MUHAMMAD RAFIQ TARAR, J.-Fayyaz (26-27) and Riaz (24), sons of Abdul Latif, caste Pathan, residents of War Colony, Sargodha, were tried by the learned Sessions Judge, Sargodha, under section 302/34, P. P. C. On the allegations that on 2nd October, 1979 at . About 11 a. m. They committed the murder of Ghulam Muhammad deceased in the area of Zafar Colony, Sargodha City, in furtherance of their common intention. By judgment dated 29th March, 1980, they were convicted on the said charge. Fayyaz was sentenced to death subject to confirmation by this Court and a fine of Rs. 5,000 and Riaz was awarded imprisonment for life and a fine of Rs. 5,000. In default of payment of fine, they were ordered to undergo rigorous imprisonment for six months each. Out of the fine, if recovered, half the amount was ordered to be paid to the heirs of the deceased as compensation. The convicts have appealed and the case is also before us on reference for confirmation of the death sentence awarded to Fayyaz appellant. Both these matters shall be disposed of by this judgment.
2. Ghulam Muhammad deceased was the elder brother of Sher Muhammad complainant. Their sister Mst. Nathi P. W. Is the wife of Muhammad Akbar P. W. Mst. Razia is the daughter of Babu, another brother of the complainant. Mst. Rani is the sister of aforesaid Razia.
3. The prosecution version of the occurrence is that one and a half years prior to the occurrence Fayyaz and Riaz appellants abducted Mst. Razia and the complainant party got a case registered against them for her abduction. Consequent upon a statement made by her in Court, she was handed over to Fayyaz appellant who subsequently married her. During the days of occurrence the appellants and Mst. Razia used to reside in a house situate at a distance of 60/70 yards from the house of Muhammad Akbar P. W. On 2nd October, 1979 at about 11 a. m. Ghulam Muhammad deceased, Sher Muhammad complainant, Mst. Kausar, Mst. Nathi and Muhammad Akbar, P. Ws., were present in the house of the latter. Mst. Razia came all the way from her house and threw rubbish in front of the back-door of the house of Akbar P. W. Ghulam Muhammad deceased and Mst. Nathi went out and objected to the conduct of Mst. Razia, but she abused them: Ghulam Muhammad deceased admonished her saying that she was an abducted woman, upon which she went away towards her house abusing him and apprised the accused persons of the situation.
Ghulam Muhammad deceased and Mst. Nathi went back in the house bolting the door from inside.
After a shortwhile, both the accused persons climbed up the roof of the house of Akbar P. W. From - -the back side and jumped into the courtyard from over the verandat adjoining the roof. Fayyaz was armed with a Chhuri like dagger and Riaz, too, had a Chhuri with him. Fayyaz raised a Lalkara to Ghulam Muhammad that he would teach him a lesson for telling his wife that she was an abducted woman and simultaneously gave a Chhuri blow on his chest. Riaz also gave him several Chhuri blows hitting his left ear, back and finger of the left hand. Muhammad Akbar, Mst. Nathi, Mst.
Kausar and Sher Muhammad complainant hurled some stones on Fayyaz causing him injuries.
Both the accused then fled away. Ghulam Muhammad succumbed to his injuries at the spot.
Leaving his dead body with Muhammad Akbar etc., Sher Muhammad complainant went to Police Station City Sargodha and reported the occurrence to Muhammad Aslam, A. S. I., at 11.30 a. m. Vide F. I. R. Exh. P. F.
4. After recording the F. I. R., the A. S. I. Reached the spot along with the complainant. He prepared the injury-statement (Exh. P. K.) and inquest-report (Exh. P. L.) of the dead body which was lying on a cot in the Baithak of Muhammad Akbar P. W. And despatched it to the mortuary for post-mortem examination. Then he secured some blood--stai-ned earth from the spot and made it into a sealed parcel vide memo. Exh. P. G. Thereafter, Muhammad Akram, S. H. O., Police Station City Sargodha, took over the investigation from him. He searched for the accused and arrested both of them on the same day at Taxi Stand, Sargodha City. At the time of arrest Riaz appellant produced before him Chhuri (Exh. P. 4) which was made into a sealed parcel vide memo. Exh. P. J. Fayyaz appellant had injuries on his person. The S. H. O, prepared his injury-statement (Exh. P. M.) and sent him for medical examination. On 6th October, 1979 he led to the recovery of blood--stained Chhuri (Exh. P. 3) from under a gunny bag lying in his hotel opposite Masjid, Zafar Colony, Sargodha City.
The S. H. O. Made the same into a sealed parcel vide memo .Exh. P. H. After the investigation, both the accused were challaned.
5. On 2nd October, 1979 at 4.30 p. In. Dr. Muhammad Azeem Majoka, Medical Officer, D. H. Q.
Hospital, Sargodha, conducted the autopsy on the dead body of Ghulam Muhammad deceased and found the following injuries on it :-
(1) An incised wound 5 cm x 2 cm x chest deeep on front of left chest 2 cm below the medial part of clavicle.
(2) An incised wound 4 cm x 1 cm on left side of back of neck going into the chest.
(3) An incised wound 4 cm. x 1-- cm x chest deep on right side of back near lower end of scapula.
(4) An incised wound 1 cm x 1/2 cm x pinna of left ear cut.
(5) An incised wound 2 cm x 1/2 cm x 1/2 cm on front of left` index finger.
(6) An incised wound 2 cm x skin deep on front of left middle finger, middle digit and in line with injury No. 5.
In the opinion of the doctor, death was due to shock and haemorrhage caused by injuries Nos. 1, 2 and 3 which were sufficient to cause death in the ordinary course of nature. Each of these injuries was individually fatal. All the injuries were ante-mortem caused :by sharp--edged weapon. Time between injuries and death was few minutes and between death and post-mortem examination within 12 hours.
On the same day at 5-30 p. m. The same doctor examined Muhammad Fayyaz appellant and found the following injuries on his person :-
(1) A contused wound 3-- cm. x 1 cm, x 1 cm on right side of head 13 cm above the rigot ear.
(2) A contused wound 3--cm x --cm x 1 cm below injury No. 1.
(3) A contused wound 1 cm x -- cm x -- cm on center of head 2 cm behind the hair margin.
(4) An incised wound 4 cm x 1 cm x skin deep on back of left index finger.
(5) An incised wound 2--cm x -- cm. x 2 cm. In second left inter--space of hand.
(6) A lacerated wound 1-- cm x -- cm x 1 cm on back of left upper arm lower one-third.
Injuries Nos. 1, 2 and 3 were referred for X-ray and the rest were simple in nature injuries Nos.4 and 5 were caused by sharp-edged weapon and the rest with blunt weapon.
6. In support of its case the prosecution examined two eye-witnesses, namely, Sher Muhammad and Muhammad Akbar and it also relied on the recovery of blood-stained Chhuries at instance of the appellants.
7. The appellants pleaded not guilty to the charge. Fayyaz appellant admitted that his wife Mst.
Razia was the daughter of a brother of Ghulam Muhammad deceased. He denied having abducted her and stated that he married her with the consent of her father: He, however, admitted That a case was registered against him and his co-accused at the instance of the complainant but added that the same was cancelled. When asked whether Mst. Razia had informed him about the earlier incident in which Ghulam Muhammad had admonished her saying that she was an abducted woman, he stated that no such incident had taken place. He denied that Sher Muhammad, Muhammad Akbar, Mst. Nathi and Mst. Kausar pelted stones on' him and his co- accused, and gave a counter-version of the occurrence as under :- "In fact Mst. Rani, a sister of my wife Mst. Razia was confined and beaten by the deceased and the P. Ws. Muhammad Akbar, Sher Muhammad, Mst. Nathi and Mst. Kausar. T and 'my wife Mst. Razia were attracted on her cries ; I was also confined and beaten by the P. Ws. And the deceased and in the struggle in the exercise of my right of private defence I caused injuries to the deceased. My co- accused was not present there nor did he cause the deceased any injuries."
Riaz appellant contended that he had been falsely implicated on account of his relationship with Fayyaz appellant. The appellants did not produced any evidence in defence.
8. After examining the evidence on the record, the learned trial Judge observed that the ocular evidence furnished by Sher Muhammad and Akbar P. Ws. Was more than enough to prove the prosecution case". He, therefore, convicted and sentenced the appellants as mentioned above.
9. The learned counsel for the appellants contended that both the eye-witnesses were highly interested ; they deliberately suppressed the injuries of Fayyaz appellant and improved their statements at the trial in order to make them conform to the medical evidence, therefore, they were unworthy of credence. He further submitted that the recoveries were fake and circumstances were consistent with the assumption that Fayyaz appellant alone had caused injuries to the deceased in exercise of the right of self-defence. The learned counsel for the State frankly conceded that the ocular and recovery evidence was unsatisfactory and the state--ment of the accused has to be accepted in its entirety.
10. Sher Muhammad P. W: is the real brother of the deceased. Muhammad Akbar P. W. Is married with their sister Mst. Nathi. It is the prosecution's own case that both the appellants abducted Mst.
Razia, daughter of Babu Khan, another brother of the complainant, and a case was registered against them for her abduction. From these facts it is manifest that both the eye-witnesses are highly interested and, in that view of the matter, their evidence will have to be approached with great care and caution.
11. Both the appellants were arrested on the very day of occurrence and Fayyaz appellant was found having injuries on his person. He was medically examined by Dr. Muhammad Azeem. P. W.
Who found three contused wounds, one lacerated wound and two incised wounds on his person. At the -trial both the eye-witnesses stated that during the occurrence they along with Mst. Nathi and Mst. Kausar hurled some stones hitting Fayyaz appellant as a result of which he sustained injuries.
They, however, completely suppressed his injuries in their statements before the Police. Sher Muhammad complainant admitted that he did not state in Exh. P. F. (F. I. R.) that he and others had pelted stones on Fayyaz accused and he was hit. Muhammad Akbar P. W. Stated that he did not remember having stated so before the Police. He was confronted with his Police-statement wherein it was not so recorded. It is evident that both the eye-witnesses have made material improvement at the trial in order to explain the injuries found on the person of Fayyaz accused. It need be mentioned at this stage that despite this improvement, the eye-witnesses have not been able to explain two incised wounds on the person of Fayyaz accused which were the result of a sharp weapon and. Could not possibly be cased by stone. No stone was taken into possession from the place of occurrence and the Investigating Officer admitted that he did not make any mention about the presence of stones, or brick-bats at the spot in the inspection-note. The version regarding the throwing of stones thus, seems to be a fabrication and all these circumstances should be enough to reject the ocular testimony.
12. Sher Muhammad and Muhammad Akbar, aforementioned eye--witnesses, have also furnished evidence about the recovery of blood--stained Chhuries at the instance of the appellants. They are highly interested witnesses and while dealing with the ocular account, we have observed that they have discredited themselves by making material improvement at the trial. Their evidence regarding recoveries also does not inspire any confidence. Both of them admitted that none from the vacinity of the places of recoveries was called to witness the recoveries. Their statements are also discrepant regarding the places where memos of recovery were attested. Sher Muhammad P.
W. Stated that Police got their thumb impressions on the recovery memos at the Thana while Muhammad Akbar P. W. Deposed that the documents about the recovery of Chhuri from Riaz appellant were prepared at the Taxi-stand.
13. According to the prosecution the immediate motive for the offence was that Mst. Razia, niece of Ghulam Muhammad deceased and Sher Muhammad complainant, had thrown rubbish in front of the back door of the house of Muhammad Akbar, resulting in an altercation between her and Ghulam Muhammad deceased in which the latter admonished her saying that she was an abducted woman. She went to her house and informed the appellants who attacked the complainant party soon after on that score. Mst. Razia is the daughter of Babu Khan, real brother of Ghulam Muhammad deceased. Sher Muhammad complainant and Mst. Nathi wife of Muhammad Akbar P. W. It is the prosecution's own case that she was abducted by the appellants and subsequently, she contracted marriage with Fayyaz appellant after making a statement in Court. It is in evidence that she was living with Fayyaz appellant in a house situated 60/70 karams away from the place of occurrence: The incident of the abduction of Mst. Razia took place one and a half years prior to the occurrence and there is nothing on the record to show that, any untoward incident happened during the intervening period. It is not understandable what compelled Mst.
Razia to come all the way from her house and threw rubbish in front of the house of Muhammad Akbar P. W. Being an abductee, closely related to the complainant side, she would rather avoid passing that way. The earlier incident between her and the deceased allegedly took place in the street but no independent witness has been produced by the prosecution to support the same and it has again relied on the evidence of Sher Muhammad and Muhammad Akbar P. Ws. In this respect. We are, therefore, not inclined to accept the prosecution version of the motive and are of the view that the prosecution has not been able to prove that the occurrence had taken place in the manner as alleged by it.
14. The entire prosecution evidence having been rejected, the statement of Fayyaz appellant alone remains in the field and has to be accepted in its entirety. His version is that Mst. Rani, a sister of his wife Mst. Razia, was confined and beaten by the deceased, Muhammad Akbar, Sher Muhammad, Mst. Nathi and Mst. Kausar P. Ws. He and his wife Mst. Razia were attracted to her cries. He was also confined and beaten by the P. Ws and the deceased, upon which he caused injuries to the deceased in exercise of the right of private defence. He further stated that his brother co-accused Riaz was not present there. Sher. Muhammad P. W. 6 admitted that during the days of occurrence Mst. Rani, daughter of Babu used to live with Fayyaz appellant. The conduct of Mst. Rani in residing with Fayyaz appellant must have hurt the feelings of the complainant party who were already smouldering due to abduction, of Mst. Razia and possibility cannot be ruled out that they confined her in their house as alleged by Fayyaz appellant. As already stated above, the injuries on his person do not find any mention either in- the F. I. R. Or in the Police-statement of Muhammad Akbar P. W. With which he was duly confronted At the trial they made an attempt to explain the injuries saying that they along with Mst. Nathi etc. Hurled stones at Fayyaz appellant causing him injuries.
Despite this belated explanation, two incised wounds on his person remained unexplained. The nature of-injuries on his person shows that the members of the complainant party wee armed with blunt and sharp-edged weapons. After considering both the versions we are of the view that the defence version is more plausible and possibility cannot be ruled out that the complainant party attacked Fayya appellant when he went to rescue Mst. Rani who was admittedly living in his house.
In the circumstances, the plea of self defence is available to him.
15. The next question that arises for consideration is whether Fayyaz appellant was within his right to cause the death of the deceased or had exceeded the right allowed to him by law. The medical evidence shows that the deceased had as many as six incised wounds, out of which there were individually fatal. We are, therefore, of the view that he exceeded the right allowed to him by law and was guilty of an offence under section 304-1 of the Pakistan Penal Code. Accordingly, we alter hi conviction from section 302/34, P. P. C. To one under section 304-1, P. P. C. And sentence him to imprisonment for life and a fine of Rs. 5,000. In default of payment of fine, he will undergo rigorous imprisonment for two years. The fine, if recovered, shall be paid to the heirs of the deceased as compensation. While computing his sentence of imprisonment for life, the period for which he remained as under-trial prisoner shall be duly considered as required under section 382-B of the Code of Criminal Procedure. His death sentence is not confirmed.
16. The prosecution having failed to bring home the charge to. Riaz appellant, we accept his appeal, set aside his conviction and sentence and acquit him of the charge. He shall be set at liberty forthwith if not required to be detained in any other case.