2003 P Cr (PLP)

This judgment will dispose of Criminal Appeal No. 1230 of 1998 filed by Muhammad Afzal, the appellant, who was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life and to pay compensation of Rs.20,000 in default six months' S.I. by learned Additional Sessions Judge, Toba Tek Singh. Criminal Revision No.128 of 1999 filed by the complainant for enhancement of sentence of the convict shall also be disposed of through this single judgment.

2. Briefly stated the facts of the case are that on 6-1-1995 at about 5-30 p.m. Mazhar Iqbal, Abdul Ghaffar and Abdul Sattar were coming to their house from their Ihata which was meant for keeping the cattle situated in Chak No.257/G.B. The house of Muhammad Afzal is situated opposite to the house of complainant. When the complainant party reached in front of their house, all of a sudden Muhammad Afzal armed with hatchet, Muhammad Aslam, Muhammad Akram, both armed with hockyes, Rehmat Ali, Muhammad Younas, both armed with Sotas, Muhammad Saleem armed with shot gun .12 bore and Mukhtar Ahmad armed with Sota emerged and launched assault upon the complainant party. The hatchet blow given by Muhammad Afzal landed on the left side of head of Sattar, Mukhtar also gave Sota blows on the person of Sattar, Muhammad Akram gave a hockey blow on the head of Abdul Ghaffar, Rehmat Ali gave a Sota blow on the left shoulder of Mazhar Iqbal, the complainant, on alarm Abdul Ghani, and Azhar Iqbal came out of the house. All the three accused namely Muhammad Younas, Muhammad Aslam and Mukhtar Ahmed assaulted them, Muhammad Aslam gave three successive blows with hockey on the person of Abdul Ghani hitting on leg and face, Mukhtar also gave hockey blows on the person of Azhar Iqbal, the people on alarm gathered and got released the victims, in this process one Mst. Shahnaz was also injured apart from injuries on the persons of Muhammad Aslam, Muhammad Akram and Muhammad Afzal. The motive alleged was that on 6-1-1995 at about 4 p.m. Muhammad Afzal accused passed tractor trolly near the door of the house of the complainant, who was asked by mother of the complainant not to pass the tractor trolly from that place as the tank of water would be demolished which resulted into altercation between Muhammad Afzal and mother of the complainant. The mother of the complainant abused Muhammad Afzal whereupon Muhammad Afzal went away giving threats and abuses. The motive alleged was that Mazhar Iqbal had given evidence, against Muhammad Younas accused in case F.I.R. No.324 of 1994 under section 324, P.P.C. for which the accused had nourished grudge. The complainant also lodged F.I.R. with police. As a result of the investigation, Mukhtar Ahmad, Muhammad Saleem, Muhammad Younas and Rehmat Ali accused were got discharged. From the place of occurrence, blood-stained earth was taken into possession vide memo. Exh.C.W.8/1. Muhammad Aslam while in custody got recovered hockey which was taken into possession vide memo. Exh.C.W.6/1.

3. At the trial, the prosecution in order to prove its case produced five persons as P.Ws. while 18 witnesses were examined as Court witnesses. After .that statements of the accused were recorded under section 342, Cr.P.C. in which they pleaded innocence. However, after conclusion of the trial, the present appellant was convicted and sentenced as stated above.

4. Learned counsel for the appellant in support of this appeal submits that it was a case of right of self-defence in all 7 accused were named in the F.I.R. four namely Rehmat, Younas, Mukhtar and Saleem were acquitted by the trial Court; Muhammad Akram and Muhammad Aslam convicts were awarded six months' R.I. by the trial Court; injuries on the persons of the present appellant, Muhammad Akram, Muhammad Aslam and Shahnaz Bibi were not explained in the F.I.R.; some of the injuries on the person of the appellant were on his head; the appellant had also received fire-arm injury in the occurrence; the complainant had filed a private complaint as the police had declared Rehmat, Muhammad Younas, Mukhtar and Saleem innocent and got them discharged, in the complaint, passing remarks were given to the effect that from the side of the appellant, some persons were also injured alongwith Shahnaz Bibi who was passing nearby the place of occurrence; no hatchets was recovered; motive in this case was with the complainant party and not with the appellant; in this regard, learned counsel has read before me the examination-in-chief of Mst. Umatul Hafeez, the mother of the deceased to prove that the complainant party was the aggressor; the F.I.R. was delayed without any explanation while on the other hand, injured persons from the side of the appellant including the appellant were examined within 2 hours; the injuries on the person of Muhammad Aslam, convict were of serious nature; all the injured persons from the side 'of the appellant were admitted in hospital and that in nutshell the prosecution has miserably failed to prove its case against the appellant. Concluding his submissions, learned counsel submits that the appellant was arrested on 6-2-1995 and remained in judicial lock-up for 22 months, then was allowed bail and for the last 4 years he is behind the bars. According to learned counsel in the facts and circumstances of the case, the period which the appellant had remained in jail would be sufficient to meet the ends of justice.

5. Learned counsel for the State assisted by learned counsel for the complainant submits that the appellant in his statement under section 342, Cr.P.C. has not taken the plea of right of self-defence, the appellant and his-co-accused while armed with lethal weapons committed the murder of one innocent person and caused injuries to three P. Ws. in fact local M.N.A. was siding with the appellant party and due to his influence, the police discharged the three accused of the appellant; both support the judgment of the trial Court.

6. I have heard learned counsel for the parties and have gone through the record with their able assistance. It is a case of two versions: one put forward by the appellant and the other introduced by the complainant. No doubt the appellant had not taken the specific plea of self-defence in his statement under section 342, Cr.P.C. but the fact remains that three persons from the side of the appellant including the appellant were seriously injured. There were 7 injuries on the person or Muhammad Aslam, 7 on the person of Muhammad Akram and five on the person of Muhammad Afzal, appellant. One injury on the person or Muhammad Aslam, convict was serious in nature. One injury on the person of Muhammad Afzal, appellant was with fire-arm. Seen from all the angles, the injuries on the persons of Muhammad Afzal, appellant. Muhammad Akram and Muhammad Aslam convicts were suppressed by the prosecution. Muhammad Akram and Muhammad Aslam, both injured were convicted and sentenced to undergo R.I. six months. Both the parties have not come to the Court with clean hands and they have suppressed the real facts. As a sequel of the above discussion, it can safely be held that the appellant and the other convicts acted in right of self-defence, so case of the appellant is covered by the provisions of section 302(c), P.P.C. and not under section 302(b), P.P.C. Accordingly conviction of the appellant is altered from section 302(b), P.P.C. to one under section 302(c), P.P.C. and he is sentenced to undergo R.I. for fourteen (14) years with the benefit of section 382-B, Cr.P.C. The amount of compensation is set aside as in to a case of self-defence or grave and sudden provocation. compensation is not to be awarded. Muhammad Afzal, appellant is in jai and he shall be released forthwith, if not required to be detained in any other case. Criminal Revision No. 128 of 1999 filed by the complainant for enhancement of sentence is dismissed. H.B.T./M-1824/L Order accordingly.