1993 P Cr (PLP)

4. Muhammad Mansha (P.W.1) the identifier of the dead body of Muhammad Waris at the time of autopsy; Shaukat Ali F.C. (P.W.2), F.C. Gul Sher (P.W.3), A.S.I. Mushtaq Ahmad (P.W.5), Siraj Din Patwari (P.W.4) and Muhammad Ashraf (P.W.6) were the formal witnesses.

5. Dr. Abdul Rahim Arain (P.W.7) had medically examined Muhammad Waris when he was in semi-conscious state and Muhammad Afzal P.W., finding three contused wounds on the head of the former and three injuries on the person of the latter, out of which two were contused wounds located on his head and one was a contusion on the right leg.

6. Dr. Muhammad Salim Akhtar (P.W.10) had carried out the autopsy of Muhammad Waris (deceased) and noticed five stitched wounds on the head. On internal examination he had found temporal parietal and occipital bones fractured and a piece of skull bone had been removed. In his opinion, out of five injuries, three were caused by a blunt weapon and two by a sharp-edged weapon, the tatter probably due to surgical operation and they were sufficient to cause death in the ordinary course of nature. He proved the post-mortem report.

7. Ghulam Qadir complainant (P.W.8), Muhammad Afzal (P.W.9), Khan Muhammad (P.W.11) gave the eye-witness account. Their testimony finds reflection in the above narration of the prosecution case. The last witness was S.I. Nazir Ahmad (P.W.12). He gave the details of the investigation.

8. The appellants and their acquitted co-accused, while examined under section 342, Cr.P.C. denied all the incriminating circumstances figuring against them in prosecution case. Rehmat Ali alias Rehma appellant, however, admitting his participation in the occurrence, stated that on the day of occurrence his bullock went stray and it was rounded up by Muhammad Waris (deceased) and Muhammad Afzal P.W. According to him, he went to their Behak for getting it back and entreated them for its return, but Muhammad Afzal P.W. started abusing him and then both the brothers started causing him injuries. He stated that apprehending danger to his life, he caused them injuries with the blunt side of the hatchet in the exercise of his right of self defence. He examined Dr. Khalid Yazdani Sheikh (D: VV.1), who gave the following details of his injuries:-- (1) Contused wound 2 c.m. x 0.5 c.m. x bone deep on the left side of head 9 c.m. above to the left ear. (2) A bruise 6 c.m. x 2 c.m. on the left shoulder. (3) A bruise 7 c.m. x 2 c.m. on the outer side of left upper arm. (4) A bruise 14 c.m. x 3 c.m. on the back of left forearm. (5) An abrasion 7 c.m. x 3 c.m. on the back of right forearm. (6) Swelling 4 c.m. x 3 c.m. on the right thumb. (7) Swelling 5 c.m. x 4 c.m. on the nose.

9. On the conclusion of the trial, the learned Judge, vide his judgment now under challenge, convicted and sentenced the appellants in the manner aforesaid after acquitting their co-accused on benefit of doubt and aggrieved by, it, the former had come up in appeal.

10. It is argued on behalf of the appellants that on the same evidence two of their co-accused were acquitted and in any case the learned trial Judge did not believe the presence of Ghulam Qadir complainant (P.W.8) and Khan Muhammad (P.Wll) at the time of occurrence and these findings in fact undermined the prosecution case. According to the learned counsel, the presence of Muhammad Afzal P.W. was no doubt believed but he resorted to exaggeration by falsely implicating Shan Muhammad alias Shana and Ilyas appellants alongwith Rehmat Ali alias Rehma appellant merely on account of their relationship with him. He is of the view that there was no previous enmity between the parties and the mishap resulting in the death of Muhammad Waris occurred as a result of sudden quarrel between them emanating from the controversy over the tethering of Rehma's bullock by Muhammad Waris (deceased) and his brother Muhammad Afzal P.W. and his demanding its return. In his opinion, Rehma appellant had, at the most, committed an offence under section 304, Part II as he had exceeded his right of private defence when he was attacked by his opponents. He referred to his injuries., mentioned in the medico-legal report.

11. So far as Shan Muhammad alias Shana and Ilyas appellants are concerned, the possibility of their false implication on account of their relationship with Rehma appellant cannot be excluded and keeping in view-the safe administration of justice they are entitled to the benefit of doubt. Theirl appeal is, therefore, accepted and they are acquitted of both the charges.

12. So far as Rehmat Ali alias Rehma appellant is concerned, he admitted his participation in the occurrence and pleaded his self-defence. No doubt Dr. Khalid Yazdani Sheikh (D.W.1) proved seven injuries on his person but all of them were bruises, swellings and an abrasion located on the non-vital part of his body except a contusion wound of a small dimension. These injuries did not give him the right of self-defence on the land of complainant party to cause the death of Muhammad Waris and injury to his brother Muhammad Afzal P.W. He went to their Dera armed with a hatchet in order to obtain forcible release of his impounded bullock, which was found damaging their crop. Armed with a formidable weapon like hatchet, he went there with a coercive design to retrieve his bullock at any cost and reaching there, instead of making some regretful overture for its release, entered into an altercation and then caused E fatal injuries to Muhammad Waris (deceased) and injuries to his brother Muhammad Afzal, who tried to rescue him. In these circumstances, no right of self-defence was available to him nor it was a sudden quarrel taking place on the heat of the moment. He was, therefore, rightly convicted under section 302, P.P.C. but leniently dealt with by the trial Court in the matter of sentence. He, in fact, deserves death penalty but in the absence of any revision or State appeal for the enhancement of his sentence, he is getting undue concession of life imprisonment for the murder of Muhammad Waris (deceased).

13. In view of the above, the appeal of Rehmat Ali alias Rehma appellant is dismissed. Being on bail, a copy of this judgment shall be sent to the learned District Magistrate, Sheikhupura, who shall cause his arrest and send him to the prison for serving out his remaining sentence without any benefit of section 382-B, Cr.P.C. N.H.Q./R-58/L Order accordingly.