1984 P Cr (PLP)

Yar Muhammad son of Faiz Muhammad has been convicted under section 304, Part 11, P. P. C. by Sessions Judge, Bahawalpur and sentenced to undergo 5 years' rigorous imprisonment and a fine of Rs. 2,000 in default whereof to undergo 3 months' rigorous imprisonment. He was also ordered to pay compensation of Rs. 2,000 to the heirs of the deceased or in default would suffer 3 months' rigorous imprisonment vide judgment, dated 18th May, 1981.

2. The convict has filed Criminal Appeal No. 55 of 1981 challenging his conviction and sentence while Khuda Bakhsh, complainant, has filed Criminal Revision No. 51 of 1981 seeking re-trial of the appellant under section 302, P. P. C. and in the alternative, through Criminal Revision No. 50 of 1981 it has been prayed that the sentence of the appellant be enhanced under section 304, P. P. C. Since all these matters have arisen out of the same judgment, therefore, they are being disposed of by this consolidated single judgment.

3. The incident took place at 8-30 a. m. on 11th November, 1980 in the vicinity of village Sarwarabad, District Bahawalpur, wherein the appellant allegedly caused the death of Zafar Hussain aged 19/20 years by giving knife blow in his chest. The First Information Report Exh. P. G. was lodged by Khuda Bakhsh (P. W. 9), grandfather of the deceased at Police Station Uch Sharif, 18 miles away from the place of occurrence, accorded by AS. I. Muhammad Ali (P. W. 12).

4. Briefly the facts of the prosecution case are that' Khuda Bakhsh (complainant) and his grandson Zafar Hussain (deceased) lived in village Sarwarabad, District Bahawalpur, in separate houses at a distance of 3 Acres from each other. Piran Ditta (P. W. 11) resident of Bait Mughal, District Multan, allegedly came to live with Khuda Bakhsh some two months before the occurrence. On 10th November, 1980 at evening time, Khuda Bakhsh's mare went astray. On the following morning (11th November, 1980) he alongwith Piran Ditta P W. set out in search of the mare. When they reached near "Chauraha" of the village about two squares away from their house, they saw Zafar Hussain (deceased) going at a distance of 18/20 Karams ahead of them. In the meantime, Yar Muhammad, appellant, came on a bicycle from eastern side. He got down from the bicycle and asked Zafar Hussain as to why had he visited the house of Ghulam Rasool Tarkhan and that he would be taught a lesson for that. He then whipped out knife from the fold of his loin-cloth and plunged it in the chest of Zafar Hussain who fell down. Karam Hussain (P. W. 10) and Rashid Ahmad P. W. (not produced) also reached there and witnessed the occurrence. They chased the appellant to apprehend him but he threatened them not to get near him and made good his escape. Zafar Hussain died shortly afterwards and Khuda Bakhsh leaving the dead body under the care of the said witnesses went to the Police Station Uch Sharif and lodged report Exh. P. G. there.

5. The motive as set up in the F. I. R. is that Yar Muhammad, appellant, had illicit relations with Mst. Naziran daughter of Ghulam Rasool Tarkhan. Zafar Hussain (deceased) being neighbourer of Ghulair Rasool Tarkban used to visit his house. This had aroused suspicion iii the mind of Yar Muhammad that Zafar Hussain had a liaison with Mst. Naziran. A day before the occurrence both Yar Muhammad and Zafar Hussain exchanged abuses but Hazoor Bakhsh P. W. intervened and appeased them. Yar Muhammad while leaving, however, issued threats shat lie would not leave Zafar Hussain alive.

6. A. S. I. Muhammad Ali (P. W. 12) after registering the case went to the scene of offence. Reaching there, he prepared injury statement Exh. P. H. and inquest report Exh. P. J. of the deceased and despatched the dead body to mortuary under the police escort for post-mortem examination. He picked up appellant's bicycle P. 6 from the spot and secured it through memo. Exh. P. E. and arrested the appellant on 11th November, 1980 who got recovered blood-stained knife P. 7 from a box lying in his house which was seized under memo. Exh. P. F. S.-I. Rahmat Ullah on being directed by the Ilaqa Magistrate got the appellant examined medically for his injuries. After usual investigation, the appellant was sent up for trial.

7. Dr. Javed Hassan (P. W. 5) who performed autopsy on the dead body of Zafar Hussain found a solitary injury in his chest at the level of 5th intercostal space at a distance of about 3 c.m. from medical line (sternum) measuring 22 c.m. x 9 c.m. deep. Underneath the injury, left lung, pericardium and heart were cut. The injury was the result of sharp-pointed weapon and sufficient to cause death in the ordinary course of nature.

8. The same doctor on 12th Novembr, 1980. at 12-20 p.m., examined Yar Muhammad, appellant, and found redness on low back measuring 5 c.m. x 3 c.m. besides two abrasions measuring 4 c.m. x 1 c.m. and 2 c.m. x 1 c.m. on the right cheek below and on the back of right hand, respectively. The appellant complained of pain in his skull and left cheek with no visible injury. Captain Doctor Abdul Haleem, Medical Officer, Central Jail, Bahawalpur (now Professor, Quaid-e-Azam Medical College, Bahawalpur) admitted the appellant in jail hospital on 13th November, 1980. He found 7 injuries on his person and recorded them in the jail register meant for the purpose which according to him, were of 48 to 70 hours duration. Its copy is Exh. D. E. ~

9. At the trial the prosecution examined 12 witnesses in support of its case. Of them, Khuda Bakhsh (P. W. 9), Karam Hussain (P. W. 10) and Piran Ditta (P. W. 11) are the eye-witnesses. Hazoor Bakhsh (P. W. 8) is the witness about the altercation which took place a day before the occurrence between the deceased and the appellant, and Dr. Javed Hassan (P. W. 5) gave the cause of death of Zafar Hussain.

10. The appellant when examined under section 342, Cr. P. C., denied his illicit relations with Ghulam Rasool's daughter Mst. Naziran as she was a minor girl. When asked to explain his injuries the appellant made the following reply: - "I was going to my brother at Head Punjnad. Zafar Hussain and his companion were biding in my land and attacked me. Zafar Hussain snatched my bicycle and inflicted soti blows on me. I in order to save my life took out a knife and gave him a single blow and then ran away." He produced two witnesses in his defence, namely, Captain Doctor Abdul Haleem (D. W. 1) who carried out his medical examination in the jail hospital on 13th November, 1980 and Abdul Haleem Khan (D. W. 2), his relative who stated that he had produced the appellant before the police.

11. Learned trial Court in paragraph 8 of its judgment remarked that Khuda Bakhsh, Karam Hussain and Piran Ditta P. Ws. apart from being chance witnesses had failed to explain as to how the appellant got injured. While summing up his conclusions in paragraph.9of his judgment he observed as under: - "The prosecution has not explained the injuries on the person of the accused but has concealed the same. The duration of injuries on the person of the accused according to the statement of the doctor tallies with the time of occurrence. The defence version rings true and fits in the circumstances of the case. Now the question to be determined is whether the accused had exceeded his right of self defence or not. The accused received seven simple injuries with stick two of which were on the head but he inflicted injury on the chest of the deceased with knife as a result of which the other organs mentioned above were also cut. Therefore, under these circumstances, it is held that the accused had exceeded his right of self-defence of person. The offence committed by the accused is not murder but is culpable homicide not amounting to murder and is covered by exception 2 of section 300, P. F'. C." Having held the appellant guilty of exceeding the right, learned trial Judge convicted him under section 304, Part 11, P. P. C. and sentenced him accordingly. .

12. Learned counsel for the appellant submits that in view of the fact that the appellant having suffered 7 injuries gave solitary knife injury to the deceased, cannot be deemed to have committed excess of his right of self-defence. According to him, the appellant deserved the benefit of section 100, P. P. C. as of right and not as of grace.

13. Learned counsel for the complainant submitted that Dr. Javed Hassan (P. W. 5) who examined appellant's injuries on 12th November, 1980 opined that they were of 48 to 70 hours duration which clearly showed that they were not suffered during the occurrence, hence no right of self-defence accrued to him at all. Further, argued that Captain Doctor Abdul Haleem's opinion that the duration of injuries of the appellant coincided with the time of occurrence should be ignored as it was based on a belated examination and also seemed to have been procured under the influence of the brother of the appellant who is a Sub-Inspector of Police. According to learned counsel, duration of the injuries given by Dr. Javed Hassan P. W. has established that the appellant suffered them a day before the occurrence and this opinion further provided corrobora tion to the prosecution case. Next submitted that the appellant carried knife of prohibited length and inflicted injury with it in the chest of Zafar Hussain with such a force that it cut his pleura, lung and pericardium which shows that the appellant had no intention other than causing death of the deceased and as such he was guilty of committing murder punishable under section 302, P. P. C. Consequently, he urged that acquittal from murder charge is illegal and the appellant's re-trial under section 302, P. P. C. should be ordered. In the alternative, he argued that since the appellant had been found to have exceeded the right of private defence, therefore, the offence committed squarely fell under Part I and not under Part II of section 304, P. P. C. and learned trial Court by convicting him under Part II of section 304, P. P. C. committed illegality which may be corrected by altering the conviction from section 304, Part II to one under section 304, Part I, P. P. C. and the sentence of the appellant be then enhanced in exercise of the revisional jurisdiction of this Court. In this regard, he referred to Ahmad v. State (P L D 1971 S C 720) and Suleman v. State (1982 P Cr. L J 575). Replying, learned counsel for the appellant submitted that it is not universal rule that in each case where right of self-defence is exceeded the accused is necessarily punished under Part I of section 304, P. P. C. It depends upon facts and circumstances of each particular case whether the offence committed falls under Part I or Part II of section 304, P. P. C. Next contended that in the exercise of revisional jurisdiction this Court cannot alter the conviction from Part II to Part I of section 304, P. P. C. as it tantamounts to converting the finding of acquittal to one of conviction which is barred by subsection (4) (a) of section 439, Cr. P. C. In this respect he referred to Shera v. Crown (P L D 1954 F C J41), Nazar Muhammad v. Mustafaud din (1981 P Cr. L J 931). He emphasized that the case of the appellant is clearly covered by the principle laid down by the Supreme Court in Safdar Ali's case (P L D 1953 F C 93) and that he should, therefore, be acquitted.

14. I have carefully considered the arguments as well as the authori ties cited at the bar by learned counsel for the parties and perused the record in the light thereof. '

15. It may be stated at once that this Court cannot convert a finding of acquittal into one of conviction in the exercise of the revisional powers of this Court as it has been specifically barred by subsection (4) (a) of A section 439, Cr. P. C. which reads as under: - 439(4).-Nothing in this section shall be deemed to authorise a High Court: - (a) to convert a finding of acquittal into one of conviction ; or (b) * * In my view, therefore, an accused who is convicted under Part II of section 304, P. P. C. firstly, is impliedly acquitted from an offence falling under Part I of section 304, P. P. C. and secondly, the two parts of section 304, P. P. C. contemplate distinct offences, therefore, this Court cannot alter the conviction recorded under Part II of section 304, P. P. C. to one under Part I of the same section in exercise of its revisional powers. I am fortified in this view by the dictum laid down by the Supreme Court in Shera's case (supra) and also in Muhammad Sharif and another v. Rex (A I R 1950 All. 380), which has been approved by a Division Bench of Peshawar High Court in Khanwada v. State (P L D 1971 Pesh. 13). In these circumstances, therefore, the argument of the learned counsel for the complainant that the conviction of the appellant be altered from Part II to Part I of section 304, P. P. C. cannot be accepted.

16. It may be noted that learned trial Court while determining the offence committed by the appellant in paragraph 9 of its judgment quote above has on the one hand held, "the defence version rings true and fits in the circumstances of the case" but, strangely, on the other hand concluded, "the accused bad exceeded his sight of self-defence of person". It appears that learned trial Court has lost sight of the fact that the appellant suffered 7 injuries including two on the head as against solitary knife injury given by him, of course, in the chest of the deceased. Obviously, the deceased was rendered incapacitated after the receipt of fatal knife injury which means that he and his associates inflicted 7 injuries to the appellant before he acted in self-defence. Therefore, looking at the case from whatever angle it would be clear that the force applied by the appellant was not out of proportion to what was necessary to avert the danger to his life. The difference of opinion as to the time of infliction as well as the number of injuries found on the person of the appellant by the two doctors presents a little difficulty for the Court as to which of the two opinions should be preferred, however, the trial Court preferred the opinion of the jail doctor (Dr. Abdul Haleem D. W. 1). Learned counsel for the complainant has submitted that the opinion of the jail doctor is not above board and that he gave the opinion under the influence of appellant's brother who happens to be a Sub-Inspector of Police. It is on record that the appellant had not been got medically examined for his injuries by the police till they were directed by the Ilaqa Magistrate which shows that the Investigating Police Officer did not have any soft corner for the appellant. Dr. Javed Hassan P. W. was suggested by defence side that he had noted lesser number of injuries on the person of the appellant but Dr. Abdul Haleem D. W. was not put any suggestion from complainant side that he issued a false certificate being under the influence of the brother of the appellant. No explanation has been advanced as to why the complainant party felt shy of asking such a question to Dr. Abdul Haleem if they thought his opinion was manoeuvred by the defence. Therefore, I hold that learned trial Court was right in placing reliance on the evidence of the jail doctor (D. W. 1) in preference to that of Dr. Javed Hassan (P. W. 5). In these circumstances, I are clearly of the view that the appellant who received 7 injuries was well within his rights to inflict one knife injury to Zafar Hussain deceased to D save his life and by no standard whatever, he could be held to have exceeded right of self-defence. He is, therefore, entitled to the benefit ol, section 100, P. P. C.

17. Apart from the view I have expressed above, I may say that their ocular testimony in this case is not trustworthy for variety of reasons. Karam Hussain P. W. claimed that he saw Yar Muhammad, appellant, E asking Zafar Hussain deceased as to why he had visited the house oil Ghulam Rasool Tarkhan and that he would be taught a lesson for it. At this they grappled with each other. He ran towards them but before he could reach them the appellant taking out a knife from his Dub delivered a blow with it in the chest of thg deceased and then started running. He (witness) alongwith other witnesses chased the appellant who by threatening them at the point of knife to keep away decamped from the scene. It is worth noting that Khuda Bakhsh and Piran Ditta, the two eye-witnesses and close relations of the deceased, have not stated that the appellant had any conversation with the deceased or that they grappled with each other before the appellant stabbed him. Piran Ditta P. W. rather belied Karam Hussain P. W. saying that nobody had chased the appellant. They are, however, unanimous that War Hussain deceased fell after receiving the fatal injury when they were still 22/23 Karams away from them. If Piran Dittaand Khuda Baksh P. Ws. neither heard any conversation nor saw any grappling between the deceased and the appellant then how was it possible for Karam Hussain P. W. to have witnessed all about it. It appears that Karam Hussain introduced this story in an attempt to make the Court believe that he witnessed the occurrence from beginning to the end but does not find support from other witnesses. It is in evidence that Karam Hussain P. W. lived 5/6 Acres away from the place of occurrence and while going from his house to his shop he happened to pass near the place of occurrence at the relevant time and witnessed the occurrence but according to his police statement Exh. D. B. he was returning from Basti Chakar (admittedly 22 miles away from his house) and in the way he saw the occurrence. He failed to reconcile the discrepancy which rendered his presence at or near the place of occurrence -at the relevant time doubtful. Khuda Bakhsh, Piran Ditta and Karam Hussain P. Ws. are purely chance witnesses. I am not at all convinced that Khuda Bakhsh and Piran Ditta were genuinely on an errand of searching their mare and bad coincidently reached the place of occurrence and seen Zafar Hussain being done to death. Besides this, they have failed to explain the injuries suffered by the appellant. Their evidence is, therefore, ruled out of consideration. Having done so we are left with statement of appellant alone wherein he has pleaded self defence which has to be, therefore, accepted in its entirety.

18. I agree with learned counsel for the complainant that where right of private defence is exceeded the offence, would fall under Part I and not under Part 11 of section 304, P. P. C. It is well-settled that Part I of section 304, P. P. C. applies when the offence committed is murder but is reduced to culpable homicide not amounting to murder by reason of being covered by any exception of section 300, P. P. C, whereas Part II of section 304, P. P. C. applies when the fatal injury inflicted on the deceased is caused without any intention on the part of the accused to cause his death but about which the accused is burdened with the knowledge that it is likely to cause the death. Actually in the cases covered by any of the exceptions to section 300, P. P. C. there is always an intention to cause death or such bodily injury as is likely to cause death, therefore, it aptly falls under Part I of section 304, P. P. C. In the instant case the learned trial Court while holding the appellant guilty of exceeding the right of private defence should have convicted him under Part I and not under Part II of section 304, P. P. C. If any authority on the point is needed, reference may be made to Ahmad v. State (P L D 1971 S C120). As I have already held that the appellant did not exceed the right of self-defence, therefore, the question of ordering his re-trial on this account does not arise.

19. For what has been stated above, the conviction of the appellant cannot be sustained. Consequently, this appeal succeeds and the conviction and sentence of the appellant are set aside and he is acquitted. He shall be set at liberty forthwith, if not required in any other case.

19. As the appeal has succeeded, the criminal 'revisions (Criminal Revisions No. 51/1981/BWP and No. 50/1981/BWP) fail for the same reasons and are dismissed. M. Y. H. Appeal accepted