1. SALAHUDDIN AHMED, J.-This appeal, by special leave, is from the judgment and order of a Division Bench of the erstwhile High Court of West Pakistan, Lahore, acquitting respondents Nos. 1 to 4, namely, Boota, Muhammad Sharif, Muhammad Hanif and Muhammad Hussain, of the charges framed against them. Leave was granted to examine the question whether the respondents were entitled to raise the plea of self defence, and also to re-examine the entire evidence in order to see what offence, if any, was committed by the respondents.
2. Earlier the respondents had been convicted and sentenced by the learned Sessions Judge in the following manner:--- Respondent No. 1, Boota under section 302 of the Code to death.
3. Respondent No. 2,Muhammad Sharif under section 325 of the Code to rigorous imprisonment for two years.
4. Respondent No. 3,Muhammad Hanif under section 323 of the Code to rigorous imprisonment for one year.
5. Respondent No. 4,Muhammad Hussain under section 323 of the Code to rigorous imprisonment for one year.
6. The prosecution case was that on the 14th of July 1967, at Peshiwela Muhammad Din, brother of Shah Din and an employee of P. W. Muhammad Hanif, had left loose the cattle of P. W. Muhammad Hanif in the cotton field of respondents Muhammad Hussain and Muhammad Sharif. This was objected to by the two respondents, and it resulted in an altercation in which respondents Muhammad Hussain and Muhammad Sharif gave stick blows to Muhammad Din. Muhammad Din informed his father P. W. Bhag Din about this incident, and the latter informed P. W. Muhammad Hanif about it. P. W. Muhammad Hanif called respondents Muhammad Hussain and Muhammad Sharif and reprimanded them. The respondents appeared to have felt insulted and on the same day at Digarwela they along with the other two respondents came armed with a spear and sticks and attacked Shah Din (deceased), and P. Ws. Bhag Din and A.I Bakhsh. Respondent Boota struck the deceased on the abdomen with a spear. Respondent Muhammad Hussain also gave a stick blow to the deceased, respondents Muhammad Hanif and Muhammad Sharif struck P. Ws. A.I Bakhsh and Bhag Din with their sticks. The occurrence took place while P. W. Bhag Din was feeding his cattle in front of the Ihara of respondent Muhammad Sharif and Muhammad Hussain, and Shah Din and P. W. A.I Bakhsh were also present there. Besides P. Ws. Bhag Din and A.I Bakhsh, P. Ws.
7. Muhammad Shafi and Abdul Latif also witnessed the occurrence. Shah Din was placed on a charpoy and he was taken to the Civil Hospital, Vehari, in a bus. On receiving an information from the doctor in the hospital, P. W. 13 A. S. I. Muhammad Akram arrived at the hospital and recorded the statement of Shah Din which was treated as a first information report, and later on his death on the 16th of July 1967, as a dying declaration. The statements of P. Ws Bhag Din and A.I Bakhah were recorded in the hospital. On the following day at 1 p m. The police officer inspected the spot and took into possession the blood-stained earth. The same day in the afternoon the four respondents were produced before the investigating officer by a constable and they were arrested. It may be stated here that this constable was not produced as a witness. Respondent Boota at the time of his arrest produced a blood-stained spear (Exh. P. 1) at the place of occurrence, and it was duly seized.
8. Subsequently, the spear was found to be stained with human blood. Similarly respondent Muhammad Hussain at the time of his arrest produced a stick (Exh. P. 2) at the place of occurrence, but it was not blood-stained.
9. The medical evidence disclosed that Shah Din had suffered a stab wound of entrance 2' x 1 penetrating into the abdominal cavity on the left side of abdomen, and a portion of the intestines had come out through this wound. There was also a wound of exit 1 --" x 1' on the right side of abdomen and a portion of the intestines had also come out through this wound. The deceased had also suffered a lacerated wound -- x 1 /6' x , 1/6' on the back of his left forearm. According to the doctor injury No. 1 was fatal and it was caused by a sharp-edged weapon with a pointed edge.
10. On the same day P. Ws. A.I Bakhsh and Bhag Din were examined. A lacerated wound was found on the right side of the head of P. W. A.I Bakhsh. He had a contusion on the back of the left forearm with fracture of the ulna bone, and an abrasion on the right forearm. P. W. Bhag Din had three contusions, one on the right arm, another on the right forearm and the third one on the left buttock.
11. He also had three abrasions, one on the right side of the chest, another on the back of the neck and the third one on the left side of back.
12. P. W. Muhammad Din was examined on the 15th of July 1967, and he was found to have received two abrasions, one on the right side of neck and the other on the left arm. He also had a lacerated wound on the left index finger. This lent support to the prosecution case about the earlier incident in which P. W. Muhammad Din had been beaten by respondents Muhammad Hussain and Muhammad Sharif.
13. The respondents pleaded not guilty to the charges framed against them. Respondents Muhammad Hanif and Boota said that they were not present at the occurrence and they were falsely implicated due to their relationship with respondents Muhammad Hussain and Muhammad Sharif. Respondent Muhammad Hussain set up a case of right of private defence and he alleged that the deceased along with P. Ws. Bhag Din and A.I Bakhsh came to their house and dragged out his wife, Mst. Hanifan, in order to publlicly insult tier. Her brother, respondent Muhammad Sharif tried to rescue her, and he was given a spear blow by Shah Din deceased. Respondent Muhammad Sharif snatched the spear from Shah lain arid gave the latter a spear blow. Just before this Shah Din had taken the stick from P. W. A.I Bakhsh and hit respondent Muhammad Sharif and fractured his little finger. Respondent Muhammad Sharif advanced the same plea and said that H hale trying to save his sister Mst. Hanifan, Shah Din gave him a spear blow in the abdomen and also struck him with a stick fracturing his little finger. He said that in self-defence he inflicted a spear blow to Shah Din and that respondent Muhammad Hussain struck P. Ws. Bhag Din and A.I Bakhsh in self-- defence.
14. The respondents are all inter-related. Muhammad Sharif and Muhammad Hanif are brothers and their sister is married to respondent Muhammad Hussain. Respondent Boota is the nephew of respondent Muhammad Hussain.
15. The trial Court held that the motive lay with the complainant-party on account of the earlier incident in which Muhammad Din son of P. W. Bhag Din had been beaten by respondents Muhammad Sharif and Muhammad Hussain. The trial Court further found that save and except the present occurrence there was no previous enmity between the parties. The learned Judges of the High Court do not appear to have disagreed with this view of the trial Court. They, however, felt that although the plea of the right of private defence has not been established the likelihood of the existence of such a right could not be excluded. In support of this view of the High Court it may be stated that the motive to take revenge appears to have existed on the side of the complainant party rather than that of the respon--dents. The evidence shows that Mst. Hanifan was injured.
16. According to the medical evidence she had two bruises, one 2-- x 1" on the left side of the back on the lumber region, and the other 4" x 1' about --" below the first injury. The medical officer who examined her was not asked at all whether the injuries were self suffered. Her presence at the place of occurrence which has been admitted by at least one prosecution witness, namely, P. W.
17. Muhammad Shafi also indicates that the occurrence might have taken place nearer the house of respondent Muhammad Hussain rather than the house of P. W. Bhag Din. In these circumstances the possibility of the respondents acting in self defence to protect the honour and person of Mst.
18. Hanifan cannot be altogether ruled out. It may be mentioned here that although Muhammad Sharif alleged that he was injured with the spear in the abdomen and also sustained a fracture of his little finger, there is nothing on record to show that he was, in fact, injured at all. The investigating officer P. W. 13 A. S. I. Muhammad Akram has categorically stated that it was incorrect that Mst. Hanifan and Muhammad Sharif had appeared before him and that they had complained of any injury to them. The A. S. I., however, admitted that Mst. Hanifan had appeared before him on the 18th of July 1967, for the first time and complained that she bad injuries on her person and that while he was preparing her injury statement the Deputy Superintendent of police arrived at the spot. Respondent Muhammad Sharif never submitted himself to any medical examination as Mst.
19. Hanifan did and he never showed his injury to any person.
20. The observations of the learned Judges of the High Court that all the circumstances of the case indicate that there was a mutual fight in which the deceased, P. Ws. Bhag Din and A.I Bakhsh suffered injuries on the one side and Mst. Hanifan and respondent Muhammad Sharif on the other are not based on any evidence, for as I have already stated, there is not an iota of evidence to show that respondent Muhammad Sharif was at all injured in the occurrence. The learned Judges have relied on certain inadmissible pieces of evidence to arrive at the c inclusion that respondent Muhammad Sharif had been injured. These evidence consist of certain statements said to have been made by P. W. Muhammad Shafi before the committing Magistrate, namely, that respondent Muhammad Sharif had revealed before the Assistant Sub-Inspector that he had been struck on the naval with the spear and that P. Ws. Bhaig Din and A.I Bakhsh had sticks with them. The evidence before the committing Magistrate was never brought on record under section 288 of the Code of Criminal Procedure and therefore, they were not substantive evidence upon which any finding could be based.
21. Respondent Muhammad Sharif, in his statement under section 342 of the Code of Criminal Procedure has not only admitted his presence at the place of occurrence but also the presence of P. Ws. Bhag Din, A.I Bakhsh and Shah Din deceased and also the fact that Shah Din received a spear blow.
22. Among the four eye-witnesses who deposed in favour of the prosecution case, two of them, namely, P. Ws. Bhag Din and A.I Bakhsh were themselves injured and, therefore, their presence at the place of occurrence cannot be doubted. All the eye-witnesses implicated the four respondents including Boota and Muhammad Hanif and to none of the witnesses it eras ever suggested that Boota and Muhammad Hanif were not present at the occurrence. In these circumstances the belated denial of Boota and Hanif that they were not present at the occurrence has no significance.
23. So far as respondent Boota is concerned his presence at the occurrence stands corroborated by his production of a spear stained with human blood at the time of his arrest before P. W. 13 A. S. 1.
24. Muhammad Akram. The police officer was not cross-examined regarding the production of the spear by Boota. The ocular evidence proves that Shah Din deceased was injured in the abdomen with a spear by Boota. To two of the eye-witnesses, viz.. P. W. 9 Muhammad Shafi and P. W. 12 Abdul Latif it was not even suggest--ed that it was Muhammad Shafi and not Boota that gave the spear blow to Shah Din deceased. The other two eye-witnesses, viz, P. Ws. Bhag Din and A.I Bakhsh denied the suggestion that Muhammad Shafi gave the spear blow to Shah Din. The spear injury in the abdomen of the deceased has been corroborated by the unchallenged medical evidence. At least two of the respondents, namely, Muhammad Sharif and Muhammad Hussain admitted that Shah Din was injured with a spear, and this further cor--roborated the ocular evidence that Boota caused the spear injury to Shah Din deceased.
25. As regards respondent Muhammad Sharif the ocular evidence of three witnesses including the injured himself proves that Sharif struck P. W. A.I Bakhsh with a stick on his ark. The medical evidence shows that P. W. A.I Bakhsh, a 70 years old man, sustained fracture of the ulna bone of his left forearm.
26. The allegations against the two other respondents, namely, Muhammad Hanif and Muhammad Hussain are that while the latter struck Shah Din deceased with a stick the former struck P. W. Bhag Din with a stick and caused him simple injuries. P. W. Muhammad Shafi, however, does not implicate respondents Muhammad Hanif and Muhammad Sharif in any beating.
27. The question now is that if the possibility of the existence of the right of private defence of person on the part of the respondents cannot be excluded whether the respondents have committed any offence, and if so what? With due deference to the learned Judges of the High Court it seems to me that they have simplified the whole matter by saying that the plea of the respondents has not been established, yet it has created a doubt with regard to their guilt, and, therefore, there was no other alternative but to set aside the convictions and sentences of all the respondents. Upon their own findings the learned Judges should have given the benefit of the right of private defence of person to the respondents and then proceeded to consider whether they had exceeded the right and if so what offence they had committed.
28. The right of private defence of person is not an unlimited right. It is subject to certain restrictions as provided in the Pakistan Penal Code. The relevant provisions of the Code that are applicable to the facts of the present case are as follows :--- Section 97.-Every person has a right, subject to the restrictions contained in section 99, to defend.
29. First.-His own body, and the body of any other person, against any offence affecting the human body.
30. Section 99.-The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.
31. Section 100. The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the volunt--ary 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.-Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault ; Secondly.-Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise, be the consequence of such assault ; Thirdly.-An assault with the intention of committing rape ; Fourthly.----.
32. Fifthly.-An assault with the intention of kidnapping or abducting ; Section 101.-If the offence be not of any of the descriptions enumerated in the last preceding section, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in section 99 to the voluntary causing to the assailant of any harm other than death.
33. Section 102.-The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed ; and it continues as long as such apprehension of danger to the body continues.
34. Applying the principles contained in the provisions of law quoted above to the facts of the present case it is pertinent to note that there is no evidence to show that the complainant party was in any way armed. Even the injury to Mst. Hanifan could not be affirmatively attributed to any weapon, for no body has seen her being struck. No other person on the side of the accused party was injured at all. For all practical purposes all the injuries were on the side of the complainant party with Shah Din killed, and P. W. A.I Bakhsh having sustained a fracture in his arm. There is nothing to show that the case fell within the mischief of section 100. Assuming that the provisions of section 101 are attracted they are subject to section 99, which says that "the right of private dcfence in to case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence".
35. Giving the respondents the full benefit of doubt as regards the right of private defence of person I am of the opinion that respondent Boota has clearly exceeded the right of private defence by putting a spear through and through into the abdomen of Shah Din deceased, a sixteen years old boy. On the facts and circumstances of the case although the act might be without premeditation it was not with the intention of doing more harm than was necessary for the pure; se of the defence. Snah Din and his companions were unarmed and, therefore, respondent Boota did take undue advantage and acted in a cruel or unusual manner. There is, however, another aspect of the case so far as respondent Boota is concerned. If Mst. Hanifan, aunt of Boota, was insulted and struck by a member of the complainant party it was likely that Boota was deprived of self control by the grave and sudden Provocation, and his act would then not amount to murder but fall within the m4 chief of section 304, Part I of the Pakistan Penal Code. Boota in my opinion is thus guilty of culpable homic de not amounting to murder under section 304, Part I of the Pakistan Penal Code.
36. As regards respondent Muhammad Starif he appears to have used his stick only once upon P. W.
37. A.I Bakhsh although it unfortunately resulted in the fracture of the latter's ulna bone of the left forearm. If the full benefit of the right of private defence of person of Mst. Hanifan is given to him he must be held fully protected by the right of private defence.
38. Similarly, respondent Muhammad Hussain who gave a stick blow to Shah Din deceased and respondent Muhammad Hanif who struck P. W. Bhag Din wish a stick and caused him simple injuries must be held to be fully protected by the right c f private defence.
39. SALAHUDDIN AHMED, J.-I agree.