1. ' Liaqat (24), Zulfiqar (47) and Ayub (20) alongwith Khizer Hayat, Walayat, Nazir, Dilmir and Chaman Abbas were reported against with Police Station, Jarranwala, District Faisalabad for the murder of Jaffar. Additional Sessions Judge, Faisalabad, vide judgment dated 25-5-1988 gave the benefit of doubt and acquitted Khizer Hayat, Walayat, Nazir and Dilmir. Chaman Abbas was not tried because he could not be arrested. Liaqat and Zulfiqar were convicted under section 302/34, P.P.C. And each of them was sentenced to imprisonment for life with a fine of Rs,10,000, or in default to undergo further R.I. For one year. Ayub was convicted under section 326, P.P.C. And sentenced to five years'
2. R.I. With fine of Rs,5,000 or in default R.I. For six months. He was also given the benefit of section 382- B, Cr.P.C. The convicts have challenged their conviction and sentences by way of this appeal. The judgment shall dispose of the same.
2. Prosecution story in brief, as disclosed in F.I.R. Exh. P.E. By Bashir, P.W., was to the effect that one Ayub and Manzoor had committed the theft of the buffalo of his cousin Abdul for which they were prosecuted. The first informant with Khizer Hayat were P.Ws. The accused persons used to pressurize them not to depose against them. On 10-6-1986 at about 10-00 a.m., the first informant with Jaffar and Yousaf was standing at the bus-stop. All of a sudden, appellants with their co- accused, armed with different weapons, came there. They were raising Lalkaras. Zulfiqar, appellant gave a Lathi blow to Arif, P.W. On his head. Thereafter, Nazir co-accused gave a blow with the butt of his gun to Arif, who fell down. The accused persons started belabouring the witnesses and Jaffar.
3. Chaman Abbas, co-accused, caught hold of Yousaf, whereupon Ayub appellant gave a blow on his left hand, whereupon said Yousaf fell down and was belaboured by other accused. Jaffar ultimately died because of the injuries.
4. ' The occurrence took place on 10-6-1986 at about 10-00 a.m. At bus-stop in Chak No,355/GB, Jarranwala, six miles from Police Station, Jarranwala. F.I.R. Exh. P.E. Was registered on 11-6-1986 at 10-05 a.m. On the statement of Bashir Ahmad, P.W.5, which was recorded by Muhammad Yar, S.I., P.W.11.
5. ' Muhammad Yar S.I., P.W.11 after registration of the case, went to the spot and recorded the statements of the witnesses. Thereafter, he went to Civil Hospital and enquired from the doctor if Jaffar was in a fit state to make a statement. The doctor replied in the negative. He learnt about the death of Jaffar on 12-6-1986. Then he went to Civil Hospital and prepared injury statement Exh.P.M.
6. And inquest report Exh.P.N. And sent the dead body for post-mortem examination. He arrested Zulfiqar, Liaqat, Dilmir, Walayat and Ayub on 20-6-1986. Nazir and Khizer Hayat were arrested on 22-6-1986. He got site-plan Exhs.P.D. And P.D.1 prepared from the draftsman and gave his notes in red ink thereunder. On 4-7-1986, Walayat accused produced stick P.1, which was secured vide memo. Exh. P.G. Liaqat produced hatchet P.2, which was also taken into possession vide memo. Exh.
7. P.H. Khizar Hayat produced revolver P.3, which was secured vide memo. Exh, P.J. Ayub appellant produced hatchet P.4 which was secured vide recovery memo. Exh.P.K. After usual investigation, he challaned the accused.
3. Prosecution in support of its case produced 11 witnesses in all. P.W.1 Dr. Anwar Saood Saqib, on 10- 6-1986 examined Jaffar, aged 40 years, and found the following injuries:--
(1) Contusion marks 10 c.m. x 1 c.m., 12 c.m. x 1-1/2 c.m., 11 c.m. x 1 c.m. Over front of left chest.
(2) Contusion mark 9 c.m. x 2-1/2 c.m. Over front of right chest.
(3) Contused swelling 7 c.m. x 2 c.m. Middle of right forearm.
(4) Lacerated wound 1 c.m. x 1/2 c.m. x 1 c.m. Deep over right side of chin.
(5) Lacerated wound 4 c.m. x 1 c.m. x scalp deep over left side of head 10 c.m. From left ear.
(6) Lacerated wound 3 c.m. x 1/2 c.m. x scalp deep, 2-1/2 c.m. Posterior to injury No,5.
(7) Contusion mark 11 c.m. x 1-1/2 c.m. Over right side thigh.
(8) Contusion mark 11 c.m. x 3 c.m. Over left upper arm. On the same day, he examined Arif and found the following injuries:--
(1) Lacerated wound 4 c.m. x 1 c.m. x muscle deep on right side of forehead.
(2) Lacerated wound 2 c.m. x 1 c.m. x scalp deep on top of head.
(3) Contusion mark 20 c.m. x 2 c.m. Over back of left chest middle part.
(4) Contusion mark 17 c.m. x 1 c.m., 1-1/2 c.m. Away from injury No,3.
(5) Contusion mark 11 c.m. x 2 c.m. Over back of right shoulder.
(6) Contused swelling 10 c.m. x 6 c.m. Over right forearm about middle.
(7) Contused swelling 9 c.m. x 7 c.m. Over right hand.
(8) Contused swelling 5 c.m. x 3 c.m. Over right knee.
(9) Contusion mark 7 c.m. x 1-1/2 c.m. Over right leg upper part.
(10) Contused swelling 8 c.m. x 4 c.m., 14 c.m. Below injury No,9.
8. ' On the same day he examined Muhammad Yousaf and found the following injuries:-
(1) An abrasion 6 c.m. x 2-1/2 c.m. Over left shoulder.
(2) Lacerated wound 1 c.m. x 1/2 c.m. Over right forearm upper part.
(3) Contused swelling 13 c.m. x 10 c.m. On upper part of left forearm.
(4) An incised wound 6-1/2 c.m. x 1 c.m. x bone deep situated over medial side of left hand middle part 5th matacarpal cut and fractured.
9. ' In crosss- examination, he stated that the injured had appeared before him not through the police.
10. Dr. Muhammad Afzal P.W.6 on 13-6-1986 conducted the post-mortem on the dead body of Jaffar and found the following injuries:--
(1) A contusion mark 9 c.m. x 1 c.m. On the left side of chest.
(2) A contusion mark 10 c.m. x 1 c.m. Just below injury No,1.
(3) A contusion mark 8 c.m. x 1 c.m. On the right side of chest.
(4) A stitched contused wound 1 c.m. x 1 c.m. x bone underneath (mandible) fractured on right side of chin.
(5) A contused stiched wound 3 c.m. x 2.5 c.m. On the left side of head 10 c.m. From left ear. Bone underneath was found fractured on dissection.
(6) A stitched contused wound 3 c.m. x 1/2 c.m., 2.5 c.m. Posterior to injury No,5. On dissection there was linear fracture of underlying parietal bone about 11 c.m. In measurement. Underneath injuries Nos.5 and 6. On removing skull there was sub-dural hematoma under injuries Nos.5 and 6.
(7) A contused swelling 7 c.m. x 2 c.m. On middle of right forearm.
(8) A contusion mark 11 c.m. x 3 c.m. On left upper arm.
(9) A contusion mark 11 c.m. x 1 c.m. On right side of thigh.
11. ' P.W.2 Aurangzeb, Draftsman had, prepared site plan Exhs. P.D. And P.D.1 on the direction of the police. Ocular account was furnished by Bashir, Arif, Muhammad Yousaf and Sarang, P.Ws. 5, 7, 8 and 9, respectively. P.W.10 Jehangir had witnessed the recovery effected at the instance of the appellants. The case was investigated by Muhammad Yar, S.I. P.W.11.
12. ' At the conclusion of prosecution evidence, the appellants were examined without oath. They refuted the prosecution allegations and pleaded innocence. They also produced a defence witness in their defence. They appeared on oath in their defence.
4. It was contended by learned counsel for the appellants that the case against the appellants could not be proved at all. Submitted that no reliance on the prosecution evidence could be placed because it had not come with clean hands. Argued that two of the accused Liaqat and Muhammad Ayub were medically examined yet the prosecution neither, in the F.I.R. Nor at the trial stage disclosed this fact. Asserted that the investigation was conducted dishonestly, that is why the medico-legal reports of the above two accused were neither brought on the police file nor brought to the notice of the trial Court. Argued that on the same evidence some of the accused were acquitted, therefore, the evidence qua the appellants may not be relied upon unless corroborated. The contentions were opposed by learned counsel for the State as well as for the complainant. L5. I have heard the leaned counsel and gone through the file. The prosecution had tried to establish its case by ocular evidence and sought corroboration from recoveries effected at the instance of the appellants and the medical evidence. As far as the recoveries in the instant case are concerned, they are of no help to the prosecution because the hatchet and Dangs recovered at the instance of the appellants were neither blood-stained nor had any distinguishing mark which could establish that the same were used in the occurrence. As far as medical evidence is concerned, it only reveals that the deceased and the P.Ws. Had received number of injuries. A careful examination of the file would indicate that the medical evidence contradicts the ocular account because in the F.I.R. As well as in their statements the witnesses had asserted that Liaqat appellant had given hatchet blows on the chin, head and left the arm of the deceased. The doctor found that none of the said injuries were incised wounds.
13. As far as the ocular account is concerned, the witnesses have given a detailed account of the occurrence, but in cross-examination they could not give any explanation why they did not disclose the injuries on the person of Liaqat and Ayub. This renders their statements highly doubtful, especially in the absence of any corroboration. They have been contradicted by the medical evidence with which they were duly confronted. The defence version, on the other hand, is that on the fateful day, a fight took place in which the witnesses had caused injuries to Jaffar. A careful perusal of the record certainly indicates that the occurrence took place at the place, asserted by the prosecution. The possibility of the appellants-side being subjected to attack cannot be ruled out as two of them were injured, therefore, they in self-defence also caused injuries. As far as Ayub appellant is concerned, he was only convicted under section 326, P.P.C. To five years' R.I. And a fine of Rs,5,000.
14. ' Since the occurrence is also admitted by the appellants, though under different circumstances, therefore, it is held that they had the right of self-defence. In these circumstances, I feel the sentences of imprisonment already undergone by Ayub would meet the ends of justice. The sentence of fine, or imprisonment in default of payment of fine, is, however, maintained. With this reduction of sentence his appeal is dismissed.
15. ' As far as Liaqat and Zulfiqar, appellants are concerned their conviction under section 302/34, P.P.C. Is altered to section 304, P.P.C. Because they exceeded the right of self-defence, therefore, their sentence is reduced from imprisonment for life to seven years; R.I. Each. The sentence of fine, or imprisonment in default thereof, is, however, maintained. They shall also be given the benefit of section 382-B, Cr.P.C. The appeal is disposed of in the terms discussed above.