MUHAMMAD AMIR MALIK, J.-Bashir Ahmad appellant (I6) was Gaged and tried for the murder of Mushtaq Ahmad (18), the son of Muhammad Siddique complainant (PW.7). Vide judgment dated 26.7.1981, he was convicted by learned Addl. Sessions Judge Gujranwala for an offence under Section 304/ Part-II PPC and sentenced to 10 years R.I. And a fine of Rs.6000/- or in default thereof R.I. For one year. 2/3rd of the fine, if realized, was ordered to be paid to the heirs of the deceased. He has come up in appeal.
2. The occurrence took place at about 9.00 p.m. In Ghakhar Mandi on 30.7.79. Muhammad Siddique complainant (PW.7) was proceeding to the Police station and came across Muhammad Aslam A.S.I. (PW-14) of police Post Ghakhar Mandi at 9.30 p.m. And made statement (Ex.PB). It was sent to the police station where formal F.I.R. (Ex.PB/l)was recorded by Nasar Ullah M.H.C.(PW.5).
3. The version given' in the F.I.R, was that Mahmood Akhtar a rather de-arranged son of the complainant went out in the bazar at 9-00 p.m. Where the appellant threw water upon him where upon Mahmood Akhtar started abusing the appellant . Mukhtar Ahmad, another son of the complainant, was present in the bazar and he informed the family at the house about it. On this Mst. Sughran, the mother of the deceased went out and reprimanded the appellant who had returned from the bazar by then and was standing in front of his house which was nearby. Bashir Ahmad appellant abused Mst. Sughran and denied that he had thrown water upon Mahmood Akhtar. This attracted the complainant and his elder son Mushtaq deceased in the street and Mushtaq started reprimanding the appellant for the abuses to his mother. The appellant took out knife from the pocket and gave a blow in the front left chest felling the deceased to the ground. The appellant made good his escape and the deceased expired at the spot.
4. At the close of the trail the appellant pleaded innocence. He claimed that Mushtaq deceased, Mst. Sughran and Siddiq PWs wrongly alleged throwing of water upon Mahmood Akhtaar, he repudiated the allegation and that while standing in the door of his house they attacked him, grappled with him, and he had to take out his pen knife with which he caused injuries in self defence.
5. Post mortem examination on the dead body was performed by Dr. Imtiaz Ahmad Cheema (PW.
Ll)and eyewitness account was given by Muhammad Siddique and Gulzar Ahmad (PWs.7&8).
Learned counsel for the parties have been heard and the statements of PWs gone through. It is clear that previous to the occurrence there was no enmity or ill will between the complainant family and that of the appellant. The motive part of the story is given by the complainant himself.
The learned trail Judge did not accept the motive part and yet taking the same to be an established fact while appreciation the oral account concluded that it was the complainant party who had the motive to go to the house of the appellant. The reasoning is contradictory. The two witnesses have made forth-right statement and they are not interested in the sense that they cannot be relied upon as seems to be the tenor of the Judgment delivered by the learned Trial Judge. They have clearly supported the eye-witness account as given in the F.I.R, and they are reliable, natural, independent and dis-interested. Over the affair of the throwing of water upon Mahmood Akhtar the deceased came to the house of the appellant when his mother was abusing and there even if there was exchange of abuses, the appellant had no justification to give the knife blow in the chest as there is nothing to indicate that he was in danger of receiving any injury or any was attempted from the complainant side. Even if grappling was there, there was no justification to give the knife blow and that too in the chest. There was, therefore, no question of exercise of right of self defence.
6. However the conclusion of the learned trial Judge seems to be correct that it was not an intentional murder, the offence made out was culpable homicide not amounting to murder, so the conviction of the appellant was properly recorded. The appeal against conviction, therefore , fails and is hereby dismissed. However, the appellant was a young man , the occurrence took place as far back as July 1979, and after two years statutory period he was granted bail. He has been behind the bars during and after the trial for about 3 years and 7 months. Thus the sentence already undergone and a fine of Rs.15,000/- or in default thereof three years R.I. Would meet the ends of justice. I . Whole of the fine, if realized shall be paid to the heirs of the deceased as compensation.
The fine would be deposited in the learned trial Court with in a period of two months, otherwise the appellant would be taken into custody and sent to jail to serve out the sentence.