1985 P Cr (PLP)

The motive was stated to be that about four months before t occurrence, Muhammad, a husband of the sister of Allah Ditta accused was murdered for which Bashir and Latif brothers of Nazir Ahm complainant alongwith others were challaned. Nazim deceased was pursuing the pending murder case against his uncles to the annoyance of the accused. Nazir Ahmad leaving the dead body of his son went to Police Station, Sadar Sheikhupura and lodged the F.I.R. Exh. P.A.A (copy P.A.A/ii) at 7 p.m. on the same day.

3. After registration of the case the police undertook investigation. The Investigating Officer on 1‑8‑1973 took blood‑stained earth from near the dead bodies of Nazim deceased and Manzoor deceased vii memos. Exhs. C.B. and C.C. He also took in possession one empty cartridge C. 8 vide memo. Exh. C. D; a live cartridge C. 9 vide memos Exh. C.E. and a pistol C. 10 vide memo. Exh. C.E. and a pistol C.10 vide memo Exh. C.E. Allah Ditta accused was arrested on 2‑8‑1973. He produced blow stained hatchet C. 11 which was taken in possession vide memo. Exh C.G. All the above memos. were prepared by S.I. Muhammad Idrec C.W. 7 in the presence of Talib Hussain C.W.4 and Muhammad Iqb given up P.W. The hatchet C.11 was found to be stained with hums blood vide report of Chemical Examiner Exh. P.H. and that of Serologist, Exh. P.J. The post‑mortem on the dead body of Nazim was conducted t Dr. Anwar Mohy‑ud‑Din P.W.9 on 2‑8‑1973 at 2 p.m. He found furteen incised wounds on the dead body. All these wounds were on head face and parietal region. In the opinion of the Medical Officer, all the injuries i.e. 1 to 14 were sufficient to cause death in the ordinary course of nature. These injuries had been caused by sharp‑edged weapon and had cut the brain matter and arteries of brain at different places. The time between injuries and death was immediate and between deal and post‑mortem was about 20 to 22 hours. He also conducted post‑mortem on the dead body of Manzoor Ahmed on the same day at 3 p.m. and noted 9 fire‑arm wounds in a area of 2" x 1 and x each on, the front of chest at the uppE and middle part towards right side. There was blackening around the wound and right first rib underneath was fractured. The right lung was also punctured. This injury was the result of a fire shot and sufficient to cause death in the ordinary course of nature. The aim between injury and death was immediate and between death and post‑mortem was bout 20 to 22 hours. The investigation was still in progress when Nazir Ahmed complainant filed various application Exh. P. C. and P. D. before the higher authorities complaining that the police did not record the F. I. R. to his dictation and that some other accused namely Mansha, Ahmad, Gaman and Murad were omitted from the F.I.R. He also filed a criminal petition in this Court which was disposed of on 10‑8‑1973 vide Exh. P.E. with an observation that the complainant can file a private complaint. After this order Nazir Ahmad complainant filed a complaint Exh. P.F. on the basis of which Allah Ditta appellant alongwith Mansha, Ahmad, Gaman and Murad was tried for the murder of Nazim deceased. The complainant Nazir Ahmad changed his story given earlier in the F.I.R. Exh. P.A.A. He alleged in the complaint Exh. P.F. that on 1‑8‑1973 at Degarwela his son Nazim deceased was returning to village from Sheikhupura. Mst. Sharifan P.W. was with him. When Nazim deceased reached near the path leading to village Qaim Pur, suddenly six accused namely Manzoor Ahmad (since dead), Allah Ditta, Mansha, Ahmad, Gaman and Murad all armed with hatchets came there and attacked Nazim deceased who raised alarm which attracted Nazir Ahmad. complainant, Muhammad Hussain and Noor Muhammad P.Ws. who were sitting in the field of the complainant. The alarm also attracted Haider Shah and Anwar P.Ws. Thereafter Manzoor Hussain gave first hatchet blow to Nazim and then the remaining accused gave successive blows with hatchets to Nazim deceased. It was further stated in the complaint that when Nazim deceased was being given hatchet blows he fired from his pistol in self‑defence which hit Manzoor who fell down. It was further alleged in the complaint that leaving Mst. Sharifan, Muhammad Hussain and Noor Muhammad at the spot, he went to the Police Station to lodge the report. The Sub‑Inspector told him that he had already written the F.I.R. and that he (complainant) should sign the same. The complainant refused to sign but the Sub‑Inspector threatened him that he would implicate his (complainant) relatives in the case. The Sub‑Inspector further asked the complainant to affix his signature as the document pertained to the dead body. The challan as well as the complaint were sent up for trial before the learned Additional Sessions Judge, Sheikhupura. The proceedings were held in the complaint filed by Nazir Ahmad P.W.

4. During the trial the prosecution examined five witnesses in all. Nazir Ahmad P.W. 1, Muhammad Hussain P.W. 2, Haider Shah P.W. 3 and Mst. Sharifan P.W. 4 were examined as eye‑witnesses. Dr. Anwar Mohy‑ud‑Din P.W.5 conducted the post‑mortem examination on the two dead bodies as stated above. The Court also examined seven witnesses as Court witnesses. Talib Hussain C.W. 4 witnessed the recoveries of various articles from the spot and also the recovery of blood‑stained hatchet C.11 from the accused as given in detail above. Noor Muhammad an eye‑witness named in the F.I.R. was examined as C.W.5. Muhammad Iqbal Patwari C.W.6 prepared site plan and Muhammad Idrees Sub‑Inspector C.W.7 investigated the case. The evidence of other Court witnesses who were police officials was of formal nature. The accused when examined under section 342, Cr.P.C. denied the charge and pleaded innocence. Allah Ditta appellant denied his presence at the spot. He denied the recovery of hatchet C.11 and pleaded that he has been falsely involved in this case on account of his brother Manzoor deceased. Ahmad accused examined only two witnesses in defence. Ghulam Hussain Qureshi D.W. I and Sh. Khalil Hasan Assistant Director Intelligence Bureau D.W. 2 stated that they had partly investigated the case and had found the story contained in the F.I.R. to be true. The learned Additional Sessions Judge vide impugned judgment acquitted Mansha, Ahmad, Gaman and Murad accused. He placed reliance on the story narrated in the F.I.R. which was supported by the evidence of motive and the recovery of blood‑stained hatchet C.11 and convicted Allah Ditta accused as stated above.

5. I have gone through the record of this case with the assistance of the learned counsel for the appellant. It has been contended on behalf of Allah Ditta appellant that the recovery of hatchet C .11 was not reliable; that Nazim deceased was killed by Manzoor accused (since dead) after Nazim deceased had attacked him; and that Allah Ditta appellant acted under provocation to save his brother and also in self‑defence. I have considered these arguments on behalf of the appellant. The occurrence is not disputed by the learned counsel for the appellant at the bar. It was argued by him that Manzoor (since dead) had lodged the F.I.R. against Bashir and Latif etc. for the murder of Muhammad, husband of his sister. He was as such pursuing the said murder case against the uncle of Nazim deceased which was not appreciated by Nazim deceased. It was on this account that Nazim deceased initiated an attack on Manzoor and Allah Ditta who acted in the right of his private defence. I have considered the above arguments. According to the medical evidence, Nazim deceased received 14 incised wounds or) his person. All these injuries were fatal. The time between injuries and his death was immediate. Similarly Manzoor received gunfire injuries on his person from a close range and the time between the injuries and his death was also immediate. This means that neither Nazim deceased nor Manzoor (since dead) could cause injuries to each other after receiving injuries on their own persons. It, therefore, appears that Nazim deceased fired a shot at Manzoor (since dead) before receiving any injury on his person. It was, therefore, Nazim deceased who initiated the fight at the time of present occurrence. The Investigating Officer recovered pistol from the spot which belonged to Nazim deceased according to both the versions of prosecution. He also took in possession one crime empty and other live cartridge from the spot. This evidence indicates that the deceased had fired one shot and was about to reload the pistol with the live cartridge when Allah Ditta accused apprehending that he may also not be fired at, caused injuries with hatchet to Nazim deceased apprehending a fire from however, in my view he exceeded his right of private defence by inflicting 14 fatal blows to Nazim deceased.

6. I am not prepared to accept the argument that Manzoor (since dead) caused two or three injuries to Nazim deceased who fired at Manzoor and that Allah Ditta accused was not present at the spot. This contention is belied by the medical evidence and cannot, therefore, be accepted. The recovery of hatchet C .11 was witnessed by Talib Hussain C.W. 4 who had no enmity with the accused or relationship with the deceased. The learned counsel for the appellant argued that according to Talib Hussain C.W. He had joined investigation on the morning of 1‑8‑1973, whereas the occurrence took place on 1‑8‑1973 at Degarwela. It was, therefore, submitted that this witness could not be relied upon. I have gone through the statement of this witness. I am of the view that the word "morning" has been stated by this witness on account of inadvertence. He joined investigation on 1‑8‑1973 when various articles were collected from the spot and also on 2‑8‑1973 when the hatchet was produced by the accused. There was no infirmity in his evidence regarding the recovery of the hatchet. I, therefore, find him a reliable witness. So far as Muhammad Idrees Sub‑Inspector is concerned, he no doubt stated in his examination‑in‑chief that he had picked up the hatchet C. 11 from the spot but later he corrected his said statement and stated that hatchet C.11 was produced by the accused on 2‑8‑1973. In my opinion, the recovery of hatchet has been fully proved by the prosecution.

7. In view of the above discussion, this appeal fails. However, the accused is convicted under section 304 (I), P. P. C. for exceeding his right of self‑defence and sentenced to suffer 10 years' R.I. The sentence of fine of Rs.2,000 is maintained. If the fine is not paid the accused will undergo further R.I. for one year. If the fine is recovered from the accused, a sum of Rs.1,500 will be paid to the heirs of Nazim deceased.

8. The appellant Allah Ditta is on bail he will surrender to the concerned authorities to undergo his unexpired sentence.

9. In view of the fact that the accused inflicted large number of injuries on the person of the deceased, I am not inclined to allow him benefit of section 382‑B, Cr.P.C. M. Y. H. Appeal dismissed.