MUHAMMAD AMIR MALIK, J.- Muhammad Ashraf appellant was convicted by learned Addl. Sessions Judge Faisalabad, vide judgment dated 24.11.1993 and sentenced to seven years R.I. As Tazir and Diyat amounting to Rs. 2,0, 000/- to be paid to the heirs of Muhammad Yousaf deceased under Section 316 PPC. He was also convicted under Section 337-F (i) PPC for having injured Fateh Muhammad (PW3) and sentenced to 6 months R.I. He was also ordered to pay Rs. 5,000/- as compensation to Fateh Muhammad PW. However benefit of the provisions of Section 382-B Cr.P.C, was granted. His co-accused Muhammad Jamil, Muhammad Arshad, Muhammad Akram and Afzal were however, acquitted. The convict has appealed.
2. The occurrence took place in killa No.2 of square No. 54 of Chak No. 55 R.B. Police Station Gujranwala at 6.30 a.m. On 23.8.1991. Abdul Sattar complainant (PW.1) lodged the F.I.R. (EX.PA) at 6.30 p.m. On 25.8.1991 with Sarwar Khan S.H.O. (PW.4).
3. The version in the F.I.R, was that Abdul Sattar complainant along with his father Muhammad Yousaf deceased and grand-father Fateh Muhammad (PW3) were present in their fields where appellant and Arshad co-accused armed with hockey sticks, Jamil, Akram and Afzal with Dangs reached. The opening blow was given by Jamil hitting Yousaf deceased in the head. Ashraf appellant gave a hockey blow on the person of Fateh Muhammad PW, Akram gave dang blow on the mouth of Yousaf deceased. Arshad injured Mst. Fatima (PW.2), Afzal also injured Fateh Muhammad.
4. The motive given in the F.I.R, was that three acres of land had been purchased by the complainant family from one Muhammad Iqbal against the wishes of the appellant and his family and for it the assault was mounted.
5. The appellant in his statement at the close of the trial stated, "The PWs have deposed falsely because of being related to the deceased and being inimical towards me and co-accused. The actual facts are that on 23.8.1991 at about 6.30 a.m. Muhammad Akram accused was passing through intervening watt of killas No.2 and 3 of Square No. 54. Muhammad Yousaf deceased forbade him and abused him. He also abused Yousaf deceased in return upon which Muhammad Yousaf deceased armed with dang, Fateh Muhammad armed with gandala attacked Muhammad Akram and inflicted injuries on his person. I was ploughing in killa No. 17 of the same square. 1 went to the place of occurrence on the hue and cry raised by Muhammad Akram and intervened to save Akram and gave soti blow to Muhammad Yousaf in the right of private defence to save Muhammad Akram from the attack of complainant party. Yousaf maternal uncle of complainant, Noor Nabi, Mst. Raqia, Mst. Ghulam Fatima and Abdul Sattar complainant were not present at the place of occurrence at the time of occurrence. Complainant party got a false MLR pertaining to Mst. Ghulam Fatima. Fateh Muhammad received injuries during the struggle. The complainant party was very influential and succeeded in getting a false case registered against me and my co- accused".
6. The learned Trial Judge concluded that though the occurrence took place on 23.8. 1991 at 11.30 a.m. But the F.I.R, was lodged on 25.8.1991 without any explanation for the delay and net had been cast wide inasmuch as the appellant along with his brothers Jamil and Akram co-accused and their cousins Arshad and Afzal the able bodied of the family had been involved. He also concluded that from mutation (Ex.PE) and registered sale deed (mark-A) it was clearly proved that the appellant family had purchased the land from Iqbal and so not only the motive part of the story was not proved rather it was disproved. If at all there was any grievance over the purchase of the land it was for the complainant family and not the other way round. Not only this but from the medical evidence brought on the record it was clear that Akram co-accused had also been injured in the occurrence. He had received four blunt weapon injuries and one was grievous. There was no mention either in the F.I.R, or in the statements of the three eye-witnesses as to how he was injured.
7. In the circumstances the learned trial Judge put both the versions in juxta position and concluded that when Akram passed from the Watt of killa No.2 of the complainant family he was injured and Ashraf appellant reached to rescue him. The deceased was given only one blow in the head which proved fatal while the second injury on his lips was due to fall according to the doctor.
No explanation for the injuries to Akram and the F.I.R, being delayed, the motive also (King disproved, the learned trial Judge was justified to accept the version of the occurrence given by the appellant. He however, did not extend the benefit of self-defence to him and in view of there being only one injury on the head of the deceased concluded the case to be of one only Qati Shibh-i-and under Section 316 PPC and sentenced the appellant as Tazir.
7. He, therefore, correctly convicted the appellant under Section 316 PPC. Learned counsel for the appellant has correctly contended that the plea of self-defence was very much available to the appellant and the sentence awarded was excessive. He referred to Ziarat Khan Vs. Khadim Hussain (P.L.J. 1991 Cr. C. (Peshawar) 423) and Muhammad Yaqoob Vs. The State (PLD 1974 Lahore 274).
Maintaining the conviction the sentence of imprisonment is considered to be sufficient. The appellant having acted in self-defence of his brother which was available to the appellant, no Diyat is called for or can be claimed. The order regarding imposition of Diyat money of Rs.
2,00,000/- is therefore, set aside. Fateh Muhammad is not stated by the appellant to have given any blow to him or Akram co-accused so conviction under Section 337-F(i) PPC is maintained. Both the sentences shall run concurrently. The amount of Rs. 5000/- if recovered shall be. Paid to Fateh Muhammad PW as compensation. The appellant would have the benefit of the provisions of Section 382-B Cr.P.C. The appeal is partly accepted and disposed of in the above terms.