SAAD SAOOD JAN, J.--The appellants, Kalim Akbar (aged : 19 years) and his brother Abad-ur- Rehman's (aged 20 years), were convicted by an Additional Sessions Judge at Lahore of offences under sections 302 and 307, read with section 34 of the Pakistan Penal Code for causing the death of Muhammad Ali deceased and making murderous assault upon his brother Asif Ali (P. W. 14). For the offence under section 302, Kalim Akbar was sentenced to death while Abad-ur-Rehman's was directed to suffer imprisonment for life. For the offence under section 307 both appellants were ordered to undergo rigorous imprisonment for a period of ten (10) years. They were also directed to pay fines for the two offences. The appellants have filed a joint appeal against their convictions and sentences while the learned Additional Sessions Judge has made a reference to this Court for the confirmation of the sentence of death imposed upon Kalim Akbar. On its part the complainant party has preferred a criminal revision for the enhancement of the sentence awarded to Abad-ur- Rehman's. This judgment will dispose of all the three matters.
2. The deceased together with his parents and brothers resided in Koth Pir Abdur Rehman's in Mohallah Mushtaqpura within the limits of Police, Station, Moghalpura. The appellants owned a poultry farm in the vicinity of his house. Rajab Ali (P. W. 12), a brother of the deceased, was married to a young woman. According to the prosecution the appellants developed a liaison with this woman and started visiting the house of the deceased despite the protests of the family of her husband. In order to put an end to this intrigue Rajab Ali (P. W. 12) left the house some weeks before the occurrence and took residence in another locality known as Muslim-Abad. This did not deter the appellants who continued to visit the woman in her new abode as well.
3. It was further alleged by the prosecution that on 17th May 1979, at about 3-30 p. m., the deceased, his brothers, Rajah Ali (P. W. 12) and Asif Ali (P. W. 14) and his business partner Din Muhammad (P. W. 13) were present at the canal bank which was about 30 to 35 karams from the house of Rajab Ali (P. W. 12) and were discussing certain domestic matters. Suddenly the two appellants came there. Rajab Ali (P. W. 12) spoke sternly to them with regard to their visits to his house. The two appellants became infuriated and started abusing Ra .b Ali (P. W. 12) and his companions who swore back by way of retaliation. The two appellants then took out chhuris. Kalim Akbar stabbed the deceased in the chest. Abad-ur-Rehman's gave churri blows to Asif Ali (P. W. 14) and Din Muhammad (P. W. 13). Rajah Ali (P. W. 12) raised an alarm which attracted some passersby to the spot. Thereupon the appellants ran away with their weapons.
4. Immediately after the occurrence Rajah Ali (P. W. 12) took the deceased, Asif Ali (P. W. 14) and Din Muhammad (P. W. 13) to the Mayo Hospital for medical attention. The deceased died on the way.
5. At the relevant time A. S. I. Muhammad Yusuf (P. W. 16) was incharge of Police Post Kumharpura.
He learnt about the occurrence at 4.00 p. m. While he was on patrol duty. He immediately proceeded to Mayo Hospital, Lahore where he met Rajah Ali (P. W. 12) at 5 p. m. He recorded the statement (Exh. P. K.) of Rajab Ali (P. W. 12). On the basis of this statement an F. I. R vitas later e corded at Police Station Moghalpura at 5-30 p. m.
6. The post-mortem examination of the deceased was performed by (P. W. 1) Dr. Tahir Anees.
Deputy Police Surgeon, on 18May, 1979. The deceased had a stab wound 3 c. m. x 7 c. m. On the upper front part of the outer portion of the left chest and an incised wound at about the same location. On dissection the doctor found that the left pleura and the left lung had been injured. In his opinion the stab wound was sufficient in the ordinary course of nature to cause death. He also thought that the deceased had died within fifteen minutes of the receipt of the injuries.
7. Dr. Tahir Anees (P. W. 1) also examined Asif Ali (P. W. 14) and Din Muhammad (P. W. 13). They both had one stab wound each on the left side of the front of the chest. Their injuries were simple in nature.
8. The investigations were mainly carried out by S. I. Muhammad Naseeb Khan (P. W. 15). He arrested Kalim Akbar on 18May, 1979. At the time of his arrest Kalim Akbar had some injuries on his person. He was produced before Dr. Tahir Anees (P. W. 1) for examination. According to the doctor he had two stab wounds, one on the buttock and the other on the lower part of the back of the left chest, in addition to a superficial cut on the right thigh and a contusion on the right arm. He also complained of the pain on the back of the left hand.
9. On 26th May, 1979, Kalim Akbar led a police party headed by S. I. Muhammad Naseeb Khan (P. W.
15) to his poultry farm and from there produced a blood-stained chhuri (P. 4). This recovery was also witnessed by Talib Hussain (P. W. 9) and one Shaukat Ali who was not produced at the trial.
The chhuri was later sent to the Chemical Examiner and the Serologist. According to their reports the blood on the chhuri was of human origin.
10. On 1st June 1979, Abad-ur-Rehman's also led a police party headed by S. I. Muhammad Naseeb Khan (P. W. 15) to the bridge of the canal and after digging out some earth he took out a chhuri.
This chhuri was not sent to the Chemical Examiner or the Serologist for examination.
11. The two appellants pleaded not guilty to the charges against them. Abad-ur-Rehman's denied that he had anything to do with the occurrence and alleged that he was not present on the occasion. On the other hand Kalim Akbar admitted that he had inflicted the fatal blow upon the deceased and had also caused injuries to Asif Ali (P. W. 14) but took the plea of self-defence. He stated that there was a dispute between him and Rajah Ali (P. W. 12) over a cart and on the day of occurrence Rajah Ali (P. W. 12) invited him to his house to settle the dispute. It was really an ambush for as soon as he entered the lane leading to the house of Rajah Ali (P W. 12), he encountered the deceased and Asif Ali (P. W. 14) who started quarrelling with him. During the course of the quarrelth th the deceased and Asif Ali (P. W. 14) took out chhuris and attacked him. Din Muhammad (P. W. 13) also arrived at the spot. When he attempted to intervene he was inured by Asif Ali (P. W. 14). He snatched away the chhuri from Asif Ali (P. W. 14) and started to run. The deceased and Asif Ali (P. W.
14) ran after him. The deceased gave a number of chhuri blows to him on the back and Asif Ali (P.
W. 14) struck him with an iron bar. In order to save his life he also gave one blow each with the chhuri to the deceased and Asif Ali (P. W. 14). Later, he on his own appeared at the Police Station with the chhuri and narrated the whole story. It may be mentioned that neither of the appellants produced any evidence in his defence.
12. At the trial the prosecution examined three persons to give an eye-witness account of the occurrence. They were Rajah Ali (P. W. 12), Din Muhammad (P. W. 13) and Asif Ali (P. W. 14). Din Muhammad (P. W. 13) was declared hostile when he did not support the case of the prosecution.
This leaves us with the testimony of Rajah Ali (P. W. 12) and Asif Ali (P. W. 14) only. As already stated they were real brothers of the deceased. They stated that they were present at the time of occurrence and had seen Kalim Akbar stabbing the deceased and Abad-ur---Rehman's giving chhuri blows to Asif Ali (P. W. 14) and Din Muhammad (P. W. 13). They refuted the version given by Kalim Akbar in his defence.
13. So far as Asif Ali (P. W. 14) is concerned his presence at the spot does not admit of any doubt.
Soon after the occurrence he had a stab wound on his body. Kalim Akbar appellant also spoke about the participation of this witness in the occurrence. But so far as Rajah Ali (P. W. 12) is concerned there is no such certainty. It is to be noticed that while two of his brothers were seriously injured he himself escaped entirely unscathed. No doubt the F. I. R. Is based upon his statement but that document by itself is of doubtful validity. In this context the mention of only one circumstance will perhaps suffice. A. S.-I. Muhammad Yusuf (P. W. 6) admitted that he reached the hospital after both Asif Ali (P. W. 14) and Din Muhammad (P. W. 13) had been medically examined by the doctor. It appears to be true as when they went to the doctor they were not accompanied by any police officer. From the statement of Dr. Tahir Anees (P. W. 1) it appears that Din Muhammad (P. W. 13) was examined by him at 6-15 p. m. It is thus clear that A. S.-I. Muhammad Yusuf (P. W. 16) reached the hospital after 6-15 p. m. He could not therefore possibly record the statement of Rajah Ali (P. W. 12) before 6-15 p. m. Yet in the F. I. R. The time of its recording has been mentioned as 5-30 p. m. It therefore appears that the F. I. R. Was not recorded at the time noted therein.
14. However that may be, Rajab Ali (P. W. 12) and Asif Ali (P. IN 14) do not appear to have given a full account of the occurrence inasmuch as they have failed to explain how Kalim Akbar appellant got injuries. During the course of arguments before us the learned counsel for the complainant suggested that the injuries of Kalim Akbar were self---inflicted. It does not appear to have been the case of the prosecution at the trial. When Dr. Tahir Anees (P. W. 1) appeared in the witness-box no such suggestion was made to him. The injuries were serious enough for the doctor to have kept them under observation for some time. It may also be mentioned that according to the opinion of the doctor the duration of the injuries coincided with the time of the occurrence. In the absence of any explanation preferred by the prosecution it seems reasonable to infer that Kalim Akbar appellant was wounded at the hands of the complainant party.
15. The defence version as narrated by Kalim Akbar appellant finds no support whatsoever from the record. The suggestions made by the defence to the witnesses in this regard were denied by them and the appellants led no evidence of their own to substantiate their story.
16. The motive for the occurrence as suggested by the prosecution also seems to be unconvincing.
According to Rajab Ali (P. W. 12) he had a young were and the appellants had their poultry farm in the vicinity of his house. They started visiting his house in order to further an affair with his were.
With the object of terminating this liaison he shifted his residence to Muslim-Abad. Now admittedly he was sharing his earlier residence with his parents and brothers. It appears unlikely that in the presence of so many close relatives the appellant would be visiting his house in order to carry on an intrigue with his were. It is even more implausible in order to prevent the appellants from meeting his were he would move over to another house, not too far away from his quondom residence, where his were would be all alone and thus provide a more unrestrained access to her admirers. In this context it may be mentioned that according to Asif Ali (P. W. 14) his brother's were was not getting on well with her in-laws. This may perhaps be the reason why Rajab Ali (P. W. 12) chose to take an independent house of his own.
17. The occurrence took place on the metalled road which runs along the canal. Rajab Ali (P. W. 12) claimed that the place of occurrence was 30/35 Karams from his house. Although in the site plan (Exh. P. E.) some houses of the abadi of Muslim-Abad have been shown the house of Rajab Ali (P W.
12) is not among them. According to the draftsman (P. W. 2) the house of this witness was at considerable distance from the spot. It was not the case of the prosecution at the trial that at the time of the occurrence the appellants were going to the house of Rajab Ali (P. W. 12) or that they were coming out of it. The scene of occurrence being a public thoroughfare it is not unlikely that at the relevant time the appellants were passing the place of occurrence on their business which had nothing to do either with Rajab Ali (P. W. 12) or his were.
18. From the statements of the eye-witnesses and the story given in the F. I. R. It does not appear that the appellants had come to the scene of occurrence with any already set intention of attacking the com--plainant party. It was the case of the prosecution itself that when the two appellants arrived at the spot it was Rajab Ali (P. W. 12) who fired the first salvo by sternly warning them against visiting his house. As to what that stern warning was (the actual words being, none of the witnesses for the prosecution gave any details. However that may be, according to the witnesses, the warning was followed by an exchange of abuses between the parties, and immediately there--after the two appellants took out chhuris. Now, their version is essentially of a partisan nature. It is to be noticed that during the course of occurrence persons from both sides were injured. The deceased had two injuries while Asif Ali (P W. 14) and Din Muhammad (P. W. 13) received one injury each From the other side Kalim Akbar appellant suffered three sharp-edged injuries and possibly two blunt weapon injuries. Injuries of Asif Ali (P. W. 14) and Din Muhammad (P.
W. 13) were so serious that on the first day the doctor had declared them unfit to make any statement. Considering the probabilities it appears unlikely that after the receipt of their injuries, the deceased, Asif Ali (P. W. 14) or Din Muhammad (P. W. 13) would have been in a position to snatch away a chhuri from any of the appellants and the possibility, therefore, that it was Kalim Akbar appellant who was first attacked by the com--plainant party cannot be precluded. If this were indeed so Kalim Akbar appellant and his brother Abad-ur-Rehman's would have had every right to counter attack their assailants in order to protect themselves or each other.
19. Taking the above circumstances into consideration we are unable A to support the conviction and sentences of the appellants as recorded by the learned Additional Sessions Judge for the circumstances do suggest that possibly the complainant party was attacked by the appellants in exercise of the right of self-defence. We would, therefore, set aside the conviction and sentences of the appellants and acquit them of the charges against them. They shall be set at liberty forthwith if not required in any other case.