' Akbar Shah has filed an appeal against the order dated 27-5-1972 of the Additional Sessions Judge, Rawalpindi, whereby he was convicted under section 304, P.P.C. And was sentenced to seven years' R.I. And fine of Rs,2,000 or in default six months' R.I. For causing the murder of Mubarak Shah son of Samundar Shah of village Jalala, Tehsil and District Rawalpindi. His co-accused namely Manzoor Shah, son of Mahboob Shah, Manzoor Shah son of Mubarak Shah, Anwar Shah and Munawar Shah sons of Mahboob Shah were acquitted by the same judgment.
2. The brief facts giving rise to the present appeal as disclosed in the F.I.R. Exh.PA./1 by Safdar Shah P.W. Are, that on 27-6-1970 at 6-30 a.m. Sometime back, accused Manzoor Shah son of Mahboob Shah promised to marry his sister Mst. Ghulam Zohra to P.W. Safdar Shah and in lieu thereof P.W.
Safdar Shah's father agreed to give the hand of his daughter Mst. Taj in marriage to accused Anwar Shah. About 26 months before the occurrence accused Manzoor Shah son of Mahboob Shah without any reason refused to marry his sister to P.W. Safdar Shah and settled her marriage with accused Manzoor Shah son of Mubarak Shah. But even then accused Manzoor Shah son of Mahboob Shah insisted on the marriage of Mst. Taj with his brother accused Anwar Shah. The father of P.W. Safdar Shah did not concede in view of the misbehaviour of accused Manzoor Shah son of Mahboob Shah. On 26-6-1970 all of the five accused went in front of the house (Bhora) of P.W. Safdar Shah and abusing his father said that they would positively get the hand of Mst. Taj in marriage. At that time the matter was hushed up through the intervention of some passersby. But while going back the accused said that they would take revenge for refusal. On 27-6-1970, at about 6-30 a.m. When P.Ws. Safdar Shah, Akbar Shah, Samundar Shah and deceased Mubarak Shah were present in front of a Jandar (water-mill), all the five accused arrived there. At that time accused Manzoor Shah and Munnawar Shah sons of Mahboob Shah carried sticks, appellant Akbar Shah held a spear, accused Anwar Shah was armed with a hatchet and accused Manzoor Shah son of Mubarak Shah had a knife. Accused Manzoor Shah and Akbar Shah raised a challenge saying that the complainant's party should be done to death. Appellant Akbar Shah attacked P.W.
Akbar Shah with spear and injured his neck. Accused Anwar Shah inflicted a hatchet blow on the head of P.W. Akbar Shah, Munawar Shah and Manzoor Shah also hit Akbar Shah P.W. With their sticks. He fell down. Thereafter, accused Anwar Shah gave a hatchet blow on the head of deceased Mubarak Shah, who too fell down. After the deceased had fallen down appellant Akbar Shah thrusted his spear in the front side of his throat. Accused Manzoor Shah son of Mubarak Shah caused a knife blow on the head of P.W. Samundar Shah. Accused Munawar Shah and Manzoor Shah also gave stick blows to P.W. Samundar Shah, who too fell down. P.W. Sher Muhammad and Barkat Shah son of P.W. Samundar Shah reached the spot and witnessed the occurrence. The accused ran inside the western Nullah. Deceased Mubarak Shah succumbed to the injuries and expired on the spot. Barkat Shah was left there and P.W. Safdar Shah took injured Akbar Shah and Samundar Shah P.Ws. Towards Rawalpindi. He met Samar Gul, S.H.O. Police Station Wah Cantt. At Nawababad and reported the matter.
3. The investigation in this case was conducted by Samar Gul, S.H.O. Police Station Wah Cantt., who was present at Nawababad in connection with patrol duty, on 27-6-1970 where he recorded the report Exh.PA./1 at the instance of Safdar Shah P.W. He prepared the injury statements Exh.P.M. And Exh. P.N. In respect of P.W. Samundar Shah and P.W. Akbar Shah. Samar Gul S.H.O./S.I. (P.W.14) went to the spot and prepared the injury statement Exh.P.K. And the inquest report Exh.P.L. Regarding the dead body of Mubarak Shah which was found lying on the spot. He then despatched the dead body to Rawalpindi mortuary under the escort of Fazal Karim and Muhammad Afzal F.Cs. He secured the blood-stained earth from the spot vide memo. Exh.P.C. And sealed it into a parcel.
Anwar Shah and Munawar Shah appeared before the Si. The Sub-Inspector prepared their injury statements and got them medically examined. Fazal Karim F.C. Produced before him blood- stained clothes of the deceased P.4 to P.7 which were taken into possession side memo. Exh.P.U. The said Inspector arrested Akbar Shah and Mahboob Shah accused. The former was injured and was got medically examined by the police. Manzoor Shah accused was arrested on 2-7-1970. He too was injured and was also got medically examined. On 3-7-1970 the S.I. Recovered spear P.1, sticks P.2 and P.3 respectively at the instance of Anwar Shah and Manzoor Shah. On 2-7-1970 the S.I. Vide Ruka Exh.P.Z. Enquired from the doctor whether injured P.W. Samundar Shah and Akbar Shah were fit to make statements. The doctor vide Endst. Exh.P.Z/1 replied that Akbar Shah was fit to make statement but Samundar Shah was not able to do so. On the same day the I.O. Seized the attendance card of Akbar Shah accused vide memo. Exh.P.J./1. On 30-6-1970 he obtained certificate Exh.P.H. Regarding the absence from duty with effect from 26-6-1970 of Anwar Shah and Manzoor Shah. He got prepared site plans Exh.P.V., P.V/l and Exh.P.V/2 by Muzaffar Hussain, Patwari.
After completing the legal formalities he submitted the challan in the Court of law.
4. On 27-6-1970 at 2-30 p.m. Dr. Abdul Majid (P.W.1) Medical Officer District Headquarters Hospital, Rawalpindi conducted the post-mortem examination on the dead body of Mubarak Shah (deceased). The following injuries were found on the dead body.
(1) A contused wound on the top of head 3" x 1" bone deep, the margin of the wound was uneven and no cutting of hair under the wound was found.
(2) A stab wound on the left side of the neck above the collar bone inner and 3/4" x 1/2" x chest cavity on the left side. Cut over the shirt was present.
' No fracture of skull was noticed. Left cavity of chest was full of blood, left lung had collapsed, heart, stomach, large intestine and bladder were empty and all other organs were found to be normal and healthy. In the opinion of the doctor injury No,1 was simple and was caused by blunt weapon, injury No,2 was dangerous to life and inflicted by a sharp-pointed weapon. The death of the deceased was due to shock and haemorrhage resulting from injury No,2 which was sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was immediate whereas between death and postmortem examination was twelve hours.
5. The same day, at 9-45 a.m. The same doctor medically examined Samundar Shah P.W. And noticed the following injury on his head:- ' A contused wound on the right side head and forehead 2-1/2" x 1/2" x bone deep with swelling and blackening of right and left eyes.
' The injury was kept under observation, caused with a blunt weapon within 1 to 2 hours. On 7-7- 1970, after the X-Ray of skull, this injury was declared grievous.
6. The same day, at 10 a.m. The same doctor medically examined Akbar Shah P.W. And found the following injuries on his person:
(1) A contused wound on the head middle 3" x 1/4" x bone deep.
(2) A contused wound on the head 1" behind injury No,1 1-1/2" x 1/4" x bone deep.
(3) A contused wound 1" behind right ear, 1-3/4" x 3/4" x bone deep.
(4) Swelling right hand back 2" x 2".
(5) A contused wound 1/2" x 1/4" x 1/4" on the left forearm back middle portion, with swelling.
' The injuries were caused by some blunt weapon within two hours. All were kept under observation.
On 7-7-1970, all the injuries were declared simple vide X-Ray report No,6487 dated 27-6-1970.
7. The same day at 5-30 p.m. The same doctor medically examined Anwar Shah acquitted accused and found six contusion marks and two contused wounds on his person. The injuries were simple and caused by a blunt weapon within twelve hours.
8. The trial Court placing explicit reliance upon the ocular evidence furnished by Safdar Shah (P.W.10), Mbar Shah (P.W.11), Samundar Shah (P.W.12) and Sher Muhammad (P.W.13) fortified by the evidence of the motive as well as by the recovery of blood-stained spear at the pointation of the appellant, came to the conclusion that the prosecution has proved its case beyond reasonable doubt, and sentenced the appellant as referred above.
9. I have heard the learned counsel for the appellant as well as for the State and have perused the record with their assistance very minutely.
10. Learned counsel for the appellant contended that in the present case both the parties received injuries at the hands of each other and the learned trial Court has convicted the appellant on the ground that the appellant had exceeded the right of self-defence by inflicting the fatal blow on the deceased with a spear; hence he was convicted under section 304, Part II and advantage of section 97, F.P.C. Was not granted to him. The learned counsel for the appellant submitted that in the present case when the trial Court held that the prosecution had not come with clean hands, when the finding of the trial Court is that the complainant party attacked the accused party, resultantly it would not be appropriate to send back the appellant who was released on bail in the year 1972, behind the bars to serve the remaining sentence.
11. In my view these submissions are devoid of force, because in the present case, the ocular account is coming from the mouth of those witnesses, who received injuries in the transaction, and their presence cannot be doubted at the spot. The findings of the trial Court that appellant, who was armed with formidable weapon of offence such as spear, has exceeded the right of self- defence is not open to any legal objection, hence his conviction under section 304, Part II, P.P.C. Is maintained.
12. I have given my anxious consideration to the submission of the learned defence counsel what should be the sentence, which he imposed in this case. Keeping in the mind, the appellant had already suffered imprisonment for more than two years as convict, when he was released on bail in the year 1972, and also his old age, I agree that in view of the peculiar facts and circumstances of the case as well as his old age, the appellant deserves leniency and sympathy, it would meet the ends of justice if the imprisonment of the appellant is reduced to already undergone. In order to vindicate the majesty of law, the sentence of fine is enhanced to Rs,20,000 with the direction that in default of the payment of fine to suffer rigorous imprisonment for two years. The fine, if realised, half of it shall be paid to Samundar Shah (P.W.12) father of the deceased as compensation. The appellant is given three months time to pay the fine.