1985 PLP 766 (MLD)

The same day the doctor also examined Siddiq Masih, accused, and found "an incised wound 2 " x 1" x depth not probed right side upper part of pelvis." The injury was kept under observation and x-ray of the pelvis was advised. He was admitted in the hospital. The injury was later declared simple.

4. P.W. 14 Fateh Khan, A.S.I. was on Gasht duty in the Grain Market, where he received information., about the occurrence. He went to the hospital. P.W. Mst. Sharifan made statement Exh. P.G. before him at 9-38 a.m., on the basis of which formal F.I.R. Exh. P.G/1 was registered at Police Station City Sialkot at 9-50 a.m. After preparing the necessary documents, the A.S.I. sent the dead body for its post -mortem examination. Thereafter, he went to the place of occurrence, and took into possession blood-stained earth. The same day, he arrested Siddique Masih, accused, whose blood-stained shirt P.6 and Chadar P.7 were got removed, taken into possession and made into a sealed parcel vide memo. Exh. P.M., attested by P.W.7 Rafiq Masih and Salim Masih (given up as unnecessary).

5. On the following day, P.W. 12 Dr. Muhammad Younus Sheikh, Medical Officer, Allama Iqbal Memorial Hospital, Sialkot, held the autopsy and found the following injuries on Boota Masih's dead body:- (1) Three abrasions each of size 1 " x 3/4" on the left side of the chest. (2) Incised wound 3/4" x " on left upper chest near the nipple. (3) Incised wound 3/4" x " front side of left lower chest. (4) Incised wound 1 " x " anterior surface of the left thigh. (5) Lacerated wound on the right thumb 1" x ". (6) Abrasion on the left knee joint and right elbow 2" x 1" and 1" Death occurred due to shock and haemorrhage caused by injuries Nos. 2 and 3 which damaged the left lung and the heart.

6. On 2-4-1980 Siddiq Masih in custody led to the recovery of Churri P.4 from inside the court-yard of his house, from where it was dug out, taken into possession and made into a sealed parcel, vide memo. Exh. P.F. attested by P.W.8 Nazar Masih and Rehmat Sohail (given up as unnecessary). On 30-4-1980, Ghulam Masih, accused, was arrested by P.W.4. Atta Muhammad, A.S.I. The investigation was thus completed.

7. At the trial, both accused denied guilt. Explaining the case against him, Siddiq Masih made the following statement:- "I am innocent. The fact of the matter is that the children were playing in the common park. They were making noise. I also happened to be present over there at that time. Boota Masih, deceased, objected to the making 'of noise by children and reprimanded them as well as slapped some of them. -The children got flared up and they threw brick bats on him. I only intervened to persuade Boota Masih deceased not to quarrel with the children. He got infuriated and attacked me with a Churri from behind. He caused me an injury on my thigh. I tried hard to dissuade him from attacking me further, but he persisted. I apprehended immediate death at his hand. I had a small knife in my pocket with which I caused injuries to him in self-defence. He was taken to the hospital in an injured condition by Farhad Wasim, Sohail and others. I myself proceeded to the police post and apprised the police of this incident but the police refused to record my statement in collusion with the complainant party." According to Ghulam Masih, he had been implicated because he was a first cousin of Siddiq Masih accused. Both accused desired to produce evidence in defence, but later they did not do so, instead they made statements to the effect that their defence witnesses had been pressurised by the complainant, therefore, they world not like to produce any defence.

8. Relying on the evidence of the eye-witnesses and the recovery of incriminating articles from Siddiq Masih, trial Court came to the conclusion that the prosecution case was satisfactorily proved against both the accused. It, however, acquitted the accused on the charge under section 324, P.P.C. for the reason that Mst. Sharifan alone mentioned about the injury to her which she claimed to have suffered while intervening.

9. Criticising trial Court's finding, learned counsel for the appellant contended that in order to put up a case of a premeditated attack, the prosecution has split the occurrence into two separate incidents, whereas it was one occurrence and in that too the deceased first attacked Siddique Masih, appellant, with a Churri and the appellant acted in defence. In support of this submission, learned counsel argued that the eye-witnesses have not explained the sharp-edged weapon injury suffered by the appellant. Moreover, the Investigating Officer admitted that Siddiq Masih, appellant, had come to police post first but he arrested him. True, the eye-witnesses have concealed the injury suffered by Siddiq, appellant, but we find that he was examined by the Medical Officer on the day of occurrence. There is also a glaring discrepancy A in the statement of the Investigating Officer and the note which he recorded at the foot of the First Information Report (i.e. Karwai Police) regarding the appearance of Siddiq Masih, appellant, at the police post soon after the occurrence. According to this note, the A.S.I. received information about the occurrence while he was on Gasht duty in the Grain Market. It was from there that he proceeded to the hospital; whereas at the trial, he said that it was Siddiq Masih, appellant, who had appeared before him at the police post and thereafter, he went to the hospital. The A.S.I. was declared hostile and cross-examined at the trial, but this did not improve the prosecution case. On the other hand, the statement of the A.S.I. that he received information of the occurrence from the accused, is supported by the fact that the accused was medically examined on the day of occurrence, before the injured B witness was examined by the doctor. The appellant, however, also stated that he went to the police post on his own. The question for determination would be that even if it be believe; that Siddiq Masih, appellant, was the first to give information to the police and the complainant party made no effort to make a report, would these circum stances per se make out a case for the exercise of right of self-defence. True, the prosecution witnesses have concealed appellant's injury which would show their interest in the deceased, but, on the other hand, we find that except for the bare statement of Siddiq Masih, appellant: there is nothing in the evidence of this case to indicate that some children were involved in the occurrence and that these children had also thrown brick-bats at the deceased. In all probability, the occurrence was one transaction which took place when the deceased stopped the, accused from playing in front of his house, upon which the fight ensued in which both Siddiq Masih and Boota Masih (deceased) inflicted injuries to each other. Since Boota Masih (deceased) also appeared to have been armed with a sharp-edged weapon, it would be highly improbable that Ghulam Masih had held him in a Jhappa. Moreover, he also does not bear any injury. Giving him the benefit of doubt, we acquit him. He shall be released forthwith, if not required in any other case.

10. In so far as the case of Siddiq Masih is concerned, for the reasons giving earlier, we alter his conviction to section 304, Part I, P.P.C. and sentence him to 7 years, R.I. The sentence of fine is reduced to Rs.3,000 in default to undergo six months, R.I. further. Fine if realised shall be paid to the heirs of the deceased. He is also given the benefit of section 382(b), Cr.P.C. The appeal is accepted to this extent. Death sentence is not confirmed. S.A. Appeal partly accepted.