' Faqir Muhammad (66), his cousin Allah Bakhsh (51) and their nephew Azhar Abbas (19) were tried for the murder of Ghulam Farid and for having murderously assaulted Shahmand father of the deceased. On 21-10-1982, Additional Sessions Judge, Hang convicted Faqir Muhammad and Azhar Abbas under section 302/34, P. P. C. And sentenced them to life imprisonment and to a fine of Rs, 1,000 each and in default to six months' R. I. They were also directed to pay compensation in the sum of Rs, 1,000 each to the heirs of the deceased. On the second count, they were convicted under section 323/34, P. P. C. And sentenced to three months' R. I. Each. Their sentences were ordered to run concurrently. Allah Bakhsh was acquitted. The appeal of the convicts is before me.
2. Ghulam Farid deceased was suspected of illicit intimacy with Mst. Shahnaz, a niece of the accused. This was the motive for the crime in this case. According to the prosecution, on 13-4-1981, at 6-00 p. m., Sbahmand and his son Ghulam Farid were on their way home to Shorkot. As they reached near the shrine of Shah Khalil, Faqir Muhammad, Allah Bakhsh and Azhar Abbas armed with sticks came out of the house of Talib Hussain, father of Azhar Abbas saying that they would not spare Ghulam Farid. Allah Bakhsh and Faqir Muhammad gave two stick blows on the head of Ghulam Farid. The third blow was inflicted by Azhar Abbas on his forehead. Ghulam Farid fell unconscious. Shahmand informant tried to interfere and was beaten up by Azhar Abbas with his stick. The alarm attracted Manzoor Hussain and Ghulam Muhammad, who also witnessed the occurrence and stopped the accused from further attack. The accused thereafter went away.
3. The injured were carried to Civil Hospital, Shorkot, where P. W. 1 Dr. Muhammad Latif, Medical Officer examined Ghulam Farid at 6-45 p. m. Who was unconscious. He found the following injuries on his person :-- "(1) A lacerated wound 5 x 1 cm x bone deep situated on the right parietal region of head 10 cm above the right ear pinna.
(2) A swelling 4 x 3 cm situated on the temporal parietal region of head right side 5 cm above and forward from right ear pinna.
(3) A swelling 4 x 2 cm situated on the right side of the forehead 3 cm above the right eyebrow."
' Later, the same day, he also examined Shahmand and found one redish contusion 5 x 2 cm on the top of the left shoulder. The injury was simple caused by a blunt weapon.
4. After obtaining medico-legal reports, Shahmand went to the Police Station, Shorkot, situated at a distance of one mile from the place of occurrence. He made F. I. R. Exh. P. J. At 8-15 p. m., which was recorded by P. W. 2 Ghulam Murtaza, Moharrir Head Constable. P. W. 9 Muhammad Anwar, S. I. Upon information reached Civil Hospital, Shorkot at 10-15 p. m. Since Ghulam Farid was not fit to make a statement, he went to the place of occurrence.
5. Dr. Muhammad Latif Malik, on 13-4-1981, at 8-25 p. m., examined Faqir Muhammad accused and found an incised wound 1 x 0.2 cm x 0.5 cm situated on umbilical region of the abdomen on the left side of the midline. There was a corresponding cut in the shirt. The injury was simple caused by a sharp-edged weapon within the duration of 2 to 3 hours.
6. The same evening, he examined Azhar Abbas and found a reddish contusions 13 x 4 cm alongwith swelling 11 x 9 cm situated on the back and upper part of the left shoulder joint. The injury was blunt caused by a sharp-edged weapon within the same duration.
7. On 14-4-1981, the S. Inspected the spot, collected blood-stained earth and thereafter made a query from the doctor whether Ghulam Farid was fit to make a statement but the doctor again replied in the negative. On 14-4-1981, at 6-35 p. m., Ghulam Farid expired. The doctor sent ruqqa Exh. P. F. And informed the S. I. About the death of Ghulam Farid. The S. I. Came to the hospital, prepared the necessary documents and sent the dead body for its post-mortem examination.
8. On 15-4-1981, Dr. Muhammad Latif Malik held autopsy on the dead body of Ghulam Farid and observed the same injuries, which he had noticed when Ghulam Farid was alive. The doctor found a fracture on the right parietal and right temporal region. The membrane of the brain was congested. In his opinion, the deceased died of shock and haemorrhage caused by the head injury, which was sufficient to cause death in the ordinary course of nature.
9. P. W. 9 Muhammad Anwar, S. I. Arrested the accused on 15-4-1981. Faqir Muhammad produced blood-stained shirt P. 6, which was taken into possession vide memo. Exh. P. Q. Attested by Shamas-ud-Din P. W. 5 and the S. I. On 29-4-1981, Faqir Muhammad handed over to the S. I. His medico-legal report and that of Azhar Abbas. On 29-4-1981, both Faqir Muhammad and the other accused led to the recovery of their sticks P. 4 and P. 5, which were taken into possession but were not stained with blood. After completing the investigation, the accused were sent up for trial.
10. The accused denied guilt and ascribed the case to enmity. Both Faqir Muhammad and the other accused explaining their injuries took up the plea of self-defence. Faqir Muhammad made the following statement :- "I am innocent. On the day of occurrence at about 4-00 p. m., Shabbir son of Shahmand had quarrelled with my nephews, Azhar Abbas and Ghulam Abbas. They gave him a beating. He complained to his elder brother Ghulam Farid (deceased) and his father Shahmand P. W. Ghulam Farid, Ghulam Shabbir and Shahmand came to the house of my nephew Azhar Abbas. Ghulam Farid was armed with a knife while others had Sotas with them. They started hurling abuses at us. I came out of the house and entreated them but Ghulam Farid deceased inflicted a knife blow at my abdomen. They also inflicted a blow to my nephew Azhar Abbas. Our relatives came to the spot and they gave a beating to Farid and Shahmand in or defence. Farid deceased received one Sota blow and fell to the ground faceward thus his forehead was also injured. Allah Bakhsh was not present at the place of occurrence. I and Azhar Abbas were examined by the doctor. I produced medico-legal report and my blood-stained 'Kurtz Exh. P. 6 before the police and narrated the entire incident. Police did not register or case because Farid had become unconscious due to head injury.
Ghulam Muhammad P. W. Was not present at the spot. He is a friend of the deceased and has falsely deposed against us. I am 75 years old and head of my family."
' Allah Bakhsh .Took up the plea of alibi. According to him, he was present in Madrasa Sajid-ul- Aloom Jaafrya. His plea was accepted by the police and he was declared innocent. No accused Ied defence evidence.
11. Trial Court did not believe the motive story for good reasons because Mst. Shahnaz has a husband and brothers alive. If there was any provocation, they -would have been the first to resent it. Admittedly, Mst. Shahnaz is a woman with children and so is Ghulam Farid. Further at the trial, Shahmand said that one or two days before the occurrence, he came to know that his son Ghulam Farid was suspected of illicit intimacy.
' Moreover, had there been any illicit liaison between Ghulam Farid and Mst. Shahnaz, Ghulam Farid would have been the last person to go near the house of her relations, i,e, Azhar Abbas. These circumstances lead me to the conclusion that the motive story has been rightly disbelieved by the trial Court. It would thus follow that the deceased and his father went to the house of the accused for a different reason. In this regard, trial Court has considered the statement of the accused plausible that the deceased and his father had gone to the house of the accused to lodge a protest for the beating given by Azhar Abbas and Ghulam Abbas to Ghulam Shabbir son of Shahmand, informant, the same day in the afternoon. After having accepted this part of accused's statement, trial Court did not accept their version of self-defence, but instead it concluded that in its opinion, Ghulam Farid and Shahmand hurled abuses to Azhar Abbas because of the beating given to Ghulam Shabbir in the afternoon which annoyed him and his uncle Faqir Muhammad, therefore, they inflicted soli blows to Ghulam Farid and Shahmand. It further observed that in its opinion, Faqir Muhammad did not receive any injury at the hands of the complainant party. It was only Azhar Abbas, who received one soli blow. At this stage, it may b mentioned that no doubt a Court should reconstruct the scene of crime, but at the same time in doing so, it should not imagine situations which ar not gathered from the evidence or the circumstances of the case.
None o the witnesses said that there was any exchange of abuses nor it was the defenc version.
Having come to the conclusion that Azhar Abbas was inflicted soli blow by the complainant party, it established beyond doubt that they had come armed to the house of the accused. Although the injury in Faqir Muhammad's abdomen was simple, it was nevertheless on a vital part of his body and with a sharp-edged weapon. The fact remains tha in his statement; the accused did say that the attack with knife was opened by the complainant party. The other injury in the back of Azhar Abbas is accepted by the trial Court to have been inflicted by the complainant party. I see no reason as to why the statement of the accused in respect of th injury in the abdomen should be ignored, simply because the injury did not go deeper into the abdomen was not enough to rule it out. Reasonable apprehension of a grievous injury is enough to entitle a person to effectively defend himself.
12. I now take up the evidence of second eye-witness in the case. P. W. 7 Ghulam Muhammad's presence was not free from doubt. Admittedly, he was a friend of the deceased. He was doing masonary work in the house of one Sharif. He claimed to have left his implements in the house of Sharif. That day, he worked with one Haq Nawaz, who according to the witness, lived a mile ahead of his house. Normally, if they were to leave for home after work, they would have gone together because their route was the same. Ghulam Muhammad did not say as to when and where Haq Nawaz went that day. What was still doubtful about his statement was, that according to him, he had also gone to the hospital with the injured and, that the police had come there in his presence.
The S. I. Admitted having gone to the hospital at Isha prayer time and inquired from the doctor about the state of health of Ghulam Farid, thereafter he recorded the statement of P. W. Manzoor, the eye-witness, who was given up as unnecessary. Had P. W. Ghulam Muhammad also been there, the S. I. Would have recorded his statement as well, but I find that P. W. Ghulam Muhammad was examined by the police on the following day at the place of occurrence. The prosecution case is that the informant took the medico-legal reports to the police station, but I find that Exh. P. A. And P. C. Were delivered by the doctor to one Khadim Hussain, a recovery witness, who was given up.
The doctor was, however, not questioned as to why he did not deliver them to Shahmand, who was going to the police station. For these reasons presence of P. W. Ghulam Muhammad at the place of occurrence was a doubtful matter.
13. The motive story which the prosecution failed to prove, it seem was put up to show that the accused were the aggressors, who on seein8 the deceased and his father passing near their house came out to vi ndicat1 the family honour. Whereas the above analysis of the evidence has revealed that the complainant party was just not passing by that way, in fact they had come armed to avenge the beating given to informant Ghulam Shabbir by Azhar Abbas, accused, and his brother in the morning. It need not emphasized that the right of self-defence is not to be weighed in the golden C scale as the principle is well known. This appeal is, therefore accepted. The conviction and sentence of the appellants is set aside.