' SYED SHABBAR RAZA RIZVI, J.--- Appellant Shafqat Nawaz son of Muhammad Akram was tried by the learned Session Judge, T.T. Singh in F.I.R. No,260, dated 17-10-2001, under section 302, P.P.C.
Registered at Police Station Saddar, Toba Tek Singh, for committing murder of Muhammad Pervaiz.
He was convicted and sentenced to death under section 302(b), P.P.C. He further ordered to pay fine of Rs,50,000 to the legal heirs of the deceased under section 544-A, Cr . P . C .
2. The prosecution case as introduced through F.I.R. Exh.P.F./1 by complainant Muhammad Shafiq is that the deceased Muhammad Pervaiz, his brother and the appellant. Shafqat Nawaz ran a business of sale/purchase of motor bicycles. The deceased had given Rs,40,000 to the appellant, Shafqat Nawaz as loan which he had not returned. On the day of occurrence, deceased, Muhammad Pervaiz told complainant that he had received a telephonic message, a day before, from Shafqat Nawaz, appellant to bring Rs,1,00,000 as he had entered into a deal of three motor bicycles. On which, the complainant along with Muhammad Pervaiz (deceased), Iftikhar Aziz son of Abdul Hameed, and Ehsan-ulHaq son of Abdul Haq went to the village (home of) Shafqat Nawaz with Rs,1,00,000 in Chak No,521/GB, who was waiting. At about 1-30 p.m., they reached there, the appellant made them stand in front of his house and took Muhammad Pervaiz in a room. After about 10 minutes, they heard hue and cry from inside a room. On which they entered into the house/room and saw that the appellant made Muhammad Pervaiz fell down on the bed and was giving repeated Chhuri blows at different parts of his body. After seeing the complainant party, the appellant fled away brandishing Chhuri. The complainant party took Muhammad Pervaiz to Civil Hospital, T.T. Singh in injured condition, but doctor referred Muhammad Pervaiz to Allied Hospital, Faisalabad, due to his precarious condition. Muhammad Pervaiz succumbed to the injuries in Allied Hospital. The motive for the occurrence was stated usurpation of money of deceased by the appellant.
3. After recording the statement Exh.P.F. Of complainant, Ali Hussain Shah, S.-I. P.W.13 on 17-10-2001 proceeded to D.H.Q. Hospital T.T. Singh where he inspected the dead body of Muhammad Pervaiz, prepared injury statement vide memo. Exh.P.D. And inquest report vide memo. Exh.P.E. Thereafter he handed over the dead body to Nausher Khan Constable for post-mortem examination. After postmortem examination, Nausher Khan Constable handed over to him postmortem report and last-worn clothes of the deceased which were taken into possession by him through memo. Exh.P.B.
Thereafter, he proceeded to the place of occurrence, where he prepared rough site plan Exh.P.J.
And took the blood-stained earth from the spot, a piece of blood-stained bed sheet, blood- tained mattress which were taken into possession through memo. Exh P.I. He recorded the statements of the prosecution witnesses under section 161, Cr.P.C. He arrested the accused on 24-10-2001, who while in police custody led to the recovery of blood-stained Chhuri P.1 which was taken into possession through memo. Exh.P.B. Then he completed the investigation and submitted the challan.
4. On 21-6-2002, the trial Court framed the charge which was denied by the accused/appellant.
During the trial, the prosecution examined as many as 13 witnesses to prove the guilt of the accused.
5. The medical evidence was furnished by Dr. Muhammad Arif, P.W.4, who on 17-10-2001 at 9-35 a.m. Conducted the post-mortem examination on the dead body of Muhammad Pervaiz and found the following injuries:--
(1) Incised wound curved shaped 3 c.m. x 1/2 c.m. x bone exposed on left side of head 9 c.m. Above left ear.
(2) Incised wound 1-1/2 c.m. x 1/2 c.m. x bone exposed on left side of head 7 c.m. Above left ear.
(3) Abrasion 1 x 1/3 c.m. On left side of bridge of nose.
(4) Abrasion 1 x 1/2 c.m below left eye.
(5) Incised wound 4 c.m. x .3 c.m. x skin deep on right side of abdomen.
(6) Incised wound 1 x 1/2 c.m. x D.N.P. On lower part of right lateral chest.
(7) Incised wound 1-1/2 c.m. x 1/2 c.m. x D.N.P. On upper part of left lateral chest.
(8) Incised wound 1-1/2 c.m. x 1/2 c.m. x D.N.P. On lower part of back of left chest.
(9) Incised wound 1-1/2 c.m. x 1/2 c.m. On lower part of back of right chest.
(10) Incised wound 1 x 1/2 c.m. x bone exposed on proximal phalanx of left index finger.
(11) Incised wound 1-1/2 c.m. x 1/2 c.m. x muscle deep, on left shoulder.
' In the opinion of the doctor, the cause of death was due to haemorrhage and shock, due to injuries Nos.6, 7 and 9, injuries Nos.6, 7 and 9 could cause death collectively and injuries Nos.7 and 9 could also cause death individually in ordinary course of life. All the injuries were ante-mortem.
Injuries Nos.3 and 4 were caused by blunt weapon and the remaining injuries were caused by sharp-edged weapon.
6. Before that on 16-10-2001, at 4 p.m. Dr. Ghulam Dastagir, P.W.1 medically examined Muhammad Pervaiz, deceased and found 11 injuries on his person. On the same day, at 4-15 p.m., he also medically examined Shafqat Nawaz, appellant and found the following injuries on his person:--
(1) Abrasion 1 c.m. x 1 c.m. On back of left ear.
(2) Abrasion 10 c.m. x 2 c.m. On middle of front of upper chest.
(3) Incised wound 4 c.m. x .3 c.m. x skin deep on right shoulder.
(4) Incised wound 4 c.m. x 1/2 c.m. x muscle deep on lateral side palm of left hand.
(5) Incised wound 2 c.m. x .3 c.m. x skin deep on palmer surface of medial side of left hand.
(6) Incised wound 1 c.m. x .3 c.m. x skin deep on medial side of left little finger.
(7) Incised wound 5 c.m. x 1 c.m. x muscle deep on left shoulder.
' In the opinion of the doctor, injuries Nos.1 and 2 were Ghair Jaifah Damiyah while rest of the injuries were Ghair Jaifah Badiah. Injuries Nos.1 and 2 were caused by blunt weapon and rest were sharp- edged weapon.
7. The ocular account was furnished by Muhammad Shafiq, P.W.10, who was complainant of the case. He was eye-witness of the occurrence and supported the prosecution version as narrated by him in the complaint Exh.P.F. Iftikhar Aziz was examined as P.W.11. He was also an eye-witness of the occurrence. His statement is also in line with that of the complainant. Iftikhar son of Ehsan Khan, P.W.12 supported the prosecution story by narrating that the deceased had a shop of tailoring, besides business of sale/purchase of motor bicycles. About 8-1/2 months ago when he was present at the tailoring shop of the deceased along with Wahid P.W., bell of telephone rang. He received the telephone call. The caller said that he was Shafqat Nawaz and inquired about Muhammad Pervaiz, deceased. He told Shafqat Nawaz, appellant that the deceased was not available. On which, he asked him to convey message to the deceased to bring rupees one lac to get three motor bicycles, the bargain of which had already been struck by him. This witness delivered this message to the deceased when he came there.
8. Muhammad Zafar, P.W.2 identified the dead body of deceased, Muhammad Pervaiz at the time of post-mortem examination. P.W.3 Mehram Khan son of Muhammad Khan deposed that on 30- 10-2001, he along with Shahid Latif went to Police Station Saddar, T.T. Singh to enquire about the investigation this case, where in their presence the appellant led to the recovery of Chhuri P.1. From his residential house lying in a room within an iron chest, which was taken into possession through memo. Exh.P.B. P.W.5 Muhammad Anwar, M.H.C. Recorded the formal F.I.R. Exh.P.F./1 on receipt of complaint Exh.P.F. On 17-10-2001. He also kept the sealed parcels of blood-stained earth in police Malkhana. On 30-10-2001, he handed over the same to Muhammad Azeem, F.C. For its onward transmission to the office of Chemical Examiner, Lahore. P.W.6, Muhammad Azeem, F.C. Delivered tre sealed parcel of blood-stained earth as stated above. P.W.8 Nausher Ahmad, F.C. Escorted the dead body for post-mortem examination. After poit-mortem examination he handed over the last- worn clothes of the deceased to the Investigating Officer. P.W.9 Muhammad Ashraf, Draftsman prepared the scaled site plan of the place of occurrence through memo. Exh. P. H. And Exh. P. H. /1.
9. The prosecution evidence was closed by tendering in evidence reports of Chemical Examiner Exh.P.K. And Exh.P.L. And that of Serologist Exh. P. M .
10. After close of the prosecution evidence, the statement of the appellant was recorded under section 342, Cr.P.C. He denied the allegations and claimed innocence and false involvement. In reply to question No,10, as to why this case against him and why the P.Ws. Deposed against him, he stated that the case is based on fabricated story narrated by the complainant who got registered false case in connivance with the police. The P.Ws. Are either closely related or have friendly relations with the deceased/complainant and they had deposed falsely against him to strengthen the case of the prosecution. In reply to question No,11, "did he want to say anything else", the appellant stated as under:-- "I was living separately, in the house where this occurrence took place with my wife and children. I had a joint business with Muhammad Pervaiz deceased who used to visit my house. During this period Muhammad Pervaiz deceased had developed illicit relations with my wife. On the day of occurrence when I came to my house I was surprised to find the deceased in objectionable condition with my wife inside the residential room of my house. I started beating my wife with fist. In the meanwhile Muhammad Pervaiz deceased picked up a Chhuri used in my kitchen and attacked me and gave me about seven blows with blunt as well as sharp-edged of Chhuri. My wife slipped away after scaling over the northern outer wall of my house and hid herself in the house of my uncle Muhammad Aslam. I with great difficulty snatched that Chhuri from the deceased to save my life and gave injuries to him in my self-defence. The P.Ws. Were not present at the spot. 1 and Muhammad Pervaiz deceased were taken to D.H.Q. Hospital Toba Tek Singh in injured condition by my father Muhammad Akram, Faqir Muhammad son of Abdul Sattar, Dildar Khan son of Ali Ahmed residents of our village in a hired car driven by Muhammad Irfan resident of Chak No,148/GB at about 4 p.m. Before that time no transport was available at our bus stop. During this period Faqir Muhammad mentioned above had informed the complainant Muhammad Shafiq real brother of Pervaiz deceased at Pir Mahal through a telephonic message, who reached D.H.Q. Hospital after our arrival over there."
' In addition to the above statement, the appellant produced Muhammad Akram as D.W.1 and D.W.2, who corroborated the plea of the appellant as stated above.
11. The trial culminated into conviction and sentence of the appellant as mentioned in para.l.
12. We have heafd the learned counsel for the appellant and the learned Deputy Prosecutor- General, Punjab.
13. During the course of arguments two versions are presented by the prosecution and defence.
The basic version of the prosecution is based on the contents of F.I.R. Exh.P.F./1 and statement of complainant Exh.P.F. And statement of P.W.10. The other version/ defence version is based on statement of appellant under section 342, Cr.P.C. Supported by D.W.1 and D.W.2. The learned trial Court completely rejected the second version/defence version and believed the prosecution version. We differ with the finding of the learned trial Court and prefer the defence version which is more probable. For the above, deeper analysis of evidence on record, follows in the subsequent paragraphs.
14. According to Exh.P.F. And statement of P.W.10 before the trial Court, on 16-10-2001, deceased told him that the appellant had telephoned him yesterday (a day before) i,e, 15-10-2001 to bring Rs,1,00,000 because the appellant had struck a deal to buy three motor bicycles. Thus, today i,e, on 16-10-2001, he (complainant), deceased, Iftikhar Aziz (P.W.11) and one Ahsan-ul-Haq went to the house of appellant with Rs,1,00,000 in Chak No,521/GB at about 1-30 p.m. Exactly the same version is stated by P.W.10 in his examination-in-chief before the learned trial Court. To avoid any mistake, the relevant portion is reproduced:-- "Pervaiz the deceased in this case was my real brother. He and the deceased, Shafqat Nawaz (appellant) were partner in the business of sale and purchase of motorcycles. Pervaiz, the deceased had to recover Rs,40,000 from the accused. About 81/2 months ago Pervaiz, the deceased told me that accused Shafqat Nawaz had asked him to bring Rs,1,00,000 as he had entered into deal of three motorcycles at 521-GB from his house. I, Iftikhar Aziz, Ehsan-ul-Haq and Pervaiz, deceased took the amount along with us and went to 521-GB to the house of the appellant.
We reached there at about 1-30 p.m. The accused was waiting for us."
' In the examination-in-chief, the P.W.10 did not mention when the deceased had received a telephone call on the same day i,e, 16-10-2001 or one day earlier on 15-10-2001. However, in cross- examination he stated as under:-- "Pervaiz, deceased told me at 10/10-30 a.m. On the day of occurrence that he had received a telephone from the accused in this regard one day earlier. This telephone message was received by Iftikhar P.W.12."
' However, contrary to the statement of P.W.10, the P.W.12 stated before the Court as under:-- "I am a workman at the tailoring shop of Pervaiz deceased. Besides running tailoring shops Pervaiz deceased used to deal in purchase/sale of motorcycle. About 8-1/2 months ago when I was present at the tailoring shop of the deceased along with Wahid P.W. Bell of the telephone rang. I received telephone call. The caller said that he was Shafqat Nawaz and where Pervaiz deceased in this case was. When I told him that he was not present the caller said to me to convey to Pervaiz deceased to bring Rs,1,00,000 to get three motorcycles the bargain of which had already been struck by him. I told this message to Wahid P.W. After some time Pervaiz deceased came there. I delivered the message to him. After some time he went to the village of Shafqat Nawaz, accused. I came to know at about 10 p.m. In night that Shafqat Nawaz accused had murdered Pervaiz."
P.W.10 clearly stated that he had received the telephone call on the day of occurrence i,e, 16-10- 2001 which was conveyed by him firstly to Wahid P.W. And thereafter to the deceased himself who after some time left for the village of Shafqat Nawaz, accused/appellant. The above contradiction or discrepancy in our view is not of a minor nature.
15. In Exh.P.F. The P.W.10 gave motive of murder, that appellant owed Rs,40,000 to the deceased which he never returned instead killed the deceased. When the deceased was already unable to recover Rs,40,000, it is not believable that he would further pay appellant Rs,1,00,000 and that too going all the way to the appellant's village, Chak No,521-G.B., which according to the witnesses was at a distance of 35/40 kilometer away from the place of living of deceased and P.W.10, as claimed by P.W.10 himself in his cross-examination. Moreover, it is not understandable that why the deceased was accompanied by P.W.10 and P.W.11? It may be noted that P.W.11 is a timber merchant, he did not have common business or friendship with the deceased. It appears on record that .Probably deceased's brother, complainant/P.W.10 was working in his shop/workshop, P.W.10 in cross-examination conceded the above fact in the following words:-- "It is correct that Iftikhar Aziz and Abdul Latif are timber merchants in wood market."
' Therefore, it is not understandable why would P.W.11 go with the deceased and P.W.10 just to deliver Rs,1,00,000 to the appellant/ accused while travelling 35 to 45 kilometers? There is another material contradiction between the statement of P.W.10 and P.W.11. According to P.W.11, the deceased told him at about 8/9 p.m. (it should be a.m.) to go to Chak No,521-G.B. They asked me to reach at Bus Stand. At 11 a.m. I reached there. On the contrary, P.W.10 stated that Pervaiz deceased told him at 10/10-30 a.m. On the day of occurrence that he had received a telephone from the accused in this regard one day earlier. Deceased also told Iftikhar, P.W.11 to accompany them at about 10/10-30 a.m. He (deceased) also told Ahsan-ul-Haq, P.W. To accompany him.
16. According to P.W.10, in his statement before the Court as well as in Exh.P.F. That they reached to the village and residence of appellant with money at about 1-30 p.m. The appellant was waiting for them, who took Pervaiz, deceased along with him inside the house but he left standing them outside the house. It may be pointed out that P. Ws. Had gone to Chak No,521/G.B. After covering 35 to 40 kilometers as stated by P.W.10, 40 to 45 kilometers according to P.W.11. It is not expected from a normal human being that he would not ask his guests to sit in a Baithak, street or anywhere else instead would keep them standing in the street. It is also unnatural that in the above circumstances appellant would separate deceased from rest of the party, took him inside and murdered. Is it possible in the presence of 3 men, appellant would kill the deceased with Chhuri, that too in the broad daylight in a big village See the site plan. According to P.W.10 and P.W.11, they heard hue and ery from inside the house and when they rushed into the house, they witnessed that the appellant had fallen the deceased into bed and was inflicting Chhuri blows on different parts of his body. Seeing the P. Ws. Appellant ran away waiving the Chhuri in his hand. None of the P. Ws.
Exh.P.F. Or Exh.P.F./1 mentioned that appellant was also injured. They totally suppressed the fact that appellant had received any injury or they saw the deceased and appellant quarrelling or fighting with each other. The above suppression is in utter conflict with the medical evidence as well as statement of P.W.1 Dr. Ghulam Dastagir who medically examined appellant at 4-15 p.m. On 16-10- 2001 and found as many as 7 injuries including five incised wound injuries on the person of the appellant. This fact is also corroborated by D.W.1 and D.W.2. The learned trial Court has very casually ignored the above suppression saying that injuries on the person of appellant could be result of a scuffle or resistance offered by the deceased at the time of occurrence. According to the learned trial Court a perusal of M.L.C. Pertaining to the accused revealed that all injuries on his body were minor injuries. Incised wounds were either muscle or skin deep, so none of the injuries was a stab wound which could show that somebody intended to take his life with a sharp-edged weapon. On the basis of the above, the learned trial Court observed that, it is, therefore, was result of scuffle or resistance offered by the deceased at the time of occurrence when he was attacked by the accused. We will comment later on, on this observation of the learned trial Court, but at this stage important consideration is that why the above injuries on the person of appellant/accused were not mentioned by either of the prosecution witnesses particularly, by P.W.10 and P.W.11. The above discussion clearly indicates that version of P.W.10 and P.W.11 that they had gone with the deceased to the village of the appellant to deliver Rs,1,00,000 is neither believable nor confidence- inspiring. The story has just been concocted to create evidence or to establish presence of P.W.10 and P.W.11 at the scene of occurrence.
17. On this point, P.W.13, Investigating Officer also tried to suppress the fact. According to him, "I did not come to know on 17-10-2001 that Shafqat Nawaz accused was admitted in the hospital. It is incorrect that I was aware of admission of accused in hospital from 16-10-2001, I am intentionally concealing this fact today. It came to my knowledge during the investigation that Shafqat Nawaz accused was also injured. I also come to know that he was medically examined. I had not summoned the medico-legal report pertaining to the accused. I have not mentioned in any of the case diaries about the injury of the accused. It is correct that the first version of the accused before me was that he and deceased were running joint business. It is also correct that he stated before me that deceased had developed illicit relations with his wife. It is correct that he stated before me that he had seen the deceased taking liberty with his wife on the day of occurrence". Subsequent to the above statement, P.W.13 again attempted to suppress the fact while stating that, "it is incorrect that I deliberately failed to mention the version of the accused that Pervaiz deceased attacked on him giving 6/7 Chhuri blows and that he gave beating to his wife". However, P.W.1 Dr. Ghulam Dastagir found 11 injuries on the person of deceased and 7 injuries on the person of appellant.
According to him, the nature of the injuries were same. For brevity we would not like to reproduce the whole description of the above injuries, however, 2/3 sentences may be mentioned to rebut the finding of the learned trial Court. According to P.W.1, on the person of deceased injuries Nos.1, 2, 6, 7, 9, 10 and 11 were kept under observation for X-rays. Injuries Nos.3 and 4 were declared as Ghayer Jaifa Damiah. Injuries Nos.5 and 8 as Ghayer Jaifa Badiah. All the injuries were fresh. Injuries Nos.3 and 4 were caused by blunt weapon and rest were caused by sharp-edged weapon. On the person of appellant/accused P.W.1 noted that injuries Nos.1 and 2 were as Ghayer Jaifa Damiah while rest of the injuries were declared as Ghayer Jaifa Badiah. Injuries Nos.1 and 2 were caused by blunt weapon and rest of the injuries with sharp-edge weapon. All the injuries were fresh. It is important to note that only difference of the above injuries is of numbers. On the person of deceased 11 injuries were found, whereas on the person of appellant/accused were 7 injuries were found, but nature of injuries i,e, Ghayer Jaifa Damiah and Ghayer Jaifa Badiah on persons of both i,e, deceased and appellant were same. Two injuries on each person were caused by blunt weapon and rest were caused with sharp-edge weapon. Beside above, the learned trial Court only mentioned nature of injuries of the appellant instead of mentioning or comparing injuries on both deceased and appellant/deceased.
18. Coming towards the investigation, we will only mention one aspect though we can mention more than that. According to the statement of P.W.1 Dr. Ghulam Dastagir, C.M.O. D.H.Q. Hospital, T.T.
Singh, the appellant/accused was admitted in the hospital on 16-10-2001 at 4 p.m. (it may be noted according to P.W.10 and P.W.11 occurrence took place at 1-30 p.m.). The accused was arrested on 16-10-2001 in the hospital according to the note given on the chart. According to the doctor, appellant/accused remained admitted in the hospital till 22-10-2001. The same fact is narrated by P.W.13 Ali Hussain S.-I. Differently. According to him appellant/accused was arrested by him on 24- 10-2001 from Chak No,521-G.B. At a distance of 5 kilometer from Police Station Saddar T.T. Singh. He further stated that it was incorrect that on the day of occurrence we received an information that both Pervaiz, deceased and Shafqat Nawaz, appellant/accused had reached Police Station Saddar, T.T. Singh in injured conditions. He further stated that it was incorrect that Muhammad Akram, father of the accused along with other had come to the police station on the same and had informed us that they had taken both the deceased and the accused to the hospital. According to him, it was also incorrect that Akram asked him to register a case against Pervaiz who had injured appellant inside the house. Can we believe the above statement of P.W.13 in the presence of statement of P.W.1? According to P.W.1, at 4 p.m. Both deceased and appellant were in the hospital yet P.W.13 did not know their presence, whereas as noted above, P.W.1 clearly stated that appellant/accused was arrested by police on 16-10-2001 from the hospital. The above fact was totally denied by P.W.13 in his cross-examination. According to him, "it is also incorrect that on the same day he arrested Shafqat Nawaz accused from the hospital where he was admitted from his bed. It is incorrect that the accused remained handcuffed from 16-10-2001 to 22-10-2001 in the hospital. It is incorrect that when he was discharged, on 22-10-2001 he was taken to police station and that his arrest was shown with delay deliberately". There is a clear contradiction between the statement of P.W.13 and P.W.1. We definitely rely upon P.W.1 who made statement in the Court on the basis of hospital record which was available with him in the Court while recording his statement.
19. On the subject of recovery of weapon of offence, i,e, Chhuri again version of the prosecution is not tenable. According to P.W.1, appellant/accused was arrested on 16-10-2001 from the hospital, therefore, it is natural that recovery could not be effected by the Investigating Officer as stated by him. Thus, in the above circumstances about recovery of P.1 statement of D. W.1 seems natural.
According to him, after reaching hospital, he attended his son (appellant) who was medically examined. After 15/20 minutes, the heirs of the deceased came there and thereafter he along with others took the copy of M.L.R. Of the appellant to the police station. After reaching the police station, he requested to register a case and also produced Chhuri P.1 before the police. According to P.W.13, he arrested accused on 24-10-2001. The accused while in police custody led to the recovery of Chhuri P.1 bloodstained, which was recovered from an iron chest in his residential house in Chak No,251/G.B. Version of P.W.13 regarding arrest of the appellant and recovery of P.1 cannot be given any credence in the above circumstances.
20. In view of the above detailed discussion on all factual points, we reject the prosecution version as improbable.
21. The defence version based on statement of appellant under section 342, Cr.P.C. Is as under:- "I was living separately, in the house where this occurrence took place with my wife and children. I had a joint business with Muhammad Pervaiz deceased who used to visit my house. During this period Muhammad Pervaiz deceased had developed illicit relations with my wife. On the day of occurrence when I came to my house I was surprised to find the deceased in objectionable condition with my wife inside the residential room of my house. I started beating my wife with fist. In the meanwhile Muhammad Pervaiz deceased picked up a Chhuri used in my kitchen and attacked me and gave me about seven blows with blunt as well as sharp-edge of Chhuri. My wife slipped away after scaling over the northern outer wall of my house and hid herself in the house of my uncle Muhammad Aslam. I with great difficulty snatched that Chhuri from the deceased to save my life and gave injuries to him in my self-defence. The P. Ws. Were not present at the spot. I and Muhammad Pervaiz deceased were taken to D.H.Q. Hospital Toba Tek Singh in injured condition by my father Muhammad Akram, Faqir Muhammad son of Abdul Sattar, Dildar Khan son of Ali Ahmed residents of our village in a hired car driven by Muhammad Irfan resident of Chak No,148/GB at about 4 p.m. Before that time no transport was available at our bus stop. During this period Faqir Muhammad mentioned above had informed the complainant Muhammad Shafiq real brother of Pervaiz deceased at Pir Mahal through a telephonic message, who reached D.H.Q. Hospital after our arrival over there."
The above statement gets corroboration from the discussion we made while discussing the prosecution version particularly statement of P.W.1. In addition to that version of P.W.1 is also supported by Exh.P.W.1/A, P.W.1/B and M.L.R. No,731/01. The statement of appellant also gets corroboration from the statement of D.W.2 who is resident of Chak No,521-G.B., where occurrence took place. He seems to be a neutral H and natural witness, whereas, prosecution witnesses were not from the village where occurrence took place. They are either relatives of the deceased/complainant or known tb them through their business. The occurrence had taken place at 1-30 p.m. On 16-10-2001, therefore, it is believable that D.W.1 and D.W.2 along with other residents of the village took both, the deceased and appellant to the hospital, where complainant and others joined. The complainant was informed on telephone as his number was given by the deceased before his death and on his request one Faqir Hussain and Dildar residents of the village contacted complainant on telephone. Another ridiculous fact may be pointed out that according to Exh.P.F.
And Exh.P.F./1, the F.I.R. Was recorded on 17-10-2001 at 2-20 a.m. (night). Same reflects from the statement of P. W.13. The above statement of P. W.13 and contents of Exh.P.F./1 are in direct conflict with the statement of P.W.1 as well as hospital record. According to the above, deceased and appellant were brought in the hospital at 4 p.m. On 16-10-2001, yet the Investigating Officer neither reached there nor recorded F.I.R. Though police station is only 4/5 kilometers away from hospital.
That indicates deliberate delay in registration of F.I.R., which does not auger well. However, the notice was not taken by the learned trial Court of the above fact either.
22. The above facts and circumstances clearly show that there were circumstances in which the appellant/accused apprehended his death, particularly, after receiving as many as 7 injuries on his person by Chhuri blows. ,In the above facts and circumstances he was justified to save his body while exercising right of private defence of his body. Thus, in our opinion, section 100, P.P.C. Is attracted in the above facts and circumstances. We may also observe that element of provocation could also be not ruled out on part of the appellant after seeing his wife ill compromising condition with the deceased in his own house.
23. As a result of the above discussion/reasons, we allow this criminal appeal. Resultantly, the conviction and sentence recorded by the learned trial Court vide order, dated 25-7-2002 is set aside, and the appellant is acquitted of the charge. He shall be released immediately if not required in any other case.
24. In view of the above, Murder Reference No,556 of 2002 is answered in the negative.