' This is an appeal by Hamayun Mirza aged 16 years, against the judgment of learned Sessions Judge, Sialkot, dated 11-12-82, by which he was convicted under section 302, P.P.C. And sentenced to imprisonment for life plus a fine of Rs,10,000 or in default two years' R.I. It was further ordered that the fine, if recovered, would be paid to the heirs of the deceased as compensation. The complainant filed Criminal Revision No,50/83, seeking enhancement of the sentence of the accused which was ordered to be heard alongwith this appeal. This judgment will dispose of both these matters together.
2. The prosecution case in brief is that on 23-8-1983, at 3..30 p.m., Muhammad Rafiq younger brother of Muhammad Shafiq P.W. (complainant) had a quarrel with Shahzada, a younger brother of Hamayun Mirza accused. They were separated by Muhammad Shafiq P.W., Muhammad Idrees deceased, and their uncle Muhammad Latif P.W. During that process, Muhammad Idrees deceased gave one slap each to the two quarrelling boys. Shahzada went back to his house weeping. The complainant and his companions remained present near the shop of Abdul Aziz. They were still there when, it is alleged, that Hamayun Mirza accused armed with a Chhuri came to the spot and started abusing Muhammad Idrees. Simultaneously, he attacked Muhammad Idrees who tried to run away but in the meantime, Hamayun Mirza accused gave one Chhuri blow on the flank of the deceased who fell down. It is further alleged in the F.I.R. That the complainant, Muhammad Latif P.W., Muhammad Munir P.W. And Allah Rakha P.W. Who also had reached the spot, caught the accused but he managed to run away. It is further stated that during this process, the accused also received some injuries. Muhammad Idrees was put on a tonga and taken towards the hospital but he died in the way before any medical aid could be rendered to him. The complainant, leaving the dead body in the care of Muhammad Latif and Muhammad Saeed in the compound of the hospital, proceeded to lodge the F.I.R. Towards the Police Station. He met Muhammad Amir A.S.I.
And made statement Exh.P.C. At 4-45 p.m. On 23-8-82 on 'the basis of which formal F.I.R. Exh.P.C./1 was recorded at 5-10 p.m., the same day, by Subhan All A.S.I. P.W.6. The occurrence took place in Mohallah Wasi Shaheedan in Sialkot City, about five furlongs from P.S. City Sialkot.
3. The police undertook investigation after registration of the case.The dead body of Muhammad Idrees was sent for post-mortem examination which was conducted by Dr.Muhammad Aslam Butt P.W.10. He found the following injury on the person of the dead body:- ' An incised wound 11/2" x 3/4" over the back and middle of left chest.
' Left pleura alongwith the left lung was found cut through and through. The left chest cavity was full of dark fluid blood with clots in it. In the opinion of the Medical Officer, injury No,1 had been caused by a sharp-edged weapon and was grievous and dangerous and was sufficient to cause death in the ordinary course of nature.
' The accused Hamayun Mirza was arrested next day of the occurrence i,e, on 24-8-1982. He was found injured at that time. The Investigating Officer got him medically examined from Dr.Muhammad Aslam Butt P.W.10. The said Medical Officer found eight injuries in all on the person of Hamayun Mirza accused. Injury No,1 was a bluish red contusion on the left eye, No,2 was an abraded contusion on left cheek, No,3 was a scabbed abrasion over the back of left arm, No,4 was an incised wound over the left upper arm and outer aspect with a corresponding cut on the shirt.
Injuries Nos.5 and 6 were superficial cuts over the fingers of the right hand. Injury No,7 was an abraded contusion on the left upper eye-lid and eye-brow. Injury No,8 was multiple scabbed abrasions on the lower and front aspect of left fore-arm. According to the Medical Officer, injuries Nos.4, 5 and 6 were caused by sharp-edged weapon and the remaining injuries were by blunt weapon. All these injuries were of simple nature within a period of 24 to 30 hours.
' On 31-8-1982, the accused Hamayun Mirza while in police custody led to the recovery of blood- stained Chhuri P.3 which was taken in possession by Faiz Ahmad S.I. P.W.14 vide memo. Exh.P.E, in the presence of Muhammad Iqbal P.W.8 and All Muhammad (given up P.W.). This Chhuri was found to be stained with human blood vide report of Chemical Examiner Exh.P.M. And that of Serologist Exh.P.N. The accused was challaned and tried after investigation.
4. The prosecution during the trial examined 14 witnesses in all. Muhammad Shafiq P.W.9, Muhammad Latif P.W.11 and Allah Rakha P.W.12 were examined as eye-witnesses. Muhammad Munir, another eye-witness was given up as unnecessary. The post-mortem on the dead body of the deceased and the medico-legal examination of Hamayun Mirza accused was conducted by Dr.Muhammad Aslam Butt P.W.10 as given in detail above. The evidence of recovery of crime weapon was furnished by Muhammad Iqbal P.W.8 and Faiz Ahmad S.I. P.W.14. Muhammad Amir A.S.I. P.W.13 investigated the case. The evidence of rest of the witnesses was of formal nature.
' The accused when examined under section 342, Cr.P.C., denied the charge of murder. He denied the recovery of Chhuri P.3 as well. He made the following statement in defence:- "On the day of occurrence, my younger brother Shahzada came to the house weeping, on my inquiry, he informed me that he was beaten by Idrees. In order to make a complaint, I went out and found that Idrees, Latif, Shafiq and Munir were standing near the shop of Abdul Aziz sweet-seller. As I reached there, Idrees gave an abuse to me. I also abused him. They made an assault on me.
Idrees caused a knife blow on my left arm and the others caught hold of me and gave me beating.
I snatched the knife and during the process, I received some injuries on my hand. In the right of self-defence, I caused a knife blow on the back of ldrees while I was still under their attack. Then I went to the police post. They arrested me."
' The accused tendered in evidence pedigree-table Ex.D.C. And Jamabandi Exh.D.D. To prove the relationship of Allah Rakha P.W.12 with the deceased. He did not lead any other evidence in defence.
' The learned trial Judge, in order to record conviction of the appellant, placed reliance on the evidence of Muhammad Shafiq P.W.9 and Muhammad Latif P.W.11. He discarded the evidence of Allah Rakha P.W.12. He also disbelieved the recovery of Chhuri P.3 at the instance of the accused.
5. I have gone through the record of this case with the assistance of learned counsel for the appellant as well as that of the complainant. It is contended by the learned counsel for the appellant that the accused acted in his right of private defence; that the eye-witnesses made material improvements in their statements in order to set up a false case of murder against the accused; and that- the eye-witnesses were highly interested and therefore, not reliable.
Alternately, it, was argued by the learned counsel that the accused could at the most be said to have exceeded his right of private defence specially when the circumstances indicate that the occurrence took place all of a sudden. It was, therefore, argued that at the most, an offence under section 304(1), P.P.C. Could be said to have been made out against the accused. The learned counsel for the complainant vehemently controverted the contentions of the learned counsel for the appellant.
6. In the instant case, the immediate motive of the occurrence is not disputed by the accused. It is admitted by the appellant that Muhammad ldrees deceased had given slaps to his own brother as well as to his brother Shahzada. The prosecution story is that the accused after the said incident came armed at the spot with a Chhuri whereas according to the accused, he came to the spot empty handed only to lodge a protest with the complainant party for slapping his brother Shahzada. The injuries on the person of the accused are admitted by the prosecution witnesses and have also been mentioned ,in the F.I.R. As such, the argument of the learned counsel for the complainant that as admitted by the Medical Officer, the injuries on the person of the accused could be the result of some friendly hand is without foundation. In my view, the prosecution case that there were two occurrences is not correct. I am of the view that there was a fight between the two young boys during which Hamayun Mirza appellant as well as Muhammad Idrees deceased, his brother Muhammad Shafiq and his uncle Muhammad Latif were also present and it was during that very fight that Muhammad Idrees deceased and the accused received injuries.
' The prosecution case is that after Shahzada, a brother of the accused went back to his house, Hamayun Mirza accused came to the spot armed with a Chhuri. According to Muhammad Shafiq P.W.9, the accused while proceeding to th shop of Abdul Aziz sweet-seller, passed from near them and they had cautioned Muhammad Idrees deceased not to go forward and that they would deal with the accused themselves. If this story had been correct and if the accused had passed from near these witnesses who were present at a distance of about 70 feet from Muhammad Idrees deceased, they would not have permitted Hamayun Mirza accused to pass from near them in order to approach Muhammad Idrees and then to cause him injuries. They must have intercepted him when the accused was passing from near them. Secondly, according to the site plan, Muhammad Idrees deceased was present in front of the shop of Abdul Aziz sweet-seller when the accused passed from near Muhammad Shafiq P.W. And his companions. On seeing the accused approaching him armed with a Chhuri from such a distance, the deceased must have tried to run away immediately instead of waiting for the arrival of the accused close to him. In view of these circumstances, I am of the view that the prosecution story of two occurrences cannot be accepted.
The accused received injuries by sharp-edged weapon as well as blunt weapon. There are a large number of injuries on his person. The Medical Officer noted eight injuries out of which some were multiple injuries. These injuries have not been explained satisfactorily by the eye-witnesses who claimed to be empty handed at the time of occurrence. The accused caused only one injury to the deceased whereas he received many injuries on his person by different weapons which could be caused by more than one person. In this view of the matter I am of the view that the occurrence took place all of a sudden without any premeditation. In that fight, the accused was given injuries by the complainant party who gave one injury to Muhammad Idrees deceased. In this view of the matter, it cannot be said that he was guilty of an offence under section 302, P.P.C. I am, therefore, of the opinion that the accused is guilty only under section 304(1), P.P.C. For which he is accordingly convicted. I convict Hamayun Mirza appellant under section 304(1), P.P.C. And sentence him to suffer ten years' R.I. Plus a fine of Rs,10,000 or in default two years' R.I. The entire amount of fine, if recovered, will be paid to the heirs of the deceased.
' The accused was arrested on 24-8-1982 and remained in judicial lock-up as under-trial till 11-12- 1982. He will be given benefit of section 382-B, Cr P.C. For this period. The appeal is dismissed subject to the above modification.
7. In view of the above, Criminal Revision No,50 of 1983 is dismissed in limine.