1. Muhammad Nawaz along with Manzoor Ahmad, Munawar Javaid, Muhammad Aslam, Muhammad Niaz alias Naz, and Muhammad Younis was sent up by Police Station Shakargarh, District Sialkot, for trial for an offence under section 302/148/149, P.P.C. Mr. Ala-ud-Din Arshad Nagi, Additional Sessions Judge, Narowal, vide his judgment dated 28-11-1987 gave the benefit of doubt to all, except Muhammad Nawaz (the appellant), and acquitted them. Muhammad Nawaz was, however, found guilty for an offence under section 304, Part I, P.P.C., and sentenced to ten years' R.I. With a fine of Rs.3,000, or in default of payment of fine, one year's R.I. It was further ordered that the fine, if realized, one-half of it shall be paid to the complainant as compensation. The convict has appealed. Complainant Ghulam Hussain has filed a Revision challenging the acquittal of all the respondents for an offence under section 302, P.P.C. Both the matters will be disposed of by this judgment.
2. The prosecution story, in brief, as disclosed in F.I.R. Exh. P.G. Lodged by Ghulam Hussain, was to the effect that on 28-8-1986 at about Peshiwela, he was going back to his house after offering prayers when Manzoor, armed with dagger, Munawar with revolver, Muhammad Nawaz armed with Sota, Muhammad Niaz armed with Sota, Muhammad Aslam with Sota and Muhammad Younis, empty-- -handed, were present near the shop of one Ibrahim. In the meanwhile, first informant's son Muhammad Hussain came to the shop to buy lemon. Muhammad Younis raised a Lalkara that Muhammad Hussain should not be spared because four days earlier he had insulted Ansari Bradari, as he had not allowed them to take a procession in the Mohallah of Gujjar Bradari.
2. Muhammad Niaz gave a Sota blow landing on his right hand finger. Thereafter, Muhammad Aslam caught hold of Muhammad Hussain from his right arm, and Muhammad Nawaz, (appellant) caught him from his left arm, whereupon Manzoor Ahmad gave a dagger blow in the chest. On receipt of the said injury, Muhammad-Hussain fell down. In the meanwhile, Sabir Hussain and Muhammad Ijaz and another came to the spot and witnessed the occurrence. Munawar Hussain started firing in the air in order to scare every one. The injured expired at the spot because of the said injuries.
3. F.I.R. Exh. P.G. Was lodged by Ghulam Hussain, P.W.7, on 28-8-1986 at 5 p.m. At Police Station Shakargarh, which was recorded by Hamid Mehmood, S.I., P.W.10, with regard to an occurrence which had taken place the same day at Peshiwela near the shop of one Ibrahim in village Babarwal Kisana, District Sialkot, 9 miles from the said police station.
4. Malik Hamed Mehmood, S.I., P.W.10, came to the spot and prepared inquest report Exh. PM. He secured the blood-stained earth vide memo Exh. P.H. He recorded the statements of the witnesses at the spot. He found Nawaz appellant in an injured condition and got him admitted in the hospital.
5. He sent the dead body of Muhammad Hussain to the hospital for autopsy. He arrested Younis and Niaz on 7-9-1986. On 12-9-1986 Manzoor accused got recovered dagger P.7 which was secured vide memo Exh. P.F. Aslam, accused got recovered Sota P.4 on 17-9-1986, which was secured vide memo. Exh. P.C. Niaz accused got recovered Sota P.5 which was secured vide memo. Exh. P.D. He arrested Muhammad Nawaz, appellant, on 30-9-1986 when he was discharged from the hospital.
6. Said Nawaz got recovered Sota P.6 on 30-9-1986 while in police custody, which was secured vide memo. Exh.P.E. He got the site plan Exh.P.A. And Exh.P.A./1 prepared from the Draftsman and gave his notes in red ink thereunder. Thereafter, the investigation was entrusted to Abdul Rehman's, Inspector, P.W.11, who on completion of the investigation challaned the accused persons.
7. Dr. Ghulam Safdar,` Medical Officer, D.H.Q. Hospital, Shakargarh, P.W.9, conducted the post-mortem examination on the dead body of Muhammad Hussain, and found the following injuries:-- (1)There was an incised wound 2.5 c.m. x 1.5 c.m. x (?) on the front of left chest 4 c.m. Above the left nipple and 4 c.m. On the inner side of the sternum in the second intercostal space.
8. (2)An incised wound 1.5 c.m. x 2 c.m. x 5 c.m. On the right ring finger on its terminal phallans at its middle.
9. On the same day at 8 a.m., he also examined Muhammad Nawaz appellant and found a lacerated wound 8 c.m. x 1.5 c.m., bone deep on the right side of the skull. On the report of the Radiologist, the said injury was declared grievous as it had caused fracture of the skull.
3. The prosecution in support of its case produced 11 witnesses in all. Muhammad Akram, P.W.1 had prepared site plans Exh. P.A. And Exh.P.A./1 on the direction of the police and pointation of the witnesses. Shaukat Ali, Head Constable, P.W.4 had got sealed parcel containing blood-stained earth, for keeping in the Malkhana, which he kept there intact on 29-8-1986. On 12-9-1986 he was handed over sealed parcel containing dagger, which also he kept in the Malkhana. He handed over all the parcels on 22-9-1986 to Muhammad Yasin, Constable, for onward transmission. Abdul Ghafoor, P.W.6 had witnessed the recovery of Sota P.4 at the instance of Muhammad Aslam, and Sota P.5 at the instance of Niaz accused, as well as Sota P.6 at the instance of Muhammad Nawaz appellant. He had signed all the recovery memos. The ocular account was furnished by Ghulam Hussain and Muhammad Ijaz, P.Ws.7 and 8, respectively. Sabir and Ashraf, eye-witnesses were given up as unnecessary. The doctor who had conducted the post-mortem examination, appeared as P.W.9. The case was initially investigated by Hamed Mehmood, P.W.10, and the challan was submitted by Abdul Rehman's, Inspector, P.W.11.
10. At the conclusion of the prosecution evidence, the appellant was examined without oath wherein he refuted the prosecution allegations and pleaded innocence. In answer to a question he further stated that on the fateful day Muhammad Hussain, deceased, teased one Mst. Hamidan Bibi, sister of Manzoor, acquitted co-accused. On the said day the deceased had brought one Nomi and Akbar alias Tedi a bad character, with him. The deceased cut a filthy joke with Mst. Hamidan who retaliated, whereupon the deceased and his companions tried to drag her while gagging her mouth. She raised alarm, to which the appellant was attracted. She was paternal-aunt of the appellant. The appellant tried to intervene, whereupon Muhammad Hussain gave a Dang blow on his head. Thereafter, he in self-defence and in the defence of his paternal-aunt gave a Chhuri blow, which he was carrying.
4. It was contended by learned counsel for the appellant that the case against the appellant was not proved at all. Submitted that five co-accused of the appellant were acquitted on the same evidence, therefore, he could not be convicted while relying upon the same evidence unless there was some corroboration. Argued that no corroboration was available in the file because the Sota, even if it be accepted, could not furnish any corroboration because the same was not blood- stained. Argued that the defence version was more plausible and the appellant had given his version at the very outset. Submitted that two defence witnesses produced by the appellant, namely, Muhammad Ibrahim and Mst. Hamidan had also appeared before the Investigating Officer, which was duly accepted by Abdul Rehman's, Inspector, P.W.I1. The contentions were opposed by learned counsel for the State. Learned counsel for the complainant in Revision did not choose to appear in spite of the fact that the case was duly notified.
5. I have heard the learned counsel and gone -through the evidence. The ocular account was furnished by Ghulam Hussain and Muhammad Ijaz, P.Ws.7 and 8, respectively. Ghulam Hussain was real father of the deceased, and Ijaz belongs to his Bradari. Both of them were cross-examined at length. As far as the motive is concerned, they stated that the deceased had stopped the appellant side from taking out a procession through his Mohallah. No other witness to substantiate the assertion was produced. It is unimaginable that a boy of 16/17 years (the deceased) could exert such an influence, which would prevent the appellant and his co-accused from taking out the procession. Both the witnesses have not even stated why and for what purpose the procession was being taken out. In the absence of any other evidence, I hold the prosecution has not been able to prove the motive as set up.
11. As far as the occurrence is concerned, both the witnesses had given a detailed account of the occurrence. The only role attributed to the appellant was that he held the deceased from his hand when his co-accused gave an injury on his chest. Both the witnesses did not explain the grievous injuries received by the appellant on his head at the initial stage. However, in Court they stated that the injury was received by the appellant from the hands of Niaz, acquitted co-accused, when he was going to give a Sota blow to the deceased who fell down and accidentally it hit the appellant.
12. They were duly confronted with their earlier statements, wherein this fact had not been mentioned.
13. Even otherwise, it is not possible that six grown-up men would try to waylay a young boy of 16/17 years of age on a trifling matter. Both the witnesses have made improvements to an extent that it renders their statements highly doubtful. They made number of improvements for which they were duly confronted but could not furnish any explanation. In these circumstances, I feel it would not be safe to rely upon their testimony, therefore, the same is ruled out of consideration.
14. The appellant has given a defence version, according to which he had acted in right of self- defence as well as for the defence of his maternal-aunt Mst. Hamidan when the deceased in the company of three others tried to abduct her for illicit intercourse. In support of his defence version he had produced two witnesses as well. Ibrahim, D.W.1 was a shopkeeper in village Kisana Babarwal and the occurrence took place in his presence. According to him, the deceased caught hold of Mst.
15. Hamidan and asked her to accompany him. She retaliated. In the meanwhile the appellant came there. When he tried to intervene he was given a Dang blow on the head by the deceased. The appellant fell down. When the deceased was about to give another Dang blow, the appellant took out a knife and gave a solitary injury to the deceased who fell down. According to him he had appeared before the police along with said Mst. Hamidan and made a statement. The witness was cross-examined at length but nothing was brought on the record to indicate that he had any enmity or ill-will against the complainant side or was a partisan of the appellant. Mst. Hamidan, DW-2 appeared and corroborated the version of D.W.1. She also stated that she had also appeared before the police and got her statement recorded. Statements of both the defence witnesses find corroboration from the statement of Abdul Rehman's, Inspector, P.W.11, according to which both the defence witnesses had appeared before him and he had recorded their statements. In such circumstances, it cannot be said that the defence version is an afterthought.
16. For what has been discussed above, it is held that if the prosecution version is kept at juxtaposition with the defence version, the defence becomes more plausible. Therefore, I hold that the appellant had acted in the right of self---defence and in the defence of his paternal-aunt Mst. Hamidan by giving an injury to Muhammad Hussain, deceased. I find the sentence recorded under section 304, Part I, P.P.C. Is justified. However, I agree with the learned counsel for the appellant that the quantum of sentence is too excessive, therefore, while dismissing the appeal, I reduce the sentence of imprisonment to the period already undergone by the appellant. The sentence of fine is, however, maintained. The appellant shall be released forthwith, if not required in any other case, on payment of fine.
17. For the same reasons, the Revision (Criminal Revision No.532 of 1988) filed by the complainant, also fails which is, accordingly, dismissed.