1987 PLP 24 (SCMR)

Nemo for the State. Date of hearing: 4th February, 1987. SAAD SAOOD JAN, J.‑‑ This is a petition for special leave to appeal from the judgment of the Lahore High Court which upheld the judgment of the Sessions Judge, Jhang and maintained the conviction and sentences of the petitioner for an offence under section 302 of the Pakistan Penal Code. 2.When the petition was called for hearing neither the petitioner's counsel nor his Advocate‑on‑Record was present. We have, therefore, treated it as a petition from jail and examined the record by ourselves.

3. The petitioner and his brother Mumtaz Hussain were tried by the Sessions Judge, Jhang on charges under sections 302 and 307, read with section 34 of the Pakistan Penal Code for causing the death of Muhammad Ramzan and making a murderous assault upon the latter's son, Muhammad Nawaz. The learned Sessions Judge acquitted Mumtaz Hussain of both the charges and the petitioner of the charge under section

307. He convicted the petitioner of the offence under section 302 alone and sentenced him to imprisonment for life and to pay a fine of Rs.5,

000. The petitioner preferred an appeal before the High Court which maintained his conviction and sentences.

4. According to the prosecution the deceased was running a fuel stall in the vicinity of the house of the petitioner. On the morning of 28‑12‑1978 the deceased and his son noticed that some firewood from the stall had been pilfered away by Mumtaz Hussain on the previous night. The deceased called Mumtaz Hussain and lodged a protest. The accusation of theft was resented by Mumtaz Hussain and it led to a exchange of hot words between him and the deceased. Muhammad Nawaz tried to pacify them. Mumtaz Hussain called the petitioner from the house. The petitioner came out with a dagger and he attacked Muhammad Nawaz. Mumtaz Hussain also took out a dagger from the fold of his trousers and attacked the deceased. As a result the deceased was seriously injured. He was taken to the local civil hospital where he died.

5. At the trial the petitioner gave his own version of the occurrence. He stated that he alone was responsible for causing the death of the deceased. He alleged that on the night immediately preceding the day of occurrence the deceased stocked the fuel wood within the premises of a shrine which was administered by his father. Early on the morning of 28‑12‑1978 he saw the deceased cutting wood in the compound of the shrine. He asked the deceased to remove the wood as he would not permit the latter to set up a stall there. The deceased became indignant and infuriated and told him that he had no concern with the property of the shrine. This led to an exchange of hot words and then a scuffle. The deceased called his brothers‑ and nephews in order to teach him a lesson. The deceased also picked up a wood and aimed a blow on his head. Finding that the deceased as well as his sons were approaching him in order to attack him he picked up a Chaini (wedge) and struck the deceased with it on the chest. He did so entirely to protect himself and in exercise of his right of private defence of property He also stated that he was formerly a foot constable in the police but that he had to resign when he lost his mental balance. He further stated that he had spent some time in a lunatic asylum.

6. The trial Court and the High Court did not accept the ocular testimony in so far as the participation of Mumtaz Hussain in the occurrence was concerned and found that it was the petitioner alone who had killed the deceased. The trial Court also did not accept the story of the prosecution with regard to the murderous assault upon Muhammad Nawaz P.W. Both the Courts rejected the plea of private defence of person and property as set up by the petitioner and convicted him of an offence under section 302 of the Pakistan Penal Code for causing the death of the deceased.

7. It will be noticed that the petitioner has not denied that it was he who had caused the death of the deceased. We have examined his plea of private defence both of person and property but find no merit in it. No doubt the occurrence did take place within the premises of the shrine but there is evidence indicating that the deceased had been running his fuel wood stall within the premises of the shrine for quite some time prior to the occurrence. It was thus not a case, as alleged by the petitioner, where the deceased had surreptitiously placed his fuel wood on the night immediately preceding the day of occurrence. After his arrest a 9 inches long dagger was recovered at his instance. Now this is a type of weapon which one would not normally carry with him unless he had an aggressive intentions. The petitioner alleged that just prior to the occurrence there was a scuffle between him and the deceased. At the time of his arrest he did not have a single scratch to show on his person. His story that he had hit the deceased with a chisel is also not correct for the fatal injury received by the deceased was caused by a deep penetrating weapon like a dagger.

8. After examining the record we are satisfied that the High Court and the learned Sessions Judge were right in not accepting his plea of private defence both of person and property. He has already been given the benefit of the lesser sentence.

9. For the reasons stated above we find no merit in this petition which is hereby dismissed. M.I./M‑62/S Petition dismissed.