SARDAR MUHAMMAD, J.-Appellants Ishtiaq Ali (22), Sajjad alias Bholoo (l8), Amjad (16) and Asif (17) have filed Criminal Appeal No 297 of 1982 against the order dated 6-5-1982 of Mr. Manzur Ahmad Kamboh, Additional Sessions Judge, Attock whereby the learned Additional Sessions Judge convicted the appellants under section 302/34, P. P. C. For having committed the murder of Parvez Akhtar and sentenced them as under :-
(i) Ishtiaq and Sajjad to death and to pay a fine of Rs. 5,000 in default whereof to suffer 2 years' R.I.
Both of them have also been ordered to pay a compensation of Rs. 5,000 each to the heirs of the deceased, in default of parent of which to suffer 1-- years--- R. I. Each.
(ii) Amjad & Asif---to imprisonment for life and to pay a fine of Rs. 2,000 each in default whereof to suffer further R. I. For l-- years. They have been also ordered to pay compensation of Rs. 2,000 each to the heirs of the deceased, in default of payment of which to suffer one year R. I. Each.
2. The learned Additional Sessions Judge also convicted appellant Amjad under section 324, P. P. C.
For causing simple injury on the person of Umar Hayat P. W. 10 and sentenced him to one year R.I.
And a fine of Rs. 500 in default whereof to suffer 6 months' R. I. He has also been ordered to pay a sum of Rs. 500 as compensation to Umar Hayat P. W. 10, in default of payment of which to undergo 6 months' S. I.
Since the Murder Reference No. 102/82 sent up by the learned Sessions Judge, Attock and the Criminal Appeal No. 297/82 filed by the appellants arise out of the same judgment, they are being disposed of by a single judgment.
3. The occurrence in this case took place on 24-9-1980 at 4.30 p.m. Near graveyard of village Mari Kanjur at a distance of 3 kilometers from Police Station (Sadar) Attock,
4. F. I. R. Exh. P. J. Was recorded by Hasan Akhtar, Sub-Inspector P. W. 13 on the statement of Malik Waris Khan P. W. 11 of the same day al 5-15 p.m.
5. The investigation was conducted by Hasan Akhtar S. I. P. W.
13. He visited the spot, recorded the statements of the prosecution witnesses and arrested the appellants on 26-9-1980. On 1-10-1980 appellant Ishtiaq led to the recovery of blood-stained chhuri P.
3. Sajjad appellant led to the recovery of blood-stanined chhuri P.
4. Both the chhuris were taken into possession vide memos.
Exhs. P. F. And P. G. Respectively. The recovery memos. Were attested by Daud P. W. 8, Hasan Akhtar S. 1. P. W. 13 and given up P. W. Azam. Appellant Asif led to the recovery of blood-stained chhuri P. 5 on 3-10-1980 and the same day Amjad appellant got recovered blood-stained chhuri P.
6. They were taken into possession vide memos. Exhs. P. H. And P. I. Respectively. The memos. Were attested by Rabnawaz P. W. 9, Hasan Akhtar, S. I. P. W. 13 and Sarfaraz P. W. (not produced). After the completion of investigations the challan was submitted to Court.
6. At the trial the prosecution in all produced thirteen witnesses. The occurrence was witnessed by Malik Waris Khan complainant (P. W. 11), father of the deceased, Umar Hayat P. W. 10, son of the paternal aunt of the deceased and Wazir Khan P. W. 12, son of paternal aunt of Waris Khan complainant.
7. The prosecution case as narrated during the trial by P. W. 11 Malik Waris Khan who had lodged the first information report (Exh. P. J.) is that on the day of occurrence Parvez Akhtar deceased and his nephew Umar Hayat P. W. 10 were grazing cattle near the graveyard in front of his house. When he was coming out of the graveyard, he saw all the appellants armed with chhuris coming from the southern side of the graveyard. They raised lalkara that they had come to take the revenge of the earlier incident which had taken place the same day. Ishtiaq and Sajjad appellants gave one blow each on the chest of Parvez Akhtar deceased, Amjad appellant inflicted a chhuri blow on the right side of the back of the shoulder of the deceased. He fell down. Asif appellant also inflicted 2 chhuri blows to the deceased. Whereafter, Ishtiaq and Sajjad appellants gave him more chhurl blows, when Umar Hayat P. W. 10 intervened to rescue the deceased, Amjad appellant gave him a chhuri blow on his right temple. He has also stated that Wazir Khan P. W. 12 was grazing his buffaloes nearby. He also saw the occurrence and when both of them raised alarm the appellants ran away.
Pravez Akhtar died on the spot. Umar Hayat P. W. 10 was removed to the hospital.
8. According to him the motive for the occurrence was an incident which took place at 1-30 p.m.
The same day, when Sajjad and Asif appellants were present on the shop of a Barber near Mari Moar and they teased Umar Hayat P. W. 10 when he was returning from school alongwith Parvez Akhtar deceased, by addressing him as `Gandu', whereupon Parvez Akhtar deceased and Umar Hayat P. W. 10 abused them and gave them kicks and fist blows. Ahmad Khan P. W. 7 is stated to have separated them. Umar Hayat P. W. 10 and Wazir Khan P. W. 12 in their statements before the Court have corroborated him.
9. Daud Khan P. W. 8 deposed regarding Ishtiaq and Sajjad appellants' allegedly having got recovered bloodstained chhuris P. 3 and P. 4 respectively. Rabnawaz P. W. 9 has deposed regarding the recoveries of blood-stained chhuris P. 5 and P. 6 said to have been recovered at the instance of Asif and Amjad appellants respectively. The deposition regarding the recoveries has been corroborated by Hasan Akhtar S. I. P. W.
13. It maybe of interest to mention here that Daud P. W. 8 is brother-in-law (6wiJ) e) of Azmat Ullah, brother of deceased while the sister of Rabnawaz P. W. 9 is married to the son of Wazir Khan P. W. 12, who as already noted above is a cousin of the complainant.
10. Dr. Gul-e-Naukhez Ghauri P. W. 5 had medically examined Umar Hayat P. W. 10 at 6 p.m. On 24- 9-1980 and had noted, a punctured wound on the right temporal region 1 cm. x C 3 cm. Bone deep.
The injury was declared simple. He had performed the post-mortem examination of Parvez Akhtar deceased. He found the following injuries on his dead body
(1) A cut wound 2 cm. Below right nipple, 3.2 x 0.5 cm. Muscle deep.
(2) A cut wound 2.5 cm. Medial to injury No. 1 and an abrasion was extending from this wound upward and outward. Injury was 3.7 x 1.5 cm. Muscle deep and abrasion was 7 cm. Long.
(3) A cut wound on the right chest near armpit 4.5 cm. x 0.7 cm muscle deep.
(4) A stab wound on the left chest near armpit going inward and medically 2 cm. x .07 cm. Going into the most cavity.
(5) A stab wound on the front of left shoulder 1.6 x 0.6 cm. x 2 cm.
(6) A stab wound on the front of left upper arm 3 cm. Below armpit, 2.5 cm x 1.3 cm.
(7) A contusion on the right cheek 2.5 cm. x 2 c.m.
(8) A contusion on the back of left forearm 1.5 cm. x 0.5 cm.
(9) A stab wound on the back 3 cm. Above the armpit on the right chest.
(10) An abrasion on the right abdomen 11 cm. x 0.2 cm. At the level of umblicus transverse.
According to the doctor injuries Nos. 7 and 8 were inflicted by blunt weapon while the rest were caused by sharp-edged pointed weapon. Injury No. 4 was declared grievoL3. He opined that death was due to haemorrhage and shock which resulted due to injuries Nos. 1 to 4, 5, 6 and 9, particularly injury No. 4. In cross-examination he has stated that except injury No. 4, no other injury was individually sufficient to cause death in the ordinary course of nature. He has further stated that if injury No. 4 was not there, the remaining injuries even collectively were not sufficient to cause death.
11. The same doctor on 24-9-1980 at 7 p.m. Vide medico-legal report Exh. D. A. Had medically examined appellant Ishtiaq and found the following injuries on his person :-
(1) A swelling on the back of top of the head 3 cm. X 3 c.m.
(2) A contusion on the left temporal region 4 cm. x 4 cm.
(3) A cut wound on the palm of left hand 7 cm. x 0.5 c.m. Muscle deep.
(4) A contusion on the back of left hand 3 x 3 cm.
(5) A cut wound on the front of middle phalynx soft middle finger I x 0.1 cm. x skin deep.
(6) A contusion on the back of left shoulder in scapular region 13 x 2 cm.
Injuries Nos. 1 and 2 were kept under observation, the rest were declared to be simple. Injuries Nos. 3 and 5, according to the opinion of the doctor were caused by sharp-edged weapon while the rest were found to have been caused by blunt weapon.
12. The same doctor had also medically examined Sajjad appellant vide M. L. R. Exh. D. B., and fund the following injuries on his person :-
(1) An abrasion on the left chin 3 x 0.1 cm.
(2) An abrasion on the spines of lumber region 0.5 x 0.5 cm.
(3) An abrasion on right cheek near nose.
(4) A contusion on the back of right thigh 1.5 cm. x 1.5 cm.
According to the doctor injuries Nos. 1 and 2 were caused by sharp-edged pointed weapon while the rest were caused by blunt weapon.
13. In cross-examination Dr. Gul-e-Naukhez Ghauri P. W. 5 stated that injures on the dead body of Parvez Akhtar (deceased) and on the person of Umar Hayat P. W. 10, and appellants Ishtiaq and Sajjad were probably of the same duration.
14. Appellants Amjad and Asif in their statement& under section 342, Cr. P. C. Denied to have participated in the occurrence or having got recovered any blood-stained chhuris. Appellant Sajjad while pleading innocence and denying to have got recovered blood-stained chhuri, had in answer to question, why this case against you and why the P. Ws. Have deposed against you; stated "On the day and time of occurrence I was coming in the street passing on the southern side of the graveyard alongwith my dog. Urnar Hayat P. W. Alongwith Gudu his relative was sitting in the Janazgah. He was also having a dog with him. Both the dogs quarrelled with each other. I tried to separate them but Umar Hayat P. W. Abused me and we exchanged hot words and abuses. During which Umar Hayat P. W. Took out a chhuri from his dab and tried to injure me and while warding off, I got injured. During this process, I raised alarm. My brother Ishtiaq was returning from the Jabi Kas along with his buffalo and was passing on the said road while going to his house. He on hearing my alarm came at the spot and tried to snatch the chhurf from Umar Hayat P. W. And he too was injured. During the snatching of chhuri Umar Hayat P. W. Also got injury. Ishtiaq was still in the process of snatching the chhuri by placing his hand on the hand of Umar Hayat P. W. And had not succeeded yet when all of a sudden Parvez deceased started giving blows with stick to my brother and myself from behind. In the meantime, Ishtiaq caught hold of the chhuri and gave blows with it to Parvez deceased in self-- defence of his own as well as mine. The P. Ws. Are closely related to the deceased and inimical towards us. Amjad and Asif accused were not present at the spot at the time of occurrence."
15. Appellant Ishtiaq, while pleading innocence denied to have got recovered the blood-stained chhuri and in answer to the question, why this case against you and why the P. Ws. Have deposed against you, has stated "The P. Ws. Are related inter se and also related to the deceased and inimical towards us. On the day and time of occurrence I was returning from Jabi Kas to my house after watering my buffalo and when I was on the southern side of the graveyard, on the street I heard noise of my brother Sajjad and I went to--him and saw Umar Hayat P. W. With a chhuri in his hand and trying to use it against Sajjad and the latter also got injuries. I got hold of the hand of Umar Hayat P. W. And tried to snatch the chhuri from him. I had not yet succeeded in my attempt though I got injuries at that time with it but all of a sudden Parvez deceased started giving blows with stick on my head and shoulder and in the meantime I' snatched the chhuri from Umar Hayat P. W. And I used it against Parvez deceased who was still giving blows to me and my brother with stick. I gave injuries to Parvez deceased in my defence of person as well as the defence of my brother Sajjad. Amjad and Asif accused were not present at the time of the occurrence. They have been involved on account of relationship with us."
16. It is contended on behalf of the appellants that all the prosecution witnesses are interested as they are related inter se and that they have deposed against the appellants merely on account of illwill against the appellants and relationship with the deceased. Learned counsel for the appellants has contended that the recoveries in this case are planted and that in each set of recoveries the independent P. W. Has been withheld and the interested P. W. Has been produced. It is also contended that -the motive of the previous incident has been falsely set up and that Ahmad Khan P. W. 7 who has deposed about the motive is also related to the deceased.
17. With regard to the occurrence t is argued that the prosecution has hopelessly failed to give explanation for the injuries on two of the appellants namely, Ishtiaq and Sajjad Learned counsel has pointed out that not only nothing has been stated about their injuries in the first information report but even during the trial no explanation was furnished, rather the only explanation that the P.
Ws. Have given during the trial is that the injuries might have been self-inflicted. It is contended that it is evident from the nature of the injuries that those could neither be self-suffered nor self- inflicted. The learned counsel has laid stress on the fact that the version put forth by the two appellants seems to be more probable and reasonable than the prosecu--tion version, and as such clearly a case for right of self-defence has been made out in the case of Ishtiaq appellant and that keeping in view the version put forth by Ishtiaq appellant, is clear that appellants Amjad and Asif had not participated in the occurrence while appellant Sajjad was himself under attack and so he is not liable for any offence, as according to defence version he did not cause any injury:
18. Learned counsel for the State has controverted the arguments advanced by the learned counsel for the appellants. He has defended the judgment of the learned trial Court. He tried to prove by vain attempts that the injuries could have been self-inflicted.
19. We have considered the arguments. There is no denying the fact that all the prosecution witnesses including the eye-witnesses, the recovery witnesses and the witnesses of motive are related inter se and that in spite of the fact that the occurrence had taken place in the vicinity of the village no independent P. W. Was produced. Even regarding the occurrence stated to have taken place at noon, which according to the prosecution was the motive for the occurrence of murder, the witness (Ahmad Khan P. W. 7) who has been produced is related. The barber near the shop of whom the incident is stated to have taken place or anyone from the surrounding place has not been produced. Waris Khan P. W. 11, the father of the deceased has admitted in cross- examination that he had not made any comp--laints to the parents of the accused although he was informed regarding this incident by Umar Hayat P. W.
10. We do not feel inclined to believe that the incident said to have taken place earlier to the incident of murder, had taken place.
20. We have considered the argument of the learned counsel for the appellants that the version put forth by Ishtiaq appellant sounds reasonable visa-a-vis the prosecution version by putting the two versions in juxtaposition. Having considered the injuries on the person of Ishtiaq and Sajjad appellants we have, without any hesitation come to a conclusion that the injuries could neither have been self --inflicted nor self-suffered, as some of the injuries on both these persons were on vital parts. The other reason is that Ishtiaq appellant was examined by Dr. Gul-e-Naukhez Ghauri P.
W. 5 on 24-9-1980 at 7-00 p.m. According to the medico-legal report Exh. D. A. He had arrived in the hospital at 6-32 p.m. The occurrence had taken place at 4-30 p.m. On the same day. That means that Ishtiaq appellant reached the hospital just, within two hours of the occurrence. Obviously, be could not have manipulated these injuries, and appeared before the doctor so hurriedly. The doctor had also stated that he had admitted Ishtiaq appellant in the hospital on 24-9-19:0. Sajjad appellant had appeared for medical examination on the. Following day at 9 a.m. Before the same doctor which shows that he after ,the occurrence had also not tried to run away. His having not gone to the doctor the same day, may be for the reason that none of the injuries, he suffered was either grievous or very serious. We feel convinced that the injuries suffered by appellants Ishtiaq and Sajjad were suffered by them during the occurrence. Amongst other reasons, the opinion of the doctor that injuries on the dead body of Parvez Akhtar deceased, and on the person of Umar Hayat P. W. 10 and appellants Ishtiaq and Sajjad were probably of the same duration, fortifies our view. Without going into other arguments advanced by the learned counsel for the appellants to show that Waris Khan and Wazir Khan P. Ws. Who were old and infirm persons, had not seen the occurrence, we are inclined to con--clude that they had either not seen the occurrence or had not truly deposed in view of the fact that they have failed to give any explanation regarding injuries on the person of the two appellants. Having come to the conclusion that the two appellants had received injuries during the occurrence and that the two witnesses, namely Waris Khan complainant, father of the deceased and Wazir Khan P. W. 12 had either not seen the occurrence or were not telling the truth no doubt is left in our mind that the story put forth by Ishtiaq appellant corroborated by Sajjad appellant is nearer the truth.
21. In this view of the matter, strong doubts have arisen in our mind regarding the participation of appellants Amjad and Asif. They are, therefore, given the benefit of doubt and acquitted. They shall be set at liberty forthwith if not required in any other case.
22. Appellant Sajjad although has admitted his presence on the spot, yet has stated that in fact he was attacked by Umar Hayat P. W. 10 and was injured by him and that on his alarm his brother Ishtiaq (appellant) hack reached the spot and had saved him by snatching the chhuri from Umar Hayat P. W. His case is that he did not cause any injury to either Umar Hayat P. W. 10 or to the deceased. His statement finds corroboration from the injuries borne by him and by the admission made by his co-accused Ishtiaq. Since we have disbelieved the prosecution story so there is nothing to contradict the plea taken by appellant Sajjad. We do not consider the evidence of recovery of chhuri to be reliable for the reason that the only witness who has appeared to prove the recovery of chhuri was related to the complainant, who himself has been disbelieved.
23. For the reasons enumerated above, the prosecution has not been able to prove any case against Sajjad appellant beyond reasonable shadow of doubt. He is, therefore, acquitted of the charge of murder. He shall be released forthwith if not required in any other case.
24. The participation of Ishtiaq appellant in the occurrence stands proved, for, he himself also does not deny that he was not present at the spot or that he had not caused injuries to the deceased. He has taken up the plea of self-defence. He has admitted that he caused injuries to the deceased.
The injuries on his person and the person of Sajjad appellant do make out a case of his having acted in self-defence. In this view of the matter we set aside his conviction and sentence under section 302, P. P. C., and convict him under section 304 Part-1, P. P. C. For the- reason that he had exceeded the right of private. Defence.
25. For awarding sentence we have considered his statement, the injuries suffered by him and the injuries, caused by him to the deceased. According to him he had suffered from injuries while he was snatching the chhuri from Umar Hayat P. W.
10. It is not difficult to conclude that the injuries Nos. 3, 4 and 5 which are on his left band and on the front of middle phalynx soft middle finger, would have been suffered by him when he was snatching chhuri from Umar Hayat P. W. It is his own case that the deceased had given him injuries on the head and shoulder when he was grappling with Umar Hayat to snatch the chhuri, which means that he had suffered injuries Nos. 1 and 6 before he was able to snatch the chhuri and attack the deceased. Regarding Sajjad he has stated that Umar Hayat P. W. Had caused him injuries with the chhuri. Sajjad appellant made the same statement. The doctor during the trial stated that injuries No. I and 2 on the person of Sajjad appellant were caused by a sharp-edged pointed weapon but the doctor in the medical examination of Sajjad appellant had mentioned that injury No. 3 was also caused by a sharp- edged weapon, which means that only injury No. 4 which is a contusion on the right thigh 1.5 cm. x 1.5 cm. Remains to be considered as to how and at what stage the same was suffered. Similarly injury No, 2 on the person of Ishtiaq appellant needs consideration as to how and at what stage the same was caused. Injury No. 4 on the person of Sajjad is a minor injury and its dimensions show that the injury could not have been caused by a lathi. Similarly, it seems doubtful that injury No. 2 on the person of Ishtiaq appellant could have been caused by a lathi because of its dimensions. In this view of the matter the position which crops up is that after Ishtiaq appellant had snatched the chhuri and had launched counterattack on the deceased, neither he nor his brother was given any injury either by the deceased or by Umar Hayat P. W.
10. The fear of attack which made him re-act to save himself and his brother was not supported by actual infliction of injuries. In these circumstances, hell clearly overacted by inflicting eight injuries including one grievous injury in C the abdomen which alone according to the doctor could have caused the death of the deceased.
The appellant in the circumstances enumerated above had no genuine fears of being under imminent fear of death.
Keeping in view the above facts we feel that the sentence of imprisonment for life and a fine of Rs.
20,000 (Rupees Twenty thousand) will only meet the ends of justice. The entire amount of fine shall be paid as compensation to the legal heirs of the deceased. The Collector concerned is directed to take steps for its realization and payment.
The appellant shall be entitled to benefit of the provisions of section 382-B of the Code of Criminal Procedure.
The sentence of death is not confirmed and the appeal stands disposed of with the above alterations and modifications.