P L D 1988 Lahore 643 (PLP)

AFRASIAB KHAN, J.‑‑The appellant Rehman son of Muhammad aged 25 years was convicted under section 302, P.P..C. for the murder of Muhammad Arif aged about 22 years vide the judgment dated 12‑5‑1985 passed by the learned Additional Sessions Judge, Gujranwala and was sentenced to death plus a fine of Rs.15,000 and in default thereof to suffer three years' R.I. It was directed that if the amount of fine is recovered, half of the same shall be paid to the legal heirs of the deceased as compensation. By the same judgment, the learned trial Court acquitted Muhammad Yaqub, Bashir Ahmad,, Manzoor Ahmad, Shameer and Muhammad Sharif co‑accused. The appellant has challenged his conviction and sentence by filing this appeal. The proceedings regarding the confirmation of death sentence of the appellant are also before us. We propose to dispose of all these matters together by our consolidated judgment.

2. The case of the prosecution in brief is that the complainant Ahmad son of Bata is actually resident of village Garhalak, Police Station Qadirabad, District Gujrat and for the last about 4/5 years, he had come to live with his relatives in village Kot Daim. About 15/16 days ago, his cousin brother Muhammad Arif had cut firewood and collected the same at the Bela in the village. On the next day, Mst. Asia wife of Rehman (appellant) tried to carry away the cut wood whereupon Muhammad Arif reached the spot and he snatched the wood from her and also hurled abuses upon her. Mst. Asia went home and disclosed the incident to her husband on which' he went to the house of Muhammad Arif and abused and scolded him there. The complainant Ahmad intervened and patched up the matter. However, the appellant issued a serious threat that he will take revenge from Muhammad Arif of the insult meted out to his wife by him. On 24‑7‑1982 at about Degarwela the complainant was looking after his crop of chillies and one Nazira P.W.9 was also sitting with him, when Muhammad Arif came from the village and went towards the Bela passing through the Katcha path. Muhammad Bashir was sitting under a mango tree in his field near the Katcha path who on sight called for Muhammad Arif there. He went towards Muhammad Bashir. Suddenly from the field of millet, the appellant Rehman, Muhammad Yaqub, Muhammad Manzoor and Muhammad Sharif armed with sticks and Shameer armed with a hatchet came out shouting that Muhammad‑Arif should not go alive today. The complainant and Nazira P.W.9 reached the spot. The appellant inflicted a Sota blow on the head of Muhammad Arif. On the receipt of the injury he fell down on the ground whereupon Muhammad Yaqub gave successive stick blows on his person. Manzoor Ahmad also gave a stick blow to Muhammad Arif which landed on the left side of his ribs. The complainant and Nazira P.W.9 intervened to save Muhammad Arif whereupon the appellant gave a stick blow on his back. Muhammad Sharif inflicted blows on the person of Nazira on his head and back. The complainant snatched away the stick from the appellant and thereafter in the exercise of right of self‑defence gave blows on the legs and head of the appellant. Shameer inflicted a hatchet blow from its wrong. side which hit. on the, head of the complainant. Second blow was caused by him with the hatchet which landed on the right finger of his hand. Mst. Nooran, sister of Muhammad Arif reached the spot and she wanted to save the life of her brother and as such Bashir Ahmad gave stick blows on her arms and feet. Manzoor and Hayat P.Ws. witnessed the occurrence. The complainant Nazira, Mst. Nooran and Muhammad Arif in an injured condition were taken to Jalalpur Bhattian hospital where they were medically examined.

3. Muhammad Salim Butt SI/SHO P.W.12 investigated the case. He recorded the statement of Ahmad Exh.P.M. on which the formal F.I.R. Exh.P.M./1 was recorded by Allah Ditta Moharrir head Constable. The witness reached the hospital and made an application in order to enquire from the Doctor whether Muhammad Arif injured was fit to make a statement and on the application the Doctor opined vide the report Exh.P.F./l that he was unfit to‑make any statement. .On the next morning, he received the information of death of Muhammad Arif. The injury statement Exh.P.O. and inquest, report Exh.P.Q. of the deceased were prepared by the witness. The dead body of Muhammad Arif was sent for post‑mortem examination to mortuary under the care of Muhammad Mansha P.W.1 and Rafique, Constables. The spot was inspected by the witness. Rough site plan Exh.P.R of the place of occurrence was prepared by the witness. Last worn clothes of the deceased, Chadar P.1 and Kurta P.2 were taken into possession vide memo. Exh.P.A. The witness arrested all the accused on 28‑7‑1982. On 9‑8‑1982, Manzoor Ahmad accused led to the recovery of stick P.3 from his house which was taken into possession vide memo. Exh.P.H. On the same day, Muhammad Sharif accused led to the recovery of stick P.4 which was taken into possession vide memo. Exh.P.I. The same day, the appellant led to the recovery of blood stained Sota P.6 which was taken into possession vide memo. Exh.P.L.Shameer accused led to the recovery of blood‑stained hatchet P.5 which was taken. into possession vide memo. Exh.P.K. on the same day. All these recoveries were attested by Sultan and Allah Ditta P.Ws. The site plans Exh.PJ and Exh.PJ/1 the place of occurrence were got prepared from the Patwari by the witness. The reports of the Chemical Examiner and Serologist Ex,h.P.W. and Exh P.X. were found positive inasmuch as the Serologist opined that items No.1367/1 and 1367/2, Sota and hatchet respectively, were stained with human blood. Dr. Muhammad Zubair P.W.4 medically examined the complainant Ahmad P.W.8 on 24‑7‑1982 and found the following injuries on his person: of forehead on upper part. Lacerated wound 5 c.m. x 1 c.m. x bone deep on left side of forehead on upper part. (2)Incised wound 3 c.m. x c.m. x muscle deep on inner side of right index finger. (3)Contusion 12 c.m. x 2 c.m. on back of chest in middle. (4)Contusion 8, c. m. x 2 c.m. on' back of left side of the chest. (5)Contusion 14 c.m. x 2 c.m. on left forearm. Injury No.2 was caused . by sharp‑edged weapon and others were caused by blunt weapon. The duration of the injuries was 'within ix hours. All the injuries were declared simple. On the same day, the witness medically examined Nazira P.W.9 and found the following injuries on his person:‑ (1) Lacerated wound 3 c.m. x c.m. muscle deep on left side of head, 8 c.‑m. above left ear. (2) Contusion 7 c.m. x 2 c.m. on the back of left side of chest. Both the injuries were declared simple and caused by blunt weapon. The injuries were caused within a duration of six hours. On the same day, the witness medically examined Nooran wife of Nazira and found the following injuries on her person:‑ (1)Swelling on the left foot. (2)Complaint of pain on front of right side of chest. (3)Complaint of pain in left forearm. All the injuries were simple and caused by blunt weapon within the duration of six hours. Muhammad Arif deceased (at that time injured) was medically examined by the witness and following injuries were found on his person:‑ (1) Lacerated wound 1 c.m. x c.m. x skin deep on front of top of head. (2) Contusion 12 c.m. x 2 c.m. on front of right chest lower part oblique in direction. (3) Swelling 5 c.m. x 3 c.m. on front of left chest lower part. (4) welling of the neck. The swelling is increased due to difficulty in breathing. (5) Blunt injury abdomen. The injured was found unconscious since the time of injuries. He was vomiting blood material from the mouth. His condition was serious. The injuries were caused by blunt weapon. Dr. Muhammad Sadiq, Medical Officer, Civil Hospital', Hafizabad P.W.11 conducted the post‑mortem examination on the dead body of Muhammad Arif on 25‑7‑1982 at 4‑00 p.m. and found the following injuries on his person‑ (1) Abraded contusion 5 c.m. x 3 c.m on the top head in midline placed anterio posteriorly. (2) Contusion 14 c.m. x 2 c.m. on front chest right p art obliquely placed starting about mid‑chest, higher level in the left part and lower on right part chest. Crossing obliquely upper part of epigastrium in right region. (3) Contusion 7 c.m. x 3 c.m. on front and side of left part lower most region of the chest. There was no swelling of neck and no effect on the underlying tissues. The death in the opinion of the Doctor was due to injuries Nos.1, 2 and 3 which caused shock and haemorrhage. Injuries Nos.2 and 3 ‑were sufficient individually as well as collectively to cause death in the ordinary course of nature. All the injuries were caused by blunt weapon and were ante‑mortem. The probable time between injuries and death was within 24 hours and that between death and post‑mortem examination was 6 to 12 hours. The appellant was medically examined by Dr. Muhammad Zubair P.W.4 on 24‑7‑1982 and following injuries were found on his person:‑ (1) An incised wound 3 c.m. x c.m. on right side of head 8 c.m. above right ear. (2) Lacerated wound 2 c.m. x 1 c.m. muscle deep on front of right side of the head 11 c.m.. above right ear. (3) Contusion 6 c.m. x 2 c.m. on right shoulder. (4) Abrasion in an area of 1 c.m. x c.m. on its right shoulder. (5) Contusion 15 c.m. x 2 c.m. on the right arm. (6) Contusion 12 c.m. x 2 c.m. on front of right side of chest. (7) Contusion 7 c.m. x 3 c.m. on left side of the neck. (8) swelling of left lower leg ankle and foot. (9) Contusion 9 c.m. x 3 c.m. on left thigh on front. complaint of pain on the back of right leg, Pain and swelling of left hand fingers. According to the Doctor the, injury No.1 was caused by a sharp‑edged weapon whereas the rest were caused by blunt weapons. The injuries weapon whereas there injuries Nos. 1,and 8 were kept under observation. The other injuries were declared simple.

5. Eye‑witness account was given by the complainant AhmadP.W.8. Nazira P. W. 9 and .,Ast. Nooran P. W.

10. Ahmad P. W. 8 is the complainant. He is an injured witness. He gave the full description of the incident from beginning to the end. Nazira P.W‑.9 deposed in his evidence that the appellant Rehman chased the deceased Muhammad Arif and inflicted a stick blow which landed on his, head and on the receipt of the injury, he fell down on the ground. The appellant also inflicted a stick blow on the person of the complainant Ahmad which hit him on the back. Mst. Nooran although a sister of the deceased Muhammad Arif, disclosed in her evidence that she saw the appellant while inflicting stick blow which hit the deceased on his head.

6. The appellant while, making a statement under section 342, Cr.P.C. stated that he provided information to the police against the complainant Ahmad regarding the theft of fertilizer on which the complainant party was annoyed with him and they were in an ambush while he was on his way to the field. ‑He was inflicted number of injuries on his person with a stick and hatchet. In order to save his life, his well‑wishers caused injuries, to the complainant party and. thus, saved him.

7. Learned counsel for the appellant submitted that all the witnesses are closely related and they, therefore cannot be relied upon. Learned counsel submitted that F.I.R. was lodged after due deliberation and that the recovery of the weapon of offence (P.6) was of no consequence. Learned counsel forcefully submitted that the entire prosecution evidence has been disbelieved qua the five acquitted co-accused and as such the same set of evidence cannot at all be relied upon for the conviction and sentence of the appellant. Learned counsel stated that it is established that the prosecution version is false and that the defence version is proved to be true on the record. The learned State counsel has supported the conviction and sentence of the appellant.

8. We have heard the learned counsel for the parties and have perused the record. It is proved by the prosecution by medical evidence that the complainant Ahmad P.W.8 received as many as five injuries on his person. Injury No. 2 on his person was by a sharp‑edged weapon whereas the other injuries were caused by blunt weapon. Similarly, Nazira P.W.9 received two injuries by blunt weapon on his person. Mst. Nooran P.W.10 wife of Nazira P.W.9 also received three injuries in the occurrence. Thus, although the witnesses are related to the deceased but the fact that they are all injured their presence at the spot cannot be doubted. They have corroborated the prosecution version in its entirety. The appellant in his statement under. section 342, Cr.P.C. admitted his presence at the spot at the time of occurrence. He took the plea that his well‑wishers caused injuries to the complainant party in order to save his life. From the nature and number of injuries on both sides, it appears that both parties had . reached the spot in order to try their strength, duly armed, all of a sudden. Keeping in view the ocular account, the statement of the appellant, and the medical evidence, we have come to the conclusion that the appellant was also given number of injuries not explained by the prosecution. The question for determination is whether the appellant was justified in the' exercise of right of self‑defence, as claimed by him, to cause the death of Muhammad Arif. All injuries on his person were simple in nature. Injury No.1 by sharp‑edged weapon and No.2 by blunt weapon were on head. The remaining injuries by blunt weapon, were on non‑vital, parts of body. Arif deceased received three injuries on his. person which were individually and collectively fatal. This means that Rehman appellant exceeded his right of self -defence making him guilty of culpable homicide not amounting to murder punishable under section 304(l), P.P.C. and not under section 302, P.P.C. Accordingly, the conviction of the appellant is altered from section 302, O.P.C to section 304, Part 1, P.P.C. As a result of this, Rehman appellant is sentenced to suffer seven years' R.I. under section 304, Part 1, P.P.C. In the circumstances of this case, the sentence of fine is set aside. Benefit of section 382‑B, Cr.P.C. shall also be given to the appellant. The death sentence awarded to the appellant is not confirmed. This appeal is dismissed subject to above modification. M.A.K./R‑98/L Order accordingly.