' SHAMEEM HUSSAIN KADRI, J.-Sultan his brother Arif alongwith Dilmir were tried for the murder of one Sarwar by the learned Sessions Judge, Jhang. They were convicted under section 302/34, P. P. C. By his judgment dated 11th January 1972. Dilmir and Sultan were sentenced to death while Arif was awarded life imprisonment.
2. The occurrence is alleged to have taken place on 3rd August 1970 at 5 p.m. Near Basti Jogianwali Dakhli Shah Jewna which is at a distance of 9i miles from Police Station Qadirpur in Tehsil Jhang.
Statement (Exh. P. A.) of Farid (P. W. 9) brother of the deceased was recorded the same day at 7 p.m. By Abdul Hakim Sub-Inspector (P. W.) in Mandi Shah Jewna which is at a distance of four miles from village Shah Jewna. Formal F. I. R, was drawn at 7-45 p.m. At Police Station Qadirpur by Muhammad Ayub M. R. C. (P. W. 4).
3. There are three eye-witnesses, namely Farid (P. W. 9) brother of the deceased, Theraj (P. W. 10) tenant of Muhammad Ghous like Farid (P. W. 9) and Muhammad Bakhsh (P. W. II).
' Turban (P. 1) was removed from the neck of the deceased and taken into possession on 3rd August 1970, vide memo. Exh. P. B. By the Sub-Inspector Abdul Hakim (P. W. 12) in the presence of Qazi Anwar Ali (P. W. 6) and one Mammi who was given up. Aril (P. 5) was taken into possession vide memo Exh. P. J. By the same Sub-Inspector in the presence of Muhammad Bakhsh and Allah Bakhsh. It was recovered from the courtyard of Dilmir appellant on 5th August 1970.
4. Dr. Muhammad Saeed Ahmad (P. W. 1) performed autopsy on the dead body of Sarwar on 4th August 1970 at 3-45 p.m. He found a contusion mark on the back of right elbow, a swelling on the outer lower half of the left upper arm and a bruise over the upper surface of right shoulder. Both lungs were congested. Frothy blood-stained fluid was coming out on compression of cut pieces of lung. Mucus membrane of both carotid arteries on dissection were found actually congested.
Tongue was swollen and its back part was congested and cyanosed. Mucus membranes were congested and petechial haemorrhage was present almost half full of semi digested and semi- solid meals. On receipt of the report from the Chemical Examiner on 13tb August 1970 to the effect that no poison was detected in the articles, sent by him the doctor opined that the cause of death was ,strangulation.
' On 5th August 1970 at 11-45 a.m. The same doctor examined Dilmir appellant and found four abrasions on his person, one on the back of the left chest across the scapula, the other on the back of right elbow, the third on the outer side of left shin and the fourth on the outer side of left leg. All these injuries were found to be simple and were caused by blunt weapon.
5. The first informant gave the prosecution story in the following words. "I am a servant of Makhdoom Ghous. My brother Sarwar is serving Mian Iftikhar. Today at 5 p.m. Sarwar left the house of Mien Iftikhar for his lands. Little thereafter I also followed him in order to bring the fodder. When my brother reached Basti Jogianwali Dakhli Shah Jewna the appellants came out of Bajra field raising lalkarai and attacked my brother. Sultan caught hold the hair of my brother and gave him a fist blow on his neck as a result of which he fell down on the ground. He then sat on his chest and tied turban round his neck strangulating him with both hands. He also gave blows by jumping over the chest and belly with his knees, Arif and Dilmir gave him blows with Sota and !Mina respectively.
I, Muhammad Bakhsh and Tharaj reached at the spot and got released my brother from the clutches of the assailants. By then he had expired on account of strangulation."
6. The motive for the crime was that three days before Mahia son of Sarwar deceased was beaten by sticks for the destruction of fodder by Dilmir. In return Sarwar on the next day gave stick blows to Dilmir and for this reason the appellants jointly killed the deceased. In answer to question No, 23 Dilmir has stated :- "Nothing happened on the 2nd August, 1970. On the. 3rd August 1970 at about digarwela I was going near Basti Jogian. Sarwar deceased challenged me. He had a sota with him. He told me that he had arrived to take revenge of the beating given by me to his son Mahla. I was empty handed. He gave me two or three rota blows. I apprehended that Sarwar would not leave me alive. I gave him two fist blows at the back of his neck. He fell down. Some persons arrived at the spot. I went away to my house. This is how I suffered the injuries."
' The other appellants denied their participation in the crime and pleaded their innocence.
7. We have carefully gone through the evidence with the help of learned counsel for the parties. We are of the view that the offence version of Dilmir is more plausible. The injuries on the person of the deceased seem to have been caused while wriggling on the ground. We are, therefore, not impressed with the prosecution evidence that the occurrence has taken place in a manner which the prosecution has described. The participation of the two appellants namely Sultan and Arif is highly doubtful. We would, therefore, give them benefit of doubt and acquit them. Case of Dilmir is different. File motive given by the prosecution is somewhat admitted by him with little variation. He had given beating to the son of the deceased and it is quite natural that when they will confront each other Sarwar would not abstain from causing injuries to him. The medical evidence supports this version that there are injuries on the person of the appellant Dilmir. The doctor was not sure in the first place to say what was the cause of death because there were no scratches on the neck.
From the post-mortem report it is quite visible that the deceased died of strangulation. This may be the result of injuries given by the appellant Dilmir or by pressing his neck with hands or turban.
When the appellant had thrown down his adversary after receipt of injuries at his hands he having overpowered him, it was 4 not necessary for him to have killed him, for the right only extended to his own safety from the apprehension of receiving grievous hurt. Although such a situation could not be weighed in golden measure but from the circumstances of the case we are of the view. That Dilmir appellant has exceeded the right of private defence in this case. His conviction is therefore altered from section 302 to section 304, Part I, P. P. C. And he is sentenced to ten years R. I. The appeal is accepted in the above terms. The reference is rejected.