MIAN BURHANUDDIN KHAN, J.-- Appellant Kala, aged 30 years resident of Mangrotha Gharib, District D.G. Khan was tried by the learned Sessions Judge, D.G. Khan under section 302, P.P.C. For committing the murder of Muhammad Isa aged 20/22 years; was convicted and sentenced to death and a fine of Ra.2,000 in default R.I for one year and half of the amount of fine if recovered, was ordered to be paid to the heirs of the deceased as compensation under section 544-A, Cr.P.C.
Vide judgment, dated 6-3-1979.
2. Kala, appellant, filed an appeal against his conviction and sentence before the Lahore High Court but the same was dismissed vide the impugned judgment, and death sentence was confirmed. He then filed petition for leave to appeal from Jail and leave was granted by this Court per order 21-1- 1982.
3. Prosecution case, as stated in the F.I.R. Lodged by Ghulam Muhammad P.W. Father of the deceased at about 7 p.m. On 17-7-1978 in Police Station Taunsa Sharif, D.G. Khan, is that a month prior to the occurrence the deceased was married to Mst. Ayesha daughter of Haji Muhammad and in exchange of this marriage his daughter Mst. Bakhtawar was married to Manzoor son of said Haji Muhammad and brother of he appellant Kala; on this marriage Kala accused was allegedly unhappy. Two days prior to the occurrence Mst. Ayesha went to the house of her brother Kala appellant. The deceased went afterwards to bring her back but Kala appellant refused to allow her to go with the deceased which resulted in exchange of hot words and abuses, but any way, deceased Isa brought Mst. Ayesha back to his house and then at about 5 p. m. He went to the Bazar to make some purchases and when he reached near the street at the corner of Kumaharanwala Talab Kala accused/ appellant came from the opposite side, armed with a hatchet and started abusing Isa deceased. On this uproar he, his wife Mst. Ghulam Fatima, his another daughter Mst. Jannat and his another son Hanif reached the spot and it is alleged that in their presence Kala accused /appellant dealt a hatchet blow to the deceased saying that he will end the constant bickering over the marriage of his sister. The deceased Isa, after receiving the hatchet injury on his head, fell to the ground. Kala decamped with the hatchet. He (complainant) put Isa on a cot and carried him to the Civil Hospital, Taunsa Sharif where Isa succumbed to his injuries. He then lodged the report Exh.P.F.
4. Dr. Muhammad Shafi P.W.1 examined Muhammad Isa and he found an incised wound 4--" in length and -- in breath deeply cutting the skull and membranes and brain matter coming out and another incised wound --" x --" x --" on the back right middle finger, caused by sharp-edged weapon. Injury No.1 was found to be dangerous while injury No.2 was simple.
5. The same doctor performed the post-mortem examination on the dead body of Isa deceased, after he succumbed to his injuries. The doctor confirmed the aforesaid injuries. In his opinion, injury No.1 was sufficient to cause death of the deceased in the ordinary course of nature and the doctor stated in his report: "The deceased expired in my hospital before his admission. Both the injuries on the person of the deceased are not the result of the same blow."
6.Ghulam Muhammad P.W.8 father of the deceased Isa gavel the facts of the case as stated in the foregoing paragraph furnishing ocular account of the occurrence. Muhammad Hanif P.W.J brother of the deceased was the next ocular witness in the case. He stated that at about 5 p.m. On the day of occurrence he was flying kite near Kumaharanwala Talab when he saw his brother Isa deceased going towards Basti when he was confronted by the accused /appellant Kala near the Talab and Kala was armed with a hatchet. After their brief altercation, he raisedwhich attracted his father Ghulam Muhammad, mother and also sister Mst. Jannat to the spot and in their view the accused /appellant dealt a hatchet blow on the head of the deceased who fell down after receiving the injury The accused ran away with his hatchet after giving second blow on the hand of the deceased. He was then directed by his father Ghulam Muhammad to inform the father of the accused/ appellant about the incident. Accordingly, he went and informed Hap Muhammad father of Kala accused. Haji Muhammad gave beating to Kala with a Danda and abused him.
7. Saleem Ahmad A . S . I . , Police Station Taunsa P . W .10 recorded the F.I.R . Exh. P.F. At the instance of complainant Ghulam Muhammad. He then proceeded to the hospital where he prepared the injury statement P. H . And inquest report P. H.. / l and sent the dead body of the deceased to mortuary for port-mortem examination. Thereafter, he proceeded to the spot and started the investigation. The next day he picked up blood-stained earth from the spot and sealed it into parcel vide memo. P.G. And got prepared the site plans P.D. P.D./1 and P.D./2 through the Patwari. He arrested the accused/ appellant from the hospital in D.G. Khan. On 25-7-1978 he handed over the investigation to the S.H.O. Of the Police Station, Taunsa.
8. After closing the prosecution evidence, Dr. Ijaz Ahmad was examined as D.W.1 who stated that he examined Kala son of Haji on 18-7-1978 and had found swelling with lacerated wound 3/4" x --" x muscle deep on left arm and a lacerated wound on left side of head. Injury No.1 was advised for X- Ray while the injury No.2 was simple. On receipt of X-Ray report he declared injury No.1 as grievous because there was fracture of ulna bone. He also stated: "I did not inform the police about the injuries of the accused. I had handed over copy of medico- legal report to his attendant who had taken it away. I did not enquire from the accused as to how he had received these injuries."
9. Dr. Muhammad Ashraf, Radiologist, D.H.Q. Hospital, D.G. Khan was examined as D.W.2 Mho stated that on the basis of X-Ray photo Exh.D.C. He had given his report Exh.D.C./1 to the effect that ulna bone of left arm of Kala was found to have been fractured at the lower part.
10. On examination at the trial Kala the accused/ appellant admitted that his brother Manzoor was married to Mst. Bakhtawar daughter of complainant in exchange with Mst. Ayesha who was married to Isa deceased. As for the rest of the prosecution story he stated that he was admitted for treatment in the hospital D.G. Khan but refuted the allegation that he was injured by his father. In reply to the question as to why this case was against him, he stated:-- "On the day of occurrence the deceased waylaid me near the Talab when I was coming with my herd and cut branches of bushes over my head, as fodder for the herd. The deceased who was armed with Dang, gave me injuries and while acting in self-defence I gave hatchet blow which I was carrying at that time, and with which I had cut the branches of the bushes. The deceased had grudge against me as in his view, it was on my instigation that my brother Manzoor had misappropriated the ornaments of Mst. Bakhtawar the sister of the deceased and that I was not allowing his wife to go back to her in-laws."
11. The learned trial Court, while examining the prosecution evidence, relied on the ocular testimony of Ghulam Muhammad and Hanif P.Ws. And held that it was not reasonable to discard their testimony only because they are closely related to the deceased. Their testimony is corroborated by the medical evidence As regards the defence plea of the accused /appellant the learned Judge observed: "Two things are very essential to prove for the right of private defence, firstly, that it was the other party who initiated the fight and secondly, the party taking the plea of self-defence also suffered injuries at the hand of the other party first and then resort was taken to defend the aggressor. In the present case except the solitary statement, there is no other evidence to the effect that the accused received these injuries at the time of incident by the deceased."
The learned High Court Judges also agreed with the above finding and, consequently, upheld the conviction and confirmed the death sentence of the accused/ appellant.
12. On examining the evidence on record we find that in the F. I .R. Ghulam Muhammad has not mentioned the important fact regarding the beating allegedly given by the father of the accused to the accused after the incident. Hanif P. W . In his examination-in-chief stated that the father of the accused gave beating to the accused. This was obviously padding in order to exclude any possibility for the accused to raise the plea of self-defence. He was confronted with this portion of his statement and stated that he had mentioned this fact to the police, recorded in the following manner: "I was examined by the police. I had stated in my statement before the police that I went to the house of the father of the accused at the instance of my father and told him that the accused had injured my brother Isa, deceased with hatchet, upon which the father of the accused had abused him arid had also injured him with Danda (Confronted. Not so recorded in Exh.D.A.) I had also told the police that the accused had also given hatchet blow on the hand of the deceased while he was lying on the ground, and then ran away from the spot. (Confronted. Not so recorded in D.A.) I had also told the Police that Isa, deceased was going to make purchases from the Bazar at the time of occurrence (Confronted. Not so recorded in D.A.) the father of the accused had given one blow on the arm of the accused, and his arm was broken. Second blow might have been given by the father of the accused on his head. I had told my father that the father of the accused had also beaten him in my presence."
13. The witness further stated that the accused gave two blows to the deceased, one on the head and the other on the hand while he was lying on the ground. But this part of his statement is omitted in his Police statement Exh.D.A. He also admitted that he had informed about the beating of the accused by his father but strangely enough this fact also is not mentioned by Ghulam Muhammad complainant in the F.I.R. Nor he could account for this omission in his statement on the trial. There are some other improvements in the statements of these two ocular witnesses regarding the second blow which was not mentioned in their earlier statements either before the C.M. Or before the Police. When a right of private defence is set up the essence of the case should be to ascertain as to who was the aggressor and whether the accused used more violence than was necessary.
It is clear from the site plan that the house of the complainant is not close to the scene of crime and, therefore, the presence of Ghulam Muhammad complainant at the spot becomes extremely doubtful. The deceased could not inflict a blow to the accused after he was'', given hatchet blow by the accused. It is, therefore, reasonable conclusion that he was the first to open the attack. In these circumstances, well consider that the accused /appellant was entitled to exercise the right, of private self-defence and accepting this appeal we acquit the accused/I appellant of the charge.
He shall be set at liberty forthwith if not required in any other case.