1977 PLP 5 (SCMR)

MUHAMMAD AKRAM, J.‑Muhammad Rafiq petitioner was convicted under section 304, Part I, P. P. C. and sentenced to ten years R. I. and fine of Rs. 500 by the Additional Sessions Judge, Lyallpur. On appeal, a learned Judge of the High Court on the 21st October, 1975 maintained his conviction but reduced his substantive sentence to R. 1. for seven years. Hence this petition for special leave to appeal to this Court from the judgment. According to the persecution, on the 21st July, 1973, at about peshiwela Mohammad Yar complainant (P. W.) was watering his animals at the pond near Chak No. 107/E. B. District Lyallpur. He saw his son Ghulam Hassan deceased returning form the fields. When the deceased reached near the pond, the petitioner also arrived There armed with a lathi. He immediately started giving blows to him on‑ the head and other parts of his body resulting in his death at the spot. On the alarm raised by the complainant. Nazir Ahmad (P. W.), Sher Muhammad (not examined) and Muhammad P. W. were attracted to the spot who intervened and rescued the deceased. In the course of this intervention, Nazir Ahmad P. W. also suffered simple injuries at the hands of the petitioner. The complainant then left for the Police Station Jaranwala at a distance of ten miles from the place of occurrence to lodge the F. I. R., which was registered at 6‑05 p.m. It is alleged that a night before this occurrence, the deceased had quarreled with the petitioner which had annoyed him and in order to weak vengeance, he assaulted him resulting in his death. The investigating officer visited the spot to complete the formalities and arrested the accused. The dang (Exh. P. 1) was produced by the accused and taken into possession by the Investigating Officer. He also took into possession blood‑stained chaddur and shirt (Exhs. F. 2 and P. 3) removed from the person of the accused. On post‑mortem examination conducted on the dead body of the deceased, the Doctor found three injuries on his head caused by a blunt weapon. On dissection, the Doctor found that there was clotted blood under the scalp corresponding to injury No.

2. The front parietal bone was loosened on right side and the right parietal bone was fractured. In the opinion of the Doctor, injury No. 2 was sufficient to cause the death of the deceased in the ordinary course. On the 22nd July, 1973 at 5 p. m., the Doctor also medically examined Nazir Ahmad P. W. and found three simple injuries caused by blunt weapon on his person. On the same day at 9 p. m. Ire also medically examined Muhammad Rafiq petitioner and found one contused wound on left upper corner of forehead. It was a simple injury caused with blunt weapon. At the trial the three eye‑witnesses, namely, Muhammad Yar complainant, Nazir Ahmad injured and Muhammad P. Ws. fully implicated the accused. Ghulam Rasool P. W. also deposed to the motive. The petitioner pleaded not guilty to the charge when examined under section 342, Cr. P. C. He denied the allegations and the recovery of dang (Exh. P. 1) from him. But he admitted that blood‑stained chaddar and shirt (Exhs. P. 2 and P. 3) were removed from his person and were secured because they were stained with his blood of the injuries sustained by him. Before the committing Magistrate, he stated that on the night previous to the day of occurrence, the petitioner gave a beating to the deceased as a result of which the deceased attacked the petitioner to take the revenge. He further stated before the committing Magistrate that the deceased was also assisted by Nazir Ahmad P. W. and Aslam who were armed with dangs. The deceased caused head injuries to the petitioner whereupon they grappled with each other and during the scuffle Nazir Ahmad P. W. and Aslam gave blows to the deceased. At the trial the petitioner stated that he was attacked by the deceased, Aslam and Nazir Ahmad P. Ws. when he was returning from the land to his dera in the village and during the grappling, the companions of the deceased had aimed a blow at him, but it accidentally struck the deceased resulting in his death. The petitioner examined Muhammad (D. W. 1) in support of his plea in defence at the trial. According to the witness, during the course of the scuffle, Nazir Ahmad P. W. and Aslam had aimed a lathi blow at the petitioner and the deceased was accidentally hit by them. The trial Court found that all the eye‑witnesses were natural witnesses of the occurrence, but that it was not possible for the Court to ascertain as to who had opened the attack and that the petitioner in the heat of passion in a sudden fight that ensued between him and the deceased happened to cause three injuries on the person of the deceased while the petitioner himself had suffered the injury on the head which was a vital part of the body. The learned Additional Sessions Judge further held that on the previous night of the occurrence only hot words were exchanged between them, and there was no beating by the deceased to the petitioner. In the circumstances, the Court convicted the petitioner under section 304, Part I, P. P. C. In appeal, the High Court relied on the ocular evidence of the eye witnesses and their testimony was corroborated by the medical evidence. The Court observed that the defence also did not dispute the participation of the petitioner in the occurrence which led to the death of the deceased. The Court, however, repelled the defence plea that the companions of the deceased had aimed the blow at the petitioner and the deceased was accidentally struck by them. This plea raised by the defence was not only belated but inconsistent also. In the opinion of the High Court, the origin of the fight between the petitioner and the deceased was not proved by the prosecution and remained obscure. From the facts and circumstances of the case, the Court concluded that both the petitioner and the deceased were carrying lathis with them and had incidentally met each other near the village pond and a fight ensued between them. The High Court concluded that in a sudden fight and in the heat of the passion upon a sudden quarrel without any premeditation, the petitioner had caused the injuries to the deceased and the injured person. In this view of the matter, the High Court maintained the conviction of the petitioner under section

304. Part I P P C, but reduced the substantive sentence to R. I. for seven years. Before us the learned counsel for the petitioner argued that on the fact and in the circumstances this was a genuine case of right of self‑defence exercised by the petitioner. But there is nothing on the record to show as to how this fight between the petitioner and the deceased had started and as to who was the aggressor. On the other hand, from the evidence, the two Courts concluded that it was a case of a sudden fight in the heat of passion without the offender having taken any undue advantage. The petitioner was, therefore, convicted under section 304, Part I, P,. P. C. In this connection, the High Court observed that no case was made out for the exercise of right of private defence of the petitioner and this plea was not even taken at the trial nor could it be even spelt out from the evidence on the record. No other contention was raised before; us at the hearing. This petition has, therefore, no force and is dismissed. Petition dismissed.