SARDAR MUHAMMAD, J.-Muhammad Sharif aged 40, Muhammad Rafique aged 35 and Rashid aged 30 sons of Ismail have filed Criminal Appeal No. 133 of 1980 against the order dated 19-1-1980 of Additional Sessions Judge, Kasur whereby he convicted the appellants under section 302/34, P.
P. C. For having committed the murder of Umar Daraz deceased and sentenced as under
(i) Muhammad Sharif :Life imprisonment and a fine of Rs. 5,000, or in default 6 months' R. I.
(ii) Muhammad Rafique :Death and a fine of Rs. 5,000, or in default 6 months' R.1.
(iii) Rashid :Death and a fine of Rs. 5,000, or in default 6 months' R. I.
2. The occurrence in this case took place on 29-6-1976 at 6 p.m. Near the Darbar of Baba Saleh Muhammad Sahib in the area of village Kaniwala Police Station, Sadar Kasur. F. I. R. Exh. P. C. 1 was formally recorded by Sultan Ahmed Head Constable (P. W. 4) at 12-30 p.m. On 30-6-1976 on the receipt of statement Exh. P. C. Of Bashir Ahmed (P. W. 9) recorded by Zaka Ullah A. S. I. (P. W. 8) during the night between 29; 30-6-1976. At 12-15 a.m, at Civil Hospital, Kasur.
3. Briefly the prosecution case as set out in Exh. P. C. Is that on 29-6-1976 a Kabadi Match was being played on the Annual Urs of Saleh Muhammad Sahib. Umar Daraz deceased was acting a Muntazim of the match. Appellant Rashid repeatedly entered the arena and interfered in the match. When Umar Daraz obstructed him from doing so they exchanged abuses. They were separated by the people present there. After the Kabadi Match was over Bashir Ahmed complainant (P. W. 9) alongwith his son Umar Daraz, accompanied by Siraj Din (P. W. 10) and Kalu (P. W. 11) started for their village. Umar Daraz was going ahead. When Umar Daraz reached near the old canal, appellants Rashid and Muhammad Rafique armed with Dangs and Muhammad Sharif empty-handed suddenly came out of the canal. Rashid appellant gave a Lalkara that they will teach him a lesson for having insulted in the Kabadi ground. Muhammad Sharif took Umar Daraz into his Japha. Rashid gave a Dang blow on the head of Umar Daraz. Muhammad Rafique also gave two successive blows on the head of Umar Daraz deceased. Umar Daraz fell on the ground unconscious. The appellants ran away. They were chased by P. Ws. Bashir Ahmed, Siraj Din and Kalu. They caught Rashid appellant. Umar Daraz deceased was brought to Civil Hospital, Kasur where he was admitted. When A. S. I. Zaka Ullah (P. W. 8) arrived in the hospital, Bashir Ahmed (P. W.
9) made the statement Exh. P. C. And banded over Rashid appellant to the A. S. I. Alongwith Dang P.
5 which they had snatched from Rashid appellant. The A. S. I. Took the Dang into possession vide Memo. Exh. P. D. Rashid appellant was found injured. The A. S. I. Prepared his 'injury statement Exh. P, J,
4. Akbar Ali S. H. O. (P. W. 12) reached the hospital the same night and took over the investigation. He submitted application to the Doctor for eliciting opinion whether Umar Daraz was fit to make a statement. The Doctor opined that Umar Daraz was not fit to make the statement. Umar Daraz died in the General Hospital, Lahore on 8-7-1976. On informa--tion received Akbar Ali (P. W. 12) reached the hospital and after preparing the Inquest Report Exh. P. L. Despatched the dead body for post- mortem examination. Appellants Muhammad Rafique and Muhammad Sharif were arrested by him on 24-10-1976 after their pre-arrest bail was cancelled. After completion of necessary investigation the challan was put in Court.
5. At the trial the prosecution in all produced twelve P. Ws. Bashir Ahmed, father of the deceased (P.
W. 9), Siraj Din (P. W. 10) and Kalu (P. W. 11) have furnished the eye-witness account. All three of them have, inter alia, stated that on the day of occurrence a Kabadi Match was being played on the Urs of Baba Saleh Muhammad Sahib in which Umar Daraz was acting as a Muntazim. Rashid appellant interfered by entering into the arena and by applauding members of the one team.
When he was forbidden by Umar Daraz, he abused him. Umar Daraz returned the abuse. The people who were present there intervened and separated them. It is stated that after the Kabadi Match was over Umar Daraz left for his village alongwith the three P. Ws. Who were following him at some distance. When Urnar Daraz crossed the dry canal all the three appellants got up from the bank of the canal where they were biding. Rashid and Muhammad Rafique were having Dangs while Muhammad Sharif was empty-handed. Rashid gave a Lalkara that they will teach a lesson to Umar Daraz for their disgrace. He (Rashid) gave a Dang blow at his head when Muhammad Sharif appellant had taken Umar Daraa into his Japha. Muhammad Rafique also gave him two Dang blows on his head. Umar Daraz fell down unconscious. The appellants started running. They were chased by the P. Ws. Who were able to catch Rashid alongwith the Dang while the other two made good their escape. It is stated that at time when Rashid was taken into custody he had resisted and Siraj Din (P. W. 10) had given him injuries.
6. The evidence of recovery of Dang P. 2, stated to have been recovered from Muhammad Rafique, and production of Dang P. 5 at the time of hand--ing over of Rashid appellant to A. S. I. Zaka Ullah was also led.
7. Dr. Zafar Iqbal Chaudhry (P. W. 7) had medically examined the deceased on 29-6-1976 at 10 p.m.
And had observed three lacerated wounds on his head and a contusion on the left upper and lower eyelids. The patient was unconscious at that time. The same Doctor conducted the post- mortem examination of Umar Daraz on 8-7-1975 at 2 p.m. And observed three scabbed wounds on the head of the deceased and a contusion on the left upper and lower eye-lids. On opening he found both parietal bones fractured under the injury on the head. According to his opinion the deceased had died of shock and compression of brain due to injuries Nos. 1 to 3 on his head. The same doctor had also medically examined Rashid appellant on 30-6-1976 at 7-40 a.m. And had noted eight injuries on his person which included a lacerated wound on the bead, a contusion - on the back right scapular region, a contusion on the back of left chest, a contusion on the back chest middle mid-line, and another contusion on the back left chest lower part, and two contusions one on the front chest below right nipple and on the right fore-arm and a swelling, on the index finger.
He kept the injury on the head under observation but declared the same simple without having X- ray. The rest of the injuries were also declared simple.
8. Muhammad Sharif and Muhammad Rafique appellants in their statements under section 342, Cr.
P. C. Denied to have participated in the occurrence. Muhammad Rafique has also denied to have got recovered Dang P.
2. Appellant Rashid in his statement under section 342, Cr. P. C. Has pleaded innocence. He has denied that he was chased by the P. Ws. And that Dang P. 5 was snatched from hips. In answer to the question as to why this case against you, he stated that. I have been falsely implicated in this case. On the alleged day of the occurrence I went along at the Urs of Baba Saleh Muhammad where large number of persons from different adjoining villages were present. A Kabadi match was going to be held in which the various persons from the different villages were going to participate. I am one of the Kabadi players of my village and well known in the Ilaqa. I too came out alongwith other persons to participate as one of the members of Kabadi Team but Umar Daraz deceased who self-styled himself as Muntazim of the Kabadi Match picked up row with me and did not allow me to participate in the match, I challenged his authority and insisted that I would participate and my claim also supported by other persons. On the method there was verbal altercation and exchange of abuses between me and the deceased. The deceased was a bully strong headed person and had a Dang in his band and threatened me that if I did not desist he would throw me out physically. When I did not move from that place he attacked me with stick in his hand and caused me injuries with it. He also inflicted one injury on my head and when I apprehended that there was a serious danger to my life I had no other alternative but to save my life and when he attempted another blow I snatched the Dang from his hand. I was equally matched with the deceased so far age and health are concerned. In order to save my life I retaliated and gave two or three blows to the deceased when I found that he was still in an aggressive mood to attack me. I remained present at the spot and did not run away. My brothers Sharif and Rafique were not present at the spot. The subsequent story that the deceased was attacked by me and my brothers near the dry canal after the Kabadi was over is a fabrication to make it a case of premeditation and deliberate murder. The story that after giving the injuries to the deceased I and ray two brothers ran away and were given chase by Bashir Ahmed an old man of 65, Siraj and Kalu P. Ws. And they overpowered me at a distance of about 14 Karams is also a myth. They did not give any chase nor they were present at the tune of alleged occurrence. In fact the incident took place at the spur of the moment without any premeditation when the initiative was taken by the deceased. I acted in the exercise of right of private defence as I had received 6 to 7 injuries on my person including one on my head".
9. Learned counsel for the appellants has, inter alia, contended that the F. I. R. Was lodged after an unexplained delay and that the P. Ws., Bashir Ahmed, Siraj Din and Kalu have not seen 'the occurrence and that all three of them have improved upon the statements made by them before the police. He has argued that the occurrence had not taken place at the place stated by the prosecution witnesses and that the appellant Rashid was not arrested as stated by the P. Ws. In any alleged pursuit by them, and that Muhammad Sharif and Muhammad Rafique appellants have been falsely implicated being brothers of Rashid appellant. Learned counsel has vehemently argued that the plea advanced by appellant Rashid is reasonably believable and finds support from the evidence on record. Learned counsel for the State has, on the other hand, controverted the arguments advanced by the learned counsel for the appellants and defended the judgment of the Additional Sessions Judge.
10. We have considered the arguments of the learned counsel for the parties and have gone through the record. Appellant Rashid was, found injured when he was produced before Zaka Ullah A. S. I. (P. W. 8) in the hospital and he had prepared the injury statement Exh. P. J. Regarding his injuries. Nothing has been stated regarding injuries of appellant Rashid in the statement Exh. P. C.
Made by Bashir Ahmed (P. W. 9), father of the deceased on the basis of which F. I. R. P. C. 1 was recorded. He has duly been confronted during trial with his previous statement. Siraj Din (P. W. 10) who stated in the Court that he had caused injuries to appellant Rashid when he bad resisted at the time of his arrest also did not state to the statement Exh. D. A. Under section 161, Cr. P. C. That he had caused any injury to the appellant. Similarly Kalu (P. W. 11) also had not stated in his statement Exh. D. B. Under section 161, Cr. P. C. That Siraj Din had caused injuries to the appellant at the time of his arrest after chase. His statement in Court that he had given some brickbat injuries to Rashid was also not found stated when confronted with his statement Exh. D. B. In fact, none of them has been found to have stated in their previous statements the fact of Siraj Din P. W. Having been armed with a Dang. No blood--stained earth was taken from the spot. Although the A. S. I. Zaka Ullah (P. W. 8) was handed over the blood-stained Kurta P. 1 and Bunyan P. 2 by Bashir Ahmed P. W.
9 of the deceased when he reached the hospital. It is the prosecution evidence that the deceased had fallen on the ground. If the clothes were found blood-stained the blood must have fallen on the ground also and bad the occurrence taken place, where stated by the P. Ws., the Police would have definitely collected the blood-stained earth. The explanation of the complainant that the bloodstains on the earth might have been trampled does not sound well. The prosecution case that after the accused had started running from the place of occurrence the three P. Ws. Chased them and caught hold of Rashid appellant also does not seem to be plausible. The reasons are that Rashid appellant, who is alleged to have been caught, was stated to be aged 30 at the time of trial which took place three years after the occurrence, possibility could not have been over--taken by the P. Ws. Out of whom Bashir Ahmed is aged 65 and the other two are 45 each and that also within a distance of 14/15 Karams. Moreover, had the appellant Rashid been overtaken his other brothers would not have left him in the hands of the P. Ws. For any possible harm and would have certainly returned back to rescue him and some other occurrence might have been the result. In these circumstances doubts have arisen in our mind whether the occurrence had taken place at the place stated and whether the P. Ws. Have made the truthful statements that they had caught Rashid appellant after chasing him and overtaken him. Keeping in view this position we have examined the statement of Rashid appellant made during the trial. Keeping in view the plea advanced and the statement made by Rashid appellant in juxtaposition with the prosecution story we find some weight and grains of truthfulness in the statement of the appellant. Bashir Ahmed (P.
W. 9) father of the deceased, although has denied the suggestion that the deceased was holding a Dang when the Kabadi match was being played has, however, admitted that he was holding a thin stick in his hand. It is also prosecution's own case that during the Kabadi match Rashid appellant had been entering the Kabadi arena and applauding members of the one. Team to which the deceased had been objecting, as a result of which they had exchanged abuses. The explanation regarding injuries on the person of Rashid appellant that that were caused by the deceased in the Kabadi match seems to be more logical. It seems by the time the F. I. R. Was lodged and the statements of tie other two witnesses recorded under section 161, Cr. P. C. And even by the time the appellant was taken into custody and his injury statement was prepared by the A. S. I. The prosecution had not decided whether to bring on record the injuries of the appellant or to hide the same and it is probably for this reason that in spite of the fact that the appellant was in the hospital with the P. Ws. And the A. S. I. Had also taken him into his custody to the hospital no move was made to get him medically examined. What can be easily inferred is that when the investigation was taken over by the Sub-Inspector he after consulta--tion and deliberations decided to go in for the medical examination of the appellant who had suffered injuries on the vital parts such like head and chest and so the appellant was produced for medical examination on the following day at 7-40 a. m. It is for, this reason that a necessity arose for the eye-witnesses to improve upon their statements during trial so as to furnish explanation regarding recorded injuries on the person of appellant Rashid.
11. For the reasons enumerated above the evidence of the eye-witnesses, particularly and the prosecution evidence as a whole does not inspire confidence. No doubt is left in our mind that the occurrence bad not taken place as stated by the prosecution witnesses. In the circumstances participation of Muhammad Sharif and Muhammad Rafique appellants in the occurrence stands disproved. Their conviction and sentence is set aside. They shall be released forthwith, if not required in any other case.
12. Having disbelieved the prosecution evidence we are left with the state--ment of Rashid appellant so far as his liability is concerned. He was found t have suffered 8 injuries. One of them on the head. We feel in the situation he was facing, the right of private defence of person " had accrued to him after having received injuries including one on the head but keeping in view the fact he gave three successive blows on the head of' the deceased we feel that h exceeded the right of private defence. He is, therefore, held liable under section 304, Part II, P. P. C. For having exceeded the right of private defence and sentence him to 7 years' R.
1. And to pay a fine of Rs.
15,000 which shall be paid as compensation to the heirs of the deceased. The Collector concerned is directed to take immediate steps for its realization and payment. The conviction and sentence of the appellant under section 302, P. P. C. Is set aside.