AHMAD ALI Versus STATE
This petition for leave to appeal challenged a Peshawar High Court judgment that modified the petitioners' convictions from Section 304, Part II, to Section 304, Part I, Pakistan Penal Code 1860, regarding the death of two individuals. The core legal question was whether the High Court, having acknowledged the petitioners' right of self-defense, was required to acquit them rather than convict them, absent an explicit finding that the right of self-defense had been exceeded. The Supreme Court dismissed the petition, holding that the conviction under Section 304, Part I, inherently presupposed a finding that the petitioners had exceeded their right of private defense. The Court emphasized that the severity of the outcome—two deaths and multiple injuries—clearly demonstrated that the force employed by the petitioners went beyond what was necessary for self-protection. Consequently, the Court affirmed that no miscarriage of justice occurred, establishing that a conviction under Section 304, Part I, is legally consistent with a finding that the right of private defense was exceeded.
- Does a conviction under Section 304, Part I, Pakistan Penal Code 1860, inherently imply that the accused exceeded their right of private defense?
- Is an explicit finding of exceeding the right of self-defense required in the judgment text if the conviction itself is for an offense that presupposes such excess?
- Can an accused be convicted for culpable homicide when the court determines they were not the initial aggressors but acted in self-defense?
- Section 304, Part II, Pakistan Penal Code 1860
- Section 307, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 302, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 304, Part I, Pakistan Penal Code 1860
- Section 326, Pakistan Penal Code 1860
ORDER
1. WAHEEDUDDIN AHMAD, J.--Petitioners Ahmad Ali, his son Najaf Ali and his three nephews Mohsin Ali, Jan Ali and Mohib Ali, were convicted under section 304, Part II, P.P. C. , for committing culpable homicide not amounting to murder by causing the death of Mashad Ali and Khan Ali deceased and each of them was sentenced to undergo 10 years' rigorous imprisonment, by the Additional Sessions Judge, Peshawar, Camp Kohat. They were also convicted under section 307, P.P.C., for attempting at the lives of Mst. Ali Nisa and Maqsood Ali and were sentenced to seven years' rigorous imprisonment each. They were further convicted under section 148 for committing rioting armed with deadly weapons and sentenced to one year's rigorous imprisonment. The petitioners challenged this judgment in Criminal Appeal No.20 of 1969. The State also filed an appeal No.63 of 1963 and prayed that the petitioners should be convicted under section 302/149, P.P.C. A Division Bench of the Peshawar High Court, by judgment dated the 4th November, 1970, accepted the appeal of the State and altered the conviction of the four petitioners Ahmad Ali, Mohsin Ali, Jan Ali and Mohib Ali from section 304, Part II, P.P.C. to one under section 304, Part I, P.P.C. and maintained the sentence as 10 years' rigorous imprisonment. Najaf Ali was acquitted of this charge. The sentence of Najaf Ali was altered from section 307, P . P. C . to section 326, P . P. C. and he was sentenced to the term of imprisonment already undergone. The sentence of all the accused under section 148; P.P.C. was set aside. The sentence of all the accused under section 307, P.P.C. was set aside. As already stated, Najaf Ali's sentence was altered from section 307, P . P. C . to one under section 326, P . P . C . The petitioners seek permission to file an appeal against this judgment.
2. The prosecution case is that on the 17th September, 1969, in the morning, Nashad Ali deceased and his son Khan Ali deceased, alongwith P.Ws. Mahmood Ali and Maqsood Ali sons of Nashad Ali and Mst. Ali Nisa, sister of Nashad Ali, had gone to their paddy threshing field. Nashad Ali, after leaving these persons in the threshing field went to his field for taking the turn of water. Nashad Ali came injured and informed his sons who were at the paddy threshing field, that Ahmad Ali petitioner had forcibly diverted water to his field and had injured him on his forehead. On learning this, his sons Khan Ail deceased, Mahmood Ali P.W.8. Maqsood Ali P.W.9 and his sister Mst. Ali Nisa P.W.10 accompanied him to the spot. The five petitioners were present there armed with spade and daggers. Ahmad Ali and Motisin Ali gave dagger blows to Nashad Ali, Jan Ali and Mohib Ali gave dagger blows to Khan Ali. Najaf Ali attacked Mst. Ali Nisa with the spade. Nashad Ali fell down on the ground. The complainant party threw stones on the petitioners which they had picked Lip from the dry bed of the channel. Ahmad Ali gave more blows to Nashad Ali. Mst. Ali Nisa was also given dagger blows by Ahmad Ali. Najaf Ali got dagger from Mohib Ali and gave blows with it to Mst. Ali Nisa. Mst. Ali Nisa raised an alarm and P.Ws. ran away from the spot for safety. Nashad Ali died at the spot and Khan Ali was taken in a injured condition in a bus to the Police Station, Sadar. He expired on the way to the Police Station. The First Information Report was lodged by Mahmood Ali P.W.8 at 4-40 p.m. in Police Station Sadar, Kohat.
3. The appraisal of the evidence of the prosecution witnesses by the High Court is as under:-
4. "At the trial before the learned Additional Sessions Judge and here in the High Court it was contended that the appellants acted in exercise of the right of self-defence of persons. The learned Additional Sessions Judge refused to extend the benefit of the exercise of the right of self-defence of person to the appellants, but we do not find ourselves in agreement with him in this view of the matter. It is admitted by all the prosecution witnesses that they alongwith the deceased were busy threshing paddy crop in their fields. The deceased Nashad Ali left the threshing and went to irrigate his field. The remaining party continued threshing of the paddy. After a while, Nashad Ali returned to them and told them that he had taken his turn of water, with his forehead injured and wet clothes. He was asked by the prosecution witnesses as to what was the matter, whereupon he told them that Ahmad Ali had forcibly diverted water to his land and they had a quarrel. It was then that the prosecution witnesses alongwith the deceased went in the direction where Ahmad Ali was irrigating his land. The witnesses did depose that they had finished threshing their paddy, but what appears from the evidence is that they had left the threshing as it was and surely left the threshing-floor not a peaceful mission, but with a view to teaching a lesson to Ahmad Ali who had injured Nashad Ali earlier. It is admitted that Nashad Ali had with him then a wooden-fork (an implement used for threshing purposes). It was also admitted by Mahmood Ali P.W.8 in his statement before the committing Magistrate with which he was confronted at the trial that "his father gave a blow with his wooden-fork to any of the accused". It is also in evidence that out of the accused appellants, Mohib Ali, Ahmad Ali, Jan Ali and Mohsin Ali bore injuries. They were examined for their injuries. The prosecution witnesses tried to explain that these injuries were caused to the appellants with the stones which they had collected from the dry channel and thrown at them, but then in the statement of Mahmud Ali P. W.8, it was admitted that the wooden-fork was used by the deceased and surely injury No.1 found on the upper part of the forehead of Mohsin Ali which shaped like 'Y', size 1 x 1/6" skin deep, could not have been caused with a stone. It was, therefore, established that the wooden-fork was used by the deceased. Again, we know that it was the deceased party which went from their threshing floor to the spot of crime and at least one of them was armed with a pitch-fork. This being the position, surely the appellants were not the aggressors."
5. On these observations the learned Judges of the High Court held that the petitioners did act in the exercise of the right of self-defence and their offence fell within the purview of section 304, Part I, P.P.C.
6. Mr. Zahurul Haq, learned counsel for the petitioners has contended that once the High Court comes to the conclusion that the petitioners are entitled to right of self-defence of persons and without holding that it was exceeded, it was a case of acquittal. The contention of the learned counsel has not impressed us. His contention that there is no finding that the right of self-defence was exceeded should a result in the acquittal of the petitioners has no basis whatsoever. The very fact that the learned Judges of the High Court have convicted the petitioners under section 304, Part I, P.P. C. shows that they were of the opinion that the petitioners have exceeded the right of self-defence. The fact that two persons had died and Mst. Ali Nisa has received injury on her person leaves no doubt in our mind that the petitioners have exceeded the right of self-defence in the present case. We are, therefore, satisfied that their conviction under section 304, Part I, P.P.C., is proper. No grave miscarriage of justice has, been done. The petition is dismissed.
7. S.Q. /A-161/S Petition dismissed.