' Muhammad Akram, Irshad Hussain and Khalid were tried by an Additional Sessions Judge under section 302/34, P.P.C. For the murder of Hamid Ghaffar. The learned trial Judge, by his judgment, dated 12-4-1980, convicted Muhammad Akram accused under section 304-1, P.P.C. And sentenced to life imprisonment and to pay a fine of Rs,3,000 or in default, to undergo further rigorous imprisonment for two years. The fine, if realised, was ordered to be paid to the father of the deceased. The appeal of Muhammad Akram convict is now before me for disposal.
2. The brief facts of the case need not be detailed here, as they are not relevant for the purposes of determination of this appeal. The learned trial Judge did not accept the prosecution evidence in the case, but relying upon the statement of Muhammad Akram appellant made before him under section 342, Cr.P.C. Convicted him. The said statement of the appellant reads as follows:-- "My sister Mst. Allah Jawai was a student of P.T.C. Class at Kamalia, District Faisalabad, which is the only institution for that training in the entire Sargodha Division. On the day of occurrence my sister was coming to her home. When she got down from the bus on the Gojra Toba bus stand at about 3 or 4 p.m. Near Chowk Choona Bhattian and was on her way to her home, the deceased, who used to ply a wagon from the same bus stand to Mann Bagh etc. Pursued her and teased her as a result of which she abused him and the deceased dragged my sister from her veil which was put off at that time. I happened to come there and saw the unfortunate scene. I lost all my self-control and intervened the deceased on which the deceased picked up a Chhuri from the nearby Rehri of a fruit-vendor and attacked me but I snatched the Chhuri from him and in self-defense and in order to save the honour of my sister I gave two blows to the deceased with the same Chhuri. The deceased fell down there and some passersby took him to the hospital. None of the P.Ws. Was present at that time. Later on the police and the complainant twisted the true facts and fabricated the present version to implicate me. My sister's name is Allah Jawai and not Kishwar Sultana."
3. The contention of the learned counsel for the appellant is that the deceased was attempting to rape the appellant's sister and in the exercise of the appellant's right to defend the person of his sister he caused the two fatal injuries to the deceased with the Chhuri of the deceased which he had snatched from his during the scuffle between him and the deceased. The learned counsel also contended that apart from the appellant's right to defend the person of his sister, he himself was also being attacked by the deceased with Chhuri, but he snatched the Chhuri from him and in self- defence caused two blows to the deceased with the same Chhuri. In these circumstances, the learned counsel contended that the appellant deserved a clear acquittal. The learned counsel for the appellant cited Ishtiaq Ahmad v. The State 1977 P Cr. L J 232, Munawar Hussain v. The State 1976 P Cr. L J 471 and Ishtiaq Ahmad v. The State 1977 P Cr. L J 549 in support of his arguments..
4. I have given my anxious consideration to this case. According to the appellant's own statement, the deceased pursued the appellant's sister from near Chowk Choona Bhattian, when she was on her way to her home, and he teased her, upon which she abused him and the deceased dragged her, apparently removing her veil. This incident took place in the open Bazar. When the appellant intervened, the deceased also picked up a Chhuri from the nearby Rehri of the fruit vendor and attempted to attack the appellant. The presence of the Rehri at the place shows that the spot of occurrence was an open public place and not any secluded spot. It cannot, therefore, be said that the deceased had any intention to rape the appellant's sister. In these circumstances, it cannot be said that the appellant had any apprehension that the deceased was about to commit an assault on his sister with the intention of committing rape. The appellant, therefore, had no right of private defence of the person of his sister to the extent of causing the deceased's death under Part Thirdly of section 100 of the Pakistan Penal Code. This now leaves me with the question whether the deceased had the right of private defence of his own body to the extent of causing the deceased's death. There cannot be any doubt that initially the appellant did have such apprehension that grievous hurt would he caused to him by the deceased's assault, considering that the deceased picked up a Chhuri to assault him, but no sodner the appellant Was able to snatch the Chhuri from him, the deceased became completely unarmed and any further apprehension of grievous hurt dissipated. The appellant inflicted two severe stab wounds on the deceased's person after he was unarmed. It cannot, therefore, be denied that he exceeded his right of private defence. In these circumstances, the appellant appears to have been properly convicted under I section 304-1, P.P.C
5. The only question that now remains is the question of sentence. The appellant has been sentenced to life imprisonment, which appears to be harsh, considering that the appellant was subjected to an assault which at one stage gave him a reasonable apprehension that grievous hurt would be caused to him. In Ishtiaq Ahmad v. The State 1977 P Cr. L J 549, where the appellant, in exercise of his right of defence of person and chastity of his sister, had picked up a knife and had attacked the deceased and inflicted six sharp-edged injuries on him, was held to have exceeded his right of defence of the person of his sister, the appellant was awarded three years' rigorous imprisonment, Taking all circumstances into consideration and the fact that the appellant at the time of commission of crime was 17 years of age, I would reduce his sentence to three years' rigorous imprisonment. In view of section 382-B, Cr.P.C. The detention undergone by the appellant as an under-trial prisoner shall be treated as detention undergone by him as a convict.
6. In view of the above, this appeal is partly accepted in terms of the reduction of sentence, as stated above.
Appeal partly accepted.