' HASNAT AHMAD KHAN, J.--- Khizar Hayat and Umar Hayat appellants and co-accused Fida Hussain were tried by the learned Additional Sessions Judge, Khanewal in case F.I.R. No,93 dated 23-6-1994 under section 302/34; P.P.C. Registered with Police Station Makhdoompur Pohoran District Khanewal for having committed Qatl-iAmd of Muhammad Asghar deceased. Said Court convicted Khizar Hayat and Umar Hayat appellants under section 302(b), read with section 34, P.P.C. And sentenced them to imprisonment for life while acquitted Fida Hussain co-accused vide judgment, dated 24-6-1996. Benefit of section 382-B, Cr.P.C. Was awarded to both of them.
2. Khizar Hayat and Umar Hayat appellants had filed Criminal Appeal No,196 of 1996 against their conviction and sentence whereas Nazir Ahmad, complainant, father of the deceased had approached this Court through Criminal Revision No,90 of 1996 seeking enhancement of the sentence awarded to the appellants. Both the matters i.e. Criminal appeal as well as criminal revision are being disposed of together through this consolidated judgment.
3. Briefly the prosecution story as set out in the F.I.R. (Exh.P.E./1) recorded on the statement of Nazir Ahmad complainant, is that he is resident of Chak No,5/AH Tehsil and District Khanewal and on the day of occurrence, about one year and ten months ago at Maghrib Wela, his son 'Asghar was coming from the house of his sister Mst. Zubaida towards his house in Chak. No,5/AH. When he reached in front of the Bhana of Khizar Hayat appellant, he at once armed with dagger, while Umar Hayat empty-handed and Fida Hussain appellant emerged on the scene, Khizar Hayat made Lalkara that Asghar will not go alive. Umar Hayat caught hold of Asghar from his arms whereas, Fida Hussain acquitted co-accused took him into his clasp from behind, Khizar Hayat gave three dagger blows which hit Asghar deceased on his arm and ribs. Asghar Ali injured was taken to Nishtar Hospital on the next day.
' According to the prosecution the motive for the occurrence was that ,Asghar Ali deceased had forbidden Khizar Hayat appellant from standing along with other people of bad character, in front of his house. Khizar Hayat appellant felt annoyed on it. Due to said grudge he along with the co- accused in furtherance of their common intention injured Asghar Ali. After 8/9 days of occurrence he died in Nishtar Hospital.
4. Initially the investigation of this case was conducted by Sadiq Hussain, A.S.-I. P.W.11, who had recorded the statements of Nazir Ahmed complainant along with other witnesses. He inspected the site on the next day. He prepared the site plan Exh.P.J. According to his investigation Fida Hussain appellant was not present at the place of occurrence. He then reached Nishtar Hospital, Multan on 25-6-1994 for recording statement (Exh.P.K.) of Asghar injured under section 161, Cr.P.C. On receiving information of death of Muhammad Asghar he recorded Report No,6 Exh.P.L. Dated 29-6-1994. On the same day he received the dead body of Asghar and sent the same for post-mortem examination. He also prepared inquest report Exh.P.I. On 30-6-1994 the investigation was entrusted to the Inspector Sahibdad Khan P.W.8, who visited the place of occurrence and conducted investigation of this case. On 16-7-1994 he arrested all the accused. On 23-7-1994 Khizar Hayat appellant while in police custody allegedly led 'to the recovery of dagger P.4 from his residential house which was taken into possessions vide recovery memo. Exh.P.D. On 9-8-1994 Mirza Maqbool Ahmad, D.S.P. P.W.13 also investigated the case. After completion of investigation all the accused were challaned.
5. During the trial, prosecution came forward with 13 witnesses. Muhammad Iqbal Draftsman appeared as P.W.1 and proved the site plaN Exh.P.A., Exh.P.A./1 and Exh.P.A./2. Shaukat Ali appeared as P.W.4 and proved the recovery of dagger P.4 at the instance of Khizar Hayat appellant. Nazir Ahmad who is complainant of the case appeared as P.W.5 while Saif-ur-Rehman, the other alleged eye-witness of the occurrence appeared as P.W.6. Doctor Khalid Rafique, Medical Officer, D.H.Q.
Hospital Khanewal appeared as P.W.7 and deposed that on 22-6-1994 at 5-45 a.m. He had conducted medico-legal examination of Muhammad Asghar (deceased). The details of the injuries suffered by Muhammad Asghar as deposed by said witness are as under:--
(1) An incised wound 1.5 c.m. x 1/2 c.m. At the middle of outer side of left side of chest.
(2) An incised wound 1.5 c.m. x 1/2 c.m. At the lower part of front of right side of chest.
(3) An incised wound 2 x 1/2 c.m. At the inner side of middle of right upper arm. Patient was severely dyspnoeic.
6. Sahib Dad Khan, Inspector who had initially investigated the case appeared as P.W.B.
7. Doctor Iftikhar Hussain Qureshi, M.S. Tehsil Headquarter Hospital, Chichawatni who had conducted the autopsy on the dead body of Asghar (deceased) on 29-6-1994 appeared as P.W.10 and gave the details of the injuries suffered by the deceased as under:--
(1) A stitched wound 1-1/2 c.m. Bearing two stitches situated on the outer side of Lt. Chest, 9 c.m.
From Lt. Nipple at 4'O clock position (stab wound).
(2) An incised wound 1-1/2 c.m. x 1 c.m. x chest oblique abdominal cavity deep on front of right chest, lower part 11 c.m. Below the right nipple at 6'O clock position.
(3) An incised wound 2 c.m. With 3 stitches on inner side of right upper arm in middle part.
' In the opinion of the doctor death occurred due to shock as a result of septicaemia resulting as a complications of injuries Nos.1 and 2 which were sufficient to cause death in ordinary course of nature.
8. Sadiq Hussain, A.S.-I. Appeared as P.W.1 while Muhammad Jehangir, head constable appeared as P.W.12. Mirza Maqbool Baig DSP who had finalized the investigation appeared as P.W.13.
9. Doctor Muhammad Yousaf who had medically examined Khizar Hayat appellant on 22-6-1994 appeared as C.W.1 and gave the details of injuries suffered by Khizar Hayat appellant as under:--
(1) Lacerated wound 1 x 1 c.m. On upper lip, left side.
(2) Lacerated wound 1 x 1 c.m. On Lt. Side of lower lip. There was swelling 3 x 2 c.m. On lower and upper lip. Canin tooth was slightly shaky.
(3) Contused swelling 8 c.m. x 7 c.m. On darsum of Lt. Forearm above the wrist.
(4) Swelling 7 x 5 c.m. On top and back of left shoulder.
' All injuries were K.U.O. For final report. All were caused by blunt weapon and occurred within 18 to 24 hours, Certified copy of the MLR was proved by him as Exh.C.W.1.
10. Doctor Muhammad Iqbal Sheikh who on the move of the complainant had re-examined Khizar Hayat appellant as a Chairman Reexamination Board appeared, as C.W.2 and gave the details of injuries as under:
(1) A heeled .75 c.m.- scar on the upper lip.
(2) A heeled scar of .5 c.m. In the lower lip.
(3) Swelling and defirmity at Lt. Lower ulna fore-arm.
(4) No evidence of injury No,4.
' On X-ray examination vide report Nos.352, 353 dated 22-6-1994 at D.H.Q. Hospital fracture of shaft of left ulna of left fore-arm.
11. After producing the documentary evidence in the shape of reports of Chemical Examiner Exhs.P.N. And P.O. And reports of Serologist Exh.P.P. And Exh.P.Q. The learned D.D.A. Closed the prosecution case. Thereafter, all the accused were examined under section 342, Cr.P.C. Being examined under section 342, Cr.P.C. All the appellants denied the prosecution version and claimed their innocence.
12. While making statement under section 342, Cr.P.C. Khizar Hayat appellant in response to No,8 deposed as under:-- "The case is false and fabricated. The house of Mst. Zubaida, sister of deceased and daughter of complainant is in my land. I usually pass from said land. I have a radio etc. In my house when I played the said radio Mst. Zubaida and Asghar deceased used to object it. Asghar deceased asked me not to play radio and pass in front of the house of his sister. I tried to satisfy him that I have no or mala fide but Asghar deceased bore grudge on it. On the day of occurrence I was standing in the street when Asghar deceased came there armed with a hockey. He raised Lalkara that he would teach lesson to me for standing in front of the house of Mst. Zubaida. I rushed towards my house to save my life. Asghar deceased while abusing and raising Lalkara that he will kill me forcibly while armed with hockey trespassed into my house, inflicted serious injuries on my person, I felt danger of my life and also insult of our women. I took a knife lying in the house and inflicted minor injuries to save myself and the honour of our women. I have committed no crime. No P.W.
Was present there, the witnesses have deposed falsely due to relationship with the complainant and deceased. I was seriously injured. I was examined through police but after the death of Asghar the police in connivance with complainant party misplaced my MLC so that my defence could not be proved. The complainant and Yaqoob P.W. Also gave application to District Magistrate for my re-examination. I was also re-examined by the Medical Board, and the said Board had confirmed my medico-legal report and opined that injuries are not self-suffered or by friendly hand. I tried for registration of case but due to the influence of complainant party it could not be registered. Asghar deceased had received minor injuries but due to mishandling through private compounders his wounds became septic. The complainant party delayed treatment and due to carelessness of complainant and negligence of the doctors; Asghar died. Fida Hussain and Umar Hayat accused were not with me, they have been roped in this case that they are closely related to me. The P.Ws.
Have deposed falsely against me and my co-accused."
' While Umar Hayat appellant while appearing under section 342, Cr.P.C. Replied to question No,7 are as under:--- "This is a false case. I was not present at the place of occurrence. I am brother of Khizar Hayat accused, and the complainant party being closely related to him deposed falsely as they are inter se related and interested."
13. None of- the accused opted to appear under section 340(2), Cr. P . C .
14. After the conclusion of the trial Fida Hussain co-accused was acquitted of the charge while both the appellants were convicted and sentenced as mentioned above.
15. In support 'of the appeal the learned counsel for the appellants has contended that there is inordinate delay of 48 hours in lodging the F.I.R.; that though Muhammad Asghar (deceased) was medically examined on the next day of occurrence, even then F.I.R. Was not lodged promptly; that there was no previous enmity between the parties and the motive as advanced by the prosecution is weak and flimsy; that it is a case of two versions and while keeping both the versions in juxta position the defence version appears to be more plausible; that as a matter of fact Asghar (deceased) was aggressor and he had attacked Khizar Hayat, appellant who was caused blows with hockey due to which his arm was fractured and that the prosecution had suppressed the injuries suffered by Khizar Hayat appellant. Lastly he has contended that at the most it is a case of conviction under section 302(c), P.P.C.
16. As far as Umar Hayat appellant is concerned he has contended that Fida Hussain co-accused who was attributed similar role had been acquitted by the learned trial Court.
17. After concluding his arguments he has placed reliance -on following judgments:--
(i) Wali Muhammad v. Ismail Kathiawar and another 1989 SCM R 256, (ii) Ali Muhaminad v. Ali Muhammad and another PLD 1996 SC 274, (iii) Hassan Muhammad v. The State 1994 SCM R 1212, (iv). Lal Khan and another v. The State 1976 PCrLJ 1437, (v) Allah Bakhsh v. The State 1976 PCr.LJ 434
(vi) Muhammad Asghar Ali and 5 others v. The State PLD 1984 Lah.
309.
18. On the other hand learned counsel for the complainant has defended the impugned judgment.
He has placed reliance upon Exh.P.K. Which according to him was dying declaration of the deceased. He has further contended that the injuries suffered by the appellant did not give him the right of self-defence.
19. After hearing the arguments and going through the record it has been straightaway noticed that F.I.R. In this case was lodged with inordinate delay of two days. The occurrence took place at Maghrab Wela on 21-6-1994 while Asghar (deceased) was medically examined on the next day. It is further noticed that occurrence had taken place in front of the house of Khizar Hayat appellant who was also medically examined on 22-6-1994 and according to the doctor he had received four blunt weapon injuries. According to the evidence provided by C.W.1 and C.W.2 his left fore-arm was fractured during the occurrence. It appears that in the same occurrence Khizar Hayat appellant had also received the injuries but the same were totally suppressed by the complainant, while lodging the F.I.R. The complainant party initially avoided to get the case registered so much so Muhammad Asghar was neither got admitted in any hospital nor he was got medically examined.
Injuries received by him Were taken lightly. As the occurrence had taken place in front of the house of Khizar Hayat who was also seriously injured in the same occurrence perhaps being of guilty conscious the complainant party did not opt to get the case registered promptly.
20. The tenor of the F.I.R. As well as statement of Nazir Ahmad, P.W.5 shows that he was not eye- witness of the occurrence while Saif- ur-Rehman P.W.6 was the only eye-witness and during the cross-examination Nazir Ahmad P.W.5 admitted that his house is situated at a distance of one square from the place of occurrence while house of Saifur-Rehnran P.W.6, was stated to be at a distance of two miles from the scene of occurrence. Initially one Mushtaq Ahmad was also cited as a witness but during cross-examination Nazir Ahmad P.W.5 stated that Mushtaq Ahmad had not seen the occurrence but in the same breath he stated that Mushtaq Ahinad had seen the occurrence. Said statement of Nazir Ahmad P.W.5 shows that he cannot be termed as an honest and straightaway witness. This 'observation gets support from the fact that while lodging the F.I.R.
He had suppressed the injuries suffered by Khizar Hayat appellant. So much so during the cross- examination he had tried to contradict medical evidence regarding the injuries suffered by Khizar Hayat appellant. He consistently claimed that Khizar Hayat appellant was not injured during the occurrence which statement obviously goes against the record. He is neither found to be eye- witness of the occurrence nor a reliable witness.
21. It is a case of two versions one advanced by the prosecution and the other put forward by the defence, the Court has to see which of the two versions is more plausible. Sadiq Hussain, A.S.-I.
(P.W.11) admitted during his cross-examination that occurrence had taken place in front of the house of Khizar Hayat. Site plan Exh.P.A. Prepared by Muhammad Iqbal Draftsman (P.W.1), also is supporting this fact. Mirza Maqbool Baig DSP while appearing as P.W.13 admitted during the course of investigation that Khizar Hayat appellant had sustained injuries during the same occurrence. He further admitted that the persons who had appeared before him and stated that occurrence was the result of tight between Khizar Hayat appellant and Muhammad Asghar deceased. He further admitted that complainant was not eye-witness of the occurrence. All these facts show that Khizar Hayat appellant was attacked by the deceased after arming himself with a blunt weapon. Khizar Hayat, appellant had acted in his self-defence but while exercising his right of self-defence he had exceeded his right inasmuch as, the deceased was not armed with any lethal weapon but the appellant caused him repeated blows with dagger on the vital part of the body of the deceased which clearly shows that he had travelled beyond his right of self-defence, therefore, he cannot be acquitted of the charge out-rightly.
' Even from another angle the occurrence appears to be result of free fight. There was no previous background of hostility between both the parties. There was no premeditation and incident apparently occurred on a trivial matter. In a similar set of circumstances an accused was convicted under section 302 Part-II, P.P.C. Under the old law by the -High Court and was sentenced to 8 years' R.I. Said judgment was maintained by the Honourable Supreme Court. Reliance in this regard is placed upon Wali Muhammad v. Ismail Kathiawar and another 1989 SCM R 256.
Considering the circumstances of the case and the judgments cited by the learned counsel for the appellants I have come to the conclusion that Khizar Hayat appellant was illegally convicted under section 302(b), P.P.C. And consequently, his conviction is converted from section 302(b) to section 302(c), P.P.C. The occurrence had taken place in the year 1994 and since then Khizar Hayat appellant is facing the rigours of the trial as such the sentence of ten years' R.I. Would meet the ends of justice.
' As far as Umar Hayat appellant is concerned he is entitled to the benefit of doubt inasmuch as role attributed to him was holding of the arm of Asghar Ali (deceased) at the time of occurrence.
Fida Hussain who was attributed the role of holding the deceased in the clasp was acquitted by the learned trial Court. Umar Hayat being the real brother of main co-accused possibility of throwing net wider, cannot by ruled out. Allegedly at the time of occurrence he was empty-handed. Manner of occurrence also suggests that he was implicated in this case falsely. Consequently, while giving him benefit of doubt he is acquitted of the charge and to his extent appeal is accepted.
11. The nutshell of the discussion made above is that the appeal of Umar Hayat is accepted, while conviction awarded to Khizar Hayat is converted to one under section 302(c), P.P.C. And his sentence is reduced from life imprisonment to ten years' R.I. Benefit of section 382-B, Cr.P.C. Is also awarded to him. Both the appellants are on bail. The surety of Umar Hayat is discharged and bail bonds are cancelled. Khizar Hayat appellant-convict, be taken to custody to serve out the remaining sentence.
' Criminal Revision petition filed by the complainant having no merit, is dismissed.