1993 PLP 185 (MLD)

(1) A lacerated wound 1/4" x 1/4" x muscal deep on inner aspect of lower lip in front of incisor teeth. (2) A contusion 1/2" x 1/4" below the right eye.

5. The autopsy on the deed body of the deceased was performed by. Dr. Arshad Ali Bajwa, Medical Officer P.W.2 on 24-5-1984 at 8-30 a.m. Before him, the complainant and one Abdul Aziz had identified the dead body. On external examination of the dead body, the following injuries were noticed:- (1) An incised wound 1-1/2" x 1/2"x depth not probed on abdomen just below the umblicus in the midline. Intestine was lying outside. (2) A contusion 1-1/2" x 1-1/2" on left shin in the middle. On dissection of the dead body, under injury No. 1, skin, muscles, peritoneum, small intestines and mesentery were found cut. The doctor opined that injury No.1 was caused by sharp-edged weapon while injury No.2 with a blunt weapon; both were ante-mortem, Injury No.l was sufficient to cause death in the ordinary course of nature. He also added that the deceased had died due to shock and haemorrhage as a result of injury No.1.

6. After the post-mortem examination, the doctor gave shirt Exh.P.l, Shalwar Exh. P.2. and Banyan Exh. P.3, all blood-stained, the last-worn clothes of the deceased to Muhammad Nawaz F.C. P.W., who passed on the same to the Investigating Officer, Muhammad Sharif S.I. and the latter collected them through memo. Exh.PD. The accused was arrested on 25-5-1984 by Muhammad Sharif S.I. P.W.12. His personal remand was taken and interrogated and he after making disclosure took the police party sto the restaurant of his uncle and got recovered blood-stained Chhuri Exh.P.4 which was secured and made into sealed parcel through memo. Exh.PD in presence of Abdus Salam PW.5. The sealed parcel was given to Muhammad Akbar Moharrir (Malkhana) by the Investigating Officer and the former sent the same intact to the office of Chemical Examiner, Lahore, on 9-6-1984 through Zulfiqar Ali F.C. P.W.11. Later on, the report Exh. PJ of the Chemical Examiner confirmed that the Chhuri was stained with blood. The police also got prepared site plans Exh. PE and Exh. PE/1 from Hamid Ullah Draftsman P.W.6. and after completion of the investigation, the accused was challaned.

7. At the trial the appellant did not plead guity and claimed to be tried. All the 12 P.Ws., named above, produced by the prosecution, support its case according to their respective roles.

8. In his statement under section 342, Cr.P.C. the appellant had admitted that the deceased had died on account of the injury received at his hand with a Chhuri but had come up with a different version about the incident. According to the appellant/accused, Muhammad Shahbaz P.W. had come to the restaurant of his uncle for getting meals on credit but he refused to give him on credit and directed him to bring cash as well as utensils which offended the P.W. who started quarrelling with him and not only threw utensils of the restaurant but also misbehaved with him and that even both of them grappled with each other. Then Muhammad Shahbaz P.W. went from the restaurant saying that he would teach him a lesson and 5/7 minutes thereafter, Muhammad Yousaf, Muhammad Riaz deceased and Shahbaz P.W. arrived at the restaurant. The deceased was ahead of the three and he challenged him to come out of the hotel and also pulled out a bamboo stick from the `Saiban' of the hotel and with that caused him injury. At that time, he was peeling onion with a Chhuri and when the deceased aimed a second- blow with a bamboo stick, he extended his that hand in which he was holding the Chhuri and in that process, the Chhuri hit the deceased. However, the appellant/accused did not produce any evidence in his defence.

9. We have heard the learned counsel for the appellant, the State and. For the Peitioner in Criminal Revision Petition and perused the record of the case with their assistance.

10. The learned counsel for the appellant contended for the acquittal of the appellant and assailed the impugned judgment primarily on the ground of the right of self-defence. In this respect, submitted that the complainant party was aggressor as they had come to the restaurant of the appellant in an enraged state of mind, as they had felt aggrieved by the refusal of the appellant to sell/serve them the prepared food from the restaurant he was working at. Further submitted that on approaching the restaurant in question Muhammad Shahbaz P.W.3 had hurled abuses and challenged the appellant and that deceased Muhammad Riaz had pulled out a Danda of the `Saiban', whereupon the appellant apprehending hurt to himself had caused a single blow in self defence that had resulted in the death of said Muhammad Riaz.

11. On the other hand, the learned counsel appearing in the Criminal Revision Petition argued that the learned trial Court had fallen in gave error of law by convicting and sentencing the appellant in the alternative under the provisions of section 304, Part I, P.P.C., as the instant case under the facts and circumstances as established by the evidence on the record and duly taken note of by the learned trial Court itself, is not covered by the provisions stated in the Exception 1 of section 300, P.P.C. or Exception 4 thereof. In this respect, pointed out, that the learned trial Court had itself come to the conclusion that the appellant had no case of self-defence and had therefore, rightly concluded that his plea of self-defence was not tenable as stated in paragraph No.14 of the impugned judgment. Further submitted that the appellant had not stated at any stage that he had apprehended danger to his fife, and that therefore to save himself he had caused the fatal blow to the deceased with his Chhuri; and that, in fact, he had stated in his statement under section 342, Cr.P.C., while explaining the circumstances in which the deceased had died at his hands, that he had extended his hand in which he was holding Chhuri, which had caused the fatal injury. Further argued that according to the statement of the appellant himself, he had taken initiative in coming out of the restaurant and causing the fatal blow to the deceased without there being any act by the deceased which can be said to have placed his life in danger. Therefore, contended for the enhancement of the sentence awarded to the appellant. The learned counsel for the appellant accepted notice in Criminal Revision Petition in question.

12. The Court has given its anxious consideration to the contentions raised by the learned counsel for the parties. The Court is constrained to point out that the learned counsel for the appellant failed to support his contentions by referring to any piece of evidence on the record. The learned trial Court had rightly come to the conclusion that under the facts and circumstances of the case, as borne out by the evidence on the record, the appellant could not be extended the benefit of having committed the murder of the deceased Muhammad Riaz in exercise of his right of self-defence. The appellant had not been caused any injury that could support his plea of self-defence, and furthermore it was he who had come out of the restaurant being armed with Chhuri and had struck the fatal blow with the said Chhuri that resulted in the death of the deceased. Therefore, as pointed out by the learned counsel, A supporting the Criminal Revision Petition, the occurrence in question is not covered by the Exceptions 1 and 4 of section 300, P.P.C. Therefore, the Court is further constrained to observe that the learned trial Court had erred in law by holding that the offence charged was covered under the provisions of Part I of section 304, P.P.C.

13. However, as the State has not deemed it appropriate to challenge the acquittal of the appellant from the charge framed under the provisions of section 302, P.P.C.; and ass the learned counsel for the petitioner in the Criminal Revision Petition in question only contended for the enhancement of B sentence awarded to the appellant, without contending for setting aside his conviction under the provisions of Part I of section 304, P.P.C. and as the appellant had gained expectancy of life in the meanwhile, therefore, it is deemed appropriate to maintain his conviction under the provisions of the said section, but to enhance his sentence to rigorous imprisonment for life, while directing that he shall pay a fine of Rs.5,000 or suffer further R.I. for one year in default thereof, with the further direction that the fine, if realized, shall be paid as compensation to the legal heirs of the deceased, Muhammad Riaz. the appellant shall be entitled to the benefit of the provisions of section 382-B, Cr.P.C. The appellant is on bail he shall be taken into custody forthwith to undergo the sentence imposed on him.

14. In accordance with the terms stated above, the present criminal appeal is hereby dismissed, whereas Criminal Revision No.233 of 1985 is allowed and disposed of accordingly. N.H.Q./N-107/1 Sentence enhanced.