1983 PLP 969 (SCMR)

ASLAM RIAZ HUSSAIN, J.‑This appeal through jail is directed against the judgment of the Lahore High Court, Lahore, dated 11‑2‑1979, dismissing his appeal.

2. The appellant was tried by learned Additional Sessions Judge, Rawalpindi, for the murder of Muhammad Bashir. According to the prosecution version the alleged occurrence took place: on the night between 5th and 6th of March, 1973, in the shop of the deceased. At the time of incident the appellant is stated to be 15 years of age. The deceased was last seen alive in the company of the petitioner in the former's shop, where he was later found dead with as many as 28 incised injuries on his person. The F. I. R. was lodged by Muhammad Taj (P. W. 13). The accused (appellant herein) was arrested. Blood‑stained 'Chhuri as well as his blood‑stained clothes were recovered and taken into possession. The prosecution relied mainly on the said recoveries and the testimony of Wali Muhammad (P. W. 11) and Muhammad Taj (P. W. 13), who had seen the deceased alive with the appellant. The appellant, however, simply denied his quilt. He was, however, found guilty by the learned trial Court and sentenced to death. On appeal the High Court maintained his conviction but reduced his sentence from death to that imprisonment for life. The learned Judges of the High Court gave the following reasons to reduce his sentence :‑ "The motive and the precise circumstances in which the occurrence took place, are shrouded in mystry. We are not impressed for believing that the motive was commission of theft. The complainant himself stated in the F. I. R. and in this reference we take note of the fact that the appellant was about 15/16 years of age at the time of the incident and that the incident has taken place inside the shop of the deceased at night time where we would not expect them to be in the month of March and in this regard we also take note of the fact that when the complainant saw the appellant the deceased was sitting on one cot and the appellant on the other obviously in all cordiality. We also note that the injuries are all on the head and the face and the sharp‑edged weapon injuries are not very effective. All this is suggestive of some sex affair rather than any theft matter." Feeling aggrieved he filed petition before this Court through Jail. Leave was, therefore, granted to consider whether on the facts brought on the record a reasonable case of 'self‑defence' was made out.

3. The appellant has been brought from jail and has appeared in custody. He has stated that, in fact, he was a young boy of 15 years at the relevant time while Muhammad Shabbir (deceased) was aged about 35 years. We have gone through the evidence on the record and find that there is sufficient material to create reasonable doubt that the defence version, put forward by the appellant was probably correct. As a matter of fact even the High Court appears to have reached the conclusion that the evidence on the record was "suggestive of some sex affair". As such as held in Safdar Ali's case (P L D 1953 F C 93) the plea of self‑defence can be established by raising a reasonable doubt that it pay probably be correct even from the prosecution evidence itself. We are of the view that the petitioner's counsel has been able to raise such doubt. It appears that the appellant committed the murder in an effort to defend himself from the sexual assault made on him by the deceased, but considering the number of the injuries inflicted by the appellant we feel that he exceeded the said right. He is, therefore, guilty off offence under section 304(1), P. P. C. We, therefore, alter his conviction from 302, P. P. C. to one under section 304(I), P. P. C Keeping in view the circumstances of the case and the fact that appellant has already been in jail for about 10 years we feel that the sentence all undergone by him is sufficient to serve the ends of justice. His sentence is therefore reduced to that already undergone by him. He shall be released forthwith unless he is wanted in any other case, M. A. K. Appeal accepted.