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Criminal Petition for Special Leave to Appeal No. 7 of '1980, decided on 14th February, 1982.

(Against the judgment of the Lahore High Court, Bahawalpur Circuit, dated 14‑11‑1979, passed in Criminal Appeal No. 48 of 1978/BWP, M. R. No. 1 of 1979/BWP)

Constitution of Pakistan (1973)‑

----Art. 185(3) read with Penal Code (XLV of 1860), Ss. 302, 304(1) & 300, Exception I‑High Court recording reasons for holding defence version of exercise of right of self‑defence to be probable‑Supreme Court on appraisal of evidence in light of defence version agreeing with reasons given by High Court‑Petition, held, without merit and dismissed.

Muhammad Ismail Qureshi, Advocate Supreme Court and Sh. Abdul Karim, Advocate‑on‑Record for Petitioner.

M. A. Bajwa, Advocate Supreme Court assisted by Ijaz All, Advocate- on‑Record for the State.

Date of hearing : 14th February, 1982.

This petition by Niaz Ahmad is directed against the order of the Lahore High Court (Bahawalpur Circuit), dated 14‑11‑1979, whereby it altered the conviction of Jat and Ramzan respondents from section 302, P. P. C. to one under section 304(1), P. P. C. and reduced their sentences to that' already undergone by them.

2. The murder took place on 13‑5‑1977 at about 12 noon in the jhuggi of Luddan P. W. in Chak No. 190/P, Sadiqabad, District Rahimyar Khan. The F. I. R. was lodged by Niaz Ahmad son of the deceased. As per version given in the F. I. R., on the fateful day, Shah Nawaz (deceased) who had land in Chak No. 190/P proceeded to that Village alongwith his son Niaz Ahmad (P. W. 9) and his uncle Ghulam Nabi (P. W. 10) to divide the share of wheat crop with his tenant. At about 10‑30 a.m. Shah Nawaz (deceased) told his companions that he would take rest in the house of Luddan (P. W. 10) and they should get the wheat packed in bags, whereafter they would return to their homes together. Shah Nawaz (deceased) then went to the jhuggi of Luddan (P. W. 10) while Ghulam Nabi (P. W. 11) and Sarfraz (given up P. W.) went to their land to do the need ful. They finished the work by about 12 of noon and thereafter proceeded to the house of Luddan aforesaid, where they had left Shah Nawaz (deceased). When they were about 2 acres away from the house of Luddan they heard the alarm raised by him. They rushed to his jhuggi and saw that Ramzan accused had caught hold of Shah Nawaz deceased on a cot while Jat accused was giving hatchet blows to the deceased. When the P. Ws. went near the jhuggi both the assailants ran away. They tried to apprehend the accused but they threatened to kill them if they came near them. Shah Nawaz died at the spot.

The motive of the occurrence as stated in the F. I. R. was that the respondents‑accused suspected that Mst. Bible mother of Rahzan and the sister‑in‑law of Jat respondent had illicit relations with Shah Nawaz and it was for this reason that they did away with him.

3. In support of its case the prosecution produced three eye‑witnesses, namely, Niaz Ahmad (P. W. 9), Luddan (P. W. 10), and Ghulam Nabi (P. W. 11). It also relied on the recovery of blood‑stained hatchet from Jat 'respondent, his blood‑stained clothes as well as the medical evidence and the motive.

Ramzan respondent denied his guilt but Jat respondent admitted the occurrence and gave the following version thereof

"I had come from my house to the house of my brother father of Rahzan. None was present there. 1 was passing near the house of Luddan P. W. I saw that Mst. Bible was sitting with Shah Nawaz deceased. Both were naked. I got provoked, picked up a hatchet from there and my Ghairat killed Shah Nawaz. I was alone. Rahzan was not with me. Mst. Bible ran away. I searched for her but she was not traced out. I went to the police station on my own. I produced the hatchet before the Police. My blood‑stained clothes were removed at the P. S."

The learned trial Court did not accept the plea of defence and convicted both the accused under section 302/34, P. P. C. But the High Court, after appraising the evidence, came to the conclusion that the defence version was probable and as such applying Exception I to section 300, P. P. C. altered their conviction from section 302, P. P. C. to one under section 309(1), P. P. C. and reduced their sentences as already mentioned.

4. The learned counsel for the petitioner took us through the relevant portions of the evidence on the record as also the judgments of the two Courts below and contended that the learned High Court had not correctly appreciated the evidence on the record and had wrongly altered the convic tion of the respondents to one under section 304(1); P. P. C, by giving undue weight to the defence version.

5. The High Court has recorded the reasons for holding the defend version to be probable in paragraph 8 of its judgment. Having carefully appraised the evidence in the light of the defence version put forward by Rahzan respondent and after giving our anxious consideration to the matter, we are inclined to agree with the reasons given by the learned Judges of the High Court holding that the defence version was probable and the case was covered by Exception I to section 300, P. P. C.

We, therefore, find no merit in the petition, which is consequently dismissed.

Petition dismissed.

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