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Petition for Special Leave to Appeal No. 49 of 1972, decided on 28th June 1972.
(On appeal from the judgment and order of the Lahore High Court, dated the 30th November 1971, in Criminal Appeal No. 702 of 1971).
Penal Code (XLV of 1860),
Ss. 302 & 99‑Murder‑Private defence, plea of‑Deceased, provoked by abusive language used by accused, giving him a blow or two with bamboo stick‑Accused in retaliation picking up a zinc pipe and delivering with it a fatal blow on heat of deceased‑‑Accused, held, exceeded his right of private defence.
D. M. Awan, Advocate Supreme Court instructed by Maqbool Ahmad Rana, Advocate‑on‑Record for Petitioner.
Nemo for the State.
Date of hearing : 28th June 1972.
The petitioner had originally bee convicted under section 302 of the Pakistan Penal Code and sentenced to transportation for life. On appeal before the High Court, however, the conviction was altered to one under section 304, Part II, P. P. C. and the sentence was reduced to seven years' rigorous imprisonment.
The prosecution case is that when Fazal Muhammad deceased accompanied by his brother P. W. Umar Din was proceeding to bring fodder and had reached the dera of the petitioner, the latter asked the deceased as to why he had cut a bamboo stick from his dera. The deceased denied this and the petitioner abused him. The deceased returned the abuse. The petitioner then went inside his dera and brought a zinc pipe with which he gave a blow on the head of Fazal Muhammad deceased with the result that the deceased fell down and died at the spot. The medical evidence discloses that the frontal bone of the skull had been fractured entirely under the injury, which measured 3 " x 1/4" x 1/4" on the top of the head.
The accused pleaded not guilty to the charge and took up the plea of self‑defence. He stated that the deceased had twice struck him with a bamboo stick upon which he picked up a zinc pipe lying nearby and struck the deceased with it.
The prosecution case has been supported by several eye witnesses. Defence witness Dr. Muhammad Rafiq found upon the petitioner a contusion mark 5" x 1/2" on the forehead one inch above the eye‑brow and another contusion mark 4 x 1 on the right shoulder. The learned Judge of the High Court found that the case was covered by Exception 4 to section 300, P. P. C. on the ground that evidence of P. W. Umar Din read with the state ment of the petitioner made under section 342 of the Code of Criminal Procedure showed that "the matter suddenly flared up and in the heat of the moment when the deceased provoked by the abusive language used by the petitioner, had given him a blow or two, the appellant gave him one blow on the head with a zinc pipe which resulted in the death of the deceased." The learned Judge of the High Court however, did not find that the petitioner had acted in exercise of right of self‑defence.
Even if it be conceded that he had such a right, he was not entitled under section 99 of the Pakistan Penal Code to the inflicting of more harm than it was necessary to inflict for the purpose of defence. Considering the nature of injuries upon the petitioner and the fact that in, retaliation he had used a zinc pipe the petitioner had undoubtedly exceeded his right of private defence.
We do not think it is a fit case for our interference. The petition is accordingly dismissed.
Leave refused.
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