ATAULLAH SAJJAD, J.---The appellant Ali Muhammad alias Ali Ahmad was tried by the learned Sessions Judge, Multan along with his to brothers Bashir Ahmad and Maqbul and his relatives Jalal Din and Abdul Ghani for the murder of his co-villager Ghulam Muhammad. His co-accused were acquitted but he was convicted under section 302, P. P. C. And was sentenced to transportation for life.
2. The prosecution case is that on the morning of Ist of December 1967 at about 6-30 a.m. The appellant and his co-accused attacked Ghulam Muhammad deceased at Chah Sukhanwala in the area of Qasba Martial, Police Station Makhdum Rashid, in the District of Multan. The 'assailant were armed with dangs and the motive deposed to is that one and a half years before the present occurrence the deceased, his brother Sharif (P. W. 10) and Shah Muhammad one of the given up P.
Ws. Had given a beating to Mst. Hajran the mother of the present appellant and were convicted under section 324, P. P. C. And sentenced to pay a fine of Rs. 200. The suggestion is that in order to avenge the beating given to Mst. Hajran, the appellant along with his to brothers and other relatives attacked the deceased Ghulam Muhammad.
3. The F. I. R. In this case is based on the statement of Ghulam Muhammad himself which he made to A. S. I. Muhammad Tufail (P. W. 12) at the bus stand of Qasba Marhal. The injured person was thereafter taken to the civil dispensary and from there to Nishtar Hospital, Multan where he died at
9. p.m.
4. At the trial Abdul Hakim was given up as a hostile witness but Muhammad Sharif (P. W. t0) and Nawaz (P. W. 11) appeared to. Give an eye-witness account, of the incident.
5. The appellant was arrested by the Sub-Inspector from the spot and he led to the recovery of danda P. 4.
6.The learned Sessions Judge disbelieved the evidence of motive as given by the prosecution witnesses as also the eye--witness account given by them. He observed that the incident of beating given to Mst. Hajran had occurred one and a half years before the present occurrence and if, the accused party were so revengeful they being the residents, of the same locality could have taken the revenge for beating given to Mst. Hajran much earlier. It was found that the appellant had to cuts and a scratch on his body. One pf the cuts was on the chest and the other on the left side of the neck. The mother of the appellant Mst. Hajran was also found injured and she had one incised wound 2" x 2' x muscles deep on the back of the scalp and to swellings one of which was 5' x 5--" with red colour mark on the outer side of the arm. The trial Court observed that the immediate cause of the fight was not as deposed to by the prosecution but something happened just before the incident which made the parties to measure their strength.
7. The plea of the defence was that Ghulam Muhammad deceased and Shah Muhammad the given up P. W. Were cutting the branches from outside the house of the appellant when Mst. Hajran objected to it. The deceased and Shah Muhammad resented this. Ghulam Muhammad deceased was armed with a takwa and Shah Muhammad with a lathi and they gave injuries to, Mst. Hajran with their respective weapons. When Ali Muhammad appellant proceeded to protect his mother he was also given injuries and in exercise of the right of private defence he inflicted injuries on the deceased. He denied the presence of his other co-accused at the spot.
8. The learned Sessions Judge found that the dying declaration of the deceased was a fabrication.
He observed that the occurrence had taken -place at about 6-30 a.m. And Abdul Nabi Lambardar had reached the place of occurrence within 15 minutes. The evidence shows that the injured person was not removed for another to and a half hours from the spot and while he was being taken to the dispensary the A. S. I. Met the complainant party at the bus stand. . Now the evidence shows that the police post is at a distance of 1-- miles and the bus stand is at a distance of 2-- or 3 miles. It is not explained as to why the complainant party who were carrying the deceased in a grievously injured condition should have chosen to traverse a longer distance to go to the bus stand: The dying declaration is said to have been recorded at 1-45 p.m. And the deceased was admitted in an injured condition in the dispensary at 2 p.m. It appears from the evidence that when he reached the dispensary he was unconscious. There is no explanation why the complainant, party should have waited at the spot for 2-- hours before starting for the police post. Moreover their first anxiety should have been to carry the injured person to the hospital for treatment.
According to the estimate of the given by the witnesses the complainant party left the place of occurrence at about 9 a.m. And they must have covered the distance of 2-- miles to the bus stand at the maximum within to hours. It is not known how the statement of Ghulam Muhammad came to be drawn up at 1-45 p.m. The inference of the learned Sessions Judge is that the deceased was in an unconscious condition when he was admitted in the dispensary and in order to avoid that difficult situation the Sub-Inspector resorted to fabricating the dying declaration giving out that the deceased had made a statement to him at the bus stand before his admission into the dispensary.
We entirely agree with the reasoning of the learned Sessions Judge and hold that the dying declaration is not a genuine document.
9. As stated above the ocular testimony consisted of the statement of Muhammad Sharif (P. W. 10) a brother of the deceased and Haq Nawaz (P. W. 11) who as would appear in the lines that follow was a partisan of the deceased. There is definitely bad blood between the parties. The deceased and Muhammad Sharif P. W. Were convicted for giving a beating to Mst. Hajran mother of the appellant. Maqbool the brother and co-accused of the appellant had initiated security proceedings against the deceased and Muhammad Sharif P. W. And some others. He placed on record the calendar and judgment of that case. Haq Nawaz P. W. Had given discrepant statement as to the part played by the accused before the committing Magistrate and at the trial. He also admitted that before he came to Court the Sub-Inspector had tutored hits the statement.
He is not an unattached witness as he was a defence witness in the case in which Mst. Hajran had been given a beating and the deceased and Sharif P. W. 10 had been convicted. He also appears to be a wajtakkar witness because he claims to have been going from his well to Sikandarabad along with the given up P. W. Abdul Hakim.
10. The ocular testimony loses all claims to be trust--worthiness because of the denial of both the witnesses that there was any injury on the person of Mst. Hajran and the appellant. The medical evidence clearly establishes the plea of All Muhammad that there were to persons who attacked him and his mother and they - were armed with different weapons. The learned Sessions Judge after disbelieving the testimony of the eye-witnesses has based the conviction on the statement of the appellant himself who admitted that he had given the beating in self-defence. There were in all 28 injuries -on the person of the deceased, out of which only three were grievous. These injuries resulted in the fracture of ulna bone of the left arm and the tibia and fibula bones of the right and left legs. The learned Sessions Judge observed that due to this beating the deceased must have been disabled and held that the appellant had exceeded his right of private defence.
11. While we agree with the finding of the learned Session Judge that under the circumstances of the case, the appellant exceeded the right of private defence, we do not think hi conviction under section 302, P. P. C. Was justified. Culpabl homicide will not be a murder if a person is called upon t defend, himself and then exceeds the right of private defence We have seen that the grievous injuries are on the arm an legs, therefore, an ink .Ion to kill cannot be inferred from these injuries. We before convert the conviction of the appellant to under section 304, Part II of the Pakistan Pena code and reduce his sentence to seven years rigorous imprison--ment