' RIAZ AHMAD, J.--- The appellants Ashraf and Khizar alongwith their father Amanat Ali and their brothers namely Manzoor and Muhammad Aslam were tried by Additional Sessions Judge, Okara, on the charges under section 148/302 read with section 149, P.P.C. For having caused the murder of Muhammad Ali.
' Vide judgment dated Ist of April, 1986, the learned Additional Sessions Judge, Okara, found only the appellants Ashraf and Khizar guilty on the charge under section 302 read with section 34 of the Pakistan Penal Code while the other co-accused were acquitted. Both the appellants Ashraf and Khizar were sentenced to death and to pay a fine of Rs,10,000 each or in default to suffer rigorous imprisonment for a term of two years each. It was further directed that in the event of the recovery of fine, half of the same shall be paid as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C.
' Aggrieved by their convictions, the appellants preferred Criminal Appeal 235 of 1986, while the case has also been referred to us under section 374 Cr.P.C. This judgment shall dispose of both the Appeals as well as the Reference.
2. The unfortunate occurrence resulting into the death of Muhammad All took place at Digerwela on 30th of October, 1984, in front of the house of the deceased in Chak No,22/GD, Tehsil and District Okara situated at a distance of 10 kilometres from Police Station Sadar, Okara.
' The complainant/the first informant, namely Muhammad Iqbal P.W.7, a nephew of the deceased, proceeded to the police station but on his way, he came across Anwar Hussain, Sub-Inspector, P.W.11, and thus the occurrence was narrated by him vide statement Ex.P.E/1 at about 5-30 p.m. The said statement Ex.P.E/1 was sent to the police station on the basis thereof, the formal F.I.R. Ex.P.E. Was drawn by Muhammad Shafi, Moharrir Head Constable, P.W. 6 at 6-40 p.m.
' In brief, the complainant stated that he and his deceased uncle were residents of the same Ahata and adjacent thereof, house of Amanat Ali, the acquitted co-accused and father of the appellants was also situated. The Ahata and the house of Amanat All was divided by a common wall over which, there was a dispute between Amanat All and the complainant side. On account of this dispute over the wall, some time before the occurrence, the deceased had given beating to Amanat Ali, as a result of which, a case was registered against the deceased and one Siddique but at the trial, they were acquitted. A day preceding the occurrence, in the evening, Amanat Ali, acquitted co-accused again quarrelled with the complainant side but the residents of the village intervened and thus the parties were pacified but at that time, Amanat Ali threatened to take revenge and, therefore, armed with Sotas, they had been strolling outside the house of the complainant. On the fateful day, at Digarwela, the complainant and his paternal-cousin Allah Rakha were present in their Ahata, when the deceased Muhammad All returned to the Ahata alongwith his daughter whom he had brought from Chak 55/2-L. On the arrival of the deceased, the complainant narrated him the quarrel which took place a day before the occurrence and also the intention of the accused side. The deceased then took the initiatives to have a talk with the accused side and thus all three, the complainant, Allah Rakha and Muhammad Ali, deceased, came out of the Ahata and complained to Amanat All about their conduct, whereupon, Amanat All exhorted his sons to kill Muhammad Ali. Soon thereafter, the appellants Ashraf and Khizar and Aslam acquitted co-accused armed with Barchhis reached the spot. The appellant Khizar inflicted a Barchhi blow on the right arm of the deceased. Ashraf inflicted another Barchhi blow on the left flank of the deceased, as a result of which Muhammad Ali, deceased, fell down. Allah Rakha came forward to intervene and Aslam acquitted co-accused inflicted a Barchhi blow on his right thigh.
The occurrence was also seen by Maqsood Ahmed and Mushtaq Ahmed, residents of the village, who were sitting inside the Baithak of Mushtaq. They were attracted to the scene of occurrence and they tried to intervene but Amanat Ali and his son Manzoor, the acquitted co-accused armed with Dangs raised a Lalkara that if any body comes near, he will also be taught a lesson and thus on account of fear, the aforesaid eyewitnesses did not intervene. The hue and cry raised attracted the other residents of the village but in the meanwhile, the appellants and the acquitted accused succeeded to run away. The deceased Muhammad Ali, on account of receipt of serious injuries died at the spot.
3. On 31-10-1984 Dr. Muhammad Iqbal, M.O., Civil Hospital, Okara (P.W.-4) conducted the post- mortem examination on the dead body of Muhammad Ali and the following injuries were noticed:-
(1) Incised (stabbed) wound 4-1/2 c.m. x 1-1/2 c.m. Through and through on the outer and upper part of left upper arm.
(2) Incised wound which was in fact exit wound of injury No,1, 4 c.m. x 1 c.m. On the inner and upper part of left upper arm.
(3) Stabbed wound which was re-entry wound 3-1/2 c.m. x 1 c.m. On the anterior auxiliary line 5 cm lateral to the left nipple.
' All the three wounds were through and through and comprised one injury from upper left arm to left ventricle of the heart.
' On dissection of the chest, a stabbed wound was found in the 4th intercostal space in anterior auxiliary line on the left side. Pleurae along with lower part of upper lobe of left lung, pericardium and left ventricle were found stabbed through and through.
' In the opinion of the doctor, the death occurred due to shock and haemorrhage caused by injury No,1 which consisted of three wounds and the same was sufficient in the ordinary course of nature to cause death.
4. On 31-10-1984, Dr. Muhammad Azam Qayyum (P.W.3) medically examined Allah Rakha and noticed the following injury:--
(1) A punctured wound 2 c.m. x 1 c.m. x 2 c.m. Depth on outer side and upper 1/3rd of right thigh.
5. On 30-10-1984, at the request of the police, the appellant Ashraf who was injured was medically examined by Dr. Nazir Hussain P.W.5 and the following injuries were noticed on his person:--
(1) An incised wound 2 c.m. x 1 c.m. On the left side of the chest 4.5 c.m. Above and lateral to the left nipple.
(2) An abrasion 3 c.m. x 1/2 c.m. On the back of lower 1/3rd of left side of the chest.
' The appellant Ashraf was admitted in the hospital and his injury was X-rayed twice. Fluid level was noticed in the chest and, therefore, the injury No,1 was declared grievous.
6. The appellant Khizar was arrested on 24th of November, 1984 while the appellant Ashraf was arrested on 31-10-1984 by Anwar Hussain, S.I. P.W.11. On 15-11-1984, the appellant Ashraf while in police custody led the police and got recovered blood-stained Barchhi P.3 from his house which was taken into possession vide memo. Exh.P.I. Attested by Muhammad Iqbal P.W.7, and Altaf (not produced) besides Anwar Hussain, S.I. P.W.11. On 5-12-1984, the appellant Khizar while in police' custody led the police and got recovered blood-stained Barchhi P.4 which was taken into possession vide memo. Exh.P.J. Attested by Muhammad Iqbal P.W.7, Nizamud Din P.W.10, besides Anwar Hussain, S.I. P.W.11. Both the blood-stained Barchhis were opined to be stained with human blood vide report of the Serologist.
7. To prove its case at the trial, the prosecution placed reliance upon the ocular testimony furnished by Muhammad Iqbal P.W.7, Allah Rakha P.W.8 and Maqsood Ahmed P.W.9 while Mushtaq named in the F.1.R. As a witness was given up. All the three eye-witnesses are nephews of the deceased. Besides, the ocular testimony, the prosecution also placed reliance upon the evidence as to the motive and recovery of the blood-stained Barchhis at the instance of the appellants.
8. When examined under section 342, Cr.P.C. The appellant Ashraf and the acquitted co-accused Manzoor admitted the occurrence while the others denied the charge against them. Precisely, the appellant Ashraf made the following statement:-- "A day before the occurrence I was doing the job of barber in front of my house on the Thara.
Asghar a nephew of Muhammad Ali deceased committed a mischief whereupon there was a petty quarrel with him. I slapped him whereupon he departed extending threats that he would avenge the dishonour done to him by me. On the fateful day, I was shaving Rehmat Ali Virk at my Thara when Muhammad Ali deceased armed with pistol, Iqbal P.W. Armed with Barchhi and Asghar armed with Dang alongwith one Bashir attacked us. Muhammad Ali opened fire but it did not hit anyone while Iqbal caused Barchhi blow on my chest and I fell down. Thereupon Asghar caused me a blow with Dang. Muhammad All deceased again wanted to fire on me but my brother Manzoor accused came out of the house and hit him with his Barchhi in order to save my life. Allah Rakha was not present on the occasion and was imported from Chak No,99/6-R Sahiwal. Maqsood P.W. Was inimical to us. The complainant party in fact committed aggression against us but twisted the facts and lodged false case against us with the connivance of the police. I attended the police station alongwith others to report the occurrence but none listened to me. The Head Constable Moharrir arranged my medical examination on the promise that a case would be registered at my instance after said examination but instead instant case was booked."
' The same statement was repeated by Manzoor.
9. With the assistance of the learned counsel for the appellants and the State, we have carefully gone through the evidence on the record and we have also heard both the learned counsel for the parties at length.
10. The learned counsel for the appellants has vehemently argued that the defence version as pleaded by Ashraf was nearer the truth and the complainant side had thrown a wide net to involve the entire family of Amanat Ali. It was further argued that in fact the complainant party was the aggressor and to save Ashraf, the appellant, the deceased was injured, which resulted into his death and, therefore, no offence had been committed by the appellants. It was also argued that the recoveries in this case were fake and the learned trial Judge had erred while believing the recovery effected from Khizar appellant because the recovery from Ashraf appellant was disbelieved by the learned trial Judge and thus two criteria could not be applied. It was next argued that the recovery from Khizar was effected on the last day of remand, although, his house, situated next to the Ahata of the complainant, had been raided on a number of times and if at all the blood-stained Barchhi had been there, it could not have escaped from the sight. It was also contended that the ocular account in this case was tainted and that is why Allah Rakha was disbelieved, although, he claimed to have received an injury in the occurrence. It was further contended that there was conflict between the oral and the medical testimony, inasmuch as according to Dr. Muhammad Iqbal, P.W.4, it was one injury, consisting of three wounds received by the deceased but according to the complainant, Muhammad Iqbal P.W.7, the deceased received two injuries at the hands of Ashraf and Khizar. It was also strenuously argued that prosecution must suffer, on account of suppression of injuries of Ashraf, appellant.
11. After anxious consideration of all the facts and circumstances of the case, we are of the view that both the complainant and the appellants sides had grouse against each other; firstly, on account of previous criminal case registered against Muhammad Ali and Siddique resulting into their acquittal and secondly of the dispute over the common wall, although, this dispute had been denied by both the A appellants and they had their own version to offer it. We are of the view that in view of such background, the ocular evidence has to be carefully scrutinised. The learned trial Judge has disbelieved Allah Rakha P.W.8 and Maqsood Ahmed, P.W.9. The only independent witness Mushtaq Ahmed named in the F.I.R. Was not produced by the prosecution.
12. Adverting to the recovery allegedly effected from Ashraf appellant, we are of the view that the learned trial Judge rightly discarded it from consideration because according to the prosecution case, the blood-stained Barchhi was got recovered by Ashraf appellant on 15-11-1984, when admittedly, he was in the hospital under treatment and there is no evidence on the record to show that any permission was sought from hospital authorities to take out Ashraf appellant for effecting the recovery, therefore, the recovery allegedly effected from Ashraf appellant would not at all help the prosecution.
13. Adverting to the medical evidence, Dr. Muhammad Iqbal P.W.4, categorically stated that it was only one injury received by the deceased and it consisted of three wounds. We have further noticed that at the end oT the cross-examination, an attempt was made by the District Attorney to re- examine the doctor to know whether it was one injury or two injuries, but such re-examination was disallowed. The learned trial Judge rightly opined that there was no ambiguity and the Medical Officer had categorically stated that the deceased received one injury. We have examined this aspect of the case carefully and we have also seen the skiagram and we are of the view that it was one injury and not two injuries as held by the learned trial Judge.
14. The next crucial question arising for determination in this case is, whether the defence story about the self-defence is true or not. After careful analysis of the entire evidence and on account of suppression of injuries received by Ashraf appellant, on the part of the prosecution, we are of the view that the defence plea is nearer the truth but at the same time, we are of the view that infliction of Barchhi blow on the vital part of the deceased causing his death, was not justified in the circumstances of the case and, therefore, the right of self-defence was exceeded. The circumstances of the case do not warrant the causing of the fatal injury. In this view of the matter, we hold that the appellant Khizar was responsible for causing the fatal injury and the evidence against him is further corroborated by the recovery of blood-stained Barchhi from him and, therefore, we hold that he exceeded while exercising the right of self-defence. Accordingly, we set aside his conviction under section 302 of the Pakistan Penal Code but instead, we would convict him under section 304, Part I of the Pakistan Penal Code. Accordingly, the appellant Khizar is sentenced to undergo rigorous imprisonment for a term of ten years. The sentence of fine imposed upon him, is maintained. We further direct that the fine if recovered from him, shall be paid as compensation to the legal heirs of the deceased. He shall be given benefit under section 382(b), Cr.P.C.
15. Adverting to the case of Ashraf appellant, we hold that on account of doubtful recovery of Barchhi, the prosecution case is lacking any corroborative evidence against him because we have also held that this is a case which needs careful scrutiny and corroboration has to be sought. Since the prosecution has E failed to prove satisfactorily, the recovery of blood-stained Barchhi, from him, therefore, we have no option but to allow his appeal. Accordingly, we set aside the conviction of the appellant Ashraf under section 302, P.P.C. And acquit him.
' The death sentence awarded to him is not confirmed.
16. Resultantly, the appeal preferred by Ashraf appellant is allowed while the appeal preferred by Khizar appellant, is dismissed with the modification in the conviction and sentence, as stated above. The Reference is answered accordingly.
' Death sentence awarded to both the appellants is not confirmed.