1990 PLP 423 (SCMR)

(On appeal from the judgment and order of the Lahore High Court, Multan Bench, Multan, dated 14 February, 1988 in Criminal Appeal No.1034 of 1976 and Criminal Revision No.972 of 1976). ‑‑‑S.302‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Private defence, right of‑‑ Quarrel took place between deceased and co‑accused over the use of water and as a result, the deceased felled down co‑accused on the ground‑‑‑Co‑accused was strangulated by the deceased who was a young man whereas co‑accused was 61 years old‑‑‑Accused seeing his father in such a situation came running to the spot, picked up a Trangal and gave blows on the back and abdomen of deceased causing his death‑‑‑High Court acquitted the accused holding that he was within his right to cause, in the exercise of his right of self‑defence, injuries to the deceased‑‑‑High Court, held, had correctly arrived at the conclusion that accused had acted in the exercise of his right of private defence‑‑‑Petition for leave to appeal dismissed. JAVID IQBAL,.J.‑‑This petition for leave to appeal is directed against the judgment of the Lahore High Court, Multan Bench, dated 14 February, 1988 whereby criminal revision filed by the present petitioner for enhancement of sentence of Shafiq Ahmad respondent was dismissed and instead the appeal of Shafiq Ahmad respondent was accepted and he was acquitted. Briefly the facts are that Shafiq Ahmad respondent and his father NUT Ahmad were tried for an offence under section 302/34, P.P.C. for the murder of Salimullah deceased and vide judgment of the trial Court NUT Ahmad was acquitted but Shafiq Ahmad respondent was convicted under section 304, Part 11, P.P.C. and sentenced to 7 years' R.I. plus fine. But on appeal of the aforesaid respondent his conviction and sentence were set aside and he was acquitted. Furthermore, as stated above, the revision petition of the petitioner for enhancement of his sentence was dismissed. The occurrence took place at Deegarwela on 19 November, 1974 near a tube-well belonging to NUT Ahmad co‑accused and Dur Muhammad father of the deceased. The F.I.R. was lodged on the same day by the present petitioner at 5 p.m. From Shafiq Ahmad respondent was recovered human blood‑stained Tarangal. The eye‑witnesses of the occurrence are Abdul Ghani petitioner uncle of the deceased and Ghulam Hussain servant of the deceased. Besides the deceased in this case NUT Ahmad co‑accused had one contusion mark on the back of upper part of right shoulder joint. This injury was simple but caused with blunt weapon. The motive as set up by the prosecution is that Nor Ahmad cu‑accused used to create obstacles in the way of using the water by the deceased from a tubewell which was jointly owned by Nur Ahmad and father of the deceased who happens to be brother of NUT Ahmad co‑accused. At the time of the present incident another such quarrel took place between NUT Ahmad co‑accused and the deceased. It may be pointed out at this stage that NUT Ahmad co‑accused is father of Shafiq Ahmad respondent. In other words the deceased is the son of his real uncle Dur Muhammad who is brother of NUT Ahmad co‑accused. Thus, the deceased was cousin of Shafiq Ahmad respondent. The prosecution version is that NUT Ahmad co‑accused was present at the tube-well and Shafiq Ahmad respondent was irrigating the land. A quarrel took place between the deceased and NUT Ahmad co‑accused over the use of water. As a result the deceased felled NUT Ahmad co‑accused down on the ground. According to the defence version NUT Ahmad co‑accused was being strangulated by the deceased who was a young man whereas NUT Ahmad co‑accused was 61 years old. On seeing his father in this situation Shafiq Alimad respondent came running to the spot, picked up a Tarangal and gave blows on the back and abdomen of the deceased. As a result the deceased died on the spot. The High Court had acquitted Shafiq Ahmad respondent on the ground that he had killed the deceased in the exercise of his right of defence of his father. The view of the High Court is that the deceased had completely overpowered the old father of Shafiq Ahmad respondent and was pressing his neck. And thus according to the High Court he was within his right to cause in the exercise of his right of self‑defence the injuries with a Tarangal which is an implement of agriculture and not a weapon of offence because the condition of NUT Ahmad co‑accused must have caused a reasonable apprehension in the mind of Shafiq Ahmad respondent that if he did not intervene with force the result would be death or grievous hurt to his father. Learned counsel before us attempted to argue that Shafiq Ahmad respondent had acted in a very cruel manner and that he had caused injuries with such force that he should have not been given the benefit available under the exercise of right of self‑defence. But after hearing learned counsel we are not inclined to agree with him. In our view the High Court had correctly arrived at the conclusion that Shafiq Ahmad respondent had acted in the exercise of his right of private defence. In the light of the above discussion no case is made out for interference. The petition is therefore dismissed. M.A.K./A‑563/S Petition dismissed.