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Criminal Miscellaneous in Criminal Appeal No. 422 of 1981, decided on 10th August, 1981.

--- S. 426 read with Penal Code (XLV of 1860), S. 34-Suspension of sentence---Whether petitioners exceeded right of self-defence or they can be convicted for vicarious liability under section 34, P. P. C.-Question needs serious consideration-Execution of sen tence suspended.

S. M. Javed Chaudhry for Petitioners.

Altaf Muhammad Khan for the State.

This is an application under section 426, Cr. P. C. for suspension of sentence of the petitioners. The petitioners have been convicted under section 304 (1)/34, P.P.C. and under section 30'1/34, P.P.C. Petitioners Nos. 1 and 2 were sentenced to five years' R. I. and a fine of Rs. 1,000 each or in default thereof further R. I. for six months under section 304 (1) /34, P.P.C. and to one year's R. I. under section 307/34, P.P.C. with the direc tion that the sentences would run concurrently. Petitioner No. 3, namely Abdul Majid, was sentenced to seven years' R. I. under section 304 (1) 34, P.P.C. plus fine of Rs. 1,000 or in default six months' R. I. and to one year's R. I. under section 307(34, P.P.C. with the direction that the sentences would run concurrently.

2. Learned counsel for the petitioner submits that in view of the infirmities apparent on the face of .the judgment, it is a fit case for suspending the execution of the sentence of the petitioners.

3. As against this, learned counsel for the State opposes this petition. He submits that it is not a case of short sentence and that the matter cannot be properly appreciated at this stage.

4. After hearing the learned counsel for the parties and going through the impugned judgment, I find that in para. 22 of the judgment it is stated by the trial Court that: "in the present case, it is from the mouth of P. Ws. that they first injured the complainant party and then the accused gave injuries to them. From the perusal of the medical evidence, the fatal blow on the person of deceased was on the head and other injury was on his arm which can be caused by a fall on hard substance according to the medical evidence. There are any two injuries on the person of deceased as stated above. 1 mean to say that there is no repeated blow from the accused on the person of the deceased, which also shows the intention of the attacker. From the analysis of the evidence on the record and keeping in view the demeanour of P. Ws. and all the attending circumstances of this case, I observe that it was the complainant party who forcibly wanted to divert the water According to the P. Ws. their turn of water was to commence at 8.26 p. m. but according to document Exh. 100 (Warabandi), the time when the turn of complainant party was to commence is quite different, i. e. 5 a. m. which belies the statements of the P. Ws. From the above discussion, I conclude that the accused party only warded off the attack but the facts remain that the accused party exceeded their right of self-defence." In para. 2 it is held: "In this very case, it is in evidence of P. Ws. that they first opened the attack on the accused and then the accused caused injuries to them. This shows that the complainant party was the first to attack the accused and then the accused caused injuries to them in exercise of their right of defending person and property.

5. In view of the observation made by the learned trial Court, I am of the opinion that the question whether in the circumstances of the case the petitioners had exceeded the right or not and whether they can be convicted for vicarious liability under section 34, P.P.C. needs serious consi deration. The execution of the sentence of the petitioners is, therefore, f suspended and they are allowed bail in the sum of Rs. 10,000 (rupees ten thousand) with one surety in the like amount to the satisfaction of A. C., Pakpattan.

Bail granted.

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