Muhammad Yaqoob alias Mugi has been convicted under section 304, Part 1, P. P. C. And sentenced to transportation for life by the learned Sessions Judge, Multan, for having caused the death of Muhammad Bakhsh on 9-5-1969 in Mohallah Bhedi Sarai, Multan City. He has filed this Appeal against the conviction and sentence.
2. Haji Bashir (P. W. 12) who is an eye-witness has described the occurrence 1n examination-in- chief as follows:--- "I run a shop of milk and curd at Haram Gate. Nine months ago at 6-15 p.m. 1 was returning home after closing my shop. When I reached P.I Kotanian, I saw Muhammad Bux deceased coming from the opposite side. At the bridge Mughi Yaqub, Moodi accused present in the Court was sitting on a cot and he called the deceased saying why the deceased had beaten him some days back. The deceased replied that he had no quarrel with him if he paid him Rs.
5. At this the accused took out his knife either from his pocket or the fold of his loin cloth and stabbed the deceased with it in the belly. When the accused tried to inflict another injury with his knife to thedeceased I caught hold of his hand with which he was holding the knife, and pulled hint back. Taju Kotana pulled back the deceased who and the accused were quarrelling. Bodlay Shah was cooking rice at a distance of eight or ten paces and he had also seen the occurrence. The accused got himself released from my grips and said that he would stab whoever came near him and that he had taken his revenge.
The accused ran away towards his house. The deceased removed his shirt and asked Bodlay Shah to tie it round his wound which Bodlay Shah did."
3. After the injury of the deceased had been bandaged, he requested Maqbool Hussain (P. W. 10) to take him to his brother's shop as he had been injured by Yaqoob alias Mugi. Consequently, he was taken to his brother Allah Bux (P. W. 8), by Maqbool Hussain on his bicycle. At the shop of Allah Bux, the deceased, according to Maqbool Hussain, P. W. Told his brother that he had been stabbed in the belly by the appellant at Tibbi Kotana. Allah Bux (P. W. 8), the brother of the deceased, stated that he was working as servant of Haji Yar Muhammad at his milk-shop when his brother was brought there by Maqbool Hussain in an injured condition on a bicycle and that Maqbool Hussain and his brother both told him about the culprit. The deceased was in semi-conscious condition, therefore, he requested his brother to take him to the hospital immediately. He was first admitted to the Civil Hospital but Allah Bux, on medical advice took him to the Nishtar Hospital, where the police reached at 9-15 p.m. And recorded report of Allah Bux. It is Exh. P. A. Subsequently, the case was registered by Police Station Haram Gate (Distance 1-- furlongs) at 10-05 p,m. During the investigation knife P/1 which was found to have been stained with human blood was dug out from a khola (near the house of his uncle) at the instance of the appellant.
4. At the trial Haji Bashir Ahmad and Abdullah Shah alias Bodlay Shah (P. Ws. 12 and 13 respectively) gave ocular account of the occurrence; Allah Bux and Maqbool Hussain aforementioned (P. Ws. 8 and 10) and Haji Khalil Ahmad (P. W. 9) the shopkeeper, at whose shop near the place of occurrence, the injury of the deceased was bandged, deposed about the oral dying declarations made by the deceased at different stages, wherein the appellant was implicated, and Syed Wazir Shah and Sher A.I A. S. I., P. Ws. 7 and 14 respectively) proved the recovery of the knife, at the instance of the appellant. Medical evidence is contained in the statement of Dr. Abdul Wahid (P. W.
18) who examined the deceased in injured condition on 9-5-1969 at 7-30 p. m. He observed as follows :---- "1. A stab wound 1/4" x 1/8------ not probed, a small mass of omentum coming through the wound, on the right side of abdomen 1" from midline and 1" above the umbilicus. There was a cut in the vest he was wearing. The wound was going into the abdominal cavity. Patient was complaining of pain in the abdomen. His vest was marked, signed and given to the police. Pulse was quick and patient was in shock. The injury was grievous and dangerous, and caused by sharp-edged weapon and was fresh."
The same Doctor performed the post-mortem examination on 11-5-1969 at 10-30 p. m. And found the same injury as described above as also a stitched wound of operation. On opening the abdomen he found the stomach injured. It contained 3 ounces of dark coloured thick fluid. The injury was sufficient, in the ordinary course of nature, to cause death and it had been caused about 24 hours before the death. The duration between the death and post-mortem was 12 to 18 hours.
5. The appellant when examined under section 342, Cr. P. C. Denied all the allegations. He denied at the trial that he was known as Mugi or Moodi. The recovery of the knife P/1 was also denied. When asked to explain the case against him he stated that he did not know about it arid further that Haji Bashir Ahmad (P. W. 12) was his enemy and he had got him falsely implicated in this case. No evidence, however, was produced in defence.
6. Learned trial Judge, specifically discussed and relied upon the statements of the two eye- witnesses namely; Haji Bashir Ahmad and Abdullah Shah alias Bodlay Shah (P. Ws. 12 and 13 respectively), as also the recovery of the blood-stained knife from the appellant. He also discussed and repelled the criticism of the learned defence counsel on the statements of eye-witnesses about oral dying declarations but did not in so many words mention that he for purpose of convicting the appellant relied on this piece of evidence. With regard to other eye-witnesses tamely; Mubarik A.I and Muhammad Hussain, learned trial Judge observed that "they were given up by the A. P. P. Under some misunder--standing that they had not to give ocular evidence" and "these witnesses were given up as unnecessary". This circumstance of giving up these witnesses, according to the learned Judge was not fatal to the prosecution case, as the other eye-witnesses were re-admission before the committing Magistrate made by Haji Bashir Ahmad (P.W 12) that "during the grappling accused fell down and the deceased got over him" and gave the finding that in order to rescue himself the appellant gave the solitary blow to the deceased hit while doing so he exceeded the right of private defence; therefore, his (ease fell within exception (2) to section 300, P. P. C. That being so, the appellant was convicted under section 304, Part I, P. P. C. With the maximum sentence of transportation for life.
7. I have gone through the evidence and have heard the learned Counsel for the appellant and the State. Learned counsel for the appellant criticised all the items of evidence andtried to argue that the appellant was not involved in this Occurrence, and therefore, he was entitled to acquittal on this basis. He also argued, in the alternative that on the finding of fact given by the learned trial Court, the appellant is entitled to complete right of private defence therefore, lie should have been acquitted on that score as well.
8. I have not been impressed by the argument, advanced by tile learned counsel for the appellant on the question of identity of the appellant that there is some confusion in the prosecution evidence about the alias with the name of the accused. No doubt, he has been described as Moodi and Mugi, and there are some discrepancies in this behalf, but that byitself is no ground for discarding the ocular account and/or the identity of the assailant disclosed by the deceased himself. There is a chance of anhonest mistake with regard to the pronunciation and spelling of the words Moodi, Muddi and Mugi. Even when the learned counsel for the appellant was arguing the case and uttering these words, I confused one withthe other, at times. There would have been some force in the argument of the learned counsel if it could be established that the appellant was known by his name Muhammad Yaqoob only and not by any alias at all. Though an attempt was made in his statement before the learned Sessions Court to do so but the appellant had, when examined before the learned committing Magistrate, himself given his particulars as a Muhammad Yaqoob alias Mugi. I have, therefore, no doubt that when the witnesses stated that the appellant was also known by the alias of Mugi orMuddi, they did not tell a lie nor there was any doubt about the identity of the accused.
9. Similarly, the learned counsel tried to build a new argument with regard to the place of occurrence, particularly, on the basis of his assertion that the blood-stained earth was not taken into possession. Soon after the injury, as a result of which bleeding though profusely must have been internal, the deceased ran to a nearby shop where his injury was bandaged and then he was removed to his brother's shop. In these circumstances, it is not certain as to how much blood would have fallen at the spot where the deceased received the injury. With regard to the other arguments advanced by the learned counsel for the appellant, relating to the names of the mohallas/localities and the roads around the place of occurrence, after scrutiny of the site plan in this behalf, learned counsel did not press the point any further. He, however reiterated all the arguments which were advanced before the learned Sessions Judge against the evidence relating to recovery, dying declarations and the ocular account. All these arguments were noticed by the learned trial Judge. They were repelled with cogent reasons. It has not been shown before me as to why the reasoning of the learned trial Judge who saw the witness should not be accepted. On these items of evidence, I have no reason to differ with the learned trial Judge, subject, of course to two reservations. After repelling the criticism of defence on the question of oral dying declaration, there was ample justification for relying on this piece of evidence. A careful reading of the statements made by Allah Bux, Haji Khalil and Maqbool Hussain (P. Ws. 8, 9 and 10 respectively) would show that they were natural witnesses and leaving aside small flaws attributable to lapse of memory, there is a ring of truth about them. I would treat this item of evidence (dying declarations) proved against the appellant. The second reservation is about Abdullah Shah alias Bodlay Shah (P.
W. 13), whose statement as an eye-witness has been accepted by the learned trial Judge. This witness made the following admission at the trial;--- "I was in Basta `Bay' when I was young man but now my name is not in Basta `Bay'. This is correct that in 1969 I was bound down under section 109, Cr. P. C. In Mirpur Khas. This is correct that I was bound down under section 109, Cr. P. C. At Multan in 1963. This is correct that in 1964 I was convicted and sentenced under sec--petition 454/380, P. P. C. By Nazir A.I, A. D. M., Multan but that case was false. I do not remember if I was challaned twice under the Gambling Act. I do not remember if ever I was convicted in any offence and sent to jail."
Even though " the learned trial Judge has discussed the statement made by this witness on its merits and thought that it can be relied upon, in view of the past conduct and character of this witness I would not consider it safe to rely on his statement. Therefore, by way of abundant caution, I prefer to keep it out of consideration. The remaining evidence namely account of occurrence given by Bashir Ahmad (P. W. 12), proof of dying declaration by Allah Bux, Haji Khalil Ahmad and Maqbool Hussain, P. Ws. And the proof of recovery of blood-stained knife by Syed Wazir Shah and Sher A.I P. Ws. Is more than enough to give finding that the appellant has correctly been identified and held responsible for causing the death of Muhammad Bux deceased.
10. On the legal question as to whether in the circumstances of this case, the appellant is entitled to complete right of private defence, the following case-law has been cited from both the sides :----- Safdar A.I v. The Crown PLD 1953 FC 93.
Inayat Ullah v. The State PLD 1968 Lab. 1380.
Muhammad lshaque and another v. The State PLD 1964 Pesh. 143.
Imam Bakhsh v. The State PLD 1961 B J 22.
Sardari Lal v. Emperor AIR 1937 Lah. 108.
Nihal Singh v. Emperor AIR 1935 Pesh. 155.
Afughla and others v. Abhe Ram and others AIR 1923 Lab. 172.
Kala Singh v. Crown AIR 1933 Lab. 167.
Fazal Hussain v. Emperor AIR 1933 Lab. 655.
These cases from foreign jurisdictioit were also cited. They are Chacku hlathai v. State of Kerala AIR 1964 Ker. 222.
AIR 1958 All, W R 79.
Sirkar Prosecutor v. ,Ananthan Kutan . AIR 1950 Trav. Co. 12.
11. The effort throughout, of the learned counsel for the appellant was to proceed on the basis of assumption that if the deceased was compara--tively stronger than the accused and if during the grappling, he had fallen on the ground and the deceased had got over him; it should be further presumed that the deceased would have either attempted to throttle the accused or tried to squeeze his testicles. In either case, there being an apprehension of death or grievous hurt, it was contended, the accused was entitled to complete right of private defence. In none of the cases cited at the bar such a situation with regard to presumption has been visualised. They obviously relate to different set of circumstances and except for certain principles enunciated therein, are not strictly applicable to the present case. Some of the well known principles are;
(i) when an accused person is in the process of exercise of his right of private defence, he is not expected to weigh his actions "in golden scales",
(ii) nor can he be expected to "modulate his defence step by step" ;
(iii) it is not possible in such a situation for the accused to keep the proper sequence and account of "action and counter-action" of adversaries ;
(iv) the attitude of a "cool by-stander" cannot be expected from person who is in the fight or is under an attack ; and
(v) that benefit of reasonably possible doubts even in matter of self---defence must be resolved in favour of the accused.
12. Despite the above principles, it will not be proper to conclude from them or the case-law cited at the Bar that even if circumstances of the case do not warrant certain finding of fact it must further be necessarily presumed to have been established. Facts are to be established from evidence and when established certain inferences may be drawn and assumptions raised, but this would depend upon the circumstances and facts of each case. However, the following circumstances amongst others can be taken into consideration for reaching the correct conclusions:---
(i) Helpless physical state, if any, of the accused ;
(ii) Position of the victim and accused vis-a-vis mental and physical capacity as also any other advantage/disadvantage, during the various stages of the occurrence ;
(iii) Actual physical contact and action demonstrated during the occurrence;
(iv) Capacity/competency of the victim to cause harm to the accused ;
(v) Apprehension of danger by one or the other and whether it was a warning ;
(vi) Whether adoption of lesser means of defence was possible ;
(vii) Background of both the parties, with particular reference to earlier threats or attempts 'of violence against each other ;
(viii) offence or defence offered by each party.
13. It is clarified that the above circumstances do not by any men exhaust the list of similar circumstances. Even if all these circumstance are taken into account still depending upon the facts of each case, the can be various shades of right of private defence. Some shades are qua the statutory provisions, for example, complete or partial defence. The latter may imply exceeding the right of private defence or no defence at all. The other shades might relate to the question of the sentence only. The above considerations would in some cases inter-mingle with other subjects like grave and sudden provocation and sudden fight.
14. In this case, Haji Bashir Ahmad P. W. Did admit before the committing Magistrate that there was grappling between the deceased and the accused before the former suffered the injury and further that during the grappling the accused fell down and the deceased got over him. At the trial also, the witness did not deny the suggestion that when the accused was "under the accused at that time the accused stabbed the deceased with knife"; but throughout the prosecution evidence nor in the statement of the accused even an iota of suggestion has been made that at any stage the deceased tried to throttle the appellant or that he attempted to squeeze his testicles. The position of injury on the deceased and the use of knife by the accused are such circumstances that it is very difficult to visualise that the injury would have been caused when the deceased might have been doing either of the above acts. Reading of the statement of Haji Bashir Ahmad P. W., shows that if such suggestion would have been made to him, he would have been in a position either to confirm it or deny it; because he was clearly in a position to see the grappling and what happened during it. Otherwise too if there would have been any such attempt by the deceased against the appellant, I have no reason to assume that Haji Bashir P. W. 12, would have concealed it.
In this behalf, ft needs to be noticed that the learned trial Judge has observed that "the real story of the occurrence has not been put forward". Similar other observations have been made in paragraph 18 of the judgment but they appear to be more in context of the background of the dispute and or motive alleged by the prosecution in this case. It appears that when the deceased and the appellant confronted each other, there was some recrimination which suddenly developed into the grappling. As to what exactly preceded the grappling has been adversely commented upon by the learned trial Judge who understandably felt that the prosecution has not placed the entire material in that behalf before the Court. This observation is correct in so far as the earlier alleged incident is concerned and the same, therefore, has been rightly doubted, but with regard to what transpired between the deceased and the accused, immediately before the grappling, the eye-witness (s) cannot be blamed for the missing details. It must have happened on the spur of the moment and the witnesses may have, been attracted when the two started grappling with each other; that is how and why the initial details have been left out of the prosecution case. Due benefit, however, can still be given to the accused and the same in full, has been extended by the learned trial Judge, in that he held that the appellant was entitled to the exercise of the right of private defence, but the same has been exceeded. I have already agreed with the learned trial Judge that there is no evidence nor there is any reason for supposing that the deceased tried to throttle the accused or did anything else which might have caused apprehension of death or grievous hurt, therefore, he is not entitled to complete right of private defence. The only circumstance that the deceased was stronger in physique than the accused, even if believed (though the learned Judge has doubted this aspect of the defence suggestion) would by itself not be enough to assume that there was justification for the accused to cause death of the deceased.
That would be so despite the fact that the deceased was above the accused when he received the' injury; because it would not be justified -to further raise a presumption of fact that the deceased had actually throttled the accused.
15. After carefully considering all the circumstances of the case, I agree with the learned trial Judge in the finding that the appellant in exercise of his right of private defence while attempting to rescue himself from the deceased, caused him the fatal blow. In doing so he exceeded the right of private defence, and therefore, he has rightly been convicted under section 304, Part I of P. P. C.
16. As there is combination of some of the elements of sudden fight with the exceeding of the right of private defence, I consider it a fit case for taking lenient view in so far as the substantive sentence is concerned. The appellant gave only one blow. The assertion with regard to the F attempt to give another blow has not been accepted by the learned trial Judge, therefore, sentence of 7 years' R. I. With fine of Rs. 4,000 or in: default of payment of fine by appellant to further undergo R. I. Fort another 3 years, would meet the ends of justice. I, therefore, while maintaining the conviction reduce the sentence accordingly. The fine when realised, shall be paid as compensation to the heirs of the deceased. It is clarified that as the sentence of fine has been imposed upon the appellant and the same has been directed to be awarded as compensation, there is no need for a separate order in this behalf under section 544-A, Cr. P. C. The sentence of fine would in these circumstances be treated also as an award of compensation under that provision.
17. The result is that this appeal succeeds partially, with regard to sentence only.