' Bashir son of Munshi Khan appellant, Munshi Khan, Farooq and Piroo were tried for the murder of Muhammad Sadiq deceased with sticks. By judgment, dated 23-5-1991 learned Additional Sessions Judge, Okara convicted Bashir appellant under section 302, P.P.C. And sentenced him to imprisonment for life plus a fine of Rs,20,000 or in default to undergo further R.I. For 4 years. He was also ordered to pay Rs,20,000 as compensation to the heirs of the. Deceased under section 544-A, Cr.P.C. Or in default to undergo 4 months' imprisonment. His co-accused were, however, given the benefit of doubt and acquitted.
2. Challenging his conviction and sentence, Bashir appellant has filed this appeal.
3. The prosecution case is that on 20-10-1988, Muhammad Tufail P.W.4 brother of the deceased and his nephew Muhammad Hussain were grazing their sheep in the fields. One of the sheep entered into the field of Abdul Majeed, a resident of that village who took exception to it and slapped Muhammad Hussain. The latter came to his house and apprised Muhammad Sadiq deceased of the incident. At about 4-3Q p.m. Muhammad Sadiq deceased went to the house of Munshi Khan and complained to him about the conduct of his son. Munshi Khan raised a Lalkara attracting his son Bashir appellant and Farooq. They both attacked Muhammad Sadiq deceased and inflicted injuries on him with their respective Dangs. Muhammad Sadiq fell injured. Peer Khan accused gave him kick blows. Muhammad Nawaz P.W.5, Hakim Ali P.W.6 and Yaseen (not examined) were attracted to the spot and rescued the deceased from the accused. He was removed to the hospital where he died on 22-10-1988.
4. Muhammad Tufail P.W.4 reported the matter to A.S.I. Muhammad Ashraf P.W.10 on 21-10-1988 at 11-30 a.m. Formal F.I.R. Exh.P.C./1 was recorded later on at Police Station Hujjra.
5. Injury statement Exh.P.J. And inquest report Exh.P.K. Of the deceased were prepared by the police in General Hospital, Lahore. Bashir appellant produced stick Exh.P.1 which was secured through Exh.P.B. After the completion of the investigation, the accused were challaned.
6. At the trial, the prosecution examined Muhammad Tufail P.W.4, Muhammad Nawaz P.W.5 and Hakim Ali P.W.6 to prove the occurrence. Dr. Mahmood Afzal had medically examined Muhammad Sadiq (35) on 20-10-1988 at 8-55 p.m. And found the following injuries on his person:--
(1) A lacerated wound 3 c.m. x 3 c.m. x bone deep, plus swelling 5 c.m. x 4 c.m. Around the wound, on the top and left side of the head, 7 c.m. From the left ear, 6 c.m. From the mid-line, and 13 c.m.
From the left eyebrow.
(2) Swelling area 14 c.m. x 10 c.m. On the front and right side including the middle line area of the head extending to the right side of forehead, plus blackening of the eyelids of the right eye.
7. The injuries were caused with blunt weapon and were dangerous to life.
' The same doctor also examined Mst. Rehmani (70) mother of Bashir appellant on the next day and found the following injuries on her person:-
(1) Contusion mark 6 c.m. x 5 c.m. Plus swelling 15 c.m. x 16 c.m. On the back of left elbow joint.
(2) Contusion mark 4 c.m. x 2 c.m. Plus swelling 9 c.m. x 8 c.m. On the outer side and upper part of the right upper arm.
' Both the injuries were caused with blunt weapon.
8. The stick Exh.P.1 alleged to be recovered at the instance of Bashir appellant was not stained with blood.
9. Bashir appellant denied the prosecution allegations. He stated that on 20-10-1988 a sheep of Muhammad Hussain nephew of the deceased had damaged their paddy crop whereupon his brother Majeed slapped Muhammad Hussain who left the place and informed the deceased. The latter armed with a Dang rushed towards Majeed who came running to his house and chased him.
Majeed hid himself in the room of his house and chained it from inside. Sadiq deceased trespassed into the Ahata and attempted to break open the door of the room where Majeed was hiding himself. Mst. Rehmani, the appellant's mother, entreated the deceased to refrain from doing so.
Instead of acceding to her request, he made a murderous assault upon her. The appellant went on to say that on her alarm, he was attracted to the spot and forbade Sadiq deceased from causing injuries to his mother but the deceased advanced towards him. In order to save himself and his mother he picked up a Sota lying there and caused injuries to the deceased. He added that the occurrence had taken place in their courtyard. According to him, none of the eye-wtinesses was present at the spot at the relevant time.
' The appellant examined Mst. Rehmani in his defence. Appearing as D.W.1 she supported the appellant's version. His brother Majeed also appeared as D.W.2 to corroborate his version.
10. Disbelieving the defence version and relying on the prosecution evidence, the learned trial Court convicted and sentenced the appellant, as described above.
11. The learned trial Court observed that the occurrence had taken place without pre-concert and pre-meditation. The learned Court further observed that only one injury had proved fatal which is attributed to the appellant. In that view of the matter, he was convicted only and the others were acquitted.
12. It is argued on behalf of the appellant that the eye-witnesses examined by the prosecution were closely related to the deceased. Muhammad Tufail P.W.4 was his brother while Muhammad Nawaz P.W.5 and Hakim Ali P.W.6 were also closely related to him. They having been disbelieved in respect of majority of the co-accused should not have been believed without any independent corroboration against the appellant. No such corroboration is available, for stick Exh.P.1 alleged to have been recovered at the- instance of the appellant was not stained with blood. It is further stated that the occurrence had in fact taken place in the house of the appellant and not at the place alleged by the prosecution. It was for that reason that no blood-stained earth was secured from the spot. Ahmad Hassan Khan, S.I. P.W.11 who had investigated the case had also supported the appellant's version. In this context, a reference has been made to his statement made in the course of cross-examination. According to him, his conclusion was that the occurrence had taken place in the Ahata of Munshi Khan where Abdul Majeed was hiding himself. The deceased armed with a Lathi trespassed into the house of Munshi Khan and assaulted Mst. Rehmani. As a result of his investigation, he arrived at the conclusion that Bashir appellant had acted in self-defence to save his mother. He added that Ch. Mushtaq D.S.P. And Ch. Rashid Murtaza D.S.P. Had also authenticated his above conclusion.
13. There is no explanation by the prosecution of the injuries suffered by Mst. Rehmani, the appellant's mother. They were of the same duration as those of the deceased, Mst. Rehmani bad appeared as. D.W.1 and fully supported the appellant's version. Majeed D.W.2 also corroborated his version. The finding of the Investigting Officer is also to the same effect.
14. In the circumstances, discussed above, the appellant appears to have acted in the right of self- defence. He had caused injuries to save himself and his mother from the deceased who had trespassed into their Ahata. His action was, therefore, legally justified and there was no material available for his conviction. Accordingly, 4 accept his appeal, set aside his conviction and sentence and acquit him of the charge. He shall be set at liberty provided he is not required in any other case.