BOOTE SHAH Versus AZMAT SHAH
This matter arises from a petition for leave to appeal filed by Boote Shah against a judgment of the High Court, which had altered the conviction of the respondent Azmat Shah from section 302 to section 304 of the Pakistan Penal Code and reduced his sentence of imprisonment for life to seven years' rigorous imprisonment. The respondent was originally tried by the Sessions Judge for the murder of Khadim Hussain, convicted under section 302, and sentenced as a juvenile to imprisonment for life. The prosecution alleged that the respondent stabbed the deceased following a dispute over the distribution of 'Niaz' near a local shrine. The High Court applied Exception 4 to Section 300 of the Pakistan Penal Code, holding that the occurrence was unpremeditated and the result of a sudden fight in the heat of passion. The core legal question is whether Exception 4 to Section 300 was properly attracted to the facts of the case, given the absence of evidence showing a sudden fight between the parties. The Supreme Court held that the contentions raised regarding the inapplicable nature of Exception 4 required examination, granted leave to appeal, and issued bailable warrants of arrest against the respondent.
- Whether Exception 4 to Section 300 of the Pakistan Penal Code applies when there is no evidence of a sudden fight between the parties?
- Can a conviction under section 302 of the Pakistan Penal Code be altered to section 304 without establishing the applicability of a recognized exception?
- Whether the plea of self-defence is available to an accused who initiates an assault following a minor verbal dispute?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 304, Pakistan Penal Code 1860
- Section 300, Pakistan Penal Code 1860
ORDER
SAAD SAOOD JAN, J. -For causing the death of Khadim Hussain deceased, three persons, namely, Azmat Shah, respondent, his brother Latif Shah and his step-father Walayat Shah, were tried by the Sessions Judge at Sislkot on a charge under section 302, read with section 34, of the Pakistan Penal Code. The learned Sessions Judge acquitted Latif Shah and Walayat Shah but convicted Azmat Shah, respondent, of the offence under section 302. As at the time of the occurrence the respondent was only 16 years of age, the learned Sessions Judge refrained from passing the capital sentence but instead directed that he should suffer imprisonment for life and pay a fine of Rs.5,000. The respondent preferred an appeal before the High Court and Boote Shah, brother of the deceased, filed a revision petition. The High Court dismissed the revision petition, altered the conviction of the respondent to one under section 304, without indicating the part which was applicable, and reduced his sentence to rigorous imprisonment for a period of 7 years. It did not interfere with the sentence of fine. Boote Shah seeks leave to appeal from the judgment of the High Court.
2. It was alleged by the prosecution that the deceased with his family would collect donations from the village every year in the month of Har in order to prepare and distribute 'Niaz' on the occasion of death anniversary of a local 'peer', known as Saeen Noor Elahi. The respondent and his family were looking after the mazar of the peer. They resented the collection of donations and distribution of Niaz by the family of the deceased. On the day of occurrence, that is, 20-6-1982, the family of the deceased. as was their wont, prepared Niaz for the purpose of distribution. At about 6 P.M., the mother of the deceased passed by the door of the mazar. On seeing her, the respondent made some snide remarks. She returned home and informed the deceased of what had happened. Immediately thereafter, the deceased together with his mother, brother and two other persons went to the mazar in order to lodge a protest. When he reached there, Latif Shah took him in his grasp and the respondent gave a chhuri blow on his left side. The deceased was taken to the Civil Hospital, Sambrial but he died on the way. Boote Shah went to Police Station Sambrial and lodged the F . I . R . at 9.45 P.M.
3. The respondent was arrested on 22-6-1982. He helped the police in recovering the chhuri which was later found to be stained with human blood.
4. Latif Shah and Walayat Shah were found innocent by the police during the course of investigation and they were not challaned. Nevertheless, they were tried alongwith the respondent and were acquitted. The High Court did not interfere with the decision of the learned trial Court in so far as they were concerned.
5. The respondent pleaded not guilty to the charge against him. He admitted that he had caused the death of the deceased but stated that in doing so, he had acted in exercise of the right of self-defence.
His version was that the mother of the deceased wanted to distribute the Niaz on the Mazar; when he protested, she brought the deceased to the Mazar; the deceased was armed with a dang and he tried to assault him; in order to save himself, he picked up a knife and struck the deceased in his back. He produced one witness in his defence.
6. The trial Court and the High Court both rejected the defence version and held that the plea of self-defence was not available to the respondent.
7. The High Court was of the view that Exception 4 to Section 300 was applicable in this case as the occurrence was unpremeditated and was the result of sudden fight and that the respondent struck the deceased in the heat of passion without taking undue advantage or acting in a cruel manner. Accordingly, it held that it was a case of homicide not amounting to murder.
8. In support of this petition it is contended that the evidence on record did not indicate that there had been any fight between the parties or that the deceased or his family had done anything intermediate prior to the occurrence to generate 'heat of passion' in the respondent.' It was thus not a case where Exception 4 to Section 300, ibid, was attracted.
9. The contention raised on behalf of the petitioner need examination. Leave to appeal is granted. Let bailable warrant of arrest, in the sum of Rs.25,000 with two sureties each in the like amount, returnable to Assistant Commissioner, Sialkot, issue against Azma Shah, respondent.
M.I./B-30/S Leave granted.