' One Dilawar Hussain had been tried by a learned Additional Sessions Judge of Sialkot for the murder of one Arif Mehmood and having been found guilty of the said charge, he was convicted under section 302, P.P.C. And was sentenced to imprisonment for life with a fine of Rs,10,000 or two years' R.I. In default of payment of fine. Half of the amount of fine was directed to be paid to the heirs of the deceased. The convict was also allowed the benefit of the provisions of section 382-B, Cr.P.C. This was vide judgment, dated 17-12-1990 of the said learned Court.
2. Dilawar Hussain convict impugns the said conviction and sentences recorded against him, through Criminal Appeal No,351 of 1991. The occurrence in question had taken place on 22-6-1989 at 3-30 p.m. Along the railway line in the area of the fruit and vegetable market of Sialkot City at a distance of about three kilometres from Police Station Civil Lines of Sialkot. The same had been reported to Arif S.I. (P.W.1) by one Muhammad Maqbool who was a brother of Arif deceased at 4-00 p.m. When the former was present at Khadim Ali Road. Maqbool complainant had stated that he was carrying on business of ARRAT in the fruit and vegetable market of Sialkot while his brother Arif deceased was also engaged in the business of selling vegetables in the same market and similar was the position of Dilawar appellant who was also carrying on the same business in the said market. The complainant had claimed that the deceased and the appellant had some business dealings with each other as a result of which the appellant owed Rs,150 to the deceased which the deceased had repeatedly demanded from the appellant and which demand, the appellant had always put off by promising to pay the said amount. He had also alleged that at about 7-00 a.m.
On the day of occurrence, Arif deceased had again demanded the said amount from Dilawar appellant as a result of which the two exchanged abuses but had been separated by him and other shopkeepers of the market. He had added that Dilawar appellant had left the place extending threats to avenge the demand of money and the insult which the deceased had caused to-him.
3. The complainant further reported that after winding up their day's work at the market, he and his brother had left the market to return home at about 3-30 p.m. And when the two were going along the railway line, Dilawar appellant armed with Chhuri emerged there and attacked Arif deceased inflicting a blow on the upper part of his thigh near the genital area as a result of which the deceased fell down and succumbed to the injury at the spot.
4. During the course of investigation, Dilawar appellant, had been arrested on 27-6-1989 by Muhammad Arif, S.I. (P.W.11). He had then led to the recovery of a blood-stained Chhuri (P.4) on 1-7- 1989 which had been seized vide memo. Exh.P.E.
5. When confronted with the prosecution case, the appellant admitted his business with the deceased. He denied any incident having taken place between him and the deceased in the morning of the day of occurrence and pleaded that the deceased had attacked him and had grappled with him and it was when the deceased had tried to overpower him that he took out a knife from his pocket which he used to keep as a fruit and vegetable vendor and caused an injury to defend his person. The appellant had, however, claimed that the recovery of blood-stained Chhuri (P.4) was a fabrication and that he had himself produced a knife before the police which he had used in the occurrence in question.
6. The main thrust of the learned counsel's submission was that the death of the deceased was a result of the exercise of the right of self-defence and offence thus committed by the appellant did not fall within the purview of section 302, P.P.C. But was instead punishable under section 304 of the said Code. He also pressed into service the fact that the injury caused by the appellant was only one and the seat of the same was not a vital part of the system. It would thus be noticed that the appellant admits the death of Arif deceased at his hands. The only question which thus requires determination is whether the said death had been caused in exercise of the right of self-defence or as an act of assault mounted by the appellant.
7. Although the appellant admitted through his statement under section 342, Cr.P.C. That he had business dealings with Arif deceased but denied that he owed any money to the deceased. His version of the occurrence, therefore, has no explanation as to why the deceased should have attacked him and grappled with him. He mentioned no reason or animosity on the part of the deceased which could have led him to launch the attack on the appellant. The appellant claimed that he had produced a knife before the I.O. Which he had used for causing the injury on the person of the deceased. He had denied the recovery of Chhuri (P.4) at his instance. It is noticeable that the appellant had himself produced a knife before the I.O. And that the said knife was different from the Chhuri (P.4) which was allegedly recovered at the behest of the appellant. It is also not reasonably believable that the appellant would always keep a knife in his pocket only because he was a fruit and vegetable seller. If this be so then the deceased should also have had such an instrument with him because he was also a similar seller of fruit and vegetable. But from the material on record we know that the deceased had no such weapon. It is also strange that the deceased who had come to mount an attack on the appellant, had come empty handed and could not cause even a scratch on the body of the appellant.
8. In view of these facts and circumstances the story canvassed by the A appellant and his explanation of the weapon in question is not reasonable and is thus rejected.
9. As against this, the prosecution is equipped with the ocular testimony of Maqbool complainant and Tariq P.W. They may be closely related to the deceased but it was not denied that they had no animosity whatsoever against the appellant and had no reason to falsely twist the occurrence in question. The complainant was a brother of the deceased. The two worked together in the same market and carried on the same business. In this view of the matter, the complainant returning home with his brother after the close of business is not a claim which could be said to be unbelievable.
10. The ocular testimony thus inspires confidence and no reason exists on record to justify alteration of the appellant's conviction from section 302, P.P.C. To section 304, P.P.C. It may also be added that the genital region of the body of a person can never be said to be an unvulnerable part of the body and D a person cutting femoral artery cannot be held to fall outside the purview of section 302, P.P.C.
11. Consequently, I find no merit in this petition which is accordingly dismissed. It is further directed that the entire amount of fine imposed on the appellant, if recovered, shall be paid to the heirs of the deceased.