' KHALIL-UR-REHMAN RAMDAY, J.--- One Sabir Hussain had been tried by a learned Additional Sessions Judge of Sialkot for the murder of one Latif Ahmad and having been found guilty of the said charge, was convicted under section 302, P.P.C. And was sentenced to death with a fine of Rs,10,000 or sufferance of one year's R.I. In default of payment of the said fine.
2. Murder Reference No,19 of 1990 seeks confirmation of the sentence of death awarded to the said Sabir Hussain who in turn challenges the above-noticed conviction and sentences through Criminal Appeal No,761 of 1989.
3. Both these matters are being disposed of together through this single judgment.
4. It may be mentioned at the very outset that a sister of Sabir appellant was the wife of Latif deceased while a sister of Latif deceased was married to Sabir Hussain appellant.
5. The occurrence in question had taken place at about Shamwela on 8-7-1988 at the Bus Stand of Mauza Mehrajka about five kilometres from Police Station Sabaz Pir and had been reported at the said police station at 9-45 a.m. The next morning i,e. On 9-7-1988 by one Noor Ahmad who was a brother of Latif deceased.
6. The said complainant had stated that he was a brother of Latif deceased of the present occurrence and their sister Mst. Manzoor Begum was married to Sabir Hussain appellant while a sister of Sabir Hussain appellant, namely, Mst. Sajida Bibi was married to Latif deceased. He had further stated that about five days ago, their mother fell ill on receipt of which information, Mst.
Manzoor Begum, the wife of Sabir appellant came to their house alongwith her six Months' old daughter.
7. The complainant had further reported that Sabir appellant came to their house in the evening of 8-7-1988 and desired to take his wife back which request was refused by the complainant's mother who requested Sabir appellant to let Mst. Manzoor Begum stay with her for a few more days. It was further alleged that Sabir appellant insisted on taking Mst. Manzoor Begum along and was advised against it by Latif deceased and his brother Tufail (given up). It was further claimed that Sabir appellant, however, flared up and left the house taking away his six months old daughter.
8. The complainant had further informed the police that his sister started crying on account of his daughter having been taken away by her husband at which, the complainant, Latif deceased and Tufail P.W. Followed the appellant and found him standing at the bus stop waiting to board a bus when Latif deceased tried to snatch away the young daughter from Sabir appellant who put the said daughter on the ground and after taking out a Chhuri inflicted injuries with it on various parts of the body of Latif deceased who was then rushed to the hospital where he died on 9-7-1988.
9. Sabir appellant was arrested on 15-7-1988 by Muhammad Tufail Inspector/S.H.O. Whereafter, he had allegedly led to the recovery of a bloodstained Chhuri P.4 which was seized vide memo.
Exh.P.D.
10. When examined under section 342, Cr.P.C. The appellant had denied his involvement in the occurrence in question and attributed the same to suspicion.
11. When confronted with the situation that the two eye-witnesses, namely, Noor Ahmed (P.W.7) and Muhammad Sharif (P.W.8) had no previous enmity whatsoever with Sabir appellant and had thus, no motive at all to falsely implicate the said appellant in the occurrence in question which possibility of false implication had become all the more remote and unbelievable on account of the rather close and dual relationship between the parties, the learned counsel frankly conceded that no exception could be taken to the independent ocular testimony offered by the prosecution at the trial. It may be added here that the place of occurrence was only about 5/6 houses away from the house of the complainant.
12. The learned counsel for the appellant, however, argued that even if the prosecution case was taken at its best, the same did not constitute an offence punishable under section 302, P.P.C.
He drew our attention to the manner, in which, according to the prosecution itself, the occurrence in question had commenced. It was the prosecution's own case that Sabir appellant who was the father of the six months old daughter had taken away the said child with him but was followed by the three brothers of his wife and it was after Latif deceased had attempted to snatch away the said child from Sabir appellant that he had taken out a Chhuri and had inflicted injuries on the person of the deceased. The learned counsel submits that the appellant had a right to defend the custody of his daughter and it was in the exercise of this right that he had assaulted Latif deceased.
14. The submission is not without merit. Needless to say that this being the prosecution case, the offence thus committed, in our view, does not fall within the mischief of section 302 of the P.P.C. And is in fact a case of exceeding the right of self-defence.
15. Consequently, the appellant's conviction under section 302 of the P.P.C. Alongwith the sentences awarded to him on the said charge are set aside.
16. He is, however, convicted under section 304, Part I of the P.P.C. And is sentenced to suffer ten years' R.I. With a fine of Rs,20,000 or to undergo two years' R.I. In default of payment of the said fine.
He shall be allowed the benefit of the provisions of section 382-B of the Cr.P.C. And it is further directed that the entire amount of fine, if realised, shall be paid to the heirs of the deceased.
17. Criminal Appeal No,761 of 1989 is partly allowed in the above terms and the sentence of death having been set aside, no question of its confirmation arises.
18. Murder Reference No,19 of 1990 is, therefore, answered in the negative.