' RIAZ KAYANI, J.---Ghulam Sarwar son of Ghulam Muhammad and Rabnawaz son of Dur Muhammad through the instant criminal appeal have assailed the validity of the judgment dated 2-10-1994 passed by the Sessions Judge, Bahawalpur whereby both of them were convicted under section 302 read with section 34, P.P.C. For the murder of Muhammad Fayyaz and each one of them was sentenced to life imprisonment. Under section 337-A(ii)/34, P.P.C. Rabnawaz and Ghulam Sarwar were convicted for causing injuries to Muhammad Riaz and each one of them was sentenced to undergo imprisonment for a period of five years by way of Tazir. Both of them were further directed to pay Rs,50,000 as compensation to the legal heirs of the deceased as required under section 544-A, Cr.P.C. In case of default each one of them was further ordered to undergo R.I.
For a period of six months each. The sentences were to run concurrently and benefit of section 382- B, Cr.P.C. Was extended.
2. Muhammad Ramzan complainant has filed Criminal Revision No,76 of 1994/BWP in which notice has been issued to show cause as to why the sentence of life imprisonment be not enhanced to death.
3. We intend to deal with both these matters through this single judgment.
4. The occurrence took place resulting in the death of Muhammad Fayyaz and injuries to Muhammad Riaz on 5-8-1993 at 8-9 a.m. In the street of Chak No,25/Israni, Tehsil Khairpur Tamewali, District Bahawalpur lying at a distance of 17 k.Ms from Police Station Khairpur Tamiwali.
Complaint was made by Muhammad Riaz P.W.8 and was recorded by Muhammad Nawaz, A.S.-I.
P.W. 6 on 5-8-1993 at 12-15 p.m. At the hospital which was sent to the police station through a constable and the formal F.I.R. Exh. PF/1 was registered at 12-35 p.m. The allegations contained in the First Information Report, authored by Muhammad Riaz, is that on the day of occurrence he after picking the dates was coming back home when Rabnawaz son of Dur Muhammad armed with a Wahola and Ghulam Sarwar son of Ghulam Muhammad armed with a hatchet residents of the village made appearance and while raising Lalkaras that he is going to be taught a lesson for giving beating a day earlier to their brother-in-law Muhammad Sadiq, abused him which he replied in the same coin triggering Ghulam Sarwar to catch hold of him from his collar whereas Rabnawaz gave a Wahola blow which hit him on his head. His brother Muhammad Fayyaz came to his rescue upon which Rab Nawaz caught him by his collar and Ghulam Sarwar "gave him a blow with his hatchet on the left side of his head as a result of which Fayyaz fell to the ground and became unconsious. The occurrence was witnessed by Ghulam Rasool and. Muhammad Khan who beseiged the culprits not to indulge in further fighting. He put his brother in a wagon and brought him to Khairpur Hospital where his statement Exh. PF was recorded.
6. Muhammad Nawaz, A.S.-I. After recording the statement of Muhammad Riaz prepared his injury statement Exh. PG and that of Muhammad Fayyaz as Exh. PH. He visited the place of occurrence and took into possession blood-stained earth vide memo. Exh. PM. Muhammad Riaz was shifted to Bahawalpur Victoria Hospital where he died on 7-8-1993. The Police Officer reached the hospital and prepared the inquest report Exh.PB and handed over the dead body to the constable for taking it to the dead house for post-mortem examination.
7. Saeed Ahmad, Inspector took over the investigation on 8-8-1993 and on 14-8-1993, he arrested Rabanwaz and Ghulam Sarwar. On 17-8-1993 Rabnawaz accused led to the recovery of Wahola P.3 from the room of his house which was taken in possession vide memo. Exh. PD. Similarly Ghulam Sarwar led to the recovery of blood-stained hatchet P.4 which was taken in possession vide memo.
Exh. PE.
8. Dr. Muhammad Akhtar Javed, Chief Medical Officer, B.V. Hospital, Bahawalpur on 7-8-1993 at 11- 45 p.m. Conducted the post-mortem examination on the dead body of Muhammad Fayyaz aged 24 years and found the following injuries on his person:--
(1) There is a stitched wound 5 c.m. On the left upper parietal area.
(2) On dissection there is a large heamatoma under the scalp of the left parietal, left occipital, left temporal, right temporal, right parietal. And occupital area. The right temporal and right parietal, left temporal and left parietal bones were fractured. Petrous temporal part of the bone also showed fracture lines. There is huge haematoma on the right occipital, right temporal, right partietal and left partietal and left occupital area of the brain. Clotted blood was also present at the base of the skull.
' After thorough external and internal post-mortem examination he concluded that injury No,1 leading to skull fracture haematoma and brain damage leading to haemorrhagic and neurogenic shock was sufficient to cause death in the ordinary course of life. The injury was ante-mortem in nature and caused by blunt-edged weapon. Probable time that elapsed between the injury and death was within five days and between death and post-mortem was within 16 hours.
9. Dr. Ashiq Ali, Medical Officer, Basis Health Unit Chellay-wahin, Tehsil Khairpur Temewali on 5-8- 1993 12 noon examined Muhammad Riaz aged 24 years and found the incised wound 10 c.m. x 2 c.m. On the left side of head oblique in direction. The underline been was visible. The injury was caused with sharp weapon and was declared as Shajjah Mudahah.
10. Dr. Abdul Rauf appeared as D.W.1 and stated that on 5-8-1993 at about 6 p.m. He medically examined Ghulam Sarwar accused and found the following injuries on his person:--
(1) 1/2 inch blunt injury on left wrist-joint with laceration and bleeding.
(2) Blunt injury on forehead 1 inch lenier above left eyebrow.
(3) Blunt injuries on scalp with swelling and tender to touch (three in number).
(4) Deep blunt injury with leaceration on right ankle joint (medial position) with bleeding.
(5) Multiple blunt injury on chest and scapular region with blunt weapon. Chest tender to touch.
(6) Temperature 103 degree. Difficulty in walking. Natures of injuries are simple.
11. After submission of the challan the appellants were indicted, they denied the charge, pleaded not guilty and claimed a trial. Prosecution examined as many as 11 witnesses. The ocular testimony account was furnished by Riaz P.W.8 and Mahmood P.W.9. Public Prosecutor tendered in evidence report of the Chemical Examiner Exh. PT wherein the hatchet recovered from Ghulam Sarwar was declared to be stained with blood and the report of the Serologist Exh. PU confirmed that the blood was of human origin.
12. Ghulam Sarwar appellant when examined under section 342, Cr.P.C. On 25-9-1994 denied his participation in the occurrence and stated that he was falsely involved in the case as the prosecution witnesses were inimical towards him. He, however, produced in writing Exh. DA wherein he took a totally different stand by stating that on 5-8-1993 in the morning when he was going towards his shop he crossed the house of Fayyaz and Riaz and a day earlier because of dispute of sullage of rainy water they had slapped their old relative Muhammad Sadiq. Ghulam Sarwar objected to Riaz about this behaviour when Rab Nawaz also arrived. Riaz alongwith his brother Fayyaz gave stick blows to Ghulam Sarwar and Rabnawaz, Ghulam Sarwar, appellant, picked up a stick from the house of one Riaz D.W. And in order to save his life he alongwith Rab Nawaz gave single blow to each Riaz and Fayyaz and thereafter they ran away. He went to Civil Hospital, Khairpur to get himself examined medically but he was refused examination constraining him to go to Bahawalpur where Capt. Dr. Abdul Rau(examined him and supplied him a medical certificate.
13. Rebnawaz denied his participation in the occurrence and stated that he was falsely involved in the case because of enmity with the witnesses and asserted that on the day and time of the occurrence he was present performing his duty as a Chowkidar in the Food Department.
14. Learned counsel appearing for the appellants stated that Ghulam Sarwar acted in the exercise of right of self-defence and gave one blow only which proved fatal. The denied participation of Rahnawaz in the occurrence and while criticizing the judgment of the trial Judge pleaded for acquittal. Conversely learned counsel appearing for the State supported the conviction and sentence recorded by the trial Judge.
15. We have attended to the arguments addressed by the respective counsel and have also perused the record.
16. The eye-witness account was furnished by Riaz P.W. 8 and Mahmood P.W.
9. Both of them have reiterated the contents of the F.I.R. Riaz is an injured witness and his presence at the spot cannot be denied. Even otherwise Ghulam Sarwar in his written statement Exh. DA has admitted the presence of Riaz. Earlier quarrel in which Sadiq was slapped is also admitted by the witnesses. However, it is denied that the injuries caused to the deceased by the appellants was in the exercise of right of self-defence. On the other hand we find that Ghulam Sarwar had six inuries on his person. From the nature of the injuries all of them seem to be caused with a blunt weapon. It is not denied that the accused and the complainant live in the same lane nearby. The prosecution having proved its motive which is admitted by both sides that earlier Sadiq an old man was slapped by Riaz the present incident took place in the street undoubtedly. Ghulam Sarwar received injuries probably with a stick at the hands of the deceased and the complainant as the medico- legal examination conducted by D.W.1 suggested if the injuries on the person of Ghulam Sarwar are relegated it would correspond with the time of occurrence given by the prosecution. On the other hand one blow was caused to the deceased by Ghulam Sarwar and another blow to the complainant by appellant Rabnawaz. The only question which falls for resolution by us is whether the appellants were within their right of exercise of private defence in causing death of the deceased and injuries to the injured P.W. Or did they exceed such right. Section 100 of the Pakistan Penal Code is reproduced as under:-- "100. When the right of private defence of the body extends to causing death.-- The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or 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: ' Firstly: Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; ' Secondly: Such an assault as may reasonably cause the apprehension that grievance hurt will otherwise be the consequences of such assault; "
17. A bare reading of the provisions of law reproduced above would show that right of self-defence available to a victim can extend to the extent of causing death of the assailant if the apprehension of death of grievous injury is forthcoming at the hands of the assailant.
18. Section 101 (ibid) is also relevant and when reproduced read as under:-- "101. When such right extends to causing any harm other than death.---If the offence be not of any of the descriptions enumerated in the last preceding section, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in section 99, to the voluntary causing to the assailant of any harm other than death."
19. The conjunctive readings of both the provisions of law leads to rational and prudent conclusion that only where the victim apprehended death or grievous injury at the hand as of the assailants he can cause death of the wrongdoer to protect his own body and if the apprehension is of such a nature that any harm other than death or grievous injury is feared then the harm to be caused may be any except death of the assailant. Apprehension is not merely a state of mind or an inchoate fact. To the contrary it is a tangible act, corporeal in nature depending upon mainly, the type of weapon being used by the assailant and of course past enmity and the prevalent threatening posture. The medico-legal examination conducted by Dr. Abdul Rauf, Medical Officer, Bahawalpur Victoria Hospital conclusively suggests that all these injuries were caused with blunt weapon and were not in any manner dangerous to life or grievous in nature. We can, therefore, safely reach the conclusion that Ghulam Rasool did not apprehend death or grievous injury at the hands of Ghulam Sarwar or Rabnawaz as such right of self-defence, if any, available to him did not equip him with the right of self-defence to the extent of taking the life of Fayyaz deceased. Prior to the promulgation of Qisas and Diyat Ordinance, act committed by the appellants, under scrutiny, fell within Exception II to section 300, P.P.C. And was punishable under section 304, Part I, P.P.C. The apex Court from time to time has held that the cases falling under the former exceptions to section 300, P.P.C. Are now covered under section 302(c), P.P.C. For the purpose of punishment. We, therefore, hold that the injury caused by Ghulam Sarwar to Fayyaz was grossly in excess of right of exercise of self-defence available to him. It would be worthwhile at this stage to examine the damage done by the injury caused to the deceased. The right temporal, right parietal, left temporal and left parietal bones were fractured. Petrous temporal part of the bone also showed fracture lines. Clotted blood was present at the base of the skull. Although the injury caused by Ghulam Sarwar was from the wrong side of his hatchet but tremendous force was used to quieten the deceased. We, therefore, find that the sentence imposed was strictly in accordance with law. By rejecting the appeal of Ghulam Sarwar we alter his conviction to section 302(c), P.P.C. And the sentence of imprisonment of life is maintained. However, Rs,50,000 of compensation is reduced to Rs,20,000 and on his failure to pay the amount to the heirs of the deceased he shall undergo six months' imprisonment. Conviction of Ghulam Sarwar for offence under section 337-A(ii)/34, P.P.C.
For causing injuries to Riaz cannot be sustained as no vicarious liability is forthcoming on record as such his conviction and sentence under section 337-A(ii), P.P.C. Is set aside.
20. As far as Rab Nawaz is concerned he can only be labelled for causing injuries to Muhammad Riaz P.W. 8 and cannot be made liable for sharing common intention with Ghulam Sarwar for causing death of Muhammad Fayyaz. His conviction and sentence under section 302, P.P.C. For the murder of Muhammad Fayyaz is set aside. However, his conviction under section 337-A (ii), P.P.C.
For causing injuries to Muhammad Riaz P.W. Is maintained. Compensation is reproduced to Rs,5,000 which he shall pay to Riaz P.W. And on his failure to do so he shall further undergo six months' imprisonment. Since Rabnawaz is in continuous incarceration from 5-8-1993 period of imprisonment for the offence of causing injuries to Riaz P.W. As well as imprisonment in default of payment of compensation, we are sure, must have ended, therefore, he shall be released forthwith if not required in any other case.
21. Criminal Revision for reasons rendered in the appeal is dismissed.