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Criminal Appeal No. 573 of 1973, decided on 10th April, 1985.

‑‑‑Ss. 304, Part II & 100‑‑Exceeding of right of self‑defence‑ Sentence‑‑Conviction not challenged but only reduction of sentence sought‑‑Trial Court finding complainant party as aggressor and that occurrence took place in house of accused and accused party being also injured‑‑Accused convicted under S. 304, Part II, P.P.C. by trial Court for exceeding his right of self‑defence‑‑Appeal coming up for disposal after 12 years‑‑Held, sending accused to prison to serve unexpired sentence, will not be proper in circumstances‑‑Conviction maintained but sentence of 5 years reduced to 13 months already undergone.

Ghulam Sarwar for Appellant.

Abdul Rashid, for A.‑G. for the State.

Date of hearing: 10th April, 1985.

This is an appeal by Khushi Muhammad against his conviction by learned Sessions Judge, Lahore, vide judgment, dated 31‑8‑1973 by which he was sentenced to suffer five years' R.I. under section 304(II), P. P. C.

2. The prosecution case is supported by Abdul Hameed P.W.7, Mukhtar P.W.8 and Ghulam Fareed P.W.9. The medical evidence is furnished by Dr. Muhammad Aslam P.W.1 who had conducted post‑mortem examination on the dead body of Gulzar deceased. Dr. Bashir Ahmad Kiani P.W.2 had earlier medically examined Gulzar who was alive at that time. Dr. Muhammad Yousaf P. W. had medically examined the injured eye‑witnesses and the accused in this case.

3. I have gone through the evidence of this case with the assistance of the learned counsel for the appellants and I find that the conviction of Khushi Muhammad appellant under section 304(11), P.P.C. was rightly recorded by the learned trial Magistrate. The learned counsel for the appellant has also not challenged the conviction of the appellant.

4. It is, however, contended by the learned counsel for the appellant that this appeal is coming up for disposal after 12 years; that the complainant party in this case had trespassed in the house of the appellant who had acted in his right of defence of person and property. It is, therefore, contended by the learned counsel for the appellant that the trial Judge did not place reliance on the prosecution story as well as the eye‑witnesses examined during the trial. It is, therefore, argued that the appellant be not sent to prison after 12 years of his conviction to serve the unexpired sentence. The learned counsel for the State has controverted these contentions of the learned counsel for the appellant.

5. The findings of the learned trial Judge was that the complainant party in this case was aggressor; that the occurrence took place in the house of Khushi Muhammad; and that the accused party was also injured in this case. The appellant was convicted under section 304(11), P. P. C. on the ground that he had exceeded the fight of his self‑defence. In view of these circumstances and in view of the fact that this appeal is coming up for disposal after about 12 years, I do not think ii proper to send back the appellant to prison to serve the unexpired sentence. The appellant was arrested on 24‑8‑1972 and remained in judicial lock‑up throughout till his conviction on 31‑8‑1973. He was allowed bail by suspension of sentence by this Court on 25‑9‑1973. In view of this, the conviction of the appellant under section 304(II), P.P.C. is maintained. However, in view of the circumstances mentioned above, his sentence is reduced to one already undergone by him plus a fine of Rs.5,000 or in default one year's R.I. The appellant shall pay this amount of fine within one month. The entire fine, if recovered', will be paid as compensation to the widow of the deceased.

M. A. K.

Appeal accepted.

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