1986 PLP 1711 (MLD)

3. When examined under section 342, Cr.P.C., the accused in reply to question No.4 raised plea of grave and sudden provocation in the following words:‑ "On the night of occurrence after about mid‑night I found that. Ghulam Muhammad was on the cot of my sister and was kissing her. I got provoked and taking up the 'Vahola' nearby, 1 started giving blows to him. Muzaffar alias Zafar Ali tried to intervene and I also gave blows to him. I had given blows to him as a result of which he also died. 1 committed the murder under grave and sudden provocation. The clothes P‑15 and P‑16 belong to me."

4. The learned trial Court on detailed examination of the evidence on record, disbelieving the prosecution accepted the plea of. Ghairat raised by the accused and summed up his conclusion in pare, 18 of his judgment as under:‑ "On the above view of the evidence I hold that so far as the murders of Mst. Manzooran and Ghulam Muhammad were concerned, the case of the accused was covered by exception 1 of section 300, P.P.C. But so far as the murder of Muzaffar alias Zafar Ali is concerned it is stated that he had come to intervene when the accused had given him blows with the 'Vahola'. Although, therefore, ‑the accused is entitled to acquittal for bite murders of Mst. Manzooran." In paragraph 19 of the judgment, held‑‑‑‑‑‑‑‑ ". . . The accused is, however, acquitted so far as the murders of Mst. Manzooran and Ghulam Muhammad are concerned " As for the murder of Zafar Ali, learned trial Court convicted and sentenced him under section 304 Part‑I, P.P.C. with the remarks:‑ "the fact that the accused had ,given at least four injuries to Zafar Ali, in my view, the accused decidedly exceeded the right which had been given to him by law. However, it would be fallacy to hold the accused guilty under section 302, P.P.C. for the murder of tafar Ali alias Muzaffar under the above circumstances. In my view the case is covered by section 304(1), P.P.C."

5. The convict has filed Criminal Appeal No.77 of 1983 challenging his conviction and sentence, while Sardar Ali, brother and Mst. Wallan Bibi, mother of the two deceased, Ghulam Muhammad and Zafar Ali, has filed Criminal Revision No.44 of 1984 challenging the appellant's Eacquittal from toe charges relating to the murder of Ghulam Adhammad and Mst. Manzooran and also'prayed for the enhancement of his sentence awarded under section 304, Part‑I, P.P.C. for murdering Zafar All. are being disposed of by this single judgment.

6. I have heard learned counsel for the appellant as well as for the State as also for the petitioner in the criminal revision and perused the record with care.

7. The learned trial Court in paragraphs 18 and 19 of the judgment, as indicated above, has recorded contradictory findings. On one hand it has been held that the "murders of Mst. Manzooran and Ghulaml Muhammad" by the accused were "covered by exception 1 of section. 300, P.P.C." which necessarily mean, that he was guilty of committing culpable homicide not amounting to murder, obviously punishable under section 304, P.P.C. but on the other hand tie completely acquitted the appellant from the charges pertaining to the "murders of Mst. Manzooranl and Ghulam Muhammad". Similarly the finding of the learned trial Court that by giving blows on the face and neck of Zafar Ali the appellant "decidedly exceeded the right which had been given to him by law" is absolutely incorrect for the simple reason that neither it could be held nor it has been so held by the trial Court that the appellant had a right to cause death of Zafar Ali, therefore, the question of exceeding the right did not arise Learned trial Judge appears to be completely ignorant about the implications of Exceptions 1 and 2 of section 300 B P.P.C. He must have known that law gives the offender right to kill his opponent when he has a complete right of private defence of person and property against him. Neither such right has been pleaded by the appellant nor the circumstances in this case exist warranting exercise of such a right and, therefore, the question of exceeding the right does not arise. I have further found that the statement of the appellant recorded under section 342, Cr.P.C., is defective in as much as the evidence of extra judicial confession made by the appellant before Noor Muhammad P.W. has not been put to him. For all these reasons, I hold that the learned trial Court has committed patent error in appreciation and application of facts, and law which has resulted in grave miscarriage of justice. Consequently, 1 set aside the impugned order being illegal and remands the case for retrial of the appellant in accordance with law from the stage of recording of the statement of appellant under section

342. Cr.P.C. This disposes of both the appeal and the criminal revision. It is, however, directed that the trial Court shall conclude this case within three months' time because the appellant is in jail for about 6 years. S. A. Re‑trial, ordered.