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Criminal Petition for Special Leave to Appeal No. 19-R of 1980, derided on 8th March, 1981.

(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 5-4-1980, passed in Criminal Revision No. 178 of 1979).

-- Ss. 302/34 read with: S. 100-[Murder-case]-Private defence, right of-Contention that both accused G and M having had a common cause, accused G if found to have had sufficient justification for firing at deceased to save his own life, accused M being his companion could also inflict injury on deceased to save accused G-Accused M having also suffered injuries in same occurrence, held; it could not be said that he could not have acted in exercise of right of private defend of his own person. Private defence, right of].

Muhammad Iqbal Kowkab, Advocate and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

M. Ishaq Khan, Advocate and M. A. Siddiqi, Advocate-on-Record for Respondents Nos. 1 and 2.

Muhammad Aslam Uns, Advocate on behalf of Advocate-General (Punjab) for the State.

Date of hearing: 8th March, 1981.

Leave to appeal has been sought from judgment dated 5-4-1980 of the Lahore High Court whereby a criminal revision calling in question the acquittal of Muhammad Gulzar and Muhammad Zaman respondents, in a case under section 302/34, P. P. C. was dismissed. It may be mentioned here that in a cross-case arising out of the same transaction, said Muhammad Gulzar has called in question through separate petition for special leave to appeal, i.e. No. 22/R of 1980, judgment of the Lahore High Court of the same date whereby the appeal of Muhammad Ashraf, Muhammad Banaras and Muhammad Nazir from conviction under sections- 323/325/452/427 and 307 read with section 34, P. P. C. was set aside and they were acquitted. These two petitions are being disposed of separately.

In Petition No. 19-R, the prosecution case as summarized in the High Court judgment was that on the fateful night, Muhammad Yasin deceased, Muhammad Ashraf P. W. 6, Muhammad Banaras P. W. 7 and Nazir P. W. (not examined), drove up in the car of deceased, to Gulzar Hotel owned by Gulzar respondent No. 1 at about 12-00 mid-night. The deceased and his companions placed an order for tea with the servants of the said hotel, but they refused to comply on the plea that it was not available. The deceased requested the employees of the hotel that they may charge more than the normal rates. On this, the employees tauntingly replied that he was not the son of a Governor to pay more than the normal rates. This led to an exchange of abuses between Muhammad Yasin deceased and the servants of the hotel. The altercation was still going on when the two respondents (Nos. 1 and 2) appeared on the scene. Muhammad Gulzar respondent No. I asked the servants not to allow the deceased to go and Zaman respondent No. 2 shouted Thero in kee badmashi nikaltey hain'. On hearing the threats of the accused and smelling danger, the deceased tried to run away, but Gulzar respondent foiled his attempt by causing him injury on the thigh with a shot fired from his licensed pistol. Zaman respondent caught the deceased by the back of his banyan and inflicted injury with chhuri on his abdomen. After injuring the deceased, the respondents turned their attention towards Muhammad Ashraf, Muhammad Banaras and Nazir P. Ws., who in order to save themselves, threw a few chairs at the respondents, which caused a few injuries to the latter and thus managed to escape. Muhammad Yasin deceased after receiving injuries went towards Mughal Hotel situate in front of Gulzar Hotel and fell down and died there.

The prosecution case was sought to be proved through ocular account given by Muhammad Ashraf and Muhammad Banaras P. Ws. Evidence was also led to prove the recoveries of the weapons of offence, namely, the revolver and a blood-stained chhuri.

The plea of the accused-respondents was that of exercise of right of private defence.

The learned trial Court held that although a quarrel took place between the complainant party and the employees of the hotel, the circumstantial evidence including recovery of 27 broken pieces of chairs from the spot as also the nature of injuries on both sides the accused were entitled to right of self-defence. With regard to the use of chhuri, however, by Zaman respondent, it was held that the prosecution had failed to prove the same beyond reasonable doubt. Accordingly, both the respondent were acquitted. A learned Single Judge in the High Court after noticing the main features of the case came to the conclusion that the learned counsel appearing for the petitioner was unable "to shake any of the findings recorded by the learned trial Judge in respect of the case; which findings are derived from the evidence on the record and are otherwise neither perverse nor flimsy" Accordingly, it was not considered to be a fit case for exercise of revisional jurisdiction for directing a retrial.

We have heard the learned counsel for the petitioner and have also gone through those parts of the evidence to which our attention was drawn. It is not denied that both the respondents had suffered injuries during the occurrence in which. Muhammad Yasin of the complainant side lost his life. The learned counsel for the petitioner has tried to show that even if Gulzar respondent had right of private defence, Muhammad Zaman his co-accused could not raise the same plea because he had no such right of private defence as Gulzar could plead.

It has been argued by the learned counsel that even according to the prosecution both Gulzar and Muhammad Zaman had a common cause. If Gulzar had sufficient justification for firing at Muhammad Yasin so as to save his own life, Muhammad Zaman his companion could also inflict injury on Muhammad Yasin so as to save Muhammad Gulzar his companion. Be that as it may, Muhammad Zaman also had suffered injuries in the same occurrence and it cannot be said that he could not have acted in exercise of right of private defence of his own person.

Learned counsel next contended that on the evidence, right of private defence could not be conceded to the accused-respondents. After hearing him on this point, we do not find any error legal or otherwise in so far as the assessment of the evidence by the learned Courts below is concerned.

Learned counsel also feebly took up the point that both the parties having suffered injuries, it could be a case of sudden fight covered by Exception IV to section 300, P. P. C. but failed to press the same presumably for tide reason that in that case the complainant party against whose acquittal separate leave petition has been moved would also have to face a re-trial. However, after hearing the learned counsel for the petitioner, we do not find any justification at this stage for interference on the assump tion that it might have been a case of sudden fight covered by Exception IV to section 300, P. P. C. We in the circumstances do not consider it a fit care for grant of leave and accordingly dismiss the petition.

Petition dismissed.

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