The appellant Safdar Ali alongwith his co-accused was sent up to face trial in case FIR No, 59, registered at Police Station Ahmedabad, District Gujranwala on 29.03.2003 for offences under Sections 302/ 324/109, PPC. Vide judgment date 30.11.2005 the learned trial Court convicted the appellant under Section 302(b), PPC and sentenced him for imprisonment for life. He was also directed to. pay Rs, 1,00,000/- to the legal-heirs of the deceased as compensation under Section 544-A, Cr.P.C. and in default whereof to further undergo six months S.I. Benefit of Section 382-B, Cr.P.C. was also extended to him.
2. Succinctly, the facts of the case as narrated in the FIR are; that the complainant (PW7) is resident of Maqbool Shaheedabad, IVIorreAimenabad, and is a businessman. His brother Wazir Hussain and two nephews namely Amir Wazir and Irfan Wazir are living in Unaan (Greek) since 20 years for earning their livelihood, whereas his other nephew Usman Wazir aged 18-1/2 years was living in the village alongwith his family. On 29.03.2003 at about 12.30 noon his nephew Usman Wazir who was student of 9th class was going to Kamoke for giving paper through NLC Road alongwith complainant, who was going to Morre Aiemenabad at his Show-Room. When they .reached at Railway Crossing, they heard noise of. Wasif Yousaf on the eastern side of Railway Crossing near Dera Changran. Wasif was accompanied by Rashid Mehmood, Ayyaz, Manzoor Shah, Ijaz who were also going to appear in the examination. On hearing the noise, the Complainant alongwith Usman Wazir reached Dera Changran and saw that accused Tariq who was armed with dagger gave dagger blow to Wasif Yousaf which hit on his left arm. They tried to intervene and save Wasif Yousaf, Muhammad Ashiq son of Muhammad Hussain accused raised alarm to finish the complainant party. In the meanwhile, accused Safdar gave dagger blow to Usman Wazir on his left thigh on upper side. Muhammad Ilyas accused fired from his .30 bore pistol on the complainant, he escaped and fire hit the leg of Akram. The complainant also raised hue and cry which attracted Muhammad Asif, Abdul Hafeez, Muhammad Asad and Ansar Zeeshan upon which Shahzad accused gave dagger blow on the chest of Aslam. Abdul Razzaq accused gave dagger blow on the back side of chest of Abdul Hafeez. Accused Muhammad Iqbal gave dagger blow to Muhammad Asad on his left leg. Accused Muhammad Akram gave dagger blow on Ansar Zeeshan.
Muhammad Afzal gave dagger blow on the right hand of Muhammad Asif. Muhammad Saleem accused gave dagger blow on the left arm of Muhammad Asim. Accused Shabbir gave dagger blow on the left arm of Abdul Hafeez. Two unknown persons, one armed with pistol and one armed with dagger were also with the accused. One of them took Asad, injured PW in his Jappha and the other raised Lalkara and made firing, brandished dagger in the air and attempted to cause dagger blow to the complainant but he saved himself while going to the other side. Wazir Usman deceased was taken into Jappha by Muhammad Fayyaz son of Muhammad Iqbal. Usman Wazir injured in serious condition was taken to the hospital but he succumbed to injuries. The motive behind the occurrence was that Wasif Yousaf and accused party had exchanged hot words, the same day in the morning. The complainant submitted application (Ex. PE) before the police and on the basis of which FIR (Ex. PE/1) was registered.
3. After registration of case, the I.O., (PW13) went to the Civil Hospital, Kamoke where deadbody of Usman Wazir Ali was lying. He prepared inquest report (Ex. PN) and injury statement (Ex. PO). He drafted application (Ex. PL/1) for postmortem examination. He reached the place of occurrence and took into possession the blood stained earth vide memo. (Ex. PA), prepared rough site-plan of the place of occurrence (Ex. PM/1) and recorded the statements of the PWs under Section 161, Cr.P.C. He also obtained the MLRs of the injured PWs through application (Ex. PQ) and recorded their statements. Last worn clothes of the deceased, shirt PI, underwear P2, Patloon P3 were produced before the Investigating Officer by Constable Tahir Sohail (PW8) which he took into possession vide memo. (Ex. PB) and also prepared a scaled site-plan (Ex. PD & PD/1). He arrested Muhammad Safdar, Shahzad, Abdul Razzaq, Muhammad Iqbal, Muhammad Saleem, Muhammad Afzal, Tariq and Ilyas accused on 25.04.2003. During the investigation accused Muhammad Safdar led to the recovery of knife P4 and accused Shahzad led to the recovery of dagger like knife P5. Recovery of dagger had also been effected from the accused Tariq during interrogation. The Investigating Officer also got prepared site-plan of the places of recoveries vide memos. (Ex. PF/1, Ex. and PG/1).
4. After completion of investigation the appellant alongwith his co-accused was sent up to face the trial.
5. In order to substantiate its version the prosecution produced as many as 13 witnesses. The prosecution after tendering in evidence the report of Chemical Examiner Ex. PR and that of Serologist Ex. PR/1 has closed its case. Dr. Maqsood Ahmad Mughal and one Inam Ullah had also appeared as CW1 and CW2, respectively. The appellant got his statement recorded under Pakistan Penal Code, 1860 (XLV of 1860)-- 302(c)--Conviction and sentence--Challenge to--Modification in sentence--Convertion of conviction--Sentence reduced--No previous enmity to show intention of murder--Plea taken self defence put forward was reasonably possible--Appellant inflicted only one below and did not repeat--Appellant had conferred the fact of causing injury with daggar to the deceased but claimed that the complainant party criminally- trespassed by scaling over the wall in his house and he acted in exercise of the right of private defence--In the circumstances when appellant's uncle also suffered an injury and the prosecution totally suppressed the same, the act done by the appellant in the situation was under the stress of human feelings--The answer of the question which the appellant had acted can easily be conceived that in the circumstances when his house was attacked he must be deemed to have acted with the intention to safe himself or to his other family members--Evidence of culpable homicide will not amount to Qatl-e-Amd, if one caused the injury, which resulted into death while exercising lawful sight of private defence where a clash between the two rival parties took place at the spur of moment--Prosecution has not even alleged premeditation for the act of killing-- He must have caused injury to ward off. danger because the complainant was aggressor and the fight was initiated by the complainant party in which uncle of appellant also suffered injury at the hands of aggressor--Appellant has exceeded from his right of defence and caused more harm than was necessary and was guilty of culpable homicide--He should not have been punished u/S. 302(b) PPC--Conviction was converted u/S. 302 (b) PPC into u/S. 302(c) PPC and reduced his sentence with modification in sentence--Appeal dismissed.[Pp. 241 & 242] A & BSection 342, Cr.P.C, and pleaded his innocence. He while answering to a question states as under: "I have been falsely involved in this case. Complainant party alongwith 100/125 companions of Raga attacked on my father house. They brick batted inside the house. 5/6 persons out of unlawful assembly scaled over the wall and entered into my house. They dragged my mother and sister. I was also attacked by Usman Wazir. I snatched and gave a khanjar blow to save myself and my family from Usman Wazir fall out side the house. Accused persons also injured my uncle. Akram with fire-arm was rushed to hospital land I ran away from the place of occurrence after throwing khanjar at the spot."
The appellant, however, did not opt to appear as a witness under Section 340(2), Cr.P.C. After conclusion of the trial the appellant has been convicted and sentenced as mentioned in the opening para of this judgment.
6. The complainant (PW7) got lodged this case against Tariq, Muhammad Ashiq, Muhammad Ilyas, Shahzad, Abdul Razzaq, Muhammad Iqbal, Afzal, Saleem, Qamar Ali, Yousaf, Muhammad Akram, Shabbir and the appellant Safdar Ali, who were challaned. Except accused Tariq, Shahzad and Safdar, remaining accused were acquitted on the basis of compromise.
7. Learned counsel for the appellant argued that the mode of occurrence has not correctly been stated by complainant (PW7) and other witnesses. In the case cross-version was recorded and deceased Usman Wazir was nominated as accused. In in fact deceased alongwith large number of accused assaulted at the house of the appellant and one of those fired at Akram hitting on his left leg. That fact complainant party was aggressor and SHO/Inspector verified the investigation conducted by Muhammad Nawaz. According to this investigation complainant party was found aggressor and Usman Wazir deceased was one of those accused who criminally assaulted at the house of appellant. That the deceased was a trouble-creator. The recovery of dagger has not been effected from the appellant. The witnesses of the prosecution are closely related and interested.
8. Learned DPG controverted these grounds raised and argued that the appellant was nominated in the FIR with specific role. The evidence of complainant PW7 and of eye-witnesses PW6 and PW9 succeeded to establish the guilt of the appellant. There was direct evidence supported by medical evidence. Motive also is not denied and the recovery effected fully supports to the case of prosecution. It is also argued that the appellant party waylaid Usman Wazir deceased when he was on his way to appear in examination of 9th class and the appellant gave him chhuri blow. The deceased was of the age of about 15 years and appellant has been rightly convicted and sentenced in accordance with law.
9. Heard. Record perused. In this case the motive was deposed by PW6 Wasif Yousuf that on 29.03.2003 at 7.00 a.m. he and Usman Wazir advised to co-accused Shabbir, Shahbaz, Fayyaz and Tariq etc. not to sit on railway line because their ladies had to pass through but the co-accused has abused Usman Wazir. At that time an altercation took place. Feroze Din (PW7) and Muhammad Asif, PW9, intervened and got spared. PW7-complainant also named to appellant and explained the motive in the same manner. The deceased Usman Wazir and Wasif Yousuf were going alongwith ' railway line where appellant alongwith Abdul Razzaq and Shabbir (since acquitted) were present at railway line. Wasif and Usman deceased asked them not to sit there because their sisters and other ladies used to pass from there and a quarrel took place between Safdar and others but the complainant got them separated. The perusal of statement of PWs. 6 & 9 corroborates that occurrence has taken place for admonishing the appellant and his co-accused (since acquitted) to not sit on the railway line because their sisters and ladies used to pass there from. According to the statement of appellant under Section 342, Cr.P.C. the complainant party alongwith 100/125 persons attacked on his father's house. They brick batted inside the house. 5/6 persons out of the unlawful assembly scaled over the wall and entered into the house. They dragged his mother and sister. He was also attacked by Usman Wazir. He snatched the dagger and gave blow to Usman Wazir in order to safe his life, and of his family. The complainant also injured to his uncle Akram with fire-arm who rushed to hospital. DW1 Shahid Safdar, Inspector verified the investigation of Muhammad Nawaz, SI and deposed that Muhammad Ilyas, Aslam and Qamar All were declared innocent and according to his investigation the complainant party was aggressor.
The deceased Usman Wazir was accused in the cross-version. Taking into account the statement under Section 342, Cr.P.C. and opinion of the Inspector verifying the investigation conducted by Muhammad Nawaz, SI, it becomes clear that the version of the defence that the occurrence has not been stated by the witnesses in correct manners carry some weight. The witnesses are closely related. One Muhammad Akram uncle of the appellant was also injured in the same occurrence and the prosecution had suppressed this fact while the deceased Usman Wazir suffered only one injury, which resulted into his death. The certain accused nominated in the FIR were found innocent and the complainant has not moved for transfer of investigation. The complainant also entered into compromise with many accused persons who were acquitted during the pendency of trial. The occurrence as reflects from the statements of the witnesses and keeping in juxta position, the evidence of defence and statement of the appellant under Section 342, Cr.P.C. it becomes clear that the appellant Safdar gave dagger blow hitting on right upper thigh at the junction of thigh and abdomen which resulted into his death. The injury on the body of Muhammad Akram has been suppressed who also suffered injury during the occurrence and leads to the presumption that the prosecution has not stated facts in correct manner. The plea taken of self defence put forward is reasonably possible. The prosecution has completely suppressed the mode of occurrence and injury on the body of uncle of the appellant. The plea taken by the accused find support to the extent of being reasonably possible from prosecution evidence. The appellant inflicted only one blow and did not repeat. There was no previous enmity to show intention of murder. The appellant has confessed, the fact of causing injury with dagger to the deceased Usman Wazir but claimed that the complainant party criminally trespassed by scaling over the wall in his house and he acted in exercise of the right of private defence. In the circumstances when his uncle also suffered an injury and the prosecution totally suppressed the same, the act done by the appellant in the situation was under the stress of human feelings. The answer of the question in statement under Section 342, Cr.P.C. what was the intention with which the appellant has acted can easily be conceived that in the circumstances when his house was attacked he must be deemed to have acted with the intention to safe himself or to his other family members. The evidence of culpable homicide will not amount to Qatl-e-Amd if one caused the injury, which resulted into death while exercising lawful right of private defence where a clash between the two rival parties took place at the spur of moment. In the case the prosecution has not even alleged premeditation for the act of killing. He must have caused injury to ward off danger because the complainant was aggressor and the fight was initiated by the complainant party in which uncle of appellant also suffered injury at the hands of aggressor (complainant). The appellant has exceeded from his right of defence and caused more harm than was necessary and was guilty of culpable homicide. He should not have been punished under Section 302(b); PPC.
10.The sum and substance of the above discussion is that the appellant was liable to be punished under Section 302(c), PPC. Therefore, I convert the conviction of the appellant under Section 302(b), PPC into under Section 302(c), PPC and reduce his sentence from life imprisonment to ten years R.I. The amount of compensation is reduced into Rs, 50,000/- which, if recovered shall be paid to the legal-heirs of the deceased and in case of default whereof, the appellant shall further suffer three months S.I. The benefit of Section 382-B, Cr.P.C. is maintained.
11.With the above modification in sentence, the instant appeal stands dismissed.