1. ' SAEEDUZZAMAN SIDDIQUI, J.---The appellant was tried under section 302, P.P.C. By the Additional Sessions Judge, Gujrat, for committing murder of one Basharat Hussain but on conclusion of the trial he was convicted under section 304, Part I, P.P.C. And sentenced to 7 years' R.I. And fine of Rs,10,000.00 or in default to undergo further R.I. For 6 months. The above conviction and sentence of the appellant has been upheld by a learned Judge in Chambers of the Lahore High Court in an appeal filed by the appellant against his conviction and sentence. Leave was granted by this Court against the judgment of the High Court to consider the following contention:- 3
3. Learned counsel for the petitioner submitted that the petitioner who was a student of 1st Year at the time of occurrence was waylaid by two persons including the deceased. He was entitled to the right of private defence in view of the circumstances of the case and accepted by the two Courts.
2. He has referred to section 100, P.P.C. Which contemplates 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 which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:-- ' Secondly, such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; and fourthly, an assault with the intention of gratifying unnatural lust. Leave is granted to consider the above contention."
3. ' We have heard the learned counsel for the appellant and the State. The learned counsel for the appellant contended before us that the two Courts below having accepted the right of self defence of the appellant could not convict him under section 304, Part I, P.P.C. On the ground that the appellant exceeded the right of self-defence. It is contended by the learned counsel for the appellant that in the circumstances of the case, the appellant was entitled to be acquitted in view of section 100, P.P.C. The learned counsel for the State supported the impugned judgment. The appellant in his statement before the trial Court, under section 342, Cr.P.C. In reply to a Court question, stated as follows:-- "I was student of 1st Year in the days of occurrence. On the day of occurrence, I was coming from Gujar Kotla from the house of my paternal aunt on a cycle, at about Khuftan-wela. When I reached towards the east of village Shampur at Khuftan-wela, I met two persons, namely Basharat and Iftikhar who were sitting in the way. Basharat was armed with a Chhuri and Iftikhar was empty handed. They stopped me and caught me. Iftikhar snatched my cycle and Basharat at the point of Chhuri threatened me and I was taken towards south of the part in a low place. Basharat ordered me to unwear Shalwar and inflicted a Chhuri blow on my chest, and he tried to commit sodomy upon me. At that time, I was under fear and I was weeping. In that process, I struggled to save myself from the hands of Basharat accused and with full force, I pushed him and he fell down and he was injured by his own Chhuri. I ran away from the spot. On the next day, I alongwith my brother Major Safdar, appeared before the police and narrated the whole story before the S.I. And the Inspector Police. During investigation, I produced Malik Fazal Hussain, Member, District Council of Village Bagwal, Raja Khan son of Sati Khan and Fazal Hussain son of Sati Khan along with many other persons. Muhammad Ashraf and Ghulam Sarwar P.Ws. Were not present at the place of occurrence. I am innocent I have been falsely implicated."
4. ' The appellant also examined two witnesses in support of his defence plea. The learned Judge in Chambers while dealing with the plea of appellant before the trial Court and upholding his conviction under section 304, Part I, P.P.C. Observed as follows:- "No doubt the learned trial Judge came to the conclusion that the version given by the defence seems to be more probable and natural but gave sentence to the appellant on the ground that he exceeded the right of self-defence. Be that as it may, overall appreciation and analysis of the evidence shows that the appellant has exceeded the right of self-defence because as per his own statement the deceased was disarmed at the time when the appellant caused the injury to the deceased, the injury received by the appellant was of insignificant nature, which was not sufficient to cause reasonable apprehension that death will otherwise be the consequence of such assault as contemplated by section 100, P.P.C., hence he exceeded the right of self-defence, so the impugned judgment is maintained."
5. ' The learned Judge in Chambers gave two reasons for holding that the appellant exceeded his right of self-defence. It was firstly observed by the learned Judge in Chambers that the deceased was disarmed at the time when the appellant caused injury to the deceased. Secondly, it was found by the learned Judge that the injury suffered by the appellant at the hands of the deceased was of insignificant nature which did not justify killing of the deceased by the appellant. The appellant in his statement under section 342, Cr. P.C. Nowhere stated that the deceased was disarmed at any time during the incident. The learned Judge in Chambers failed to notice that the appellant also did not advance the plea of self-defence on the ground that he was attacked by the deceased and injured, and, therefore, he attacked and killed him in right of self-defence. In his statement under section 342, Cr.P.C. Which has been accepted by both the two Courts below as probable and natural, the appellant stated that while he was coming on his bicycle from Gujar Kotla he was stopped by the deceased Basharat and Iftikhar. Iftikhar snatched his bicycle while the deceased Basharat attempted to commit sodomy with the appellant. Thereupon, the appellant struggled to save himself which resulted in the death of the deceased. The plea of private defence was, therefore, found on the grounds, firstly, that the appellant was deprived of his property (bicycle) and, secondly, the deceased Basharat attempted to commit sodomy with the appellant.
6. In these circumstances clause fourth, of section 100, P.P.C. Was fully attracted in the case and it could not be said that the appellant exceeded his right of private defence.
7. ' We, accordingly, allow the appeal and set aside the conviction and sentence of the appellant. The appellant is on bail, his bail bonds are discharged.