' MUHAMMAD RAFIQ TARAR, J.-Ghulam Sarwar appellant, Ghulam Akbar and Muhammad Hussain were tried by the learned Sessions Judge, Muzaffargarh, for the murder of Ghulam Shabir. By judgment dated 25th October, 1973 Ghulam Akbar and Muhammad Hussain were acquitted while the appellant was' convicted under section 302 of the Pakistan Penal Code and sentenced to death and a fine of Rs, 1,000 or in default in the payment thereof to rigorous imprisonment for one year.
The appellant has appealed and the case is also before us on reference for confirmation of the death sentence awarded to him. The appeal and the reference shall be disposed of by this judgment.
2. The brief facts of the prosecution case are that Ghulam Shabbir deceased had illicit relation with Mst. Lal, a step-sister of the appellant, since about two years before the occurrence. Acquitted accused Akbar, brother of the appellant, used to act as a go-between in this illicit affair. On 18th July 1972 at 8-30 p. m. Gul Muhammad P. W. Was present at his shop and Nur Muhammad complainant (uncle of the deceased) Yasin Malkani P. W., Yasin Maulvi and Pathan were chatting with him when Ghulam Shabbir deceased and Ghulam Akbar (acquitted accused) passed that way, Nur. Muhammad complainant asked the deceased to go home with him but he told him that he was being taken by Ghulam Akbar and would come back after some time. After a short while the above-mentioned P. Ws. Heard alarm from the house of Ghulam Akbar. The complainant and his companions rushed towards that house. They went on the roof of the house of Yasin Malkani P.
W. And in the torch light saw the appellant and the acquitted accused giving blows to the deceased on the roof of the house of Ghulam Akbar. The appellant was inflicting hatchet blows on the deceased while Ghulam Akbar was injuring him with a stick and Muhammad Hussain was throwing brick-bats at him. The appellant and the acquitted accused told the complainant that the deceased had dishonored them, therefore, they had injured him. On receiving the injuries the deceased fell down and died at the spot. The complainant and his companions then returned back and the complainant reported the occurrence to Wazir Hussain, Sub-Inspector at Police Station Kundai vide F. I. R. Exh. P. D. At 10 p. m.
3. After recording the F. I. R., Wazir Hussain Sub-Inspector, reached the spot. He found the dead body of Ghulam Shabbir deceased lying on the roof of the house of the appellant. He prepared the injury statement (Exh. P. O.) and the inquest report (Exh. P. N.) of the dead body and despatched it to the mortuary on the next morning for post-mortem examination. He took some blood-stained earth from the spot and made it into a sealed parcel vide mamo. Exh. P. J. He also took two bloodstained brick-bats into his possession and made them into a sealed parcel vide memo. Exh.
P. K. He secured blood-stained shoes of the deceased (Exh. P 5/1-2) vide memo. Exh. P. M. On 20th July 1972 he arrested the appellant and the acquitted accused. The appellant, while in custody, led to the recovery of blood-stained hatchet (Exh. P 6.) from his residential kotha which was made into a sealed parcel vide memo. Exh. P. E. On the same day, acquitted accused Ghulam Akbar led to the recovery of blood-stained stick (Exh. P. 9) from his kotha which was made into a sealed parcal vide memo. Exh. P. G. The Sub-Inspector removed bloodstained clothes (Exhs. P. 7 and P. 8) from the person of the appellant and made them into a sealed parcel vide memo. Exh. P. F. He also took bloodstained clothes (Exhs. P. 10 and P. 11) of Ghulam Akbar accused into his possession and made them into a sealed parcel vide memo. Exh. P. H. He also took blood-stained chaddar (Exh. P. 12) of Muhammad Hussain, acquitted accused, into his possession and made it into a sealed parcel vide memo. Exh. P. L. He found some injuries on the person of the appellant and after preparing his- injury statement (Exh. P. Q.) sent him for Medical to examination. After the investigation, a case under section 302/34 of the Pakistan Penal Code was sent up against the appellant and the acquitted accused.
4. On 19th July 1972 at 5-30 p. m. Dr. Saeed Ahmed, Medical Officer, Civil Hospital, Alipur, conducted the autopsy on the dead body a Ghulaw Shabbir deceased and found the following injuries on it :-
(1) Incised wound 4' x 1' cavity deep on the right side of skull 1/2' above the right ear.
(2) Incised wound 2' x 1/2' muscle deep on the right side of the head, 1/2' above injury No, 1.
(3) Incised wound 1'x 1/4' bone exposed on the right side of head, 1r above injury No, 2.
(4) Incised wound 4'x 14' cutting underneath bone on the back of right scapula upper part.
(5) Incised wound 24' x 1' on the back of left scapula upper part.
(6) Incised wound 3/4' x 1/4' on the middle of left index finger, cutting the bone.
(7) Incised wound 1' x 1/4' on middle finger, cutting the bone of middle phalynx.
' Ali the injuries were caused by a sharp-edged weapon. Injuries Nos. 1, 4, 5, 6 and 7 were grievous and the rest were simple. In the opinion of the doctor, death was due to shock and haemorrhage.
Injury No, 1 individually and all the injuries collectively were sufficient to cause death in the ordinary course of nature.
5. To support its case, the prosecution examined eight witnesses in all, its main stay being the ocular testimony of Nur Muhammad (P. W. 5), Gul Muhammad (P. W. 6) and Ghulam Yasin (P. W. 7).
The prosecution also relied on the evidence relating to the recoveries of blood-stained weapons and the blood-stained clothes.
'. The appellant pleaded not guilty to the charge. He admitted having injured the deceased but gave a counter-version of the occurrence as follows :- "At about mid-night, deceased Ghulam Shabbir entered in my house. I raised an alarm : thief I thief.
The deceased was armed with a stick. He gave me stick blows. I acted in self-defence and injured the deceased with hatchet."
' Dr. Saeed Ahmad, Medical Officer who conducted the autopsy on the dead body of Ghulam Shabbir deceased, was examined in defence. He stated that on 21st July 1972, he examined Ghulam Sarwar appellant and found the following injuries on his person :-
(1) Laceration I rx 3/4' on the back of the middle of right forearm,
(2) Incised wound 14' x 3/4' muscle deep on the outer side of right buttock.
(3) Scratch 3'x 1/8' on the left buttock.
(4) Abrasion 2' x 1/4' in front of left wrist.
(5) Lacerated wound 12' x 1/8' on the outer side of right side of the head.
' According to him, the injuries were simple, caused within 60 to 72 hours and injury No, 2 which had been caused by a sharp-edged weapon, was fabricated one while the remaining were caused by enemy-hand by blunt weapon.
7. The learned trial Judge believed the ocular account as against the appellant and found its corroboration in the medical evidence. He, therefore, held the appellant guilty of murder. He disbelieved the eye-witnesses in respect of the acquitted accused on the ground that they were falsified by the medical evidence on the record. He also disbelieved the recovery of blood-stained hatchet and blood-stained stick at the instance of the appellant and Ghulam Akbar (acquitted accused).
8.The learned counsel for the appellant contended that the presence of the alleged eye-witnesses at the spot was extremely doubtful and their evidence being at variance with the medical evidence and the other circumstances, was not entitled to any credence. He further contended, that if it be assumed that the eye-witnesses were present at the spot even then they were not in a position to identify the assailant of the deceased in torch light from the roof of a kotha situate at sufficient distance from the kotha on which the occurrence had taken place.
9. After a careful appraisal of the evidence, we are of the view that the contentions of the learned counsel for the appellant are well-founded. In the F. I. R. The complainant had stated that the deceased was carrying on with Mst. Lal since two years before the occurrence and Mbar (acquitted accused) used to act as a go-between in their love intrigue. At the trial he gave out that on the night of occurrence he saw the deceased accompanying aforesaid Akbar. He asked the deceased to go home with him (complainant) but he told him that he "was being taken along by accused Ghulam Akbar and that he would come back later on". The complainant was the real uncle of the deceased and we find force in the contention of the learned counsel for the appellant that if the complainant had seen the deceased going with acquitted accused Ghulam Akbar with whose sister the deceased had illicit relations, he (complainant) must have prevented the deceased from going with the said accused at night time. Probably it was to meet this contention that in examination-in-chief the complainant did not utter a word about the illicit relations of the deceased with the step-sister of the appellant. In cross-examination he stated that he did not state in the F. I. R. "that accused Ghulam Akbar was a go-between regarding the affairs of Mst. Lal and Ghulam Shabbir deceased." He was confronted with the F. I. R. Where it was so recorded. Ali the eyewitnesses were unanimous that they went up the roof of the house of Yasin Malkani P. W. And it was from there that they saw the appellant and the acquitted accused in the torchlight inflicting injuries on the deceased. Gul Muhammad P. W. Stated: "We climbed up the roof of the house of P.
W. Yasin Malkani by means of kacha stairs. The stairs have been built in the house." Ghulam Rasul patwari (P. W. 4) stated in cross-examination that the house of Yasin P. W. Had no stairs at all. The learned counsel for the State contended that the Patwari might not have noticed the staircase of the house of Yasin P. W. And his above statement cannot undermine the prosecution version that the eye-witnesses had seen the occurrence from the roof of the kotha of Yasin P. W. We do not find any force in the argument because we find that in the site plan the staircase of the house of the appellant had been shown and if there had been stairs in the house of Yasin P. W., the patwari would not have omitted to show them in the site plan. The prosecution version that the eye- witnesses had seen the occurrence from the roof of the kotha of Yasin P. W. Thus; does not seem to be correct. According to the Patwari, point No, 1 where the occurrence took place, was at a distance of 60 feet from point No, 3 from where the eye-witnesses allegedly saw the occurrence. If it be assumed that the eye-witnesses were present at the roof of Yasin P. W. Even the nit would be difficult to believe that they were able to correctly identify the assailants of the deceased in the torch light en a dark night from a distance of 60 feet. The torch also seems to have been introduced with a view to show that the prosecution witnesses were in a position to correctly identify the assailants. Nur Muhammad P. W. Stated that he had shown his torch to the Investigating Officer while the Investigating Officer denied this fact and stated that Nur Muhammad P. W. Or other witnesses bad not produced any torch before him.
10. The medical evidence also provides a fatal blow to the prosecution. Ali the eye-witnesses were unanimous that the appellant inflicted hatchet blows on the deceased, Gbulam Akbar gave him stick blows and Muhammad Hussain (acquitted accused) hit him with brick-bats. Ali the injuries on the dead body were incised wounds and no blunt weapon injury was found on it. We are, therefore, of the view that the eye-witnesses had not seen the occurrence.
11. The entire ocular account having been disbelieved, the statement of the appellant alone remains in the field and must be accepted as a whole. The plea of the appellant was that the deceased entered his house at midnight and attacked him with a stick, and he injured him in exercise of the right of self-defence. This plea finds support from the evidence of the Medical Officer (D. W. 11) who found five injuries on the person of the appellant. According to the Medical Officer, injury No, 2 was fabricated one while the remaining were from an enemy-hand. The duration of these injuries relates each to the time of occurrence. The next question is whether the right of self-defence was exceeded or not ? According to the appellant's own showing, the deceased had only a stick with him with which he caused him simple injuries. The appellant inflicted as mans as seven hatchet blows on the deceased out of which three were on the A head, one on the right scapula upper part and one on the left scapula upper part. Injury No, 1 was fatal and Nos. 4, 5, 6 and 7 were grievous. Any one of these injuries was sufficient to disable the deceased from pursuing the attack on the appellant. We, therefore, feel that he caused more harm than was necessary in the circumstances and had exceeded the right allowed to him by law. In our view, the case falls under Exception II to section 300 of the Pakistan Penal Code.
12. For the foregoing reasons, we alter the conviction of the appellant from section 302, P. P. C. To section 304, part I, P. P. C. This brings us to the question of sentence. The appellant exercised his right of self-defence and while doing so exceeded that right. It is in the F. I. R. That the deceased was carrying on illicit intimacy with the step-sister of the appellant. The entry of the deceased in the house of the appellant, therefore, carried some element of provocation as well, We are of the view that in these circumstances a sentence of four years' rigorous imprisonment would be sufficient to meet the ends of justice in this case, and we order accordingly. The sentence of fine is maintained. The appeal stands disposed of in these terms. The death sentence is not confirmed. .