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Petition for Special Leave to Appeal No. 181 of 1970, decided on 23rd November 1971.

(On appeal from the judgment and order of the High Court, Lahore, dated the 13th May 1970, in Criminal Appeal No. 367 of 1967).

Penal Code (XLV of 1860),

S. 304 read with S. 100‑Private defence, right of‑Courts below found justified in accepting plea of self‑defence‑Inference that injuries on accused were self‑suffered- Held, without foundation in circumstances of case‑Special leave to appeal against acquittal refused.

Manzur Qadir, Senior Advocate Supreme Court (Ghulam Sarwar Chaudhry, Advocate Supreme Court with him) instructed by Abdul Karim Sheikh, Advocate‑on‑Record for Petitioner.

Aftab Farooq, Advocate Supreme Court instructed by Hamid Aslam Qureshi, Advocate‑on‑Record for Respondents Nos. 1 to 5.

Mian Nusratullah, Advocate Supreme Court instructed by Ijaz Ali Sheikh, Advocate‑on‑Record (absent) for Respondent No. 6.

Date of hearing : 23rd November 1971.

Respondents 1 to 5 were charged under sections 148, 302/149 and 307/149, P. P. C. on more than one count for committing the offences of rioting, murderous assault on four of the prosecution witnesses and killing Zubair and Yunus, the two deceased persons in the case.

The trial Judge convicted only Chiragh Din and Makhan, respondents, under section 304, P. P. C. for exceeding their right of private defence and acquitted them all of the charges under sections 302 and 307 read with section 149, P. P. C.

The State appealed against the acquittal of the respondents in the High Court‑ Makhan and Chiragh too filed an appeal against their convictions and sentences under section 304, P. P. C. A Division Bench upheld the verdict of the trial Judge that the accused person had acted in exercise of private defence and set aside the conviction of the two convicts in the view that the injuries found on their person, in law, gave them the right to kill assailants.

Muhammad Ayub one of the injured P. Ws., seeks leave to appeal against the acquittal of the respondents. In pressing the petition Mr. Manzur Qadir tried to make out that the 15 injuries found on the person of Chiragh, Makhan and Bashir were self‑suffered. The nature of the injuries and the weapons used, however, belies the contention. Of the 15 injuries 12 were caused by spears and the remaining three with blunt weapons. The latter included one lacerated wound on the bead of Chiragh.

The prosecution case that three injuries were caused by Muhammad Yunus, deceased, was also falsified by the injuries found on his person, namely, an incised wound 2 " x 1/3 bone deep on the back of head ; and incised wound 1 "x " deep to the chest cavity on the left side of the chest ; and an incised wound " x " x 1/3" on the right side of back lower part. Dissection revealed that under injury No. 2 the weapon entered through the space between 7th and 8th rib, made a cut on the diaphragm, pierced the peritonium and cut interior aspect of the spleen. On receiving these injuries which were caused in quick succession Muhammad Yunus could not have any strength left, in him, to wield a spear. The story that Muhammad Yunus was empty handed and he just happened to get hold of a spear lying in the verandah of the shop of Ali Muhammad (P. W.) was equally unbelievable. We also know that besides a spear one or more blunt weapons were used in causing injuries to Chiragh, Makhan and Bashir.

In this state of evidence, the Courts below were justified ink accepting the plea of self‑defence. The whole argument of Mr. Manzur Qadir depended on the inference which he desired us to draw that the injuries on the accused persons were self suffered. No foundation for such an inference was, however, laid down by the prosecution.

We, accordingly, see no reason to differ with the view formed by the learned Judges‑ of the High Court and refuse leave to appeal. Dismissed.

Petition dismissed,

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