' RUSTAM ALI MALIK, J.--- Through this judgment, we intend to dispose of Criminal Appeal No,638 of 2000 and also Murder Reference No,30 of 2001, both of which have arisen out of the judgment, dated 9-12-2000 passed by the learned Addl. Sessions Judge, Pakpattan, whereby, he had convicted Muhammad Arshad alias Kaka appellant under section 302(b), P.P.C. And had sentenced him to death as Ta'zir and had also directed him to pay Rs,50,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C.
2. The case against the accused/ appellant is based on F.I.R. No,249/98 registered in. Police. Station Malka Hans, District Pakpattan Sharif under section 302/34, P. P.C . The F.I.R. (Exh.P.B.) was registered on the basis of statement of Shamas Din, complainant/ P.W.2, wherein, he had "statedthat he is a resident of Mauza Chanwat and is a cultivator. On 30-9-1998 his son Muhammad Younas was irrigating his land. Around 9-30 a.m., he went to check the watercourse and found that Muhammad Arshad alias. Kaka accused/ appellant had diverted the water to his own land and thereupon there was an exchange of hot words between his son Younas and Arshad aforesaid. His son Younas told him about the incident and he complained about the same to Asghar Ali, the father of Arshad and also to Ashraf, the elder brother of Arshad accused. However, instead of feeling sorry, they threatened that as his son Younas had insulted Arshad, therefore they will take revenge.
3. On the date of occurrence i.e, on 31-7-1998 around 6-00 a.m. , the complainant had his son Younas were proceeding from their house to their land and when they were passing from near the Dera of Mian Fiaz Baitu, suddenly Asghar Ali son of Siraj Din empty-handed Muhammad Arshad alias Kaka armed with a knife and Muhammad Ashraf, empty handed, reached there. Asghar All raised Lalkara exhorting his co-accused to catch hold of Muhammad Younas and not to let him go alive. In the meanwhile, the complainant tried to prevail upon Asghar Ali and his sons but they started abusing them. On hearing the noise, Maqsood Ahmad and Muhammad Nawaz P.Ws. Also reached there. Within their view, Muhamihad Ashraf caught hold of his son Muhammad Younas.
The complainant and the aforesaid P.Ws. Tried to rescue him but Asghar Ali did not allow them to come near. His sons threatened that if they will come near, they will kill them. Muhammad Arshad alias Kaka gave three blows with the knife to his son Muhammad Younas, hitting on his head towards the left side, below right armpit and inner side of the right arm, close the armpit.
Thereafter, the accused fled away from the spot. The complainant and the P.Ws. Took Muhammad Younas to Civil Hospital Pakpattan but he succumbed to injuries, soon after reaching there. Leaving Maqsood Ahmad and Muhammad Nawaz near the dead body, the complainant reported the matter to the police.
4. After the investigation, the three accused/appellants namely Muhammad Arshad alias Muhammad Arshad alias Kaka, appellant, Muhammad Ashraf son of Asghar Ali and Asghar Ali son of Siraj Din Were challaned in this case and the case was subsequently sent up to the Court of Session for trial.
5. The accused were formally charged by the learned Addl. Sessions Judge-I, Pakpattan on 15-5- 2000 under section 302/34, P.P.C. And to which they pleaded not guilty and the prosecution was thus asked to produce its evidence.
10- In this case the prosecution has examined as many as eight P.Ws. Of them P.W.5 is the Inspector Ghulam Abbas (the then S.H.O.) who on 31-7-1998 had recorded the F.I.R. Exh.P.B. On the statement of Shams Din complainant/P.W.2 and thereafter had proceeded to Civil Hospital, Pakpattan where the dead body of Muhammad Younas deceased was lying . He prepared the injury statement and also the inquest report and sent the dead body of the deceased to the mortuary for postmortem examination. Thereafter, he proceeded to the place of occurrence, from where he secured the blood-stained earth and made it into a sealed parcel, prepared rough site plan of the place of occurrence, recorded the statements of P.Ws. Under section 161, Cr.P.C. And also tool: formal steps in connection with the investigation of the case. He arrested Muhammad Arshad alias Kaka accused on 10-8-1998. On 14-8-1998 the accused led to the recovery of Chhuri/knife P.3 from his residential house and he took the same into possession vide memo. Exh.P.D. During the investigation, he also got medically examined Muhammad Arshad alias Kaka accused. Thereafter, the investigation of the case was transferred.
7. P.W.l is Dr. Ghulam Farid, Medical Officer, who on 31-7-1998 at 12-30 p.m. Had conducted the post mortem examination on the dead body of Muhammad Younas, deceased and had found three incised wounds on the dead body. In his opinion, the death had been caused by massive external and internal haemorrhage and shock and that all the injuries were caused by sharp-edged weapon and were sufficient in the ordinary course of nature (to cause death). According to him, the probable time between injuries and death was two hours and between death and post- mortem examination was within twelve hours. Exh.P.A. Is the copy of post-mortem report while Exh.P.A./l is the diagram of injuries.
8. On 11-8-1998, P.W.l had also medically examined Muhammad Arshad alias Kaka accused and had found an infected wound over left tempro-occipital region of scalp, but the depth of wound could not be assessed accurately due to the infection. He declared the injury as Shaja-i- Khafifa under section 337-A(l), P.P.C., caused with a weapon whose nature could not be assessed. The probable time between injury and Medico-legal examination was described by him as approximately between onb and two weeks. Exh.P.B. Is the copy of the MLR while Exh.P.B./l is the diagram of injuries.
9. In this case the eye-witness account of the occurrence is furnished by P.W.2 Shams Din complainant and P.W.3 Muhammad Nawaz. P.Ws.2 and 3 also deposed about the motive. P.W.3 is also a witness of recovery of knife P.3 which was effected on the pointation of the accused/ appellant, 14 days after the occurrence.
10. On 27-10-2000 the learned prosecutor tendered in evidence the reports of Chemical Examiner Exh.P.L. And Exh.P.N. And also the reports of Serologist Exh.P.M. And Exh.P.O. And closed the case for the prosecution.
11. On the conclusion of the prosecution evidence, the statements of the accused under section 342, Cr.P.C. Were recorded and wherein they denied all the incriminating circumstances. In answer to the question as to why this case against him. And why the P.Ws. Had deposed against him.
Muhammad Arshad alias Kaka accused/appellant replied that he had been falsely involved in this case and that on the date of occurrence, while he was going to his house with a she-donkey, Younas deceased (while describing the she-donkey as his mother) asked him as to why he was giving beating to her. On this, there was an exchange of hot words between him and Younas deceased, who attacked him and he, in order to save himself and in exercise of right of private defence, caused injuries to Younas deceased after snatching knife from him. He took the plea that he was got medically examined by the police. However, the I.O. Did not record his version as he had received heavy bribe from the complainant party. He also took the plea that he and the complainant party were closely related and were descendants of the same grandfather and had no previous enmity. He also stated that occurrence had taken place as a result of a sudden flare- up and that he had caused injuries to the deceased in self-defence and that the P.Ws. Who were related inter se were not present at the time of occurrence and had falsely deposed against him.
None of the accused produced any evidence in defence nor any of them made statement on oath under section 340(2), Cr.P.C. On the conclusion of trial, the leaned trial Court convicted and sentenced Muhammad Arshad alias Kaka accused/appellant as aforesaid while his co-accused namely Muhammad Ashraf son of Asghar Ali and Asghar Ali son of Siraj Din were acquitted.
12. Aggrieved of the impugned judgment, dated 9-12-2000 the appellant, i.e, Muhammad Arshad alias Kaka has tiled the appeal, whereas, the learned trial Court had also sent a reference for confirmation of sentence of death awarded to Muhammad Arshad alias Kaka accused by the learned trial Court.
13. The learned counsel for the appellant has argued that the date and time of the occurrence are not denied. However, the occurrence did not take place in the manner in which the prosecution claims it to have taken {dace; that in fact the accused had acted in exercise of right of private defence and that the prosecution had tried to conceal the injury on the person of the appellant which he had sustained during the same occurrence; that P.W.l had also medically examined the accused/appellant on 11-8-1998 and had found an injury on his person and which, according to the statement of the doctor, could have been caused by a knife or any sharp-edged weapon; that the doctor i.e, P.W.l had admitted in the course of cross-examination that it was possible that Muhammad Arshad alias Kaka accused and Younas deceased were injured on the same day; that the defence version of the accused/appellant is more probable; that the case falls within the ambit of section 302(c), Cr.P.C. At the . Most as the accused had acted only in exercise of right of private defence in order to save his life as the deceased had attacked him with a knife and had caused injury to him; that there was no justification for convicting the appellant on the basis of the same evidence on the basis of which his coaccused have been acquitted; that this is not a fit case for recording conviction under section 302(b), P.P.C. And that it is possible to take a lenient view as prosecution had miserably failed to establish the motive set up by it and as it was proved on record that the occurrence had taken place as- a result of a sudden flare-up and was not the result of any pre meditation; that as the accused/appellant had acted in exercise of his right of self- defence, there was no lawful justification for convicting him under section 302(b), P.P.C.
14. On the other hand, the learned counsel for the State has supported the judgment of the learned trial Court on the plea that there is sufficient ocular account in this case, supported by the recovery evidence as well as by the medical evidence and that the learned trial Court has rightly convicted the accused/appellant under section 302(b), P.P.C. And there is no justification for the conviction of the appellant under section 302(c), P.P.C. And also for awarding any lesser sentence other than normal sentence under the law i.e, death and which should be therefore confirmed.
15. We have carefully considered the arguments, from both sides. The date and time of occurrence are not denied. However, the accused/appellant denies the existence of motive as alleged by the prosecution and also the manner in which the occurrence had taken place. While the prosecution claims that there existed the motive for the appellant to attack the deceased as there had been a quarrel .Between the appellant and the deceased on the diversion of water by the accused to his own fields from the watercourse, the accused/appellant has taken the plea that the occurrence had taken place on account of a sudden flare-up as the deceased had described the she-donkey as his mother and had asked him hot to beat her and on which there was exchange of hot words between them and the deceased had attacked him and he in exercise of his right of private defence had snatched the knife/Chhuri from the deceased and had caused injuries to him with the same. The evidence furnished by P.W.l (who had conducted the post-mortem examination on the dead body of the deceased) indicates that there were three injuries on the dead body and according to him the probable time between injuries and death was two hours and between death and post-mortem examination was within 12 hours. P.W.l had also medically examined the accused/appellant on 11-8-1998 and had found an injury on his person i.e, on left tempro-occipital region of scalp. Although, he described the said injury as Shaja-i- Khafifa covered under section 337-A (1), P.P.C., but according to him, the said injury could have been caused by a knife or any other sharp-edged weapon. During the course pf cross-examination, he admitted that it was possible that Muhammad Arshad alias Kaka accused/appellant and Muhammad Younas, deceased were injured on the same day. Now, when we put the prosecution version and the defence version in juxtaposition, the defence version of the accused/appellant appears to be more probable. The complainant did not make mention in the F.I.R. Of the injury on the person of the accused/appellant, nor has given any explanation for the same during the trial, while from the statement of the doctor i.e, P.W.l, it appears that the said injury could have been caused with a knife or with some other sharp-edged weapon. In this way, the defence version of the accused, as mentioned above, appears to be more plausible. The prosecution in this case -has not succeeded in proving the existence of motive, although P.Ws. l and 2 have both deposed about the same. It seems that the occurrence had taken place as a result of a sudden flare-up and in the course of which the accused had also received an injury on his person. Therefore, the case clearly falls within the ambit of section 302(c), P.P.C., instead of section 302(b), P.P.C. Hence, we convert the conviction of the appellant from section 302(b), P.P.C. To section 302(c), P.P.C. And convert the sentence of death recorded by the learned trial Court under section 302(b), P.P.C. To 10 years' R.I. Under section 302(c), P.P.C. However, the appellant will pay an amount of Rs,50,000 to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. And in case of default in payment of compensation, will undergo S.I. For nine months. He will also be given the benefit under section 382-B, Cr.P.C.
16. With the above modification in the impugned judgment, the appeal is dismissed.
17. The sentence of death awarded to the appellant Muhammad Arshad alias Kaka by the learned trial Court is not confirmed. Murder Reference (No,30 of 2001) is answered in negative.