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Petitioner: BOOTE SHAH VS Respondent: AZMAT SHAH
1988 S C M R 430
1988 S C M R 430
Present: Aslam Riaz Hussain, Javid Iqbal and Saad Saood Jan, JJ
BOOTE SHAH--Petitioner
versus
AZMAT SHAH and others--Respondents
Criminal Petition No.189 of 1984, decided on 19th January, 1988.
(From the order dated 14-5-1984 of the Lahore High Court passed in Criminal Revision No.245/83 and Criminal Appeal No.80 of 1983).
Penal Code (XLV of 1860)--
---Ss.302 & 300, Exception 4--Constitution of Pakistan (1973), Art. 185(3)--Petition against alteration of conviction and reduction in sentence--Accused convicted under S.302, P.P.C.--High Court, in appeal, taking view that Exception 4 to 5.300, P.P.C. was applicable because occurrence was unpremeditated, result of sudden fight and accused had struck deceased in heat of passion without taking undue advantage or acting in a cruel manner, altered conviction to 5.304, P.P.C. and sentenced him to 7 years' rigorous imprisonment--Leave to appeal granted to examine contention that evidence on record did not indicate that there had been any fight between parties or that deceased or his family had done anything immediately prior to occurrence to generate heat of passion in respondent and thus it was not a case where Exception 4 to S.300, P.P.C. was attracted-- Bailable warrants of arrest issued against accused.
Ch. Muhammad Hussain, Advocate Supreme Court and Ch. Muhammad Aslam, Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing: 11th January, 1988.
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.