' This is an appeal against the judgment, dated 2-4-1987 whereby the learned Sessions Judge, Khushab convicted Muhammad Afzal appellant under section 302, P.P.C. And sentenced him to imprisonment for life and a fine of-Rs,10,000 or in default thereof to further undergo one year's rigorous imprisonment. The fine, if recovered, was to be paid to the legal heirs of Ata Ullah deceased. Benefit of section 382-B, Cr.P.C. Was also extended to the appellant.
2. The occurrence took place on 21-9-1985 'at 12 noon in Chowk Darul Islam, Jauharabad Town.
Matter was reported to the police by Muharnmad Nawaz P.W.6 the father of (he deceased, through statement Exh.P.G. Recorded by A.S.I. Muhammad Akbar P.W.8 on 22-9-1985 at 12-30 p.m. On the basis of the said statement formal F.I.R. Exh.P.G./1 was recorded by A.S.1. Zulfiqar Ali P.W.10 at 1-05 p.m. On the same day.
3. The prosecution case as narrated in the FIR., in brief, is that Muhammad Nawaz complainant's son Ata Ullah deceased aged about 16 was running a bicycle repair shop/Khokha in Chowk Darul Islam, Jauharabad. On 21-9-1985, at about 12 noon, the complainant alongwith Muhammad Aslam P.W. Was sitting at the said Khokha when Muhammad Afzal appellant came there on a bicycle. He asked the deceased to give him a wrench and Adda for the repair of his bicycle. The deceased told him that he himself would repair the bicycle. On this an altercation took place between them and they started grappling with each other. In the meanwhile Ata Ullah deceased picked up an air pump and gave a blow on the back of the head of the appellant with it. The deceased tried to run away but the appellant picked up a brick and hit him with it on the back side of his head. The deceased fell down. The appellant again gave as brick blow to him which hit him in his abdomen and also gave a fist blow on his mouth. Meanwhile Fazal Ahmed P.W.7 also came there and witnessed the occurrence. The appellant made good his escape. The complainant took the deceased to the Civil Hospital, Jauharabad where he was admitted for treatment. On 22-9-1985 at about 11 a.m. He succumbed to his injuries. After getting the medical report the complainant proceeded towards the Police Post Jauharabad for lodging the report. A.S.I. Muhammad Akbar Khan met him on his way who recorded his statement Exh.P.G.
4. A.S.I.. 'Muhammad Akbar Khan P.W. After sending the statement Exh.P.G. To the police.Station for the registration of the case proceeded to the hospital where dead, body of the deceased was lying.
On reaching there he prepared his injury statement Exh.P.J. And inquest report Exh.P.K. He despatched the dead body for post-mortem examination and himself went to the place of occurrence. He took into possession blood-stained brick P.3 and scaled it into a parcel vide memo.
Exh.P.H attested by Muhammad Nawaz and Fazal Ahmed P.Ws. On the same day constable Abdul Rchman P.W.4 produced before him the last worn clothes of the deceased, shirt P.1 and Shalwar P.2 both bloodstained which were taken into possession vide memo. Exh.P.E. He got the site plans Exh.P.F. And P.F./1 prepared by Mumtaz P.W.5, Revenue Patwari and gave his notes in red ink. He also arrested the appellant and after the completion of investigation challaned him.
5. On 21-9-1985 at 1-45 p.m. Dr. Mahboob Ahmad Faizi, the then Medical Officer, D.H.Q. Hospital, Jauharabad medically examined Ata Ullah while he was alive and found the following injuries on his person:--
(1) Lacerated wound 6 c.m. x 1 c.m. x bone deep on occiput of skull.
(2) Lacerated wound 1 c.m. x 1/2 c.m. x muscle deep on internal side of lower lip.
(3) Complains of severe pain in whole abdomen.
' The doctor observed that the patient was semi-conscious. Injuries Nos.1 and 3 were kept under observation for X-ray of skull and abdomen. Injury No,2 was declared simple. He opined that the injuries had been caused with blunt weapon within half to one hour. He admitted the patient in the hospital. Exh.P.A. Is correct carbon copy of his medico-legal report, while Exh.P.A./1 is the diagram of injuries.
6. On 21-9-1985 at 3-30 p.m. The same doctor also medically examined Muhammad Afzal appellant (aged 28 years) and found the following injury on his person:--
(1) Lacerated wound 3.5 c.m. x 1 c.m. x bone deep on occipital region of skull.
' The injury was kept under observation but later .On, was declared simple. It had been caused with blunt weapon. Exh.P.C. Is the correct carbon copy of his medico-legal report.
7. On 22-9-1985 the same doctor conducted the post-mortem examination on the dead body of Ata Ullah deceased and found the following injuries on it:--
(1) Lacerated wound 6 c.m. x 1 c.m. x bone deep on occiput of skull.
(2) Lacerated wound 1 c.m. x 1/2 c.m. On inner aspect of lower lip.
(3) Abdomen was distended.
' On dissection the doctor observed that there was depressed fracture on occipital bone of skull.
There was fracture underneath and hematoma was present above the meninges and on skull.
Dura mater was also torn and there was sufficient collection of blood on brain. On opening the abdomen the abdominal cavity was full of yellowish, foul smelling liquid and there was small perforation of small intestine close to ileocaecal junction. On opening, the other organs were found normal.
' In the opinion of the doctor death had occurred due to haemorrhage and shock caused by injuries Nos.1 and ,3 which were sufficient to cause death in the ordinary course of nature. Injuries Nos. 1 and 3. Were fatal while injury No,2 was simple. All the injuries were ante-mortem and had been caused with blunt weapon. Time between injuries and death was about 24 hours and between death and post-mortem examination was 4 to 6 hours. Exh.P.B. Is the correct carbon copy of his post-mortem examination report while Exh.P.B./1 is the diagram of injuries.
8. The appellant was formally charged under section 302,. P.P.C. But he pleaded not guilty.
9. In support of its case the prosecution examined 10 witnesses including the two eye-witnesses namely, Muhammad Nawaz P.W.6 and Fazal Ahmed P.W.7. Muhammad Aslam the third eye- witness, however, was given up as unnecessary.
10. After the completion of the prosecution evidence the appellant was examined under section 342, Cr.P.C. He admitted that on the day of occurrence at about noon time he had gone to the Khokha of the deceased and had demanded a wrench and Adda for repairing his bicycle; that when the deceased refused to give him the said instruments they exchanged hot words and that the deceased gave him a blow on his head with an air pump. He, however, denied that after the infliction of the said injury the deceased had tried to run away. Explaining as to why the present case had been registered against him he set up the following plea:- "The deceased hit me with the air pump and then I fixed blow on his face in my self-defence. On this he fell down on the articles lying outside the Khokha and due to this fall he received the injuries."
' In Urdu version the first sentence of his statement reads as follows:- ' He pleaded that he was innocent. He did not produce any evidence in defence nor did he make a statement on oath under section 340, Cr.P.C.
9. The learned trial Court disbelieved the defence version and relying on the prosecution evidence convicted and sentenced the appellant as stated above.
10. Feeling aggrieved the appellant has come up in appeal.
11. I have heard the learned counsel for the parties and with their assistance have gone through the record.
12. The occurrence took place on 21-9-1985 at about 12 noon but the matter was reported to the police on the following day at 12-15 noon. There, therefore, is an inordinate delay of 24 hours in lodging the F.I.R. Muhammad Nawaz P.W., the maker of the F.I.R., has stated that he could not lodge the report earlier because his son Ata ULlah deceased was admitted in the hospital. This explanation of delay is not plausible.
13. In the F.I.R. Three persons have been mentioned as the eye-witnesses of the occurrence, namely, Muhammad Nawaz P.W.6, Fazal Ahmad P.W.7 and Muhammad Aslam (not produced). As already pointed out Muhammad Nawaz P.W. Is the father of the deceased. Muhammad Aslam, given up P.W., is also related to Muhammad Nawaz P.W. Both Muhammad Nawaz and Fazal Ahmad P.Ws. In their statements before the trial Court have denied the existence of any relationship between them.
However, in his statement before the police Exh.D.A., with which he was duly confronted, Fazal Ahmad P.W. Admitted that Muhammad Nawaz P.W. Was his relative. This suppression of relationship casts thick shadow of doubt on the credibility of these witnesses. It would thus be seen that all the persons nominated in the F.I.R. As eye-witnesses were related inter se.
14. Admittedly, the occurrence took place on a busy roadside in a populous Chowk of Jauharabad Town. Independent witnesses, therefore, were easily B available but none was cited or produced.
15. Learned counsel for the appellant has strongly contended that the eye witnesses in the present case had neither witnessed the incident nor were they present at the time and place of occurrence. Now, therefore, we proceed to examine as to whether Muhammad Nawaz and Fazal Ahmad P.Ws. Had actually seen the occurrence. According to Muhammad Nawaz P.W., at the relevant time, he was sitting at the Khokha of his deceased son alongwith Muhammad Aslam given up P.W. And Fazal Ahmad P.W. Was also there. In their presence and view an altercation took place between the appellant and the deceased, they then grappled with each other for 2/3 minutes, the deceased inflicted blow on the head of the appellant with an air pump and then they saw the appellant picking up a brick for hitting the deceased with it. During all this neither Muhammad Nawaz nor any other eye-witness tried to intervene and kept sitting undisturbed and unconcerned.
This queer conduct of theirs was least expected from them especially when they were related to the deceased and one of them was the father of the deceased. At least a father would not act like a silent spectator when his son is being subjected to or is likely to be subjected to physical harm.
This oddity in their conduct is sufficient to raise a strong presumption that none of them was C present at the relevant time and place and none of them had witnessed the occurrence.
16. Even otherwise both Muhammad Nawaz and Fazal Ahmad P.Ws. Do not I appear to be natural witnesses. Muhammad Nawaz P.W. Worked in Jauharabad City, therefore, had no occasion to be present at the shop of his son on a working day. When cross-examined on this subject he conveniently stated that on the day of occurrence he was not on his daily duty and was resting.
Fazal Ahmed P.W. Is the resident of village Bola which is at a distance of three miles from the place of occurrence. He also was not expected to be present at the relevant time and place. He stated that on the day of occurrence at about 9 a.m. He proceeded from his house to Jauharabad on his bicycle to meet Muhammad Nawaz complainant to request him to help him in his business. He went straight to the place of occurrence. It is not known as to how did he know that Muhammad Nawaz was present there. Ordinarily he should have gone either to his house or to the place of his business which he did not. Again it is very strange that he covered a distance of three miles on a bicycle in three hours. He, therefore, does not appear to be a genuine witness. The ocular evidence does not inspire confidence and, therefore, I am not persuaded to place any reliance on it.
17. It is the case of the prosecution that Ata Ullah deceased had initiated the attack by inflicting an air pump blow on the head of the appellant and thereafter, when the deceased tried to run away the appellant picked up a brick and hit him with it on his head as a result of which the latter fell down and the appellant again hit him with the brick in his abdomen and then gave a fist blow on his mouth. Before the trial Court Muhammad Nawaz P.W. Had stated that after inflicting injury on the appellant's head the deceased had tried to run away but the appellant subjected him to the aforementioned three injuries. Fan' Ahmad P.W. However, gave another story by saying that after giving the air pump injury to the appellant the deceased ran towards the North and while he was running the appellant injured him. There is a lot of difference between 'running away' and `trying to run away'. This discrepancy is also indicative of the fact that the P.Ws. Had not seen the occurrence.
This alleged conduct of the deceased does not seem to be probable. He was the aggressor. He was still armed with the air pump. Why should he have run away? I am convinced that the fact that the deceased had tried to run away after injuring the appellant has been deliberately introduced in the prosecution case solely with the object to show that the subsequent infliction of the injuries on the part of the appellant was totally unjustified as he had lost the right of private defence. The prosecution knew that the appellant was admitted in the hospital with a head injury. They were also in the know of the injuries suffered by the deceased. In these circumstances they had ample time to concoct a story to fit in the medical evidence, which very cleverly they did. In this story they have tried to deprive the appellant of the right of self-defence which otherwise was manifestly available to him. The inordinate delay in lodging the F.I.R. Unequivocally suggests that a false story had been fabricated after long E deliberations. The ocular evidence does not inspire confidence and therefore, I am not persuaded to place any reliance on it.
18. This brings us to the defence version. According to the appellant the deceased had opened attack on him by inflicting an air pump blow on his head and he in his self-defence gave him a fist blow on his mouth as a result of which he fern down on the articles lying outside the Khokha and received injuries. In other words the appellant accepts responsibility of inflicting only one injury on the deceased which was located on his mouth. The medical evidence on record shows that besides that injury the deceased had two more injuries which were located on the back of his head and abdomen. The injury in the abdomen had resulted in a small perforation of small intestine. The doctor who performed postmortem examination opined that all the injuries had been caused with blunt weapon. Now if the appellant had inflicted only a fist blow on the mouth of the deceased a question arises as to whether the deceased had received the other injuries by a fall. The location of injuries rules out any such possibility. If after the receipt of fist blow the deceased had fallen face downward he would have received injury in the abdomen and not on the back of his head.
Conversely, if he had fallen on his back then he could not have received injury in the abdomen.
Realizing this position, learned counsel for the appellant has maintained that the perforation of intestine was not the result of any injury but was due to peptic ulcer or other abdominal disease. In this regard he referred to Modi's 'Medical Jurisprudence and Toxicology' and 'Man's Body' by Diagram Group, a Corgi Publication, according to which such intestinal perforation could be caused by peptic ulcer or deodenum ulcers. I am not persuaded to accept the theory propounded by the learned counsel. The deceased was a young boy of 16. It is not the age to develop peptic or deodenum ulcers. In `Man's Body' in para C-27 under the caption 'Peptic Ulcer' it is stated:-- "Deodenal ulcers can occur at any time after the age of 20, gestric ulcers usually occur after 40."
' In the same chapter, under the caption 'Associated Factors' the authors of the Book have declared:-- "Some things are known to increase the likelihood of developing a peptic ulcer; living under considerable stress; drinking large amounts of alcohol; eating rich food, having excess acidity of the stomach; suffering from frequent stomach or intestinal infection; being of blood group '0', having a family history of ulcers; and being of 'personality type '."
' Keeping in view all these factors I am convinced that the deceased who was a poor cycle repairer, did not have enough 'qualifications' to have an ulcer.
19. After giving a very deep anxious consideration to the material available on record I have come to the conclusion that neither the prosecution nor the defence has come out with a true story. Both of them have tried to conceal the true facts and have narrated a story which is half true. In such situations the Courts are free to draw proper inferences from the evidence and circumstances appearing on record. I am of the firm view that in the present case it was the deceased who had initiated aggression on the appellant by inflicting an injury on F his head with an air pump and the appellant in self-defence had inflicted head injury on him with a brick as a result of which the deceased had fallen on the tools and implements lying in front of his Khokha and thus had sustained injury in his abdomen which resulted in small perforation in his intestine. The injury on the mouth of the deceased, in my opinion, was sustained by him during the grappling which preceded the infliction of injury by the deceased to the appellant. There was no premeditation as the occurrence was the result of a sudden flare up. After receiving injury on his head the appellant was justified in apprehending another blow from the deceased who was still armed with the air pump.
In such a situation being the sole judge of his own danger the appellant was permitted under the law to repel the attack even to the extent of taking the life of his adversary. I am convinced that the appellant had acted in exercise of his right of private defence and had not exceeded his said right.
He, therefore, could not have been held guilty of any offence.
20. Upshot of the above discussion is that the appellant is entitled to I acquittal. Consequently his appeal is accepted and he is acquitted. He shall be released forthwith if not required in any other case.