Feroze and his brother, Muhammad Younas, were tried by Magistrate Section 30, Sargodha, under section 307/34, P.P.C. For having launched murderous assault on Riaz Ahmad (P.W.1) on 24-9-1981 at 5-00 p.m. Near 'the door of the haveli of his maternals in village Chawa at a distance of 12 miles from Police Station Bhera, District Sargodha. Learned trial Magistrate vide judgment, dated 18-10- 1984, convicted Feroze appellant under section 307, P.P.C. And sentenced him to seven years' R.I.
Plus to pay a fine of Rs.6,000 in default whereof to undergo R.I. For six months.
Rs.4,000 on recovery of fine, were directed to be paid as compensation to heirs of Riaz deceased.
Yunus was acquitted vide the same judgment.
2. The convict has filed appeal.
3. F.I.R. Exh. PA. Was recorded at the police station by Muhammad Rafiq A.S.I. (P.W.8) on 25-9-1981 at 9-30 a.m. On the statement of Sultan (P.W.2). During investigation, knife P.1 was recovered at the instance of Feroze on 4-10-1981 while hockey was allegedly recovered from his co-accused Yunus.
4. Statements of 8 P.Ws were recorded at the trial. Sultan who had lodged the F.I.R. Appeared as P.W.2. He stated that he was going to the house of his maternals alongwith his nephew Riaz at 5-00 p.m. On 24-9-1981. When they reached near the house of their maternals, Feroze armed with a knife and Yunus armed with a hockey came there and launched attack on Riaz after raising Lalkaras.
According to him, Feroze gave a knife blow on the back of Riaz near the vertebra bone as a result of which he fell down whereafter Yunus gave hockey blows. He stated that Maula Bakhsh and Saleh P.Ws. Were attracted to the spot hearing the noise and had witnessed the occurrence.
For motive for the occurrence, he stated that Feroze, who had a shop close to the house of Riaz, used to play tape. Riaz had objected to that whereupon the respectables of the village had got his shop shifted. He also claimed that Feroze had got recovered knife P.1 while in police custody in his presence. Yunus, according to him, had got recovered hockey. During cross-- examination, he stated that when Thanedar had reached the hospital at 11-00 a.m., Riaz was in senses. According to him, on the advice of the doctor, Riaz was shifted to Sargodha.
5. The statement of Riaz P.W. Victim in this case is corroborative of the statement of P.W.2. During cross-examination, he added that he had gone unfit and his urinary system was not in his control.
During cross-examination, he denied the suggestion that he was armed with anything. He denied the suggestion that a quarrel had taken place between him and Feroze wherein he had given him 3 /4 Lathi blows or that he had fallen on a heap of wood on being pushed by Feroze and suffered injuries by striking against a Phana (A. Sharp-pointed steel implement).
6. Maula Bakhsh, another eye-witness, who appeared as P.W.4, did not support the prosecution case. In fact, he stated that he had not witnessed the occurrence.
7. Dr. Abdul Hamid, who had medically examined Riaz on 24-9-1981 appeared as P.W.5. He had noted following injuries on his person:-- (1)Cut wound 2.5 c.m. x 1 c.m. x more than 5 c.m. Deep on the left side on the back of the shoulder blader. Direction of wound is towards the spinal collar. The patient cannot move his both lower legs and there is loss of complete senses in the both extrenetics.
(2)Contusion 9 c.m. x 1.5 c.m. On the left side of the back.
(3)Contusion 10 c.m. x 2 c.m. On the right side of the back.
(4)Contusion 11 c.m. x 2.5 c.m. On the back of the right shoulder blade.
(5)Lacerated wound 2 c.m. x 1 c.m. x skin deep on the inner side of the right ankle joint.
According to his opinion, injury No.1 had resulted from sharp-edged weapon while rest of the injuries had been caused by blunt weapon, within the duration of 'six hours. During cross- examination, he stated that injury No.1 could not have resulted by fall on a heap of pieces of wood.
However, he stated that there was possibility of the injury being suffered due to fall on a knife.
8. Muhammad Rafiq, A.S.I. Who had referred the ease and submitted challan after investigation appeared as P.W.8 and gave the details of the investigation. He also stated about the recovery of knife at the instance of Feroze and hockey at the instance of Yunus.
9. The appellant as well as the acquitted co-accused during statements under section 342, Cr.P.C.
Denied the prosecution case. In answer to the question, why this case against you, Feroze stated as follows:-- "Riaz had attacked on him and given Sota blows. I had pushed him as a result of which he fell down on a heap of piece of wood. An iron Phana was lying there. Riaz suffered injury due to that.
His brother Yunus denied to have participated in the occurrence.
10. Feroze examined in defence Dr. Muhammad Rahim Paracha (D.W.3) in support of his plea that he had suffered injuries during the occurrence. Dr. Muhammad Rahim Paracha had noted following injuries on his person:-- (1)A contused wound 4-1/4 c.m. x 1 c.m. x bone deep on the left side of head 6 c.m. From the left ear.
(2)A contused wound 2-1/4 c.m. x 1/2 c.m. x bone deep on the right lap of head 11 c.m. From the right ear.
(3)A contused wound 1-1/2 c.m. x 1/2 c.m. x skin deep on the right side of head the mid-line.
(4)A contused wound 1-1/4 c.m. x 1/2 c.m. x 1/2 c.m. In the area of the right forearm near the elbow joint.
(5) An abrasion 1 x 1 c.m. On the back of right wrist joint.
(6) A contusion 10 x 4 c.m. On the back side of the left thigh.
According to his opinion, all the injuries were caused by blunt weapon. The nature of injuries Nos.1, 2, 3 and 4 were kept under observation. They were declared simple later.
11. D.W.1 and D.W.2 had supported the plea of alibi of Yunus.
12. I have gone through the evidence and considered the contentions raised by the learned counsel for the parties.
13. The argument of the learned counsel for the appellant that Sultan P.W. Does not appear to have witnessed the actual occurrence and the infliction of injuries, seems to possess weight in view of the statement made by Sultan, during cross-examination. He stated that he had reached the spot after hearing noise from his house and that he was not accompanying Riaz at the time of occurrence. He also admitted that when he had reached the spot Riaz was lying in the street and the witnesses were pushing away the accused.
14. Notwithstanding the fact that there is no corroborative evidence of the fact about the happening of the occurrence, the fact remains that the appellant even, did not, deny, that the occurrence had taken place between him and Riaz on that date. The question which needs consideration is, whether the statement made by Riaz that Feroze had launched attack on him and had caused injuries to him was true or the stance taken by Feroze that Riaz had inflicted injuries to him and that Riaz had suffered injuries by falling on a heap of pieces of wood on being pushed by him (Feroze) possess force.
15. The injuries found on Riaz could not have been suffered by him on a fall on heap of pieces of wood. In all, he was found to have suffered five injuries; four by a blunt weapon and one by a sharp-edged weapon. The damage which resulted from the injury suffered by sharp-edged weapon could not have been so acute as found, had the injury resulted accidentally. In fact, if he had suffered injuries in the manner stated by Feroze, his clothes or at least his shirt would have been torn at different places but that was not the case. On the other ham, there is nothing cogent to hold that the injuries found on Feroze were self-suffered. He had got himself medically examined on the following day of the occurrence i.e. On the day the F.I.R. Was lodged. Four out of the six injuries were kept under observation. Although they were deemed as simple as no evidence was produced at the trial about any of them being grievous but the fact remains that their nature at the time of examination was such that the doctor could not declare them simple.
16. It is in evidence that the parties were annoyed with each other prior to the occurrence. The dispute had taken place between the parties as a result of which one of the parties had to shift.
Neither the complainant nor Riaz explained injuries found on the person of appellant. Such failure lends support to the argument of the learned counsel for the appellant that the complainants had tried to hide the part played by them in the occurrence. In the circumstances, it is not difficult to agree to the argument of the learned counsel for the appellant that actually the appellant seem to have been attacked by the complainant party and he appears to have acted in self-defence and that both the parties in order to minimise their roles tried to put more burden on the shoulder of the other. In the circumstances, the appellant cannot be held liable for having launched a premeditated murderous assault. His conviction and sentence under section 307, P.P.C. Is set aside.
He is instead convicted under section 308, P.P.C. For having exceeded the right of private defence.
17. The occurrence had taken place in September 1981. Thus, a period of about ten years have already passed. The appellant had remained in jail for some time during trial and had suffered 13 months' R.I. Before he was released on bail's, after suspension of his sentence by this Court. In the circumstances, sentence', already undergone by him plus a fine of Rs.5,000 in default whereof to undergo',, R.I. For six months, in my view, will meet the ends of justice. Order accordingly.' Whole of the fine, on realization, shall be paid as compensation to the were of the' deceased if he had married but if he had not married to his father and if the father is dead, to the legal heirs of the deceased.
18. Normally, sentence of fine of Rs.5,000 is not awarded in such like cases but the same has been done in view of the damage that had occurred to the vertebra of the victim as a result of the injury caused by the appellant.
The fine shall be deposited within 45 days. In case of failure, he shall be caused to be arrested through non-bailable warrants and lodged in jail to undergo the sentence awarded in default of payment of fine. Learned counsel for the appellant has taken the responsibility to inform the appellant to deposit the fine. However, the office shall also inform.