On the 16th November 1969, on which day the incident took place which has resulted in this appeal, the first informant Gulab and his brother Uris were both living in the Railway Quarters at Kotri as also was the appellant and the principal witnesses in this case. The prosecution story is that after having completed his duty on that day Uris returned to his own quarter and immediately thereafter left for the community tap in order to wash his face and feet and, while he was thus engaged, the appellant came up there carrying two empty buckets across his shoulder connected by means of a wooden beam. The appellant was apparently wishing to the buckets with water and to carry them suspended from a wooden beam which is carried over the shoulder is of course a fairly normal way of doing so. Although the details are by no means clear it does seem that the appellant wanted the deceased to desist from washing while he could fill his 'buckets while the latter wanted to complete his own washing first but in any case there was a quarrel and a struggle in the course of which the deceased struck at the accused as a result of which two teeth of the deceased were either dislocated or broken. Then the appellant gave a single blow with the wooden beam to the deceased which struck him on the left temporal parietal region and although, externally, this was not a serious injury, the interns I injury was certainly great inasmuch as it had caused fracture and eventually led to the death of the deceased. One of the persons who witnessed this incident, one Naimoo who has not been examined as a witness, then went and informed Gulab the brother of the deceased who immediately came to the scene and received an account of the incident from three other persons who were eye-witnesses, and who have been examined in the case namely Mst. Sardaran, Mst. Sharifan and Mengho. The accused himself was lying injured at the scene and was unconscious or at least unable to talk and, leaving him at the scene, the first informant went to the Kotri Police Station which is one mile away from the scene and lodged a first information report at 6 p.m. Which was recorded by the then S. H. O. Namely prosecution witness Khalil Ahmed. Khalil Ahmed went to the scene immediately and from there caused the injured to be sent to the Civil Hospital where he expired soon thereafter. About this investigation all that needs to be mentioned is that the appellant produced before the Police Officer a stick said to have been used in the offence, but since, admittedly, the stick was not blood- stained and it is to be remembered that the injury did not bleed, this does not very much matter nor does the denial of the appellant that he produced it. On the 18th of November 1969, the appellant was produced before the Sub-Judge and F. C. M., Kotri for recording a confession and although that learned Judge did record a confection he also made a record of his own note that the confession was not voluntary, an opinion which he based upon the fact that he gave several contradictory answers and appeared to be thinking whether he should make a statement at all. In any case, observing the fact that his teeth had been broken he directed that the appellant should be examined by a doctor but it is admitted that he was not.
2. Nothing else of any importance occurred in the investigation and in due course the appellant was sent up for trial and was convicted by the learned Ex Officio Additional Sessions Judge, Sukkur camping at Dadu, not of the offence of murder but of an offence under section 304, Pakistan Penal Code, the sentence awarded being 7 years' rigorous imprisonment and a fine of Rs. 100 or in default of payment of fine further rigorous imprisonment for two months. It is against this conviction and sentence that this present appeal is instituted.
3. The main evidence in the case was that of the eye-witnesses Sardaran, Sharifan and Mengho with the oral corroboration afforded by the testimony of Gulab. There should also have been the evidence of Maimoo who went and informed Gulab but that witness was not traceable and conse- -quently he bas not been examined as a witness. I am satisfied that he was in fact untraceable and I do not therefore propose to draw against the prosecution any inference from his non- examination as a witness. There was of course also the evidence of the confession but the learned Judge, quite rightly I think, directed it as inadmissible on account of the note which the Magistrate who recorded it made upon the confession.
4. That the deceased died due to the injury which he sustained at the hands of the appellant can hardly be doubted. There was not only the evidence of the eye-witnesses and the corroboratory evidence of Gulab but it is the case of the appellant himself that he gave a blow to the deceased because he was acting in the right of private defence. I see no reason for disagreeing with the learned Judge in accepting the evidence of the three witnesses, Sardaran, Sharifan, and Mengho even though it was alleged against them that being Christians they belonged to the same religion as the deceased and were therefore interested. The learned Judge I think was quite right in thinking that this could hardly be described as such interest as would lower the credibility of the witnesses.
The fact that the deceased was a Christian is nowhere stated but I am not even sure that it was true; the name "Uris" is normally a Muslim name and, for my own part, I have never heard of it as a name of a Christian in our country. The name Gulab, that is the name of his brother, the first informant it is true could either be a Muslim or a Christian name and his case is described as Balushai but this again does not appear conclusive. I do not think however that the question is of any real significance in this case.
5. While I do not therefore disagree with the learned Judge in his assessment of the ocular testimony it has to be pointed out that all the three witnesses start their statement of story from the point when the appel--lant and the deceased were at the tap and arguing between themselves.
All the witnesses disclaim a very good knowledge of the Sindhi language and are therefore unable to say what they were arguing about and it is therefore impossible to say from their evidence as to how the incident started. It is true that none of them admits what the appellant alleges namely that the deceased gave a blow first. It is also true, however, that since they were not there from the beginning it is not possible, merely on account of their evidence, to exclude that possibility.
According to the appellant himself he lost two of his teeth on account of the blow given to him by the deceased. The Magistrate before whom he was produced for a confession directed that he be examined by a doctor but admittedly this was not done and there is not the slightest explanation upon the record as to why the police did not cause him to be medically examined. It is on that account that the learned Judge says, quite rightly I think, that in these circumstances the benefit of this circumstance ought to go to the accused and it is therefore with some surprise that I find that when he comes to discussing the case of the appel--lant on the question of private defence he observed:- "The judicial confession Exh. 27-A also shows that this accused was made complainant before the learned Magistrate that the deceased had struck him a fist blow as a result of which two lower teeth of his jaw had broken. The learned Magistrate has made a note in the appropriate column of the confession recorded by him that he did not observe any mark of injury on the accused and the accused had only four teeth existing while the remaining were not present. If the deceased had as a matter of fact actually caused fist blow to the accused ft is natural that the accused would have received some injury on the lips or at hi% chin. It is an admitted position that all the remaining teeth of the deceased were missing except four and therefore it cannot be said with certainty that the accused had lost two of his teeth on account of blow given to him by the deceased. The con-- fession further shows that the accused was remanded to judicial custody after recording his confession and therefore the direction given to the S. I. P. By the learned Magistrate could not have been effectively complied with by the S. I. P. Because after the remand of the accused to the judicial custody the S. I. P. Bad no control over him. Therefore the learned Magistrate himself should have 'written to the Jailor to produce the accused before the Medical Officer for examination regarding the allegation of the accused that he had received a fist blow and lost two of his teeth as a consequence. From such circumstance it cannot be held that the accused had a right of private defence against the deceased and he was justified in causing his death."
It is possible that the responsibility for the appellant's non-examination by a doctor may not be that of the police but that is hardly the fault of the appellant nor can it take away from the value of the fact-that the appellant made a complaint of this before the Magistrate who was recording his confession and the observation of that Magistrate that the appellant had only four teeth while the remaining were missing. The argument that if there had been actually a fist blow the appellant would have received an injury upon the lips or on his chin is, at the best, speculative. I cannot but think therefore that it is likely that the appellant did receive a blow or at least that there is sufficient doubt upon the question for him to be entitled to the benefit of that doubt.
6. Nevertheless the learned Judge rejects the case of the appellant in regard to private defence distinguishing as he does a number of cases of the predecessor Court of this Court namely the High Court of West Pakistan on what appear to me grounds which are neither material nor sufficient. For instance in respect of the decision in PLD 1960 374 (sic) the learned Judge says:- "The facts of this authority also show that the accused person was caused two injuries with a blunt weapon and their Lordships on facts and circumstances concluded that the accused would reasonably have an apprehension that grievous hurt would be caused -to him and therefore he had right of private defence of his person. In the instant case there is mere allegation of the accused that his two teeth had fallen down on account of blow given by the deceased but there is no reliable evidence on the record to establish such allegation. While it is true that the burden of proof is not so heavy upon the accused but the allegation which he makes should appear reasonably true. On examination of the prosecution case in juxtaposition of a defence evidence it cannot be concluded that the deceased caused grievous hurt to the accused by the breaking of his teeth as alleged At best the deceased might have pushed or slapped him which provoked the accused to resort to violence."
Regard being had to the circumstance that the appellant made the earliest complaint of this matter and that it was not investigated by a doctor I hardly think that the distinction which the learned Judge drew between the reported case and the present case was a valid one.
7. Although I myself upon this evidence should have felt that the issue of private defence was at least in such doubt that it ought to be held in favour of the appellant, upon the reasoning of the learned Judge the proper course of action for him would have been to convict the appellant of murder. Nevertheless he convicted him only under section 304 by giving him the benefit of the exception which provides for grave and sudden provocation. This provocation he finds from the fact that it was the month of Ramzan and that the appellant was fasting and he must therefore have been in a hurry to collect water and that the insistence of the deceased to utilise the water at that moment must have been particularly irritating. I regret I am wholly unab1c to understand this reasoning particularly when the learned Judge goes on to add that the deceased must have abused the appellant and also slapped him. If the deceased slapped him I cannot see what difficulty the learned Judge had in holding that he gave him a blow which caused the breaking of the appellant's teeth. Admittedly the deceased was a young man aged about 20 and the appellant whom I have seen in Court is stated to be 55 and a not very well preserved man of that age either. I find it very difficult indeed to believe that in these circumstances if there was a struggle, as all the eye-witnesses do admit that there was a struggle in the course of which the appellant lost his teeth, he should not be regarded as having an apprehension of further injury from the deceased which could amount at least to grievous hurt if not to death.
8. In these circumstances I do not feel assured at all that the convic--petition of the appellant is justified and I therefore allow this appeal set aside the conviction and sentence and acquit the appellant who will be released forthwith unless held under any other warrant.