Abdul Khalid, Abdul Khaliq, Muhammad Siddique and Taqdeer Ahmad, all sons of Abdullah, were tried under section 302, P. P. C. By Mr. Jacob Isaac, Additional Sessions Judge, Lahore. The learned trial Judge vide his judgment dated 30-10-1976, while acquitting Abdul Khaliq, Muhammad Siddiq and Taqdeer Ahmad accused, convicted and sentenced Abdul Khalid accused to five years' R. I.
Under section 304, Part I, P. P. C.
The convict has filed an appeal before this Court against his conviction and sentence.
2. The brief facts of the case are that on 22-10-1972 at 2-30 a. m. a report was lodged at Police Station Moghalpura, Lahore, on the basis of a medico legal report, at the instance of Muhammad Shafi complainant regarding the death of his son Muhammad Nawaz. It was stated by the complainant that he was living in Mohallah Nabipura Araian with his family and Abdul Khalid appellant was also residing in the same vicinity alongwith his three children. On 21-10-1972 at about 10-00 p. m., the children of Abdul Khalid appellant and the children of the complainant, quarrelled with each other while they were playing. Upon this the women-folk also participated in the quarrel from both sides but later on, were separated. This incident took place at noon time and in the evening a panchayat was called at the behest of the complainant to settle the previous dispute.
Sharif, Feroze Din, Muhammad Iqbal and Muhammad Aslam and some Mohallandars also joined these parleys. During the conversation which was taking place between the members of the panchayat and both the parties, Abdul Khalid appellant started abusing the complainant. The complainant's son i.e. The deceased prevented him and stepped forward and the brother of Abdul Khalid appellant whose name was not known to the complainant, at that time came out of his house and started beating the deceased at the instance of Abdul Khalid appellant. Abdul Khaliq (acquitted accused) who had a piece of wood in his hand, used the same against the person of Muhammad Nawaz deceased. Muhammad Nawaz deceased was taken to the hospital where he was medically examined but he died subsequently.
A cross case was also registered at the behest of Abdul Khalid appellant under section 324/34, P. P.
C. Against Muhammad Shafi complainant, Mukhtar Ahmad and the deceased. However, it ended in acquittal on the day when judgment against Abdul Khalid appellant was announced. It will be useful to mention at this stage that Abdul Khalid appellant received eight injuries on his person, out of which injuries Nos. 1, 2, 3 were found to be caused by a sharp-edged weapon while the remaining were the result of some blunt weapon. All these injuries were declared simple.
3. Dr. Sabir Ali P. W. 7 who conducted autopsy on the dead body of Muhammad Nawaz deceased, found the following injuries on his person:-
(i) Contused wound 2- x 1/3" going deep on the right side of head 3/' at 12 O'clock antero posteriorly.
(ii) Abrasion 1 x f" front mid forehead.
(iii) Confusedly swelling 3" x 11" on the right forehead extending to cheek.
(iv) Abrasion 1 X 1" just upper to left eye.
In his opinion injury No. 1 was caused by a blunt weapon and was sufficient to cause death in the ordinary course of nature.
4. The case of the prosecution was supported by seven witnesses including two doctors.
5. I have heard the learned counsel for the appellant as well as for the State and have perused the record of this case carefully with their assistance. Learned counsel for the appellant has drawn my attention to paragraph No. 17 of the judgment of the learned trial Judge on which he has strongly relied. According to the learned counsel the observations in this paragraph, are by itself sufficient for the acquittal of the appellant as the learned trial Court has itself disbelieved each and every piece of evidence against the appellant and his co-accused and thus it was not justified under any circumstance to hold that the appellant had exceeded the right of self-defence. It was further submitted that in view of law laid down in Muhammad Khan v. State Zarid Khan v. Gulsher and Khalid Mahrnood v. State Abdul Khalid appellant was fully within his right to defend himself against the onslaught of the deceased and thus his case was fully covered by Exception 4 to section 300, P. P. C.
6. I have examined the entire judgment of the trial Court vis-a-vis the record of this case and I will like to reproduce certain observations of the learned trial Judge made by him in paragraph No. 17 of his judgment.
"This is a case where the prosecution has not explained the injuries on the person of Abdul Khalid accused. This is a case where Muhammad Shah P. W. Has named only person Abdul Khalid accused in his F. I, R. And showed his ignorance about the names of the other accused. This is a case where Sharif and Munir P. Ws. Are not the residents of the place near the place of occurrence.
They are the residents of 21 miles and one mile from the place of occurrence whereas many persons were collected at the time of occurrence according to Muhammad Shafi P. W. This is a case where the recovery is fake, as Muhammad Jaffar P. W. 5 is police tout. This is a case where the two eye-witnesses, namely, Sharif and Munir tried to implicate all the three accused, namely, Khaliq, Taqdeer and Siddique but due to their statements which showed that they were beating about the bush and trying to make up the case under section 302/34, P. P. C. Against all the accused but they failed in their attempt. This is a case where the prosecution investigated the case honestly and deposed that first report was lodged by Khalid accused. This is a case where the demeanour of the witnesses is of greatest importance to be considered. They have endeavoured to conceal their true feelings. The tones of voice and the mouth are the best indexes to the state of mind of a witness. Munir remained mum when the question was asked to him. It is cruel, brutal and1 2 3 impolitic to examine a witness upon the theory that he is swearing falsely when he believes that he is only mistaken as to certain immaterial matters in his testimony. But in this very case the witnesses seem not reliable. Courts love fairplay and they are usually sagacious enough to discover from the demeanour of a witness whether he is swearing falsely or truly. This is a case where occurrence definitely took place between Abdul Khalid and Nawaz deceased. This is a case where Abdul Khalid accused himself admitted that in his right of private defence he hurled' bricks and stones. This is a case where Abdul Khalid accused has exceeded from his right of private defence when he inflicted injuries on the person of Nawaz deceased and with that injury he expired."
' While going through the above observations of the learned trial Judge, I am at a loss to understand how he has arrived at a conclusion that Abdul Khalid appellant had exceeded the right of private defence when he inflicted injuries on the person of Muhammad Nawaz deceased. He has disbelieved the testimony of all the eye-witnesses regarding the manner of happening of this incident. He had no choice but to accept the statement of the appellant who had given his own version of this unfortunate occurrence. The law on this point is settled that if the conviction is arrived at on the statement of the accused himself, then the statement is to be accepted as a whole. In the instant case, it is on the record as well as observed by the learned trial Court that Abdul Khalid appellant was the first person to move m this matter with the police and a case under section 324/34, P. P. C. Was registered at his instance, against the complainant party, earlier than the present case. It was also accepted by the learned trial Court that the prosecution suppressed the injuries on the person of Abdul Khalid appellant. It is settled principle of law that when a person apprehends that his adversary is going to cause hi in some grievous injury, he is fully within his right to cause his death. In the present case, the matter has gone further than apprehension and it is on the record that Abdul Khalid appellant did receive sharp-edged injuries on his person as well as blunt injuries at the hands of the deceased. Respectfully following the law laid down in the above-mentioned authorities, I am of the view that the learned trial Court was not justified to refuse him the right of self-defence to which he- was fully entitled.
7. The result of the above discussion is that I accept the appeal, set aside the conviction and sentences of the appellant and acquit him. He will be released forthwith unless he is wanted in some other case. PLD 1964 Lah. 177 1972 SCMR 597 1975 P Cr. L J 772