' Muhammad ljaz son of Ghulam Sarwar, caste Rajput aged 19 years resident of near Shama Cinema, Sahiwal, has been convicted on the charge of murder of Nasim and sentenced to imprisonment for life with fine of Rs,10,000. In default of payment of fine he was ordered to undergo further R.I. For six months, besides his conviction under section 452, P.P.C. And sentence to three years' RA., by the Additional Sessions Judge, Sahiwal, vide his order dated 13-1-1980. He was tried alongwith Riaz, Fayyas (his brother), Ghulam Sarwar (his father), Mst. Razia Bibi (his mother), Mst.
Shehnaz (his sister) and Muhammad Ibrahim (his maternal-uncle), but they were acquitted. It was directed that in case the fine imposed on Muhammad Ejaz, convict, was realised, the same shall be paid as compensation under section 544-A, Cr.P.C., to the heirs of the deceased. The convict has challenged both his conviction and sentence through Criminal Appeal No,122 of 1980 which is being disposed of by this judgment.
2. The incident took place on 30-4-1977 at 3 p.m. In Sahiwal City at a distance of about 21 furlongs from Police Station 'A' Division, Sahiwal. The incident was reported by Mst. Shamshad Begum P.W.9 sister of Nasim deceased, vide her statement Exh.P.H. Which was recorded by Muhamn id Rafique, A.S.I. P.W.15, the same day at 3-30 p.m. At police pos No,2. On the basis of the said report, formal F.I.R. Exh.P.O. Wa drawn up by Khurshid P.W. (not examined).
3. According to the F.I.R., the case of the prosecution briefly is that Mst. Shamshad Begum P.W.9 and her deceased brother Nasim were living in a rented house on Fateh Sher Road, Sahiwal, 4/5 months prior to the occurrence, the deceased Nasim abducted Mst. Imtiaz Qamar (sister of the appellant) on account of his relations with her and married her. On 30-4-1977 at about 3 p.m. Mst. Shamshad Begum complainant P.W.9, Mst. Irshad Perveeh P.W. (not examined), Riaz Ahmad P.W.11, Manzoor Ahmad P.W.12 and Nasim deceased were present in their house talking to each other. Two Cars Nos.PRB-92 and. MY-8303 stopped in front of their door and from these cars, Muhammad Ijaz, appellant and other 6 acquitted accused got down and entered the house. They forcibly dragged Mst. Imtiaz Qamar out of the house and tried to put her in a car. Nasim, deceased, prohibited them saying that he would not permit them to take her away. On this, Riaz, Ibrahim, Mst. Rukaya and Mst.
Shehnaz (the acquitted accused) gave Lalkara that deceased should be taught a lesson for abduction whereupon Ghulam Sarwar and Fayyaz (acquitted accused) brothers of the appellant, allegedly held the deceased while the appellant gave a Chhuri blow in his chest. The deceased, on receipt of Chhuri blow, fell down. The complainant as well as the P.Ws. Tried to rescue the deceased but the accused scared them away by holding out threats that whosoever will come near would face the same consequence. The P.Ws. Thus dared not to come near the accused out of fear. Mst.
Imtiaz Qamar was then taken away by all the accused in a car. Nazim, deceased, was removed in a rickshaw to the hospital by Manzoor and Riaz P.Ws. But he succumbed to the injury in the way.
The dead body of Nasim was received at 3-15 p.m and Dr. Muhammad Siddique P.W.10 vide letter Exh.P.J. Informed the S.H.O. In this respect. Muhammad Rafique A.S.I. , reached the hospital and prepared inquest report Exh.P.P. He drafted application Exh.P.Q. For post-mortem examination.
Sardar Ali F.C. P.W.5 escorted the dead body to the mortuary. Dar. Muhammad Siddique P.W.10 conducted the post-mortem examination on the dead body at 7 a.m. On 1-5-1977 and found the following injury:- "A stab wound 1" x 1/3" x deep going on the front of left side of chest about one inch inner to the nipple in the fifth intercostal space."
' The fifth rib was cut (chip was separated). Pericardium was cut and pericardial cavity was full of blood. Right ventricle of the heart was punctured. Pleura was punctured on left side. According to the doctor, the death occurred due to severe haemorrhage and shock caused by the injury which was sufficient to cause death in the ordinary course of nature. The injury was ante-mortem and was caused by sharp-edged weapon.
4. The appellant was arrested who at that time was wearing blood- stained shirt P.6 and Shalwar P.7 which were secured and made into a sealed parcel through memo. Exh.P.N. On 7-5-1977, he led to the recovery of blood-stained Chhuri P.5 which was secured after making into a sealed parcel vide memo. Exh.P.F. The sketch of Chhuri is Exh.P.F./1. Clothes of the appellant, blood-stained earth lifted from the spot and blood-stained Chhuri were sent to the Office of Chemical Examiner, Lahore, for detection of blood, on 7-6-1977. The Chemical Examiner's report Exh.P.R. And Serologist's report Exh.P.S. Confirmed that the articles were stained with human blood. After completing the necessary investigation, the appellant and his co-accused were sent up for trial to Court.
5. At the trial, the prosecution examined 15 witnesses in support of its case. It mainly relied on the ocular evidence furnished by Mst. Shamshad Begum P.W.9, sister of the deceased, Riaz Ahmad P.W.11, son of Mst. Shamshad Begum, and Manzoor P.W.12, a friend of the deceased. The ocular account was corroborated by the recovery of blood-stained clothes and Chhuri belonging to the appellant which were deposed to by Muhammad Ali P.W.7, Manzoor P.W.12 and Ghulam Muhammad A.S.I. P.W.13. The motive was proved by Mst. Shamshad Begum P.W.9. The medical evidence proved that Nasim, deceased, met unnatural death as a result of stab wound suffered by him in the chest.
6. The appellant when examined under section 342, Cr.P.C. Had stated that Nasim, deceased, was his friend with whom he married his sister Mst. Imtiaz Qamar. His sister became sick of behaviour of the deceased because he and his family used to compel her to lead an immoral life. On the day of occurrence, he went to the house of the deceased who was not present there and his sister Mst.
Imtiaz Qamar beseeched him weeping bitterly that she should be taken from there. She, therefore, accompanied him. When they reached on the Paca road, the deceased came there with a knife in his hands and threatened them. Feeling danger to their lives, the appellant and his sister started running but the deceased overtook Mst. Imtiaz Qamar near the shop of one Abdul Hamid and started dragging her back to his house in spite of her refusal. The deceased tried to stab her but the appellant intervened. They grappled with each other. In that struggle, the deceased fell down and his own knife struck in his chest per chance. He, however, declined to produce any defence evidence.
7. The learned trial Judge rejected the version of the appellant being neither plausible nor probable.
The learned Judge also while analysing and assessing the evidence on record expressed his doubts about certain parts of the prosecution story, as enumerated below:-
(a) The element of use of cars by the accused party during the occurrence was highly doubtful and appeared to have been introduced to give strength to the prosecution case.
(b) Dragging of Mst. Imtiaz Qamar by the accused party was not proved as she did not appear to have suffered any injury due to the alleged dragging. Neither she was medically examined nor was she produced as a witness in the Court.
(c) Manzoor Ahmad P.W. 12 was a close friend of the complainant family who was resident of a place about 11/2 miles away from the place of occurrence and was, therefore, a chance witness and his presence at the relevant time was not satisfactorily explained.
(d) The place of occurrence was situated in a populated area of the city and there was Abadi around it where from independent witnesses were available yet nobody from the locality came forward to support the version of the prosecution.
(e) The prosecution witnesses did not speak the whole truth. The entire family of Ijaz accused has been involved in this case and the possibility of false implication of six accused persons existed there and ultimately they are acquitted.
8. Having made the aforesaid important observations the learned trial Judge undertook his duty of "separating the grain from the chaff" and in this exercise he held that the ocular account corroborated by the medical evidence, motive and the recovery of Chhuri from Muhammad Ijaz, appellant, has proved beyond doubt that the appellant having armed himself with Chhuri committed trespass into the house of deceased for taking away his sister and when the deceased resisted, he inflicted the injury to him and caused his death. On the basis of this finding, he convicted the appellant under section 302/452, P.P.C. But refrained from imposing death penalty because the murder of Nasim in his opinion was committed in vindication of the family honour of the appellant.
9. I find that the learned trial Court has rightly and for good reasons rejected the plea of the appellant that the deceased received the fatal injury accidentally with his own knife while grappling with him. His conclusion that it was the appellant who caused injury to the deceased is also not open to exception, but the question is under what circumstances did he cause injury to the deceased and in doing so what offence did he commit?
10. It has been held that neither the cars were employed for abduction of Mst. Imtiaz Qamar nor was she dragged out of her husband's house per force. In view of these findings, it is not understood as to how A the learned Judge held the appellant guilty under section 452, P.P.C. The fact that the occurrence did not take place inside the house or at the door of the deceased or even in its close proximity, proved it beyond doubt that Mst. Imtiaz Qamar was accompanying the appellant, her brother, of her own free will and both of them had covered a distance of over 60 yards when the deceased came in the way and tried to snatch Mst. Imtiaz Qamar from the appellant for taking her back to his house. It appears that she did not agree to it, otherwise, when the appellant and the deceased were grappling with each other she would have run into her husband's house but she did not do so. I think, in these circumstances, the deceased had no right to forcibly take Mst. Imtiaz Qamar to his house against her wishes and the appellant in order to get his sister released from the clutches of the deceased, was quite within his right to use necessary force for the purpose in view of description, "sixthly" to section 100, P.P.C. Which reads as follows:- "Section 100.-- The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely: - ' First to fifthly,- .......................................................................................................
' Sixthly,--An assault with the intentions of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release."
But I find that the force used by the appellant against the deceased was not proportionate in the circumstances of the case. The deceased Nasim was empty-handed and the appellant by causing a deadly blow with Chhuri in the chest of the deceased had certainly exceeded his right of private defence.
11. In view of these circumstances, I am of the view that the facts disclosed an offence under section 304, Part-II, P.P.C. And not under section 302, P.P.C. For the foregoing reasons, the conviction and sentence of the appellant under section 452, P.P.C. Is set aside and the conviction under section 302, P.P. C. Is altered to one under section 304, Part II, P.P.C. Now, there remains to decide that what should be the sentence. The records show that the appellant was lodged in Jail since 30-4-1977 as an under-trial prisoner, and his trial concluded on 13-1-1980. By giving him benefit of section 382-B, Cr.P.C., if the period spent by him in jail as under trial, is counted towards his sentence, then the total period of imprisonment he has served by now would be a little above five years. I, therefore, sentence the appellant to imprisonment for the period already undergone which is quite sufficient to meet the requirements of this case. It is, therefore, directed that the appellant be released forthwith if he is not wanted in any other case. The sentence of fine is also set aside. The amount of fine already deposited would be remitted to the appellant.