1991 P Cr (PLP)

(2) A lacerated wound 10 c.m. x 2-1/2 c.m. x brain matter deep on the left side of the head. Five c.m. above left ear and 13 c.m. from left eye-brow. (3) A lacerated wound 5 c.m. x 1-1/2 c.m. x bone deep on the back and left side of head, 7 c.m. from left ear and 9 c.m. from the next hair line. (4) There was swelling 7 c.m. x 6 c.m. on the left upper eye-lid. (5) A contusion 6 c.m. x 1 c.m. on the outer and left upper eye-lid. (6) A lacerated wound 3 c.m. x 1/2 c.m. x muscle deep on the left leg lower and outer part just above the left ankle joint.

5. After his death on the following day, the same doctor carried out the autopsy on his dead body and found the same injuries, which he had noticed during the medical examination.

6. On dissection he, under injury No.l, found widening of right priato frontal suture and interpretal suture at the top, meninges lacerated at multiple area on the top, and brain vessel engorged. Corresponding to injury No.2, he found left parietal and temporal regions fractured and brain matter lacerated. Corresponding to injury No.3 there was fracture of left occipital bone and under injury No.6 left fibula was found fractured just above the left ankle joint. In his opinion, injuries Nos. 2 and 3 were sufficient in the ordinary course of nature to cause death. He proved post-mortem report (Exh. P.G.).

7. Shama (P.W.1) and Kameer (P.W.2) gave the eye-witness account, which finds reflection in the above narration of the prosecution case. S.1. Muhammad Yousaf (P.W.7) gave the details of the investigation. The rest were formal witnesses.

8. The recovery of blood-stained sota (P.1) at the instance of Yata appellant and recovery of blood-stained sota (P.2) at the instance of Saleh appellant was witnessed by Nawab (P.W.5) and S.I. Muhammad Yousaf (P.W.7) who deposed accordingly.

9. The appellant and their acquitted co-accused, when examined under section 342, Cr.P.C., denied all the incriminating circumstances figuring against them in the prosecution evidence and, alleging their false implication, professed innocence.

10. Yara appellant, however, admitted his participation and gave his own version of the occurrence. He stated that Saleh appellant was previously personal servant of Nosher (deceased) and sometime prior to the occurrence, he left the service of Nosher (deceased) and came over to work as his (Yara's) personal servant. According to him, since Saleh appellant owed a sum of Rs.20,000 to Nosher (deceased), the latter started demanding this amount from the former and on the day of occurrence when Saleh appellant was working all alone at his `Dhari', Nosher (deceased) started abusing him and putting a cloth (Safa) around his neck, started dragging him. He stated that Saleh appellant, while being dragged, raised alarm which attracted him and he requested the deceased not to do so but he did not desist and asserted that he would take him to his `Dhari' and kill him there. Thereupon, the deceased twisted the cloth around the neck of Saleh appellant and since he (Yara) apprehended that Saleh would be killed, he picked up a `Sota' and caused injuries to Nosher (deceased) in order to rescue his co-appellant, he stated. Mst. Zuhran and Dara, the acquitted accused, according to him, were not present there.

11. Another motive which was not alleged in the F.I.R. but came on the record during the trial was that Nosher (deceased) was married to the sister of Yara but sometime prior to the occurrence he had divorced her and this allegation was admitted by Yara appellant in his statement.

12. Saleh appellant, in his statement under section 342, Cr.P.C, adopted the statement of Yara, his co-appellant.

13. The learned counsel for the appellants tried to make out a case of private defence by contending that Yara appellant had a right to save the life of Saleh co -appellant who was caught by Nosher (deceased) at his `Dhari' in order to kill him and he committed no offence.

14. There is no substance in the above contention. Nosher (deceased) was empty-handed and even if he was taking Saleh appellant to his own `Dhari' after putting a cloth around his neck, even then there was no imminent danger of his being killed. But if at all there was any likelihood of that kind, Yara appellant could and should have used only that much force which was necessary to obtain Saleh's release from him and he, aided by Saleh appellant, could not cause his death. Yara appellant in the background of strained relations on account of the divorce of his sister by the deceased wanted some excuse to wreck his vengeance and he found it a good pretext. At the same time, the motive put forth by the complainant party was unfounded. What actually seems to have happened was that Saleh appellant, who was previously servant of Nosher (deceased) and owed him sufficient money, went over to, or was enticed away by, Yara appellant without paying off his debt to his former employer. Feeling annoyed by his behaviour, he caught hold of him from the `Dhari' of Yara appellant and when he was taking him forcibly to his own `Dhari', the occurrence took place in the rescuing process. The deceased, who took the law in own hands, also invited the trouble himself. In these circumstances it was a case of homocidc not amounting to murder and the conviction of the appellants under section 302/34, P.P.C. is not tenable.

15. Thus, the appeal is accepted, the conviction of the appellants under section 302/34 P.P.C. is altered to the one under section 304, Part II read with section 34 P.P.C. and they are sentenced to 8 years' R.I. each and a- fine of Rs.5,000 each or in default of its payment to further undergo one year's R.I. each. They arc also directed to pay a compensation of Rs.5,000 each to the heirs of the deceased or in default to undergo six months' R.I. each. They shall, however, be entitled to the benefits of section 382-B, Cr.P.C.

16. Being on bail, the District Magistrate, Okara to whom a copy of this judgment should be sent, shall cause their arrest and send them to the prison for serving out their remaning sentence. N.H.Q./Y-31/L Order accordingly.