2010 PLP 1445 (YLR)

ASIF SAEED KHAN KHOSA, J.--Ghulam Nabi appellant and his son namely Iftikhar Ahmad appellant were convicted for an offence under section 302(c), P.P.C. vide judgment dated 8-6-2005 rendered by the learned Additional Sessions Judge, Daska, District Sialkot and were sentenced to rigorous imprisonment for ten years each and a fine of Rs.10,000 each or in default of payment thereof to undergo simple imprisonment for three months each. The benefit under section 382-B, Cr.P.C. was extended to them. Through the same judgment the appellants' co-accused namely Muhammad Hanif, Talib Hussain, Muhammad Naveed, Farman Ali and Mst. Surayya Bibi and had been acquitted by the learned trail Court and later on Criminal Appeal No.1309 of 2005 filed before this Court challenging their acquittal was dismissed by this Court as having been withdrawn on 6-2-2008. Ghulam Nabi and Iftikhar Ahmad appellants have challenged their convictions and sentences before this Court through the present appeal.

2. The occurrence in this case had taken place at about 3-30 a.m. on 11-5-2004 inside the house of the appellants in village Ram Araian, Tehsil Daska, District Sialkot and F.I.R. No.141 was lodged in that regard by Said Muhammad complainant, father of Muhammad Yasin deceased, at Police Station Sadar Daska, District Sialkot at 3-45 a.m. on 11-5-2004 for offences under sections 324/147/149, P.P.C. Upon the death of Muhammad Yasin deceased section 302, P.P.C. was added to the F.I.R. According to the prosecution the parties to this case were neighbours of each other and during the fateful night Muhammad Yasin deceased had deceitfully been taken by Mst. Surayya Bibi accused from his own house to the house of the appellants whereat he was belaboured and done to death by the appellants and their co-accused. It was mentioned in the F.I.R. that the accused party suspected illicit relations between Muhammad Yasin deceased and Mst. Surayya Bibi accused who was the wife of Ghulam Nabi appellant and the mother of Iftikhar Ahmad appellant.

3. I have heard the learned counsel for the parties and have gone through the record of this case with their assistance.

4. It is evident from the impugned judgment passed by the learned trial Court, particularly from pages Nos.29 and 30 thereof, that the learned trial Court had completely discarded the entire case of the prosecution and had squarely accepted the stand taken by the appellants in their statements recorded under section 342, Cr.P.C. and had then proceeded to convict and sentence the appellants for the offence under section 302(c), P.P.C. by holding that they had exceeded their right of private defence. The circumstances of the case are, however, such that the said conclusion of the learned trial Court vis-a-vis exceeding their right of private defence by the appellants has not impressed me. It had been maintained by Ghulam Nabi appellant in his statement under section 342, Cr.P.C. as follows:-- "It is correct that I caused injuries to the deceased Muhammad Yasin but only exercising my right of self defence because the deceased was attempting to commit zina with my wife forcibly on gun point after entering into my house." Iftikhar Ahmad appellant had also taken a stand identical to be taken by his father Ghulam Nabi appellant. The motive set up by the prosecution regarding suspicion of illicit relations between Muhammad Yasin deceased and Mst. Surayya Bibi accused, the wife of Ghulam Nabi appellant and the mother of Iftikhar Ahmad appellant, was neither put to the appellants under section 342, Cr.P.C. nor the same had been proved by the prosecution and as a matter of fact the same had been disbelieved and discarded by the learned trial Court. In the backdrop the assertion of the appellants regarding the attempt made by the deceased to forcibly commit Zina with Mst. Surayya Bibi accused on gunpoint after entering the appellants' house at 3-30 a.m. had to be accepted by the learned trial Court as correct in its entirety. Even some circumstances becoming available on the record through the prosecution's own evidence had gone a long way to suggest that the version of the appellants in the above-mentioned regard could reasonably be true. The statement made before the learned trial Court by the Investigating Officer namely Muhammad Anwar, S.-I. (P. W.13) as well as the Memorandum of Recovery (Exhibit-PL) had clearly established that Muhammad Yasin deceased was armed with a gun at the time of his entry into the appellants' house, the said gun was produced before the Investigating Officer by Mst. Surayya Bibi accused on 12-5-2004 and the gun was a licensed gun of Muhammad Yasin deceased. Entry of Muhammad Yasin deceased into the house of the appellants as small hours of the night and his being armed with a gun at that time attracted the definition of assault contained in section 351, P.P.C. so as to bring the present case within the purview of section 100, P.P.C. Thirdly, and, thus, the right of private defence, acknowledged by the learned trial Court to be available to the appellants, extended to voluntary causing of death of the deceased.

5. For what has been discussed above I have entertained no manner of doubt that c the right of private defence available to the appellants in this case had not been exceeded by them and, thus, they could not have been convicted and sentenced by the learned trial Court for an offence under section 302(c), P.P.C. This appeal is, therefore, allowed, the conviction and sentences of the appellant recorded by the learned trial Court set aside and they are acquitted of the charge. They shall be released from the jail forthwith if not required to be detained in connection with any other case. H.B.T./G-22/L Appeal allowed.