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Criminal Revision No. 115 of 1969, decided on 12^th March 1971.

S. 439 read with Ss. 423 & 342‑--Additional Sessions Judge, in appeal misdirecting himself in considering that it was obligatory on part of accused to have raised plea of self‑defence in their statements under S. 342--‑High Court, in exercise of powers under S. 439, held, competent to order rehearing of appeal, in circumstances of case.

Jagan Parshad v. Emperor A I R 1930 Lab. 346 distinguished.

S. May Boudville v. King=Emperor A I R 1923 Rang. 65 ref.

M. E. Hayat Khan for Petitioner.

S. Iftikhar Gillani for Respondents Nos. 1, 2 and 3.

Mian Burhanuddin, A. A. G. for the State.

Date of hearing: 12th March 1971.

Abdullah Jan (30), Faujdar (35) and Shahwali (28) were tried by the Additional District Magistrate, Kohat, for an offence under section 307 with the application of section 34, P. P. C. and were convicted to undergo rigorous imprisonment for a period of two years each The convicted persons appealed and the Additional Sessions Judge, Kohat, set aside the conviction and ordered a retrial considering that it was imperative on the part of the accused to have specifically taken the plea of self‑defence in their statements under section 342, Cr. P. C. which they had not done, and further that blood was also found in the field of the Dairy Farm where jawar had been cultivated from which the learned Additional Sessions Judge concluded that possibility about the sheep having trespassed into the jawar field and the occurrence having taken place there could not be ruled out. He also referred to the circumstance that the question of seizure of animals by the accused and the right to rescue the sheep also required to be considered in order to determine the question whether the right of self‑defence did or did not accrue to the convicted persons. Arbab Khan one of the injured persons had filed an application in revision for enhancement of the sentence, but in view of the order made in appeal by the Additional Sessions Judge, Kohat, he dismissed the revision petition as infructuous. Arbab Khan has moved this Court on the revisional side for setting aside the order passed by the Additional Sessions Judge and for adequately enhancing the sentence passed on the respondents.

2. Learned counsel for the respondents raised a preliminary objection that no revision was competent and in this connection he referred to Jagan Parshad v. Emperor (A I R 1930 Lah. 346) wherein it was held that "there is ordinarily no justification for a High Court to take up in revision what are really interlocutory matters in a criminal Court." The order that I propose to make is not hit by the decision in the reported case. I think, in exercise of powers under section 439, Cr. P. C., this Court is competent to order the rehearing of the appeal,' because the learned Additional Sessions Judge misdirected himself, when he considered that it was A obligatory on the part of the accused persons to have raised the) plea of self‑defence in their statements under section 342, Cr. P. C If the learned Judge considered that the presence of blood in the jawar field of the Dairy Farm indicated that the occurrence took place there, he could have taken that circumstance into consideration while dealing with the question of self‑defence raised before him in appeal. He could also consider over the question whether there was sufficient evidence that the sheep really trespassed into the jawar field and were legally seized for taking the animals to the cattle‑pound without remanding the case. The trial Court had dealt with the plea and found that it did not find any support from the evidence of the prosecution witnesses and the accused had failed to prove it by adducing evidence in defence. The existence of simple injuries found on the persons of the accused was considered by the trial Court as insufficient for a finding that they were assaulted by the other party and they acted in the exercise of right of self‑defence. The circumstance that there was no damage to the crop of the accused was also taken into consideration in repelling the plea of self‑defence. Consider ing all these facts, I think the order passed by the Additional Sessions Judge in appeal was unwarranted. The question that called for decision was simple and could be determined on the evidence available on the file. There was nothing difficult to decide on evidence as to whether the right of defence of property and person accrued to the accused. Mr. M. E. Hayat, learned counsel for the petitioner produced an authority reported as S. May Boudville v. King‑Emperor (A I R 1923 Rang. 65) in support of the proposition that the course open to this Court is to order a rehearing in appeal. I have gone through the reported case and have also‑heard A. A. G. as well as S. Iftikhar Gilani for the accused‑respondents and feel that in view of the reported case in which there is a reference to the judgment of the Bombay High Court, I should set aside the order of the Additional Sessions Judge passed in appeal and I order accordingly. 11 direct that the appeal be reheard on its merits by same Court as the presiding officer who remanded the case has already been replaced. The revision petition is disposed of accordingly.

Order accordingly.

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