' This Criminal Appeal No, 774 of 1978 and connected Revision No, 377 of 1979 against acaquittal of Muhammad Ramzan and for the enhancement of the sentence of convict Abdul Majid, arise from the judgment of learned Additional Sessions Judge, Sialkot, whereby he on 12-8-1978 while acquitting Muhammad Ramzan co-accused, convicted Abdul Majid (20), under section 304, Part I, P.P.C. For causing death of Muhammad Yousaf (20) and sentenced him to 10 years' R.I. And a fine of Rs,2,000 and in default one year's S.I., with the direction that the fine, if realized, be paid to the legal heirs of the deceased.
2. The occurrence took place on 27-2-1977 at 3/4 p.m. In front of the shop of Abdul Majid appellant situated in village Bhonkan at a distance of 3 miles from Police Station, Sadar, Sialkot. Statement Exh.P.E. Of Muhammad Yousaf deceased recorded was in Allama lqbal Memorial Hospital, Sialkot, on 28-2-1977 at 10-00 a.m. By Ahmad Hussain A.S.I. P.W.12. Formal F.I.R. Exh.P.E./1 was drawn up at Police Station Sadar, Sialkot, on 28-2-1977 at 10-15 a.m. By Muhammad Bashir A.S.I. P.W.6.
3. There was no background of the occurrence. According to the prosecution version, on the fateful day Muhammad Yousaf deceased went to the shop of Muhammad Ramzan acquitted accused to purchase sugar. Abdul Majid appellant was present there. Muhammad Ramzan co-accused abused Muhammad Yousaf deceased and gave him a fist blow on his face. Thereafter they grappled with each other. While grappling, they came out of the shop of Muhammad Ramzan. At this juncture. Muhammad Ramzan acquitted accused called Abdul Majid saying On this the appellant came out of the shop carrying Chhuri in his hand. He gave two blows on the back of Muhammad Yousaf who fell down on the ground. The occurrence was seen by Muhammad Siddique P.W.8, Muhammad Aslam P.W.9 and Muhammad Younis (not produced).
4. On 27-2-1977 at 4-45 p.m. Muhammad Yousaf while alive was examined by Dr. Muhammad Younas Chughtai P.W.11. He found following injuries on his person:-
(1) Incised wound 1" x 1/4" x depth not probed. On the back of right lower chest, lateral and outer aspect, corresponding cuts present on the bloodstained white Poplin shirt and white cotton Bunyan. The cuts encircled, initialed and sent to police.
(2) Incised wound 1" x 1/4" x depth not probed. On the back of the left lower chest, lateral and outer aspect, two corresponding cuts present on the blood-stained white shirt and cut on blood-stained white cotton Bunyan present. Cuts were encircled, initialed and sent to police.
(3) Abrasion 1" x 3/4" on the left cheek near the left eye.
' Injuries Nos. 1 and 2 were caused by sharp-edged weapon and injury No,3 was caused by blunt weapon. Injury No, 3 was declared simple. Injuries Nos. 2 and 3 were kept under observation.
Muhammad Yousaf succumbed to the injuries on 2-3-1977. On 3-3-1977 Dr. Muhammad Younas Chughtai conducted post-mortem examination on his dead body. He found same injuries on his body which he had found at the time of his examination on 27-2-1977. Injuries Nos. 1 and 2 were found grievous and dangerous to life as well. In his opinion the death occurred due to shock and haemorrhage resulting from injuries 1 and 2 which were sufficient to cause death in the ordinary course of nature.
5. The appellants were arrested on 3-3-1977 by Ahmad Hussain A.S.I. P.W.12. On the same day, he led to the recovery of blood-stained Chhuri P.5 from his shop which was taken into possession vide memo. Exh.P.H. Attested by Muhammad Siddique P.W.8, Saeed Ahmad P.W.10 and Ahmad Hussain A.S.I. P.W.12. According to the Serologist's report Exh.P.R., the knife was stained with human blood.
6. To prove its case, the prosecution examined 12 witnesses. Muhammad Siddique P.W.8 and Muhammad Aslam P.W.9 have given the ocular account of the occurrence. Muhammad Siddique supported the prosecution version as detailed above. He claims to have seen Muhammad Ramzan co-accused abusing and grappling with Muhammad Yousaf deceased. He claims to have heard Muhammad Ramzan saying 'come out and hold the deceased' and also having seen Abdul Majid appellant causing two injuries with Chhuri on the back of the chest of the deceased. The third eye- witness, namely, Muhammad Younas was not produced by the prosecution. Muhammad Aslam P.W.9 stated that he had seen Muhammad Ramzan grappling with Muhammad Yousaf deceased.
He stated that lit the eventful time Ramzan accused had come under the deceased in the process of grappling whereupon Abdul Majid came out of the shop and pushed Muhammad Yousaf in a drain and caused two Chhuri blows on his back. Ahmad Hussain A.S.I. P.W.12 has proved the statement Exh.P.E. Made by Muhammad Yousaf before his death on basis whereof formal F.I.R. Was registered. This statement has been treated as dying declaration by the trial Court. Dr. Abdul Rauf P.W.1 has appeared to prove certificate Exh.PA./1 wherein he had opined that Muhammad Yousaf was fit to make- statement. Dr. Muhammad Younas Chughtai has proved the medico-legal report and postmortem examination report of the deceased. Muhammad Siddique P.W.8, Muhammad Saeed P.W.10 and Ahmad Hussain A.S.I. P.W.12 stated that Abdul Majid appellant had got recovered blood-stained Chhuri P.5 from his shop in their presence. The rest of the evidence is more or less of formal nature.
7. When examined under section 342, Cr.P.C. The appellant and his co-accused Muhammad Ramzan denied all the incriminating circumstances. They raised plea of self-defence. In reply to question No,2 Muhammad Ramzan stated.- "As a matter of fact the deceased wanted to make certain purchases on credit basis whereas his father had asked me not to lend anything to him and when I refused to give any credit, the deceased became annoyed and started abusing me and then he grappled with me and he took me out of the shop and gave Takkar blow in my face making me bleed from my nose. He then overpowered me and wanted to push my head into the burning hearth outside the shop whereupon I called my brother to help me and rescue me whereupon he came out, wanted to intervene by pulling the waiste of the deceased but as he did not succeed then he gave one Chhuri blow with Chhuri meant for cutting Barfl. Even when the deceased did not release on receipt of the injury another blow was added by my brother. Subsequently, the complainant and the police colluded and they made out a false case against me and my borther."
' In reply to question No,4 Abdul Majid appellant stated:- "As a matter of fact the deceased had come to our shop to make certain purchases on credit basis. My brother Muhammad Ramzan refused to do so whereupon the deceased became annoyed and started abusing my brother and grappled with him. He then dragged my brother outside the shop and gave Takkar in his face and made my brother bleed from the nose. Then the deceased Muhammad Yousaf overpowered my borther and wanted to push his head into the burning hearth. My brother then called out to me for help saying as to what I was looking at. I went out of the shop, wanted to intervene by pulling the deceased from his waiste but could not succeed. Upon this, I took a Chhuri, meant for cutting Barfi, and gave a blow with it in the waiste of the deceased. Even then it did not have any effect and I had to add another blow. As a result of these injuries as the deceased died the complainant party concocted a false case to show us aggressors although it was the deceased who was to be blamed in the whole affair."
' In defence no witness was produced.
8. On the conclusion of the trial, the learned Additional Sessions Judge, Sialkot, was of the view that the appellant had exceeded the right of his self-defence so he convicted and sentenced him as stated above.
9. The learned counsel for the appellant submitted that the name of Muhammad Siddique P.W.8 is not mentioned in the F.I.R.; that Muhammad Siddique is first cousin of the deceased; that in his cross-examination, Muhammad Aslam has supported the defence version in toto; that the findings of the learned trial Court that there was no evidence on record to the effect that hearth was in existence or it was burning at the time of occurrence is against record inasmuch as Muhammad Aslam P.W.9 and Bagh Ali, father of the deceased, have admitted the existence of hearth in front of the shop of the appellant; that the alleged dying declaration Exh.P.E. Is a fake document; that there is a delay of 19 hours in lodging the F.I.R.; that neither the father of the deceased nor the eye- witnesses had reported the matter to the police for 19 hours; that Bagh Ali P.W.5 has stated that the people remained in communication with the deceased before his statement could be recorded and that Muhammad Siddique has suppressed the admitted facts.
10. Learned counsel for the State supported the judgment of the trial Court. The learned counsel for the complainant submitted that the prosecution has brought home the guilt of Muhammad Ramzan and he has been acqtfitted without legal and factual justification. He also prayed for the enhancement of the sentence of Abdul Majid appellant.
11. I have anxiously attended to the arguments of the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, statements made by the appellant and acquitted accused under section 342, Cr.P.C. And circumstances appearing in the case. From the aforesaid state of affairs it is very much obvious that the time of occurrence, place of occurrence, presence and participation of Muhammad Ramzan and Abdul Majid appellant in the occurrence and the factum of Abdul Majid having given fatal injuries to Muhammad Yousaf deceased are the admitted facts of the case. The parties as usual have come out with different versions. So it is a case of two versions in which each party has thrown the blame of aggression on the opposite party. Keeping in mind the guiding principles for the appreciation of evidence in such like cases, I proceed to discuss the prosecution case and prosecution evidence, more particularly the statements of the eye-witnesses in order to come to an independent conclusion with regard to the truth of the prosecution version and the reliability of the eye-witnesses produced by it. I find that there is a delay of about 19 hours in lodging the F.I.R. According to the prosecution, three persons had seen the occurrence, yet no one went to the police to lodge report for 19 hours. There is no reasonable explanation of this delay. In this view of the matter, the prosecution evidence has to be examined with utmost caution. On cautious and careful examination of the ocular evidence produced by the prosecution, I find that there were three eye-witnesses of the occurrence. Out of them, Muhammad Younis, whose name was mentioned in the F.I.R. Has not been produced. Name of Muhammad Siddique P.W.8 is not mentioned in the F.I.R. Which was lodged after 19 hours of the occurrence. The F.I.R. Contains minute details of the occurrence. Strangely enough, name of Muhammad Siddique P.W.8 is not mentioned there. Muhammad Aslam P.W.9 supported the prosecution case in his examination-in-chief. When cross-examined, he totally supported the defence version. On the request of the Prosecutor he was allowed to be cross-examined. It seems to me that he has given evidence with a motive other than that of telling the truth. It cannot be said with certainty as to which of the two port ions of his statement i,e, examination-in-chief or cross- examination is true. The learned counsel for the State was of the view that the statement given by him in cross-examination was simply to oblige the accused and was false. If this is so then where lies judicial guarantee that the statement made by him in examination-in-chief was true. He has made self-conflicting statements which cannot be reconciled. So he can safely be termed as basically dishonest witness and no reliance can be and should be placed on him. His evidence has, therefore, to be excluded from consideration.
12. Having discarded the statements of the two eye-witnesses, I take up the dying declaration i,e, F.I.R. Exh,P.E. Recorded by a Police Officer. This statement was recorded after 19 hours of the occurrence, Bagh Ali P.W.5, father of the deceased, has admitted in cross-examination that there had been communications between the deceased and his relatives before statement Exh.P.E.
Could be B recorded. The doctor has not signed this statement. There is nothing in evidence to show that the statement Exh.P.E. Was recorded in the presence of the doctor. So it would be highly unsafe to rely and act upon statement Exh.P.E. Of the deceased recorded by A.S.I. Ahmad Hussain.
Since the appellant admits to have caused the injuries to the deceased, therefore, the evidence of recovery of Chhuri P.5 from the appellant does not take the case of prosecution any further. After having excluded the ocular evidence, dying declaration statement Exh.P.E. And having found the recovery of Chhuri of no consequence, there remains the statements of accused recorded under section 342, Cr.P.C. In field. It is by now c well-settled that if an accused person is to be condemned out of his own mouth, then his statement should be accepted as a whole. The statement made by Abdul Majid appellant at the time of his examination under section 342, Cr.P.C. Shows that he was reasonably apprehending the death of Muhammad Ramzan at the ands of the deceased when he inflicted the injuries to him. So the right of self-defence extended to the causing of death and he had not exceeded in any manner.
13. The upshot of above discussion is that there being no basis to uphold the conviction of the appellant, this appeal is allowed and he is acquitted of the charge. The accused is on bail. He stands discharged of the bail bonds. The connected revision automatically fails.