1. NOORUL ARFIN, J.-By judgment dated 31-7-1973, an Additional Sessions Judge at Karachi convicted Gulzaman, the appellant, under section 302, P. P. C. And sentenced him to undergo imprisonment for life for the murder of one A.I Khan, aged forty years. Alongwith Gul Zaman three other persons, namely, A.I Mardan, brother of Gul Zaman, and Amir Hussain and A.I Hassan, were also prosecuted for the offence under section 302, P. P. C. But acquitted at the trial by the learned Additional Sessions Judge. The prosecution version is that one Amir Khan was married to Mst. Nasim Begum, a step-sister of the appellant, Gul Zaman. The couple lived at Landhi, while the parents of Mst. Nasim Begum lived at Koila Godown, Bihar Colony, Karachi with Gul Zaman and A.I Mardan, Mst. Nasim Begum returned to her parents' house from where she declined to go to her husband.
2. Consequently, on 11April, 1970, between 3-00 and 4-00 p. m. Amir Khan, accompanied by Noor Khan, A.I Khazi, Siddiq, Taj Muhammad and A.I Asghar went to Bihar Colony. The parties went to the Bismillah Hotel situated in that locality and sent Amir Khan to Gul Zaman's house to inform him of their arrival. Amir Khan went accordingly, but a few minutes thereafter the persons who had stayed at the hotel heard cries and shouts and ran to Gul Zaman's house, where they saw the latter giving beating to Amir Khan. It is alleged that A.I Hassan, A.I Mardan and Amir Hussain were standing near the appellant Gul Zaman. A.I Khan, the brother of Amir Khan, rushed to rescue Amir Khan, where upon Gul Zaman stabbed him, that is, A.I Khan, on his neck. When Noor Muhammad tried to rescue them, he was attacked by A.I Mardan with a knife and received injuries in his back. Noor Muhammad fell down and was given beating with a "Danda" by A.I Hassan and Amir Hussain. This incident was witnessed by two neighbours, namely, Mistri Khan and Dost Muhammad. All the four accused ran away from the scene and A.I Khan and Noor Mohammad were removed to hospital,th but A.I Khan succumbed to his injuries on the way, and Noor Muhammad remained as an indoor patient in the hospital for about twenty-two days. At about 5-45 p. m. The A. S. I. At the Chakiwara Police Station received telephone from the Civil Hospital that Noor Mohammad and A.I Khan having received injuries in a fight in Bihar Colony were brought to the hospital by Amir Khan, and that A.I Khan was already dead when brought to the hospital, while Noor Mohammad had been admitted in Surgical Ward No. 3 of the hospital. The A. S. I. On duty made an entry to this effect in the police diary and proceeded to the Civil Hospital, from where, after return, the first information report (Exh.
3. 30) was registered under the signature of Ashfaq Baig, the A. S. I. And, after completion of investigation, the four accused were challaned before the committal Court, from where they were committed to the Sessions Court, where they were tried under section 302 read with section 34, P. P.
4. C. The accused did not plead guilty. A.I Mardan stated that he was at Hyderabad at the time of the incident, and, when he returned after fourteen days of the incident, he came to know that he was wanted by the police, whereupon he voluntarily surrendered himself at the Chakiwara Police Station. A.I Hassan pleaded that he was also absent from the incident, as he was on duty between 7-00 a. m. And 6-00 p.m. On 11-4-1970 as Driver with Star Company. Amir Hussain pleaded that the complainant party had attacked his house whereupon he took refuge in a latrine and went unconscious and knew nothing of the incident. Gul Zaman pleaded that leis step-sister Mst. Nasim Begum had a quarrel with her husband and had come to live with him, and that, on the day of the incident, the complainant party forced open the door of his house and attacked him. He further pleaded that Mst. Nasim Begum was injured when attacked by the complainant party, and, when he took her to the Police Station, he was arrested by the police. He also denied that any knife was recovered by the police at his pointation. After recording the evidence of the prosecution witnesses, the learned Additional Sessions Judge acquitted A.I Mardan, Amir Hussain and A.I Hassan, but found Gul Zaman guilty of the murder of A.I Khan, and therefore convicted him under sec--petition 302, P. P. C. And sentenced him to imprisonment for life. The learned Additional Sessions Judge held that there was no evidence to sustain the conclusion that A.I Mardan attacked Noor Muhammad, and, as regards A.I Hassan and Amir Hussain, he held that there were circumstances which strongly suggested that those two persons were involved in the case only because they were related to Gul Zaman, particularly in view of the deposi--petition of D. W. I Sabir A.I, who stated that A.I Hassan was with him for the whole day on 11-4- 1970. As regards Gul Zaman, the learned Additional Sessions Judge came to the conclusion that the complainant party had gone directly to the house of Gul Zaman and had tried to forcibly take away Mst. Nasim Begum, and that it was during this fight that Gul Zaman inflicted knife injury on A.I Khan which resulted in the latter's death.
5. Thus, the conclusion of the trial Court is that there was in fact a mutual fight between the complainant party and the accused party when the complainant party attempted to take away Mst. Nasim Begum by force. In the argu--ments before the learned Additional Sessions Judge, a plea was taken that Gul Zaman had acted in exercise of the right of private defence. But this plea was rejected by the learned Additional Sessions Judge on two grounds, in firstly, that Gul Zaman had himself not taken up this plea in his statement under section 342, Cr. P. C. And, secondly, the right of private defence did not extend to the extent of causing the death of A.I Khan, and that Gul Zaman, in any case had exceeded this right of self-defence if it was at all available to him. This latter finding was given because the learned Additional Sessions Judge took the view that there was nothing on evidence to suggest that the complainant party had intended to commit any aggressive act against the accused, and that the prosecution evidence merely snowed that the deceased A.I Khan was dragging away Mst. Nasim Begum by force from the house of Gul Zaman, but this did not constitute any threat to the person or property of Gul Zaman. With regard to the learned Additional Sessions Judge's view that the plea of self defence was not set up by Gul Zaman in his statement under section 342, Cr. P. C. We must first record our view that Gul Zaman's statement recorded by the learned Additional Sessions Judge is not strictly in compliance with the requirements of section 342, Cr. P. C., as all the incriminating circumstances were not specifically put to Gul Zaman. Further, the learned Additional Sessions Judge is id error when he says that the plea of self-defence cannot be taken unless it is set up in the statement recorded under section 342 of the Criminal Procedure Code. The learned Additional Sessions Judge has himself referred to several decisions, that is, PLD 1962 Kar. 495, 1968 P Cr. L J 602, 1968 P Cr. L J 22, 1968 P Cr. L J 740 and 1973 P Cr. L J 656. In all these cases it has been persistently held that the plea of private defence, if substantiated on the prosecution evidence itself, must be accepted and the benefit of this plea be given to the accused notwithstanding the fact that the accused Las not expressly taken up this plea in his statement and, further, if the Court is in doubt whether the right of private defence was exceeded, the benefit should still go to the accused as it is not expected of a person to measure in golden scales the degree of threat held out to him when he exercises the right of private defence under stress of self-preservation. Thus, these decisions having been expressly brought to the notice of the learned Additional Sessions Judge, he should be said to have acted erroneously in holding that the plea of self-defence should not be accepted if not set up in the accused's statement.
6. Moreover, the learned Additional Sessions Judge appears to have taken the view that the right of self-defence is available only in cases in which threat is held out to the person or property of the accused. Section 100 (fifthly) of the P. P. C. States that the right of private defence of the body extends to the voluntary causing of death or of any other harm to the assailant if the offence, among others enumerated in this section, is one of assault with the intention of kidnapping or abducting a person. Under section 362, P. P. C. Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person. For the purpose of this case, we will accept the contention of the State that Gul Zaman inflicted the fatal knife blow on A.I Khan resulting in the latter's death, and that this contention is sufficiently substantiated by the prosecution evidence. The question, however, which requires consideration is whether Gul Zaman acted in exercise of the right of private defence. On this question, the material evidence is that of two eye-witnesses, namely, P. W. 7 Dost Muhammad and P. W. 9 Misri Khan, who lived in the same locality in which the incident occurred. P. W. Dost Muhammad stated that, when he heard noise and went out of his house, he saw that A.I Khan was dragging Mst. Nasim Begum by her hair. But this witness was declared hostile at the instance of the prosecution, and accordingly the statement which he gave before the committal Court was brought on record as Exh. 19 under section; 88 of the Criminal Procedure Code. Even in this statement, the witness deposed that he saw Amir Khan dragging Mst. Nasim Begum by her hair. The other eye-witness is P. W. 9 Misri Khan, and he also, upon hearing the noise, came out of his house and himself saw A.I Khan dragging Mst. Nasim Begum by her hair and the other members of the complainant party standing nearby. It was in view of the evidence of these two witnesses that the learned Additional Sessions Judge disbelieved the prosecution evidence that the complainant party first waited at the Bismillah Hotel and sent Amir Khan to Gul Zaman's house to inform him of their arrival. The finding of the learned Additional Sessions Judge, on the evidence of these two eye-witnesses, is that the complainant party went directly to Gul Zaman's house, from where they tried to take away Mst. Nasim Begum by force. Thus, the complainant party, and in particular, the deceased, A.I Khan, was by force compelling Mst.
7. Nasim Begum to leave the house of her brother Gul Zaman. The action of A.I Khan and of the rest of the complainant party, therefore, constituted abduction within the meaning of section 362, P. P. C.
8. And, since A.I Khan was dragging Mst. Nasim Begum by her hair, his act was an assault upon her with the intention of abducting her, which gave a right of private defence to Gul Zaman, the brother of Mst. Nasim Begum as well as other relations of this woman. No amount of other prosecution evidence has been able to take away the effect of what P. Ws. Dost Muhammad and Misri Khan stated before the trial Court and, in fact, we were not referred to any piece of prosecution evidence which would show that what these two witnesses told the trial Court was incorrect or false. The question then arises whether Gul Zaman exceeded the right of private defence. In this connection, material light is thrown by the medical evidence, which was not formally brought on record by the Sessions Court but when this omission was pointed out to us, it was ordered that this medical material be read in evidence and be formally brought on record as High Court Exhs. 1, 2, 3 and 4.
9. According to the post-mortem examina--petition, the following Injuries were found on the dead body of A.I Khan:
(1) Incised wound left side neck 1" below ear downward and forward medeally at upper portion of thyroid cartillage 3--" x 1--" x 3" deep cutting external jugular vein, common carotid artery, nerves and muscels underneath.
(2) Contused abrasion middle of forehead transverse 1" x 1/4".
(3) Contused abrasion left side forehead.
10. The only serious injury is the incised wound which caused shock and haemorrhage. The finding of the learned Additional Sessions Judge being, and this finding is rightly based on the prosecution evidence on record, that the complainant party had, in a group gone to Gul Zaman's house to take away therefrom Mst. Nasim Begum by force, and that, in fact, A.I Khan, the deceased, caught Mst.
11. Nasim Begum and dragged her by her hair, constitutes a valid circumstance to justify Gul Zaman to intervene to save his step-sister from being abducted by force, even to the extent of using a knife to prevent A.I Khan from succeeding in the design with which the complainant party had, in a group, gone to the appellant's house. Even then, Gul Zaman inflicted only one serious injury on A.I Khan, the remaining two being merely contused abrasions. It would appear that these contused abrasions were caused by some blunt weapon, but even then A.I Khan did not give up Mst. Nasim Begum which compelled Gul Zaman to use his knife. In these circumstances, it is not possible to take the view that Gul Zaman in any way exceeded the right of private defence. This being the position of the evidence on record, we cannot take the view that it has been conclusively proved that Gul Zaman did not act in the exercise of his right of private defence or exceeded this right, or that his guilt has been established beyond doubt, consequently, we allow his appeal and quash the conviction and sentence recorded against him by the learned Additional Sessions Judge and direct that he be set at liberty forthwith unless he is wanted in some other case.