Appellants Ghulam Nabi aged 35 and Ghulam Abbas aged 30, who are brothers inter se, were tried for the murder of Faqir Hussain deceased aged 30. But convicted on 30th January, 1979 under section 304 read with section 34, P. P. C. And sentenced to 7 years' rigorous imprisonment each with a fine of Rs. 2,000. In default of payment of fine each either of them was directed to undergo further rigorous imprisonment for one year. The trial Court also ordered compensation to be paid to the heirs of the deceased.
2. The allegation against the appellants was that on 16th February, 1976 at about 10 p. m. They assaulted the deceased within the area of Chak No. 274/R B in District Faisalabad with lathis and injured him, as a result of which he died the next day at about 3 p.m. While he was being carried to the hospital. It appears that an Assistant Sub-Inspector of Police from the Police Station Dijkot visited the village on beat at 9 o'clock in the morning following the incident, whereupon Faqir Hussain deceased reported the incident to him.
3. It is an admitted fact in this case that the deceased was carrying two live hand-grenades in a sack. The motive as attributed to the appellants for the commission of the crime in question is that a brother of their's Ghulam Hussain by name, had about 8 or 9 years prior to the incident, abducted the mother of the deceased. But when the said Ghulam Hussain was arrested in connection with a criminal case, she returned to her husband's house. So the appellant bore a grudge against the deceas--ed. The defence plea, however, is that while Ghulam Abbas appellant was training his bullocks in the village the deceased arrived there from outside and threw a grenade at him, which luckily failed to explode. As the deceased was about to throw the second grenade, Ghulam Abbas appellant attacked him and injured him in self-defence while Ghulam Nabi appellant was not present at the scene at all. However, no evidence was led in defence.
4. The prosecution examined the three persons as eye-witnesses and gave up one.
5. In view of the fact that the incident has in substance been admit--ted, the first question to be determined in this case is whether Ghulam Nabi appellant was in fact involved in the incident at all.
It is to be noted that his name figures in the First Information Report. Although, the report was made about 11 hours after the incident it is clear from the circumstances of the case that the deceased was not in a position to approach the police as he was in the custody of hostile persons, How-- ever, the allegations made in the F. I. R. Have been corroborated by the eye-witnesses who reached the scene of the crime at a later stage and appeared to have witnessed the last part of the incident. One of the eye--witnesses is the father of the deceased, another a brother and the third one is a close relative. But the learned trial Judge has observed in .His judgment that from the demeanour of the witness he was satisfied that at least two of them had witnessed the incident.
Therefore, minor discrepancies in their testimony would not destroy the prosecution case. The deceased was found to have sustained 6 blunt weapon injuries and it appears from the evidence on the record that he was not allowed to be removed from the place where he was assaulted till the afternoon on the next day. Prompt medical aid might have saved his life as the injuries were not on vital parts of his body. All these facts indicate that Ghulam Abbas appellant alone was not responsible, for the injuries and the death of the deceased. There is, therefore, no reason to disbelieve either the F. I. R. Or the ocular testimony on the question of involvement of Ghulam Nabi appellant in the commission of the crime in question. However, in view of the nature and the seat of the injuries it appears that the intention was not to kill. The learned trial Court was, therefore, justified in convicting the appellants under section 304, Part II, P. P. C. I, therefore, maintain the conviction.
6. While considering the question of sentence it is necessary try take---into account the circumstances, which led to the incident. At about 10 o'clock at night it was not possible for the appellants to notice the deceased particularly when lie had arrived in the village unannounced unless he had thrown a grenade at them, as asserted by Ghulam Abbas appellant. Therefore, it was the deceased himself who invited trouble. The appel--lants had the right to act in the exercise of their right of private defence. But after having disarmed the deceased, they had no right to go on belabouring him. The trial Court was, therefore, again right in holding that the appellants exceeded the right of their private defence. But since in the first place they had the right of private defence I find the sentence of 7 years' rigorous imprisonment to be a little excessive. I, therefore, reduce it to 4 years' rigorous imprisonment while maintaining the sentence of fine and the imprisonment in default thereof alongwith the order of compensation. The period the appellants remained in custody as under--trial prisoners shall be deducted from the substantive sentence of four years to be served by the appellants.
With this modification in sentence I dismiss the appeal.