MUHAMMAD YOUSAF AND OTHERS vs THE STATE

1. MUHAMMAD AFZAL ZULLAH, J.-The question of law noted for grant of leave to appeal from judgment of the Lahore High Court dated 11-10-1978, in A a case of murder, is as follows :- "The legal question which arises for consideration is whether after disbelieving the prosecution case that the petitioners lay in ambush and started unilateral attack on them and also after recording the finding that Islam (appellant) received injuries first and at a time when others (appellants) for his help had not arrived at the scene, could it be said that the right of self-defence of person was not available to the petitioners at all."

2. ' Ten men were put on trial for the murder of Abdul Latif and injuries to two P. Ws. Namely Muhammad Islam and Abdul Majid. One of the accused died during the trial. Three were acquitted by the learned trial Court and the High Court and one died during the pendency of this appeal. The five (appellants) are, alongwith others, alleged to have attacked the complainant's side with sharp and blunt weapons after laying in ambush for them, due to mutual enmity, on the use of a well.

3. ' Muhammad Latif deceased had suffered "multiple stick marks and contusions all over the body" but as the doctor further explained the important wounds were one incised, on forehead bone deep and two contusions 6" x each on the head and right ear ; Muhammad Islam P. W. Had one incised wound on right thumb skin deep, one contused wound li" x i" x bone deep on the head and nearly two dozen contusions and abrasions on hands, arms and legs ; and, Abdul Majid P. W. Had one incised wound 1" x 11' x 1i" on left forearm and 3 swellings and a contusion on left arm and buttock. While Islam accused appellant had three typical sword wounds two on the head and one on right forearm.

4. ' The defence plea was one of complete right of private defence ; that Islam appellant was already working at the disputed well when the three injured from the complainant side came and launched an attack during which Abdul Latif deceased used a sword. The ambush story was denied, but causing of injuries to the other side was admitted.

5. ' Although the learned trial Judge believed the prosecution case about ambush and attack on the complainant side, and variously sentenced the accused under sections 302, 326 and 325 read with section 149, P. P. C. The learned Judges in the High Court disbelieved the ambush story as false and held that Islam appellant suffered the injuries piror in time, i,e,, he was attacked by the complainant side. The right of self-defence, however, was denied to the accused because "the infliction of innumerable injuries on the deceased and a large number of injuries on Muhammad Islam and Abdul Majid P. Ws. Takes the case of the appellants outside the ambit of private defence." It was also held that due to the same reason they could not have genuinely felt justified in beating up the complainant party. Accordingly conviction ; amongst others was, maintained under section 302, P.

6. P. C. Though sentence of death against Islam appellant was reduced to imprisonment for life.

7. Leave to appeal was granted by this Court as already noted tale examine the question of exercise of right of private defence.

8. ' In the very outset it needs to be observed with respect, that when applying the test under section 99, P. P. C. To the effect that 'no harm is to be caused other than what is necessary for the purpose of defence the learned Judges in the High Court fell into error in thinking that the number of the injuries caused by the accused was the only consideration. The nature C of the injuries suffered by Islam appellant, the weapons used against him, the number of persons who launched the attack on him, and question as to what could have been the result if the accused when defending Islam would not have acted in the manner they did, amongst other circumstances, could not be ignored.

9. Apart from the proportion, ratio and nature of harm on each side in addition to the extent, proportion and ratio of apprehension, keeping in mind the number of men and material on each with the background of initial advantage of surprise are amongst other several important factors, to be considered. One such factor is 'good faith' on the part of the accused when acting in private defence, but in modulations during the occurrence their act should not be weighed in golden scales. The rule laid down by this Court in Ahtnad and others v. The State though could be attracted when the injuries on the complainant side are numerous, but the other test laid therein, i,e, of 'good faith' could not be ignored. In this behalf some of the relevant considerations have also been highlighted in Muhammad Yaqub v. The State . Various aspects and facets of self-defence of person (it being complete, exceeded or negated) noted therein, can also be kept in view when resolving the controversy, as is involved in this case.

10. ' One of the injuries suffered by Islam appellant was 4 x 3' on the head. The scalp was sliced down to the ear with the result that those who saw him must have observed the hanging overturned scalp and exposed skull with combined bloody area of 4' x 6'. Apart from this there was another big wound 8 long besides the 2nd wound on head 34" x 4". His condition then must have been miserable. Three men of the complainant side who attacked Islam including the deceased were carrying lethal weapons. There is no indication that they had no intention of causing him more harm, nor it is possible to hold that the second and third injuries were not caused to him after his helpers, who came from nearby houses and fields (story of ambush not being reliable), had started defending him. They were not all carrying sharp-edged weapons. There is only one injury each with such weapon on the injured on the complainant side. Moreover although these injuries are numerous but a large majority of them are. On non-vital parts of body which shows a deliberate effect not to cause more harm than was necessary to save Islam. The good faith is not lacking nor the harm done to save -him was disproportionate to the then threatened harm to him. It was not a case of revenge and spite though the beating given to the complainant in the afore-noted process1 2 was, no doubt, very severe. And if the appellants are allowed the further benefit of human error in making the judgment in the heat of the moment in absence of any golden scales, their plea would in no case be negated by any bar contained in section 99 of P. P. C. That being so, they were entitled to complete right of private defence. We accordingly allow this appeal, set aside their conviction and sentences and acquit them. They shall be set at liberty unless required in any other matter. PLD 1971 SC 720 PLD 1974 Lah. 274