Find a Lawyer

Criminal Appeal No. 293 of 1985, decided on 8th April, 1987.

---S.302 Two versions in juxtaposition--Trial Court disbelieving prosecution version and finding defence version as probable--Accused whether entitled to clean acquittal--Accused suffering two lacerated wounds on head one caused by deceased and other by witness with Saryas--Accused causing injuries to deceased by picking up Chhuri from hardware shop after receiving injuries from deceased--Accused reasonably anticipating grievous hurt--Accused, held, entitled to exercise of right of private defence to extent of causing death of deceased--Acquittal ordered in circumstances.

Dr. A. Basit for Appellant.

Sher Ali Khan for the State.

Date of hearing: 8th April, 1987.

This is an appeal filed by Muhammad Asghar, appellant, against his conviction and sentence under section 302, P.P. C.

2. The brief facts of the case are that on 24-8-1982 at about 1-00 p.m. Munawar Hussain complainant P.W.5 and his brother Muhammad Anwar, deceased, were working at their shop on Pasroor Road, Gujranwala. Muhammad Asghar alias Gogi, accused, came to their shop and inquired from Muhammad Anwar, deceased, as to why he had called his brother a bastard. Muhammad Anwar, deceased, replied that he had never called his brother a bastard. Thereafter, both of them started exchanging hot words and Muhammad Asghar, accused called out his brother Shabbir, accused and his father Latif accused who were sitting in their shop adjacent to that of the complainant. Muhammad Asghar, accused, then pulled out a dagger from his right dab, whereas Shabbir accused brought a dagger and came to the spot with his father raising lalkara. Muhammad Asghar, accused attacked Muhammad Anwar, deceased, by inflicting a dagger blow in the abdomen of Muhammad Anwar, deceased. Shabbir accused then inflicted a dagger blow on the deceased on his right thigh. Munawar Hussain complainant tried to save his brother and himself, but Shabbir accused gave him a dagger blow on the backside of his left shoulder. Munawar Hussain complainant picked up an iron Sarya and gave three/four blows to Muhammad Asghar, accused with it. Muhammad Siddique and Rehmat Ali P.Ws. who were standing nearby, witnessed the occurrence and came forward and saved the complainant party from further attack.

3. At the trial, Muhammad Latif and Muhammad Shabbir, accused denied their presence, but Muhammad Asghar accused admitted participation though in different circumstances. His statement recorded by the trial Judge under section 342 Cr.P.C. in this respect may be reproduced here with advantage:

"I asked deceased Anwar not to put chair in the Verandah which caused inconvenience to our customers as the shop of the deceased-was adjacent to our shop and they obstructed the passage of the people coming to our shop. There was exchange of hot words between me and the deceased. The deceased abused me and I paid him in the same coin. The deceased followed me with a piece of iron bar in his hand and in order to save my self I started running while Anwar deceased continued chasing me up to the Bore tree, when deceased gave me two Sarya blows. I, in order to save my life and exercising the right of self-defence, picked up one Chhuri from the nearby Hardware shop and gave two blows to Muhammad Anwar. Simultaneously Munawar P.W. with a Sarya in his hand reached the place of occurrence and gave me two blows of Sarya, on my head and shoulder. In order to save myself from the clutches of Muhammad Munawar P.W. I attacked Muhammad Anwar. My co-accused were not present at the spot."

4. The learned trial Judge placing in juxtaposition the case of the prosecution and that of Muhammad Asghar, accused found from the evidence on the record and the surrounding circumstances that the two eye-witnesses namely Munawar Hussain complainant P.W.5 and Muhammad Siddique P.W.6 could not be believed and that the defence version, as submitted by Muhammad Asghar accused was probable. However, even after relying upon the version of Muhammad Asghar, accused, the learned trial Judge convicted him under section 304-II and sentenced him to ten years' rigorous imprisonment.

5. I have heard the arguments of the learned counsel for the appellant and the State and have perused the record. The only question that arises in the case is whether after accepting the version of Muhammad Asghar, appellant, the said appellant is entitled to a clean acquittal, or to a conviction and sentence as recorded by the tria Judge, which should be maintained. It- is obvious from the testimon of Dr. Nazir Ahmad P. W .10 that Muhammad Asghar, appellant suffered two lacerated wounds on the head, a contusion on his right should and an abrasion on his left ankle. The last injury was found by the said doctor to be three days old. This injury therefore is no contemporaneous with the incident that took place on 24-8-1982; whereas the other three are. According to the statement of Muhamma A Asghar, appellant he was first given two injuries by Muhammad Anwar, deceased with an iron Sarya, whereafter he picked up a Chhuri fro a nearby hardware shop and gave two injuries with it to Muhamma Anwar, deceased. Simultaneously Munawar Hussain P.W. also gave him two blows with an iron Sarya on his head and shoulder. In order to save himself from the clutches of Munawar Hussain, he attacked Muhammad Anwar, deceased. From this narration it is clear that Muhammad Anwar, deceased, gave one Sarya blow to him initially on the head and one Sarya blow was given by Munawar Hussain P.W.5 to him also later on the head. Both the lacerated wounds on the head of Muhammad Asghar, appellant, are bone deep injuries. It cannot, therefore, be said that the appellant did not reasonably anticipate that grievous hurt would be caused to him. In these circumstances, the appellant had the right of private defence of his body to the extent of causing the death of Muhammad Anwar deceased. The appellant, therefore, is entitled to an acquittal.

6: For the forgoing reasons, this appeal is accepted 'and the conviction and sentence of Muhammad Asghar appellant, is set aside. He shall be set at liberty forthwith, if not required in any other case.

S. A. /M-238/L Appeal accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.