1985 PLP 1411 (MLD)

Fifth left rib and right ventricle were cut and pleura and left lung injured by the aforesaid injury which was caused by a sharp-edged weapon. The cause of death was shock and haemorrhage. On the same day this very. doctor examined Salim Masih. He found three incised abrasions 112 c.m. x 1/10 c.m. or, the web of thumb of right hand, 3/4 c.m. x 1/10 c.m. on the right index finger and 1 c.m. x 1/10 c.m. on the palm of left little finger. All the injuries were simple caused with sharp-edged weapon within the ,duration of 18 hours.???????? The appellant in his statement before the trial Court admitted about the marriage of Maqsood Masih which was held a day prior to the occurrence. He denied that on that occasion drums were being beaten and that he was stopped by Younis Masih from dancing. He also denied that any unpleasant incident took place and that was patched up, due to the intervention of the people. When the charge of murder was put to him he said that the occurrence had not taken place as alleged by the prosecution. The witnesses did not see anything. He denied the mode of his arrest and refused that he was wearing blood-stained clothes. He said that as a matter of fact he was produced by his father on 23-4-1979 at the Police Station and shirt P.4 and Shalwar P.5 were planted on him. He disowned the shirt, Shalwar and dagger P. 3. ??????????? When asked why the prosecution witnesses deposed against him, his reply was that they were inter-related. They are interested. They did not see the occurrence. They were subsequently set up as eye? witnesses at the instances of the Investigating Officer. He said that the witnesses were annoyed with him on account of his relations with Mst. Nusrat alias Gogy. He said that the case was false. He intended to produce Boota son of Bantu in his defence. ???????? The trial Court asked him, "Have you anything else to say ?" To this question he gave detailed answer the sum and substance of which is as follows: Salim said that Mst. Nusrat alias Gogy, sister of Manzoor P.W. , was a charming young girl. She was not married. She loved him. She wrote love letters. Both promised to marry each other. Younis who was maternal causin of Nusrat alias Gogy was also unmarried. He too was interested in the girl and was anxious to marry her. Mst. Khurshid, mother of Gogy and the prosecution witnesses did not approve of her love affair with Salim. This is how the appellant and the deceased became rivals. A day before-the occurrence Walima of Maqsood Masih was being held. There was a huge gathering. Mst. Nusrat alias Gogy was also present. Drums were being beaten. Youngsters were dancing to the beat of the drum. Salim was also there. He too started dancing alongwith others. His dance was liked by boys and girls. The spectators were so excited that they started throwing money to the man beating the drum due to the par excellence performance of the appellant. Younis felt jealous. He was offended. He asked Salim to stop dancing. Salim did not listen to him. He was in a very hilarious mood due to the presence of his sweet-heart. Younis suddenly stopped the drummer and warned the appellant not to dance. This led to an altercation. Younis said, "You have spoiled our Walima ceremony. You have disgraced and insulted me. I will teach you a lesson". Younis, Lal Din, Binia, Javed and Manzoor i.e. the complainant party felt insulted. On the day of occurrence at about 5 in the evening, Salim was sitting at the tea-stall of Aziz alias Rana. The deceased turned up there from the side of Eid Gah Road. He took four or five tablets of Mandrax/Vasparax from a Phial and swallowed them with a glass of water. Yonuis asked Salim to sever all connections with Mst. Nusrat. He replied that as she loved him he would marry her. Younis brought out a dagger from the leather belt with his leg and launched a murderous assault at Salim saying that he would be done to death. The appellant warded off the attack on his hand and caught hold of his right writ forcibly. With a sudden jerk he pushed his right hand towards his chest. The deceased got injured with his own knife. His grip loosened. The knife was snatched by the appellant and in the exercise ox right of private defence he gave two or three knife blows. This was done to save his own life. He tried to get himself released from the clutches of the deceased. In doing so the deceased stumbled with a nearby wooden chair of the tea shop and fell down. The appellant escaped death by inches. He left the deceased alive. Salim appellant further told the trial Court that Younis Javed, Sanitary Supervisor, David and other inmates of the adjoining houses had seen the deceased launching murderous assault on his life whereas Lai Din, Binia and Javed Masih were not present at the spot. ??????????? The deceased had a grudge because of Mst. Nusrat alias Gogy. He felt insulted on the Walima ceremony. In order to remove the appellant from the way, Mst. Khurshid mother of Gogy instigated the deceased to kill him (Salim) so that the deceased could be married to the beloved of they appellant. He said that he was quite innocent; case was false; the deceased was the aggressor. He produced copies of F.I.R. No. 854, dated 4-12-1975 (Exh. D.C.) report on application for copy (Exh. D.D.), F.I.R. No. 702/72, dated 7-12-1972 (Exh. D.E.), Entry in the register of police (Exh. D.F.) F.I.R. No. 537, dated 22-11-1974 (Exh. D. G.), Roznama Jang Karachi, dated 14-3-1980 (Exh. D. H.) and Roznama Jang, dated 28-391981 (Exh. D. I.). ? Boota Masih son of Bantu Masih appeared in his defence. He said that Mst. Nusrat was the sister of Manzoor. She was a very attractive girl. She loved Salim. Both promised to marry each other. The deceased was also keen to marry her. The two became rivals. Boota Masih was invited on the Walima of Maqsood Masih. Lai Din Bhatti, Binia, Javed, Manzoor and Mst. Nusrat alongwith her mother Mst. Khurshid were present there. About 150 persons had gathered there. Binia brought the drummer. The youngsters started dancing to the tune of drum. They were performing Bhangra. Salim also turned up. He joined the dancers. As his performance was liked by the persons present, the drummer was receiving tips. Younis felt offended. He stopped the appellant from playing Bhangra. The appellant was so excited due to the presence of his girl friend that he went on with his performance. The deceased stopped the drummer from beating the drum and told Salim that he had insulted him and spoiled the event. He further told Salim that he would teach him a lesson for that. Lai Din, Binia, Manzoor, Javed and Khurshid Bibi accused Salim for insulting them and for ruining the Walima ceremony. Mst. Khurshid said that Salim was an obstacle in their way and he should be removed, The people present there separated them. Boota Masih, a sweeper in P.W.D. appeared before Inspector Salim on the following day of the occurrence. He admitted that his landlord was maternal grandfather of the appellant. Learned counsel for the appellant, in the first Instance, tried to argue for the acquittal of the appellant. He submitted that the so-called eye-witnesses were chance witnesses. Their testimony was not reliable. They were relatives of the deceased. The complainant Lai Din was brother-in-law of the deceased. Javed Masih was nephew of the former. The recovery witness Manzoor was a paternal cousin of the deceased. Learned counsel further submitted that the prosecution nowhere mentioned or explained the three injuries received by the appellant. This fact went against the prosecution and supported the defence version. In this very sequence learned counsel argued if the defence case was to be examined. in juxtaposition with the prosecution story, the plea taken by the appellant appeared to be more probable. It was argued that the right of private defence was rightly exercised in this case. The fact that the appellant had three simple incised wounds whereas the injured died would not, in any case, weaken the plea taken by the appellant. In support of this learned counsel relied on the case of Muhammad Yaqub v. The State P L D 1974 Lah.

274. In the altercate learned counsel argued for lesser sentence than death. He submitted that as was evidence from the F. I . R . and the statements of the two eye-witnesses, the origin of fight was not known. Its benefit was to be given to the appellant. He relied on Muhammad Nawaz v. The State P L D 1979 Kar.

286. It was next submitted that it was in evidence that the deceased and the appellant were abusing each other. Exchange of abuses according to the learned counsel, in this case provided a mitigating circumstances. In support of this he referred to the case of Muhammad Amin Shah v. The State 1976 P Cr. L J 449. ??????????? We have considered the points urged by the learned counsel for the appellant. We are not inclined to discard the ocular evidence on the ground of relationship of the deceased. They are also related to the accused side. Nor in our opinion the eye-witnesses are chance witnesses. They gave a sound explanation of their presence at the spot. ??????????? The present case is to be examined from two angles. First, the prosecution evidence in juxtaposition with the defence version in order to find out how far the plea of right of private defence could be availed of by the appellant. For that matter we have perused the statement of the appellant. According to it, it was the deceased who, in the first instance, attacked the appellant. The appellant succeeded in warding off the blow but held the arm of the deceased so forcefully that while pushing him back, knife of the deceased pierced his chest. Thereafter, the deceased's grip got loosened. The appellant snatched knife from him and attacked him. If this story is accepted then it can be legitimately' inferred that injury in the chest was received by the deceased with his own knife at his own hand. But thereafter he was disarmed and once the knife was snatched from him and it was in the hand of the appellant, the right of private defence ceased to exist because by that time the deceased had already received a serious injury. In the chest and he had no weapon with him. As a matter of fact he was incapacitated to assault the appellant any more. The number of the injuries--Some on the vital part, rule out the plea taken by the appellant. On the other hand the repeated blows clearly prove both the mens rea and actus reas on the hart of the appellant. We are, therefore, of the view that this plea is not available to the appellant. Now dealing with the second point as to whether there is a mitigating circumstances, we see some force in the contention of the learned counsel. The prosecution has not brought any definite evidence about the origin of the fight, It is the prosecution case that the appellant and the deceased when seen while coming were abusing each other. So, it is not known who started the trouble. On this ground we are inclined to give him concession in the sentence. We, therefore, decline to confirm the death sentence and commute the same to imprisonment for life. The appeal is dismissed with this modification. The Collector concerned shall take steps for realization of the amount of compensation and its payment. S. G. D.?????????? Order accordingly.