1. ' Jamshed, Noor Ahmed and Mushtaq Ahmed were tried by the Additional Sessions Judge, Gujranwala, for the murder of Khalid Javed and attempt to kill Muhammad Ayub. The trial Judge, by judgment dated 5th February. 1981, acquitted. Mushtaq whereas Jamshed and Noor Ahmed were held guilty under sections 302/307 read with section 34, P. P C. They were sentenced to imprisonment for life and 5 years' R. I. And a fine of Rs, 7,000 and 3,000 ; or, in default three years and one years' R. I. Each under sections 302 and 307, P. P. C., respectively.
2. ' The convicts have appealed to this Court. State has filed Criminal Revision No, 485 of 1981 and the complainant Criminal Revision No, 497 of 1981. This judgment shall dispose of all the three matters.
3. ' Occurrence in this case took place on 25th September, 1979 at 11 a. m. Jamil Anwar lodged report Exh. P. C. At Police Station Model Town, Gujranwala. It was recorded by Muhammad Aslam Moharrir Head Constable.
4. ' According to the F. I. R., the first informant alongwith Muhammad Ayub, Khalid Javed and Abdul Qayyum went to the Polling Station to cast their votes. At 9 a. m. The complainant went into the Booth. Noor Ahmad Polling Agent was present. They exchanged abuses. Sikandar Hayat and Muhammad Siddiq intervened and separated them. Noor Ahmad then threatened Jamil Anwar and warned that he would deal with him when he was free from election. Jamil Anwar after casting vote was on his way to his home. Muhammad Ayub and Khalid Javed were with him. When they reached near the house of Noor Ahmad In Street No, 8, they saw Mushtaq Ahmad Khan standing there. On seeing them he raised lalkara. Noor Ahmad and Kaloo son of Muhammad Siddiq armed with daggers came out. Noor Ahmad opened the attack. He inflicted dagger blows in the left flank and left arm of Ayub. Kaloo caused injuries with his dagger to Khalid Javed on the back of his left thigh.
5. ' The incident was witnessed by Mahmood Ahmad and Muhammad Rafiq who. Were following them. The assailants ran away. They took the wrist watch of Muhammad Ayub.
6. ' On 25th September, 1979 at 11.35 a. m., Dr. Harbans Lal, Medical Officer, Civil Hospital Gujranwala, examined Khalid Javed. He noticed two incised wounds "4 cm x 1 cm. Going deep on the left buttock lower part situated obliquely" and "7 cm. X 2 cm. Going deep on outer side of left thigh upper part situated obliquely". Both the injuries were kept under observation. Later on, the injured was operated upon by another Surgeon. The doctor declared the first injury as grievous. Injury No, 2 was simple. The weapon used was sharp-edged.
7. ' Five minutes earlier, the same doctor examined Muhammad Ayub. He too had two incised wounds. Those were 24 cm. x 1 cm. Skin deep on front of left forearm just above wrist and 3 cm. x 1 c m. Going deep on the left side of chest, 14 cm. Below outer to left nipple situated vertically. He was in serious condition. X-ray was advised. According to the doctor injury No, 1 was simple. The other he kept under observation. Both were caused with sharp-edged weapon. On the basis of X-ray report, injury No, 2 was also declared simple.
8. ' Khalid Javed died in Mayo Hospital, Lahore. On 27th September, 1979 at 12 noon his post-mortem examination was conducted by Dr. Sabir Ali. The doctor noticed the following injuries :-
(1) Stitched incised wound 7 cm. Upper half outer part left thigh placed vertically oblique. The wound was 15 cm. Deep passing through the muscles below the femur towards the medial aspect direction being upwards and backwards.
(2) Stab wound with clean cut margins 41 cm. x 11 cm. Going deep on the lower fold of the left buttock in the outer part, placed transversely oblique, and it was found packed with the gauze.
9. ' The stab entered through the muscle into the palvic cavity, punctured the urinary bladder and pelvic colan and the small intestines at two places. Injury No, 2, according to the doctor, was sufficient to cause death in the ordinary course of nature. Weapon used was sharp-edged and pointed. Cause of death was haemorrhage and shock.
10. ' Before the trial Court, Jamshed admitted that Noor Ahmad was his paternal-uncle's son and that his father contested the last B. D. Election. He denied the allegations. In reply to question why this case against him, he gave the following reply :- "As I am son of Muhammad Siddiq who was contesting election against Haji Munir, and due to my relationship with Noor Abmad accused, have been falsely involved in this case."
11. ' He pleaded not guilty and declined to produce any evidence in defence.
12. ' Noor Ahmad also admitted his relationship with the co-accused. He denied the prosecution allegations. He was injured. In reply to question "How do you explain injuries on your Orson," his version ., was thus :- "Muhammad Ayub P. W., Khalid Saved deceased and some other persons attacked the house of my father-in-law and broke the window panes and damaged my motorcycle. I came out to stop them but Khalid Saved started grappling with me and threw me on the ground, thus causing injuries on my face and head. I managed to sit up As I usually keep a knife for opening gunny bags at my depot and apprehending danger to my life, I took out the same and in self-defence caused injuries to Khalid javed on his thigh and buttock. When I got up, I was again apprehended by Ayub and in an effort to escape myself from the spot, he also received two simple injuries."
13. ' He too pleaded not guilty and also declined to lead any evidence in ,,defence.
14. ' Prosecution produced Jamil Anwar the first informant and Muhammad Ayub as eye-witness.
15. Reliance was also placed on the recovery of bloodstained daggers and the medico-legal reports as well as post-mortem report.
16. ' Jamil Anwar repeated the same story which he told the police. He said that after casting votes he, Khalid Saved and Ayub started for their house in Street No, 8, Mohalla Islamabad. When they reached in front of the house of Noor Ahmad and Mushtaq, Mushtaq was standing in the gate of his house. He raised lalkara "Catch them; no one out of them should escape". At this, Noor Ahmad and Jamshed came out. They had daggers. Noor Ahrnad attacked Ayub. He gave two dagger blows to Ayub on his left flank and left wrist. .Jamshed gate one dagger blow to Khalid Saved on his left buttock and another dagger blow on the left thigh. Jamil Anwar, Mahmood and Rafique raised alarm. The accused ran away taking wrist watch of Muhammad Ayub. The injured were removed to the hospital.
17. ' Muhammad Ayub is the next eye-witness. He is injured. He is real brother of Khalid laved. He supported the first informant. He accused Noor Ahmad for giving two dagger blows to him (Ayub).
18. Jamshed was held responsible for inflicting two injuries to Khalid javed; one on his left buttock and the other on his left thigh. He said that on reaching hospital he became unconscious. He remained in the hospital for 19 days.
19. ' Learned-counsel for the appellants submitted that the prosecution version was not correct. As a matter of fact, the complainant party was the aggressor. It was argued that the occurrence took place in front of the house of Noor Ahmad appellant which meant tat the other side had come to his residence. Regarding Jamshed, it was submitted that he was not present. He did not participate in the occurrence. Noor Ahmad gave injuries to the deceased and Ayub in the right of private defence otherwise he had no intention to kill.
20. ' Learned counsel for the State supported the judgment of the trial Court. Counsel for the complainant argued for enhancement of the sentence.
21. ' The prosecution case is to be examined from two angles. First, whether the prosecution evidence inspires confidence. If so, then it shall have to be compared with the stance of the appellants but in case the prosecution testimony is not worth relying then it is not necessary to examine the counter-version and the appellants are entitled to acquittal straightaway.
22. ' As already observed, Ayub was injured. His presence cannot be doubted. Medical evidence lends support to the prosecution story that the injuries on the person of the deceased and Ayub had been caused by a sharp-edged weapon.
23. ' At the same time I find that Noor Ahmad was medically examined on 28th September, 1979 the day he was arrested. He had the following injuries :-
(1) Abrasion 1 c. m. x c. m. X c. m. On the middle of forehead.
(2) Abrasion c. m. x c. m. On bridge of nose and crust was present over it.
(3) Abrasion 2 c. m x 1 C. m. On left maxilliary region of bead and face and crust was present on it.
(4) Complained of pain on left buttock.
24. ' These injuries are of minor type. These could be caused in day-to-day routine.
25. Noor Ahmad's statement that he apprehending danger to his life caused injuries to Khalid Javid in self-defence, does not find support from any other evidence on record. I am aware of the fact that onus is not so heavy on him to prove his plea. Nevertheless, the law requires that he is to make out a "probable" case in support of his version. I am afraid he has not been able to do so.
26. ' This leaves me to examine the criminal liability of each of the appellant. Noor Ahmad did not inflict any injury to the deceased. This is an admitted position. Injuries of Ayub were found to be simple. As such, section 34, P. P. C. Is not applicable. This is, therefore, a case of individual liability. Noor Ahmad's conviction under section 302 P. P. C. Is B accordingly set aside. His conviction under section 307, P. P. d. Is altered to one under section 324, P. P. C. He is on bail. I don't think it is now in the ' interest of justice to send him back to the prison. The sentence already undergone by him would meet the ends of justice. .
27. ' His sentence of fine is maintained. This shall be paid in full as compensation to Ayub.
28. ' Jamshed has been convicted under sections 302 and 307, P. P. C. As I have held this is a case of individual liability, his, conviction under section 307, P. P. C. Is set aside. Nevertheless, his conviction and sentence under section 302 P. P. C. Is maintained because the prosecution has proved its case beyond any doubt.
29. ' Jamshed was fined Rs, 7,000. This amount is enhanced to Rs, 20,000 (twenty thousand) after giving notice to the counsel who accepted it. The amount of fine shall be paid, in full, to the legal heirs of the deceased as compensation.
30. ' He is given concession under section 382-B, Cr. P. C. The period of his detention shall be deducted from his sentence of life imprisonment.
31. ' The revisions filed by the complainant and the State were ordered to be heard alongwith this appeal. Notice was not issued in either of them. For the reasons given above I don't think there is any merit in these revisions which are hereby dismissed in limine.