1990 PLP R1087 (SCMR)

M. Kowkab Iqbal, Advocate Supreme Court/Advocate‑on‑Record for Petitioner. Nemo for Respondents Nos. 1 to

3. Ch. M: Akram, Advocate Supreme Court for the State. Date of hearing: 5th March, 1990. SHAFIUR RAHMAN, J.‑‑‑The complainant Ghulam Muhammad, who is father ‑of Muhammad Islam deceased, seeks leave to appeal against the judgment of the Lahore High Court, dated 1‑6‑1987, whereby one of the convicts namely, Jamil was acquitted while the conviction of the other Tamkeen was altered from one under section 302, P.P.C. to section 304, Part 1, P.P.C. and a sentence of 10 years, R.I. was imposed on him.

2. The prosecution case against the acquitted accused was that on the 8th of June, 1983, Tamkeen and Jamil had given Chhuri blows in all three, of them, on the person of Muhammad Islam causing his death the same day. The motive for the, occurrence was given out that the deceased owed Rs.200 to Amin, an acquitted accused, the repayment of which he had delayed. The accused Tamkeen had given a different version. The sum and substance of it was that he was under attack and had used the knife in exercise of right of private defence of his person. In defence as many as ten witnesses were produced and a few of them to show the pugnacity and criminality of the deceased and some others to discredit the witnesses. In this background, the High Court examined the two versions. The High Court concluded as hereunder:‑‑ "The most important feature of the case is that the presence of Riaz DW‑6 has been admitted in his shop by the eye‑witnesses. His shop is situated close to the shop where the occurrence took place. 'Riaz DW‑6 has appeared as defence witness to support the plea of Tamkeen appell4nt. After rejecting the ocular testimony, we have no course left open, but to fall upon the plea raised by Tamkeen, which is to be acted upon and believed in toto and is further corroborated by the testimony of Riaz DW‑

6. We are thus of the view, that it was only Tamkeen appellant who had inflicted Chhuri, blows, and appellant Jamil was not present and had not participated in the crime. Having held so, the next crucial question arising for consideration is as to whether the right of self‑defence had occrued to Tamkeen as envisaged by Law. After anxious considerations and taking into view the statement of Tamkeen and other facts of the case and, particularly, due to the absence of injury on the person of Tamkeen, we are of the view that no doubt that Tamkeen had acted in the exercise of his right of his self-defence, but by inflicting three blows on the person of the deceased and thus causing his death he exceeded the power given to him by law in exercise of the said right."

3. After hearing the learned counsel for the petitioner we find that the conclusions recorded by the High Court are such as could plausibly be recorded on the evidence on record. Simply because another view is possible will not be a sufficient ground for granting leave to appeal, which is hereby refused. N.H.Q./G‑285/S Leave refused.