' Appellant Ghulam Abbas was tried by Syed lqbal Hasan, Judge, Special Court for Speedy Trials, Karachi, for the offence under section 302, P.P.C. For having caused the death of Muhammad Afzal by means of knife. He was, however, found guilty for the offence under section 304(1), P.P.C. And sentenced to imprisonment for life and to pay a fine of Rs,25,000 or in default to suffer R.I. For one year. The appellant was further directed to pay a sum of Rs,50,000 as compensation to the legal heirs of deceased Muhammad Afzal. This judgment dated 15-1-1989 is the subject-matter of this appeal.
2. Appellant Ghulam Abbas and deceased Muhammad Afzal resided in Samundari, District Faisalabad. They had come to Karachi, and were staying in Room No,109 of Quetta Buland Hotel, Thokar Gali, Karachi, when this incident took place. On 12-4-1988, at about 1-45 a.m., Taufique Hussain Chowkidar of the said hotel heard cries from Room No,109. He knocked the door, but nobody responded. He, however, noticed blood coming out of room and immediately called a mobile police party. The police forced their entry in the room and found the dead body of Muhammad Afzal lying in a pool of blood. The appellant who was present inside the room was apprehended and crime weapons were recovered from his possession. Ch. Muhammad Rafique S.I.P. Then recorded 154, Cr.P.(.1 statement of Taufique Hussain which was sent to Napier Police Station, where it was incorporated in 154, Cr.P.C. Book. The blood-stained articles were seized from the place of Wardat and such memo. Was prepared in presence of Taufique Hussain and Choudhry Sarwar. On 13-4-1988, the appellant was produced before a 1st Class Magistrate, who recorded his judicial confession. All the blood-stained articles were sent to Chemical Examiner, Karachi, who found them stained with human blood. After completing the investigation the appellant was sent up.
3. At the trial the prosecution examined Taufique Hussain (P.W.1), Choudhry Sarwar (P.W.2), Muhammad Ashraf H.C. Agha Buland Bakhat (P.W.4), Muneeruddin A.C.M. (P.W.5), Dr. Hamid Ali- (P.W.6), Muhammad Ramzan Tapedar (P.W.7), and Choudhry Muhammad Rafique S.I.P. (P.W.8).
Number of persons were also examined as Court-witnesses.
4. In his statement recorded under section 342, Cr.P.C. The appellant denied the case of the prosecution by pleading innocence. He, however, admitted the killing of deceased Muhammad Afzal in his -mint recorded on oath, but justified it on the ground of exercise of right of proved defence.
5. On the assessm ent of evidence available on record, the learned Special Judge found the appellant guilty for the offence under section 304(1), P.P.C., and sentenced him accordingly.
6. I have heard M. Muhammad Anwar Tarique, learned counsel for the appellant and Mr. Rao Muhammad Shakir Naqshbandi, learned counsel for the State. The latter has supported the conviction recorded against the appellant.
7. The question that deceased Muhammad Afzal died an unnatural death on account of stab wounds is not in controversy. Besides the evidence of Taufique Hussain (P.W.1), Chowkidar of Quetta Buland Hotel, there is evidence of Dr. Hamid All (P.W.6) who has conducted autopsy on the dead body of Muhammad Afzal and on external examination found as many as 101 injuries on his person, resulting into his death. The appellant has himself not disputed this position.
8. The appellant has claimed a complete right of private defence under section 100, P.P.C., which lays down as follows:- "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 or 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.-- An assault with the intention of gratifying unnatural lust; ' ' ' Fifthly.-- An assault with the intention of kidnapping or abducting; ' Sixthly.-- An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release."
9. The burden of proof in a criminal case remains at all times upon the prosecution, and it is shifted upon the accused only in so far as an accused person may set up the existence of circumstances bringing his case within any of the general exceptions of the Pakistan Penal Code. Where the accused pleads an exception, then because of Article 121 of the Qanun-e-Shahadat, 1984, he must establish from the evidence the existence of such circumstances. No presumption can be drawn in favor of the accused in the absence of proof by him.
10. The appellant has pleaded that an attempt was made by deceased Muhammad Afzal to make an assault with the intention of gratifying unnatural lust with him, thereby making it a case of justifiable homicide within the meaning of description fourth of section 100, P.P.C. Quite admittedly the appellant was between 18 and 19 years of age when this incident took place. According to postmortem report deceased Muhammad Afzal was aged 25 years when he was murdered. Both appellant Ghulam Abbas and deceased Muhammad Afzal resided in the same room of the hotel.
These circumstances by themselves are not sufficient to hold that deceased Muhammad Afzal had made an attempt to commit sodomy upon the appellant. The judicial confession (Exh.24) of the appellant which was recorded on the following day of incident is silent about this aspect of the case. This plea was raised for the first time when the appellant put himself in the witness-box.
Obviously it is an afterthought and should be ruled out as tissues of lies not deserving any notice.
11. It is also the case of the appellant that he was first attacked by deceased Muhammad Afzal and in order to save his own life he took the life of deceased Muhammad Afzal. The prosecution is silent about the motive of this case. There is also no evidence on record to know about the manner in which the incident had started. In such a situation the confession of the appellant has to be accepted in its entirety and he is entitled to the benefit of mitigating circumstances. The cases C reported as Ahmad Din alias Ahmi v. The State PLD 1967 Lah. 649 and Muhammad Ahsraf v. The State 1985 P Cr. L J 181 are relevant.
12. Admittedly appellant Ghulam Abbas had six injuries on his person, but all were superficial and skin deep. It is to be observed that the right of private defence is always open to the general limitations imposed by section 99, P.P.C. Namely, (1) the defence must be proportionate to and commensurate with the nature of the attack, and the right does not extend to the causing of more harm than is necessary for the purpose of defence; and (2) the protection of the public authorities must be sought when there is time to do so. If a person who possesses the right of private defence, in fact, does no more than exercise it, he commits no offence; but if he exceeds the right, if in other words he kills another, when, in fact, it was unnecessary to kill, it is still a lesser offence than murder if his intention was to do no more harm than he believed necessary in the exercise of his right. The appellant has caused more than 100 injuries to deceased Muhammad Afzal, although after overpowering him it was unnecessary to kill him. The harm caused to him was certainly more than what was necessary. The second exception to section 300, P.P.C. Deals with cases of this nature.
Reliance may be placed upon cases reported as Shamshad v. The State PLD 1963 SC 740, Muhammad Shall v. The State 1976 SCMR 155 and Wazir v. The State 1979 P Cr. L J 835.
13. Having regard to the above factual and legal position, I am in agreement with the view taken by learned Special Judge. The conviction recorded against the appellant for the offence under section 304(1), P.P.C. Is maintained. The sentence awarded to appellant, however, appears to be excessive.
The appellant is a young person. Deceased Muhammad Afzal was instrumental in persuading him to leave the house of his parents. He had virtually spent all the money which the Appellant had borrowed. Taking all these factors into consideration, coupled with the mysterious circumstances leading to this incident, the sentence is reduced to R.I. For seven years and a fine of Rs,2,000 or in default R.I. For two months. The appellant is further directed to pay a sum of Rs,5,000 as compensation to legal heirs of deceased Muhammad Afzal or in default to suffer R.I. For five months. The appellant shall also be entitled to the benefit under section 382-B, Cr.P.C.
14. With this modification in sentence, the appeal is otherwise dismissed.