2005 PLP 1488 (YLR)

This appeal is directed against the judgment, dated 26-6-2002 passed by the learned Additional Sessions Judge, Faisalabad, whereby, having tried the appellant in the case registered vide F.I.R. No.266 of 2000, dated 27-6-2000, under sections 302/34, P.P.C., Police Station, Batala Colony, Faisalabad, he was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life with a fine of Rs.1,00,000 to be paid to the legal heirs of the deceased as compensation in default whereof to further undergo six months' R.I. His co-accused Muhammad Aslam was acquitted from the case.

2. The prosecution story, as unfolded through F.I.R. (Exh.PK/1) registered on the statement of the complainant Ghulam Mustafa, briefly stated is that 4/5 days prior to the occurrence, the police party raided at the house of Muhammad Ashraf accused; that he was not available and the police party returned back; that the accused Muhammad Ashraf suspected that the said raid was conducted on the information of Ghulam Dastgeer deceased, a brother of the complainant; that on the next day Muhammad Ashraf abused Ghulam Dastgeer while standing at the shop of the Mohallah; that on the day of occurrence at about 8-30 a.m. Ghulam Dastgeer alias Nanha, Ghulam Murtaza and one other co-Mohallah Abdul Ghafoor went to the house of accused Ashraf to complain his behaviour who was standing in the street along with his father; Ghulam Dastgeer asked them why they had abused him without any reason and assured his innocence but the accused Ashraf and his father retaliated to the same and started abusing; that the deceased used to shop them whereupon accused Ashraf went inside his house and came out after having armed with a Chhurri but the matter was patched up due to intervention of the respectable at the spot; that, thereafter, when they were returning home, accused Aslam raised Lalkara that Ghulam Dastgeer should not go alive whereupon accused Ashraf inflicted a Chhurri below which hit on his right knee; that the deceased, to save his life, picked out his licensed pistol and fired at Ashraf accused which hit him on the left leg near the thigh; that Ghulam Dastgeer fell down whereupon Ashraf accused inflicted further Chhurri blows on abdomen who succumbed to the injuries while was being shifted to the hospital on the way. The motive alleged was that the accused party suspected raid on them on the information of the deceased.

3. After having completed legal formalities and having completed investigation of the case, the police submitted challan against the accused to face trial before the learned Court of competent jurisdiction, where, in order to prove its case, the prosecution examined 11 witnesses including the doctor and the Investigating Officer.

4. The accused, when examined under section 342, Cr.P.C. denied the prosecution case and attributed involvement to false implication and claimed trial.

5. None has appeared on behalf of the appellant, therefore, to avoid lingering on case any further and in the paramount interest of justice, this Court has appointed Mr. Muhammad Shareef Cheema, Advocate as defence counsel having fully prepared the case and after having gone through the record; he has appeared to assist the Court and to argue that the case on behalf of the appellant. In support of this appeal he submitted that the appellant has falsely been implicated in the case; that it was a case of self-defence as the appellant had specifically taken the said plea in his statement recorded under section 342, Cr.P.C., that the occurrence had taken place in front of the house of the appellant which shows that the complainant party was the aggressor; that the appellant never exceeded the right of self-defence; that the punishment is very harsh; that the impugned judgment is not sustainable in law and the same is liable to be set aside by this Court resulting in acquittal of the appellant.

6. Learned counsel for the State, while defending the impugned judgment of conviction contends that the appellant, while armed with a Chhurri, caused three injuries on the vital parts of the deceased and too after having fallen on the ground, therefore, it was not a case of right of self-defence; that the appellant has murdered a young man; that the case was fully proved against the appellant; that it is a well-reasoned judgment not warranting any interference by this Court and that the appeal is liable to be dismissed. I have heard learned counsel for the parties, have gone through the evidence with their able assistance and have also given anxious consideration to the submission made by the respective parties at the bar.

7. The occurrence in this case had taken place just in front of the house of the appellant and this fact has not been denied even by the learned counsel for the State. The deceased, according to the evidence, was armed with pistol while the appellant was armed with a knife. Although it has not been mentioned in the F.I.R. that the attack was opened and, therefore, the deceased, in order to save his life, caused injury with fire-arm. Appellant has specifically taken the plea of right of self-defence even before the learned trial Court in his statement recorded under section 342, Cr.P.C. Relevant portion, in answer to question No.3, reads as under:-- "When I flatly refused to pay the Jagga, they felt it insulted and just to save their goodwill and to keep their show of power intact in the eye of public, they attacked on my house with an intention to murder me. Ghulam Dastgeer called me out from my house and he fired on me in front of the door of my house, which hit me on my leg and resultantly I fell on the ground. Ghulam Murtaza inflicted Chhurri blow on me when I was falling on the ground and in a way I snatched Chhurri from Ghulam Murtaza and to save my own life, I gave injury with the Chhurri, which hit Ghulam Dastgeer on his leg and I myself ran away from the spot to save my life." The occurrence in this case took place in front of house of the appellant. There is a fire-arm injury on the person of the appellant. He was got medically examined by the police though after 20/22 days of the occurrence. Although it is a case of right of self-defence but the appellant had exceeded it because he continued causing injuries even when he had already fallen on the ground and was not in a position to cause resistance which proved fatal.

8. Having adjudged the case from every angle, after having sifted grain from the chaff and having scrutinized the record, this Court is of the considered view that as the appellant exceeded the right of self-defence, therefore, he is convicted under section 302(c), P.P.C. instead of 302(b), P.P.C. His sentence is reduced from life to fourteen years' RI with a direction to pay Rs.50,000 as compensation to be paid to the legal heirs of the deceased as required under section 544-A, Cr.P.C. in default whereof to further undergo three month's S.I. He shall be extended the benefit of section 382-B, Cr.P.C. This appeal stands disposed of with the above modification in the quantum of sentence. H.B.T./M-970/L Sentence reduced.