' Muhammad Ashiq alias Babu appellant was tried alongwith his brothers Muhammad Yaseen and Muhammad Arif alias Boodi, the acquitted co-accused, by a learned Additional Sessions Judge at Lahore for the murder of Muhammad Ejaz. On the conclusion of the trial, vide his judgment, dated 7-11-1987, the appellant was convicted under section 304, Part I, P.P.C. And sentenced to imprisonment for seven years and a fine of Rs,10,000 or in default to further undergo one year's S.I.
The fine, if recovered, was directed to be paid to the legal heirs of the deceased. His brothers and co-accused were, however, acquitted on benefit of doubt.
2. The prosecution case in brief was that Muhammad Ejaz (deceased) used to sell `Gandaris' on his push-cart ({{URDU TEXT) near canal bridge Fateh Garh, Lahore. His brother Muhammad Nawaz alias Shafi, who was a Railway employee, also used to go there after duty hours to help him. On 29- 10-1985 at about 4-00 p.m., when Muhammad Riaz P.W., the first informant, was present in his house, Muhammad Nawaz alias Shafi aforesaid came and told him that Muhammad Arif alias Boodi and Muhammad Ashiq alias Babu visited their `rehri' daily and took away `Gandaris' without paying the price. He further told him that on that day both of them had come as usual and on the refusal of Muhammad Ejaz (deceased) to oblige them, they had left the place after extending threats to teach him a lesson for not satisfying their demand. Hearing this, Muhammad Riaz, the first informant, accompanied by his brother Muhammad Nawaz alias Shall and his sister's husband also known as Muhammad Riaz, went towards the place where Muhammad Ejaz (deceased) used to park his push-cart ({{URUD TEXT}}). When they reached at a distance of about 10 yards away from that place, they saw Muhammad Yasin, Muhammad Arif alias Boodi co-accused armed with `chhuris' and Muhammad Ashiq alias Babu empty-handed, coming there. Having reached near the `rehri', Muhammad Ashiq alias Babu appellant raised flalkara' and immediately held Muhammad Ejaz in his clasp, while Muhammad Yaseen inflicted a `chhuri' blow on his abdomen followed by Muhammad Arif alias Boodi who inflicted a blow with his `chhure also on the abdomen of the victim. As a result of these injuries, Muhammad Ejaz fell down on the ground and the assailants escaped from the place of occurrence. Muhammad Riaz and his brother Muhammad Nawaz alias Shall removed their injured brother to Mayo Hospital in a wagon where he was examined by Dr. Munir Ahmad P.W. Meanwhile S.I. Bahadur Khan P.W., on the receipt of the news of the occurrence, reached the hospital and tried to record the statement of the injured but the doctor declared him unfit for that purpose and then he recorded the statement of his brother Muhammad Riaz and made it a basis for the registration of the case. The case was initially registered under section 307/34, P.P.C. But on the death of the injured on 4-11-1985 it was converted into the one under section 302/34, P.P.C.
3. During the course of investigation all the three accused were arrested on 31-10-1985. On 1-11-1985 Muhammad Arif alias Boodi led to the recovery of blood-stained 'dagger' (P.4) from his house. On the death of the deceased in the hospital the Investigating Officer got the autopsy carried out from Dr. Saeed Ahmad P.W. On 12-11-1985 Muhammad Yaseen accused led to the recovery of `chhuri'.
After the completion of investigation, all the three accused were sent up to the Court of Session for trial.
4. On the commencement of the trial the appellant and their co-accused were charged under section 302/34, P.P.C. For the murder of Muhammad Ejaz and, on their pleading not guilty, the prosecution produced as many as 15 witnesses.
5. To be a little more precise, A.S.I. Muhammad Mansha (P.W.1), F.C. Nasim Khan (P.W.2), H.C.
Muhammad Yaseen (P.W.3), F.C. Muhammad Rafique (P.W.4), F.C. Aman Ullah (P.W.5), Inam All Shah (P.W.7) and Muhammad Hussain Record Keeper, Mayo Hospital (P.W.12) were the formal witnesses and their evidence needs no detailed discussion.
6. Muhammad Riaz son of Mahmood-ul-Hassan (P.W.6) and Muhammad Riaz complainant son of Inayat Ullah (P.W.9) gave the eye-witness account as reflected in the above narration of the prosecution story.
7. Dr. Saeed Ahmad (P.W.8), who had conducted post-mortem examination on the dcadbody of Muhammad Ejaz, proved the post-mortem report (Exh.P.8) and the diagram of injury (Exh.P.8/1), after giving the details of 12 injuries, out of which seven were scabbed abrasions, one on the nose tip, one on the front of neck, two on the right elbow, and one on the left elbow, while the remaining four were wounds in the abdominal region, one of them being a stitched wound besides one vene section wound on the lower part of the right leg. On dissection he found abdominal peritoneum stitched at two places and stomach at one place besides the terminal end of the small intestine.
The cause of death, according to him, was the complication of injury No,2 which was a wound 2 c.m. Long with scabbed margins obliquely placed 1 c.m. Above and right to umblicus, with upper end joining injury No,1 on 5th c.m. Below its upper angle. The duration between the injury and death was 5 to 7 days and between the death and post-mortem examination from 18th to 24 houRs,
8. Muhammad Javaid (P.W.10) and Asad Mahboob (P.W.11) had witnessed the recovery of `chhuri' at the instance of Muhammad Arif alias Boodi co-accused and Muhammad Yaseen co-accused, respectively. They deposed accordingly. S.I. Bahadur Khan (P.W.13) gave the details of investigation, Dr. Muhammad Naeem Siddiqui (P.W.14) proved the operation notes as he had conducted the operation of the injured. The last witness was Dr. Munir Ahmad (P.W.15), he proved the medico-legal report of Muhammad Ejaz (Exh.P.M.).
9. Muhammad Nawaz alias Muhammad Shafi P.W. And Muhammad Arif P.W. Were given up as unnecessary.
10. The appellant and their acquitted co-accused, while examined under section 342, Cr.P.C., denied the incriminating circumstances Figuring against them in the prosecution evidence and alleged their false implication. Muhammad Ashiq appellant, however, admitting his participation, stated that on the day of occurrence, the deceased hurled an iron-weight on him which struck his mouth as a result of which his two teeth were broken and when he was about to throw another iron-weight, he apprehended grievous injury and picking up the `chhuri' from his `rehre, with which the deceased cleaned sugarcane, gave a blow with it to the deceased in self-defence. He stated that his co-accused, who were his real brothers, were not present. He examined Dr. Tahir Ances of D.H.Q. Bhakkar in his defence as (D.W.1). The doctor deposed that on 31-10-1985 when he was posted as Deputy Police Surgeon, Lahore, he had at 8-30 p.m. Medically examined Muhammad Ashiq son of Shah Din who had been brought to him by F.C. Bashir Ahmad No,1835 of Police Station Mustafa Abad, Lahore and found his mid upper lip mucosa in the area of 2 x 1 c.m. Congested lacerated and in a bluish colour. According to him, the injury had been caused a few days earlier with a blunt weapon and it was kept, under observation and referred to Dental Surgeon for opinion.
He proved the M.L.R. (Exh.D.A.). In reply to a question of cross-examination, he stated that his injury was not likely to be caused by striking against a hard surface.
11. On the conclusion of the trial when the co-accused were acquitted, the appellant was convicted and sentenced in the manner aforesaid and aggrieved by the impugned judgment, he came up in appeal to this Court.
12. It was argued on behalf of the appellant that there was no truth in the prosecution story, particularly in its motive part, and for that reason it was disbelieved by the learned trial Judge.
According to the learned counsel, the appellant had purchased `gandaris' from the deceased and since he had given short weight, he objected to it and during the controversy the latter flared up so much that he picked up iron-weight, with which he was weighing `gandaris', and threw it on the mouth of the former as a result of which his two teeth were broken. He contended that the deceased did not stop there and picking up another iron-weight when he wanted to hit him again, the appellant apprehending grievous injury, picked up the `chhuri' from the deceased's 'rehri' and gave a blow with it on his abdomen in the exercise of his right of self-defence. In his opinion, the appellant committed no offence.
13. On the other hand, it was contended on behalf of the State that the defence story was concocted by self-suffering the tooth injury and making out a false defence and the appellant had already been dealt with leniently by the trial Court in the matter of sentence. In his view, in the motive part the prosecution version stood amply proved and it was in fact a pre-meditated murder.
14. Muhammad Nawaz alias Muhammad Shafi, who was given up as an unnecessary witness, was an important witness in this case as only he could prove the motive part of the prosecution story but he was given up by the prosecutor for the reasons best known to him. Therefore, the motive was rightly held by the learned trial Judge as not proved. Even otherwise there seems to be no substance in it because the appellant and his three brothers, who were carrying on their own business and were not mere urchins, would not come to the `rehri' of the deceased daily from a distance of about half-a-mile or so only to get some quantity of `gandaris' gratis from him by way of an exaction known as Goonda tax.
15. What had actually seemed to have happened was that the appellant and the deceased fell out with each other, may be on account of the latter's improper weighing of Gandaris, and the controversy ended in the mishap on the spur of moment without any premeditation.
16. To me the defence version also does not appear to be the whole truth. If the iron-weight had been thrown on the mouth of the appellant with such a force that it had broken two right upper incisors, the upper lip would have been extensively injured but there was only a congestion of its mucosa in a very small area. The appellant, as it appears from the deposition of Dr.Tahir Anees (D.W.1), was referred to the Dental Surgeon for opinion but he never went there. It was only the Dental Surgeon who could really determine the nature of the injury and the manner in which it was caused. To my mind, the injury was fabricated with a view to make out a defence.
17. However, even if the defence version of the occurrence was correct, even then the appellant, in my opinion, had exceeded the right of private defence for which he had to be convicted and adequately punished and no fault can be found with the findings of the trial Court for that reason too.
18. In view of the above, there is no substance in the appeal and the same is dismissed.