1991 PLP 2437 (MLD)

5. To be a little more precise, A.S.I. Muhammad Mansha (P.W.1), F.C. Nasim Khan (P.W.2), H.C. Muhammad Yaseen (P.W.3), F.C. Muhammad Rafique (P.W.4), F.C. Aman Ullah (P.W.5), Inam Ali Shah (P.W.7) and Muhammad Hussain Record Keeper, Mayo Hospital (P.W.12) were the formal witnesses and their evidence needs no detailed discussion.

6. Muhammad Riaz son of Mahmood-ul-Hassan (P.W.6) and Muhammad Riaz complainant son of Inayat-Ullah (P.W.9) gave the eye-witness account as reflected in the above narration of the prosecution story.

7. Dr. Saeed Ahmad (P.W.8), who had conducted post-mortem examination on the deadbody of Muhammad Ejaz, proved the post-mortem report (Exh.F.s) and the diagram of injury (Exh.P.8/1), after giving the details of 12 injuries, out of which seven were scabbed abrasions, one on the nose tip, one on the front of neck, two on the right elbow, and one on the left elbow, while the remaining four were wounds in the abdominal region, one of them being a stitched wound besides one vene section wound on the lower part of the right leg. On dissection he found abdominal peritoneum stitched at two places and stomach at one place besides the terminal end of the small intestine. The cause of death, according to him, was the complication of injury No.2 which was a wound 2 c.m. long with scabbed margins obliquely placed 1 c.m. above and right to umblicus, with upper end joining injury No.1 on 5th c.m. below its upper angle. The duration between the injury and death was 5 to 7 days and between the death and post-mortem examination from 18th to 24 hours.

8. Muhammad Javaid (P.W.10) and Asad Mahboob (P.W.11) had witnessed the recovery of `chhuri' at the instance of Muhammad Arif alias Boodi co7accused and Muhammad Yaseen co-accused, respectively. They deposed accordingly. S.I. Bahadur Khan (P.W.13) gave the details of investigation, Dr. Muhammad Naeem Siddiqui (P.W.14) proved the operation notes as he had conducted the operation of the injured. The last witness was Dr. Munir Ahmad (P.W.15), he proved the medico-legal report of Muhammad Ejaz (Exh.P.M.).

9. Muhammad Nawaz alias Muhammad Shafi P.W. and Muhammad Arif P.W. were given up as unnecessary.

10. The appellant and their acquitted co-accused, while examined under section 342, Cr.P.C., denied the incriminating circumstances figuring against them in the prosecution evidence and alleged their false implication. Muhammad Ashiq appellant, however, admitting his participation, stated that on the day of occurrence, the deceased hurled an iron-weight on him which struck his mouth as a result of which his two teeth were broken and when he was about to throw another iron-weight, he apprehended grievous injury and picking up the `chhuri' from his `rehri', with which the deceased cleaned sugarcane, gave a blow with it to the deceased in self-defence. He stated that his co-accused, who were his real brothers, were not present. He examined Dr. Tahir Anees of D.H.Q. Bhakkar in his defence as (D.W.1). The doctor deposed that on 31-10-1985 when he was posted as Deputy Police Surgeon, Lahore, he had at 8-30 p.m. medically examined Muhammad Ashiq son of Shah Din who had been brought to him by F.C. Bashir Ahmad No.1835 of Police Station Mustafa Abad, Lahore and found his mid upper lip mucosa in the area of 2 x 1 c.m. congested lacerated and in a bluish colour. According to him, the injury had been caused a few days earlier with a blunt weapon and it was kept, under observation and referred to Dental Surgeon for opinion. He proved the M.L.R. (Exh.D.A.). In reply to a question of cross-examination, he stated that his injury was not likely to be caused by striking against a hard surface.

11. On the conclusion of the trial when the co-accused were acquitted, the appellant was convicted and sentenced in the manner aforesaid and aggrieved by the impugned judgment, he came up in appeal to this Court.

12. It was argued on behalf of the appellant that there was no truth in the prosecution story, particularly in its motive part, and for that reason it was dis?believed by the learned trial Judge. According to the learned counsel, the appellant had purchased `gandaris' from the deceased and since he had given short weight, he objected to it and during the controversy the latter flared up so much that he picked up iron-weight, with which he was weighing `gandaris', and threw it on the mouth of the former as a result of which his two teeth were broken. He contended that the deceased did not stop there and picking up another iron-weight when he wanted to hit him again, the appellant apprehending grievous injury, picked up the `chhuri' from the deceased's `rehri' and gave a blow with it on his abdomen in the exercise of his right of self-defence. In his opinion, the appellant committed no offence.

13. On the other hand, it was contended on behalf of the State that the defence story was concocted by self-suffering the tooth injury and making out a false defence and the appellant had already been dealt with leniently by the trial Court in the matter of sentence. In his view, in the motive part the prosecution version stood amply proved and it was in fact a pre-meditated murder.

14. Muhammad Nawaz alias Muhammad Shafi, who was given up as an un?necessary witness, was an important witness in this case as only he could prove the motive part of the prosecution story but he was given up by the prosecutor for the reasons best known to him. Therefore, the motive was rightly held by the learned trial Judge as not proved. Even otherwise there seems to be no substance in it because the appellant and his three brothers, who were carrying on their own business and were not mere urchins, would not come to the `rehri' of the deceased daily from a distance of about half-a-mile or so only to get some quantity of `gandaris' gratis from him by way of an exaction known as Goonda tax.

15. What had actually seemed to have happened was that the appellant and the deceased fell out with each other, may be on account of the latter's improper weighing of `Gandaris', and the controversy ended in the mishap on the spur of moment without any premeditation.

16. To me the defence version also does not appear to be the whole truth. If the iron-weight had been thrown on the mouth of the appellant with such a force that it had broken two right upper incisors, the upper lip would have been extensively injured but there was only a congestion of its mucosa in a very small area. The appellant, as it appears from the deposition of Dr.Tahir Anees (D.W.1), was referred to the Dental Surgeon for opinion but he never went there. It was only the Dental Surgeon who could really determine the nature of the injury and the manner in which it was caused. To my mind, the injury was fabricated with a view to make out a defence.

17. However, even if the defence version of the occurrence was correct, even then the appellant, in my opinion, had exceeded the right of private defence for which he had to be convicted and adequately punished and no fault can be found with the findings of the trial Court for that reason too.

18. In view of the above, there is no substance in the appeal and the same is dismissed. H.B.T./M-3095/L??????????????????????????????????????????????????????????????????????????????? Appeal dismissed.