JUDGMENT

Scott-Smith, J. - Muhammad Akbar has been convicted by the Sessions Judge of Mianwali of the culpable homicide not amounting to murder of Rohtas by striking him a single blow on the head with a wahola. Various discrepant accounts of what actually occurred have been given in the first information report and by the witnesses for the prosecution and these are set forth in detail by the learned Sessions Judge in his judgment. The Judge agreeing with the Assessors has accepted the version given by Nawaz Khan, P.W. No. 7. According to him there was a dispute between Muhammad Akbar and his relations on the one side and Rohtas and his relations on the other as to the produce of a certain piece of land, and it appears that on the day of the occurrence Muhammad Akbar along with his father, uncle and cousin, was proceeding to the threshing floor of Khalil Khan in order to get the half share of the produce claimed by them. Muhammad Akbar had in his hand a wahola such as zemindars, according to Nawaz Khan, usually carry with them when they are winnowing their crops. The other three men with him had no weapons. Rohtas was having a bath in a khola and seeing them, came out. He had only a loin cloth on him and told Muhammad Akbar to stop. He then went back to his house and Nawaz Khan, fearing that there would be a fight, told his mother to shut him inside the house. This she did, but in spite of it he came out with a dang and when Nawaz Khan tried to stop him he got past him and struck a blow on the head of Muhammad Akbar with the dang. Muhammad Akbar had a chadar tied on his bead as protection against the sun and the blow glanced off his head and fell on his shoulder. That he did receive a blow of this sort is supported by the Medical evidence. Muhammad Akbar retaliated by striking Rohtas, on the head with the wahola which he was carrying. This blow fractured Rohtas' skull and resulted in his death.

2. The Sessions Judge is of opinion that the appellant could not plead that he was acting in the exercise of his right of private defence because be, accompanied by his relations, had gone to the threshing floor with the intention of enforcing his right to a share in the produce. At the same time, the Judge admits that nothing would have happened had not Rohtas been so excited and rushed out of his house and attacked Muhammad Akbar. Now, according to Nawaz Khan, the appellant and his relations were proceeding to the threshing floor when the witness told them not to do so and they stopped. It does not appear that their attitude was in any way aggressive when Rohtas rushed out and without being attacked or threatened in any way struck a blow on Muhammad Akbar's head with a dang. Rohtas was evidently in a violent rage at the time, and I cannot agree with the learned Sessions Judge that Muhammad Akbar was not entitled to defend himself against such an attack, simply because he and his companions had gone to get the share of the produce to which they thought they were entitled. The case would have been different had Muhammad Akbar's companions also been armed and had their attitude shown that they intended to take the share of produce by force, if necessary. According to Section 100, Indian Penal Code, the right of private defence of the body extends under the restrictions mentioned in Section 99, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be such an assault as may reasonably cause the apprehension that death or grievous hurt will otherwise be the consequence of such assault. Now, having regard to the evidence of Nawaz Khan, I have no doubt at all that the assault committed by Rohtas was such as might reasonably cause to Muhammad Akbar the apprehension that death or grievous hurt would result to him if be did not strike Rohtas. He used the weapon which he had in his hand at the time ana I see no reason to suppose that he took the wahola with him in order to u