Nisar Ahmad appellant who was aged about 18 years at the time of the occurrence was tried along with his brother Nasir Khan alias Lal aged about 16 years, by Mr. Abdul Ghafoor Lodhi, Sessions Judge, Multan, for the murder of Muhammad Bakhsh in the bazar of Shujabad Town in the Dis--trict of Multan Nasir Khan alias Lal was acquitted. The appellant was found guilty under section 302, P. P.
C. And sentenced to transportation for life.
2. The occurrence took place on 29th of September, 1968, at 1-30 p.m. Wahid Btkhsh (W. P. 9) is originally a resident of village Talkot but had come for shopping to Shujabad. The deceased Muhammad Bakhsh ran a cloth shop. Hussain Ahmad (P. W. 8) who is a nephew of the deceased runs a grocery shop in the same bazar. On having been questioned by Husain Ahmad P.W., Wahid Bakhsh told him that he wanted to porchsome cloth. Husain Ahmad referred him to the shop or Muhammad Bakhsh deceased who as his maternal uncle. Tire two accused in this case also ran a cloth strop. Nasir Khan, the co-accused of the appellant, got annoyed by the fact that Husain Ahmad hail persuaded their customer to go to his maternal uncle's shop. He, therefore, caught hold of Husain Ahmad by his collar. Muhammad Bakhsh a deceased left his shop in order to separator them. On this, Nasir Khan took a stool from nearby and gave a blow on the head of the deceased. He also cane for his brother Nisar Ahmad appellant who came with a chhurra and gave three blows to the deceased. The witnesses standing by bandaged the wound of the deceased with t to result that no blood fell at the spot. The accused alter commission of the offence made good their escape. Muhammad Bakhsh was taken in an injured condition to the hospital where he expired after some time. One of the injuries went into the abdomen while two resulted in injuries to the jaw and face of the deceased. According to the doctor who performed the post-mortem examination the injuries in the abdomen and on the jaw were individually and collectively sufficient to cause death.
3. Allah Diwaya (P. W. 7) the father-in-law and a cousin of the deceased lodged F.I.R. Exh. P. A in Police Station Shujabad which was recorded by A. S. I. Muhammad Yesrib (P. W. 5). The distance between the place of occurrence and the police station is half a mile.
4. The accused were arrested on the same day at about 6-30 p.m. Nasir Khan had injuries on his person and he was sent for medical examination. The doctor found two abrasions, one on the right chest and the other on the left side of tower lip.
5. After his arrest the appellant led to the recovery of the chhurra P. 6 from his shop which was sent for chemical examination. The Serologist found that it was stained with human blood. The recovery part of the evidence has not been believed by the trial court for the reason that no mention was made in the F. I. R. Of the fact that the accused had thrown the chhurru in the shop after the commission of the offence and that Wahid Bakhah who is not related to the deceased in any way had said at the trial that injuries to the deceased had not been caused with this chhurra. I agree with the reasoning of the learned Sessions Judge on this aspect of the case and feel that he rightly excluded this evidence from consideration.
6. At the trial, Allah Diwaya (P. W. 7), Husain Ahmad (P. W. 8), Wahid Bakhsh (P. W. 9) appeared to give eye-witness account. The rela--tionship of Allah Diwaya and Husain Ahmad P. Ws. With the deceased has already been mentioned in the early part of this judgment. The only un--related witness in the case is Wahid Bakhsh.
7. I have been taken through the evidence of the eye witnesses and I feel that the version given by the prosecution witnesses is substantially correct especially when it is corroborated by Wahid Bakhsh (P. W. 9) who is an independent witness. The learned Sessions Judge held that the part attributed to Nasir Khan in so far as he is said to have caused an injury to the deceased with a stool was not correct and the injury on the head of the deceased was sustained by him in some other way lie has, however, be--lieved the story that Nasir Khan protested against Hussain Ahmad's attitude in persuading a customer to go to his maternal uncle and there was grappl--ing between Nasir Khan and Husain Ahmad and that the deceased Muhammad Bakhsh left his shop to intervene in the matter.
8. Mr. M. Anwar the learned counsel for the appellant has concen--trated on one point lie has submitted that, the prosecution witnesses have not given any explanation whatsoever for tl,e two injuries sustained by Nasir Khan the co-accused of the appellant. It is his contention that when the deceased saw Husain Ahmad P. W. And Nasir Khan grappling with each other, he was naturally infuriated and he had not come with the peaceful in--tention attributed to him by the prosecution.
It is his case that these two injuries were caused to Nasir Khan by Muhammad Bakhsh deceased.
The further submission made is that Nisar Ahmad appellant could not remain a silent spectator of the beating given to his brother and be, therefore, in order to rescue his brother from the clutches or two grown-up persons came to the spot and gave injuries to tile deceased. The learned Sessions Judge appears to have adverted to the question of self-defence and observed as under :- "It is not necessary to make clear that the presence of two abrasions on the person of Nasir accused does not show that Nisar Ahmad accused acted in self-defence. There is absolutely no suggestion by the defence that Husain Ahmad or the deceased were armed with any blunt or sharp edged weapon. The mere fact, that the deceased separated Nasir accused and Husain Ahmad P. W., was not sufficient to actuate Nisar Ahmad accused to murder the deceased. If the defence version bad been that the deceased came armed with some dangerous weapon, it could be said that Nisar Ahmad accused apprehended that some grievous hurt or death of Nasir accused might be caused by the deceased, therefore, he in order to save Nasir accused, injured the deceased."
I do not think that the proposition of law propounded by the Session Judge is correct. It is not necessary that in order to invoke the law of self--defence in aid of an accused person it has to be shown that the deceased or his companions were armed with some weapon. The law of self- defence lays down the various degrees to which a person exercising the right of self--defence can go. The prosecution have not perhaps come out with the whole truth. If Husain Ahmad had just made an innocent suggestion to Wahid Bakhsh to purchase cloth from his maternal uncle's shop there was no occasion for the accused to know it or get infuriated over this. The shop of the accused is just adjacent to that of Muhammad Bakhsh deceased and quite opposite to that of Husain Ahmad. It appears to me that Wahid Bakhsh may have first gone to the shop of the accused and Husain Ahmad and Muhammad Bakhsh may have tried to attract him to the litter's shop. This gave Nasir Khan a cause for complaint. The appellant when he saw his brother surrounded by two grown-up persons and receiving injuries, could at least apprehend that more beating would be given to his brother. I find that in the circumstances, the appellant had the right to rescue his brother, but in giving three injuries with a chhurru a result of which the deceased died, he exceeded his right of private defence. I, therefore, alter the Convic--tion from section 302, P. h. C, to 304, Part 1, P. P. C and award him a sentence of seven years. The appeal is decided accordingly.