1974 PLP 160 (SCMR)

Nemat Khan, Advocate Supreme Court instructed by Sh. Ijaz Alt, Advocate‑on‑Record for the State. Date of hearing : 23rd'October 1973. ' SALAHUDDIN AHMED, J. ‑This appeal by special leave is from the order of the erstwhile High Court of West Pakistan, Bahawalpur Circuit, dismis sing the appellant's appeal from his conviction and sentence of transportation for life under section 302 of the Pakistan Penal Code. Leave was granted to consider the nature of the offence committed by the appellant. It appears that on the 4th of October 1904, at about 8 P.m. while deceased Muhammad Ashraf was proceeding to his sister's house accom panied by P W. Muhammad Azam he passed by the sugarcane crusher belonging to the appellant, and picked up a few sugarcanes from the place. The appellant who had a iota with him and was present there pursued the deceased and his companion to a short distance from the cane crusher, and struck the deceased on his head with the sota. The deceased fell down unconscious. P. W. Azam tried to intervene and he, too, was injured by the appellant. The occurrence was witnessed by another witness, I.W. Allah Rakha, who was then irrigating his field nearby. The appellant succeeded in escaping with his sota. The deceased was taken to his house where he died at 5 o'clock on the next morning. The medical evidence revealed a superficial contused wound 1 /2' x 1/4" x skin deep with bruise around on the right parietal bone 2' from the middle of head. There were fronto parietal bone suture of both sides and depressed fracture of right parietal bone which was fractured into pieces. The injury was found sufficient to cause death in the ordinary course of nature. On medical examination a small swelling was found on the head of P. W. Azam. He had also two abrasions. The appellant pleaded not guilty to the charge under section 302 of the Pakistan Penal Code and pleaded that he had acted in exercise of the right of private defence of his property. It appears that it was a dark night. The iota ‑with which the appellant hit on the head of the deceased was 4 feet and 11 inches long, and weighed only 1 seer (vide Exh. P. F.) Only one blow was given by the appellant, and it was not repeated. There were previous thefts of sugarcanes from the field of the appellant, and he was, therefore guarding field on the night of occurrence, when the deceased picked up sugarcanes from the former's sugarcane crusher. This evidently rightly annoyed the appellant. The appellant followed the deceased and gave hint only one iota blow whim found its mark on the head of the deceased. The night being dark it was doubtful whether the head was: deliberately chosen for the blow, and then appellant is entitled to the benefit of this doubt. In these circumstances we think that consistent with the principles of safe administration off' justice` the conviction and sentence of the appellant under section 302 of the Pakistan ‑Penal Code cannot be sustained. We, however, feel that in giving the blow he had the knowledge contemplated under section 3101‑11 of the Pakistan Penal Code. We, accordingly, allow this appeal and alter the conviction of the appellant from one under section 302 to one under section 304, Part 11 of the Pakistan Penal Code. It appears that the appellant has already served more than 8 years of imprisonment. We think that the ends of justice will be fully met if his sentence is reduced to the period already undergone, and we order accordingly. Appeal allowed. Sentence altered.