' MUHAMMAD FARRUKH MAHMUD, J.---Abdul Razzaq was conjunctively tried with Muhammad Ashraf, Muhammad Musthaq, Muhammad Ali and Muhammad Amin in case F.I.R. No,119 registered at Police Station Daira Din Panah on 21-5-1997 for offences under sections 302/324/148/149/34, P.P.C. Vide judgment, dated 7-11-2001 the learned trial Court acquitted Muhammad Ashraf and Muhammad Ali, co-accused, of all the charges. The learned trial Court acquitted Muhammad Mushtaq and Muhammad Amin of the charge of murder. However, they were convicted for offence under section 337-L(ii) P.P.C. And sentenced to two years' R.I. Each. Muhammad Amin and Muhammad Mushtaq did not challenge their conviction and sentence, Through the same judgment, the learned trial Court convicted Abdul. Razzaq alias Gulloo appellant for offence under section 302(b), P.P.C. For causing the death of Muhammad Sharif and sentenced him to death. He was further directed to pay compensation rupees fifty thousands to the legal heirs of the deceased under section 544-A, Cr.P. C. In default in payment thereof, he was to suffer R.I. For six months.
2. Through this appeal, Abdul Razzaq alias Gulloo has challenged his conviction and sentence.
Murder Reference No,868 of 2001 seeking confirmation of death sentence or otherwise has also been placed before us. We propose to decide both these matters through this consolidated judgment.
3. Briefly, the facts of the prosecution case as gleaned by F.I.R. Exh. PA/1 lodged at the instance of Muhammad Rafiq, complainant/ P.W.9, are that the complainant who was resident of Chak No,116/ML and was employed in Masnoora Model High School, Multan Road, Lahore, as teacher, while his father and uncle lived in the aforesaid Chak and used to cultivate the land. On 18-5-1997, the complainant received information that his younger brother Abdul Majeed/CW-1 went to graveyard for putting earth on graves. He was beaten by Mushtaq, whereupon Abdul Majeed returned home. The father of the complainant Muhammad Sharif was going to complain to Muhammad Ali and reachednear Pakka water-course close to the house of Bashir Ahmad Arain.
Muhammad Rafiq son of Sardar Ali, Amanat Ali/P.W.10 and Rahmat Ali/P.W.11 were coming back to their houses from the graveyard. At about 12-0 noon the complainant's father reached near the water-coursewhere Abdul Razzaq alias Gulloo/appellant armed with hatchet, Muhammad Amin armed with Sota, Muhammad Ashraf empty-handed and Muhammad Mushtaq armed with Sota were present. Muhammad Ali/accused raised Lalkara that Muhammad Sharif had come and should not go alive, whereupon Abdul Razzaq/appellant gave a hatchet blow hitting on the middle of head of Muhammad Sharif who fell on the ground. Then Muhammad Amin and Muhammad Mushtaq, accused, gave successive Sota blows on the back of Muhammad Sharif. The occurrence was witnessed by Muhammad Rafiq Amanat Ali and Rahmat Ali. Then the accused decamped from the place of occurrence along with their respective weapons. Muhammad Sharif became unconscious. He was immediately taken to the Hospital at Kot Addu by Rahmat Ali and the P.Ws.
The doctor referred Muhammad Sharif injured to Nishtar Hospital, Multan. The above incident was told to the complainant by the P.Ws. Who had seen it.
' The motive behind the occurrence was that one day prior to the occurrence the complainant's brother was cutting grass when a woman of the accused party passed nearby, the complainant's brother coughed at her, on account of which the accused had committed the murder of the deceased.
4. On 21-5-1997 at 8.10 a.m. When Malik Muhammad Shafi, Inspector/PW-12 along with some other police officials was present in connection with patrol duty at Adda Larian, Daira Din Panah, Muhammad Rafiq, complainant/P.W.9, got recorded his statement/ complaint Exh.PA, on the basis of which formal F.I.R. Exh.PA/1 was registered at Police Station Daira Din Panah on 21-5-1997 at 12-0 noon, for offences under sections 324/148/149 P.P.C. On the same date at about 2.15 p.m.
Muhammad Sharif succumbed to the injures; hence, offence under section 302, P.P.C. Was added.
5. After recording and sending the above noted statement/complaint of the complainant, Muhammad Shafi, Inspector/P.W.9, went to the spot; prepared its rough site-plan Exh. PL: collected blood-stained earth, sealed the same into a parcel and took it into possession vide memo Exh.PK, attested by Amanat Ali and one Muhammad Rafiq (given up P.W.). After receipt of information about the death of Muhammad Sharif in Nishtar Hospital, Multan, the Investigation Officer converted the offence to section 302, P.P.C. He took into possession blood-stained clothes consisting of Kameez P-1, Chaddar P-2 and Turban P-3 vidememo Exh.PE. On '22-5-1997, the Investigation Officer went to Nishtar Hospital, Multan; prepared inquest report Exh.PD and got the post-mortem examination on the dead - body of Muhammad Sharif. On 22-5-1997, the appellant was arrested and on 25-5-1997, while in custody, the appellant led to the recovery of hatchet P-4 which was taken into possession vide memo Exh.PF, attested by Ahmad Ali/P.W.6 and one Abdul Shakoor. After completion of investigation, the appellant was sent up to face trial along with his co- accused.
6. During trial prosecution produced twelve witnesses to prove its case. P.W.9 Muhammad Rafiq, who is son of the deceased, stated about the contents of complaint Exh.PA. He was not eye-witness and had received information on telephone from his younger brother. Amanat Ali/P.W.10 and Rahmat Ali/P.W.11, brother of the deceased, furnished the ocular account. They also stated about the motive behind the occurrence. Their statements are in line with the story given in the F.I.R. Dr. Aftab Ahmad Tareen/P.W.5 stated that he conducted post-mortem examination on the dead- body of Muhammad Sharif on 22-9-1997. According to his opinion, the deceased lost his life due to injury No,1 which had fractured the skull of Muhammad Shraif and was caused by sharp-edged weapon. According to him, the deceased lost his life within' 3 to 4 days after receipt of injury and the time which elapsed between death and post-mortem examination was 18 to 24 hours. Dr Abdus Salam/P.W.7 stated that on 18-5-1997, he examined Muhammad Sharifdeceased at 7.40 p.m. Who was brought by his brother Rahmat Ali. At the time of examination, Muhammad Sharif was unconscious and had received a sharp-edged weapon injury on the top of his head. He had also received two contused wounds on the left side of back and right side of back. The latter injuries were caused by blunt weapon. Ahmad Ali/P.W.6 stated about the recovery of hatchet, whose handle was blood-stained, at the instance of the appellant. Muhammad Shafi Inspector/P.W.12 stated about the recording of complaint and investigation of the case. The trial Court also recorded the statement of Abdul Majeed son of the deceased as C.W.1. He stated in support of the motive set down in the F.I.R. The rest of the witnesses are formal in nature and need not be discussed.
7. In his statement recorded under section 342, Cr.P.C., Abdul Razzaq took specific plea of self- defence, which is being reproduced for ready reference:-- "I along with Muhammad Mushtaq, Muhammad Ali, Muhammad Amin and Nazir Ahmad were working on Thresher at the Dera of Nazir Arain when all of a sudden, Rahmat Ali, Shafique, Abdur Rashid came there armed with Sotas. Muhammad Sharif made a Lalkara that we should be taught a lesson for the registration ofthe case against them under section 435, P.P.C. Muhammad Sharif gave a Sota blow on my hand, Rahmat gave a Sota blow upon me, Rahmat Ali also gave me another Sota blow. Shafique and Rashid gave Sota blows at Muhammad Amin. On our hue and cry Khurshid and Yousuf came to the spot. On seeing the above mentioned persons, they fled away.
Muhammad Sharif received injuries during this fight at my hands. We lodged F.I.R. No,117 of 19-5- 1997 at Police Station D.D. Panah under section 337-A(iii) P.P.C. Against the above mentioned persons.
' Due to mishandling of the doctors and companions of Muhammad Sharif he died 3/4 days. When Sharif died, police got a case registered against us to save their skin. Police under duress cancelled our case and we have filed a complaint against the above said persons which is pending adjudication in the trial Court."
' The appellant did not appear as a witness in his defence. However, he produced Dr. Muhammad Iqbal/D.W.1, who stated that on 18-5-1997, he had examined Muhammad Amin/co-accused who had received two injuries. Injury No,1 was a lacerated wound on top of the head and caused the fracture, while injury No,2 was a contusion on the upper part of left side of neck. He further stated that on the same date, he examined Abdul Razzaq appellant, who had three injuries on his person.
Injury No,1 which was a lacerated wound was on head and the wound was bleeding severely, while injury No,2 was a contusion on the top of right shoulder joint and injury No,3 was also a contusion at the backside of middle of chest. He brought on record injury statement of Muhammad Amin and Abdul Razzaq Exh.DM and DN. The reports Exh.DM/2 and Exh.DN/1 were sent to the S.H.O.
8. At the very outset, the learned counsel for the appellant has submitted that at the most it was a case of exceeding the right of private defence of person. The learned counsel has referred to the statement of D.W.1, who had examined Abdul Razzaq appellant and Muhammad Amin/co-accused on the date of occurrence. The learned counsel has added that initially F.I.R. No,117 was registered on 19-5-1997 at the instance of Muhammad Ali for offence under section 337-A(iii), P.P.C. Against the deceased, Rahmat Ali/P.W.11 and others but after the death of Muhammad Sharif with mala fide intention, the police cancelled the said F.I.R.
9. The learned counsel appearing on behalf of the State has submitted that it was a daylight occurrence; and that the occurrence was admitted by the appellant, thus, the delay in lodging the F.I.R. Did notmatter; that the appellant caused fatal injury to the deceased and, thus, deserved no leniency. He has supported the judgment passed by the learned trial Court.
10. We have heard the learned counsel for the parties and have also gone through the record.
11. It is a case of two versions. Both are to be put in juxtaposition to ascertain which of the two was true or nearer to the truth. According to prosecution case, at 12-0 noon on 18-5-1997, Abdul Razzaq and other accused launched murderous assault on Muhammad Sharif. Abdul Razzaq who was armed with hatchet caused injury on the head of Muhammad Sharif who fell down. Thereafter Muhammad Amin and Muhammad Mushtaq gave injuries to him with their sticks. Muhammad Sharif fainted and was firstly taken to hospital at Kot Addu and then to Nishtar Hospital, Multan. At the time of occurrence, Muhammad Sharif was not alone. He was accompanied by his brother Rahmat Ali/P.W.11, one Muhammad Rafiq and Amanat Ali/P.W.10. According to Rahmat Ali, after receipt of injuries Muhammad Sharif was firstly taken to the hospital situated at. Daira Din Panah.
Then he was shifted to hospital at Kot Addu and from there to Nishtar Hospital, Multan. Dr. Abdus Saleem/P.W.7, has supported his story by stating that he examined Muhammad Sharif at 9.40 p.m.
On 18-5-1997, who was brought by his brother Rahmat Ali. The most important question is as to why the matter was not reported to the police till 21-5-1997. It could be said that the P. Ws. Had been trying to save the life of Muhammad Sharif and, thus, did not report the matter to the police. No excuse was left for not reporting the matter to the police, after admission of Muhammad Sharif in Nishtar Hospital, the matter could easily be reported to the police either by Rahmat Ali or Amanat Ali or Muhammad Rafiq who was also allegedly accompanying the deceased. Rahmat Ali stated in examinationin-chief that Muhammad Rafiq son of the deceased was residing at Lahore and arrived at 8-0 p.m. After receipt of information on telephone. There is no explanation as to why Muhammad Rafiq waited for more than two days in reporting the matter to the police. In F.I.R.
Muhammad Rafiq did not state a word about the injuries caused on the person of Abdul Razzaq appellant and Muhammad Amin/co-accused. Similar B P.W.10 and P.W.11 also suppressed the injuries on the person of Muhammad Amin and Abdul Razzaq, both of whom had received very serious injuries. The injury on the head of Muhammad Amin had caused fracture. Abdul Razzaq had also received a head injury and the wound was bleeding profusely. Dr. Muhammad lqbal/D.W.1 stated on oath that on the date of occurrence, he had examined Muhammad Amin and Abdul Razzaq and also sent to reports to the S.H.O. Undeniably, F.I.R. No,117 was registered at Police Station Daira Din Panah on 19-5-1997 at theinstance of Muhammad Ali/acquitted co-accused for offence under section 337-A(iii), P.P.C. Against Muhammad Sharif deceased, Rahmat C Ali and others. This F.I.R. Relates to the same occurrence. In this F.I.R., the injury on the person of Muhammad Sharif deceased was not suppressed, as it was mentioned therein that Muhammad Sharif got injured at the hands of Abdul Razzaq. The story of motive as set down in the F.I.R. Is also not convincing, as allegedly it was Abdul Majeed younger son of the deceased who had made indecent gesture towards the D ladies related to the accused. In that case, there was no occasion to cause the death of Muhammad Sharif. On the other hand, through overwhelming evidence, it has been brought on record that two years prior to the occurrence, enmity existed between Muhammad Sharif and others and father of the appellant over registration of case against E Muhammad Sharif deceased for offence under section 435, P.P.C. At the instance of Muhammad Ali father of the appellant.
12. The upshot of the whole discussion is that the story put forward by the appellant appears to be nearer to the truth. Thus, we alter the conviction of the appellant from offence under section 302(b), P.P.C. To offence under section 302(c), P.P.C. The appellant is in jail since 22-5-1997, i.e, more than nine years. Hence, we reduce the sentence to already served out by the appellant in jail. As far as compensation is concerned, we set aside the order passed by the learned trial Court, as Abdul Razzaq appellant and Muhammad Amin had received serious injuries during the occurrence. The appellant would be released forthwith if not required in any other case.
13. As a sequel to the above, this appeal is partly allowed. The death sentence is not confirmed. The Murder Reference is answered in the negative.