1987 PLP 1594 (SCMR)

ASLAM RIAZ HUSSAIN, J.‑‑This order will dispose of Criminal Petition No.319 of 1982 filed by Muhammad Mujahid against his conviction and sentence in a case under section 302 P.P.C., and Criminal Petition No.311 of 1982 filed by Abdul Majid complainant, against the acquittal of Muhammad Shahid of the charge under section 302, P.P.C. and for the enhancement of the sentence of Muhammad Mujahid, as both the petitions arise out of the same incident and are directed against the same judgment of the High Court dated 13‑6‑1982.

2. In this case there was a clash between the parties on the morning of 4‑12‑1976 and 3 persons namely Abdul Majid, Bashir Ahmad and Aqil were killed and three other persons, namely Bashir Ahmad, Noor Ahmad and Nasrullah were injured from the complainant side. And one person namely Abdul Sattar was killed and three persons namely Muhammad Mujahid, Sher Muhammad and Noor Muhammad were injured from the accused‑side, over a dispute relating to warabandi.

3. The defence took up the plea of sudden fight as well as the right of defence of the person. 8 persons were tried originally out of whom 6 were acquitted by the trial Court while Muhammad Mujahid and Muhammad Shahid were convicted under section 302, P. P. C . for which Muhammad Mujahid was sentenced to death while Muhammad Shahid was sentenced to imprisonment for life. Hence the two petitions, one by Muhammad Mujahid petitioner against his conviction and sentence, and the other by Abdul Majid complainant, against the acquittal of Muhammad Shahid and enhancement of the sentence of Muhammad Mujahid.

4. We have gone through the impugned judgment and heard the learned counsel for the parties at considerable length. In paragraph 16 of the impugned judgment the High Court held that Muhammad Mujahid had exercised the right of private defence, as against Bashir and Hamid (deceased) and he was justified in killing them to protect his own life, but as far as Aqil (deceased) is concerned there is no reliable evidence to show that he did anything which could have caused any apprehension to Muhammad Mujahid and, as such, the petitioner had no right of private defence against him. Relevant portion of paragraph 16 is reproduced below for facility of reference:‑ "

16. This leaves us to examine Mojahid's criminal liability vis‑a‑vis Aqil. It is in the evidence that Aqil came to the spot later on. The trouble had already started. Bashir and Hamid paid for. There is no reliable evidence to show that Aqil also played some important role so as either to provoke Mojahid or to endanger his life which could justify firing on him ...."

5. But the counsel for Muhammad Mujahid (petitioner in Criminal Petition 319 of 1982) submitted that, considering the manner in which the incident took place, the fact that Aqil (deceased), who was a member of the party which had attacked the accused party, also turned up at the spot armed with a stick was in itself sufficient to create serious apprehension in the mind of Mujahid, who had already sustained 8 injuries out of which 3 were grievous and one had resulted in the loss of one of his eyes, that he too would attack him. He submitted further that a person put in such a situation cannot be supposed to weigh his actions in golden scale and a man being attacked in this manner would instinctively use the firearm carried by him to shoot at a person who was likely to attack him. In the alternative he submitted that it is apparent that the dispute over the warabandi resulted in a sudden fight. As such Exception IV to section 300, P.P.C., is also attracted to the case, and the offence, if any, would fall under section 304‑I, P.P.C.

6. We feel that in the circumstances of this case the above noted contentions need further consideration. Leave is, therefore, granted to Muhammad Mujahid, petitioner in Criminal Petition 319 of 1982.

7. Since leave is being granted to Muhammad Mujahid accused petitioner against his conviction and sentence, leave is also granted to the complainant‑petitioner in Criminal Petition for Special Leave to Appeal No.311 of 1982, for the enhancement of sentence of Muhammad Mujahid accused‑respondent The petition is, however, dismissed with regard to Muhammad Shahid who, we feel, was rightly acquitted by) the High Court. M.I./A‑66/S Order accordingly.