' Fazal Rasul alias Pappu (17) was tried for the murder of his co-villager Muhammad Rafique. On 14th May, 1983, learned Sessions Judge, Gujranwala, convicted him under section 304, Part I, P.P.C.
And sentenced him to ten years' R.I. And fined him Rs,3,000 in default to undergo one year's R.I.
Further. Out of the fine, if realised Rs, 2,500 were ordered to be paid as compensation to the heirs of the deceased. The appeal of the convict and the connected revision filed by Abdur Rashid son of the. Deceased are before me.
2. At Chhahwela on 18th April, 1981 Fazal Rasul took out a five rupee note from the pocket of Abdur Rashid (complainant), who reported the matter to his father in the fields. On coming back to the village, the same day in the afternoon, Abdur Rashid, Muhammad Rafique (deceased) asked the accused to return the money, but he refused and they abused each other. The accused rushed towards his house and returned with a Chhuri. He declared to teach the deceased a lesson for abusing him and inflicted the solitary fatal injury to him in the chest, thereafter he fled away.
Muhammad Rafique died at the spot. The occurrence was also witnessed by Khushi Muhammad, Muhammad Waris and Hidayat. Deceased's son Abdur Rashid went to Police Station Ahmad Nagar and made report Exh.P.D. The same day at 1-05 p.m. To P.W. 10 Bashir Ahmad, S.I. After registering the case the S. I. Went to the place of occurrence, prepared the necessary documents and sent the dead body for its post-mortem examination.
3. The same day at 5-30 p.m. P.W.1 Dr. Muhammad Yusuf Farooq held the autopsy over the dead body of Rafique and observed "a stab wound 1i" x i" x entering into the right chest at the right upper corner of right chest 2" below the collar bone." The injury entered the upper lobe of right lung. It had cut the pulmonary veins. The pleaura and right lung were injured. Death in his opinion was due to shock and heamorrhage caused by cutting of the right pulmonary vessels.
4. P.W.10, Bashir Ahmad,S.I, arrested the accused on 22nd April, 1981 who was wearing blood-stained shirt P.1 and Shalwar P.2. These were got removed and made into a sealed parcel vide memo. Exh.
P.E. On 26th April, 1981 the accused got recovered Chhuri P.3 from within his house which was made into a sealed parcel vide memo. Exh.P.F. Both these recoveries were attested by P.W.8. Khushi Muhammad and P.W.10 Bashir Ahmad, S.I. After completing the investigation, the accused was sent up for trial.
5. Fazal Rasul, appellant, denied guilt and made the following statement:- "Actually the occurrence took place in this manner that on 18th April, 1981 at noon time .I and Abdur Rashid alias Bhutto P.W. Were playing marbles near the shop of Waris. I won Rs, 5 from Abdur Rashid. -He started demanding back the lost money. The deceased by chance came there. His son informed him that I had won his Rs,
5. The deceased also demanded back Rs,5 from me, but I refused, upon which he attacked me and caused injuries with a Soti which was in his hand, on my head, chest and other parts of the body. My nail was broken. I had a small knife in my pocket and in order to save my life I caused one injury to the deceased but unfortunately he died. Afterwards the story was concocted. I had shown my injuries to the Police but neither the Thanedar got me examined from the doctor nor treated."
' The produced Exh.D.E. Copy of his birth entry and that of Abdur Rashid Exh.D.D. To show that they were of the same age. Besides these documents he led no evidence in defence.
6. Taking into consideration the statement of P.W.7 Abdur Rashid (informant) and that of Fazal Rasul (accused), trial Court came to the conclusion that it was a case of a sudden fight.
7. Criticising the finding, learned counsel for the appellant contended that the appellant's injuries had been suppressed by the prosecution so much -so that even the injury statement which had been prepared by the Investigating Officer was not produced at the trial though he admitted the same under cross-examination which is Exh.D.B. The Investigating Officer, however, explained these injuries as having been received by the accused at the time of resisting arrest. It was argued that in any case after having prepared the injury statement, the S.I. Should not have withheld it, it was his duty to produce the injury statement and the medico-legal report of the accused before the trial Court. I have considered this aspect of the case and I find to at the trial Court has come to the conclusion that the investigation in this case was not above board. In my view this alone did not make out a case of self-defence for the appellant, because it is in evidence that the deceased was carrying a small stick for goading the donkeys. It is common knowledge that for goading animals big dings are never carried. I am satisfied that the deceased did not carry a formidable weapon.
8. It was next contended that out of the four eye-witnesses prosecution produced only two namely, P.W.9 Abdur Rashid son of the deceased and P.W.8 Khushi Muhammad who has not been relied upon by the trial Court. True reliance was placed on the solitary statement of the informant, but this would not help the defence case because the appellant has admitted the occurrence though his version was that of self-defence and on the other hand circumstances of the case as they appear in the evidence did not make out a case of self-defence. The deceased was only carrying a small stick meant for goading animals. Admittedly, the incident was sudden and the attack was unpremeditated. Under these circumstances appellant's conviction is maintained.
9. In so far as the sentence is concerned, learned counsel for the appellant contended that at the time of the occurrence, the appellant was about 14 years of age, as such the sentence was excessive. Taking into account appellant's youth and the fact that the whole trouble started over a game of marbles in which deceased's son lost to the accused and it was on deceased's intervention that the matter flared up. I, therefore, reduce the sentence to 5 years' R.I. The sentence of fine is however, enhanced to Rs,5,000 in default to undergo one year's R.I. Further. Fine if realized shall be paid to the heirs of the deceased. The convict shall also be entitled to the benefit of section 382-B, Cr.P.C.
' With the modifications the appeal is otherwise dismissed.