Rahim Bakhsh appellant was convicted under section 304, P. P. C, and sentenced to five years' rigorous imprisonment and a tine of Rs. 500. In default of payment of line he was ordered to undergo six months further rigorous imprisonment.
2. The occurrence took place on 16th of December 1969 in the area of Chah Kirawala in Mauza Mustafariq Chahan, in Police Station Choti, District Dera Ghazi Khan. There were two reports lodged in this case. One Exh. P. J. By Azim the brother of the appellant which was made on 16th of December 1969, ;i 12 noon and the other Exh. P. A. On the basis of which this case proceeded, by Chandi (P. W. 4) the son of the deceased, on the s me day at 3-30 p.m.
3. The deceased and the appellant owned Chah Karawala jointly with others. On the morning of the day of the occurrence, Imam Bakhsh deceased along with his son Chandi (P. W. 41, Hamal (P. W. a) and Kalu (P. W. 6) was carrying on the repairs of the well. The appellant Rahim Baklish was weeding his feld nearby. He was called by the deceased to the well and was asked to contribute his share towards the repairs. There was art altercation between the two and both the deceased and the appellant took out the wooden dandas called teers which support the persian wheel. They started fighting and gave blows to each other. Both the appellant and the deceased fell down and were later on taken to the hospital where they were examined for their injuries. Imam Bakhsh died in the Civil Hospital, Choti at 9 a.m. On 19th December 1969. The deceased lead in all four injuries out of which injury No. 1 which had resulted in the: fracture of the head-bone proved fatal. The appellant had one V shaped injury on his forehead about '" above the left eyebrow.
4. The case of the defence, as it appears in the F. I. R Exh. P. J. Lodged by Azim the brother of the appellant, from the trend of the cross-examination and the statement of the appellant, was that there was an exchange of hot words between the deceased and the appellant resulting in a scuffle. Both the appellant and the deceased, according to the defence story, were injured at the hands of Chandi P. W. The son of the deceased. I need not waste any time in examining this defence plea which is preposterous oil the face of it. Chandi could not have given fatal injuries to his own father. The learned trial Court rightly rejected this defence.
5. The question, however, is whether the prosecution has been able to bring home the offence to the appellant. At the trials Chandi (P. W. 4), Hamal (P. W. 5) and Kalu (P. W. 6) appeared to support the prosecution case. Both Kalu and Hamal in their statements before the trial Court had not said that Chandi was present at the time of the occurrence. The learned trial Judge discarded his testimony for this reason. He, however, relied upon the statements of Hamal and Kalu P. W. In coming to the conclusion that there was exchange of blows. He held that the case fell within the ambit of Exception IV to section 300, P. P. C. He observed that it was unnecessary to deal with the argument of the learned defence counsel based on the testimony of Hamal (P. W. 5) that the deceased having committed the first assault, the accused had a right of private defence of his person. In my view, this was the crucial question which should have been squarely dealt with by the learned Sessions Judge. Hamal had clearly stated in his examination-in-chief that the deceased was the first to attack the appellant and it was in retaliation that the appellant gave him blows.
Kalu P. W. Had stated otherwise. There is no doubt that Hamal was cross-examined by the Public Prosecutor in the midst of cross-examination by defence but the fact that his statement made in examination-in-chief to the effect that the deceased was the aggressor remained unchallenged, would lend support to the plea that he was hot declared hostile for making this statement. The case of the prosecution witnesses before the police was that both the deceased and the appellant had simultaneously picked up the same type of weapons. The plea of self-defence raised by the appellant gets clear support from the evidence of Hamal (P. W. 5) who had admitted before the committing Magistrate that the deceased Imam Bakhsh was his uncle. It cannot, therefore, be said that the admission that Hamal had made at the trial was elicited from him on account of some pressure of persuation on behalf of the appellant. The law o self-defence as contained in section 100, P. P. C. Is clear and gives a person who apprehends a grievous hurt, a right to cause the death of his assailant. The evidence of Hamal indicates that the deceased caused a head injury to the appellant in the first instance with a wooden plank. It will be, therefore, legitimate to presume that the appellant apprehended at least a grievous hurt at the hands of the deceased. He could, therefore, in the exercise of right of private defence go to the extent of causing the death of the latter.
6. For the foregoing reasons, the plea of self-defence raised by the appellant prevails. I direct that his conviction and sentence shall be set aside and he be released forthwith unless he is required to be lawfully detained in some other case.