1. SARDAR MUHAMMAD DOGAR, J.--- Said son of Ahmad was murdered on 6-10-1989 at 4-30 p.m. In Kila No.3 of Square No.8 in the area of Chak No.214/JB, at a distance of 1 furlong from Police Station Mochiwala, District Jhang. F.I.R. Exh.P.E. Was lodged by his uncle Muhammad P.W.8 on the same day, at the police station at 4-35 p.m.
2. According to F.I.R. The complainant was sitting at the Dhari of the deceased alongwith P.Ws. Manak and Abdul Sattar. The deceased had gone to Kila No.3, shortly before the occurrence, for cutting fodder. He was attacked soon after he had reached there, by Zafar alias Pappu with a knife, after raising a Lalkara that he had come there to avenge the quarrel that took place amongst them in the early hours of the day. Said succeeded in warding off the first blow with his right hand. However, the second blow given by War struck him on the chest, as a result of which he fell 'down and died.
3. War ran away.
2. The deceased had gone to Gojra Moar in the early hours of the day, alongwith his brother Fazal on a tractor. They had met Zafar there and told him not to visit their Chak in future, whereupon he had quarrelled with them, and they had grappled with each other. Zafar while leaving, had threatened that he will avenge the insult. That incident led to the main occurrence.
4. 3: Ashiq Ali, S.H.O. P.W.10 who had registered the F.I.R., reached the spot and despatched the dyad body for post-mortem examination after preparing necessary papers. Blood-stained earth was collected by him from the spot vide memo. Exh.P.F. He arrested the accused on 16-10-1989. As the accused was in injured state, he got him medically examined from Dr. Muhammad Shakoor, on the same day. Knife P,3 got recovered by the accused on 25-10-1989 from his house, was taken into possession by him vide memo. Exh.P.G. Challan was submitted to Court after completion of necessary investigation.
4. Learned Sessions Judge, Jhang who had tried Zafar, convicted him under section 302, P.P.C., after recording statements of ten P.Ws. And his own statement under section 342, Cr.P.C. And sentenced him to death plus to pay a fine of Rs.30,000 in default whereof to undergo S.I. For six months, vide judgment dated 14-3-1990. Half of the fine, on realization, was directed to be paid as compensation to the heirs of the deceased.
5. The appeal filed by the convict and the reference made by learned trial Judge for confirmation of death sentence, are being disposed of together.
6. Dr. Arshad Munir who had performed autopsy on 7-10-1989 at 10-00 a.m. Had noted a stab wound 2 c.m. x 0.6 c.m. x 13 c.m. On front of left chest, 10 c.m. Above the left nipple and 13 c.m.
5. Lateral to sternum menubria.
6. According to his opinion, death had occurred due to the above-noted injury. The said injury was opined to have been caused with a sharp-edged weapon. Time between the injury and death was opined to-be immediate while the time between death and post-mortem was opined to be about 14 to 22 hours.
7. Dr. Muhammad Shakoor who had medically examined the appellant on 16-10-1989, appeared as P.W.2. He had noted following injuries on his person:--
(1) An almost healed laceration of the size 5 c.m. x 1 c.m. x skin deep on the back and middle part of left forearm.
(2) An almost healed laceration 3 c.m. x 1 c.m. x skin deep on the back of left forearm, 7 c.m. From left wrist joint.
(3) A partially healed incised wound 1 c.m. x 1/2 c.m. x muscle deep on the back of left hand 2 c.m.
7. Away from injury No.3.
(4) A partially healed incised wound 2 c.m. x 1 c.m. x muscle deep on the back of left hand 2 c.m.
8. Away from injury No.3.
5. A septic incised wound 2-1/2 c.m. x 1 c.m. x muscle deep on the back of right hand 4 c.m. From right wrist joint.
(6) An almost healed incised wound of size 1 c.m. x 1/2 c.m. x muscle deep on the back of right hand 3 c.m. Below injury No.5.
9. All the injuries, which were opined, to have been caused, within a duration of 10 to 12 days, were declared simple. Injuries Nos.1 and 2 were opined to have been caused with a blunt weapon while the rest were opined to have been caused by a sharp-edged weapon.
10. Ocular account was deposed to by Muhammad P.W.8 and Manak P.W.9.
11. Muhammad, while repeating the facts given by him in the F.I.R., also claimed to have witnessed the collection of blood-stained earth from the spot and recovery of knife P.3 at the instance of the appellant from his residential house.
12. During cross-examination he admitted that Manak P.W. Was uncle of the deceased and his cousin.
13. While admitting that Waryam Lumberdar had got a case registered against him, Manak P.W. And others under section 307, P.P.C., he expressed ignorance about his being maternal-uncle of the appellant. He admitted (hat he had not produced Fazal brother of the deceased and the proprietor of the Petrol Pump from where the deceased had purchased diesel at Gojra Moar, during the investigation, to depose about the incident of quarrel that had taken place between the deceased and the appellant at Gojra Moar, early in the morning on the day of occurrence. According to him they were sitting at a distance of 90 Karams when the occurrence had started and were at a distance of 20 Karams when the accused had given the knife blow. He stated that the deceased had not received injury when he had warded off the first blow with the right hand. He denied the suggestion that the appellant had illicit relations with one Mst. Zubaida of their Chak and the deceased also wanted to cultivate illicit relations with her, and on that account he bore grudge against the appellant. He also denied the suggestion that the deceased had launched attack on the accused with a sickle and caused him injuries when the latter was passing from near the place of occurrence and that the accused had given a blow with a pocket-knife in self-defence, to the deceased. He admitted that father and brothers of the appellant were living in the same house from where the knife was recovered. He also admitted the fact that no resident of Chak No.213 was associated in the recovery proceedings. He denied the suggestion that he had made a false statement about the occurrence as well as about the recovery of knife, at the instance of the appellant.
14. Manak P.W.9 while corroborating the statement made by P.W.8 about the actual occurrence, admitted during cross-examination that the deceased was son of his sister. According to him, some other persons, apart from him, Muhammad and Sattar, had also reached the spot and witnessed the occurrence. He stated that they had not tried to apprehend the accused. He admitted that his brother Mutalli had got a case registered against father of the accused and Waryam etc. Under section 307, P.P.C. But stated that he did not know if he was a witness in that case. He also admitted that Waryam had got a case under section 307, P.P.C. Registered against him, his brother and Muhammad P.W. However, he added that both the cases were compromised.
15. He expressed inability to state relationship between Waryam and the appellant. He denied the suggestion that he had not witnessed the occurrence.
16. Ashiq Ali, S.H.O. Who had registered the case, arrested the appellant, got him medically examined from the doctor and submitted challan to Court after recovery of knife at his instance, appeared as P.W.10 and gave those details. During cross-examination he admitted that if one had to go to Chak No.213 from the metalled road he had to pass through Chak No.214: He admitted that no eye- witness of the incident of quarrel that allegedly had taken place early in the morning between the accused and the deceased, was produced before him. He stated that the accused after arrest, had declared in his first version that he had illicit relations with Mst. Zubaida and that the deceased also wanted to cultivate relations with her, and bore grudge against him. He stated that Waryam Lumberdar who was maternal-uncle of the accused had produced him (accused) before him on 16-10-1989.
17. The statements of the remaining P.Ws. Are more or less of a formal nature.
18. The appellant during his statement under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. He stated as follows in answer to the question, `have you anything else to say':--- "I am innocent. In fact the deceased had attacked me with sickle and injured me. Seeing my life in danger, I only gave solitary blow with a pocket knife in-order to save my life."
19. He declined to make statement on oath under section 340(2), Cr.P.C. But produced copies of, 3 F.I.Rs. And copy of pedigree table, in defence.
20. Learned counsel for the appellant after having taken us through the evidence, criticised the impugned judgment and contended that the eye--witnesses do not appear to have witnessed the occurrence; that no recovery had been effected from the appellant and that the version put forth by him was more probable and nearer the truth. Learned counsel contended that evidence of the appellant having been found injured, lends complete support to the version put forth by him.
21. Learned counsel for the State defended - the judgment of the trial Court.
22. In the case the appellant while pleading self-defence put forth his own version, while making statement under section 342, Cr.P.C. He had suggested his version of the occurrence to both the eye-witnesses. Since it is a case of two versions, both the versions have to be examined in juxtaposition so as to find out as to whether the prosecution version bears truth or the version put forth by the defence was more probable and nearer the truth.
23. The appellant on being arrested on 16-10-1989, was found injured. The S.H.O. Got him medically examined on the same day. He was found to have suffered 4 incised wounds and two lacerations by Dr. Muhammad Shakoor P.W.2. The injuries were opined to have been caused between 10 and 12 days. The period tallies with the time and date of the occurrence. The prosecution failed to explain injuries of the appellant. Learned counsel for the State, however, argued that he might have suffered injuries during the incident that took place' early in the morning. If that had been so, the prosecution should have come forth with that plea. None stated that the deceased or his brother had caused him injuries in the incident that took place early in the morning. The failure of the prosecution to explain the injuries found to have been suffered by the appellant, shows that the prosecution had hidden some aspect of the occurrence.
24. Both the eye-witnesses were closely related to the deceased. None of them was himself a witness of the incident that allegedly had taken place early in the morning at Gojra Moar. The brother of the deceased, who 'allegedly, was accompanying him at that time, was not produced during the investigation. According to P.W.8 they were sitting at a distance of 90 Karams from the place of occurrence when the occurrence had started. They could not have heard the talk between the deceased and the appellant from such a long distance. The claim of both the eye-witnesses, therefore, that they had heard the appellant telling the deceased that he had come to avenge-the insult that he had done, early in the morning at Gojra Moar, cannot be given any serious thought. It was stated by P.W.9 during cross-examination that apart from himself, P.Ws. Muhammad and Sattar, some other persons had also reached the spot and witnessed the occurrence. Had so many persons reached the spot, they would not have found in difficult to catch the appellant, who was armed only with a knife. Their failure to have done so leaves an impression behind that they might not have been at the spot, as claimed.
25. The appellant not only challenged the witnesses during cross-examination that the occurrence had taken place in a different manner and that he had acted in self-defence, but also made a forthright statement in that regard. He had, not only done that, but had also given the background of unhappiness with the deceased at the time of arrest, as well. The medical evidence of his having been found injured, further lends support to the version put forth by him. As noted earlier the prosecution did not come forth with any explanation about his injuries.
26. In the circumstances, we find weight and substance in the version put forth by the appellant. The prosecution version is full of doubts and not worth acting upon. The conviction of the appellant under section 302, P.P.C is therefore, set aside.
27. However, we are of the view that the appellant exceeded the right of private defence by thrusting the knife right in the chest of the deceased with a force, which he must have known, will result in death. We believe, he could have saved himself by doing a lesser harm. He is, therefore, held guilty of having committed culpable homicide not amounting to murder, and is g convicted under section 304, Part I, P.P.C. He is sentenced to undergo R.I. For 7 (seven) years plus to pay a fine of Rs.10,000 (Rs. Ten thousand), in default whereof to suffer R.I. For one year. Whole of the fine, on recovery, shall be paid as compensation to the heirs of the deceased. The appellant shall also be given benefit of the provisions of section 382-B, Cr.P.C.
28. Death sentence not confirmed.
29. N.H.Q./Z-34/L revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.