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Criminal Petition for Special Leave to Appeal No. 10 of 1976, decided on 27th January, 1976.

(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 20‑11‑1975 in Criminal Appeal No.710/75).

‑‑‑Art.185(3)‑‑Pertal Code (XLV of 1860), 5.307/34 read with S.99‑ Attempt to murder‑‑Private defence, right of‑‑Extent‑‑No evidence adduced to indicate that but for a verbal altercation complainant and injured prosecution witnesses wanted toinflict any grievous injury to petitioner so as to justify wielding of Churri by him‑‑Leave to appeal refused.

Muhammad Abdullah Bajwa, Advocate Supreme Court instructed by Syed Wajid Hussain, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing: 27th January, 1976.

The petitioner herein and Manzoor Ahmad were tried and convicted under section 307/34, P.P.C. and sentenced to five years' and three years' rigorous imprisonment, respectively by a Section 30 Magistrate at Sialkot. On joint appeal, the Lahore High Court gave benefit of doubt to the other accused and acquitted him of the offence but maintained the petitioner's conviction though reduced his sentence to three years. The petitioner now seeks leave to appeal.

The incident took place on 23‑5‑1972 at 4‑30 p.m. in Bazar Kalan, Sialkot City. The prosecution case briefly is that the petitioner herein while riding a bicycle in the crowded bazar, struck against Abdul Sattar P.W. 3 who was then going on foot in company with Abdur Rashid P.W. 1 and his brother Muhammad Bashir P.W.2. This trivial accident led to an exchange of abuses between the parties and developed into a scuffle between them in the course of which the petitioner and the acquitted accused hit Abdul Sattar and his two companions with iron weights. The latter also retalliated and gave injuries to the petitioner and his companion the acquitted accused. In the course of scuffle the petitioner took out a Churri from the fold of his trousers and gave a blow to Muhammad Bashir P.W.2 in his flank. He also gave another Chhuri blow to Abdul Sattar P.W.3 in the chest. Abdul Ghani P.W.3 alongwith a number of others separated the parties and rescued the injured P.Ws. The injured were removed to the Hospital for treatment. While in the Hospital Abdur Rashid made statement Exh. P.A. to the A.S.I. who on being apprised of the incident visited the Hospital at about 7‑00. On the basis of that statement, F.1.R. Exh. P.A/1 was recorded at the P.S. Saddar. The petitioners were arrested on 26‑5‑1972. The same day he led to the. recovery of blood‑stained Chhuri Exh.P.6 from the graveyard called Imam Sahib which lay buried at a spot poiristed out by him. On examination by the Serologist, it was found to be stained with human blood.

The petitioner statement did not deny the incident. He however, stated that as he accidentally hit Abdul Sattar, he was knocked down from the bicycle by abdul. Sattar and his companions and gave severe beating with iron weights. In self‑defence he picked up the Chhuri from a nearby Rehri and injured the three P.Ws.

After what appears to be a careful appraisal of the evidence in the case, the learned trial Judge found the petitioner guilty and rejected the plea of self‑defence. The High Court acquitted the petitioner's companion because there was no pre‑concert between them and it was only the petitioner who was responsible for causing Chhuri blows to Abdul Sattar and Muhammad Bashir.

We have heard Mr. Muhammad Abdullah Bajwa in support of this petition. He submitted that on the prosecution evidence, a foundation was clearly laid to sustain the plea of self‑defence and that being so, vide provisions of section 101, P . P . C . the petitioner was justified to cause any‑ harm to his assailants other than causing of death In support of his argument learned counsel particularly referred to that part of the evidence according to which what triggered the quarrel between the parties was that the petitioner had accidentally hit Abdul Sattar with his bicycle who alongwith his companions strongly reacted to the accident The argument however, overlooks the fact that during the initial stage of transaction, both the parties are stated to have used iron weights which can scarcely be regarded as lethal. The petitioner on the other hand during the later part of the transaction took out a Churri which plainly is dangerous as a weapon of offence. The argument also completely overlooks the overriding condition: laid down in section 99, P.P.C. according to which "the right of private defence in no case extends to the inflicting of more harm than is necessary to inflict for the purpose of defence." The petitioner has not adduced any evidence to indicate that but for a verbal altercation, the complainant and the injured P.Ws.1 wanted to inflict any grievous injury to the petitioner so as to justify the wielding of the Chhuri by him.

For the foregoing reasons, we do not find any merit in this petition which is hereby dismissed.

S. Q. Leave refused

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