' Abdul Sattar alias Billa son of Sardar Ali (29) alongwith his real brother Riaz Ahmad (22) was tried by Additional Sessions Judge, Faisalabad, for the murder of Irshad Ali (27). Learned trial Court vide its judgment dated 29-7-1990 gave the benefit of doubt to Riaz Ahmad and acquitted him. Abdul Sattar was, however, found guilty under section 302, P.P.C. And sentenced to imprisonment for life with a fine of Rs,5,000, or in default one year's R.I. He was further directed to pay compensation of Rs,10,000 to the legal heirs of the deceased4 or in default, to suffer six months' rigorous imprisonment. The convict has appealed. This judgment shall dispose of the same.
2. Prosecution story in brief, as disclosed by Noor Muhammad, P.W. Father of the deceased, in F.I.R.
Exh.P.A. Was that on 8-4-1988 at about 10-30 a.m., first informant with his brother Bashir Ahmad, his son Irshad Ali, with Allah Rakha were going back to their home from hospital after seeing Mst.
Bashiran Bibi, injured, wife of Allah Rakha, on their cycles. On one cycle, first informant and Bashir Ahmad were riding. The other cycle was being driven by Irshad Ali and Allah Rakha was sitting behind him. Suddenly Abdul Sattar with his brother Rfaz came on a bicycle. After some time, Riaz and Abdul Sattar stopped the cycle of Irshad Ali. Riaz caught hold of Irshad Ali from his arms and raised a Lalkara that he should be taught a lesson for having fractured the arm of their mother Mst.
Rashidan Bibi. Abdul Sattar accused took out a knife and gave a blow on the neck of Irshad Ali who fell down. The first informant and his companions tried to apprehend the assailants but they were threatened. After the commission of the offence both of them ran away from the spot. Motive for the occurrence was that a day earlier, the womenfolk of both the families had quarrelled.
Resultantly, arm of Mst. Rashidan Bibi, mother of the appellant, was fractured and hand of Mst.
Bashiran Bibi, wife of Allah Rakha, P.W., was also fractured.
' The occurrence took place on 8-4-1988 at 10-30 a.m. Near Mohallah Hajiabad, Sheikhupura Road, three K.M. From Police Station Sargodha Road, Faisalabad. F.I.R. Exh.P.A. Was lodged by Noor Muhammad, father of the deceased, which was recorded by Muhammad Yaqub, S.I., C.W.5 on 8-4- 1988 at 11-15 a.m.
' Muhammad. Yaqub, S.I. C.W.5 after recording the F.I.R. Exh.P.A. Went to the spot and prepared injury statement Exh.P.E. And inquest report Exh.P.F. Of the deceased and then sent the dead body for post-mortem examination. He took into possession Eagle` Cycle P.2 from the spot vide memo.
Exh.P.H. He arrested Abdul Sattar accused on 9-4-1988. On the same day the appellant got recovered brief-case P.6 he was carrying, which was secured vide memo. Exh.P.C. He got recovered Chhuri P.1 from the brief-case P.6. He got prepared site plan Exhs.P.D. And P.D./1 from the Draftsman and gave his notes in red ink thereunder. After completion of investigation, he challaned the accused.
' C.W.4 Dr. Abdul Sattar, S.M.O. D.H.Q., Hospital, Faisalabad, informed that the post-mortem examination was conducted in this case by Dr. Muhammad Yaseen who had since died. He identified the handwriting and signatures of the said doctor and stated that on 8-4-1988 at 2-30 p.m. He conducted the post-mortem examination on the dead body of Irshad Ali and found a stab wound 1-3/4 c.m. x 1-1/4 c.m. On the left lateral side of neck in lower part going deep inward and downward cutting the muscles on way cutting the left carotid artery perforating the pleura and puncturing the inner side of upper part of right lung. In the opinion of the doctor, the death had occurred due to shock and haemorrhage caused by the injury which was sufficient to cause death in ordinary course of nature.
' The complainant had got a case registered against the appellant and his brother Riaz Ahmad.
During investigation, the police declared said Riaz innocent and did not challan him. Therefore, the complainant filed a complaint, on which process to the accused persons was issued after preliminary inquiry. In view of law declared by their Lordships of the Supreme Court, trial was conducted in the complaint case first and the witnesses mentioned in the challan case, some of them were examined as C.Ws.
3. Prosecution in support of its case had produced four P.Ws. And five C.Ws. Ocular account was furnished by Noor Muhammad, Mst. Bilqees Bibi and Allah Rakha, P.Ws.1, 2 and 3, respectively. The doctor who had conducted the post-mortem examination on the dead body had since died. Dr. Abdul Sattar, C.W.4 proved the post-mortem report. C.W.1 Aurang Zaib, Draftsman had prepared site plan Exhs.P.D. And P.D/1. Akbar Ali, M.H.C., C.W.2 had kept the sealed parcels in the Malkhana for safe custody. C.W.3 Akbar Ali, Constable, had delivered the sealed parcels in the office of Chemical Examiner, Lahore. The case was investigated by Muhammad Yaqub, S.I. C.W.S. ' At the conclusion of prosecution evidence, the appellant was examined without oath, wherein he refuted the prosecution allegation and pleaded innocence. He, however, did not produce any defence evidence or appeared in his defence on oath.
4. It was contended by learned counsel for the appellant that the case against the appellant was absolutely false and the occurrence did not take place in the manner alleged by the complainant or his witnesses. Submitted that acquittal. Of Riaz Ahmad establishes beyond doubt that the prosecution had not come out with the whole truth and all the witnesses have been discredited qua him. It was, however, submitted that Abdul Sattar appellant was present at the spot, and he acted in the right of private defence. When Irshad Ali, deceased, attacked him, he picked up a knife from a nearby Rehri and inflicted a solitary blow which proved fatal. Lastly, it was contended that in such circumstances, reduction in sentence would be essential in the interest of justice. The contentions were opposed by learned counsel for the State.
5. I have heard the learned counsel and gone through the evidence with the assistance of the learned counsel for the appellant. Ocular account was furnished by Noor Muhammad, Mst. Bilqees and Allah Rakha, P.Ws.1, 2 and 3, respectively. They were put to the test of cross-examination. They have made material improvements. As far as Mst. Bilqees, P.W., is concerned, she was not mentioned in the F.I.R. As one of the eye-witnesses, therefore, it may not be safe to rely upon her testimony. As far as the other witnesses are concerned, they have given a plausible explanation of their presence at the spot. There is no doubt that they are interested witnesses, inasmuch as they were related to the deceased and had positive enmity with the appellant side. The motive which led to the present occurrence also indicates hostility between the parties. It is difficult to believe that the occurrence took place in the manner as asserted by the prosecution, for the reason that if so many of them had gathered, they could easily apprehend the assailant at the spot, which was not done in the instant case nor an attempt was made to do so. On the other hand, the chances that the appellant and the deceased exchanged hot words whereupon the appellant picked up a knife from a nearby Rehri and inflicted a blow, appear to be more plausible. It has come in evidence that it was a busy street with so many shops and Rehris around the spot. It is possible that after inflicting the injury the appellant decamped from the spot without affording to anybody a chance to chase him. In these circumstances, I feel the case falls under section 304, Part H, P.P.C.
For what has been discussed above, while dismissing the appeal, the conviction and sentence recorded under section 302, P.P.C. Is converted to section 304, Part H, P.P.C. And the sentence is reduced to ten years' R.I. The C appellant shall also be given benefit of section 382-B, Cr.P.C. The sentence of fine or in default thereof is, however, maintained. The appeal is disposed of in these terms.