1983 PLP 100(2) (SCMR)

SHAFI‑UR‑REHMAN, J.‑Muhammad Yousaf. the complainant, a brother of the deceased Fazil, seeks leave to appeal against the judgment of the Lahore High Court dated 24‑10‑1979 whereby the conviction and sentence of Abdul Majid and Nazir Ahmed, the two brothers, was set aside and the acquittal of the three other respondents ordered by the trial Court was maintained. On the 29th of March, 1977 in the limits of village Takhtial Police Station Shah Gharib, District Sialkot, an altercation took place between Abdul Majid respondent and Ashfaq a nephew of the deceased which developed into exchange of abuses and ultimately, according to the prosecution case, into one sided attack by the respondents in which Abdul Majid was armed with a dagger and Nazir Ahmed with darat causing injuries to Fazil and Muhammad Anwar (P. W. 8) the former dying as a result thereof. During the course of investigation Muhammad Nawaz and Shabbir were found innocent by the Investigating Officer and the D. S. P. Daska who supervised the investigation. Nevertheless all the five respondents were sent up for trial resulting in the conviction of the first two and acquittal of the other three. The learned Judges in the High Court finding injuries on the persons of the first two respondents and considering the eye‑witnesses to be unreliable, camp to the conclusion that it could be a case of self‑defence, though the convicts had taken up no such plea. The convicted respondents were acquitted and the acquittal of the others was not interfered with . The learned counsel for the petitioner has not pressed the petition against respondents other than Abdul Majid and Nazir Ahmad who were convicted and sentenced by the trial Court. The contention of the learned counsel for the petitioner is that on the facts stated and found it was more a case of sudden fight involving examination of the applicability of Exception IV to section 300, P. P. C. than an outright case of aggression and self‑defence. We have examined the record with the assistance of the learned counsel for the petitioner and have also heard Khawaja Sultan Ahmed for the caveator. Leave is granted to examine whether the High Court was quite justified in straightaway considering it a case of aggression by one party and of self‑ defence by the other without examining evidence on the record suggesting that it could be a case of sudden fight attracting Exception 1V to section 300 P. P. C. Bailable warrants in the sum of Rs. 10,000 with two sureties in the like amount returnable to District Magistrate, Sialkot shall i3sue against the first two respondents. As regards the other respondents, the petition stands dismissed on account of its being not pressed. Leave granted.