' Ahmad Din (30) son of Nathu, caste Arain, resident of Chak No, 518/G.B., was tried under section 302, P.P.C. By the learned Additional Sessions Judge, Lyallpur (now Faisalabad), who, by his judgment, dated 12th December, 1967, convicted him under section 304, P.P.C. And sentenced him to R.I. For seven years, The convict has appealed through jail.
2. The occurrence took place on 21st May, 1965 at 11 a.m. In Chak No, 518/G.B., in front of the houses of the deceased and the accused. The prosecution version is that on the fateful day Muhammad Shafi deceased cooked a Deg of rice for distribution among the poor. He was free from the job at about 11 a.m. Ahmad Din appellant also arranged cooking of Deg for the same purpose. The deceased started harnessing his bullock-cart when Ahmad Din appellant came there with a Karchha in his hand. He told the deceased that he had asked him many times not to park his cart there and simultaneously gave a Karchha blow hitting his head as a result of which he fell to the ground. The appellant then gave three more blows to the deceased as a result of which he died at the spot.
' The motive alleged by the prosecution was that the deceased used to park his cart in front of the door of his house. The appellant objected to it. About 16/17 days prior to the occurrence there was a quarrel between them on that score. The appellant advanced a threat that he would take revenge.
3. After the occurrence, Muhammad Hussain, brother of the deceased, went to Police Station Toba Tek Singh and reported the occurrence to Nazar Hussain, A.S.I., vide F.I.R. Exh. P.A.
4. The A.S.I. Reached the spot at 9 p.m. He prepared inquest-report Exh. P.G. And injury-statement Exh.P.L. Of the dead body. He took into his possession blood-stained earth from the spot and made it into a sealed parcel vide memo. Exh. P.B. He also took into his possession blood-stained Karchha (P.1) and made it into a sealed parcel vide memo. Exh.P.C. Muhammad Afzal, S.H.O. Arrested the accused on 24-5-1965, He led to the recovery of his blood-stained shirt which was made into a sealed parcel vide memo Exh.P.D. After the investigation the accused was challenged.
5. On 22nd May, 1965 Dr. Masood Farooqi, Medical Officer, Gojra, conducted the post-mortem examination on the dead body of Muhammad Shan deceased and found four injuries on it. The death was due to extensive fracture of skull and intracranial bleeding caused by injuries Nos. 1, 3 and 4 which were sufficient to cause death in the ordinary course of nature.
' On 23rd May, 1965 at 8-30 a.m. Dr. Muhammad Sharif Khalid, Medical Officer, Civil Dispensary, Dijkot, examined Ahmad Din accused and found three injuries on his person, simple in nature, caused by blunt weapon.
6. In support of its case the prosecution examined three eyewitnesses, namely, Muhammad Hussain, Nazir and Bashir P.Ws. It also relied on the evidence relating to motive and recoveries.
7. The appellant pleaded not guilty to the charge. When asked why this case against him, he made the following statement:- "The rice, which were to be cooked by me in Deg, were washed and the water had flown in the bazar and Muhammad Shafi deceased objected. Abuses were exchanged and then we came to fist blows and then he gave me a few blows by his Purani (stick). I did not give any injury by the 'Kerchha' Exh. P.1. I gave him a push thereupon he fell on the Karchha P.1 which was lying on the ground. In this way he received an injury on his head."
' No evidence was led in defence.
8. After examining the evidence on the record, the learned trial Judge rejected the prosecution version regarding the motive and observed that Exception 2 to section 300, P.P.C. Was attracted to the facts of this case. He, therefore, convicted the appellant under section 304, P.P.C. And sentenced him as mentioned above.
9. This appeal was admitted to hearing on 27th May, 1968. It was listed before me on 21st February, 1984. Since nobody appeared on behalf of the appellant, a notice was issued to him but in spite of service he has not turned up.
10. I have gone through the evidence with the help of the learned State counsel. The prosecution version of the occurrence is supported by Muhammad Hussain (P.W. 16), Nazir (P.W.17) and Bashir (P.W.18). The site plan shows that only a lane intervened between the house of the deceased and that of the appellant. The occurrence took place near their houses. House of Nazar P.W. Is also shown in the site plan. According to him, it is at a distance of 16/17 Karams from the house of the deceased. The house of Muhammad Hussain P.W. Is adjacent to that of the deceased. In this way, both Muhammad Hussain and Nazir P.Ws. Are the natural witnesses of the occurrence. Bashir P.W. Is a barber by profession. His presence at the spot was also probable as his duties included the cooking of rice at ceremonial occasions. They have supported the prosecution version as detailed in the earlier portion of this judgment. However, Nazir (P.W.17) admitted in cross-examination that Ahmad Din appellant had received some Purani (goading stick) blows at the hand of Muhammad Shafi deceased before giving him Karchha blows. Medical evidence on the record lends support to this statement. The appellant was medically examined on 27th May, 1965 and three injuries were found on his person, two on the abdomen and one on the lower border of the left scapula. In the circumstances, the right of self defence is clearly inferrable from the evidence on the record.
However, the appellant gave four Karchha blows to the deceased and exceeded the right of private defence. According to Dr. Masud Faruqi who conducted the post-mortem examination, there was extensive fracture of skull due to injuries Nos. 1, 3 and 4. The deceased had fallen to the ground on receiving the first blow and there was no justification for causing more blows. The learned trial Judge has rightly held that the appellant had exceeded the right of self-defence. His conviction under section 304, P.P.C. Is, therefore, maintained. For the purpose of sentence the appeal has become infructuous as the appellant has already served out the entire term of imprisonment.
Accordingly, the appeal is dismissed.