1997 PLP 1378 (MLD)

(4) A contusion 7 x 2 c.m. on the left scapular region. (5) A contusion 13 x 2‑1/2 c.m. on the back of the left shoulder, (6) A contusion 7 x 2‑1/2 c.m. on the right scapular region. (7) A contusion 6 x 2 c.m. behind the neck. (8) Two parallel contusions 7 x 2‑1/2 c.m. each on the lateral side of left arm. (9) A contusion 6 x 2 c.m. on the front of right shoulder.

5. Dr. Riaz Hussain P.W.7 Medical Officer, D.H.Q. Hospital, Muzaffargarh had conducted the post‑mortem examination on the dead body of Bashir Ahmad deceased on 24‑3‑1992.

6. At the conclusion of prosecution evidence, the appellant Muhammad Sharif was examined under section 342, Cr.P.C. He stated that he dealt in the business of selling milk. He used to go with utensils of milk on the path of Rairhu canal daily. Mst. Shamim was married to Bashir Ahmad deceased about four years back. He was not engaged with said Mst. Shamim, hence he had no grudge in this context. Mst. Salma younger sister of Mst. Shamim was married to Majeed, his younger brother. Bashir Ahmad and his parents were not consenting party to this marriage. Despite that fact father of Mst. Shamim and Mst. Salina had given Mst. Salina in marriage with Majeed. Bashir Ahmad had illicit will towards him on this count. He sent away his wife Mst. Shamim to her parents because of the said fact. After marriage between Mst. Salma and Majeed, Bashir Ahmed tried to bring Mst. Shamim back to his house. However her parents did not agree to this proposal of Bashir Ahmad deceased. Bashir Ahmad deceased had a firm opinion that Muhammad Sharif appellant was responsible in non‑rehabilitation of Mst. Shamim in his house. This was not a justifiable opinion of said Bashir Ahmad. Bashir Ahmad deceased had colluded with Abdul Ghafoor P.W.3 and Manzoor P.W.4 and had lurked in the cattle shed at Rairhu minor canal on the day of occurrence. When he was coming or the bank of canal, all the three assaulted him. They snatched bicycle and utensil of milk and gave him severe beating. He was having a small knife with him with which he attacked Bashir Ahmad deceased in order to save himself as well as his property (bicycle and utensils of milk). He was injured and went to police station, where he lodged report Exh.D.C. Farid Bakhsh prepared statement of injuries on his person and sent him with Ijaz Hussain Constable for medical examination. He was medically examined. He was told by the Moharrir that he would be produced before the S.H.O. on his arrival. He stated that he is innocent and had falsely been involved in this case. He was arrested by the police after the death of Bashir Ahmad deceased. However, he neither appeared in his defence nor produced any defence evidence.

7. It is submitted by the learned counsel for the appellant that motive of the case was shrouded in mystery as the deceased was married with Mst. Shamim about three years before the occurrence and there were two sons from the wedlock, houses of the appellant and that of the deceased were quite adjacent, therefore, there were so many chances to wreak his vengeance during that long period as such it was a motiveless crime; that in fact there were the P.Ws. and deceased who cordoned the appellant, while he was going to sell his milk, because they have a more probable motive, which was admitted by the complainant during his cross‑examination; that the deceased had not agreed with the proposal of Majeed (younger brother of the appellant) with the younger sister of Mst. Sbamim (wife of the deceased) but despite the parents of Mst. Shamim got their daughter married with Majeed, due to this, relations between the deceased and his father‑in‑laws as also with the family of the appellant became strained, that the investigation officer had also come to a conclusion after investigation of the case that motive of the offence as described by the complainant was not firm; that there is a delay of 24 hours in lodging the F.I.R.; that the eye‑witnesses were interested and inimical towards the appellant. He further argued that the circumstances of the case coupled with evidence on record, it is proved beyond any shadow of doubt that the appellant had committed the offence under the right of private defence of body and property; that the appellant has received five injuries during the occurrence which according to the medico‑legal report could not be caused with fist blows or slaps. In the end he vehemently contended that the trial Court has not given due weight to the right of self‑defence exercised by the appellant during the occurrence and has wrongly accepted the prosecution evidence which hinges upon two P.Ws (real brothers) who are not only closely related to the deceased but also inimical towards the appellant and has requested for lenient view in favour of the appellant.

8. I have heard the arguments advanced by the learned counsel for the appellant as well as by the learned State Counsel and have gone through the file.

9. Prosecution case hinges upon the ocular evidence furnished by Abdul Ghafoor (P.W.3) and Manzoor (P.W.4) who are real brothers of the appellant. Although both the two eye‑witnesses made consistent statements about the stance of the prosecution reported by the complainant while lodging the F.I.R., yet they failed to explain as to how the appellant was injured with blunt weapon as observed by the doctor.

10. Muhammad Sharif appellant in his statement under section 342, Cr.P.C. while explaining his injuries had given his own version of the manner in which occurrence had taken place.

11. Admittedly there is a delay of 24 hours in lodging the F.I.R. Explanation submitted by the complainant is that they wanted to consult Malik Ata Muhammad and Faiz Bakhsh, did not appear to be plausible.

12. As it is a case of two versions, both the versions got to be examined in a juxtaposition, to find out if the version put forth by the prosecution inspired confidence or the version put forth by the appellant was more probable and nearer to the truth. Points for determination are as to whether the appellant is entitled to claim the right of self‑defence as pleaded by the learned counsel for the appellant and whether there is any substance in the plea. The answer to the first question is in the affirmative as the plea can be gleaned from the prosecution evidence and the circumstances of the case. In order to find out answer to second question I have placed the rival version in juxtaposition and examined the same carefully. The ocular evidence which gives the impression of a premeditated attack being not confidence inspiring has been excluded from consideration. The appellant not only carrying the stamp of injuries on his person but had also lodged a report in respect thereof, prior to the report made by the complainant, regarding which the proof is available on the record. According to the medical examination, the appellant was found to have suffered nine injuries. The doctor also observed that injuries No. 2 to 9 on the person of the appellant neither be caused by falling on bicycle nor these can be caused with fist blows or slaps. Moreover, the duration of the injuries given by the doctor tallies with the time of occurrence. Failure of the eye‑witnesses to come out any explanation regarding blunt weapon on the person of the appellant makes the whole case of the prosecution doubtful. Furthermore, the investigating officer contradicted with the eye‑witnesses that the appellant was a cultivator rather he stated that on the day of occurrence the appellant was going on bicycle and had utensils of milk with him and that the appellant generally used to pass on the canal path where the occurrence took place. The investigation officer has also stated that appellant was injured during the said occurrence. According to him, the motive of the offence as described by the complainant was not firm. In this background there is a reasonable possibility that the plea of self‑defence raised by the appellant might be true. However, I am convinced that the appellant had exceeded the right of self‑defence as he could have successfully warded off the attack and kept the deceased at day by hitting knife at the lower part of his body. In these circumstances while maintaining the conviction of the appellant I reduce the sentence from 14 years' R.I. to 5 years' R.I., for which I think shall meet the ends of justice. The sentence of Diyat awarded by the learned trial Court shall stand intact.

13. Learned counsel for the appellant has requested for making instalments of Diyat amount, spread over a period of three years, as envisaged under section 331, P.P.C. Learned counsel is directed, if he so desires to file an application in this respect before the learned trial Court, who shall proceed just in accordance with law.

14. With the above modification in the sentence of the appellant, the appeal is disposed of. N.H.Q./M‑2582/L Sentence reduced.