1984 PLP 950 (SCMR)

M. S. H. QURAISHI, J.‑These two petitions, the first filed by the convict, ‑1luhammad Shafi, and the other by the complainant, Muhammad Nawaz, are directed against the judgment dated 4‑4‑1984 of the Lahore High Court.

2. Muhammad Shafi and his two sons Javid Iqbal and Muhammad Saleem had been tried under section 302/307/34, P. P. C. for causing the murder of Muhammad Islam and injuries to his brother Muhammad Nawaz Complainant in the result of which Muhammad Saleem was acquitted, Javid Iqbal was held guilty only under section 323, P. P. C. but Muhammad Shafi `as convicted under section 304, Part 11, P. P. C. and sentenced to R. 1. for years plus a fine of Rs.5,000, or in default in payment thereof, to undergo further R. I. for one year. The amount on realization was to be paid to the heirs of the deceased. On appeal, the High Court maintained the conviction of Muhammad Shafi but reduced his sentence of imprisonment R. I. for seven years and enhanced the amount of fine to Rs. 7,000 in fault in payment of which he was to suffer R. I. for two years. The revision led by the complainant, seeking alteration of the conviction from section 304, part II to 302, P. P. C. and for enhancement of the sentence was dismissed.

3. Both parties had their houses in the same street. According to the prosecution the complainant had collected some money from the residents of street, including Rs. 20 from Muhammad Shafi, for earth work in the street but on Muhammad Shafi's objection to the earth work having not been completed up to the door of his house, the complainant told him that he would arrange for two carts of earth and Muhammad Shafi should arrange for similar quantity, The same day, that is, on 27‑8‑1979 at 6 p.m., Muhammad Shah,, however, let his water‑tap open with the result that the water started flowing in the street to which the complainant objected, which resulted in exchange of abuses. Muhammad Islam deceased, on hearing the noise, came out of the house and tried to pacify him. Muhammad Shah, went to his house, but a little later, he armed with a chhurri, his sons Javid Iqbal armed with a lathi, and Muhammad Saleem empty‑handed came out and while Muhammad Saleem held the deceased in his japhha, Muhammad Shall inflicted a chhuri blow on the left side of the chest and another blow causing injury on the left hand of the deceased. In the mean time, Javid Iqbal gave two soti blows on the bead and right shoulder of the complainant. Muhammad Riaz, another brother of the complainant, also came and saw the occurrence. The two brothers removed the deceased to hospital where he was medically examined but died soon thereafter, whereupon the complainant went to the police station and lodged report. Muhammad Shah who was arrested on 29‑8‑1979 led to the recovery of a blood‑stained chhuri from his house, as also his kurta, salooka and dhoti, all blood‑stained. The medical evidence supported the prosecution case inasmuch as an incised wound 1.5 cm x 1/2 cm x chest deep on the front of left chest, which proved fatal, and three superficial incised wounds between the left thumb and index finger were found on the person of the deceased, while a lacerated wound on the back of bead at middle part and some abrasions were found on the person of the complainant, which were all simple. Muhammad Shaft also was found to have a contused wound 2 cm x 1/2 cm x scalp deep, over left side of the back of head, an inflammed confusion 1 1/2 cm x 1 cm on the abdomen and a contused wound 3/4 cm x 1/4 cm x skin deep on the back of right middle finger, which were all simple and caused by a blunt weapon.

4. The prosecution case was fully supported by Muhammad Nawaz complainant and Muhammad Riaz, the two brothers of the deceased. Muhammad Shah denied having contributed to the fund for the earth work and yet stated in response to another question that the complainant had "refused to carry on any more repairs". He denied his involvement in the occurrence but when asked to explain his injuries, he stated "I was subjected to aggression by the deceased".

5. Muhammad Shaft's main plea before the Courts below had been of having acted in self‑defence on the basis of the injuries on his person the Courts below, however, found that the injuries were minor and could have been caused during the scuffle and that there was no material to show that the same were attributable to the deceased. In fact the suggestion put to A the prosecution witnesses had been that the injuries had been caused by the complainant. In the circumstance the High Court came to the view, and rightly so, that no case was made out for having acted in self‑defence against the deceased much less of having exceeded the right of self‑defence. The High Court even doubted the connection of the injuries of Muhammad Shah with the occurrence, for the reason that although Muhammad Shah had been arrested two days after the occurrence he had not submitted himself to medical examination during that time. The High Court, therefore, maintained his conviction but considering that he had practically inflicted only d one injury, that the other injuries being superficial and having been between the left thumb and index finger could as well have been sustained to the process of warding off the main injury, that He had not acted in a cruel manner and that there was no animus between the parties prior to the occurrence, reduced the sentence of imprisonment as aforesaid.

5. Before us learned counsel for Muhammad Shah has vigorously pressed the case of his client having acted in self‑defence, but he was unable to explain specifically how death or grievous hurt could reasonably be apprehended from the deceased. The complainant party was not even armed. We are, therefore, satisfied that the plea of self‑defence had been right rejected. As regards the other petition, we find that the High Court ha given reasons for not altering the conviction from section 304, Part II to 302 or 304, Part I, P. P. C. and for not awarding the maximum sentence of imprisonment under section 304 Part II, P. P. C. In this connection it expressed the view that "The mere fact that the appellant was alleged to have been armed with a knife and had caused injuries with the same, is no proof of the fact that he had clear intention of committing murder, or had caused injuries with the intention of causing death".

6. No case is thus made out for interference with the impugned judgment. Both the petitions are dismissed. M. Z. M. Petition dismissed.