Javed Ahmad, Parvez Ahmad, Nazir Ahmad Butt appellants along with Mst. Nasira Parveen co- accused were tried by Mr. Munawar Hassan S. Farooqi, learned Additional Sessions Judge, Lahore, for the murder of Dr. Muhammad Ramzan. The learned trial Court by its judgment dated 30-8-1979, acquitted Mst. Nasira Parveen accused, but convicted the three appellants under section 304/34, P.
P. C. And sentenced Javed Ahmad and Nazir Ahmad Butt to ten years rigorous imprisonment and a fine of Rs. 5,000 each or in default to suffer three months further rigorous imprisonment each and Parvez Ahmad to five years rigorous imprisonment and a fine of Rs. 2,000 or in default to suffer farther rigorous, imprisonment for one month. The fine, if recovered, has been directed to be paid to the heirs of the deceased. The appellants have filed this appeal (Cr. A. No. 960 of 1979) against their conviction anal sentence, whereas Akbar Ali complainant has filed Cr. R. No. 884 of 1979 for enhancement of the sentence of the three appellants and also against the acquittal of Mst. Nasira Parveen (acquitted co-accused). This judgment disposes of the Criminal Appeal as well as the Criminal Revision.
2. The occurrence took place at about 6 a. In. On 21-5-1978 and Akbar Ail complainant lodged report (Exh. P. A.) at 9.30 a. m. At Police Post Shalimar, Lahore, on the basis of which F. I. R. (Exh. P. A- 1) was registered at 10 a. m. The same day at Police Station, Baghbanpura, by Muhammad Sharif Muharrir A. S. I. (P. W. 1).
3. The resume of the case for the prosecution is that on 21-5-1978 at about 6 a. m. Akbar Ali (P. W.
10) was tying the mare with the tonga in front of his house in the presence of Muhammad Sarwar (P. W. 11), Jawed Ahmad (P. W. 12), one Naseer, knot produced) and Muhammad Ramzan deceased, when Javed Ahmad appellant passed nearby and saw the deceased Muhammad Ramzan in an angry mood. When the deceased enquired from him, Javed Ahmad appellant replied that he would tell him and went away. Shortly thereafter the three appellants, namely, Javed Ahmad, Parvez Ahmad and Nazir Ahmad Butt along with Mst. Nasira Parveen (acquitted co-accused) appeared at the scene of incident and at :he same time Mst. Nasira Parveen threw a lalkara not to spare the life of Muhammad Ramzan deceased and simultaneously accused Nazir Ahmad Butt caught hold of the deceased and Javed Ahmad accused who was armed with a chhuri, gave blows with it in the chest and left side of the abdomen of deceased Ramzan. When the P.Ws.
Intervened, they were also attacked by Javed Ahmad and Parvez Ahmad accused by hammer and by giving teeth bite, etc. When the P. Ws. Raised an alarm, the accused made good their escape.
The deceased succumbed to the injuries while he was being taken to the Mayo Hospital.
Accused laved Ahmad and Parvez Ahmad were arrested on 21-5-1978 and Mst. Nasira Parveen was arrested on 22-5-1978 by Muhammad Ishaq Sub-Inspector (P. W. 14), while accused Nazir Ahmad Butt was arrested on 29-5-1978 by Muhammad Munir Ahmad S. H. O. Police Station, Baghbanpura, (P W. 15). On 23-5-1978, accused Javed Ahmad led to the recovery of chhuri (Exh. P. 4) which was taken into possession by Muhammad Ishaq S. I. (P. W. 14) vide Memo. Exh. P.
1. Similarly, hammer (Exh. P. 5) was recovered at the instance of Parvez Ahmad accused on the same day and it was taken into possession vide Memo Exh. P. J. Both these recoveries have been attested by Muhammad Sharif (P. W. 9), Muhammad Hanif (not produced) in addition to the Investigating Officer. Blood-stained earth was taken into possession by the Investigating Officer from the spot vide Memo. Exh. P. K. This recovery Memo was attested by Akbar Ali (P. W. 10) and Muhammad Sarwar (P. W.11). These articles were sent to the Chemical Examiner-who vide his report (Exh. P. V.) opined that they were stained with blood, while the Serologist vide his report (Exh. P. W.) found the blood to be of human nature.
4. Dr. Imtiaz Ahmad Bhatti (P. W. 7) conducted the post-mortem examination on the dead body of Muhammad Ramzan and found the following injuries on it:-
(1) Stab wound 3-- c. m. x 1-- c. m. x going deep with loop of small intestine and piece of omentum lying outside over left mid abdomen at 3 o'clock position 7-- c. m. To the left of umbilicus.
(2) Incised wound 4-- c. m. x -- c. m. x skin deep just below left nipple.
The same doctor medically examined Muhammad Sarwar (P. W. 11) and found five simple injuries on his person within 8; 9 hours duration caused by a blunt weapon of course with the exception of injury No. I which was the teeth bite.
Dr. A. R. Buryal on 21-5-1978, medically examined Muhammad Javed (P. W. 12) and found two simple injuries on his person which were caused by a blunt weapon and were fresh.
The same doctor on the same day medically examined Akbar Ali (P. W. 10) and found a lacerated simple wound on his person which was fresh.
Dr. Muhammad Nazir Chatha (P. W. 13) medically examined Jived Ahmad accused and found sixteen-simple injuries on his person. Two injuries were caused by a sharp-edged weapon, while the rest were caused by a blunt weapon within the duration of 11 hours.
The same doctor on the same day medically examined Parvez Ahmad accused and found seven simple injuries on his person caused by a blunt weapon within the duration of 11 hours.
5. The motive for this incident as given in the F. I. R. Is that Javed Abmad, Parvez Ahmad appellants and lust. Nasira Parveen (acquitted co-accused) had been challaned in an abduction case of a girl of the Mohallah named Abida Parveen and Muhammad Ramzan deceased had given evidence against them and further that the accused suspected that the deceased was helping their landlord in vacating the house an the occupation of the accused.
6. All the accused denied the prosecution allegations and pleaded not guilty to the charge. They claimed the right of self-defence of person and showed the complainant party as aggressors and that is the plea to which they have stuck in appeal. In support of their innocence Javed Ahmad and Nazir Ahmad Butt accused have produced Abdul Hamid D. S. P. And Muhammad Sarfraz, Inspector, Crimes Branch as D. W. 1 and D. W. 2, respectively.
7. As regards the motive, I will state at the outset that the allegation that the appellants were challaned for the previous abduction case is found to be incorrect. However, there is no previous background of enmity except the estrangement of relations over the abduction matter.
8. In view of the plea of the appellants the evidence of recoveries is not very material, and in any case, the learned trial Court has not believed the same and has observed:-- "Besides them there is the medical evidence, police persons' evidence and recovery evidence through P. W. 9 Muhammad Sharif who has deposed that both the accused Nos. 1 and 2 produced chhuri and hammer voluntarily from beneath the staircase and paiti lying in their house. No reliance can be placed on this recovery evidence firstly because both the accused have admitted their joining the incident and secondly because P. W. 14 Muhammad Ishaq I.O. Has belied the recovery witness on a number of points including the house being locked from outside, etc."
(The underlining' is mine).
9. No doubt all the three eye-witnesses, namely, Akbar Ali (P. W. 10), Muhammad Sarwar (P. W. 11) and Javed Ahmad (P. W. 12) are injured witnesses, but it only establishes the fact that they were present at the time of incident and not the fact that what they are stating is the truth rather the whole truth, or that they have not suppressed tire material facts which go against them. They have suppressed the 16 injuries suffered by Javed Ahmad appellant and 7 injuries suffered by Pervaiz Ahmad appellant. Out of the 16 injuries suffered by laved Ahmad appellant, three are on vital organs. The Investigating Officer admits that they were suffered in the incident and the case of the appellants is that they were lying unconscious on the spot and when the police arrived after the incident, they were despatched to the hospital and since the injuries were of such a number and nature that they could not be suppressed, therefore, this aspect had to be brought on record despite the fact that the complainant had suppressed the same in the F. I. R. Akbar Ali P. W. Is nephew of the deceased, Javed Ahmad P. W. Is son of the deceased and Muhammad Sarwar P. W.
Is also, in a way, a nephew of the deceased. The relationship of all the three eye-witnesses with the deceased is not denied.
"All the three eye-witnesses P. W. 10, P. W. 11 and P. W. 12 (whose being present at the time of occurrence cannot be doubted because they were injured) have deposed that at about 6 a. m.
When they along with the deceased and one Nasir (not examined) were standing near their house, accused No. 1 came and saw the deceased with angry mood and when inquired, he went away threatening that he would just tell. There is no discrepancy so far as this part of evidence viz-a-viz the contents of the F. I. R. Are concerned. It is next deposed that two minutes thereafter the accused Nos. 1, 2 and 3 came and accused No. 4 also came out of his house and on the lalkara of accused No. 3 and on the signal of accused No. 1, accused No. 4 caught hold of the deceased when accused No. 1 inflicted chhuri blows on his chest etc. And when the complainant and P. W. Javed intervened, they were given hammer blows by the accused No. 2 and when P. W. Sarwar intervened be was given teeth-bite by accused Javed. This part of the evidence suffers from various discrepancies when compared with the contents of the F.1. R., the most important being that accused Nasira has not been described in F. I. R. To have come along with her sons but after the describing of complete occurrence, it has been stated that she continued lalkaras. It also remains to be explained as to where was the necessity for accused No. 1 to give a teeth-bite to P. W. Sarwar if actually he was carrying a chhuri as alleged. In regard to the responsibility of accused Nos. 1 and 2 in causing the death of the deceased and injuring the P. Ws. It may here be stated that as already indicated above they had acted in their right of private defence and this allegation of giving teeth-bite by the accused No. 1 also supports this view. The sole question is as to whether they exceeded their right of private defence. It has been argued on behalf of the prosecution that the time when the right of private; defence accrued is missing from the writer, reply as well as the evidence. But as already indicated above it looks that accused No. 1 had no chhuri and after being inflicted with not less than 16 injuries including the sharp-edged weapon injuries, he snatched it from P. W. Sarwar, and, therefore, right of private defence had accrued to the accused when No. 1 was being injured and so also accused No. 2. At this moment the accused No. 1 appears to have given signal to the accused No. 4 so as to catch the deceased and let him exercise the right of the said private defence. Under section 100, Cr. P, C. The right of private defence of the body extends to causing death when an act reasonably causes the apprehen--sion of death or grievous hurt. In the light of this provision when 1 look carefully into the injuries of accused No. 1 it is not difficult to conclude that none of them being grievous or with force on vital parts of the body, were likely to cause death nor there could be any such apprehension reasonably. Doctor P. W. 13 who examined the accused has been suggested that death can occur by twisting the testicles but he has not stated with certainty that the relevant injury No. 14 is a result of twisting thereof. Similarly, he has opined that only the contents of the head and chest are vital parts. They were fighting with each other and in the light of nature of injuries, there could be no reasonable apprehension of death or grievous hurt. Both the said accused, therefore, in furtherance of their common intention exceeded the right of private defence by giving two sharp weapon injuries to the deceased causing the death."
10. Since the learned trial Court has conceded the right of self-defence to the appellants, but he held them guilty of exceeding the same, therefore, 1 have thought it prudent to quote above the relevant entracts in extenso so that the reasoning in support of this finding may not have to be repeated.
The Investigating, Officer accepts that the appellants suffered the injuries noted in the medico- legal reports during the course of the incident. The prosecution has chosen to suppress the same therefore, implicit reliance cannot be placed on their version. Excepting the fatal injury, the rest suffered by the both sides are of the same character and of about the same dimensions and it appears that the incident was preceded by grappling and fist blows etc. And the chhuri was not with the accused side, to begin with, as it does not stand to reason that Javed Ahmad appellant would give a teeth-bite while he was armed with a chhuri. The attribution of teeth-bite is suggestive of the fact that Javed Ahmad appellant was not armed with any weapon at that time and during the course of incident was almost helpless at one stage.