KHALIL-UR-REHMAN RAMDAY, J.--- Ilyas, his two brothers, namely, Karamat and Shafiq and their father Noor Muhammad were tried by a learned Additional Sessions Judge of Lahore for the murder of one Shaheen, Karamat, Shafiq and Noor Muhammad were acquitted but the learned trial Court vide his judgment dated 8-12-1988, found Ilyas guilty of the said charge and after convicting him under section 302, P.P.C. Sentenced him to death with a fine of Rs.10,000 or sufferance of two years' R.I. In default of payment of the said fine. It was further directed that an amount of Rs.5,000, out of the amount of fine shall be paid as compensation to the heirs of the deceased.
2. Murder Reference No. 252 of 1988 seeks confirmation of the sentence of death awarded to Ilyas convict who in turn, challenges the conviction and the sentences recorded against him through Criminal Appeal No.1249 of 1988.
3. Zulfiqar complainant has filed Criminal Revision No.164 of 1989 and challenges the above- noticed acquittal of Karamat, Shafiq and Noor Muhammad. This petition is, however, still at motion stage.
4. In the occurrence leading to the death of Shaheen deceased above--mentioned, Shafiq and Karamat who were amongst the persons accused of the murder of the said Shaheen and who since stand acquitted, had also allegedly received injuries during the occurrence in question and in respect of the said injuries, the said Shafiq had filed a complaint against Ismail who is a brother of Shaheen deceased, Tariq Mehmood who appeared as P.W.3 in the above--mentioned police case and against Shaheen, the deceased of the said case. This complaint was dismissed through a judgment dated 8-12-1988.
5. The said Shafiq challenged the acquittal of the said Ismail, Tariq and Shaheen (who was probably a respondent only in name as he was the deceased of the occurrence in question) through a Petition for Special Leave to Appeal under section 417(2), Cr.P.C., which leave was allowed and this matter is presently with us as P.S.L.A. No.1 of 1989.
6. Mr. M. Afzaal Siddique, Advocate, appearing for Shafiq appellant in the said P.S.L.A. Has submitted at the very outset that he has instructions :o withdraw the said P.S.L.A.
7. This prayer of the learned counsel is allowed and P.S.LA. No.1 of 1989 is dismissed as withdrawn.
8. The remaining three matters, namely, Murder Reference No.252 of 1988, Criminal Appeal No.1249 of 1988 and Criminal Revision No.164 of 1989 are being disposed of together through this single judgment.
9. The occurrence in question had been reported to the local police by Zulfiqar (P.W.2) who is a brother of Shaheen deceased and who had alleged that the deceased who was about 18 years of age used to work as a tailor in Anarkali and that he had been complaining to the complainant since 3/4 days prior to the occurrence that the Barafwala boys were teasing him but the complainant had not taken the matter really seriously.
10. Zulfiqar complainant had further stated that at about 8-30/8-45 p.m. On the night of occurrence, he was present in the factory of Tariq Mehmood (PW-3) situate on Tajpurra Road when they heard alarm; rushed out and saw that Ismail appellant was holding Chhuris in both hands while Shaheen deceased had a Danda in his hand and the two were facing each other and were just about to attack each other.
11. He further claimed that Tariq P.W. Went forward and clasped Ilyas appellant in his Japha and pushed him aside in which process, Tariq P.W. Even received a minor injury on his hand but Ilyas appellant suddenly launched attack on Shaheen deceased.
12. The complainant had further disclosed that Shaheen deceased had barely straightened his Danda when Karamat and Shafiq also reached the spot in aid of Ilyas appellant and as Karamat accused who came in front of the deceased was empty-handed, Shaheen deceased inflicted two Danda blows on his head and in the meantime Ilyas appellant gave two Chhuri blows on Shaheen deceased out of which, one landed on the right flank and the other on the left flank of the deceased who consequently fell down.
13. Zulfiqar P.W. Had further alleged that he rushed forward and taking the Danda from the hand of the deceased, he inflicted injuries with the same on Karamat accused whereafter Ilyas appellant inflicted a further Chhuri blow on the right thigh of Shaheen deceased. The role attributed to Shafiq accused was that during the occurrence in question, he was truing to hold Shaheen deceased and the complainant in Japha and was exhorting his brothers to kill them.
14. As against this prosecution claim, the defence, through the statement submitted by Karamat accused in writing (Exh. D.C.), had alleged that on hearing alarm at the time of occurrence, he reached the shop of his brother Shafiq accused and saw that Shaheen deceased and Tariq P.W.
Were quarrelling with Shafiq accused and shortly thereafter Ismail, a brother of Shaheen deceased also reached there and it then transpired that Tariq P.W. And Shaheen deceased were demanding certain things from Shafiq accused on credit while Shafiq accused was asking them to adjust the earlier credit extended to the deceased and Tariq P.W. At which, I also intervened and asked the deceased and the said P.W. To first pay back the earlier loan and only thereafter shall they get further credit. Karamat had further claimed that Shaheen deceased, Tariq P.W. And Ismail alias Prince went away saying that the outstanding credit would soon be adjusted and that a few minutes later, Tariq P.W. And Shaheen deceased; armed with iron Pattis and Ismail alias Prince armed with an iron Sua emerged from the factory of Tariq P.W. And after entering the shop of Shafiq accused brought him out whereafter Ismail alias Prince inflicted an injury on Shafiq accused with his Sua; Karamat accused intervened to save Shafiq at which he was attacked by Tariq P.W.
And Shaheen deceased; Ilyas appellant reached there in the meantime and when he tried to check the assailants, they tried to catch him also at which, Ilyas appellant picked up a Churri from his shop and inflicted injuries on the person of Shaheen deceased in his own defence and in the defence of his brothers Karamat and Shafiq accused.
15. Karamat accused had further narrated certain instances regarding the partial conduct of the local police and investigation and finally stated that they were all innocent.
16. The other accused persons including Ilyas appellant had adopted the stance taken by Karamat accused. ,
17. It will thus be noticed that the parties are not at any serious issue with respect to the time and the place of occurrence as also on the question that Shaheen deceased had met his death at the hands of Ilyas appellant.
18. The only question which is in dispute between the two sides and which requires resolution is whether Shaheen deceased had received the injuries in question in the manner alleged by the prosecution or in the manner claimed by the defence.
19. The learned counsel for the appellant contended that the F.I.R. Had been recorded after a considerable delay and after deliberations and consultations; that the said F.I.R. Had been registered after preliminary investigations; that the eye--witnesses produced by the prosecution were not reliable as they had made material improvements while making their statements at the trial; that they had suppressed the injuries on the person of Shafiq and Karamat accused; that the prosecution had not alleged any specific motive at the trial; that the occurrence had taken place near the shop of Ilyas appellant and his brother Shafiq accused and finally that the defence plea was not only reasonable but was even more plausible as compared to the prosecution version of the occurrence in question and that in the circumstances, the appellant deserved to be acquitted.
20. Zulfiqar complainant and Ali Naqi A.S.I. (P.W.10) had claimed that the complainant's statement Exh. PA. Had been recorded at the railway crossing of Tajpurra at 8-55 p.m. On 25-10-1985.
21. In his cross-examination, however, Zulfiqar (P.W.2) admitted that he was the one who had taken Shaheen deceased to the police station in a rickshaw `where he had stayed back and his father had taken Shaheen deceased to the `hospital in an injured condition and it was after 2.00 p.m. The next day that his -statement had been recorded by the Thanadar, namely, Ali Naqi Shah. As against 'this, the stance of Tariq (P.W.3) was that after the occurrence in question when the police arrived at the scene of occurrence, they first inspected the spot and then came to his workshop where the statements of the P.Ws. Including that of Zulfiqar complainant was recorded. To the same effect was the admission of Ishtiaq (P.W.4) who had also admitted in his cross-examination that the statement of Zulfiqar complainant was recorded in the factory of Tariq P.W. And that it was the original and the first statement made to the police in which the 'entire occurrence had been explained minus the role of Noor Muhammad accused which had been stated subsequently through a supplementary statement.
22. The fact of the transportation of Shaheen deceased to the hospital also suffers from similar discrepant claims made by the various eye-witnesses.
23. His brother Zulfiqar complainant claimed that he put Shaheen deceased in a rickshaw and took him straight to the police station from where, he was taken to the hospital by their father. Tariq P.W.
Stated that Shaheen deceased had been 'Taken to the hospital by his brother Ismail alias Prince and was supported only by Ishtiaq (P.W.4) on this aspect of the case. On the contrary, Ali Naqi A.S.I./I.O. (P.W.10) had asserted that Shaheen deceased was with Zulfiqar complainant when he met the A.S.I. At the railway crossing of Tajpura and it was from there that the A.S.I. Had sent Shaheen deceased to the hospital with Muhammad Ilyas Constable.
24. From the above contradictory and mutually destructive claims of the various eye-witnesses with respect to the time and the place of the recording of the F.I.R. And the carriage of Shaheen deceased to the hospital, it appears that the F.I.R. Had not been promptly lodged as, when and where claimed by the prosecution but the same had been recorded after a considerable delay and obviously after deliberations and mutual consultations.
25. The eye-witnesses had made material improvements while deposing about the occurrence in question before the learned trial Court.
26. As per the F.I.R., Karamat accused was empty handed and so was Shafiq accused.
27. But at the trial, two Chhuris were planted in both hands of Karamat accused who was then also alleged to have given three injuries in the abdomenal area of Shaheen deceased.
28. This had perhaps been done to take advantage of six injuries detected by Doctor Saeed (P.W.16) who had conducted the post-mortem examination of Shaheen deceased without realizing that as per the same doctor and his post---mortem examination report, three out of these six injuries were the surgical wounds resulted by the operation of the deceased and that the only injuries received by Shaheen deceased during the occurrence in question were the three wounds attributed to Ilyas appellant.
29. At the trial, a Danda was also given in the hand of Shafiq accused who was alleged to have inflicted an injury also with the said Danda. This was again in clear contradiction of the original stand taken by the prosecution through the F.I.R. In question `'
30. The complainant had very innocently stated in the F.I.R. That Shaheen deceased had given two Danda blows on the head of Karamat accused and Zulfiqar complainant had likewise given one injury on the person of Karamat accused with the same Danda but Doctor Qamar (P.W.12) had found eight blunt weapon injuries ion the person of Karamat accused. He had also found a penetrating lacerated wound on the left nipple of Shafiq accused alongwith an abrasion on the back of his left forearm.
31. The injuries on the person of Shafiq accused had been completely suppressed by the prosecution whereas the nature and the number of injuries received by Karamat accused had been materially minimised.
32. In view of the above discussion of the eye-witnesses and in view of the analysis of their statements, we are of the view that the eye-witnesses, out of whom one, namely, Ishtiaq (P.W.4) had not even been mentioned in the F.I.R., were not reliable and their testimony did not inspire confidence.
33. The occurrence in question had taken place near the shop of Ilyas appellant and Shafiq accused and there was no specific explanation by the complainant of Shaheen deceased being present there at the time of occurrence.
34. No reliance could be placed on the F.I.R., which was a delayed document and which had been recorded after preliminary investigation, deliberations and discussions.
35. Similarly untrustworthy are the three eye-witnesses whose testimony could not be considered of the standard, which could be sufficient for proof of a criminal charge.
36. The defence had claimed that it was Shaheen deceased and others who had come to the shop of Shafiq accused who is a brother of Ilyas appellant and it was there, that the occurrence in question had taken place in pursuance of a quarrel on adjustment of loan and alter the complainant party had initiated aggression against the accused party and had injured Shafiq accused with a Sua and Karamat accused with infliction of eight blunt weapon injuries on head, chest and other parts of his body.
37. The penetrating wound found on the front chest of Shafiq accused is obviously the result of an injury inflicted by a weapon of the kind of a Sua and as has been noticed above, the occurrence had taken place near the shop of Shafiq accused and Ilyas appellant.
38. The F.I.R. Itself had claimed that when Zulfiqar complainant and Tariq P.W. Entered the scene, Ilyas appellant armed with Chhuris and Shaheen deceased armed with a Danda were facing and just about to attack each other. Tariq P.W. Then allegedly held Ilyas appellant in a Japha and pushed him aside but the said Ilyas appellant suddenly attacked Shaheen deceased. Even at this stage, the narration of events in the F.I.R. Discloses that Ilyas appellant had not initiated infliction of injuries on the person of Shaheen deceased till Shaheen deceased had inflicted two Danda blows and Zulfiqar complainant had inflicted further Danda blows on the person of Karamat accused.
39. Having thus scrutinized the entire material available on record, we find that the defence plea is not only reasonable but is in the circumstances more plausible than the prosecution story when the two are juxtaposed.
40. Consequently, we find that the possibility of the right of self-defence having accrued to Ilyas appellant and he having acted in exercise of the said right, cannot be ruled out and we accordingly hold that Ilyas appellant had inflicted the injuries -on the person of Shaheen deceased in defence of his person and the persons of his two brothers, namely, Karamat and Shafiq but he appears to have exceeded the right which had thus accrued to him.
41. Consequently, the conviction and the sentences recorded against Ilyas appellant under section 302, P.P.C. Are set aside.
42. He is, however, found guilty and convicted under section 304, Part I of the P.P.C. And is sentenced to ten years' R.I. With a fine of Rs.2,000 or to suffer six months' R.I. In default of payment of this fine. He is also allowed the benefit of the provisions of section 382-B, Cr.P.C. And since we have held that the occurrence in question had been the result of the initiation caused by the complainant party, therefore, the heirs of the deceased shall not be entitled to any compensation.
43. Murder Reference No.252 of 1988 and Criminal Appeal No.1249 of 1988 are disposed of in the above terms and for the reasons abovementioned, Criminal Revision No.164 of 1989 is also dismissed.
44. As has been mentioned above, P.S.L.A. No.1 of 1989 has been dismissed as withdrawn.