'Appellant Ishtiaq Ahmed, a minor, was found guilty of an offence under section 302, P. P. C. By the learned I Additional Sessions Judge, Karachi, who vide his order dated 26th July 1974, referred his case to the Provincial Government under Bombay Children Act, 1924, and till the decision of the reference gave the appellant in the custody of his father subject to his executing a bond in the sum of Rs, 5,000 for his production in the Court whenever required. It is against the said finding of guilty that the appellant has preferred this appeal.
2. According to the prosecution story the appellant killed one of his school-mates namely Nazar Hussain on 19th July 1971 at 12 noon, near Bungalow No, 7, Malir Cantt. By means of a screw-driver.
The report was lodged at the Air Port Police Station at 5-15 p.m. According to the report lodged by Subedar Major Muhammad Anwar, father of deceased, in writing, the appellant who was a student of Government Secondary Boys School Malir Cantt. Caused serious injuries to the deceased by means of a screwdriver, and the latter succumbed to the injuries instantaneously. According to the F. I. R. There existed some between the deceased and the appellant and therefore the appellant attempted on the life of the deceased. The report was registered by Fazal Ahmed Beg, A. S. I., who was incharge of that police station. On 20th July 1971, the investigation started and the S. H. O. Air Port Police Station, repaired to the vardat which was situated in front of Bungalow No, 7, Khulna Lines, Malir Cantt. He seized the Attendance Register of Class X, Sections A & B and prepared a mashirnama thereof and also recorded the statements of the witnesses. He thereafter proceeded to the Jinnah Hospital where he inspected the dead body of the deceased and prepared a mashirnama of the dead body and inquest report. On 22nd July 1971, he arrested the appellant.
After necessary investigations, the appellant was challaned to the Court on 26th August, 1971.
3. Autopsy on the dead body was conducted by Dr. Muhammad Umar Khan, who found the following injuries on his person:- "(1) Punctured lacerated wound on left temporal region 1" X 1/8" X bone deep with little contusion around it. The wound was extended on both sides by operation and was found stitched 5" long.
There was swelling on temperoparieto-occipital region 5" X 4", and were partly healed.
(2) A small contused abrasion on left occipital region r X r.
(3) Tiny scratches on left temporal region with scar on it and partly healed appears to be by shaving of skull hair.
(4) Swelling of right occipital region (appears to be due to old cyst.)"
' In his opinion the cause of death was coma caused by head injury resulting into brain, oedema haemorrhage and lacerations. Injury No, 1 was sufficient to cause death in the ordinary course of nature.
4. The appellant has denied having committed the offence and examined Muhammad Aqil as his defence witness.
5. The prosecution has furnished ocular testimony of P. Ws. Subah Sadiq and Mirza Iftikhar Ahmad.
The former has stated in his statement that both the appellant and the deceased were students of Government Boys Secondary School, Malir Cantt. Of which these witnesses were also students. At 12-30 noon on the day of incident the witness and the deceased were going from the School to their houses. At that time the deceased was carrying a hunter in his hand. As soon as they reached near bungalow No, 7, he saw that the appellant who was carrying a screw-driver in his hand hit the deceased with it on the head and the deceased went unconscious. According to this witness there was no grappling between the appellant and the deceased before the incident. But when confronted with the lower Court's statement he stated that both the appellant and deceased had grappled with each and a quarrel took place between them before the injury was caused to deceased. The other eye-witness, namely Mirza Iftikhar Ahmad has also stated that when the appellant and the deceased were coming back from the School they grappled with each other and the appellant struck the deceased at his head with the screw-driver. This witness watched the incident from a distance of about 20 paces. Besides these witnesses, the prosecution has examined Muhammad Khan, Khalid Mahmood and Hamidul Haque in the committal Court but as these witnesses were not available during the trial statements of the lower Court were brought on record. Of these witnesses, namely Khalid Mahmood had stated in the lower Court that the deceased was actually carrying hunter as well as screw-driver and during the scuffle the appellant snatched away the screw-driver from his hand and hit the deceased with it. Muhammad Khan has also stated that the appellant was empty-handed while the deceased had screw-driver in his hand and a hunter tied round his waist and he attacked the appellant first. Hamidul Haque the another prosecution witness had also stated that the deceased showed him a screw-driver saying that he had kept it with him so that it could be used against the appellant. He has further stated that before the scuffle the deceased hit the appellant with the hunter and brought out the screw- driver from his pocket and attempted to hit the appellant with it but the appellant caught hold of him. Muhammad Aqil who was examined as a defence witness has also stated that he was studying in the same School of which the appellant and the deceased were students and he was with the deceased on the day of the incident. The deceased had a whip tied round his waist and a screw-driver in his pocket. According to this witness the deceased had been injured by his own screw-driver.
' From the statements of these witnesses it transpires that the deceased had some grudge against the appellant and that is why he had come armed with a whip and a screw-driver and on seeing the appellant he attacked him first. Both the appellant and the deceased grappled with each other I and it was during the scuffle that the appellant snatched away the screwdriver from the hand of the deceased and caused a blow to him which ultimately resulted into his death. The appellant who was being beaten by the deceased and was likely to be hit with the screw-driver had a right in law to use reasonable force to save his life. The deceased was not only armed with a whip but according to the prosecution witnesses he also used it. The deceased also had a screw-driver in his hand and had he caused an injury with it on any vital part of the body of the appellant, the appellant would have also met the same fate which came to the share of the deceased, In these circumstances the appellant was within the limits provided by law to use the force which he is alleged to have used. In my opinion he was justified in snatching away the screw-driver from the hand of the deceased and hitting him with it. He caused only one blow to the deceased which shows that in all probability he did not want to kill the deceased but to save himself. The evidence suggests that the offence was committed by the appellant in exercise of his right of self-defence.
The force used by him was not excessive looking to the threat which was posed to him by the presence of hunter and screw-driver in the hands of the deceased. There was a reasonable cause for the appellant to believe that his life was in danger A and as such he could, in order to save his life, snatch away the weapon of offence from the hand of the deceased and use it against him. The case therefore clearly falls within the ambit of the right of self defence.
6. For the foregoing reasons I allow the appeal. The sentence is set aside. The reference made by the learned trial Judge to the Provincial Government shall stand vacated. The bail bonds submitted by the appellant's father also stand vacated.