1989 PLP 4459 (MLD)

(2) A lacerated wound left perital region 8x1/2 cm above left ear measuring 2 cm x 1/2 cm x 1/2 cm calp deep. (3) An incised wound at back of neck 1/2 cm x 1/4 cm skin deep. (4) An abrasion on left zygometic arch 1 cm diameter. (5) An incised wound on the back of the chest right side along medial border of scapula 1‑1/4 x 1/4 cm skin deep. (6) Multiple superficial scratches on front of left side of chest. On the same day he also medically examined Muhammad Fazil, appellant, and found the following injuries: (1) A lacerated wound above left eye‑brow on forehead measuring 2 cm x 1/2 cm muscle deep. . (2) A lacerated wound on left side of top of head measuring 1 cm x 1 /4 cm scalp deep, (3) A lacerated wound on left parietal region and behind injury No.2 measuring 2 cm x 1/2 cm scalp deep. (4) A lacerated wound on left tempro region 5 cm above left ear measuring 2‑ / 2 cm x /2 cm scalp deep. He declared all the injuries simple which were caused by a blunt weapon.

6. The prosecution in support of its case produced 14 witnesses in all. PW.1 Iqbal Ahmad, MHC, was handed crier a parcel containing blood‑stained earth on 19‑7‑

985. On 2‑8‑1985 he was again given a parcel containing blood‑stained chhuri which he deposited in the Malkhana and on 19‑8‑1.985 he handed over the said parcels to Muhammad Sharif, PW, for onward transmission to the respective offices at Lahore. Muhammad Anwar, FC, PW‑4 stated that on 19‑7‑1985 they were present near the Railway‑crossing when they were informed that a murder had taken place. He with the SHO went to the spot and then escorted the dead body to the, hospital for autopsy. Amanullah, PW‑5 witnessed the recovery of blood‑stained earth and blood‑stained clothes of the deceased. He signed both the memos. Nazir Ahad, PW‑6 on 1‑8‑1985 witnessed the recovery of Sota P.5 at the instance of Muhammad Din accused from his residential house. He attested the recovery memo Exh. PC. Muhammad Azecm, PW‑7 witnessed the recovery of chhuri P.6 of Muhammad Bashir from his house. He attested the recovery, memo Exh.PD on 1‑8‑1985. Muhammad Ashraf, PW‑8, witnessed recovery of the blood stained chhuri P.7 al the instance of Muhammad Fazil from his residential house on 1‑8‑1985. He attested the recovery memo Exh. PE. The eye‑witness account was furnished by Parvaiz Akhtar and Muhammad Jameel, PWs‑10 and 11 , respectively. Parvaiz Akhtar stated that die on 19‑7‑1985 was going in the lane. when he crossed the vacant plot of Rahim Bakhsh, he saw the appellant along with his co‑accused present there while armed with different weapons. When Nisar Ahmad deceased came there to repair the electricity from the pole he was attacked by the accused persons. Nisar Ahmad was held in a japha by Muhammad Anwar while Muhammad Fazil appellant gave a chhuri blow hitting on the left side of his neck, whereupon he fell down. Muhammad Jamil tried to intervene but was belaboured by the co‑accused of the appellant. Muhammad Jamil corroborated the statement of Parvaiz Akhtar on all material aspects and also proved the F.I.R. which had been lodged by him. The doctor who conducted the post‑mortem examination appeared as PW‑

12. Dr. Asif Ali Khan who examined Muhammad Jamil, PW, as well as Muhammad Fazil, appellant; appeared as PW‑

13. Mirza Daud Baig, SI/SHO, PW‑14 conducted the investigation of the case. At the conclusion of the prosecution evidence, the appellant and his co-accused were examined under section 342 Cr.P.C., wherein they refuted the prosecution allegations and pleaded innocence. Muhammad Fazil also pleaded right of self-defence as well as grave and sudden provocation. He also produced a witness in his defence who stated that the land where the occurrence took place had been purchased by the appellant 8/10 years before the incident.

7. It is contended by learned counsel for the appellant that there is no previous enmity between the parties. Submits that the prosecution had not come to the Court with clean hands, therefore, could not be relied upon. Submits that the appellant was also injured but his injuries have neither been explained nor mentioned by any of the witnesses, which cast a serious doubt. Contends that the deceased was neither an electrician nor an employee of WAPDA, therefore, there was no occasion for him to come far the repair of the electric pole which was near the house of the appellant. Contends that the defence version, if put at juxtaposition with the prosecution case, become more plausible, therefore, should have been accepted. The contentions have been opposed by learned counsel for the State.

8. I have heard the learned counsel and perused the record. As far as the place of occurrence, time and the weapon of offence are concerned, it has not been disputed by the defence. Therefore, I hold that the deceased Nisar Ahmad died because of a chhuri blow on the neck on 19‑7‑1985 at 10 a.m. on a plot adjacent to the house of the appellant. The prosecution assertion is that the appellant had gone to the said place in order to remove the defect in electricity supply. In support of this contention, the prosecution has mainly relied upon the statements of Parvaiz Akhtar and Muhammad Jamil, PWs‑10 and 11, respectively. Both of them have stated that the deceased had gone to the said place in order to remove the electricity defect, They were cross‑examined at length wherein they had to admit that the deceased was neither in WAPDA nor an electrician. Parvaiz Akhtar during cross -examination also admitted that Muhammad Fazil during the transaction was also injured and got medically examined by the police though this fact was suppressed by both the witnesses throughout. Both the witnesses also tried to suppress the fact that the appellant used to live: in the house near which the occurrence took place. They tried to assert that the said plot where the occurrence took place belonged to one Rahim Bakhsh. In cross‑examination he had to admit that the appellant was also residing on the same plot. A careful perusal of the statement of both the eye‑witnesses clearly reveals that they have improved upon the prosecution version as well as have tried to suppress the material facts. The injuries on the person of the appellant were suppressed. They also suppressed that the appellant had his house near the place of occurrence, though ultimately had to concede. What has been discussed above, clearly indicates that the prosecution witnesses are not truthful and cannot be relied upon unless corroborated. As far as the corroboration is concerned, it could be available from the blood‑stained chhuri recovered at the instance of the appellant, but in the given circumstances, I hold that it may not be of much use to the prosecution because the appellant also admitted having caused injuries to the deceased. As far as the defence version that the deceased wanted to take a live electric wire over the roof of the appellant is concerned, it was objected by the wife of the appellant and she was maltreated by the deceased. The appellant came and forbade the deceased from behaving in that manner, then he was also belaboured. in those circumstances, in order to save his life and the honour of his wife he caused a single blow to the deceased which resulted in his death appears plausible. In the absence of any motive for the commission of the offence or background of any enmity between the parties, I feel the defence version, as given; by the appellant, appears to be more plausible. Had the prosecution explained the I injuries on the person of the appellant, then the position would have been different, but in the absence of that there is only the statement of the appellant which explains the circumstances in which he was injured, therefore, the same has to be accepted. For what has been discussed above, I hold that the prosecution has not been able to prove its case against the appellant under section 302 P.P.C., therefore I alter the conviction from section 302 to 304 Part-II P.P.C. and reduce the sentence to seven years', R.I. The sentence of fine shall, however, be maintained. For the same reasons the Revision is disposed of. S.A./M-1428/L Conviction altered.