Muhammad Afzal aged 25 years, a resident of village Ramat, Police Station Bhakkar, District Mianwali, has appealed against his conviction under section 302, P. P. C. And sentence of transportation for life.
2. The prosecution case against the appellant was that there was enmity between him and Bashir Hussain (P. W. 8), a shop keeper of the same village. The enmity was so serious that then appellant directed every one with whom he came in contact not to make purchases from the shop of Bashir Hussain. On the 28th of March 1969, at about 7-30 p. m., Bashir Hussain was at his shop when Allah Wasaya deceased came; to purchase Gur. As it was out of stock Allah Wasaya was returning and had hardly gone a few paces when the appellant encountered him and asked why he had come to the same shop for making purchases when he had been told not to do so. The appellant pulled out a knife (Exh. P. 1) and gave a blow with it to Allah Wasaya. Ahmad Nawaz (P. W. 9) and another Allah Wasaya (not produced) were also present at the shop of Bashir Hussain (P. W. 8) who saw the occurrence, caught hold of the appellant and Ahmad Nawaz disarmed him of the knife and handed it over to Bashir Hussain. The injured Allah Wasaya was removed to the Police Station Bhakkar, at a distance of four miles, where the report of the occurrence was lodged by Bashir Hussain (P. W. 8). It was recorded by Khushi Muhammad (P. W. 11) at 12-45 a. m. On 29th March 1969.
The appellant who had been apprehended, was also produced before the police along with the knife (Exh. P. 1) which had been taken by Bashir Hussain (P. W. 8). It was blood-stained and taken into possession. The appellant had also injuries. He was sent for medical examination.
3. Dr. Abdur Rashid (P. W. 1) examined Allah Wasaya and found a stab wound 1 J' x J' going inside the abdomen on the left outer side of abdomen. The doctor informed the police officer about the precarious condition of the injured whereupon Maqbool Ahmad, Naib-Tehsildar (P. W. 2) was deputed to record the dying declaration of Allah Wasaya. He did so at about 3-45 p. m. The same day. The injured Allah Wasaya charged the appellant for having given him the fatal knife blow for having gone to the shop of Bashir Hussain.
The appellant was also examined by the same doctor who found the following injuries on his person: -
(1) A contusion mark 4' x 3' around the left eye. The left eye could be opened with difficulty. Vision intact.
(2) A contusion mark 2' x -- on the left eye.
(3) Five contusion marks each 1' x 5' each on the right shoulder blade.
(4) A contusion mark 2' x 1' on the right shoulder top.
(5) A contusion mark 3' x 1' in front of left elbow.
(6) Two small abrasions on the back of right hand each
(7) Four contusion marks on the right arm and forearm sizes 4' x 1', 3' x 1', 4' x -- and 3' x 1'.
(8) A contusion mark 3' x 2' on the right side of net
(9) Multiple abrasions all over the body.
4. The appellant when examined at the trial denied that he bore any grudge towards Bashir Hussain. He also denied having inflicted knife blows on Allah Wasaya. He denied the ownership of the knife (Exh. P.1). He explained the case against him in the following words: - I was returning from the house of Ghulam Hussain where the Majlis was held and was attacked by Bashir Hussain P. W., and Allah Wasaya deceased, when Bashir Hussain was armed with a soti while Allah Wasaya deceased was armed with the chhurri Exh. P.
1. Bashir Hussain P. W. Indicted injuries on my person and then Allah Wasaya deceased attacked me. I grappled with him and we both fell on the ground and during the scuffle Allah Wasaya deceased sustained the injury."
No evidenced was produced in defence.
5. The learned trial Judge believed the eye-witness account of the occurrence, the dying declaration made by the deceased and convicted the appellant for murdering Allah Wasaya.
6. The enmity between the appellant and Bashir Hussain (P. W. 8) has been fully established on the record. But it is not sufficient to explain nor does it serve as the motive for attack on Allah Wasaya deceased a Mochi and a menial of the village. It has been admitted by Bashir Hussain himself that the deceased was his tenant and his servant. He used to work at his shop and also at his house. It was also admitted by the same witness that the deceased used to take his meals some times at his house, Therefore, there was no point in the appellant directing the deceased not to make purchases from the shop of Bashir Hussain because in view of these antecedents and no point of contact visiting between the appellant and the deceased, it was not on13 unlikely but impossible for the appellant to claim or exercise any control whatsoever over the activities of the deceased.
Hence the motive as suggested by the prosecution does not advance the case to any extent.
7. The eye-witness account is confined to the statement of Bashir Hussain, the shopkeeper, and Ahmad Nawaz (P. W. 9), a cousin of the deceased. Both are interested witnesses. Allah Wasaya, the third witness to the occurrence, was given up as having been won over for in the commitment Court he did not support the prosecution case. Ahmad Nawaz (P. W. 9) has not properly accounted for his presence at the shop of Bashir Hussain at that hour. Another feature of the eye-witness account is that it does not at all explain the injuries on the person of the appellant. All that has been said is that in making an effort to apprehend the appellant a scuffle had taken place in which the appellant received some injuries. The details of the scuffle suggested do not at all account for the contused injuries of which 14 were there. It could at best account for the multiple abrasions that were found on the person of the appellant. As the appellant was apprehended right at the spot and produced before the police with the injuries on his person the conclusion is inescapable that he received the injuries in the same occurrence which accounted for the death of Allah Wasaya and for that reason the prosecution was under a duty to account for the injuries. The contusions on person of the appellant and their dimension further suggest that they were not chance injuries received in apprehend--ing a man or in a scuffle but were the result of strokes deliberately given.
In the absence of any explanatory evidence produced by the prosecution the fact that, the appellant being injured will lend strength to his plea rather than to the prosecution case.
8. The dying declaration has to be rejected for two reasons. Firstly, it has been admitted by Bashir Hussain that immediately after regaining consciousness the injured had enquired from him about the details of the report lodged by him with the police and he had been informed of all the details.
Being a servant an having remained associated with the complainant Bashir Hussain for so long and so intimately it was unlikely that the deceased's could have deviated from the incident so reported by Bashir Hussain. The other ground for rejection is that it was record when other persons were present around him. This may have included the complainant himself and others who wanted the statement to be in a particular form rather than the other.
9. Having received the injuries that the appellant did hi plea that in inflicting a single blow with the knife which had been taken from one of the assailants the appellant did not exceed hi right of private defence of person cannot be doubted. Having received those injuries from the other party who were inimical to him the appellant could reasonably apprehend that grievous e hurt would be caused to him unless he met the use of force with similar force. Therefore, in giving a single blow with the knife to Allah Wasaya, a close associate of Bashir Hussain (P. W. 8) the appellant exercised the right of private defence of his person and did not exceed it. Therefore, he is entitled of acquittal.
I accept the appeal, set aside this conviction sad sentence under section 302, P. P. C. And acquit him of the charge. The appellant shall be released from prison forthwith if not required in some other case.