Muhammad Iqbal appellant in Appeal No. 808 of 1973 and Altaf Husain appellant in Appeal No. 808-A of 1973 are brothers inter se and were tried together under section 302/34, P. P. C. For committing the murder of Muhammad Afzal alias Toba. 'They were found guilty under the above section and were sentenced to transportation for life. They were in addition sentenced to a fine of Rs. 500 each and in default of payment of fine were ordered to undergo further rigorous imprisonment for six months. This judgment shall dispose of both the appeals.
2. The occurrence took place on 9th of April, 1972, at about 12 noon near the shrines of Shah Shams Tabriz and Nag Shah in Multan City, Police Post Lohari Gate, which is in the jurisdiction of Police Station Old Kotwali. The first information report Exh. P. J. Is based on the statement of Akhtar Hussain (P. W. 6) brother of the deceased. This statement was made to S. I. Abdul Majid incharge of Police Post Lohari Gate, near Chauk Ghanta Ghar, at 7-30 p. m. Muhammad Iqbal, appellant, had earlier made a statement before the same police officer in regard to the same incident at 7 p. m.
Alleging that actually the deceased had made a murderous assault on Altaf Hussain and when Iqbal advanced to save his brother, he was also given injuries. Muhammad lqbal stated that he had snatched the knife from Afzal deceased and had caused him injuries.
3. The medical evidence shows that the deceased had received five incised wounds of different dimensions. He was admitted in the Hospital in an injured condition and died at 7 a. m. Next morning. Akhtar Hussain P. W. Made the aforementioned statement before the police after obtaining the medical certificate regarding the injuries of the deceased. There is no evidence in this case that the doctor attending to the deceased had sent any information to the police.
4. Both the accused appeared before Dr. Altaf Hussain Girdezi who appeared as (P. W. 11) as also as defence witness No. 1. He examined them for their injuries on 9th of April, 1974 at 1-50 p.m. Altaf Hussain had an incised wound on his chest --" x 1/8" and another incised wound on his right forearm. There were abrasions on his right shoulder and little finger. Iqbal had one abrasion on his neck and the other on the back of left arm. It appears that the police did not investigate the case registered at the instance of Iqbal appellant and proceeded with the prosecution of the two appellants. It also appears from the record that Altaf Hussain remained under treatment in the hospital for sometime. The Investigating Officer wanted to record his statement but the doctor told him that he was not in a fit condition to make a statement. The doctor explained during his evidence that Altaf Hussain had been given a sedative injection and it was because of this reason that he was not able to make a statement. The exact period of his hospitalization is, however, not known.
5. On 10th of April, 1972, the Investigating Officer took blood-stained earth from the spot as well as a fellow of the shoe which according to the trial Court fitted in the foot of Altaf Hussain appellant. On the same day be also took into possession blood-stained shirt P. 5, chaddur P. 6 and a handkerchief P. 7 belonging to Iqbal appellant vide memo. Exh. P. B. And chaddar P. 8, shirt P. 9 and banian P. 10 belonging to Altaf Hussain vide memo. Exh. P. C.
6. Iqbal, appellant, led to the recovery of hatchet P. 12 on 19th of April, 1972, from a wheat field vide memo. Exh. P. F. On the same day, Altaf Hussain led to the recovery of knife Exh. P. 13 from the graveyard situated on the eastern side of Eidgah Road, vide memo. Exh. P. G. The garments of the accused and the two weapons recovered at their instance were found to be stained with human blood.
7. The motive for the crime is that Afzal deceased had, about a week before the incident, injured the brother of the appellants and a case had been registered in this connection. The case of the prosecution is that the accused as a measure of revenge for the beating given to their brother assaulted the deceased while lqbal was armed with a knife and Altaf with a hatchet. The appellant's case was that the deceased had assaulted them with a knife because they had got a case registered against him. It was the case of lqbal appellant that he bad snatched the knife from the deceased and given him injuries in self-defence.
8. In their statements before the committing Magistrate and the Sessions Judge, the appellants re- asserted that they had been assaulted by the deceased but omitted to state as to how the deceased had received injuries.
9. The learned trial Court was of the view that the appellants bad not specifically raised the plea of self-defence but it did examine the question whether or not the appellants were entitled to the benefit of the exercise of the right of private defence. It came to the conclusion that the appellants were aggressors because the recoveries indicated that they were equipped with two different weapons and also because of the fact that the injuries caused to the deceased were of more formidable nature. The trial Court also observed that it was improbable that when two persons variously armed were facing the deceased, be would take the initiative in launching an attack on them. The learned trial Court was also of the opinion that the motive for attack lay with the appellants as their brother had been given injuries by the deceased.
10. The appellants have categorically stated in Court that they were first attacked by the deceased.
They have not said that they caused injuries in self-defence and to this extent did not support the version given by Muhammad Iqbal in F. I. R. Exh. D. A. The learned counsel argued that even if an accused did not positively assert the right of private defence, the superior Courts in this country always extended this benefit to him if it is found from the evidence and other circumstances of the case that the plea of the accused may well be true. It was urged that the onus in this connection on the accused is very light one and he is not called upon under the law to prove each and every aspect of the plea that he takes before the Court.
11. The learned counsel also points out that there was a delay of about six hours in lodging the F. I. R.
The deceased had been examined at 1-20 by the doctor and Akhtar Hussain P. W. Made his statement before the Sub-Inspector at about 7-30. The learned counsel said that there is no satisfactory explanation forthcoming for this colossal delay. It is his case that Akhtar Hussain is not the eye-witness; that a story was being cooked during these six hours arid thereafter the appellants were involved in the case. Akhtar Hussain said that he left the hospital to lodge the report when his elder brother came to the hospital. He said that Muhammad Nawaz was with him at that time. Before the Committing Magistrate he had stated that Muhammad Nawaz had not accompanied him when he proceeded to lodge the report and that he had left Muhammad Nawaz at the hospital with his brother. He further, said that he had become unconscious and that he was given water by Muhammad Nawaz. There is no evidence that Akhtar Hussain had actually become unconscious in the hospital and had remained there for some time in that state. The statement was made to Sub-Inspector not in the police station or in the police post but near Chauk Ghanta Ghar where the Sub-Inspector accidentally happened to be. There is, therefore, justification for saying that the F. I. R. Was delayed and a story quite different from the facts of the case may have been cooked up during this time in order to suppress the injuries caused to the accused.
12. The learned counsel for the State urged that the blood-stained clothes as well as the recovery of the weapons which were found to have been stained with human blood, lent support to the prosecution story. In the F. I. R. Lodged by Muhammad Iqbal, appellant, it had been stated that he and his brother had been assaulted by the deceased and while Altaf Hussain was being given injuries, he snatched the knife from the deceased and gave him injuries in self-defence. This explains the presence of the blood-stained clothes on both the brothers. It may indicate their participa--petition, but it does not show as to how the fight started.
13. The only eye-witness happens to be the brother of the deceased. Muhammad Nawaz, who is said to have accompanied Akhtar Hussain to the shrine of Nag Shah, could have been produced to supplement the statement of the first informant. The cross-examination of the witnesses indicates that some more evidence could be available but no attempt has been made to produce that.
14. The recoveries of the blood-stained weapons took place about nine days after the arrest of the accused. The only witness from the public who supports these recoveries is Allah Ditta (P. W. 5). He is an ex-convict and does not belong to the locality. The recoveries are rather belated and it cannot be said positively from the statement of the injuries on the deceased that two types of weapons were used. Both the accused denied the recovery of weapons but admitted that their blood-stained clothes were taken into possession by the Investigating Officer in the hospital. The F.
I. R. Lodged by Muhammad Iqbal contains a clear admission that both of them had participated in the commission of the offence. The origin of the fight remains undiscovered. Even Akhtar Hussain, the brother of the deceased, does not say as to how the fight originated. He saw the accused in the process of inflicting injuries. He did not mention that the deceased had caused any injuries to the accused and we, therefore, cannot accept his word that the accused were the aggressors. Dr. Altaf Hussain Gardezi (D. W. 1) said during the cross-examination that he could not exclude the possibility that the injuries on the appellants were self-suffered. There does not appear to be any warrant for this opinion which is not supported by any reason. Altaf Hussain, appellant, had suffered an injury on the front of the chest which bled considerably. The age of these injuries. As given by the doctor, coincides with the time of the occurrence. It will, therefore, be legitimate to believe that the two appellants did receive injuries during the same transaction. In the circumstances, all that can be said is that there was a fight between the parties the origin of which remains undisclosed; that the injuries on the accused persons show that there was physical contest between the parties and the matter developed suddenly on a road-side encounter. There is no evidence that the accused lay in ambush. The case in my view, therefore, is covered by Exception 4 to section 300, P. P. C. I alter the conviction of both the appellants to section 304, Part I, P. P. C. Muhammad lqbal appellant, who is said to have caused most of the: injuries is convicted under the above provision of law and is sentenced to eight years' R. I. The fine of Rs. 500 imposed upon him shall stand and if the fine is realised a sum of Rs. 300 shall be paid to the complainant. In default of payment of fine he shall undergo R. I. For a period of six months. Altaf Hussain is responsible for an incised injury on the left forearm which appears to be simple. He is sentenced to two years' R. I. And a fine of Rs. 200. Half of the fine, if realised, shall be paid to the complainant. In default of payment of fine, he shall undergo R. I. For two months. Both the appeals are disposed of accordingly.