1976 P Cr (PLP)

JAVID IQBAL, J.‑

Falak Sher, aged 24 years, his brother Muhammad Ali, aged 22 years and their father Khan Muhammad son of Sultan Muhammad, aged 50 years, have been convicted under section 302/34, P. P. C. for the murder of Muhammad Ramzan, and Falak Sher was sentenced to death plus fine of Rs. 1,000 or in default to undergo one year R.I. whereas Muhammad Ali and Khan Muhammad were sentenced to imprisonment for life plus fine of Rs. 1,000 each or in default to undergo one year R. I. All the three were also convicted under section 307‑34, P. P. C. for murderous assault on Ghulam Muhammad (P. W. 7) and Muhammad Nawaz (P. W. 9) and each of them was sentenced to imprisonment for life. The judgment has been passed against them by the Additional Sessions Judge, Multan, on the 31st of October, 1974. The appeal of the convicts as well as reference for the confirmation of death sentence awarded to Falak Sher are being taken up and disposed of together by this judgment.

2. The occurrence took place on the 23rd of November, 1972, at Mograbwela in Chak No. 47/15‑L, at a distance of four miles from Police Station, Mian Caunnu. F. I. R. (Exh. P. A) was lodged by injured Muhammad Nawaz (P. W. 9), brother‑in‑law (Sala) of the deceased on the 24th of November, 1972, at 9‑15 a. m. and it was recorded at /the Police Station by Muhammad Azam A. S. 1. (P. W. 10).

3. The motive for crime as stated in the F. I. R. is that Khan Muhammad appellant had removed chaff from the Dhari of the complainant party and a complaint was made on this account through Manak (P. W. 6), village chaukidar, by them to Khan Muhammad appellant, which was resented. The other motive is that 7/8 years prior to the occurrence Mst. Khatoon daughter of Khan Muhammad appellant was married by her maternal uncle Noor Muhammad (not produced) to some one in Mauza Mulapur but one month before the occurrence she was out by her husband on the charge of immorality and, therefore, her uncle Noor Muhammad had brought her to the house of her father Khan Muhammad appellant. It is stated that the accused party suspected that Mst. Khatoon had been discarded at the instance of the complainant party. Thus, it appears that me parties were inimical to each other.

4. The prosecution has produced three eye‑witnesses of the occurrence, namely, injured Ghulam Muhammad (P. W.7) who Is brother‑in‑law of Muhammad Nawaz P. W. and brother of the deceased; Ghulam Haider (P.W.8), a chance witness, and injured Muhammad Nawaz (P. W. 9) brother‑in‑law (Sala) of the deceased as well as Ghulam Muhammad P. W. Noor Muhammad son of Mamand although cited in the F. I. R. as an eye‑witness was not produced whereas Noor Muhammad son of Sultan likewise cited us given up as unnecessary. It may be noted that out of three, eye-witness produced two ark closely related to the deceased as well as inter se and have themselves sustained injuries in course of the occurrence whereas the third is a chance witness.

5. Falak Sher and Khan Muhammad appellants were arrested on the 1st of December, 1972, by Muhammad Azam A. S. I. (P. W. 10) whereas Muhammad Ali appellant was arrested on the 30th of December, 1972, lay tree same police officer. Dang P. 1 wag recovered at the instance of Khan Muhammad appellant and was taken into possession vide memo Exh. P. B., dated the 1st of December, 1972. Kulhara P. 2 was recovered at the instance of Falak Sher appellant and taken into possession vide memo Exh. P. C., dated the 1st of December, 1972 and Kulhara P.3 was recovered at the instance of Muhammad Ali appellant and taken into possession vide memo Exh. P. D. dated the 1st of January, 1973. These three recoveries have been witnessed by Hassan Bakhsh (not produced), Ghulam Muhammad son of Ahmad Bakhah (P. W. 4) and Muhammad Azam A. S. I. (P. W. A. But it may be pointed out that the recoveries in this cast are of no consequence as these were not blood‑stained and were, therefore, not sent for chemical examination. The case of the prosecution is based on ocular testimony, the motive and the medical evidence.

6. The appellants in their statements before the trial Court gave their own version of the occurrence. Falak Sher appellant stated that he was not present in the village on the day of occurrence and that he was falsely implicated due to enmity of the P. Ws. Muhammad Ali appellant stated before the Committing Magistrate that he was not present in the Chak at the time of occurrence but was employed in the armed forces and that he was involved in this case due to enmity of the P. Ws. with his father, However, before the trial Court he stated that he and his father were sitting in their courtyard when Manak P. W. conveyed to them the complaint of Muhammad Ramzan deceased. His father gave a harsh reply to be conveyed to the deceased. After a few minutes the deceased accompanied by Ghulam Muhammad and Muhammad Nawaz P. Ws. and armed with sticks entered their haveli in a threatening manner. As they were the enemies of the accused party and were armed with sticks, the accused side apprehended that they would either kill them or cause grievous injuries to them. Thus, they picked up sods and a hatchet lying in the courtyard and inflicted injuries to the complainant side in self‑defence. Khan Muhammad appellant stated that on the day of occurrence the deceased, Muhammad Nawaz and Ghulam Muhammad P. Ws. suspecting that he had stolen their chaff trespassed into his haveli abusing him and attacking him. On his alarm 2/3 persons from the neighbour?hood came to his assistance. The deceased and the two P. Ws. were given injuries in the courtyard so that they could be thrown out there from. This statement was made by him before the Committing Magistrate. Further at the trial stage he stated that he and his son Muhammad Ali appellant caused injuries to the complainant side in self‑defence.

7. In the F. I. R. the occurrence is reported to have taken place in the following manner ; on the fateful day Muhammad Nawaz (P. W. 9) was present in his house. He came out of his house on hearing alarm. He noticed Khan Muhammad appellant armed with a dang, Falak Sher appellant armed with a kulhara and Muhammad Ali appellant armed with a hatchet present there and they were causing injuries to Muhammad Ramzan deceased brother‑in‑law of Muhammad Nawaz P. W. Thereupon, Muhammad Nawaz as well as Ghulam Muhammad P. Ws. attempted to rescue him but Khan Muhammad appellant gave dang blows to Muhammad Nawaz P. W. which fell on his head, left shoulder and right arm. Ghulam Muhammad (P. W. 7) was given hatchet blows by Muhammad Ali appellant and dung blows by Khan Muhammad appellant. On their alarm Ghulam Haider (P. W. 8), Noor Muhammad son of Mamand and Noor Muhammad son of Sultan (both not produced) were attracted to the scene of crime and rescued them from the accused party. Muhammad Ramzan deceased as well as Ghulam Muhammad P. W. were admitted in the hospital, Mian Channu whereas Muhammad Nawaz P. W. went to lodge the report with the police. It may be pointed out at this stage that according to the account given in the F.I.R. all the three appellants, namely. Khan Muhammad, Falak Sher and Muhammad Ali are stated to have caused injuries to Muhammad Ramzan deceased with their respective weapons. However, Khan Muhammad appellant is stated to have caused injuries to Muhammad Nawaz P. W. on his head, left shoulder and right arm whereas both Muhammad Ali and Khan Muhammad appellants are stated to have caused injuries to Ghulam Muhammad P. W.

8. Dr. Abdur Rashid (P. W. 1) medically examined the deceased while be was still alive in the hospital at 8‑59 a. m. on the 24th of November, 1972, and found on his person the following injuries : (1) Heamatoma in an area of 6' x 5' on the left side of bead, (2) contusion Mark 3" x 1" on the left side of check. He died on the 25th of November, 1972, at f‑15 p. m. and the same medical officer conducted post‑mortem examination on the dead body of the deceased on the 26th of November, 1972, at 8‑30 a. m. He noticed the same two injuries on the person of the deceased. In his opinion death occurred on account of shock due to extensive fracture of skull caused by injury No. 1 which was sufficient to cause death in the ordinary course of nature in about two days. The injuries had been caused by a blunt weapon. Thus, from the medical evidence it appears that two injuries had been caused with a blunt weapon on the head and the cheek of the deceased. The question which would require determination is as to bow three persons differently armed would cause two injuries with a blunt weapon to a victim. On the 24th of November, 1972, the same medical officer medically examined Muhammad Nawaz P. W. and found on his person one contused wound on the left side of head and two abrasions on the left shoulder and left wrist. The injuries were simple and had been caused by a blunt weapon within 24 hours duration. On the same day he medically examined Ghulam Muhammad P. W. and found on his person two contused wounds on the left eye and right shoulder, a cut 2" x 1/2" as a result of which bone of cheek close to nozal bone of left side was completely out and two abrasions on the neck the cut injury was grievous and had been caused by a sharp‑edged weapon whereas the other were simple in nature and were caused by a blunt weapon within 24 hours duration.

9. We have heard learned counsel for both the sides and carefully perused the record. Learned counsel for the appellants first points out that Manak (P. W. 6) had supported the defence version. Manak P. W., who is the village chaukidar, and is not connected with either of the parties, had stated in the cross‑examination that after he had made the complaint to Khan Muhammad appellant, he told this witness that the deceased could do whatever he liked even if Khan Muhammad appellant had stolen his chaff. After five minutes, he heard noise and saw that the deceased, Muhammad Nawaz and Ghulam Muhammad P. Ws, were present at the door of the appellants and they were being pushed back by the people present there. At that time the accused party were present in their courtyard. He saw sticks in the hands of the deceased, Muhammad Nawaz and Ghulam Muhammad P. Ws. Similarly the appellants were also armed with sticks. This witness further stated that he did not see them fighting. He saw the deceased, Muhammad Nawaz, and Ghulam Muhammad P. Ws. coming out of the house of the accused party with sticks in their hands. The argument of learned counsel is that the complainant side armed with sticks trespassed into the house of the appellants and since they were in a threatening posture, the appellants caused injuries to them in self‑defence. It was then argued that F. I. R. was lodged in this case after considerable delay. The occurrence took place at Maghrabwela on the 23rd of November, 1972, and the Police Station was at a distance of only four miles. But the F.I.R. was lodged at 9‑15 am. on the 24th of November, 1972. The explanation for delay given by Muhammad Nawaz P. W., the first informant, was that it was a cold night and that, therefore, he lodged the F. I. R. on the following morning. It is submitted that the explanation for delay was not satisfactory and that in the meantime the complainant side made up a false story of they having been attacked by the appellants. It was next submitted that no blood‑stained earth was picked up in the present case. Therefore, the prosecution version as to the place of occurrence was doubtful and the defence version that the occurrence took place in the courtyard of the appellants was correct and should be accepted. It was further argued that the medical evidence indicated that there were two injuries on the person of the deceased, but it was stated in the F. I. R. that all the three appellants were causing injuries to the deceased. If that was so then there should have been at least three injuries on the person of the deceased. According to learned counsel Khan Muhammad and Muhammad Ali appellants had admitted participation in the occurrence and had stated that they acted in self‑defence whereas Falak Slier appellant had stated that he was not present in the village at the time of occurrence. The argument is that eye‑witnesses being interested and partisan, and therefore not reliable, the defence version that only two of the appellants, namely, Khan Muhammad and Muhammad Ali acted in Self-defence, should be accepted and Falak Sher appellant who was absent, should be acquitted. We have carefully examined the arguments advanced by learned counsel. The first question which requires determination is as to whether Falak Sher appellant was absent at the time of occurrence. Manak P. W. is admittedly an independent witness. He has not stated that Falak Sher appellant was not present in the courtyard of the accused party. On the contrary he had stated that all the appellants were present. In the F. I. R. it is only generally mentioned that Muhammad Nawaz P. W. saw the appellants causing injuries to the deceased. However, in the statements of the injured eye‑witnesses before the trial Court, it was stated that Falak Sher appellant inflicted injury on the head of the deceased with the wrong side of the kulhara and the deceased fell down. Then Khan Muhammad appellant gave dang blow to the deceased in the lying position. Thereafter, Muhammad Nawaz P. W. received tang blows at the hands of Khan Muhammad appellant on his head, shoulder and arm, and then Ghulam Muhammad P. W. was given hatchet blow on his face by Muhammad Ali appellant and Khan Muhammad appellant gave him dang blows. In our considered opinion the presence of Falak Sher appellant at the scene of crime is established as the statements of the eye‑witnesses in this respect are corroborated by the statement of Manak P. W. As for the delay in lodging the F. I. R., the explanation of Muhammad Nawaz P. W. is that due to cold weather and injuries on their person they could not take Muhammad Ramzan deceased (who was then in an injured condition) to the hospital during the night. This explanation is plausible because at that stage the P. Ws. did not expect that the deceased would eventually die of the injuries. In the F. I. R. the appellants were originally charged with offences under sections 307/326/34, P. P. C. and it was only on the death of the deceased that the charge was altered to section 302, P. P. C. It is indeed correct that no blood‑stained earth was picked up in this case in order to fix the venue of occurrence. According to the prosecution the deceased and the injured P. Ws. were attacked by the appellant in the street in front of the house of the deceased. But the defence version is that the deceased and the injured P.Ws. had gone armed with sticks to the house of the appellants and trespassed into their courtyard and the occurrence took place there. The site plan is not of much help as it was prepared in accordance with the instructions of the P. Ws. In our view the parties were inimical to one another. However, the immediate cause of occurrence was that the complainant party had suspected that their chaff' had been removed or stolen by Khan Muhammad appellant. Therefore, he sent Manak P. W. to the house of Khan Muhammad appellant in order to tell him that they suspected him. Khan Muhammad appellant, according to Manak P. W., gave him a rude reply as he denied the allegation as false. But in the meantime, it is probable that the deceased and the two injured P. Ws. came there armed with sticks. It in further probable that they Insisted on entering the courtyard of the accused party in order to prove their allegation by searching the house of Khan Muhammad appellant. The accused party who were also armed with sticks and were present in the courtyard pushed them back from the door of their courtyard and also caused injuries to the complainant party as they apprehended that if they did not do so, the complainant party may forcibly enter their courtyard in order to search their house. Thus, if it could be said that the appellants caused injuries to the deceased and the two injured P. Ws. in self‑defence then in our considered opinion they had exceeded their right of self‑defence. None of the appellants was injured at the hands of the complainant party. The complainant party bad suspected that their chaff had been stolen by the accused party and in order to satisfy themselves they wanted to enter the house of Khan Muhammad appellant. In the circumstances if the right of self‑defence was available to the accused party, it did not mean that they should inflict as many as ten injuries to the complainant party. As it has been already observed, in our view, the appellants had exceeded their right of self‑defence In the circumstances their convictions and sentences under section 302‑34 and 307‑34, P. P. C. were not proper and are accordingly set aside. Instead Falak Sher and Khan Muhammad appellants, are convicted under section 304 (11) read with section

34. P. P. C. and each of them is sentenced to seven years R. I. plus fine of Rs, 200 each or in default to undergo two months R. I. for causing the death of Muhammad Ramzan deceased. Muhammad Ali appellant is convicted under sec?tion 326, P. P. C. for causing grievous injury to Ghulam Muhammad P. W. and sentenced to four years R. I. plus fine of Rs. 100 or in default to undergo one month R. I. Muhammad Ali and Khan Muhammad appellants are also convicted under section 323, ". P.P.C. for causing simple injuries to Muhammad Nawaz and Ghulam Muhammad P. Ws. respectively and sentenced to one year R. I. each. These sentences shall run concurrently. The appeal is accepted to this extent.

10. Death sentence awarded to Falak Sher appellant is not confirmed. Order accordingly.