MUHAMMAD HANIF Versus ABDUL REHMAN ALIAS MANNA

ORDER

1. NASIM HASAN SHAH, J .‑‑This petition for leave to appeal is directed against the judgment of the Lahore High Court, dated 30‑3‑1987.

2. The occurrence took place on 11‑11‑1980 at evening time in Pindora, a Ward of the Rawalpindi Municipal Committee. The prosecution case is that on the day of the occurrence, the deceased Sufi Shamim aged 30 years was sitting on his cycle shop. Respondent Abdul Rehman came and demanded a cycle on hire which was refused, resulting in mutual abuses. Respondent Abdul Rehman went away threatening to take revenge. The mother of Muhammad Hanif P.W. was ill and he alongwith the deceased, Muhammad Sohail, P.W.4 and Abdul Qadeer P. W.5 went to enquire after her health and while returning back from her house which is a few furlongs away, they were attacked by Abdul Rehman and other respondents. Respondent Abdul Rehman was armed with a revolver as well as a Chhuri. Tariq Ahmad, Shamroz and Malikdad respondents were armed with Chhuris while Allah Ditta was armed with a rifle. They attacked Sufi Shamim and his companions. Abdul Rehman fired at the deceased, hitting him in the chest while Shamroz and Tariq Ahmad inflicted Chhuri blow on his abdomen and hip region. Malikdad injured Muhammad Sohail P.W.; Abdul Rehman gave Chhuri blow to Muhammad Hanif and also fired at Muhammad Hanif. The deceased and the injured P.Ws. were removed to the hospital where soon afterwards Sufi Shamim breathed his last. Abdul Rehman, Tariq Ahmad, Shamroz, Allah Ditta and Malik Dad also suffered injuries.

3. The learned Additional Sessions Judge, Rawalpindi, who tried the respondents under sections 148/307 and 302, P.P.C. read with section 149, P.P.C., convicted Abdul Rehman under section 302, P.P.C. and sentenced him to death and a fine of Rs.10,000. He also convicted Abdul Rehman and Tariq Ahmad respondents under section 307, P.P.C and sentenced them to 3 years' R.I. and a fine of Rs.5,000 each. He also convicted them under section 13 of the Arms Ordinance and sentenced them to one year R.I. All other respondents/?accused were acquitted.

4. The respondents Nos. 1 and 2 took an appeal to the High Court. The death sentence awarded to respondent No.1 was also before the High Court on reference for confirmation. Respondents Nos. 1 and 2 also filed appeals against their conviction under the Arms Ordinance.

5. The High Court has vide its judgment dated 30‑3‑1987 accepted the appeals of the respondents Nos. 1 and 2 and acquitted them both under the Penal Code as well as the Arms Ordinance. Hence this petition for leave.

6. The High Court while accepting the appeal of the respondents has observed:‑

7. "The admitted facts are that Abdul Rehman alias Manna (appellant) and the deceased had quarrelled in the morning of the day of occurrence and had exchanged abuses; that the ?? occurrence took place in front of shop of Abdul Rehman alias Manna; that both the parties suffered injuries with deadly weapons including fire‑arms; that injured persons of both sides were admitted in the hospital the same evening; that both the sides have lodged their version with police the same evening and that the police has challaned both parties to Court, ?? however, result of cross‑case is not ascertainable from record.

8. The only question which remains to be decided, therefore, Is whether the accused party had waylaid the complainant party when it passed in front of the shop of Abdul Rehman alias Manna while returning, empty handed from the house of Muhammad Hanif's mother after enquiring about her health or that it was the complainant party who as sequel to the morning incident having armed themselves variously went to the shop of the appellants and attacked them and the accused party exercising its right of private defence of person and property caused injuries to the deceased and the P.Ws."

9. After carefully examining all the relevant circumstances bearing on this question, the High Court observed:? ??

10. "It, therefore, appears to us that the complainant party had ? attacked the accused first and then the latter took up arms ? lying in their shop and used them effectively in self‑defence against the complainant party. We are conscious that the ?? appellants' act of keeping arms at their shop was not without purpose but it is explainable i.e. that due to the quarrel which took place between Abdul Rehman alias Manna (appellant) and the deceased on that morning that they were sensing trouble from the complainant party who are criminals, as admitted by themselves, therefore, the appellants' intention for keeping arms was only to meet the expected aggression. So, keeping of arms by them in this situation was neither objectionable nor actionable. The fact that they had not gone to the place of complainant party to attack them is sufficient to infer that neither Abdul Rehman alias Manna was insulted by the deceased nor he was to take revenge, rather the boot ? seems to be on the other leg. In this view of the matter, we find that the appellants (though not specifically stated) appear to have caused death of the deceased and injured the P. Ws. ? In exercise of their right of private defence of person and have not exceeded the right in any manner."

11. The main submission urged, in support of this petition for leave to appeal, is that the learned Judges in the High Court had fallen ? into error in thinking that the occurrence took place in front of the shop of Abdul Rehman alias Manna and in this connection the learned counsel for the appellant drew our attention to the site plan which does not mention this fact. However, our attention has been drawn to the statement of Manzoor Hussain, P.W.2, who had joined the police investigation and who admitted in cross‑examination that the blood lay in front of the garage of Abdul Rehman alias Kariri ? accused and that the garage of Abdul Rehman alias Manna is in front ? of his garage.

12. We consider that the High Court has taken a fair and proper view of all the circumstances of the case and has arrived at the correct conclusion that the prosecution had not established its case. On the other hand, the respondents had caused the death of the deceased in exercise of the right 'of self‑defence.

13. This petition, accordingly, fails and is dismissed hereby.

14. M. I. /M‑416/8 ?????????????????????????????????????????????????????????????????????????????????? Petition dismissed.