MUHAMMAD SIDDIQUE Versus THE STATE Ashiq Hussain Malik , Sarfraz Hussain for the State.
Muhammad Siddiq appellant was tried by the Sessions Judge, Faisalabad for having murdered Naseer, his sister's son at Jhikki Deegarwela on 29‑8‑1978 in the area of Chak No 214/G.B. at a distance of 10 miles from Police Station Samundri.
2. Learned Sessions Judge convicted the appellant under section 304, Part‑I, P.P.C. and sentenced him to undergo R.I. for 7 years plus to pay a fine of Rs.2,000 in default whereof to suffer further R. I. for 6 months, vide order dated 17‑3‑1980
3. The convict has filed appeal.
4. F.I.R in this case was lodged by Hasan Muhammad PW5, father of the deceased at 8‑30 a. m. on the same day.
5. Prosecution case at the trial was that Muhammad Siddiq appellant had accompanied his brother Bashir Ahmed to the house of Hasan Muhammad P.W.5 for requesting him to give the hand of his daughter Mst. Sughran Bibi for Abdul Khaliq, brother of wife of Bashir Ahmad. The proposal was turned down by Hasan Muhammad and his deceased son Naseer Ahmad. An altercation took place between the parties where the deceased grew furious and gave shoe beating to Muhammad Siddiq, who was his real maternal uncle. A few days thereafter Bashir Ahmad visited the house of Hasan Muhammad complainant and took away his (Siddiq's) sister Mst. Naziran and her daughter Mst. Sughran Bibi. Hasan Muhammad went to Chak No. 214/GB alongwith Ghulam Nabi, Abdul Hameed and Naseer Ahmad. There again Muhammad Siddiq appellant made a demand that Mst. Sughran Bibi should be married, as proposed by them. There was again an altercation. The appellant took out a knife from his fold and after raising lalkara caused an injury on the abdomen of the deceased. The deceased has also given a soti blow on the head of the appellant in order to ward off the attack.
6. At the trial, prosecution in all examined ten witnesses. Hasan Muhammad P.W. 5 father of the deceased and Ghulam Nabi P.W.6 son of brother of Hasan Muhammad gave the ocular account. Medical evidence regarding the injury found on the body of the deceased and the injury suffered by the appellant as well as the evidence of recovery of knife P.3 at the pointing out of the appellant was also led at the trial.
7. The appellant during his statement under section 342, Cr.P.C. while denying the prosecution case, stated as follows in answer to the question, 'do you want to say anything else'
"Mst. Sughran is my sister's daughter. She was engaged to be married with Khaliq who is our cousin. Hassan Muhammad refused to give the hand of Mst. Sughran to Khaliq. Thereon some domestic quarrels arose and my sister took Mst. Sughran to Rahim Yar Khan where my brother Bashir Ahmad was a school Teacher. On 28‑7‑1978 Nikah ceremony was performed between Sughran and Khaliq. I produce the Pert Nikahnama Ex. DB. On hearing this news Hasan Muhammad and Nasir were enraged. On the day of occurrence at about 10 a.m. I was sitting under the shade of Jaman tree near my field when Hasan Muhammad and Nasir Ahmad came and asked me to go with them to bring back Mst. Sughran. I declined and they started abusing me and Nasir Ahmed gave me a dang blow on my forehead. I struck back with the sickle in my hand in order to avoid more blows. He fell down. I reported the incident to Ibrahim Lamberdar of our Chak. The police came at night time. I remained with Ibrahim Lamberdar who handed over the sickle to the Police and I also appeared the same night. The prosecution version has been wrongly worded."
8. Learned trial Judge did not believe the prosecution version of the occurrence and came to the conclusion that the version put forth by the appellant seemed to be more plausible and nearer the truth, in that he particularly took note of the fact that the explanation given by the prosecution that the appellant was given an injury on his head by the deceased, before he had suffered injury at the hands of the appellant, did not seem to be correct as the deceased would not have been able to cause the injury after having suffered the injury found on his abdomen which culminated into his death.
9. Apart from other points taken note of, the major aspect which weighed with learned Sessions Judge was also the fact that Mst. Sughran Bibi by that time had already been married to Abdul Khaliq and a copy of the Nikahnama (Ex. DB) had been produced in" defence, and so there was no reason for the appellant to have pleaded for the hand of Mst. Sughran Bibi.
10. It was never the case of the appellant that he had not caused injury to the deceased or that the deceased had not died as a result of the injury inflicted by him. His stance before the trial Court as well as before this Court is that he had acted in self‑defence, that he had not exceeded his right and so deserves to be acquitted.
11. Learned counsel appearing for the appellant strenuously argued that the appellant would have begotten genuine apprehension of imminent danger at the hands of the deceased after the latter had inflicted injury on his head which is a vital part and so he acted in self‑defence in a manner which cannot be addressed as having acted beyond his right to private defence, particularly for the reason that he had not caused more than one injury. Learned counsel argued that being a lay‑man the appellant could not have known that the injury, he was going to inflict to counter the attack, might result into death of Naseer. Learned counsel cited Rahmat Ali v. The State (1972 P Cr. L J 1356) and Faqir Muhammad's case (P L D 1983 Lah. 542) in support of the argument that in such a situation, the appellant deserves acquittal.
12. I feel no hesitation in agreeing with learned counsel for the appellant that the injury found on the person of the appellant could, not have been inflicted by the deceased after having suffered injury on his abdomen because the nature and gravity of that injury, is such that the deceased, would not have remained in a position to wield a Danda and strike at the head of the appellant. However, I do not agree with him that the appellant did not exceed the right of private defence. The injury, the appellant was found to have suffered, was although on the head, nonetheless it was simple in nature. It is not the case of the appellant that the deceased had attacked him by way of pre‑meditation or that he had the support of any body else in causing injury to the appellant. In fact, something untoward seems, to have been uttered by the appellant which provoked the deceased' to strike him. The infliction of a simple injury by the deceased to the appellant, did not call for taking away his life. The seat ox injury, the nature of injury and the weapon used by the appellant shows the degree with which he re‑acted. He could have warded of the possibility of repetition of injury by the deceased by doing lesser' harm by inflicting injury on some lesser vulnerable part of the body.
12. The facts of the case reported at page 1356 of P Cr. L J 1972 are different. In that case the4 deceased after launching attack on the appellant had not estopped after giving one, two or three blows. He had given repeated blows causing in all eight injuries and it was in that situation that the appellant had re‑acted by causing one injury I" x I" on the left side of chest.
In Faqir Muhammad's case (P L D 1983 Lahore 542) both the appellants were found to have been caused injuries by the deceased. One of them had suffered an incised wound on the umblical region of the abdomen while the other was found to have suffered reddish contusion 13 x 4 c.m. with swelling 11 x 9 c.m. on the back of left shoulder joint. The deceased on the other hand was found to have suffered a lacerated wound on the parietal region and two swellings on the temporal parietal region and forehead.
It is clear that in, Rahmat Ali's case (1972 P Cr. L J 1356) the appellant had suffered quite large number of injuries while in Faqir Muhammad's case (P L D 1983 Lah. 542) two persons accused of causing injuries to the deceased had suffered injuries and one of them had been given injuries with a sharp‑edged weapon. In the case in` hand the appellant had suffered only one simple injury.
Having considered all aspects of the case I am convinced that the appellant had exceeded the right of private defence and so he has rightly been convicted under section 304 Part‑I, P.P.C. His conviction is maintained. However, considering the fact that he had 1 caused only one injury to the deceased, I think that the sentence of five years' R.I. plus to pay a fine of Rs.2,000 in default whereof to suffer further R.I. for six months (the fine on realization to be paid to the father of the deceased) will meet the ends of justice. Order accordingly. The appellant shall also be given benefit of the provisions of section 382‑B of the Code of Criminal Procedure. Since the appellant is on bail, his bail bonds are cancelled, he shall be taken into custody and sent to prison to suffer the remaining portion of his sentence.
S. A./ M‑502/ L Appeal dismissed.