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Petition for Special Leave to Appeal No. 249 of 1967, decided on 4th October 1967.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 27th July 1967 in Criminal Appeal No. 605 of 1965).
S. 304, Part I read with S. 99 Conviction under S. 504‑Private defence, right of‑Extent Leave to appeal granted where High Court held accused to have exceeded right of private defence but did not indicate which, if any, of accused was guilty of such excess or caused fatal injury‑Constitution of Pakistan (1962), Art. 58(3).
M. B. Zaman, Senior Advocate Supreme Court (Mian Fazl‑i- Mahmood, Advocate Supreme Court with him) instructed by Sh. Masood Akhtar, Attorney for Petitioners.
Nemo for the State.
Date of bearing: 4th October 1967.
‑In this case the High Court has held that the petitioners had acted in exercise of their private defence of property, in causing the death of Sohna, deceased, but that they had exceeded that right. The conviction and sentences of the petitioners under section 304, Part I of the Pakistan Penal Code were upheld, but those under section 148, P. P. C. were set aside. Their convictions under section 308/149, P. P. C., as recorded by the trial Judge, were converted into those under section 301, read with section 34, P. P. C., but the sentences were maintained intact. A co‑appellant of the respondents, Amir, was acquitted on all counts. This is a petition for special leave to appeal on behalf of the petitioners.
Mr. M. B. Zaman, has forcefully contended before us that in view of the High Court's finding that there was excess of the right of private defence in this case, it was incumbent on the learned Judges to find which, if any, of the petitioners was guilty of such excess. He contends that in the circumstances of this case, the principle of joint liability was not attracted. He points out that the deceased bad sustained only one fatal injury, the other injuries found on his person being simple in character. The High Court judgment contains no indication as to who had caused the fatal injury to the deceased.
The points raised merit consideration and we grant leave to appeal as prayed.
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