JUDGMENT

Mir Ahmad, J - This is a curious case. Sher Khan, Kamal Khan, Bahadur Khan and others, residents of Wazir Asperka (Domel ( Police Station, Bannu District) left their village on the evening of 16th October 1943. It is said that they went out in search of the cattle of Bahadur Khan and Sher Khan. They went to the village of Adhami Rasool Khan, and entered the courtyard of the Chauk (room for the villagers to sit in). A shot was fired from inside the Chauk, which hit Sher Khan, and killed him. Another Bahadur Khan, who was sitting in the Chauk, admitted that he fired at Sher Khan, and alleged that he had fired, because he suspected that the party consisted of his enemies, who had come to attack him. As a result, Bahadur Khan of Adhami Rasool Khan was sent up, and committed to the Court of Sessions, where he was tried under Section 802, Penal Code. Kamal Khan and Bahadur Khan (not the accused) of Wazir Asperka appeared to give the story set out above. They admitted that they were challenged by the people sitting inside the Chauk, and alleged that they answered that they were friends. They also admitted that Kamal Khan had a torch, and that he put the light on to the Chauk. They did not deny that the spot rang out directly the light was used. Mohammad Mir and Salim Khan, who belonged to Adhami Rasool Khan and were inside the Chauk, on the other hand, deposed that in spite of their challenge, the party of Wazir Asperka did not answer, and that one of them threw the torch light on them. They explained that it was for this reason that Bahadur Khan accused fired at them. Mohammad Mir repaired to the Police Station in company with one Haider, and made a report to that effect.

2. Mohammad Ibrahim Khan A. Section I. gave evidence with regard to investigation. The doctor stated that the deceased had received a bullet wound near the collarbone, which passed through and through. It ruptured the right lung and caused death. The accused made a clean breast of the affair. He said that he had killed the deceased by mistake. He stated that he had many enemies, and was very nervous about everyone, who visited his place. He was definite that the visitors did not answer when they were challenged. He did not produce any defence. The three assessors, who assisted at the trial, brought in a unanimous verdict of not guilty. The learned Sessions Judge, Derajat, was of the opinion that the accused had committed an offence under Section 804, Penal Code, inasmuch as he had exceeded the right of private defence of person. He therefore convicted him of that offence, and sentenced him to four years' rigorous imprisonment. The convict has come up on appeal to this Court.

3. Now, there is no doubt whatsoever that the accused fired in good faith thinking that he was acting in the exercise of the right of private defence of person against his enemies. To say that he exceeded the right of private defence is wrong, for either he had a right of private defence in full under Section 100, Penal Code, read with Section 79, Penal Code, or he had none. In a country like Bannu, where there is so much violence, a person, who has got enemies, would be very chary and would hasten to protect himself if he receives visitors at night, and the visitors do not disclose their identity at once. It would not make any difference whether in response to a challenge the visitors say that they are friends or keep quiet. It is the duty of such visitors to immediately disclose their identity, and to stay where they are when challenged, so that the inmates of the place should satisfy themselves that they are friends. The party of the deceased did not take any such precautions. Rather they kept their identity secret and on the top of it used a torch which would naturally arouse the suspicions of those inside the Chauk. I think in these circumstances the accused is: completely protected by Section 100, Penal Code, read with Section 79, Penal Code. I am fortified in this opinion by War