This appeal arises .Out of judgment dated 19th September, 1981 passed by the learned Additional Sessions Judge, Sheikhupura, whereby he has convicted Mst. Fatima appellant aged about 18 years, under sec--tion 304 (Part I), P. P. C., and sentenced her to 3 years R. I. And a fine of Rs. 4,000, in default whereof she has to suffer further R. I. For 6 months. It has also been directed that out of the fine, if recovered, a sum of Rs. 3,000 would be paid to the heirs of the deceased under sec--tion 544-A, Cr. P. C. The appellant has, however, been given the benefit of the adjustment of the period for which she remained in the judicial lock up during trial while computing the period of sentence.
2. Briefly stated the facts of the case as transpire from the contents of the First Information Report Exh. P. L. Are as under:- Shahamand P. W. 8 was present in the outer compound of his house on 8th September, 1980 at about noon in village Marh Balochan. An unknown person came to him and enquired from him about the house of Jalla and Altaf co-accused (since acquitted). Shahamand P. W. Pointed out the house of the afore-said Jalla and Altaf to the said unknown person. In the meantime, Mst. Fatima appellant came there and started calling bad names to Shahamand and his wife Sardaran who had brought water for the stranger complaining as to .Why they had informed the stranger about the whereabouts of her brother. After this Mst. Fatima left for her house. The stranger also went away. After a short while Fatima appellant armed with hatchet and the remaining co-accused (since acquitted) armed with Sotas emerged at the scene. Mst. Fatima dealt hatchet blow to Mst.
Sardaran, the wife of Shahamand, on her wrist. Jalla, the acquitted co-accused, also caused blows with his Sota on the head and wrist of Mst. Sardaran Shahamand and Mst. Sardaran raised alarm.
His son Kamal Khan and his young daughter Sahib Bibi aged 8 years were also attracted to the spot. Sahib Bibi went forward to save her mother but. She was dealt a blow on her head by Fatima appellant with her hatche. The hatchet got stuck in the head of the deceased. Mst. Khairan; a neighbourer and other people of the locality also came there. Thereafter, the appellant and other assailants ran back to their house. Kamal Khan pulled the hatchet from the head of Mst. Sahib Bibi but she expired in the meantime. Shahamand P. W. Went to the Police Station, Sangla Hill and lodged report Exh. P. L. At 5-30 p. m. On the same day. This report was recorded by P. W. 12 Ghazanfar Ali A. S. I. The contents of the report were read over to Shahamand who accepting the same to be correct thumb marked the same. Thereafter, Ghazanfar Ali, P. W. Went to the place of occurrence. He prepared the Inquest Report Exh. P. N. And Injury Statement Exh. P. M. He sent the dead body of Sahib Bibi to: the mortuary. He obtained blood-stained earth from the spot and sealed the same into parcel vide memo. Ex-b. P. F. Shahamand produced the hatchet Exh. P. 3 which was pulled out of the head of the deceased. This was taken into possession vide memo. Exh.
P. G. Subsequently, the investigation was handed over to the. S. H. O. Sete plan Exh. P. A. And P. A/1 was got prepared by Ghazanfar Ali P. W. 12 with the help of Hussain Shah Draftsman (P. W. 1). The Police Officer admitted that the place of occurrence happened to be at a distance of 33 feet from the house of Shahamand P. W. And only 6 feet from the house of Mst. Khairan. The stranger has not been traced out and was thus not made to join the investigation.
3. Dr. Muhammad Anwar Khan, the then Medical Officer, Civil Hospital, Sangla Hill, carried out the autopsy on the dead body of Sahib Bibi deceased on 9th July, 1980 at 1-00 p. m. He noticed an incised oblique wound 3----- x ----- x bone cut brain on the left side of the firhead touching the mid-line. In the opinion of this witness, this injury was sufficient to cause death due to shock and haemorrhage in the ordinary course of nature and it was anti-mortem. Exh. D. B. Is the correct carbon copy of the post-mortem report while Exh. P. B/1 is the pictorial representation of the injury.
The prosecution has also examined P. W. 3 Muhammad Iqbal, F. C., P. W. 4 Khalil Ahmad P. W. 5 Nazir Ahmad H. C., P. W. 6lnayat, P. W. 7 Alam Sher, P. W. 9 Kamal, son of Shahamand, P. W. 10 Mst.
Sardaran wife of Shahamand and P. W. 11 Muhammad Zafarullah S.-I., the then S. H. O., Sangla Hill.
4. Mst. Khairan, who according to the First Information Report was the only eye-witness of the occurrence besides Shahamand, his son Kamal and his wife Sardaran, was given up by the prosecution as being unnecessary. The learned Additionl Sessions Judge, however, summoned Mst.
Sardaran as Court Witness and examined her as C. W.
1. This witness stated that as a matter of fact, the stranger, Shahamand, his wife Mst. Sardaran and his son Kamal went to the house of the accused party and started fighting with them. Many people of the village were attracted to the scene of occurrence. After the matter calmed down, it transpired that the child Mst. S .Bib Bibi daughter of Shahamand aged 8 years was killed during the occurrence. According to Mst. Khairan the fight had taken place right in front of the door of the, father of Mst. Fatima appellant.
5. The appellant as well as the acquitted co-accused pleaded not guilty to the charge but did not lead any defence.
6. The learned Additional Sessions Judge after considering the prosecution evidence, concluded that in fact the comp--lainant party happened to be the aggressor. Attack was launched on the accused party by Shahamand etc. Jalla, Altaf and Baqir in exercise of self-defence applied reasonable force in causing injuries to Sardaran and Shahamand. He, however, concluded that Mst. Fatima appellant transgressed her right of private defence of her person whereby she was responsible for the death of Mst. Sahib Bibi. He consequently, convicted her under section 304, (Part I) P. P. C.
7. I have heard the learned counsel for the appellant as well as for the State and relevant record has also been gone through and con--sidered.
8. The acquittal of the co-accused has, however, not been challenged. But the learned counsel for the appellant has urged that Mst. Fatima appellant being a young girl of 18 years deserves lenient treatment and in her case the sentence awarded viz. 3 years R. I. Was rather harsh. I do not find any substance in this plea of the appellant inasmuch as she is responsible, for causing the death of a tender-aged child of 8 years. Even if the complainant party happened to be aggressors they were not armed with deadly weapons like hatchets or fire arm. The appellant conversely armed herself with hatchet and while causing fatal injury to the deceased child, she certainly exceeded the right of self defence. In such circum--stances, her sentence of 3 years R. I. Cannot be considered to be harsh.
9. For the fore-going reasons, the plea for lesser sentence is devoid of any force. The appeal, therefore, fails and is accordingly dismissed, while the conviction and sentence of the appellant are upheld.