1993 PLP 1624 (SCMR)

Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502 and Fida Hussain v. The State 1992 SCMR 1513 rel. Ch. Muhammad Akram, Advocate Supreme Court for Appellant. S.M. Naseem, Advocate Supreme Court for the State. Date of hearing: 18th April, 1993. WALI MUHAMMAD KHAN, J‑‑‑Manzoor convict, appellant herein, through leave of the Court, has called in question the judgment dated 28‑10‑1989 passed by a learned Single Judge of the Lahore High Court, whereby his Criminal Appeal No. 234/86 against the judgment of the learned Additional Sessions Judge, Jhang dated 4‑3‑1986 convicting and sentencing him to death plus a fine of Rs.10,000 or in default one year R.I. and also to pay Rs.10,000 as compensation to the heirs of the deceased or in default to suffer one year R.I. for the murder of Yousuf deceased, was dismissed and by accepting the Murder Reference, confirmed the death sentence imposed upon him. The operative part of the leave granting order is as follows:‑‑ "Learned counsel for the petitioner contends that co‑accused Nazir had as many as five injuries on his person including an incised wound which have not been explained by the prosecution and the Courts below have not properly attended his plea of self‑defence. It is further submitted that there was an inordinace delay in lodging the FIR and the evidence relied upon by the Courts below was not sufficient to warrant the conviction. After going through the record we feel that the submissions made by the learned counsel require examination. Leave to appeal is accordingly granted to re‑appraise the evidence." The prosecution story, as per contents of the F.I.R. Exh.PA, is that on 24‑10‑1984 Muhammad Younis, nephew of the complainant Khan Muhammad P.W.9, was grazing his cattle in his own fields when they moved to the adjacent field in Chak No.146/JB belonging to the appellant and Nazir Ahmed, acquitted accused, whereupon the appellant and his co‑accused caught hold of them. Muhammad Younis ran to his house and brought his brother Yousuf deceased who reprimanded them and released the cattle from their possession. On the same day at Degarwela Manzoor appellant armed with axe and Nazir Ahmed co‑accused armed with stick went to the spot where Yousuf was working in his fields. Manzoor raised an alaram that he would teach a lesson to the deceased for the abuses hurled by him and simultaneously delivered a blow at Yousuf deceased hitting him on his head while Nazir Ahmed dealt a stick below to him on his left eye followed by another blow by the appellant at the deceased which injured him on the back of his head. The occurrence was witnessed, besides the complainant, by Allah Ditta who was grazing his cattle nearby. The appellant and his co‑accused Nazir Ahmed fled away from the spot and the complainant took the deceased, then in injured condition, to the dispensary of Chak No.148 but en route he, succumbed to his injuries. The occurrence was reported by Khan Muhammad P.W.9 on 25‑10‑1984 at 7‑20 a.m. which was recorded by Zahoor Ahmed, Muharar/Head Constable P.W.1 vide F.I.R. Exh.PA. After completion of the usual investigation, the appellant and his co‑accused Nazir Ahmed were put on trial before the learned Additional Sessions Judge, Jahang, who, after framing of the charge‑sheet, recording of such evidence as the prosecution wished to produce before him, the statement of the accused under section 342, Cr.P.C., found both the accused guilty for the murder of Yousuf deceased and, vide his judgment dated 4‑3‑1986, convicted them under section 302/34, P.P.C. and sentenced Manzoor appellant to death and a fine of Rs.10,000 or in default one year R.I. plus Rs.10,000 as compensation under section 544‑A, Cr.P.C. payable to the heirs of the deceased or in default further one year R.I. and sentenced Nazir Ahmed (acquitted accused) to life imprisonment plus a fine of Rs.5,000 or in default six months' R.I. and also Rs.5,000 as compensation payable to the heirs of the deceased under section 544‑A, Cr.P.C. or six months further R.I. The benefit of section 382‑B, Cr.P.C. was also extended to Nazir Ahmed accused. Both the accused preferred a joint appeal before the High Court against their conviction and sentence which was disposed of through the impugned judgment whereby the appeal of the appellant was dismissed and that of Nazir Ahmed accepted and his conviction and sentence annulled. Hence the instant appeal through leave of the Court. We have heard Ch. Muhammad Akram, Advocate, for the appellant; Mr. S.M. Naeem, Advocate, for the State; and have perused the record of the case. The learned counsel for the appellant argued that there was inordinate delay in the lodging of the F.I.R.; that Nazir Ahmed, acquitted accused, had received five iniuries for which he, in his statement under section 342, Cr.P.C. charged Yousuf deceased and also admitted delivering Sota blows on the head of the deceased resulting in his death m the exercise of his right of private defence of person; that the prosecution story so far as it implicated Nazir Ahmed acquitted accused was not accepted and that on the same evidence the. appellant could not be legally convicted; and that, in any case, according to the dictum of this Court in case Syed Ali Bepari v. Nibaran Mollah and others (PLD 1962 Supreme Court 502) reiterated in a recent judgment of this Court in Fida Hussain v. The State (1992 SCMR 1513) the case of the appellant was covered under Exception 4 to section 300, P.P.C. and the conviction could only be under section 304 Part I, P:P.C. The learned State counsel, on the other hand, controverted the submissions of the learned counsel for the appellant and submitted that the occurrence was not the result of free‑fight or sudden fight but the appellant and his co‑accused after arming themselves with axe and stick went to the fields of the complainant to avenge the earlier incident of damage to their crop and attacked the deceased and delivered blow with the wrong side of the axe to the deceased on the most vital part of his body viz., his head resulting in his death and that the judgments cited were not applicable to the facts of the present case. We have anxiously considered the arguments of the learned counsel for the parties. According to the site plan Exh.PC the spot where the deceased was done to death is situated in square No.238 belonging to Muhammad Nazir. The medico‑legal report Exh.DC reveals that Nazir Ahmed co‑accused of the appellant received one incised' wound on the left side of his head caused by sharp‑edged weapon and four injuries with blunt means on different parts of his body. These injuries were not explained by the prosecution either in the F.I.R. or in the statements of prosecution witnesses. In the absence of any explanation by the complainant party as to how Nazir Ahmed accused came by his injuries when his presence on the spot is admitted by the prosecution, the explanation offered by the acquitted accused in his statement under section 342, Cr.P.C had to be given credence and the learned High Court extending him the benefit of doubt acquitted him. The matter, however, does not end here. Since both the accused are alleged to have participated in the incident and Nazir Ahmed, acquitted accused, admittedly is the sister's son of Manzoor appellant, the question requiring determination would be whether the appellant, in the circumstances, could avail of the benefit of the exercise of right of private defence of the person of Nazir Ahmed, his nephew, or not. According to section 97, P.P.C. every person has a right, subject to the restriction contained in section 99, P.P.C., to defend his own body, and the body of any other person, against any offence affecting human body, therefore, the appellant could legally defend the person of his nephew Nazir Ahmed as well. Only one blow is attributed to him but since it was inflicted on a vital part of the body therefore it can safely be held that he exceeded the right of private defence and his act is covered by Exception 2 to the section 300, P.P.C. No doubt, the prosecution has tried to separate the two incidents of rounding of cattle of the complainant party which had strayed into their fields and the actual occurrence, one in the morning and the other at Degarwela but we are convinced that the two incidents occurred at one and the same time, that is to say, on the catching hold of the cattle Muhammad Younis rushed to his house, informed Muhammad Yousuf deceased, who accompanied him to the spot for the release of the cattle and on reaching the spot altercation ensued between the parties leading to a free‑fight between them and exchange of blows resulting in injuries to the deceased and Nazir Ahmed acquitted accused, without any premeditation and in the heat of passion upon a sudden quarrel. The case of the appellant is, thus, fully covered by Exception 4 to section 300, P.P.C. as well. In view of our above conclusions, the observations of this Court in cases Syed Ali Bepari v. Nibaran Mollah (PLD 1962 Supreme Court 502) and Fida Hussain v. The State (1992 SCMR 1513) are fully attracted to the facts of the present case and the conviction of the appellant under section 302, P.P.C. has to be altered to one under section 304, Part I, P.P.C. Consequently, we partly allow this appeal, alter the conviction of the appellant from under section 302, P.P.C. to under section 304, Part 1, P.P.C. and sentence him to ten years' R.I. The fine of Rs.10,000 already imposed upon him is maintained but the amount of compensation is increased from Rs.10,000 to Rs.20,000 or in default one years' R.I. The benefit of section 382‑B, Cr.P.C. is also extended to the appellant. N.H.Q./M‑1769/S Order accordingly.