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Criminal Appeal No.296 of 1978, heard on 13th May, 1985.

--S.304, Part II--Deceased trespassed into house of accused and gave injuries to prosecution witnesses-- Agressor--Right of accused to defend his property and person did extend to causing death of deceased and his act of killing deceased fully covered by provisions of S.100, Penal Code--Conviction and sentence of accused set aside in circumstances.

Ehsanullah Khan Lila for Appellant.

Irshad Ahmad for the State.

Date of hearing: 13th May, 1985.

This criminal appeal arises from the judgment of the learned Additional Sessions Judge, Sialkot, whereby he on 21-3-1978 convicted Ghulam Abbas under section 304 Part-II PPC' and sentenced him to five years' R.I.

2. The prosecution case was that the appellant opened attack on Abdur Rashid and thereby caused his death on 6-5-1975 at about Isha prayer time in the area of village Hirar P.S. Saddar, Sialkot. The accused appellant raised plea of self-defence of property as well as person. In reply to the question, "Have you anything else to say " he stated:--

"Actually the gun which was snatched from my brother from the roof of our verandah by the nine intruders was my gun and actually the fire was made by Rashid son of Ghulam Muhammad from that gun and the gun of Amir Hamza was substituted in that gun for better reasons known to the complainant. My gun was not recovered from the complainant intentionally by the police."

The learned trial Court found that the deceased was aggressor. He not only committed criminal trespass into the house of the accused but also gave injuries to Amir Hamza and Feroze. It is really unfortunate that despite this finding, the learned Addl. Sessions Judge has convicted the appellants for having exceeded the right of self defence of person. The judgment of the learned Addl. Sessions Judge which has not been challenged by the State .in appeal against acquittal and by the complainant in revision against the acquittal, accepted at its face value, the act of the accused /appellant of killing the deceased stands fully covered by the provisions of section 100, PPC. His right to defend his property and person, did extend to the causing of the death of the deceased. That being the position, the appeal is accepted. The conviction and the sentence of the appellant is set aside. He is acquitted of the charge.

M.Y.H./G-75/L Appeal allowed.

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