Muhammad Munir was tried by the learned Sessions Judge, Gujranwala, under section 302/307, P.P.C. For the murder of Pervaiz and attempt on the life of one Safdar P.W., but was convicted under section 304-I, P.P.C. For the murder of Pervaiz, deceased, and under section 307, P.P.C. For attempt on the life of Safdar P.W. He was sentenced under section 304-I, P.P.C. So seven years' rigorous imprisonment with a fine of Rupees Five Thousand (Rs.5,000) or in default thereof to undergo further two years' rigorous imprisonment and under section 307, P.P.C. To five years' rigorous imprisonment with a fine of Rupees Five Thousand (Rs.5,000) or in default thereof to undergo further two years' rigorous imprisonment. Muhammad Munir was also directed to pay Rupees Twenty Thousand (Rs. 20,000) to the legal heirs of Pervaiz, deceased, as compensation under section 544-A, Cr.P.C. In case of non-payment of compensation, it was ordered that he would undergo further rigorous imprisonment for six months and that the compensation would be recovered as arrears of land revenue. As regards the fine realised under section 307, P.P.C. Half of the same was ordered to be paid to Sardar Hussain injured P.W. The appeal of Muhammad Munir convict is now before me for disposal.
2. The prosecution case in brief is that about 25 years ago, Ghulam Rasul, uncle of the complainant, Muhammad Rafique P.W. 5 and his, son, Muhammad Nazir, had injured Allah Ditta, son of Mehar Dad, caste Jat Cheema, resident of Dhanike Jhanda Khot, with Sotas, due to which the sons and grandsons of above-mentioned Allah Ditto developed grudge against the complainant party.
Two days prior to the occurrence, Muhammad Nazir, a cousin of the complainant, and Irshad P.W. 7, son of the said Muhammad Nazir, were driving back their tractor from the Bela towards their village.
When they reached near the village Dhonike, Muhammad Tufail and his son Munir, accused, stopped them and restrained them to pass their tractor from their fields, due to the previous enmity. They said that they had still to take the revenge of the injuries of Allah Ditta and began to hurl abuses. Inayat Ullah son of Ghulam Haider, Muhammad Aslam son of Abdullah and some other persons reached there, after hearing the noise, and separated both the parties.
On 10-10-1984, at about 6-30 a.m. Muhammad Rafique P.W. 5, complainant, alongwith Riaz P.W. 9 and Muhammad Aslam (won-over P.W.) started from the village to check the paddy crop. When they reached near the Dera of Baba Ghulam Rasul, which is in front of the railway line, Muhammad Munir, accused, also reached there on bicycle. Pervaiz deceased, who was- sitting on a cot, told the accused that he used to pass daily in front of their Dera and they had never objected to it, but when they passed by his Dera, he had stopped their tractor and also insulted his uncle and cousin, and he should desist from it because "sharafat" was a good thing. On hearing this, Muhammad Munir, accused, got down from the cycle and reaching the Dera of Pervaiz, deceased; said to the deceased as to what he meant by "sharafat" and immediately pulled out a Chhuri from the fold of his Shalwar and inflicted injury with it on his left flank under the armpit. Pervaiz, deceased, after sustaining this injury, fell down on the ground. Safdar P.W. 6, a brother of the deceased, was giving fodder to the buffaloes at the Dera. He tried to catch Munir, accused. The accused also gave him two Chhuri blows on the left and right flanks, Muhammad Rafique P.W. 5, Riaz P.W. 9 and Muhammad Aslam (won over P.W.) raised noise and rushed to catch Munir, but he, leaving behind his cycle and shoes, ran away towards his village. Many other persons also reached the spot.
Safdar P.W. 6 was taken to Tehsil Headquarter Hospital, Wazirabad, where he was admitted, but Pervaiz, deceased, succumbed to his injuries at the spot after a few minutes. Muhammad Rafique complainant deputed Muhammad Aslam and Riaz to guard the dead body of Pervaiz and proceeded to the Police Station Sadder Wazirabad to lodge the report. Muhammad Riaz, Inspector/ S. H. O. P.W. 10 met him at the bus stand Ahmad Nagar, to whom he gave statement Exh. P.C./2.
3. The Investigating Officer proceeded to the spot, where, after preparing the necessary papers, he sent the dead body of Pervaiz, deceased, for post-mortem examination. He collected blood- stained earth, vide memo. P.J. And the accused's cycle P.7 and the accused's pair of shoes P.8/1-2, vide memo. P.K. The recoveries were witnessed by Riaz P.W. 9, Muhammad Riaz Inspector P.W. 10 and Muhammad Aslam (given-up P.W.).
4. The same day Muhammad Munir, accused, was arrested. He led to the recovery of a blood- stained Chhuri P.1, his blood-stained Shalwar P.2 and his blood-stained Qameez P.3 from his house, which were taken into possession, vide memos P.H. And P.F. In the presence of Irshad P.W. 7, Muhammad Riaz Inspector P.W.10 and Asmat Ullah (won-over P.W.).
5. After completing the necessary investigation, the challan against the accused was sent up.
6. At the trial, the prosecution produced Safdar P.W. 6, Riaz P.W. 9 and Nazir P.W. 11 to prove the motive, Muhammad Rafiq P.W. 5, Safdar P.W. 6 and Muhammad Riaz P.W. 9 in proof of the ocular account; Irshad P.W. 7, Riaz P.W. 9 and Muhammad Riaz Inspector P.W. 10 in support of the recoveries and Dr. Imtiaz Ali Cheema P.W. 1 in corroboration of the medical testimony.
7. In his statement under section 342, Cr.P.C. Muhammad Munir, accused, denied the motive regarding the beating given to his grandfather about thirty years, but with regard to the incident that took place two days earlier, admitted the same, with the submission that Nazir P.W. 11 and his son Irshad P.W. 7 were desperate persons and they had forcibly driven their tractor over their field where they had grown Barseem notwithstanding their objection, and that they had resisted and abused them in this behalf. He denied the recoveries alleged to have been effected at his instance, but admitted that the cycle P.7 and the pair of shoes P.8/1-2 were his. As regards the question why the case had been initiated against' him, he gave the following reply: "I used to collect milk from different villages and sell the same in Wazirabed city daily. On the day of occurrence, in the morning I was going to purchase milk from village Kathot, two drums and one cup for measuring milk were also loaded on the carrier of my cycle. I was going on the road and when I reached in front of the Dera of the deceased, Pervaiz, the deceased and Safdar P. W.
Suddenly came on the road in front of my cycle. They Dulled me down, as a result of which my cycle, drums and cup fell down on the ground. The deceased and Safdar started to give me fist blows and grappled with me. I also paid them in the same coin. Pervaiz brought out a knife from his pocket and attacked me with the knife, gave me two blows on my arms and head. I snatched the knife, from him and in right of private defence of my person I used the knife as a result of which Pervaiz, deceased, and Safdar P.W. Sustained injuries. I got myself released, threw the knife and went away. My shoes also went of during this struggle. The whole occurrence took place on the roadside. No other P.W. Was present on the spot. They are near relatives of the deceased and' are desperate persons. Police did not get me medically examined."
8. The learned trial Judge, placing in juxta-position the case of the prosecution and the defence, held that the accused was attacked by the complainant party and in saving himself had apparently exceeded his right of private defence. Accordingly, the learned trial Judge convicted and sentenced the accused, as stated in para. 1 above.
9. I have heard the arguments of the learned counsel for the appellant and the State and have also perused the record. The evidence as regards the two motives is furnished by Safdar P.W.
6. Riaz P.W.
9 and Nazir P.W.
11. According to Riaz P.W. 9 and Nazir P.W. 11, about 35 years prior to the incident, Ghulam Rasool (father of Nazir P.W. 11 and uncle of Muhammad Rafiq P.W. 5) and his son Nazir P.W.
11 had beaten Allah Ditta and that, therefore, the sons and grandsons of the said Allah Ditta bore grude against them. It is clear that 35 years back neither Muhammad Munir, appellant, nor Pervaiz deceased, nor Safdar injured P.W. 6, were born Nothing happened for 35 years. Assuming Muhammad Munir, appellant, and his father, Muhammad Tufail, harboured this grudge, it is not understood why they spared Muhammad Nazir P.W. 11 and his father Ghulam Rasool over the years and only thought of taking revenge against Pervaiz, deceased. It is obvious from these facts that this motive is not believable and must be rejected outright. With regard to the immediate motive suggested that took place two days prior to incident, the same has been admitted by the appellant and this in any case would cause grievance to the complainant party to assault the appellant and not vice versa. It is admitted by Safdar P.W. 6 that in this incident, the leg of their driver was broken and the appellant and his father had also abused him. This clearly shows that the appellant had no motive to attack the deceased. Rather, the motive lay with the complainant party to attack the appellant. The findings of the learned trial Judge disbelieving both the motives, appear to be correct and must be sustained.
10. The occurrence is admitted in this case by Muhammad Munir, appellant. The version of the prosecution, as furnished by Safdar P.W. 6 and Riaz P.W. 9, is given in para. 2 above and need not be repeated. The version of the defence, as given by Muhammad Munir, appellant, already stands reproduced in para. 7 above. The only question that now remains is whether, after placing in juxta- position the case of the prosecution and that of the defence, the evidence on the record clearly proves the case of the prosecution to the hilt against the appellant or leads to the inference that the defence version is true or is reasonably probable. Muhammad Rafiq P.W. 5, the complainant, did not support the prosecution case and was declared hostile, Muhammad Aslam another eye- witness, was not produced on the ground that he had been won over. Safdar P.W. 6 and Riaz P.W. 9 alone support the prosecution case, the version whereof already stands reproduced in para. 2 above. According to Safdar P.W. 6, the occurrence took place just after sunrise time, when he was giving fodder to his cattle. According to Muhammad Sharif F.C. P.W. 8, the appellant's cycle and drums of milk were lying at the spot when the police reached the spot at about 7-40 a.m. The appellant being a milk-seller was on his errand collecting milk, when the incident occurred. It is nobody's case that milk had fallen out from the drums. The statement of the appellant that he used to collect milk from different villages in order to sell the same in Wazirabad City and that at the relevant time he was going to collect milk from village Katoth, therefore, appears to be correct. If he was going to collect milk, obviously it would be near sunrise, as is the practice amongst milk- sellers. The incident, therefore, took place near sunrise, as alleged by Safdar P.W.
6. The presence, therefore, of Riaz P.W. 9 at the spot appears to be doubtful. According to his own statement in cross-- examination, Muhammad Rafiq P.W. 5 and Aslam (won over P.W.) met him near his house in the village by chance, Both these witnesses have not come to support the case. The presence of Riaz P.W. 9 and Muhammad Rafiq P.W. 5 at the spot is not free from doubt and I would exclude his presence. In this view of the matter, the evidence of Safdar P.W. 6 alone remains. He suffered injuries in the occurrence. He is, therefore, a natural witness. Since the complainant party had the motive, the findings of the trial Judge that when the appellant was passing by the complainant's Dera he was nabbed by Pervaiz deceased and Safdar P.W.6 and assaulted them, during which process the 'Appellant, in order to save himself, drew out his Chhuri and inflicted injuries therewith on Pervaiz deceased and Safdar P.W. 6,1 appears to be a correct assessment of the evidence and I would hold accordingly. The fact that the appellant had armed himself with a knife, in order to deal with such an eventuality, in case it arose, cannot be overlooked, as his expectation that he would be assaulted because of the incident that had taken place two days earlier, was more than justified.
11. The defence of Muhammad Munir, appellant, that during the assault by Pervaiz deceased and Safdar P.W. 6, the former pulled out a knife from his pocket and attacked him with it, causing two injuries on his arm and head and that he snatched the knife from the deceased and in self- defence inflicted injuries on the deceased and Safdar P.W. 6, cannot be believed. No evidence was led to show that Muhammad Munir, appellant, suffered any injury. The defence of the appellant that he was attacked by the deceased with a knife is, therefore, false and must be rejected.
12. During the argument, learned counsel for the appellant to summon the report of the Assistant Superintendent of Police, Wazirabad, dated 16-1-1985, in order to prove the appellant's version and more particularly the fact that he had been injured in the occurrence and that the police had not sent him up for medical examination and that though the trial Judge had passed an order on the application reading "Allowed", no such report was summoned or considered. It is true that such, an application appears on the file and was made on behalf of the appellant and the order as stated above was passed on 6-4-1985, but it seems that no steps were taken to summon the report for 9- 4-1985, the date fixed for .The recording of the evidence, nor did the appellant take any further steps to summon the report or to request the Court to delay the recording of the statement of any a the witnesses till the report was received. However, in the interest of justice, I summoned the said report of Mr. Qalbe Abbas, Assistant Superintendent of Police/D.S.P. Wazirabad dated 16-1-1985, which shows that in accordance with the agreement arrived at between the parties, -Muhammad Rafiq complainant P.W. 5 did take oath on the Holy Quran giving the true facts of the case which appear to be the same as that found by the learned Sessions Judge, which accounts for the fact why no further steps were taken by the appellant to have this report summoned or exhibited at the trial. There is no indication in the said report that the appellant was injured or bore any injuries on his person in the encounter. Since I have already held that the defence version does not sta0d made out, I have not taken into consideration the contents of the report of the Assistant Superintendent of Police, Wazirabad, which fact I wish to record for the information of the appellant.
13. The upshot of the above discussion is that the findings of the learned Sessions Judge that the appellant was stopped by Pervaiz, deceased, and Safdar P.W. 6 and that when the latter tried to assault him, he tried to save himself by using his knife and in that process exceeded his right of self-defence, are correct. The appellant appears to have been properly convicted and sentenced.
14. There being no merit in this appeal the same is dismissed. The sentences of the appellant shall run concurrently. The benefit of section 382-B, Cr.P.C shall also be granted to the appellant.