1983 PLP 621 (SCMR)

MUHAMMAD AKRAM, .J.‑This criminal petition for special leave to appeal from the judgment dated 18th November, 1974 passed by a learned Judge of the Lahore High Court at Lahore in the connected Criminal Appeals Nos. 57 and 58 of 1974 and Criminal Revision No. 352 of 1974. On the 7th October; 1972, a case was registered against respondents. Nos. 1 to 3 herein at the instance of the petitioner at Police Station City Sialkot under section 302/307/34, P. P. C. for the murder of Nazir deceased and injuries to him. According to the prosecution respondents Nos. 1 to 3 used to run a Kariyana shop in Mohalla Nurpur, Sialkot City. Nazir deceased and the other members of his family at first used to make purchases from their shop. But, thereafter, they began doubting their integrity and stopped making purchases from them. A day before the occurrence, Mst. Shaheen, a grand‑daughter of the petitioner went to purchase some articles from another shop and respondents Nos. 1 to 3 are said to have abused her. She made a complaint about it to the petitioner. On the day of the occurrence, on the 7th October, 1972 at about 10 a.m. the petitioner, his son Nazir deceased and Muhammad Munir P. W. 8 went to the shop of respondents Nos. 1 to 3 to protest against their conduct. This led to an altercation between them and the matter flared up. Respondents Nos. 2 and 3 incited respondent No. 1 not to spare them. Upon this respondent No. 1 got bold of a gun and shot at Muhammad Nazir deceased through the window of his shop. The latter ran for a few feet and then fell down. Respondent No. 1 then closed the door of his shop and went to the roof, from where he fired another shot injuring the petitioner. The injured were taken to Civil Hospital, Sialkot, where Nazir deceased succum bed to his injuries. The Sub‑Inspector .City Police Station, Sialkot came to the Hospital and recorded the Statement of Nazir deceased on the basis of which a formal F.I. R was registered at the polite station at 11‑55 a.m. The three accused, respondents Nos. ‑1 to 3, were tried by the Sessions Judge, Sialkot. On the 18th December, 1973, he acquitted respondents Nos. 2 and 3 and convicted respondent No. 1 under sections 304 and 308, P. P. C. and sentenced him to six years' rigorous imprisonment under section 304 and four years' rigorous imprisonment under section 308, P. P. C. In coming to this conclusion, he held that the prosecution witnesses were unreliable and based his conviction largely on the statement made by respondent No. 1 under section 342, Cr. P. C. He also convicted and sentenced him under section 13 of the Arms Ordinance. Respondent No. 1 filed two separate appeals Nos. 57 and 58 of 1974. The petitioner also filed a Criminal Revision No. 352 of 1974. Against the order acquitting respondents Nos. 1 to 3 under section 302/307, P. P. C. and, in the alternative, prayed for the enhancement of the sentences awarded to respondent No.

1. On the 18th November, 1974, a learned ‑Judge of the Lahore High Court disposed of the three matters together by a consolidated judgment. On going through the record, he agreed with the trial Court in rejecting the ocular evidence. But then, in his opinion, the learned trial Judge bad erred in convicting respondent No. 1 on his own statement wherein he admitted having fired at the deceased in exercise of the right of self‑defence. He, therefore, accepted both the appeals filed by respondent No. 1 and set aside his convictions acquitting him in both the cases. At the same time, the Court also dismissed the revision of the petitioner. Respondent No. 1. in his statement in defence stated :‑ "Muhammad Hussain, his sons Munir and Nazir and others came at my shop raising Lalkaras, They were armed with Sotas. They wanted to assault me by trespassing into my shop where I was sitting. Feeling apprehension to my life, I picked up the gun which was lying in the shop and fired a shot. This shot hit Nazir and Muhammad Hussain. Thereafter, I closed the doors of my shop. I went into my house which is part of the shop. I heard a hue and cry. I went on the roof and saw many present in the gall knocking at my door. They were trying to break open the door of my shop. Apprehending danger to my life and property, I fired again to scare away the mob. I am a retired army sepoy. My son Nazir also lives with me. The co‑accused were not present at the time of occurrence. It is argued before us that even though the two Courts have concurred n holding that the ocular evidence of prosecution was not trustworthy, et upon the above‑statement made by respondent No. 1 under section 342, Cr. P. C. a conviction could be legitimately recorded against him under section 304, Part II, P. P. C. and section 308, P. P. C. From the statement of respondent No. 1, read as a whole, it is evident that neither he nor my member of his family bad been caused the slightest harm and that :e far exceeded the right of private defence which in no case extended the doing of more harm than it was necessary for the purposes of self defence. We find that the impugned judgment passed in this connection requires further consideration. We, therefore, grant leave to appeal from the judgment against Muhammad Hussain, respondent No. 1, only. Non‑Bailable warrants to issue against him returnable to the District Magistrate, Sialkot. This petition against Nos. 2 and 3 shall stand dismissed. Leave granted.