MUHAMMAD RIAZ Versus STATE
This appeal from the judgment of the learned Additional Sessions Judge, Hyderabad, convicting the appellant for an offence under section 304 (11), P. P. C. and sentencing him to undergo R. I. ‑for 10 years, arises in the following circumstances :‑
1. The appellant and Ali Dad, since deceased, were Warders in Nara Jail. On the night of 14th June 1969, they were sleeping in the Bachelors Barrack. There were some other Warders sleeping at some distance. The prosecution story is that in the dead of the night, Alidad came to be murdered by the appellant by inflicting Danda blows. As a result of the commotion. the other warders reached the vardat, Alidad could not speak and when the Doctor was immediately summoned, he was found to be dead. The news was carried to the Superintendent of the Jail who gave a telephonic message to the police. Men a report was sent which reached the police authorities the next morning at about 8 a.m.
2. The appellant was apprehended at the spot and was produced before the police on their arrival. The S. H. O. secured the blood‑stained articles and prepared a mashirnama. The dead body was then sent for post -mortem examination.
3. As the appellant was willing to make a judicial confession, he was sent to the Ilaqa Magistrate, Hyderabad, where the confession was recorded. After due investigation, the case was sent up in Court.
4. The appellant in his statement at the Court of Inquiry as well at the trial maintained that on the night of the 12th of June 1.969, Alidad had beguiled him to the banana plantation in the backyard of the jail, and wanted to commit sodomy on him. Finding himself helpless, he had agreed to the proposal and even taken off bib shalwar. Finding an opportunity he however made good his escape and reached the barrack in that. undressed state. He had reported the matter to the authorities also. On the night of the incident, he had gone to the place where Alidad was sleeping, to help himself with a glass of water. Seeing him (the appellant), Alidad wanted to overpower him to satiate his unnatural lust. Finding a Danda closeby, he (the appellant) had wielded the same to escape from the clutches of Alidad. He has also stated that he had not tried to run away and actually wanted to go to the Superintendent of the Jail to apprise him of the happenings. This is what he had to say also in the judicial confession made by him to which he stuck.
5. The injuries on the person of Alidad, as found by the Medical Officer, were as follows:‑
(1) A vertical contused wound 1.4 x 5 x muscle deep just behind the lower half of right ear, on the mastoid region, with swelling of mastoid area.
(2) A contused wound 8 x 2 rupturing the pinna of right ear com pletely and on the axis of and corresponding to injury No. 1.
(3) An abraided contusion 4 x 1 antero posteriorly just below the right ear on the face and right side of neck with fracture of mandible bone underneath.
(4) An abraised contusion 2 x 1 vertically across the middle part of the injury No. 3. The right side of the face and neck are greatly 1 swollen.
(5) An abraided contusion 2 x 1 antro posteriorly on the outer aspect of the top of the right shoulder.
According to the Medical Officer, all the injuries were ante‑mortem and had been caused with some blunt substance like a larhi. The Injuries Nos. 1 and 3 were sufficient in the ordinary course of nature to cause the death.
6. It is an admitted position that none of the prosecution witnesses had seen as to how the trouble started. They had got up when the appellant had struck and Alidad lay prostrate on the bed. It is also an admitted position that Alidad had not let fall a word. The other warders who were sleeping at some distance had been attracted to the place by the noise created. Ali Akbar has stated that two days before the incident, while he was sitting with, P. Ws. Fazal Elahi and others, he had seen the appellant coming without shalwar at about 9 p .m. They had asked him as to why he was undressed, but the appellant had remained quiet. It was after he had dressed himself properly, that he had told them as to how he had been taken to the banana plantation and escaped from the hands of Alidad who was bent on committing sodomy on him. This position is also admit by Fazal Elahi and Shaikh harid. P. W. Durrani the Superintendent of Jail had denied, but Jamaluddin, the Deputy Superintendent, Jail has admitte that a com plaint to that effect had been made by the appellant against Alidad. It is also admitted by the prosecution witnesses that the water pitchers were kept at a distance of about I‑3 feet from the cot of Alldad. It is also admitted by P. W. Fazal Elahi that when the appellant had reached the barrack at about 8 p.m. he bad come empty‑handed. It is no body's case that the appellant had extended any threats to the life of Alidad. Even on the earlier occasion, all that he had done was to report the matter to his com panions and the authorities. Hussain Bux has also stated that .he had heard the shouts of leave me, leave me' at the time of the incident, but he could not say for certain as to whose dries those were.
7. The appellant has consistently maintained that he had gone near the cot of the deceased to help himself with a glass of water. There is nothing to disclose that water was available anywhere else near about. No body has stated that he bad seen the appellant having any Danda any time before the incident. According to him (the appellant), Alidad had caught hold of him, and looking to the earlier happening, there could hardly be any doubt in regard to his intentions. Even the learned additional Sessions Judge has found that the appellant had wielded Danda and caused injuries to escape from the clutches of Alidad who wanted to satiate his unnatural lust. He, however, was of the opinion that the appellant had exceeded the right of the defence of his person in having caused 5 injuries. Accordings to him, his shouts could have easily attracted the attention of ‑other warders who were sleeping at some distance from the cot of Alidad.
8. According to exception 4 of section 100, an assault with the inten tion of gratifying an unnatural last would give a right of private defence of body to the extent of causing death subject to the restrictions mentioned in section 99 of the Pakistan Penal Code It is to be remembered that the happening had taken place in the dead of the night, and the decision had to be taken at the spur of the moment. There are only five injuries caused three of which are simple in nature. These were inflicted in complete darkness obviously without any specific aim, to ward off the danger to which he wet exposed In the case of Mohd. Idris v. The State (P L D 1965 Lah. 553) the accused had caused as many a; 14 injuries, and the contention that the right of private defence had been exceeded, was repelled. After all the appellant might have feared that he could be overpowered and even disabled from raising any shouts. The apprehensions, in the circumstances of the case, ware not chimerical. ant to my mind, he will be entitled to the benefit of Exception 4 of section 100, P. P. C. I am therefore of the opinion' that his conviction would not be sustained.
9. In the result, I will set aside the' conviction and sentence and allow the appeal. The appellant is on bail, and his bail bond stands cancelled.
Appeal allowed.