1987 P Cr (PLP)

(4) An incised wound 1/2" x 1/6" x skin deep on left temporal region. Death in the opinion of the doctor, occurred due to haemorrhage and shock resulting from injury No. 1 which was sufficient to cause death in the ordinary course of nature. Rest of the injuries were declared as simple. All the injuries have been opined to have been caused by sharp?edged weapon and were ante‑mortem. Exh.P.A. is the correct carbon copy of the post‑mortem report while Exh. P.A./1 is the pictorial presentation of the injuries.

7. On the same day at 12‑25 p.m. Javed Akhtar appellant, was medically examined by Dr. Muhammad Riaz Ali who noticed the following injuries on his person:‑ (1) A stab wound 1‑1/4" x 3/4" x 1‑1/2" on back of right thigh at middle. (2) superficial cut on back of right little finger proximal digit. Both the injuries were declared simple having been caused by sharp‑edged weapon. Exh. P.B. is the correct carbon copy of medico‑legal report in respect of Javed Akhtar while Exh. P.B./I is the diagram indicating the location of the injuries. Muhammad Altaf appellant was also medically examined at 12‑50 p.m. on the same day by this very witness and in his case, a stab wound 1‑ 1/2" x 1/4" x injury was declared simple and it was opined that the same was caused by a sharp‑edged weapon. Exh. P.C. is the correct carbon copy of medico‑legal report in respect of Muhammad Altaf appellant while Exh. P.C./1 is the pictorial presentation of his injury.

8. Ghulam Haider (P.W.10) and Muhammad Altaf (P.W.11) have testified at the trial as eye‑witnesses.

9. On 2‑10‑1979, the learned Sessions Judge directed that an identification parade be held in the jail for the identification of the accused but this identification parade was held as late as 30th October, 1979 and the police, for the first time, produced the order of the learned Sessions Judge before the Magistrate on 23‑10‑1979. The parade was conducted by Muhammad Nawaz Makhdoom, the then Tehsildar M.I.C., Khushab (P.W.13). In this parade, Ghulam Haider and Muhammad Altaf P.Ws. correctly identified the accused. Nazar Muhammad identified the accused except Jaffar, but could not tell their names, while Khan Muhammad could not identify any of the accused. At the time of identification parade, all the accused raised objection that they were already shown to the P.Ws. by the police at the police station.

10. It transpires from the above resume of the facts of the prosecution case that it is based on ocular evidence, medical evidence and the evidence pertaining to identification parade.

11. Both the appellants as also their acquitted co‑accused claimed to be innocent. The acquitted co‑accused pleaded that they were falsely involved in the case due to enmity. Javed Akhtar appellant in reply to question No. 5, stated: "A day before the occurrence, my brother Pervez Akhtar and Ishtiaq son of Alam Khan had given beating to Zafar, brother of the deceased. Alam Khan aforementioned approached the family of the deceased and asked for forgiveness. My father was away from Khushab and, therefore, we could not accompany Alam Khan on that occasion. The family of the deceased took it as their insult that we had not asked for forgiveness. Altaf deceased was a desperado. At the time of occurrence the deceased armed with a knife alongwith Aslam Muslim Sheikh and one Shera attacked me and Altaf accused son of Gulbaz, when we were passing from near the Government High School, Khushab, and they injured both of us. I went to the hospital immediately after the occurrence for medical examination and also informed the police about the incident: In reply to the question: 'why this case against you?', the appellant replied:‑ "The police in complicity with the complainant party twisted the actual facts and I was falsely involved as the deceased happened to die." Muhammad Altaf appellant claimed that his answers were the same as those of his co‑accused Javed Akhtar. No defence evidence has, however, been produced by the appellants or their co‑accused.

12. Ghulam Haider and Muhammad Altaf who have testified as eye?witnesses at the trial have supported the prosecution case as contained in the F.I.R. except to this effect that in the F.I.R. it is alleged that Ghulam Haider, Muhammad Altaf, Nazar Muhammad and Khan Muhammad reached the place of occurrence together but at the trial Ghulam Haider and Muhammad Altaf, by improving their statements, have disclosed that Ghulam Haider and Muhammad Altaf deceased were going together towards their land when they passed in front of the Government High School, Khushab at the time of occurrence. Ghulam Haider is the real paternal‑uncle of the deceased while Muhammad Altaf is also a cousin of the deceased. Both these P.Ws. have admitted their previous enmity with the families of the appellants and of the co‑accused. Nazar Muhammad, the third alleged eye‑witness who has not been produced, also hails from the brotherhood of Ghulam Haider and Muhammad Altaf deceased. Khan Muhammad the 4th alleged eye‑witness was, of course, an unconcerned person but he has been given up as having been won over. The learned Sessions Judge, after discussing the ocular evidence in detail, has come to the conclusion that as a matter of fact Ghulam Haider and Muhammad Altaf were not the residents of Khushab. They were not present at the time of occurrence. He has thus, disbelieved both these eye‑witnesses. It is also noteworthy that this case, at the stage of investigations, has been investigated into by two Assistant Superintendents of Police, one Deputy Superintendent of Police and a Sub‑Inspector of Police, namely Ghulam Mehdi (P.W.12). These different investigations have been admitted by Ghulam Mehdi. But for the A.S.P. Headquarters, other Investigating Officers found that the appellants and the deceased were involved in the occurrence while the acquitted co‑accused were innocent. However, under the orders of the A.S.P. Headquarters, the challan was submitted against the appellants as also against the co‑accused. Certainly, the findings of the Investigating Officers are not binding on the trial Court but the said learned Court, after considering the evidence led at the trial also came to the conclusion that the acquitted co‑accused were innocent. Needless to say that according to eye‑witnesses, it was Zafar Iqbal who caused a solitary fatal blow with a spring knife in the left flank of the deceased. Zafar Iqbal has been acquitted and has been held to be innocent. Recovery of knife from him has also not been believed and, of course, justifiably, by the learned trial Judge. The medical evidence also does not furnish corroboration to the testimonies of eye‑witnesses in this behalf inasmuch as according to medical evidence, as many as four injuries caused by sharp‑edged weapon have been noticed on the person of the deceased and injury No. 1 on left renal area has been declared to be the fatal injury.

13. So far as the identification parade is concerned, as already observed, the learned Sessions Judge directed for holding the identification parade on 2‑10‑1979 but the police in utter disregard of his orders, produced the papers before the Magistrate for the first time on 23‑ 10‑ 1979. The Magistrate conducted the identification parade on 30‑ 1Q‑ 1979. At the time of identification parade, all the accused, viz. the appellants as also the acquitted co‑accused raised objection before the Magistrate concerned that they had already been shown to the P.Ws. at the police station. In spite of this objection, Nazar Muhammad and Khan Muhammad could not identify the accused.

14. The learned trial Court has found that the deceased suffered injuries as a result of which he died at the hands of two appellants which they caused him in exercise of their right of private defence and while doing so they exceeded their right of self‑defence. The appellants, however, in their statements recorded under section 342, Cr.P.C. did not claim exercise of any such right. They have, however, pleaded that they suffered injuries at the hand of the deceased who was a desperado and who accompanied by Aslam Muslim Sheikh and one Shera attacked them (the two appellants) when they were passing in front of Government High School, Khushab. They have thus claimed to have been injured by the deceased and his aforementioned two companions.

15. The fact, however, remains that the eye‑witnesses produced at the trial have been disbelieved; the prosecution case has not been believed and the learned trial Judge has based the conviction of the two appellants only on the ground that they received injuries during the occurrence in which the deceased suffered fatal injuries. After excluding the testimonies of the eye‑witnesses who have been disbelieved, there is nothing on the record to suggest that the appellants, while exercising their right of private defence, 1 exceeded their right and caused the death of the deceased. In this view of the matter, the conviction of the appellants under section 304, Part II, P.P.C. cannot be upheld. The version of the appellants, if accepted as a whole, suggests that the two appellants were attacked by the deceased and his two companions; the appellants received injuries at their hands caused by sharp‑edged weapons and, therefore, they had every right to exercise their right of self‑defence and while doing so, it cannot be said that they exceeded in the exercise of such right in regard to one injury in case of deceased which ultimately proved to be fatal. It is thus, found that no offence of even culpable homicide not amounting to murder is made out against the appellants.

16. For the foregoing reasons, both the under consideration appeals are allowed and the conviction and sentence of the appellants are set aside. They shall be set at liberty forthwith if not required to be detained in any other case. The criminal revision petition is thus dismissed. S.A./M‑59/L??????????????? ??????????????????????????????????????????????????????????? Petition dismissed.