' Rafaqat Ahmad appellant was tried under section 302, P.P.C. By the learned Additional Sessions Judge, Gujrat for the murder of Basharat Hussain. The learned trial Judge vide his judgment, dated 28-5-1988 convicted him under section 304, Part I, P.P.C. And sentenced him to seven years' R.I. And fine of Rs,10,000 or in default six months' R.I.
2. The prosecution story in brief is that Iftikhar Ahmad complainant (P.W.7) and his cousin Basharat Hussain deceased used to run a grocery shop at Kotla Mandi, while village Shampur was their place of residence. On 26-5-1986 at about Asar prayer time the complainant and the deceased were on their way to Shampur from Kotla Mandi. When they reached near village Shampur a person clad in Shalwar, shirt confronted them and told that they could not be saved. Both the complainant and the deceased started running towards .The South-East. Two other persons also confronted them. The complainant and deceased changed their directions towards the south. The appellant who was armed with Chhuri gave a blow with it on the chest of the deceased who fell down. He also asked Akbar accused to fire at the complainant. Ghulam Sarwar (P.W.8) and Muhammad Ashraf (not produced) who were following the complainant party challenged the accused who ran away.
3. The complainant went to Police Post Kakrali and made statement Exh.P.F., which was recorded by Muhammad Hussain S.I. (P.W.9) who sent the same to Police Station Lala Musa, where a case under section 302/34, P.P.C. Was registered.
4. Muhammad Hussain Sub-Inspector thereafter proceeded to the spot, prepared the injury statement Exh.P.G. And inquest report Exh.P.H. He sent the dead body to the mortuary. He collected blood-stained earth from the spot vide memo. Exh.P.J. After post-mortem report he took into possession last-worn clothes of the deceased, vide memo. Exh.P.C. Thereafter the investigation was taken over by Aurangzeb, Inspector (P.W.10) who got prepared the site plan from the Patwari. On 11- 6-1986 he arrested the appellant in injured condition; prepared his injury statement Exh.PA. And got him medically examined. The appellant while in police custody led to the recovery of Chhuri Exh.P.6, which was taken into possession vide memo. Exh.P.E. After completing the necessary formalities, the challan was submitted in the Court.
5. Dr. Zafar Iqbal Gondal (P.W.5) conducted post-mortem examination on the dead body of the deceased and found an incised wound 2 c.m. x 1 c.m. On the left side of front of chest below the left clavical. He opined that death was due to shock and haemorrhage on account of the abovesaid injury, which was sufficient to cause death in the ordinary course of nature.
6. Dr. Latif Qureshi (P.W.1) examined the appellant on 12-6-1986 and found a wound 0.5 x 0.3 c.m. On front of chest 3 c.m. Above epigastrium on his person.
7. The appellant when examined under section 342, Cr.P.C. Denied the prosecution allegations and made the following statement from dock:-- "I was student of 1st Year in the days of occurrence. On the day of occurrence, I was coming from Gujrat Kotla from the house of my paternal-aunt on a cycle, at about Khuftan Wela. When I reached towards the east of village Shampur at Khuftan Wela, I met two persons, namely Basharat and Iftikhar who were sitting in the way. Basharat was armed with a Chhuri and Iftikhar was empty- handed. They stopped me and caught me. Iftikhar snatched my cycle and Basharat at the point of Chhuri threatened me and I was taken towards south of the path in a low place. Basharat ordered me to unwear Shalwar and inflicted a Chhuri blow on my chest, and he tried to commit sodomy upon me. At that time, I was under fear and I was weaping. In that process, I struggled to save myself from the hands of Basharat accused and with full force, I pushed him and he fell down and he was injured by his own Chhuri. I ran away from the spot. On the next day, I alongwith my brother Major Safdar, appeared before the police and narrated the whole story before the S.I. And the Inspector Police. During investigation, I produced Malik Fazal Hussain, Member, District Council of village Bagwal, Raja Khan son of Sati Khan and Fazal Hussain son of Sati Khan alongwith many other persons. Muhammad Ashraf and Ghulam Sarwar P.Ws. Were not present at the place of occurrence. I am innocent I have been falsely implicated."
' He produced Fazal Hussain (D.W.1) and Major Safdar Hussain his brother (D.W.2) in defence.
8. The learned counsel for the appellant vehemently contended that it is a case of two versions; one version has been advanced by the prosecution whereas the other version has been put forth by the defence that the appellant caused the death of the deceased in self-defence when he wanted to commit sodomy with him under coercion and threat. He further submitted that this version has been accepted by the learned trial Court but he has erred in law while coming to the conclusion that the appellant has exceeded his right of self-defence, so this appeal may be accepted.
9. Learned counsel for the State has supported the judgment of the trial Court and also added that there is no background of enmity between the parties and probably the trial Court has not properly looked into the factual position of the case.
10. I have carefully examined the respective submissions of the learned counsel for the parties and have gone through the record minutely.
11. No doubt the learned trial Judge came to the conclusion that the version given by the defence seems to be more probable and natural but gave sentence to the appellant on the ground that he exceeded the right of self-defence. Be that as it may, overall appreciation and analysis of the evidence shows that the appellant has exceeded the right of self-defence because as per his own statement the deceased was disarmed at the time when the appellant caused the injury to the deceased, the injury received by the appellant was of insignificant nature, which was not sufficient to cause reasonable apprehension that death will otherwise be the consequence of such assault as contemplated by section 100, P.P.C., hence he exceeded the right of self-defence, so the impugned judgment is maintained.
12. The upshot of the above discussion is that I find no merits in this appeal, which is dismissed.
Resultantly, the conviction and sentence of the appellant are maintained, however, the appellant is allowed benefit of section 382-B, Cr.P.C.
13. The appellant is on bail, he is directed to surrender hismelf to his bail bond and be lodged in jail to serve out the unexpired portion of his sentence.