1. FAKHRUDDIN G.EBRAHIM, J.-Three respondents, Sultan, his brother Arif and their cousin Dilmir were tried by the Sessions Judge, Jhang, for the murder of one Sarwar. On conviction, Dilmir and Sultan were sentenced to death while Arif was awarded life imprisonment. In appeal and the reference, the High Court acquitted Sultan and Arif holding their participation highly doubtful and altered the conviction of Dilmir to one under section 304, Part I, P. P. C. With an award of sentence of 10 years' R.
2. I.
3. The occurrence took place on 3-8-1970 at 5 p. m. The report was lodged by appellant Farid the brother of the deceased Sarwar at 7 p.m. In support of its case, the prosecution examined three eye-witnesses, namely, Farid, the appellant-complainant P. W. 9, Thiraj P. W. 10 and Muhammad Bakhsh P. W.
11. According to the prosecution version, major role was attributed to the respondent Sultan who allegedly caught hold of the deceased by his hair, gave him fist blows on the neck and felled him. He then got over his chest and strangulated the deceased with his turban. Respondent Arif and Dilmir who were respectively armed with a stick and a bailna hit the deceased. In the meantime, the three eye-witnesses reached the spot. The accused ran away and the deceased had already expired.
4. The motive alleged for the crime was that three days prior to the occurrence, Mala P. W. 7 son of Sarwar the deceased was beaten up by respondent Dilmir for having damaged his crop and in retaliation, the deceased Sarwar gave stick blows to Dilmir on the following day. The attack was motivated by respondent's desire to take revenge. The medical evidence was that the deceased was strangulated which conclusion was arrived at by the doctor, who had performed the post- mortem examination, after receipt of the Chemical Examiner's report which excluded administration of poison. The uprooted hair of the deceased were found by the doctor at the time of post-mortem examination.
5. The specific plea taken by Dilmir at the trial narrowed down the scope of the controversy for he admitted having given beating to Mala son of Sarwar and alleged that in order to take revenge the latter attacked him while he was empty-handed. The account given by Dilmir was as follows : "He (Sarwar) gave him two or three sota blows. I apprehend that Sarwar could not leave me alive. I gave him two fist blows at the back of his neck. He fell down. Some persons arrived at the spot. I went to my house. This is bow I suffered the injuries."
6. The learned trial Judge believing the prosecution version and the plea taken by Dilmir, convicted the three respondents as mentioned earlier. In appeal/reference, the High Court took the view that the defence version of Dilmir was more plausible; that the participation of Sultan and Arif was doubtful and it seemed to the High Court that Dilmir had exceeded the right of self-defence, and accordingly his conviction was altered to one under section 304, Part I, P. P. C.
7. Leave was granted by this Court to examine the contention whether the learned Judges in the High Court bad not given any reasons whatsoever for the conclusion arrived at by them in respect of the plausibility of the defence version, and the participation of Sultan and Arif. The relevant portion of the order granting leave against respondents Dilmir and Sultan but not against Arif reads as follows :- " . . . Having gone through the evidence, we find that the major role in the case was consistently attributed by the P. Ws. To Sultan respondent as detailed earlier which is supported by the presence of uprooted hair by the Doctor. Dilmir respondent had himself admitted the fight with the deceased but of course gave a different version. The presence of injuries on his person also prima facie connected him with the occurrence. On the other hand, a minor role is attributed to Arif respondent. In view of the above position, while finding substance in the contentions raised by the learned counsel which need examination, we grant leave against Dilmir and Sultan and dismiss the petition against Arif . . . .. "
8. Before coming to the contentions raised by the learned counsel on behalf of the appellant, we may at once come to the reasons which persuaded the High Court to acquit Sultan and Arif for it was argued that these reasons are merely surmises in disregard of the consistent evidence of three eye-witnesses two of whom were independent and had no reason to falsely implicate the respondents. These reasons appear in paragraph of the judgment and are as follows :- "7. We have carefully gone through the evidence with the help of learned counsel for parties. We are of the view that the defence version of Dilmir is more plausible. The injuries on the person of the deceased seem to have been caused while wriggling on the ground. We are, therefore, not impressed with the prosecution evidence that the occurrence has taken place in a manner which the prosecution has described. The participation of the two appellants, namely, Sultan and Arif is highly doubtful. We would, therefore, give them benefit of doubt and acquit them. Case of Dilmir is different. The motive given by the prosecution is somewhat admitted by him with little variation. He had given beating to the son of the deceased and it is quite natural that when they will confront each other Sarwar would not abstain from causing injuries to him. The medical evidence supports this version that there are injuries on the person of the appellant Dilmir. The doctor was not sure in the first place to say what was the cause of death because there were no scratches on the neck.
9. From the post-mortem report it is quite visible that the deceased died of strangulation. This may be the result of injuries given by the appellant Dilmir or by pressing his neck with hands or turban.
10. When the appellant had thrown down his adversary after receipt of injuries at his hands he having overpowered him, it was not necessary for him to have killed him, for, the right only extended to his own safety from the apprehension of receiving grievous hurt. Although such a situation could not be weighed in golden measures but from the circumstances of the case we are of the view that Dilmir appellant has exceeded the right of private defence in this case. His conviction is, therefore, altered from section 302 to section 304, Part I, P. P. C. And he is sentenced to ten years' R. I. The appeal is accepted in the above terms. The reference is rejected."
11. Mr. Hasan Ahmad Khan Kanwar, the learned counsel for the appellant and Mr. Iqbal Kaukab, the State Counsel who support this appeal pointed out that the three eye-witnesses in this case consistently deposed that they saw Arif, Sultan and Dilmir beating Sarwar deceased near Jogian Wali Basti; Sultan accused gave fist blows to Sarwar and pulled his hair. Thereafter, he pulled him to the ground, sat on his chest and put a piece of cloth around his neck which was a turban belonging to Sarwar and strangulated him. Sultan also gave the deceased blows with his knees that the respondent Arif gave a sota blow on the deceased on the back of his right shoulder and Dilmir who was in possession of an arli gave arli blows on both the arms of the deceased. In relation to P. Ws. Thiraj and Muhammad Bakhsh, there was not even a suggestion that they were deposing falsely against the respondents for one or the other reason. This evidence coupled with the fact that the hair of the deceased were found by the doctor to be uprooted and death by strangulation and the evidence of motive could not have been rejected by the High Court as highly improbable.
12. Mr. S. M. Mahboob, the learned counsel for the respondents Sultan and Dilmir, contended that it would be unsafe to premise the conviction o Sultan on the evidence of the two eye-witnesses P.
13. Ws. Thiraj and Muhammad Bakhsh inasmuch as they had also involved Arif as a person who had given a sota blow to the deceased, and this Court has not granted leave against him which must necessarily affect the veracity of the said two eye-witnesses. The argument has no substance for Arif has been excluded not for the reason that he was not a participant in the crime but for the reason that the role assigned to him was minor.
14. Before parting a word may be said about the view that prevailed with the High Court that respondent Dilmir, who had received some simple injuries, had exceeded his right of self-defence and accordingly his conviction was altered from one under section 302, P. P. C. To section 304-A, P.
15. P. C. Read with section 34, P. P. C. And sentenced to ten years' R. I. The decease was unarmed and there was no evidence that the simple injuries were received by Dilmir in the incident in question.
16. These injuries according to the prosecution were received by Dilmir two days prior to the incident when he was beaten up by the deceased as Dilmir had prior to that beaten P. W. Mala, the son of the deceased. The earlier beating to Dilmir is at leas partly supported by medical evidence for according to the doctor who examined Dilmir on 5th August, 1973, the injuries on his person were 3/4 days old. What is more important, however, is that Dilmir's version that he was beaten up by the deceased with a sota at the occurrence in question was not put to P. Ws. Thiraj and Muhammad Bakhsh the two independent eye-witnesses. Such a suggestion was only vaguely put-without even mention--ing the weapon allegedly used by the deceased to P. W. Mahla but he was not an eye- witness. It was similarly put to P. W. Farid, the complainant but this too was denied. Thus there was no evidence that Dilmir was beaten up by the deceased Sarwar which allegedly gave him right of self defence which he exceeded.
17. We would, therefore, allow this appeal and convict Sultan under section 302 read with section 34, P.
18. P. C. And sentence him to transportation for life. He will be forthwith arrested. In so far as respondent Dilmir is concerned, we would alter his conviction from section 304, Part I, P. P. C. To section 302, P. P. C. Read with section 34, P. P. C. But in the circumstances of the case, award him transportation for life.