SAAD SAOOD JAN, J.-- This is a petition for special leave to appeal by Tassawar Iqbal who together with his brothers Zafar Iqbal and Munawar Iqbal was tried by the Additional Sessions Judge at Sialkot for offences falling under sections 302 and 307 read with section 34 of the Pakistan Penal Code for causing the death of his cousin Abdul Waheed and making murderous assault upon his cousin Abdul Hamid and paternal-uncle Muhammad Anwar. The learned Additional Sessions Judge convicted the petitioner and his brothers of the offence under section 302 read with section 34 of the Pakistan Penal Code and sentenced them to suffer imprisonment for life and to pay fines of Rs.5,000 each. He also convicted them of the offence under section 324 read with section 34 of the Pakistan Penal Code for causing injuries to Abdul Hamid and sentenced them to suffer rigorous imprisonment for a period of one year each and to pay fines. He convicted Zafar Iqbal alone of an offence under section 325 of the Pakistan Penal Code and passed a sentence of rigorous imprisonment for a period of one year and fine of Rs.2,000. The petitioner and his brothers filed an appeal before the High Court, which maintained the convictions and sentences of the petitioner for the offences under sections 302 and 324 of the Pakistan Penal Code but acquitted his brothers of the charge under section 302. In this petition we are not concerned with the petitioner's brothers.
2. The parties are closely related. The deceased and Abdul Hamid (P.W.13) were real brothers. Mst.
Noor Zainab (P.W.12) was their mother. She is the sister of Muhammad Anwar (P.W.11). The father of the petitioner and Muhammad Anwar (P.W.11) are real brothers. Abdul hamid (P.W.13) was married to a sister of the petitioner, Mst.Azra. Abdul Hamid (P.W.13) took a second wife without the permission of Mst. Azra. On this, Mst. Azra who had a child from Abdul Hamid (P.W.13) left his house and started living with her parents.
3. The occurrence took place on 21-10-1980 at about 1-00 p.m. It was the day following the Eid-uz- Zoha. It was alleged by the prosecution that Mst. Noor Zainab (P.,W.12) accompanied by her brother, Muhammad Anwar (P.W.11), and one Mst. Rashida went to the house of the petitioner to offer a portion of the meat of the goat sacrificed by her on the occasion of the Eid. The petitioner, his brothers and mother refused to accept the meat, abused Mat. Noor Zainab (P.W.12) and turned her out of their home after giving her fist blows. The deceased and his brother Abdul Hamid (P.W.13) also came there. The deceased and his brother protested over the insult offered to their mother.
This led to another exchange of abuses. Suddenly the petitioner and his brothers brought out Chhuris from their house. The petitioner gave a Chhuri blow to the deceased on his back. The three brothers then attacked Abdul Hamid (P.W.13) with their knives. The deceased snatched the Chhuris from Zafar Iqbal and gave a few blows to the petitioner. As Muhammad Anwar (P.W.11) attempted to separate the parties, Zafar Iqbal struck his head against his nose. The deceased died at the spot.
4. At the trial the petitioner did not dispute that he was responsible for causing the death of the deceased. He gave a different version of the occurrence. He stated that the relations of his family were strained with that of the deceased on account of the second marriage which Abdul Hamid (P,W.13) had illegally contracted. Consequent upon this illegal marriage Mst. Azra returned to his house with her child. There was also a dispute with regard to the distribution of the ancestral property with Muhammad Anwar (P.W.11). Abdul Hamid (P.W.13) was trying for reconciliation with Mat. Azra but she declined to live with him. On the day of occurrence the deceased and Abdul Hamid (P.W.13) approached the paternal grand-father of the petitioner and sought the return of Mst.Azra. When she refused to go with Abdul Hamid (P.W.13) he together with the deceased snatched away her child. She raised an alarm which attracted him to the spot. He forcibly took away the child from Abdul Hamid (P.W.13). On this Abdul Hamid (P.W.13) and the deceased attacked him with daggers. In order to protect himself he gave g few blows to the deceased and Abdul Hamid (P. W.13) with a pocket knife which he was carrying.
5. The learned Judge in the High Court rejected the version of the petitioner for the reasons that the incised injuries of the deceased were on his back side which indicated that he received the fatal blows when he was running away; the defence version did not explain the grievous injuries suffered by Muhammad Anwar (P.W.11); and that the petitioners had not examined his sister Mst. Azra in support of his plea that just before the occurrence Abdul Hamid (P.W.13) had snatched away her child.
6. In support of this petition it is contended that the learned Single Judge in the High Court had ignored the fact that there were two versions and that the version proffered by the prosecution was supported only by interested evidence; further, the occurrence took place in front of the house of the petitioner and the petitioner was found to be bearing sharp-edged weapon injuries; although it was stated in the F.I.R. That the petitioner was attacked by the deceased. This could not be possible for after he had fallen down on receiving the fatal blow he could not be in a position to snatch the knife from the petitioner and counter-attack.
7. The contentions raised in support of this petition do give rise to the question whether the trial Court as well as learned Additional Sessions Judge had given sufficient attention to the plea of the right of self-defence of person as claimed by the petitioner for himself. Accordingly, we grant him leave to appeal.