The appellant Mumtaz alias Pappu, aged 22 years, was sent up for trial by Police Station Kotwali Faisalabad, for an offence under section 302 PPC. The trial Court Faisalabad vide its judgment dated 24-4-1988, convicted and sentenced him under section 304 Part-II PPC to seven years' R.I.
And a fine of Rs. 10,000 or in default one year R.I. The fine, if recovered, was ordered to be paid to the legal heirs of the deceased. The convict has appealed against his conviction and sentence. The complainant has also filed two separate revisions. In one revision the complainant has challenged the acquittal of the convict under section 302 PPC. In the other revision he seeks enhancement of sentence awarded to Mumtaz appellant under section 304 Part-II PPC. All these matters will be disposed of by this judgment.
2. According to the prosecution story in brief as given in the F.I.R. Lodged by Mubarak A.I father of Ibad ali, is to the effect that on 6-2-1987, at about 11.45 a.m., the firs' informant alongwith one Muhammad Siddiq and Abdul Ghafoor were sitting in their hotel while the first informant's son Ibad A.I was sitting in his seat and talking to the customers. In the meanwhile, Mumtaz alias Pappu came and told Ibad A.I that he would take revenge of the insult of 5th February, 1987. He caught hold of Ibad A.I from his collar and pulled him down. Simultaneously, he gave two fist blows on the neck of Ibad A.I who fell down. Safdar A.I, another son of the first informant, was standing nearby who picked up a Danda and gave a blow on the head of Mumtaz A.I. In the meanwhile the first informant and others came at the spot whereas the accused Mumtaz ran away. Ibad A.I was taken to hospital who died because of the said injuries.
3. F.I.R., Exh. PA was lodged by Mubarik A.I, PW-8, on 6-2-1987, at 12-30 a.m. It was recorded by Haq Nawaz, ASI, PW-1. The distance between the spot and the Police Station Kotwali Faisalabad was one furlong. Kifayat Hussain Shah, SI, PW-11, investigated the case. He visited the spot and recorded the statements of the witnesses. Thereafter he went to the hospital and prepared injury statement, Exh.
PI and inquest report, Exh. PJ of the deceased and sent the dead body for post-mortem examination. On 7-2-1987 he arrested the accused who was injured, therefore, his injury statement, Exh. PK was prepared. He also got him medically examined. He got site plan Exh. PC prepared from draftsman and gave his note in red ink thereunder. After usual investigation he challaned the accused.
Dr. Muhammad Ajmal Mian, S.M.O., D.H.O. Hospital, Faisalabad, conducted the post-mortem examination on-the dead body of Ibad A.I on 7-2--1987. He observed the following injury on his person:--.
(1) Contusion marks in area 15 cm x 10 cm, on left upper front part of neck, left side face, and left temporal region with swelling involving the whole left front part of neck and left side face and temporal region. Left external jugular vein was found ruptured underneath. Lot of clotted blood was found collected in the subcutaneous tissues of left side of neck, left temporal region and brain was found lacerated alongwith manages with the congestion of brain. Clotted, free blood was present in both ventricles of the brain and also there was lot of clotted blood present around the brain's stem underneath the injury.
Dr. Muhammad Nazir Chatha, SMO, DHO Hospital Faisalabad, PW-10, examined Mumtaz injured accused on 8-2-1987, at 11-30 a.m., and found the following injuries on his person:---
(1) A lacerated wound 1 cm x 3/4 cm x scalp deep on the top of head.
(2) Abrasion 1/2 cm x 1/2 cm on front right knee.
(3) Complaining pain on right wrist.
(4) Complaining pain on middle finger left hand at distal part.
(5) Abrasion 1 /2 cm x 1/2 cm on back of right elbow.
All the injuries were simple in nature and caused by blunt weapon.
4. The prosecution in support of its case produced 11 witnesses in all. Haq Nawaz, PW-1 recorded the formal F.I.R., Exh. PA on the statement of Mubarik A.I. Dr. Muhammad Ajmal Mian, PW-2, had conducted the post-mortem examination. Aurangzeb, PW-3, prepared site plan Exh. PC, on the direction of the police. Shaukat A.I ASI, PW-4, produced register whereby Mumtaz accused was entered as a Member of the Club as a boxer. Ijaz Hussain, PW-7 deposed about the incident which look place a day earlier between Ibad A.I deceased and Mumtaz accused. According to him he was informed about the incident by the deceased. The eye-witness account has been furnished by Mubarik A.I and Abdul Ghafoor, PWs. 8 and 9 respectively. Dr. Muhammad Nazir Chatha, PW-10 had examined the appellant. The case was investigated by Kifayat Hussain Shah, SI, PW-11.
5. At the conclusion of the prosecution evidence the appellant was examined under section 42 Cr.P.C., wherein he refuted the entire prosecution allegations and pleaded innocence. In answer to a question he stated that he was a friend of the deceased and on the day of incident while he was passing by the hotel of the deceased, the deceased called him and again started an argument with him and also assaulted him whereupon he gave a fist blow which resulted in the death of said Ibad A.I.
It is contended by learned counsel for the appellant that the case against the appellant is that he gave two fist blows which resulted in the death of the appellant. Submits that in such circumstances the application of section 304 Part --II P.P.C. Would be highly doubtful when the appellant had right of private defence available to him. Submits that the assertion of the appellant that he was attacked first and thereafter he gave a fist blow to the deceased is corroborated by the statement of the doctor who found the appellant injured. Submits that in any case the sentence awarded to the appellant is too harsh.
The contentions have been opposed by learned counsel for the State as well as for the complainant. According to the learned counsel for the complainant, the appellant came to the shop of the deceased, dragged him from his seat into the lane and thereafter gave two fist blows.
Contends that the appellant was a boxer that is why he gave fist blow with such force that even the bran of the deceased was damaged, therefore, it was a case for enhancement of punishment.
6. I have heard learned counsel and gone through the evidence with their assistance. As far as the place and time of occurrence are concerned it is accepted by both the sides The only question which requires to be determined is whether the right of private defence was available to the appellant or not and if so what offence was committed. In this respect the eye-witness account had been furnished by Mubarik A.I and Abdul Ghafoor, P.Ws. 8 and 9, respectively. Both of them had asserted that within their view the appellant came to the hotel of the deceased and after catching him from his collar he pulled him in the street and thereafter gave two fist blows. Thereafter another brother of the deceased in order to rescue him came and gave a Danda blow on the head of the appellant. This would clearly indicate that the intention of the appellant was to teach Ibad A.I deceased a lesson for having insulted him a day earlier. The appellant chose the most vital part of the body, i.e. Neck for giving fist blow.
As far as the plea of the appellant is concerned that he acted in the right of private defence that is not available to him. The prosecution story that the appellant was injured after he had given fist blows to the deceased is convincing and can safely be relied upon. In such circumstances, I hold that the right of private defence was not available to the appellant. However, the intention of the appellant was clear from the fact that he went to the shop of the deceased and dragged him into the lane and thereafter gave two fist blows on the neck of the deceased which resulted in his death. In these circumstances, I feel that the sentence awarded to him may not be in proportion to the act committed by the appellant therefore while dismissing his appeal, I reduce the sentence of imprisonment from 7 years R.I. To 5 years R.I. The sentence of fine shall, however, be maintained.
The appellant shall also be given the benefit of section 382-B Cr. P.C. For the same reasons the revisions of the complainant are also dismissed.
SA./M-1659/L