1988 P Cr (PLP)

Muhammad Ismail Qureshi for Petitioner. Muhammad Hussain Chachhar for the Complainant. Syed Iftikhar Ali Shah for the State. Muhammad Hussain, complainant, lived in house in the neighbourhood of Maqbool Hussain petitioner, in Chak No. 4/GD, district Okara. According to prosecution, the intervening wall of their house had fallen. On 19-2-1987, at 6-30 a.m. a buffalo of the complainant entered the Ihata of the accused/ petitioner. The complainant's son, namely, Ibrahim (deceased) aged 17/18 years went after the buffalo to bring it back, whereupon Khadim Hussain accused caught hold of him and called out Maqbool Hussain petitioner to bring his 12 bore gun and kill the deceased, as they were sick of him. At this, Maqbool Hussain petitioner came there with a gun and fired at the deceased who died as a result thereof on the spot. Maqbool Hussain decamped from there. The matter was reported at Police Station Chuchak, district Okara, at 8-45 a.m. citing Ahmad Ali and Muhammad Hussain as eye-witnesses. Motive for the offence was stated to be that the complainant purchased Ihata from the petitioner and Khadim Hussain who subsequently asked the complainant to return Ihata to them and get his amount back but the complainant did not agree due to which the petitioner and Khadim Hussain nursed grudge against him.

3. The petitioner's bail plea was declined by the lower Court, hence this application. I have heard learned counsel for the parties and also perused the record.

4. It is contended on behalf of the petitioner that the petitioner mistook the deceased as thief and, therefore, fired at him in the exercise of his right of private defence of person and property. The S.I. states that the petitioner has taken this plea and also produced Mohalladars in its support before him, but he has rejected his defence as untrue.

5. I have carefully considered the facts and circumstances of the case in the light of arguments addressed by learned counsel for the parties. Assuming without conceding that the petitioner fired at the deceased in his house mistaking him as a thief, I would say that the petitioner in the circumstances did not have the right of private defence to the extent of causing the death of the deceased particularly because there is no evidence that the deceased was armed with any weapon at the time of occurrence or that he posed threat to the life of the petitioner. In view of section 104, P.P.C. he could in the circumstances alleged by him, cause any harm to the deceased short of death. The petitioner on his own showing exceeded the right and committed offence under section 304 Part-1, P. P. C. punishable with imprisonment for life. Consequently the case of the petitioner falls within the prohibitory clause of section 497, Cr.P.C. which renders him disentitled to the grant of concession of bail. In the result the petition stands dismissed. He shall, however, be at liberty to repeat the petition as and when any fresh ground becomes available to him in normal occurrence of events. S. A./M-570/L Bail refused.