to the police. He denied a suggestion that when he reached at the spot he found his brother lying in the room where he used to sleep. He has denied a suggestion that the Pajama of deceased Muhammad Sadiq was lying inside the room. At the time when the dead body was removed to the hospital the clothes worn by the accused were Pajama and one open bushirt. He has admitted that he had not stated in the F.I.R. That accused Bhawani Shankar was produced at police station along with a Chhuri. He has denied a suggestion that said Chhuri belonged to deceased Muhammad Sadiq and that he had forced the accused on the point of Chhuri to allow him to commit unnatural offence. According to him, he had stated before the police that one month before the incident deceased had informed him that the accused had borrowed Rs,600 from him which amount was paid by him.
12. ' Abdur Razzak P.W.2, Abbas Ali P.W.3, Noor Muhammad P.W.4 and Muhammad Rafi P.W.5 have supported the ocular version of the complainant. The evidence of Abdur Raszak further shows that the accused was arrested by them along with the blood-stained Chhuri, and the police had prepared such Mashirnama which he and P.W. Abbas Ali had signed.
13. ' The learned trial Judge while relying upon the above ocular evidence, and recovery of blood- stained Chhuri and clothes has convicted the appellant as described above. The present appeal is directed against the said judgment of conviction.
14. ' I have heard the learned counsel for the appellant and learned counsel for the State and have gone through the R&P of the case.
15. ' It was contended by the learned counsel for the appellant that there was none present at the time when the incident started and the eye-witnesses produced by the prosecution have not said a word as to how the incident took place. It was further contended that the appellant was a young boy and the stand taken by him in his defence appears to be probable. It was supported by circumstances and therefore, he had complete right of private defence of his person and respect.
16. In support of his contentions the learned counsel for the appellant has relied upon PLD 1978 SC 200 and PLD 1965 Lah.
17. 553.
18. ' The learned counsel for the State has contended that there is no evidence to show as to how the incident started and the plea taken by the appellant could be probable. In view of the above circumstances he was of the view that since the accused was a young boy he could be given benefit of doubt regarding his plea of right of private defence.
19. ' I have considered the contentions of the learned counsel. There is no dispute as far as the incident was concerned. Even the learned counsel for the appellant has not seriously challenged the evidence produced by the prosecution. As far as the death of deceased Muhammad Sadiq was concerned, it stands proved through the evidence of Medical Officer and ocular evidence of complainant Syed Ali, P.Ws. Abdur Razzak, Muhammad Abbas and Noor Muhammad. Even the learned counsel for the appellant has not denied this aspect of the case.
20. ' The only question that remains to be decided by this Court is whether the accused had acted in exercise of right of private defence of his person. Section 100, P.P.C. Which relates to right of private defence reads as under:- ' Section 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 hereinafter enumerated, namely:- ' First.-- ........................................................................
21. ' Secondly.-- ....................................................................
22. ' Thirdly.-- .................................................................................................
23. ' Fourthly.-- An assault with the intention of gratifying unnatural lust; ' In the case of Ohazi Khan and another v. The State PLD 1965 (W.P.) Quetta 33 it was observed that: "For entitlement to the benefit of an exception meriting acquittal, the test is not whether the accused has proved beyond a reasonable doubt that he comes within any exception but whether in setting up any defence he has created reasonable doubt in the case of prosecution and thereby earned his right of acquittal Even if the evidence fails to satisfy the Court affirmatively of the existence of circumstances bringing the case within the exception pleaded, the accused will clearly entitle himself to acquittal if upon a consideration of the evidence, as a whole, a reasonable doubt is created in the mind of the Court (whether the accused is or is not entitled to the benefit of the exception)."
24. ' In the case of Muhammad Idrees v. The State PLD 1965 (W.P.) Lah. 553 it was observed that:- ' P.P.C. Sections 100 fourthly, 99 and 302 and Evidence Act section 105:- "Accused, a boy of 15 alleging to have killed deceased in self defence against deceased's attempt to commit sodomy. Absence of direct or indirect evidence to prove circumstances of murder.
25. Reasonable possibility that defence set up by accused might be true. Burden of establishing, right of self-defence in such circumstances can not be as heavy as burden resting on prosecution.
26. Context of circumstances of case not enabling Court to fix stage or point of time at which accused ought to have ceased causing further harm to deceased. Excess, if any, committed by accused condoned and conviction of murder set aside."
27. ' In the case of Najeeb Raza Rehmani v. The State PLD 1978 SC 200 it was observed that:- "the appellant had stated in his confession that he had fired at the deceased after the deceased had opened the string of his trousers. In other words, he had fired at the deceased after the deceased had attempted to commit sodomy on him, and under section 100, P.P.C. The right of private defence of the body extends even to the voluntarily causing of death, 'if the offence which occasioned the exercise of this right is ...... An assault with the intention of gratifying unnatural lust."
28. In view of the above discussion and the legal position it is clear that the appellant was a young boy while the deceased was a Rajput and a young sturdy man. He had taken the accused to his room on the pretext of getting him a job. He was living single and his wife had died about 12 years back.
29. Under these circumstances, the plea taken by the accused could also be probable, therefore, the accused had a complete right of private defence against the attack made by the deceased in order to commit sodomy on him. Therefore, while extending benefit of doubt I allow this appeal, set aside the conviction and sentence of the appellant and he is acquitted of the charge. He shall be released forthwith if not required in any other case.
30. ' I had decided the above case on 22-7-1987 by a short order and these are the reasons for the same.