' This criminal appeal has been directed against the judgment of Hafiz Khalif Ahmad, Additional Sessions Judge, Faisalabad dated 12-9-1988 whereby he convicted and sentenced the appellant under section 302, P.P.C. To undergo life imprisonment and a fine of Rs,10,000 and in default of its payment to suffer further R.I. For one year and under section 307, P.P.C. To undergo 10 years' R.I. And a fine of Rs,5,000 in default whereof to suffer further R.I. For six months. Half of the fine if realised was ordered to be paid to the legal heirs of the deceased.
2. Briefly the prosecution case is that P.W.8 Rashid Ahmad on 20-6-1987 at 3-00 p.m. At Mor Khichian in the area of Chak No,106/G.B. Police Station Chak Jhumra made a statement Exh.P.G.
Before P.W.12 Javaid Ali, S.H.O. To the effect that he was resident of Chak No,116/G.B. And dealt in the purchase and sale of cattle. On 19-6-1987 he had gone to the village and was present in the house of Faqir Muhammad (P.W.9), his sister's husband and his daughter Mst. Tehmeena Kausar, aged 7/8 years went to the shop of the appellant to fetch ice. She returned after about an hour and stated that she was kept sitting in the shop by the appellant, on which P.W.8 Rashid Ahmad alongwith P.W.9 Faqir Muhammad went to the shop of the appellant and inquired from him about the keeping of child in the shop On this abuses were exchanged between the appellant on the one hand and P.W.8 and P.W.9 on the other, and also grappled with each other, but the respectables intervened and for the time being the matter was patched up. But the appellant continued saying that he would very soon take revenge of his insult. On the previous night at about 9-30 p.m. He alongwith P.W. Nazir Ahmad (given up), P.W.9 Faqir Muhammad, P.W.10 Muhammad Afzal sons of Ghulam Hassan, P.W. Abid Maqsood (given up), all Arain by caste, residents of the village were sitting in front of the Baithak of their residential house outside in the Bazar in the light of electricity and were talking about the present matters, meanwhile Abdul Ghani (acquitted accused) armed with Sua, Tahir Javaid appellant armed with Sua, Tariq Javaid alias Tahira (acquitted accused) armed with Sua, after coming out from their house and raising Lalkara that they would take revenge of their insult, unleased the attack. Tahir Javaid inflicted Sua blow on the right side of the chest of Nazir Ahmad and then second injury was inflicted with Sua by Abdul Ghani below the left nipple to Nazir Ahmad, who fell down. As soon as the complainant, P.W.9 Faqir Muhammad, P.W.
Abid Maqsood (given up) stepped forward, Tariq Javaid (acquitted accused) delivered a Sua blow to Faqir Muhammad which hit him on the left side of his abdomen and then he gave two Sua blows one after the other on Abid Maqsood P.W. (given up) which landed on the right side of his abdomen and on the outer side of his right thigh. On hue and cry P.W.11 Rana Muhammad Ashraf Rajput and Muhammad Rafiq (given up as won over) residents of the village, which were present nearby, witnessing the occurrence reached there. Meanwhile the appellant alongwith the acquitted accused after the commission of the offence brandishing the Suas went back. P.W.8 Rashid Ahmad complainant with the help of the P.Ws. Took the injured for medical treatment the Civil Hospital, Faisalabad, where Nazir Ahmad succumbed to his injuries. P.W.9 Faqir Muhammad, P.W.10 Muhammad Afzal and P.W. Abid Maqsood (given up) were admitted in the hospital. The dead body of the deceased Nazir Ahmad was lying in the Civil Hospital, Faisalabad. It was also stated by P.W.8 that the accused after making mutual consultation had murdered the innocent deceased Nazir Ahmad and had seriously injured Faqir Muhammad (P.W.9), Muhammad Afzal (P.W.10) and Abid .Maqsood P.W. (given up). Hence this case. P.W.12 Javed Ali, S.I./S.H.O. Sent the statement Exh.P.G. To the police station, where P.W.6 Muhammad Ashraf, M.H.C., who on its basis correctly recorded the formal F.I.R. Exh.P.G./1.
3. The appellant alongwith the acquitted accused was challaned and sent up for trial. Charges under sections 302/34 and 307, P.P.C. Were framed against the appellant and the acquitted accused, to which they denied and claimed trial. The prosecution examined twelve prosecution witnesses in all to substantiate its case. The prosecution case rests on motive, ocular testimony, medical evidence and the recoveries.
4. The motive as alleged by P.W.8 Rashid Ahmad, complainant in his statement Exh.P.G. On the basis of which F.I.R. Exh.P.G./1 was recorded, was that on the day of occurrence he was present in the house of P.W.9 Faqir Muhammad, his brother-in-law and Mst. Tehmeena, P.W.8's niece and P.W.9's daughter went out to purchase ice from the shop of the appellant and returned after about an hour and had stated that she was kept sitting in the shop by the appellant, on which P.Ws.8 and 9 went to his shop and inquired about the keeping of the child at his shop, on which the appellant, and P.Ws.8 and 9 had exchanged abuses and also grappled, but the matter was patched up.
However, the appellant had threatened that he would take revenge. P.W.9 also corroborated the statement of P.W.8 on the point of motive.
5. The ocular account has been furnished on record by the statements of P.W.8 Rashid Ahmad complainant, P.W.9 Faqir. Muhammad Injured, P.W.10 Muhammad Afzal injured, and P.W.11 Muhammad Ashraf, P.Ws.8, 9, 10 and 11 are eye-witnesses of the present occurrence. The injuries on the person of P.W.9 and P.W.10 prove their presence at the spot at the relevant time. P.Ws.9 and 10 are brothers of the deceased.
6. The medical evidence has been furnished by the statements of P.W.1 Dr. Abdul Sattar and P.W.2 Dr. Muhammad Nazir who had conducted the autopsy of deceased Nazir Ahmad and medically examined the injured P.Ws. Abid Maqsood, Muhammad Afzal and Faqir Muhammad. P.W.1 Dr. Abdul Sattar conducted post-mortem examination on the dead body of Nazir Ahmad and found the following injuries on his person:--
(1) A punctured wound 3/4 c.m. x 1/2 c.m. x 3 c.m. Inner and above to the left nipple.
(2) A punctured wound 3/4 c.m. x 1/2 c.m. x 6 c.m. Below and outer to left nipple.
(3) A punctured wound 3/4 c.m. x 1/2 c.m. Just outer to injury No,2.
(4) A punctured wound 3/4 c.m. x 1/2 c.m. On left outer side of abdomen in lower part.
' The thorax walls were injured between third and fourth ribs under injury No,l. Fifth rib was fractured under injuries Nos.2 and 3. On opening the thorax left side of the pleaura contained blood. The left lung was perforated at three places under injuries Nos.1, 2 and 3. The pericardium was perforated at three places under injuries Nos.1, 2 and 3 and contained blood. Heart was perforated on left side (ventricle) under injuries Nos.2 and 3. Abdominal wall was injured under injury No,4. In his opinion the cause of death was shock and haemorrhage due to injuries Nos.2 and 3 which were sufficient in the ordinary course of nature to cause death individually as well as collectively. Injury No,1 is grievous and injury No,4 is simple and both were caused by pointed weapon. These were ante- mortem. Probable duration between injuries and death was few minutes, while between death and post-mortem examination was 13 hours.
' P.W.2 Dr. Muhammad Nazir medically examined Abid Masood/Abid Maqsood and found the following injuries on his person:--
(1) Penetrating. (stab) wound 1/2 c.m. In diameter in front of left costal margin. Banyan and shirt having cut and blood-stained.
(2) Penetrating (stab wound) 1/2 c.m. In diameter in front of left thigh at middle. Shalwar having cut.
' The injuries were later on declared simple. Exh.P.B. Is the copy of M.L.R. On the same date i,e. 21-6- 1987 the same Doctor performed medical examination of Muhammad Afzal (P.W.10) and found the following injury on his person:--
(1) Penetrating wound 1/2 c.m. In diameter in front of right side of abdomen. Banyan was blood stained.
' The injury was declared simple. Exh.P.C. Is the carbon copy of M.L.R. On the very day he also medically examined Faqir Muhammad (P.W.9) and found the following injury on his person:--
(1) Penetrating wound 1/2 c.m. In diameter on right costal margin. Shirt having cut and blood stained.
' The injury was declared dangerous to life. The injured P.W. Was operated on 20-6-1987 by Dr. Qaiser Abbas Shah. He found peritoneum cavity full of blood and tear was present on anterior surface of liver. Exh.P.D. Is the copy of M.L.R.
7. The recovery aspect has been stated by P.W.7 Asmatullah, A.S.I. Who on 21-7-1987 joined the investigation of the present case and the appellant made a disclosure and led to the recovery of blood-stained Sua P.2 from his shop from underneath the gunny bags which was secured vide memo. Exh.P.H. Attested by P.W.7 and P.W. Jahangir Khan H.C. (given up). The report of the Chemical Examiner Exh.P.R. And that of the Serologist Exh.P.S. Are positive. Tahir Javaid appellant had denied the recovery of blood-stained Sua P.2. P.W.6 and P.W.12 had no animus against the appellant and no motive whatsoever to plant the recovery of Sua P.2. The statements made by P.W.6 and P.W.12 cannot be brushed aside and thrown away on account of their being police officials.
8. The appellant had raised the plea that 'one day prior to the occurrence, Fazal Bibi, the mother of Nazir deceased passed from near his shop and she complained that he was charging higher rates to which he replied that first of all she should make her clearance about the allegation of theft of mangoes against her sons, whereupon Fazal Bibi abused him. He also abused her in exchange and she went away. On the following day after Maghrab Prayer Nazir deceased, Faqir Muhammad P.W., Muhammad Afzal and Abid Maqsood P.W. Convened a Punchayat and his father Abdul Ghani was summoned by them in that Punchayat. They complained to his father about the incident that had taken place with Fazal Bibi. His father thereupon tendered apology on his behalf. But the complainant party was outraged and they abused his father. They started beating him. They wanted to confine him in their Baithak after dragging him. He was attracted to the cries of his father and in order to save him so that he may not sustain a fatal injury, he ran towards that side with a sua in the defence of his father. Whosoever resisted him, he inflicted sua blows on his person. He got his father rescued from the complainant party with great difficulty. If he had not reached to rescue his father, his father would have been killed by the complainant party. He had also given the same version to the police during the investigation. Tariq Javed, his brother was not present there while his father was empty-handed'.
9. I have heard the learned counsel for the appellant as well as learned counsel for the State, and have perused the record. Learned counsel for the appellant submitted that the eye-witnesses are closely related to the deceased i,e. P.W.8 is brother-in-law of the deceased while P.W.9 Faqir Muhammad and P.W.10 Muhammad Afzal are real brothers of the deceased. P.W.11 Muhammad Ashraf is not related to the deceased. Abid Maqsood injured P.W. Has not been produced by the prosecution and there is nothing on record the reason for his non-examination. Eye-witnesses P.Ws.8, 9, 10 and 11 are interested and their testimonies should not be relied upon in the absence of independent corroborative evidence. It was further submitted that the defence version when examined in juxtaposition with the prosecution case, was more convincing. The main question to be considered is as to which version is to be believed, the prosecution story given by four P.Ws., as referred to above, or the statement of the accused. The prosecution case is that the appellant during Punchayat proceedings went to the house, brought a Sua and inflicted injuries to P.W.9, P.W.10, P.W. Abid Maqsood (not produced) and the deceased.
10. Out of four eye-witnesses, who stated the ocular account, P.W.9 Faqir Muhammad and P.W.10 Muhammad Afzal are the injured witnesses, while P.W.8 Muhammad Rashid and P.W.11 Muhammad Ashraf are not injured persons. P.W.11 has no relation either with the injured witnesses or enmity against the appellant, but the fact is that P.W.11 was not injured at the time of occurrence and his house is at a distance of two squares from the locale. The prosecution story as stated by all the four eye-witnesses is very simple that they alongwith Nazir Ahmad deceased, P.W. Abid Maqsood (not examined) were sitting in front of the Baithak of P.W.9 Faqir Muhammad and the appellant Tahir Javaid alongwith the acquitted co-accused, his brother Tariq Javaid and father Abdul Ghani armed with Suas appeared there. It was the appellant who had given the first blow on the chest of the deceased Nazii Ahmad. The second blow was inflicted by acquitted co-accused Abdul Ghani on the deceased and when the deceased fell down, it was Tariq Javaid, the acquitted co-accused who had inflicted two blows on his person. The appellant alongwith the acquitted co-accused were stated to have caused the injuries on the person of the deceased one after the other. Tariq Javaid, acquitted co-accused had caused injuries on the person of Faqir Muhammad and Abid Maqsood P.Ws. The appellant had given one blow on the person of P.W. Muhammad Afzal. The place of occurrence is not disputed. The appellant has not denied his participation in the occurrence.
11. There are two versions of the case and it is not a case of denial. The appellant has admitted the occurrence, not in the manner as stated by the prosecution, but the way in which the occurrence took place has been explained by the appellant in his statement under section 342, Cr.P.C. The acquitted co-accused Abdul Ghani and Tariq Javaid were placed in column No,2 of the challan.
Tariq Javed was not at all present at the relevant time. During the trial the appellant has stated that his father Abdul Ghani was summoned by the complainant party in the Punchayat. The complainant party had abused his father, started beating him and wanted to confine him in their Baithak after dragging. The appellant was attracted to the cries of his father and ran with a Sua in the defence of his father, and whoever resisted him, he had inflicted Sua blows on him. P.W.9 Faqir Muhammad in his statement Exh.D.B. Had stated that Abdul Ghani was summoned in the Punchayat when Tahir Javaid appellant had also arrived there. There was an exchange of hot words between the complainant party and the accused. Thereafter the accused gave Sua blows on their persons. After various investigations, the report under section 173, Cr.P.C. Was submitted and twenty persons had sworn on Holy Qur'an in the Mosque that Tariq Javaid (acquitted co- accused) was not present, and Abdul Ghani (acquitted co-accused) inflicted no injury and he was unarmed at the time of occurrence. There is no previous enmity between the parties. It all happened suddenly.
12. Keeping both the versions in juxtaposition, the plea of the appellant and the prosecution case, I am of the view that the occurrence took place in the manner, i,e. The appellant who is a ice-seller, was attracted to the place of occurrence and witnessing that his father was being dragged by the deceased and the P.Ws. To their Baithak, flared up and took up a Sua from his nearby ice shop apprehending danger to the life of his father and while rescuing his father inflicted Sua blows on the complainant party including the P.Ws. And the deceased in that scuffle. The evidence and the circumstances appearing in the case support the plea raised by Tahir Javaid appellant which is satisfactorily established. There is thus strong probability of existence of the plea raised by the appellant. I find no reason to disbelieve the same. Keeping in view the number of injuries caused by the appellant on the P.Ws. And the deceased, the sentence of the appellant is altered from section 302, P.P.C. To section 304, Part I, P.P.C. And he is sentenced to undergo 10 years' R.I. The sentence of fine of Rs,10,000 is, however, maintained and in default of its payment, he shall suffer further R.I. For one year. Half of the fine, if recovered, shall be paid to the legal heirs of the deceased. The conviction under section 307, P.P.C. Is not maintained. The appellant shall be entitled to the benefit of section 382-B, Cr.P.C.
13. The appellant is on bail, who shall surrender and be sent to jail to undergo the sentence awarded to him.