' JAVID IQBAL, C.J.-- Zahoor Ahmad, son of Sarfraz, aged 25, armed with knife, and Muhammad Sharif, son of Dost Muhammad, aged 35, empty-handed, both first-cousins as well as Sala Behnoee in the sense that Zahoor Ahmad's sister was married to Muhammad Sharif, have been convicted vide judgment, dated 11-12-1980 of the Additional Sessions Judge, Jhang, and sentenced as follows: Both of them were convicted under section 302/34, P.P.C. For the murder of their first- cousin Shabbir Ahmad, son of Muhammad Riaz, aged 45, and whereas Zahoor Ahmad was sentenced to death plus fine of Rs,10,000 or in default to undergo three years' rigorous imprisonment, Muhammad Sharif was sentenced to imprisonment for life plus fine of Rs,10,000 or in default thereof to undergo three years' rigorous imprisonment. From both of them if fine was realized, it was to be paid as compensation to the heirs of the deceased. Both the appellants and the deceased, in the instant case, are first-cousins inter se as their fathers, namely Sarfraz, Dost Muhammad as well as Muhammad Riaz were real brothers. The appeal of the convicts is being taken up and disposed of alongwith the connected murder reference as well as Cr.R. No,49 of 1981 for enhancement of the sentence awarded to Muhammad Sharif appellant from life imprisonment to death as well as for the enhancement of the amount of fine to be paid by the appellants, by this judgment. It may be noted at this stage that Muhammad Sharif appellant is on bail vide order of this Court, dated 22-3-1981.
2. The occurrence took place at 6 a.m. On 26-6-1978 in the fields within the area of Mauza Jamali Khurd Chah Kikarwala at a distance of four miles from Police Station 1P Hazari, District Jhang. F.I.R.
(Exh. P.F.) was lodged by Wazir Ahmad Khan (P.W.10), brother of the deceased, at 9-30 a.m. On the same day and it was recorded by Sajjad Hussain S.I. (P.W.13).
3. The motive for crime as stated in the F.I.R. Is that the parties were closely related inter se being first-cousins. One week prior to the present occurrence Zahoor Ahmad appellant is stated to have cut jokes with Mst. Rabia Bibi, daughter of Bashir, another brother of the deceased. In retaliation, it is stated, that Ehsan Ilahi (P.W.11) a matric student who is brother of Mat. Rabia Bibi, cut jokes with Mst.
Sakina, wife of Zahoor Ahmad appellant. It is further stated that Zahoor Ahmad appellant in retaliation on the day of the occurrence alongwith Muhammad Sharif appellant, tried to assault Ehsan Ilahi P.W. By chasing ,him, who managed to escape. Shortly thereafter when the deceased was passing by the Dhari of the appellants, they waylaid him and attacked him. In order to support the motive version Ehsan Ilahi P.W. Has been produced besides Wazir Ahmed Khan P.W.
4. In the F.I.R. The occurrence is reported to have taken place in the following manner: While the deceased passed by the Dhari of the appellants carrying Bhoosa on his head, Zahoor Ahmad appellant is stated to have raised a Lalkara that they would not spare him. On this the deceased threw away the Bhoosa on the ground but Muhammad Sharif appellant caught hold of the deceased in his Japhha while Zahoor Ahmad appellant gave a knife blow which fell on the left leg of the deceased on the thigh little above the knee joint. The wound was deep. The deceased fell down on the ground in an injured condition and died on the spot. On the alarm besides Wazir Ahmad Khan P.W. Who was ploughing the field nearby, were attracted to the scene of crime Master Zahoor Ahmad and Muhammad Nawaz. Both of them have not been produced but were given up as won over. Thereafter leaving behind Ghulam Muhammad to guard the dead body of the deceased, Wazir Ahmad Khan P.W. Proceeded to lodge the report.
5. The prosecution has produced only one eye-witness of the occurrence, namely, Wazir Ahmad Khan (P.W.10) who is real brother of the deceased. It may be pointed out at this stage that two other eye-witnesses cited in the F.I.R. Namely Master Zahoor Ahmad and Muhammad Nawaz were not produced but they were given up as won Dyer. Master Zahoor Ahmad is stated to be also closely related to the Deceased whereas Muhammad Nawaz was maternal-uncle of Ehsan Ilahi P.W. Needless to say that Ehsan Elahi P.W., who is witness of motive, in the instant case, happens to be nephew of the deceased as well as Wazir Ahmad Khan P.W.
6. Both the appellants were arrested on 28-6-1978. Zahoor Ahmad appellant was arrested by Zulfiqar Ali H.C. (P.W.6), whereas Muhammad sharif appellant was arrested by Sajjad Hussain S.I.
(P.W.13). From ahoor Ahmad appellant was recovered blood-stained knife (Exh.P.2) which was taken into possession vide memo. Exh.P.H., dated 30-6-1978. The attested witnesses are Master Zhoor Ahmad (not produced), Muhammad Nawaz (not produced) and Sajjad Hussain S.I. (P.W.13).
Nothing was recovered from the other appellant as he was stated to be empty-handed. According to the report of the Serologist (Exh.P.J./4) at page 8 of the printed paper-book, the scrappings from knife (Exh.P.2) were found to be stained with human blood.
7. Both the appellants In their statements before the trial Court denied having participated in the occurrence. They also denied the motive version and Zahoor Ahmad appellant disowned the recovery. Both the appellants gave their own version of the occurrence. Zahoor Ahmad appellant placed on the record a written version of the occurrence which is Exh.D.C. At page 25 of the printed paper-book, whereas Muhammad Sharif appellant gave his written statement which is Exh.D.D. At page 29 of the printed paper-book. The improtant portion from the version given by Zahoor Ahmad appellant is as follows:- "I have been falsely involved in this case. Mst. Rabia Bibi daughter of Bashir Ahmad is my first cousin. She was previously engaged to me. Later on the engagement failed and I married Mst.
Sakina. Being a cousin of Mst. Rabia, we were on visiting terms. Some days before the occurrence, I went to the house of Bashir Ahmad where Mst. Rabia was present all alone. I was having conversation with her where mother of Mst. Rabia Bibi came and snubbed me as to why I had visited her house. Later on, this information was conveyed to Shabbir deceased, the real uncle of Mst. Rabia, who felt very much annoyed to this and was not satisfied on my best assurance. He conveyed his threats to me.
' On 26-6-1978, early in the morning I was busy cleaning my teeth with a Kikar Miswak which I had cut from nearby Kikar tree near Khala. In the meantime Shabbir deceased came from behind and gave me a Kassi blow on my head. I fell down and the deceased aimed a second blow of Kassi and before he could do that, apprehending danger to my life to save myself, I gave blow on his leg with the pen-knife which I had with me while I was under him. I had no intention to kill him. I wanted to disable him from giving blow on my head. The fact that no other blow was repeated proves the fact that I wanted only to save myself and not to kill him. The occurrence was not witnessed by any of the P.Ws. In fact Sharif accused whose house is near to the place of occurrence, came to the spot and he conveyed this information to Wazir Ahmad P.W. At Chah Rarriwala, on the eastern side of Abadi. I came to my Dhari and in order to avoid any further complication I rushed back to my Unit. Moreover I never thought that the blow on the non-vital part would prove fatal but unfortunately, the injured was not given timely aid and he died subsequently. I reported myself and the incident to my Army authorities. I was medically examined there and the Army authorities informed the S.P. Jhang and I was taken into custody by the Head Constable Police from Bahawalpur who also checked up the factum of my injury from the Military Hospital.
' I had never cut any vulgar joke with Mst. Rabia Bibi nor Ehsan Ilahi had cut any such joke with my wife. This is why during investigation the complainant party did not produce Mst. Rabia Bibi before the Investigating Officer. Moreover the story regarding Ehsan Ilahi's cutting joke with my wife or that he ever accompanied .His father to the bus-stand or that I and my co-accused ever chased him has been concocted by the complainant party to provide a false motive against myself. In fact Ehsan Ilahi had gone to Karachi and was not present in the village. He was summoned from Karachi and he appeared about 21/2 months after the occurrence before the police.
' According to the prosecution the occurrence was witnessed by Muhammad Nawaz and Zahoor Ahmad P.Ws. And the occurrence was never witnessed by Wazir Ahmad complainant. When these two eye-witnesses refused to support the wrong stand of the complainant party although they were most closely related to the complainant party, the prosecution has now put up Wazir Ahmad as one of the eye-witnesses.
' The recovery of the alleged knife is fake and the same was not effected from my house. I had only a pen-knife which had fallen at the place of occurrence.
' The version given by Muhammad Sharif appellant is as follows:- "On the day of occurrence I happened to come out of my house which is near the place of occurrence and saw that Shabbir deceased committed assault and gave a Kassi blow to Zahoor Ahmad co-accused from behind on his head who fell down and when the second Kassi blow was aimed at by the deceased Zahoor accused gave a knife injury to him in his self-defence. I rushed to the spot. Zahoor accused left for his Dhari. I went to Chak Rarriwala to inform the complainant who brought the police and concocted a false story at the spot.
' Before the registration of the case the complainant asked me to become an eye-witness as the occurrence had been witnessed by me but I refused to be a witness in order to support his wrong version. Annoyed at this the complainant involved me falsely in this case.
' On the very first day I produced several witnesses including Muhammad Nawaz, father-in-law of the deceased, in my defence. Moreover, during the investigation the complainant party and myself had a dialogue with each other in the presence of the police. The complainant party agreed upon one Maulvi Muhammad Hussain that they would exonerate me if he could take oath on Holy book but subsequently the complainant party backed out. On the following day when Sub-Divisional Poilce Officer Akbar Ali came to the spot and the same plea was advanced before him and I also produced several persons including the father-in-law of the deceased who also appeared even before Raja Muhammad lqbal, Inspector, on 8-9-1978. The Investigating Police Agency gave a finding about my innocence on the basis that the evidence of the father-in-law of the deceased could not be ignored under any circumstances but in spite of this finding, the prosecution did not place me in column No,2 and left my fate on the mercy of this Honourable Court.
' I have been falsely involved as unfortunately I happened to be the brother-in-law of Zahoor Ahmad accused."
8. Dr. Muhammad Zulfiqar Chaudhary (P.W.7) conducted post-mortem examination on the dead body of the deceased on 26-6-1978 and found on his person incised wound 13 c.m. x 3 c.m. x 10 c.m.
Deep on the inner side of the left thigh just above the left knee. The wound was in oblique direction.
In his opinion the cause of death was shock and external haemorrhage resulting from the injury which was sufficient to cause death in the ordinary course of nature. The injury had been caused by sharp-edged weapon and the time between injury and death was 10 minutes and between death and post-mortem examination 12 hours. He stated in the cross-examination that the nature of the injury suggested to have bleeded profusely. If immediately first aid had been given and bleeding would have been checked, life of the deceased could possibly be saved.
' Dr. Abdul Sattar (P.W.1) medically examined Zahoor Ahmad appellant on 29-6-1978 when he was brought to the hospital by the police for his medical examination. The doctor found one stitched wound 5 c.m. Long on back of left side of skull. It was simple in nature and the kind of weapon could not be ascertained by him. The probable duration of the injury was about 60 hours i.e, three days before the medical examination.
9 We have heard learned counsel for the parties and carefully perused the record. It has already been explained above that the appellants as well as the deceased, in the instant case, are first- cousins inter se. The motive version as advanced by the prosecution is that Zahoor Ahmad appellant had cut jokes with Mst. Rabia Bibi due to which the incident seems to have followed. The version of Zahoor Ahmad appellant is that Mst. Rabia Bibi was engaged to be married to him at one stage and thereafter that did not materialise and he was married to Mst. Sakina Bibi. Be that as it may, they were also closely related and even if it ue assumed that he had cut jokes with Mst.
Rabia Bibi, we are told in the prosecution version that Ehsan Ilahi P.W. Brother of Mst. Rabia Bibi, retaliated by cutting jokes with Mst. Sakina Bibi. Then the prosecution version proceeds that Zahoor Ahmad appellant took serious objection to the same and in further retaliation he alongwith his other cousin, namely Muhammad Sharif appellant, attempted to assault Ehsan Ilahi P.W. They are stated to have chased him but he managed to escape. Shortly thereafter we are informed that when the deceased was passing near the Dhari of Zahoor Ahmad appellant, both the appellants waylaid him and while Muhammad Sharif appellant caught hold of him in a Japhha Zahoor Ahmad appellant gave a knife blow to him on the thigh little above the knee joint and thus murdered him.
This is the version which has been given in the F.I.R. By Wazir! Ahmad Khan P.W. Who is real brother of the deceased. Two other' eye-witnesses were cited in the F.I.R. Who are stated to have witnessed the occurrence. These are Master Zahoor Ahmad who is maternal-uncle of Wazir Ahmad Khan P.W.
As well as the deceased and Muhammad Nawaz who is maternal-uncle of Ehsan Ilahi P.W. Both these eye-witnesses were closely related to the family of Wazir Ahmad Khan and Ehsan Ilahi P.Ws.
As well as the deceased and yet they are stated to have been given up as won over. This appears to mean that they were not coming forward to support the prosecution version. What could possibly be the reason of the same, that cannot be ascertained. Anyway, according to the medical evidence Zahoor Ahmad appellant had a head injury which appears to have been caused with a sharp-edged weapon three days before his medical examination which could be 26-6-1978. This injury does not find any mention in the F.I.R. The case of the prosecution is based on the ocular testimony of only Wazir Ahmad Khan P.W. And it Ls being corroborated by the recovery evidence, in the instant case, and supported by the motive version as well as the medical evidence. On the other side, we have the version of the occurrence which has been provided by Zahoor Ahmad appellant and Muhammad Sharif appellant. So far as Muhammad Sharif appellant is concerned, only Japhha is attributed to him and no recovery has been effected from him i.e, not even his blood-stained clothes if he had held the deceased from the back as stated by Wazir Ahmad Khan P.W. And particularly when the nature of the wound sustained by the deceased, in the instant case, was such that it had bled profusely. So, according to the version of Muhammad Sharif appellant he was not present as a helper of Zahoor Ahmad appellant on the spot. He might have not participated in the occurrence but has been involved merely because he was an eye-witness of the occurrence and did not come forward to support the version of Wazir Ahmad Khan P.W. If we are to accept this theory in respect of Muhammad Sharif appellant, then we have also to accept the version given by Zahoor Ahmad appellant. If we accept the version of the accused party, then it could be said that it was a case in which Zahoor Ahmad appellant had exercised his right of private defence and if he had caused a single injury on a non-vital part of the body of the deceased which led to his death, then the case was covered by Exception 2 to section 300, P.P.C.
And as he had not exceeded the right of self-defence since there is a head injury on his person which he has attributed to the deceased and this injury appears to have been caused with a sharp-edged weapon, like a Kassi or so, then there was no justification in his conviction under section 302/34, P.P.C. And sentence of death plus fine thereunder. Admittedly the injury has been sustained by the deceased, in the instant case, on a non-vital part. Had been provided proper medical aid at that time and steps had been taken to stop the flow of blood the life of the deceased might have been saved. Thus, even if we were to accept the ocular testimony, in the instant case, as reliable and correct, then at the most Zahoor Ahmad appellant could have been convicted under section 326, P.P.C. Ind sentenced to not more than five years which he has already undergone since he was arrested on 28-6-1978 and had remained in jail since then and had never been released on bail. On the other hand, if we were to accept his version and say that he had acted in the exercise of his right of private defence but he had exceeded the same and then proceed to convict him under section 304, Part II, P.P.C. Even then n the circumstances of the case the sentence which could possibly be warded to him could not be more than five years which he has already undergone. We have carefully given our thought to the aforesaid three different aspects of the present case. After careful consideration of the evidence on the record we are of the considered opinion that the version which is being given by Zahoor Ahmad appellant of the occurrence not only plausible but it may be correct. In that view of the matter, is our view, he had acted in the exercise of his right of private defence and had not exceeded the same. Thus, his case would be covered under Exception 2 to section 300, P.P.C. And since he had acted in the exercise of his right of private defence and not exceeded the same, he should have been acquitted.
In the light of what has been discussed above, the prosecution has not succeeded in establishing its case beyond any shadow of doubt as against the appellants. Their conviction as well as sentences awarded to them, therefore, were not proper. They should have been given the benefit of doubt and their version should have been accepted. Since we have accepted the version of the appellants as reliable and plausible, we set aside the conviction as well the sentences awarded to the appellants. So far as Muhammad Shari! Appellant is concerned, we accept his appeal and acquit him. He is already on bail. His bail bonds shall stand discharged. So far as Zahoor Ahmad appellant is concerned, we also accept his appeal and acquit him on the ground that he had acted in the exercise of his right of private defence and had not exceeded the same. In that view of the matter, he should be released from jail forthwith if not wanted in any other case. The death sentence awarded to Zahoor Ahmad appellant is not confirmed.
' In the light of what has been discussed above, Cr.R.No,49 of 1981 is dismissed in limine. (No counsel had appeared in Cr.R.No,49 of 1981, in the instant case, and even otherwise we are not obliged to hear the counsel when the criminal revision was not admitted for full hearing).