AMIR vs THE STATE

1. SAJJAD AHMAD, J.-The petitioner is one of the accused persons for the murder of Jan Muhammad.

2. A cross-case arising out of the same occurrence was registered against the complainant party for the murder of one Yasin, who belonged to the petitioner's party. The occurrence arose over a land dispute. The petitioner and his co-accused had applied to the High Court for their bail after it was rejected by the learned Sessions Judge. A learned Single Judge in the High Court has granted bail to the co-accused of the petitioner but has rejected his prayer for bail.

3. It was urged before the learned Single Judge in the High Court that one of the alleged eye- witnesses named Manzur, who lodged the F. I. R. Against the accused and who is also one of the accused in the cross case, had stated in his statement recorded by the committing Magistrate that the petitioner (Amir) had fired his gun at Jan Muhammad after the latter had fired at Yasin, killing him, and therefore, a complete case of the exercise of the right of self-defence for the petitioner was made out. The learned Judge, however, did not consider this to be a good ground for granting bail for the reasons, firstly, that ultimately it may turn out to be a case under section 304, Part I, P. P.

4. C., for exceeding the right of self-defence, the punishment for which extends to transportation for life. Secondly, the learned Single Judge has observed that ultimately the case may turn out to be one of a free fight between the two parties.

5. The learned counsel for the petitioner has submitted before us that the other eye-witnesses, who have been examined in the case, have made statements in the same strain. If this is correct and there is no other evidence to connect the petitioner with the crime of murder, and his right of self- defence is completely established he can press for his discharge or acquittal, as under section 96 of the Penal Code "Nothing is an offence which is done in the exercise of private defence". If he is found to have exceeded it, he can be convicted of culpable homicide not amounting to murder, as provided in exception (2) to section 300, P. P. C. This offence would then fall under section 304, Part 1, P. P. C., for which he may be sentenced to any term of imprisonment, which may extend to ten years, but not necessarily transportation for life, which is the maximum provided under that section.

6. There is no mention in the order of the learned Single Judge that he has also examined the statements made by witnesses other than P. W. Manzur. We have, therefore, directed the learned counsel for the petitioner to renew the petitioner's application for bail before the learner Single Judge, who will consider the wholes case for purposes of bail on the data that is available. It may also be observed that even for purposes of bail, law is not to be stretched in favour of the prosecution. If any benefit of doubt arises, it must go to the accused.

7. With those remarks, we dismiss this petition.