1984 P Cr (PLP)

3. The motive for crime, as stated in the F.I.R., is that the deceased had advanced one sack of potatoes to Ahmad Bakhsh P.W.8 on the condition that he will return to him either one sack of wheat or a sum of Rs.100 in cash and Muhammad Ali, acquitted co-accused, father of the present appellant, stood surety to this transaction. On the morning of the day of occurrence the deceased went with Ikramul Haq (P.W. 9) to Muhammad Ali acquitted co-accused and asked him to get his part of the agreement informed in accordance with the terms of surety. Mohammed Eli acquitted co-accused is stated to have told him that Ahmad Bakhsh P.W. had left Fits service and had run away. On this the deceased told him that he was going to get the amount for which' he had stood surety by placing his leg on his back. Thereafter, Muhammad Ali acquitted co-accused picked up a Sota and gave a blow to the deceased which fell on his neck. But Ikramul Haq P.W. intervened and separated the parties. However, Muhammad Ali acquitted co-accused regarded the words of the deceased as an insult to him. Eventually, the deceased alongwith Ikramul Haq P.W. returned. The occurrence followed at Zoharwela on the same day. The motive version is being supported by Muhammad Tariq P.W., the first informant, Ikramul Haq and Ahmad Bakhsh P.Ws.

4. In the F.I.R. the occurrence is stated to have taken place in the following manner At the fateful time, when the deceased was passing in the lane near the house of one Amanat Ali, the appellant and the acquitted co-accused armed as described above came out of their house and surrounded the deceased. Muhammad Tariq (P.W. 10) as well as Muhamrpad Amjad (P.W. 11) rushed to the scene of crime. Mst. Zubeda acquitted =o-accused raised a Lalkara to the effect that none of them should be spared. Thereupon Muhammad A li acquitted co-accused and Zafar acquitted co-accused held the deceased by his arms and the appellant gave three Churri blows to him. The first blow fell on his right shoulder at the back. The second blow fell on his neck on the left side and the third blow fell on his left thigh near his bladder and he fell down. When Muhammad Tariq P.W. advanced forward, Mst. Zubeda acquitted co-accused held him by his arms, whereupon the appellant gave him a Churri blows, which fell on his right flank and he also gave him two more Churri blows which fell on his back. As result Muhammad Tariq P.W. grew weak. Thereafter, Mst. Zubeda acquitted co-accused left the arm of Muhammad Tariq P.W. and held the arm of Muhammad Amjad P.W. and the appellant gave him numerous churri blows at his back and Zafar acquitted co-accused gave him a hatchet blow on his back near the neck. In the meantime, Muhammad Tariq P.W. managed to get a Soti in his hands and in the exercise of his right of self-defence as well as that of his brothers caused injuries to Muhammad Ali acquitted co-accused as well as the appellant. The appellant had injured his right hand while wielding his Churri. The deceased died on the spot. The occurrence was witnessed bodies Muhammad Tariq and Muhammad Amjad P.Ws., by Muhammad Saleem (P.W. 12) and Abdul Ghaffar (not produced) They separated the parties. Otherwise the members of the accused party would have murdered all of them: Leaving behind the dead body in the case of Abdul Sattar and Pir Muhammad (not produced) the injured were taken to the hospital for admission. It was in the hospital that the statement of Muhammad Tariq P.W. was recorded by Mumtaz Ahmad S.I. (not produced since dead),

5. A perusal of the F.I.R. indicates that there are three eye-witnesses produced by the prosecution in the instant case. There are Muhammad T ariq (P.W. 10) and Muhammad Amjad (P.W. 11) both injured and sons of the deceased. Then there is--Muhammad Saleem (P.W. 12) who is stated to be from the brotherhood of the complainant party but not directly related to them. The appellant is injured in the instant case, as well as Muhammad Ali acquitted co-accused his father.

6. The appellant and the acquitted co-accused were arrested on 25-2-1978 by Mumtaz Ahmad S.I. (since deceased) although according to Muhammad Sharif (P.W. 6) they were arrested on 22-2-1978. Blood-stained Churri (Exh. P.3) was recovered from appellant and taken into possession vide Memo. (Exh. P. N.) dated 25-2-1978. The attesting witnesses are Mumtaz Ahmad S.I. not produced (since deceased), Abdul Karim (not produced) and Muhammad Sharif (P.W. 6), brother-in-law of the deceased. Blood-stained Lathi (Exh. P.4) was recovered at the instance of Muhammad Ali acquitted co-accused and taken into possession vide Memo. (Exh. P.N.), dated 25-2-1978. The attesting witnesses are Mumtaz Ahmad S.I. (not produced since deceased). Muhammad Akhtar (not produced) and Muhammad Sharif (P.W. 6) brother-in-law of the deceased. Blood-stained hatchet (Exh. P.5.) was recovered at the instance of Zafar acquitted co-accused and taken into possession vide Memo (Exh. P.Q) dated 25-2-1978. The attesting witnesses are Mumtaz Ahmad S.I. (not produced since deceased), Abdul Karim (not produced) and Israr Hussain (P.W. 7), son of the sister-in-law of the deceased. The trial Court has not relied on the recovery evidence for the reasons stated in paragraphs No.17 and 18 of the judgment. The reasons given are that the occurrence took place of 21-2-1978 and if the members of the accused party were arrested on 25-2-1978, i.e. the date on which the recoveries were made, four days after the incident, they could have not kept the blood-stained weapons of offence with them and had sufficient time to wash them off. It can also be said that the only witnesses produced in support of these recoveries were close relatives of the deceased, Muhammad Sharif P.W. being brother-in-law and Israr Hussain P.W. being son of the sister-in-law of the deceased. The police officer who made these recoveries could not be produced because he. died before the trial. There are also other reasons for which the recoveries had been rightly disbelieved and these are that Muhammad Ali, acquitted co-accused, is not stated to have used his Lathi and therefore, it could not be blood-stained. In the same way Zafar acquitted co-accused according to the medical evidence, could have possibly not caused a hatchet injury to any member of the complainant side and consequently the hatchet recovered from him could not be blood -stained. I have gone through the evidence on the record and I agree with the trial Court that the recovery evidence, in the instant case, must be disbelieved.

7. The defence version must also be examined. Muhammad Ali, acquitted co-accused, as well as the appellant are both injured in the course of occurrence and, therefore, their presence is established on the spot. However, both of them admit their presence on the spot in their statements made before the trial Court. According to their statements as well as that of Zafar, acquitted co-accused and Mst. Zubeda, acquitted co-accused at the time of the occurrence Zafar and Mst. Zubeda, acquitted co-accused, were not present at the scene of crime. The version of the incident given by Muhammad Ali, acquitted co-accused, and the appellant is their own. Muhammad Ali, acquitted co-accused had stated that the member of the complainant party were aggressors. He denied having stood surety for Ahmad Bakhsh P.W. He stated that Ahmad Bakhsh P.W. had served him for two months and thereafter he had left his service. The deceased demanded the payment of the price of potatoes from him but he refused to accept his demand. On the day of occurrence at 8 a.m. the deceased alone went to his land and demanded the price of potatoes from him. He refused to oblige, whereupon an altercation took place and they exchanged abuses and Muhammad Ali, acquitted co-accused inflicted a Soti blow which fell on his neck. Thereafter, the deceased left for his house declaring that he would avenge the insult.' At Zoharwela, the deceased came to the house of Muhammad Ali, acquitted co-accused, and at that time the appellant, who was a student of 10th class, also came from the school to the house. Zafar, acquitted co-accused, or Mst. Zubeda acquitted co-accused, were not present. The deceased and his two sons, namely, Muhammad Tariq (P.W. 10) and Muhammad Amjad (P.W. 11) came and stood in front of his house hurling abuses upon him and then they started knocking at the door. Muhammad Ali acquitted co-accused came Qut in the street and the appellant followed him. Then the deceased, Muhammad Tariq and Muhammad Amjad P.Ws. started abusing him and also started inflicting Soti blows to him. Then the appellant advanced forward to rescue him. The members of the complainant party also gave him Soti blows. Thereupon he pulled out his knife and started inflicting blows therewith to them. The version of the appellant is identical. He stated that he returned from his school to the house. His father also came to the house from the fields. Suddenly the deceased and his two sons came in front of their and started abusing them and knocking at the door. His father went out and he followed him. When his father came out, all the three members of the complainant side started abusing him and also started inflicting Soti blows to him. He advanced forward to rescue his father and they started giving blows also to him. On this he pulled out his knife and started giving blows to all the three of them in self-defence. Zafar, acquitted co-accused and Mst. Zubeda, acquitted co-accused, were not present at that time. Thus, according to the defence version the occurrence took place because the appellant inflicted injuries to the members of the complainant side in the exercise of his right of self-defence as well as in order to rescue his father.

8. Dr. Muhammad Riaz Ali (P.W.1) medically examined Muhammad Tariq P.W. at 3.20 p.m. on 21-2-1978 and found on his person three stab wounds on the lower part of chest, on the right side of the back and orr the right side of back at lower part of upper half. The injuries were kept under observation and had been caused by sharp-edged weapon within the duration of two hours. These injuries were subsequently declared simple. , On the same day at 3-30 p.m. he medically examined Muhammad Amjad P.W. and found on his person ten injuries out of which eight had been caused by a sharp-edged weapon and two by a blunt weapon. The two injuries stated to have been caused with blunt weapon on the left knee joint and below right knee-joint could have been the result of a fall. The other injuries were kept under observation. These injuries had been caused with a sharp-edged weapon within the duration of two hours. Out of these injuries the first one i.e. a stab wound on the right side of back, was declared grievous, whereas the rest were declared simple. On 22-2-1978 at 7 a.m. he conducted post-mortem examination on the dead body of the deceased and found on his person stab wound on the left side of neck a swelling on the back of neck, a stab wound on the right shoulder-blade, an incised wound on the left side of abdomen, and an abrasion on the outer part of right thigh. Death in his opinion was caused due to haemorrhage and shock which resulted from first injury which was sufficient to cause death in the ordinary course of nature. Rest of the injuries were simple. The second and fifth injuries were caused with a blunt weapon and the rest with a sharpe-edged weapon. The time which elapsed between the injuries and death was instantaneous and between death and post-mortem examination was about 17 hours. On 22-2-1978 he medically examined Muhammad Ali, acquitted co-accused, and found on his person a swelling around the right thumb, a swelling on the head towards back, and a contusion mark on the left side of back. All the injuries were caused with blunt weapon. One was kept under observation and the others were declared simple. On the same day at 9-15 p.m. he medically examined the appellant and found on his person an incised wound on the right palm and a swelling on the right side of head. The first injury was caused by a sharp-edged weapon probably as a result of wielding the knife and the second injury was caused with a blunt weapon within the duration of 24 hours.

9. I have heard learned counsel for the parties and carefully perused the record. There is no other background of enmity between the parties expcept the motive version which is being supported by these witnesses, namely, Muhammad Tariq (P.W. 10), Ikramul Haq (P.W. 9) and Ahmad Bakhsh (P.W. 8). Ahmad Bakhsh P.W. has stated that he had got one bag of potatoes from the deceased and promised to repay to him in the form of one bag of wheat or Rs.100 in cash during the next Rabi and that Muhammad Ali, acquitted co-accused, had stood surety on his behalf for the delivery of a bag of wheat or the payment of Rs.100 to the deceased. He further stated that he left service of Muhammad Ali, acquitted co-accused, but Muhammad Ali, acquitted co-accused, had deducted the amount of Rs.100 from his wages before relieving him so that he could repay that amount to the deceased as he had stood surety for the same. Thus it is clear the motive version as advanced by the prosecution is correct and reliable. The prosecution version further is that the deceased went to Muhammad Ali, acquitted co-accused and demanded the repayment) of the amount of surety. Muhammad' Ali acquitted co-accused refused to oblige, whereupon the deceased is stated to have told him that he was going to recover it by placing his leg on the neck of Muhammad Ali, acquitted co-accused Muhammad Ali, acquitted co-accused, on this gave him a Sota blow and the deceased returned home. Thereafter, the prosecu tion version is that while the deceased was on his way in the lane, he met the appellant and the acquitted co-accused armed as described above, near the house of one Amanat Ali and then attacked the deceased whose two sons, namely. Muhammad Tariq and Muhammad Amjad P.Ws. were attracted to the scene of crime and besides the deceased they also received injuries at the hands of the accused party. The occurrence was witnessed, besides the two injured P.Ws., namely, Muhammad Tariq and Muhammad Amjad P.Ws., by Muhammad Saleem (P.W. 12) who is from their brotherhood. In the course of occurrence it is stated in the F.I.R. that injuries were caused by the complainant side to the appellant as well as to Muhammad Ali acquitted co-accused. The defence version as placed on the record is that the complainant side were aggressors and they had attacked Muhammad Ali acquitted co-accused, with Sotis and on seeing his father being beaten up, the appellant took out his knife and inflicted injuries to the members of the complainant party including the deceased, in the exercise of his right of self-defence. It may be pointed out at this stage that the recovery evidence is not reliable in the instant case. Therefore, what we are left with is the motive version and the ocular testimony supported by the medical evidence. One point, which must be mentioned here, is this that the occurrence had not taken place in front of the house of the accused party. It is on the record that the occurrence took place in a lane and the spot was at a distance of 25 Karams away from the house of the accused party and more than 100 Karams away from the house of the deceased. This is the spot from where the blood-stained earth had been picked up by the police. The other important point which is to be kept in mind is that besides the deceased his two sons, namely, Muhammad Tariq and Muhammad Amjad P.Ws. sustained injuries in the course of the occurrence and, therefore, their presence on the spot cannot be denied. On the other hand, Muhammad Ali, acquitted co-accused, as well as the appellant had sustained injuries on their persons in the course of the occurrence and their presence on the spot also cannot be denied. Any way it is even admitted by them in their statements made before the trial Court. The point which requires determination in the circumstances of the case is as to whether or not the plea of self-defence is available to the appellant. The defence version is that the deceased met Muhammad Ali, acquitted 'acquitted and asked him to repay the amount of surety. Muhammad Ali, acquitted co-accused refused to do so and when the deceased had abused him. Muhammad Ali, acquitted co-accused is stated to have given him a Soti blow which fell on his neck. The deceased' felt insulted. He went back to his house and told his sons. Thereafter, the deceased alongwith his two sons armed with sticks came to the house of Muhammad Ali, acquitted co-accused. They called him out and after abusing him started inflicting blows to him. The appellant i.e. son of Muhammad Ali acquitted co-accused who is a young boy being a Matric student and who had returned from school, saw his father being beaten up and advanced forward to rescue his father. In the course of doing so, he also got one Soti blow at the hands of the complainant side. At this juncture he pulled out his knife and inflicted injuries therewith to the deceased as well as to his two sons. Thus, according to this version, the appellant exercised his right of self-defence. According to this version Zafar and Mst. Zubeda, acquitted co-accused, were not present at that time. So far as the prosecution version is concerned, it comes from two injured sons of the deceased as well as Muhammad Saleem P.W. who belongs to their brotherhood. The version given in the F.I.R. is reiterated at the trial stage. In my view in the light of the motive version the deceased might have approached Muhammad Ali, acquitted co-accused, for the return of Rs.100 and in the course of the altercation might have also received a blow at his hands of which he might have felt insulted. In any case, he was entitled to recover the sum from Muhammad Ali, acquitted co-accused, as he had stood surety for the repayment of the same. Thus he might have proceeded with his sons may be to the house of Muhammad Ali acquitted co-accused. But on the way they chanced to meet while Muhammad Ali, acquitted co-accused was accompanying the appellant. In the ensuing altercation Muhammad Ali, acquitted co-accused, might have received injuries at the hands of the complainant party as this is being supported by the medical evidence. On seeing the father being beaten up it is reasonably probable that the appellant pulled out his knife and caused injuries to the deceased as well as to his two sons. This in the background of the motive version as advanced by the prose cution as well as the statements of the appellant and Muhammad Ali, acquitted co-accused, before the trial Court and the version of the occurrence given by the eye-witnesses and then furthermore sifting the grain from chaff, in my view is that the plea of self-defence in the peculiar circumstances of this case is not available to the appellant. I pointed out this to learned counsel for the appellant that the plea of self-defence in the circumstances cannot be raised and it is rejected. At this stage he advanced the alternate argument that if the plea of self -defence was not available to the appellant then it was a case of grave and sudden provocation or a case of sudden fight. His reasoning was that the appellant was a Matriculate student and if he saw his father being given blows by the members of the complainant side, howsoever justified they might have been. It was sufficient to make him gravely and suddenly provoked so as to lose his self-control and thereafter in that frame of mind whatever he did was under grave and sudden provoca tion. In support of his arguments learned counsel cited Mir Afzal v. The State 1972 P Cr. L J 1025, -Nusrat etc v. The State P L D 1967 S C 18 and Abdul Aziz v. The State 1980 P Cr. L J

357. In all the above three cited authorities the plea of grave and sudden provocation was accepted. On the basis of these judgments learned counsel argued that the case of the appellant was covered by Exception 1 to section 300, P.P.C. and that therefore his conviction under section 302, P.P.C. was not proper. I have carefully considered this aspect of the case. It is evident that the appellant is only 19 years old and is stated to be a Matric student is reasonably probable that he saw his father being beaten up by the members of the complainant party. In any case, Muhammad Ali, acquitted) co-accused had three injuries on his person in the form of swelling around the right thumb at its root and palm with a blister on the palm and a swelling on the left side of his head at the back as well as a contusion mark 3" x 1" on the left side of the back. On seeing his father being beaten up, the appellant might have advanced forward. There is also a swelling on his head on the right side, " x ". Therefore, he might have also received a stick blow. In any case, seeing his father being beaten up he could have been gravely and suddenly provoked and with that frame of mind he pulled out a Churri and caused injuries therewith to the deceased as well as to his two sons. In that view of the matter, in my view the case of the appellant was covered by Exception I to section 300, P.P.C. and his conviction and sentence, in the circumstances under section 302, P.P.C. were not proper. These are accordingly set aside and instead he is convicted under section 304, Part 1, P.P.C. and sentenced to ten year's rigorous imprisonment plus fine of Rs.2,000 or in default to undergo one year's rigorous imprisonment for causing the death of Ata Muhammad deceased. If the fine is recovered from him it should be paid as compensation to 6 heirs of the deceased. His conviction as well as sentence under section 307, P.P.C. on two counts are maintained. The sentences are ordered to run concurrently. The Jail authorities are further directed to grant him the benefit of the provisions of section 382-B, Cr.P.C. at the time of computation of his sentences of imprisonment. The appeal is accepted to this extent. In the light of the above discussion I do not find any substance. In Criminal Revision No.40 of 1981 which is accordingly dismissed in limine. M. Y. H. Appeal accepted. Revision dismissed.