' Nazir appellant alongwith 6 acquitted co-accused was tried for the murder of Muhammad Ismail deceased by Additional Sessions Judge, D.G. Khan, who while acquitting the rest convicted him under section 304, Part II, P.P.C. And sentenced him to undergo R.I. For a period of 10 years and ordered to pay Rs, 5,000 as compensation to the heirs of the deceased, under section 544-A, Cr.P.C.
The appellant has preferred the instant appeal against his conviction and sentence.
2. Briefly stated facts of the case are that on 4th May,1970, Muhammad Ismail deceased saw that Wazir a boy of 14 years of age (acquitted accused) brother of the appellant was trying to take away some dried cotton sticks belonging to his master Dr. Gul Muhammad P.W. He shouted at him but Wazir did not desist. Muhammad Ismail then went upto the boy and quarrelled with him. Wazir raised alarm which attracted the appellant and his other co- accused, Wazir and Shammeer (both acquitted accused) grappled with the deceased while Nazir appellant gave trangul blow hitting on his head, as a result of which he fell down. The remaining co-accused namely, Rasul Bakhsh and Rashid gave one blow each to the deceased on the head while Khuda Bakhsh and Wazir encouraged him by raising Lalkara. The deceased became unconscious and the assailants went away. The occurrence was witnessed by Riaz Ahmad (P.W. 7), Noor Muhammad (P.W.8) an Allah Diwaya (P.W.9) who happened to be present at a nearby tube- well of aforesaid Dr. Gul Muhammad. Ismail was removed on a Charpai to Civil Hospital Jampur, where he was admitted. The doctor sent an information to Ch. Muhammad Hassan S.I. (P.W.10) who reached the hospital and recorded statement Exh. P.A. Of Riaz Ahmad (P.W.7), whereupon a case under sections 148 and 307 read with section 149, P.P.C. Was registered. Muhammad Ismail however, died in the hospital on 5th May, 1970. The S.I. After preparing inquest report and injury statement moved for the post-mortem examination of the dead body which was performed by Dr. Khurshid Ahmad (P.W.1). He then changed the offence from section 307 to section 302, P.P.C. He arrested all the seven accused and after necessary investigation challaned them.
3. At the trial prosecution examined 10 witnesses in support of its case. Dr. Khurshid Ahmad (P.W.1), who performed the autopsy found following injuries on the person of the deceased Muhammad Ismail:
(1) Contusion mark 3" x 2" on right half of his head parallel to median line.
(2) Contusion mark 21" x 2" on top of his head in the median line.
(3) Contusion mark 3" x 1+" on left half of his head parallel to median line 4" above the left ear.
(4) Eye-lids of both eyes were contused.
' In the opinion of the doctor death was due to internal haemorrhage and compression of brain which resulted from injuries Nos. 1, 2 and 3, caused with a blunt weapon and were sufficient to cause death individually in the ordinary course of nature.
4. All the eye-witnesses namely, Riaz Ahmad (P.W.7), Noor Muhammad (P.W.8) and Allah Diwaya (P.W.9) supported the prosecution case in its entirety. From amongst the accused persons, Nazir Ahmad appellant and his brother Wazir (acquitted co-accused) admitted their presence at the time of occurrence, however, the remaining co-accused denied their presence at the spot and controverted the allegations levelled against them. Nazir Ahmad appellant stated that he was working at his thrashing flour with trangul P-1, when he heard alarm raised by his brother Wazir. He rushed to that place and saw Ismail deceased beating him with a stick. He entreated him not to do so, whereupon the deceased also gave him a stick blow. He intended to turn back but the deceased gave him another blow. Apprehending danger to his life and to the life of his brother Wazir at the hands of the deceased, he retaliated in exercise of the right of private defence and caused blows to Muhammad Ismail deceased with trangul P-1. He also denied the presence of the rest of the accused at that time.
5. The learned trial Court having analysed the material on record accepted the defence version and acquitted all the accused excepting the appellant and held that he having given three injuries to Muhammad Ismail deceased had the knowledge that such blows were likely to cause his death.
It was further held that the appellant had no previous enmity nor had he preplanned to attack and kill Muhammad Ismail, rather there was a sudden fight between the appellant and the deceased wherein, the appellant had exceeded his right of private defence as he gave three stick blows on the head of the deceased. Consequently, he convicted him under section 304, Part II, P.P.C. And sentenced him to ten years' R.I. And a fine of Rs,5,000 as indicated above.
6. Nazir Ahmad appellant has filed this appeal through jail which came up for hearing for the first time before me today i,e, 3rd April, 1983, that is after about 12 years.
7.I have gone through the record myself and have minutely considered the evidence on record and I find that the conclusions arrived at by the learned trial Court are perfectly in consonance with appreciation of evidence for safe administration of criminal justice. I agree with him that the appellant by having given three consecutive blows on the head of the deceased exceeded the right of private defence and was thus liable for culpable homicide not amounting to murder. The sentence of 10 years R.I. Plus compensation awarded to the appellant is proper and adequate in the circumstances of the case to meet the ends of justice.
' The result is that the conviction and sentence of the appellant is maintained in toto. This appeal without merits is hereby dismissed.