1983 P Cr (PLP)

Muhammad Ishaq son of Bashir (20), Muhammad Akbar (20) and Muhammad Akram (32) sons of Muhammad Din, and Muhammad Ishaq son of Ghulam Muhammad (28) were tried for the murder of their co villager Abdur Razzaq. On 19th August, 1980, Additional Sessions Judge, Kasur, convicted Muhammad Ishaq son of Bashir and Muhammad Akbar son of Muhammad Din under section 304, P. P. C. and sentenced them to 10 years' R. I. and to pay a fine of Rs. 4,000 each, in default each to suffer one year R. I. further. Half of the fine was ordered to be paid as compensation to the heirs of the deceased. The remaining two accused were acquitted. The appeal of the convicts and the connected criminal revision filed by Nawab Din, complainant, against the acquittal and for the enhancement of sentence of the convicts are before me.

2. A few days before the occurrence in this case while playing volley ball Muhammad Ishaq son of Bashir and Muhammad Akbar, appellants, fell out with Abdur Razzaq, deceased. They abused each other but the matter was hushed up. According to the prosecution in order to avenge the insult on 30th September, 1976 at about 10 p.m. Abdur Razzaq, deceased was waylaid by Muhammad Ishaq and Muhammad Akbar. The occurrence was witnessed by P. W. Nawab Din and Muhammad Iqbal (given up) who intervened. The accused went away. According to Nawab Din (informant), after the occurrence, Abdur Razzaq told him that his brother-in-law (sister's husband) Muhammad Shafi had come over to their village in the evening for the treatment of his son and left after some time. Since Shafi had forgotten his licensed pistol at his house, therefore, he was going to the village of Shafi to return the pistol. Or the way, the accused attacked him and during the occurrence the pistol fell on the ground. He further added that Abdur Razzaq (deceased) suspected that the pistol had been taken away by the accused. Abdur Razzaq was taken to Civil Hospital, Pattoki where he was admitted. P. W. 4 Dr. Muhammad Latif Qureshi, M. O., Rural Health Centre, Pattoki, sent information to Police Station, Pattoki about his admission; upon which P. W. 11 Atta Muhammad, A. S. I, reached there. He enquired from the doctor whether Abdur Razzaq was fit to make a statement. Since the doctor replied in the negative, therefore, he went to village Daokay (Chak No. 9) where Nawab Din P. W. 7 made statement Exh. P. J. to him on the following day at 3-45 p.m. on the basis of which formal F.

1. R. Exh. P. J/1 was register ed at Police Station, Pattoki, at 4-50 p.m. the same day. Police station was at a distance of 11 miles from the place of occurrence.

3. P. W. 4 Dr. Muhammad Latif Qureshi, M. O., Rural Health Centre, Pattoki, who examined Abdur Razzaq, at 1-15 p.m. on 1st October, 1976 observed the following injuries on his person :- Exh. P. E. (1) A penetrating wound of entrance of size of " x " at front of right leg, 4 " below right knee-joint and wound of exit " x " at distance of " on lateral side. (2) A penetrating wound of " situated 5 " below right knee-joint and wound of exit " x " at a distance of V on lateral side. (3) A penetrating wound 1" x " at front of right leg of entrance 7 inches below right knee-joint. And a wound of exit 1 " x 1" at a distance of 1" on lateral side. (4) Wound of entrance " x " at front of right leg 7 " below right knee-joint. Wound of exit 1" x " at a distance of " on lateral side. (5) Penetrating wound of entrance of 1" x " at front of right leg 8" below right knee-joint. Wound of exit 1 " x " at a distance of I" on lateral side. (6) A lacerated wound of " x " x 1" at front of right leg 7 " below right knee-joint on lateral aspect. (7) A lacerated wound of 1" x " x " at front of right leg 4 " above right ankle-joint. (8) A lacerated wound of " x " x " at front of right leg on lateral aspect. 4 " above right ankle-joint. (9) A lacerated wound of 4" x " x 1" deep at front and outer side of right leg 2 " above right ankle-joint. Corepetus was felt under the wound. (10) Lacerated wound of " x 1 " x 1 " front of left leg 3" below left knee-joint. (11) A lacerated wound of " x " x 1 " at front of left leg 4 " below left knee-joint. (12) A lacerated wound of " x " x 1 " at front of left leg. 5 " below left knee-joint. (13) Lacerated wound of 1" x " x 1 " front of left leg. 4 " above left ankle-joint. (14) A lacerated wound of " x " x " just above injury No. 13. (15) A lacerated wound of " x " x 1/8" at front of left leg 2 " above left ankle-joint. (16) A lacerated wound of " x " x " at medial side of left leg 2 " above left ankle-joint. (17) An incised wound of " x " x " at dorsum of left foot about 1"above left big toe. Corpetus was felt. (18) Lacerated wound of 1 " x " x " at right side of top of head " on right of mid-line. (19) A lacerated wound of 2" x " at side of top of head 1r on right of mid-line. (20) A lacerated wound of 1" x 1/8" x " at right side of head 3" on right of mid-line. (21) Lacerated wound of " x " x " at right side of head 3 " of right of mid-line. (22) A bruise of 2" x 1" at right fore-arm at middle with swelling. (23) Lacerated wound of 1 " x " at back of head. The same day Dr. Muhammad Latif examined Muhammad Akbar (accused) and found a lacerated wound " x " x 1/8" on the left side of the top of the head. It was a simple injury caused by a blunt weapon. The same day Muhammad Ishaq was examined and the doctor observed a gun-shot wound " x 6/4" x " deep on the front of right thigh. The margins of the wounds were inverted and showed signs of blackening. The injuries were simple.

3. P. W. 4 Dr. Muhammad Latif Qureshi, who examined Abdur Razzaq when he was alive, referred him to the Mayo Hospital, Lahore, for treatment where he expired on 4th October, 1976 at 8-45 p.m. and the autopsy was held by P. W. 5 Dr. Tahir Anis, Deputy Police Surgeon at Lahore who made the following observations : - (1) Stitched lacerated wound right side of head. (2) Stitched lacerated wound right side of head, 2 c.m. in front of injury No. 1. (3) Stitched lacerated wound 1 c.m. outer and in front of injury No. 2. (4) Stitched lacerated wound front mid part of head. (5) Stitched lacerated wound mid back part of head. (6) Contusion outer front upper right forearm. (7) Contused abrasion tip of left shoulder. (8) Lacerated septic wound bone deep over front incised of right leg and upper right foot with bone underneath fractured. (9) Septic wound over mid front left leg with left fabula bone fractured underneath. (10) Septic wound lower inner front left leg. (11) Septic wound inner lower upper left foot. There was a fracture of right parietal bone under injury No.

2. Membranes and brain surface were slightly congested. Injuries Nos. 1 to 7 were caused by a blunt weapon. In the opinion of the doctor all injuries were anti-mortem and were in ordinary course of nature, sufficient to cause death through cardio respiratory failure resulting from post traumatic complica tions particularly taxaemia and shock.

4. On 4th October, 1976 Muhammad Ishaq son of Bashir Ahmad was arrested. He got recovered his stick P. 5 which was taken into possession vide memo. Exh. P. K. attested by P. W. Nawab Din and Ghulam Nabi (not produced) besides the investigating officer. Muhammad Ishaq the acquitted accused and Akbar appellant were arrested on 11th Nofember, 1976. They got recovered their dangs P. 4 and P. 3 respectively which were taken into possession vide memo. Exh. P. L. and P. M. attested by the same aforesaid witnesses. Muhammad Akram, appellant, appeared before a Court and was allowed bail before arrest. Out of the recovery weapons, the dangs recovered from Muhammad Ishaq son of Bashir and Muhammad Ishaq son of Ghulam Muhammad were stained with human blood. After completing the investigation, the accused were sent up for trial.

5. All accused denied guilt and ascribed the case to enmity. Muhammad Ishaq son of Bashir, appellant, admitted the earlier occurrence and explained that Akbar, appellant, was captain of the volley ball team while he was the Vice-Captain. The team had decided not to allow any player who did not contribute any subscription. Since Abdur Razzaq (deceased) had made no contribution, therefore, he was stopped from playing for which he bore a grudge against them. Explaining the case against him, Muhammad Ishaq son of Bashir made the following statement :- It is incorrect. In fact I and Akbar son of Muhammad Din accused were on guard of our fields and at the relevant time i.e. at about 10 p.m. we both were sitting on the pathway just near the Dhari of Fazal Din my grandfather, when all of a sudden a fire hit my companion, Muhammad Akbar, accused on his fore head. At that time we were having our usual sofas (lathis). On feeling danger to our lives we got ourself hidden at the place of occurrence as that place was lower in level than the place where we were present. We noticed Razzaq deceased armed with a pistol standing in front of us. He challenged that he was there to take our lives and he aimed his revolver at us. Razzaq, deceased, then fired his second revolver shot which hit me on my right thigh. We apprehend ing complete danger to our lives, then defended ourselves and started causing injuries to Abdur Razzaq with our respective lathis puring this time Abdur Razzaq fired two more shots at us which luckily did not hit us. In the meantime the deceased fell on the ground and we left the place of occurrence for our village leav ing behind our lathis. None else reached the place of occurrence till we left that place. We were removed to the hospital Pattoki by our parents. Myself and Akbar accused were medically examin ed there. I remained admitted in the hospital for about 7/8 days. Muhammad Akram and Muhammad Ishaq son of Ghulam Muhammad accused did not participate in the occurrence nor were they present there. Muhammad Akram accused was on his duty on that day at Uch Sharif District Bahawalpur. I and Akbar accused acted in the right of self-defence.

6. Ishaq son of Ghulam Muhammad and Muhammad Akram denied their presence at the spot. According to Muhammad Akram, he was a Surveyer in WAPDA and was incharge of some duty at Uch Sharif, District Bahawalpur. He produced certified copies of his attendance role (Exh. D. D. and Exh. D. E.). Akbar son of Muhammad Din (appellant) supported the statement of Ishaq son of Bashir appellant. No accused led evidence in defence.

7. Trial Court did not accept the evidence of the two eye-witnesses, namely, P. W. 8 Muhammad Sharif and P. W. 9 Muhammad Ashraf for the reason that their names did not figure in the F. I. R. It observed that the third eye-witness Muhammad Iqbal who was mentioned in the F. I. R., was not produced as he was said to have been won over. Trial Court further observed that P. W. 7 Nawab Din (informant) was closely related to the deceased. It thus ruled out the evidence of motive given by him. It also did not take into consideration the evidence of the recoveries from the accused because witnesses of the locality from where the sticks were re covered were not joined during investigation; instead, interested witnesses came forward to support it. Trial Court thus, found that the prosecution was left with the solitary statement of P. W. 7 Nawab Din. It also did not place implicit reliance on his testimony either because according to Nawab, Razzaq's revolver fell and Muhammad Ishaq and Akbar decamped with it. Had it been so, then under what circumstances it came into the hands of P. W. 10 Muhammad Shafi from whom it was recovered by the police ten days after the occurrence. As such this recovery did not support Nawab's statement. Trial Court further observed that there was a fire-arm injury to one of the appellants which has not been satisfactorily explained by the informant. It found that the F. I. R. was lodged after due delibera tions while considering the statements of the two appellants. Trial Court came to the conclusion that it was quite probable that after Razzaq had opened fire and injured Ishaq son of Bashir, both accused took up their lathis to save their lives and caused injuries to Abdur Razzaq. But since on appellants' own showing Razzaq had fallen on the ground and they inflicted injuries to him, indicated that they had also caused him injuries after he had been disarmed, because no less than 23 injuries were sustained by Razzaq, therefore, it found that the accused exceeded the right of self-defence.

8. The main argument of the learned counsel for the appellants is based on the well-known principle that the right of self-defence is not to be weighed in the golden scales. I have considered the submissions made by both sides. A large number of injuries to the deceased carried much weight with the trial Court in arriving at the conclusion that the appellants had exceeded the right of self-defence. True, the deceased suffered twenty three injuries, but it seems that the trial Court overlooked the nature of the injuries. There are seventeen injuries on the legs of the deceased, one on the arm and five on the head, out of which only one injury caused the fracture of the parietal bone. Injuries to the limbs caused no fracture and were simple in nature. On the other hand, the fire-arm injury suffered by Muhammad Ishaq showed that it was caused from a close range as there was blackening of the wound. This would ob viously mean that the appellants were very near the deceased. They would be so because they caused him injuries in defence. What is material under the circumstances of this case is whether the head injuries were given to the deceased first of all or were the last blows given to him. Since the entire prosecution evidence has been rightly found by the trial Court to be doubtful, therefore, no inference about this fact can be drawn from the prosecution evidence. Taking into account the statement of the accused, trial Court concluded that after the deceased had fallen down and was disarmed the appellants had no right to continue beating him. It may be straight away mentioned here that while describing the attack, the accused said that when the deceased fell on the ground it was thereafter that they left, as such the finding that on appellants' own showing Razzaq had fallen and they inflicted it juries to him thereafter is not to be found in their statements, There appears to be a misreading of appellants' statements. This appeal is, therefore, accepted and. the appellants are acquitted. They shall be released forthwith if not required in any other case. Appeal allowed.