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Criminal Miscellaneous No. 1 in Criminal Appeal No. 93 of 1981, decided on 16th June, 1981.

---Ss. 426 & 342-Penal Code (XLV of 1860), S. 304 (I)-Suspension of sentence-Plea of self-defence raised specifically by accused in his statement under S. 342 having been partly accepted by trial Court-Question as to whether accused did or did not exceed right of self-defence needing serious consideration-Sen tence suspended and accused granted bail.--[Private defence, right of-Evidence].

Sahibzada Farooq Ali for Petitioner.

Muhammad Naeem Koreja for the State.

This is an application under section 4 6, Cr. P. C. for the suspension of sentence in Cr. A. No. 93/1981. The petitioner has been convicted under section 304, Part 1, P.P. C. and sentenced to nine years' R.I. and was directed to pay Rs. 2,000 to the widow of the deceased and in default thereof to undergo three months' simple imprisonment.

2. Learned counsel for the petitioner submits it is a clear case of complete right of private defence and the observation of the trial Court that the petitioner has exceeded his right is factually and legally incorrect.

3. Learned counsel for the State has vehemently opposed this appli cation. He states that it is not a case of short sentence and in the circum stances of the case, the petitioner has rightly been convicted under section 302, Part 1, P. P. C.

4. I have considered the arguments advanced by the learned counsel for the parties and find that the petitioner received as many as eight injuries, out of which three were found on his head caused by sharp-edged weapon. The trial Court has observed in para. 3 of the judgment that "I surmise that the injuries of Ghulam Muhammad were caused by either Amir or the deceased by a wooden handle of that wahola". In para. 5, the learned Sessions Judge observed that "admitted facts of the case are that the deceased group came to the place of the accused and administered abuses. It goes without saying that there was no previous hostility or animosity between the parties. The matter flared up all of a sudden on a petty dispute. The combatants were not inimical to each other. The passion became high and uncontrolled in the sudden flare up and there was no scope for cooling down or thinking over. It is in this regard that I deduced that exception of section 302, P. P. C. is available to Ghulam Muhammad. He gave a spear blow on the chest of the victim but he did not repeat". Learned trial Judge further observed that the accused had exceeded the right of private defence and that a right of private defence does not extend to the infliction of more harm than it is necessary.

5. In the circumstances of the case, I am of the view that the pie of self-defence which was specifically taken by the petitioner/appellant in his statement recorded under section 342, Cr. P. C. and having been partly accepted by the trial Court in paragraph 5 of his judgment, the 14 question as to whether the petitioner did or did not exceed the right of self- defence needs serious consideration and it is a fit case for suspension of sentence. The petitioner is, therefore, allowed bail in the sum of Rs. 25,000 (Rupees twenty-five thousand) with one surety in the like amount to the satisfaction of the A. C., Mailsi.

M. Y. H. Sentence suspended.

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