RAFAQAT AHMAD vs THE STATE

ORDER

ABDUL QADEER CHAUDHRY, J.---Leave to appeal has been sought against the judgment of the High Court dated 4-4-1993.

2. The facts of the case are that the petitioner faced trial under section 302, P.P.C. On the allegation that he caused death of Basharat Hussain by means of a knife. The trial Court convicted the petitioner under section 304, Part I, P.P.C. And sentenced him to seven years R.I. And fine of Rs,10,000.

The learned High Court upheld the conviction. However, the benefit of section 382-B, Cr.P.C. Was extended to the petitioner.

3. According to the prosecution, P.W.7 Iftikhar Ahmad and his cousin Basharat Hussain were on their way to Shampur when they were confronted by the petitioner and told them that they could not be spared. The complainant and the deceased started running. The petitioner who was armed with a Churri gave blow with it on the chest of the deceased who fell down. The case of the petitioner in his statement under section 342, Cr.P.C. Was that he was a student of 1st Year and on the day of occurrence, the deceased and Iftikhar apprehended him. Iftikhar snatched his cycle and Basharat at the point of Chhuri ordered him to remove his Shalwar and he also inflicted a chhuri blow on his chest. He tried to commit sodomy. He struggled to save himself from the hands of Basharat. He attacked him and he fell down. He was injured by his own chhuri. The learned trial Judge on the assessm ent of the evidence, came to the conclusion that the version given by the defence seems to be more proper and natural and then observed that the petitioner exceeded the right of self- defence. As such, he was convicted under section 304, Part I, P.P.C.. The learned High Court maintained the conviction and sentence of the petitioner and observed that the petitioner exceeded the right of self-defence.

3. Learned counsel for the petitioner submitted that the petitioner who was a student of 1st Year at the time of occurrence was way-laid by two persons including the deceased. He was entitled to the right of private defence in view of the circumstances of the case and accepted by the two Courts.

He has referred to section 100, P.P.C. Which contemplates that "the right of private defence of the body extends, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the description hereinafter enumerated, namely:- ' Secondly, such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; and Fourthly, an assault with the intention of gratifying unnatural lust". Leave is granted to consider the above contention.

4. Learned counsel requests for the suspension of sentence on the ground that the petitioner is studying in Law and he remained on bail during the proceedings before the High Court. The sentence is suspended subject to the petitioner's furnishing bail bond in the sum of Rs,50,000 and a surety in the like amount to the satisfaction of the Additional Sessions Judge, Gujrat.