' This appeal is directed against the judgment dated 24-11-1994 passed by the leanred Additional Sessions Judge, Faisalabad whereby he convicted the appellants to different sentences.
2. Briefly stated the facts are that Muhammad Akram complainant (P.W.8) was resident of Partab Nagar, Faisalabad and had dome to Chak No,261-RB -to see his uncle Bashir Ahmad. When he reached his house, he found that his uncle Bashir Ahmad along with his sons Muhammad Ashfaq and Muhammad Asghar had gone to his fields. Accordingly at about 2-00 p.m. He along with Muhammad Arshad son of Bashir Ahmad and Muhammad Ali son of Feroze Din made for the said fields. When they reached near Square No,61, Killa No,5, Muhammad Ashraf and Muhammad Akbar armed with daggers, Muhammad Asghar armed with Toka, Muhammad Akhtar armed with hatchet and Inayat Ali empty-handed passed by their side. Just at that time his uncle Bashir Ahmad along with his sons was on their way to their house. Seeing them coming, Inayat Ali raised Lalkara that they be taught a lesson for causing injuries to Muhammad Ashraf. Thereupon, Muhammad Ashraf accused gave a dagger blow which hit Muhammad Ashfaq at his abdomen at right side, Muhammad Asghar gave a Toka blow which hit Bashir Ahmad deceased on his right hip joint, Muhammad Akbar accused gave a dagger blow which hit Bashir Ahmad deceased at his ribs' left side. Muhammad Akhtar accused gave blow with hatchet hitting Bashir Ahmad deceased on his right arm. Muhammad Asghar gave Toka blow which hit Bashir Ahmad at his head. Muhammad Ashraf gave a dagger blow landing upon Muhammad Asghar P.W. At his left buttock. Muhammad Akhtar accused gave hatchet blow which hit Muhammad Asghar P.W. At the left side of his abdomen. Thereafter Muhammad Ashraf accused started giving blows with dagger to Muhammad Asghar P.W. The complainant Muhammad Akram along with Muhammad Ali and Muhammad Arshad witnessed the occurrence and tried to rescue the injured from the hands of accused who raised Lalkara that if any one of them tried to intervene he would face the same consequences. The assailants then fled away from there. While the injured were being removed to District Headquarter Hospital, Faisalabad Muhammad Ashfaq succumbed to the injuries and Bashir Ahmad deceased expired in the hospital. Muhammad Asghar P.W. Was, however, admitted in hospital for treatment.
3. The motive behind this occurrence was a quarrel which took place between Muhammad Ashfaq deceased and Muhammad Ashraf accused on 19-11-1993 at noon time, when a bullock of accused party damaged the maze crop of complainant party and was turned out of the field by Muhammad Ashfaq deceased. Both Muhammad Ashraf and Muhammad Ashfaq exchanged hot words and Muhammad Ashfaq gave beating to Muhammad Ashraf, who left the place extending threats of dire consequences. Consequently Muhammad Ashfaq along with his companions launched attack on the complainant, resulting into death of Bashir Ahmad, Muhammad Ashfaq , and causing injuries to Muhammad Asghar. Muhammad Akram (P.W:8) then made for the police station to lodge the report. However, Anwar Khan, S.I. (P.W.11) met him at Dijkot Bus-stop and recorded complaint Exh.PA on the basis of his statement.
4. Anwar Khan, S.I. (P. W.11) then made for D.H.Q. Hospital, Faisalabad. He prepared injury statement of Muhammad Ashfaq Exh.PL, inquest report Exh.PM, and handed over the dead body of Muhammad Ashfaq to Liaqat Ali Constable for postmortem examination. He moved applications Exh.PN and Exh.P0 to Medical Officer to enquire if Bashir Ahmad and Muhammad Asghar injured were fit to make statement or not, upon which the report was in negative. He was informed that Bashir Ahmad had died as such he prepared his statement of injury Exh.PP, inquest report Exh.PQ and handed over the dead body to Liaqat Ali Constable for post-mortem examination. On 20-11- 1993 he visited the place of occurrence, secured blood-stained earth from three different places pertaining to Muhammad Ashfaq deceased, Bashir Ahmad deceased and Muhammad Asghar injured and made sealed parcels of the same vide memos. Exh.PK, Exh.PJ and Exh.PL respectively.
On 21-11-1993 he prepared a rough site plan of place of occurrence Exh.PR. Liaqat Ali, Constable produced last worn clothes of Bashir Ahmad and Muhammad Ashfaq deceased which he secured vide memo. Exh.PB and Exh.PC respectively. On 23-11-1993 he got the site plan Exh.PG and Exh.PG/1 prepared from Bashir Ahmad, Patwari (P.W.5). On 28-11-1993 he arrested the accused. On 8-12-1993 the accused Muhammad Asghar, Muhammad Akbar and Muhammad Akhtar led to the recovery of dagger P.5, Dagger P.6 and hatchet P.7 respectively which he secured vide memos. Exh.PD, Exh.PE and Exh.PF respectively. After completing the investigation he submitted the challan.
5. A charge under sections 302, 324, 148 and 149, P.P.C. Was framed against the accused to which they pleaded not guilty and claimed trial.
6. To prove its case prosecution examined P.W.1 Muhammad Rashid, H.C. Who on 19-11-1993 on the basis of complaint Exh.PA, drafted a formal F.I.R. Exh.PA/1. He further deposed that on 20-11-1993 the I.O. Handed over two parcels of blood-stained earth which he delivered to Liaqat Ali, Constable on 7-12-1993 for onward transmission to the Office of Chemical Examiner, Lahore, that on 9-12-1993 he was given parcels of blood-stained earth, bloodstained dagger and of blood-stained hatchet which he delivered to Liaqat Ali, Constable on 13-12-1993 for delivering the same in the Office of Chemical Examiner,, Lahore. P.W.2 Liaqat Ali, Constable deposed that on 19-11-1993 he was given the dead bodies of Muhammad Ashfaq and Bashir Ahmad for post-mortem examination which was conducted on 20-11-1993. He was given the last worn clothes of deceased Bashir Ahmad and Muhammad Ashfaq deceased which he delivered to the Investigating Officer, who secured the same vide memos. Exh.PB and Exh.PC respectively. He also corroborated the version of Muhammad Rashid. H.C. (P.W.1) regarding delivering of parcels for onward transmission to the Office of Chemical Examiner, Lahore. Muhammad Arshad P.W.3 deposed about identifying the dead bodies of deceased at the time of their postmortem examination on 20-11-1993. P.W.4 Abdul Rashid deposed about recovery of weapon of offence at the hands of accused Muhammad Ashraf, Muhammad Akbar and Muhammad Akhtar and attesting of Exh.PD, Exh.PE and Exh.PF respectively.
He stated that all the said articles were blood-stained and were secured in the presence of Javed Iqbal P. W. Bashir Ahmad, Patwari P.W .5 is the scriber of site plans Exh.PG and Exh.PG/1 which he handed over to the Investigation Officer. P.W.6 Dr. Capt. Maqbool Ahmad Bandisha deposed that on 20-11-1993 he conducted the post-mortem examination of Bashir Ahmad and found the following three injuries on his person:--
(1) A stabbed wound 4 x 1 c.m. (into left atrium of heart) on front of left side of chest 26 c.m. Out and below from the top of left shoulder and 14-1/2 c.m. From the midline.
(2) A stabbed wound 3 x 1 c.m. Bone deep on right side front of abdomen 14 c.m. Away from umblicus above right illiac crest.
(3) An incised wound 2 x 3/4 c.m. x bone deep on lower and outer part of right arm, 3 c.m. Above from right elbow.
' In his opinion the cause of death was heamorrhage and shock due to injury No,1 which was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem in nature and were caused by sharp-edged weapon. Injuries Nos.1 and 2 were grievous and injury No,3 was simple in nature. The time between injury and death was about 3 hours and between death and post-mortem examination was about 16 hours. He produced the correct corbon copy of post-mortem examination report Exh.PH and sketch of injuries Exh.PH/1. On the same day he conducted the post-mortem examination of Muhammad Ashfaq deceased and found the following injury on his person:--
(1) A stabbed wound 3-1/2 c.m. x 1-1/2 c,m. x abdominal cavity on the right side of front of abdomen 16-1/2 c.m. Below from right nipple 8-1/2 c.m. Right to midline.
' In his opinion the cause of death was heamorrhage and shock due to injury No,1 which was sufficient to cause death in the ordinary course of nature and was ante-mortem in nature.
Probable time between injury and death was 1 hour and between death and post-mortem examination was about 20 hours. He produced corbon copy of post-mortem examination report Exh.PI and sketch of injuries Exh.PI/1. He further deposed that on 30-11-1993 he examined Muhammad Ashraf son of Inayat Ali accused and found the following injuries on his person:--
(1) A healed wound 4 x .08 c:m. On the left top of head 10 c.m. Above from left tragus of ear.
(2) Abrasion healed 6 x 1 c.m. On back of forearm.
(3) Abrasion healed 2 x 1/2 c.m. On outer side of lower and left arm.
' He issued M.L.R. Exh.DA and sketch of injuries Exh.DA/1. On the same day he also examined Akbar Ali son of Muhammad Ashraf accused and found the following injuries on his person:--
(1) Complaints of pain at head.
(2) abrasion healed 2 x 1 c.m. On the back of left forearm with complaint of pain at left forearm at the abrasion side.
(3) Complaints of painback of right shoulder.
(4) Healed abrasion 4 x .7 c.m. Front of upper part of right leg.
' He issued M.L.R. Exh.DB and sketch of injuries Exh.DB/1. P.W.7 Muhammad Asghar is an eye-witness of this occurrence and has corroborated the prosecution version given by Muhammad Akram complainant (P.W.8). He further deposed that he was medically examined and was also admitted in the hospital. Muhammad Akram complainant P.W.8 has corrborated his version appearing in complaint Exh. PA. He further deposed that he met Anwar Khan, S.I. (P.W.11) at Dijkot Bus-stop who recorded complaint on the basis of his statement. Muhammad Ashraf P.W.9 is another eye-witness of this occurrence who also supported the prosecution version and further stated that on the same day police had secured blood-stained earth from the place of occurrence of Bashir Ahmad and Muhammad Ashfay deceased as well as Muhammad Asghar injured vide memos. Exh.PJ, and Exh.PL respectively. Dr. Abdur Rehman P.W.10 deposed that on 19-11-1993 he examined Asghar Ali injured and found 8 injuries on his person which are as follows:-
(1) An incised wound 4-1/2 x 1/2 c.m. Into muscle deep on right buttock.
(2) Stab wound 3-1/2 c.m. x 1 c.m. D.N.P. On right chest front lower part outer side.
(3) Stab wound 2 c.m. x 1/2 c.m. D.N.P. On back right chest lower pail.
(4) Lacerated wound 2 c.m. x 1/2 c.m. Bone deep on right side front of head.
(5) Incised wound 2 c.m. x 1/2 c.m. Scalp deep on right side back of head.
(6) Contused swelling 4 c.m. x 4 c.m. On back of right elbow.
(7) Stab wound 4 c.m. x 4-3/4 c.m. D.N.P. On back of left chest middle part.
(8) Incised wound 1-1/2 c.m. x 1/2 c.m. Muscle deep on back of left forearm upper part.
' He also issued M.L.R. Exh.PJ. On the same day, he examined Bashir Ahmad son of Sher Muhammad injured and found the following three injuries on his person:-
(1) Stab wound 4 x 1 c.m. D.N.P. On left side front of chest lower part outer side.
(2) Stab wound 3 x 1 c.m. D.N.P. Right side front of abdomen lower part 14 c.m. From umbilicus.
(3) Incised wound 2 x 3/4 c.m. On right arm of lower part outer side.
' He also issued M.L.R. Exh.PK which bears 4is signature. Anwar Khan, S.I. P.W.11 is the Investigating Officer of this case whose evidence has already been discussed above. Thereafter the learned D.D.A. Produced reports of Chemical Examiner Exh.PS and Exh.PT and of Serologist Exh.PU and Exh.PV and closed the case for prosecution.
7. When examined under section 342, Cr.P.C. The accused Muhammad Ashraf denied the prosecution version and stated that he had been involved in this case falsely. While replying the question No,7 as to why the case had been against him and why the P.Ws. Had deposed against him? He replied as follows:-- "The case is false. The P.Ws. Have deposed falsely because of their relationship with the deceased Muhammad Ishfaq and Muhammad Bashir and because of enmity with us. The actual facts are that on the day of occurrence at the alleged time of occurrence, Muhammad Asghar P.W., Muhammad Ishfaq and Muhammad Bashir both deceased attacked upon me and my, son Akbar when I and Muhammad Akbar were going to our land from our home in routine. Muhammad Asghar P.W., Muhammad Ishfaq and Muhammad Bashir both deceased had hidden themselves in the sugarcane crop near the alleged place of occurrence. Muhammad Asghar P.W. Was armed With hatchet, Bashir Ahmad and Muhammad Ishfaq were armed with Sotas. They reached the Katcha road and wanted to attack us. We tried to save ourselves and ran towards Killa No,5, Sq.
No,61 of Chak No,261RB Muhammad Asghar P.W., Bashir Ahmad and Muhammad Ishfaq chased us and gave injuries to me and my son Muhammad Akbar with their weapons upon which my co- accused Muhammad Akbar took out a knife from his pocket and I with the Sota, which I usually use to have while going to the land, _gave some injuries to Bashir Ahmad, Muhammad Ishfaq deceased and Muhammad Asghar P.W. In order to save ourselves from the aggression which was committed upon us by Muhammad Asghar P.W. As mentioned above in the right of our self- defence. We informed the police immediately after the occurrence but because of death of Bashir Ahmad and Muhammad Ishfaq police did not register our case and delayed our examination of me and my son Akbar in order strengthen the prosecution case."
' Similarly, the accused Muhammad Akbar denied the prosecution version and in reply to question No,6 as to why this case and why the P.Ws. Have deposed against him? He replied as follows:-- ' On 19-11-1993 at about 2 p.m. I along with my father Muhammad Ashraf were going towards our field in routine. When we reached near Killa No,5, Sq. No,61 at Katcha Road, Muhammad Asghar P.W.
Armed with hatchet, Bashir deceased armed with Sota, Muhammad Ishfaq deceased armed with Sota were sitting in an ambush in 3,igarcane field and launched attack on us. We ran towards Killa No,5 above said to rescue ourselves. The above said 3 persons chased as and started giving blows to me and my father Aslica.7. I was having a knife in my pocket which 1 took out. My co-accused Ashrat was having a Sota with him And after receiving injuries at the hands of Muhammad Asghar P.W., Bashir Ahmad and Muhammad lshfaq, both deceased, 1 and my co-accused Ashraf gave some injuries to them in the right of self-defence in order to save ourselves. From their aggression.
The case is false. The P.Ws. Have deposed falsely because of their relationship with both the deceased and because of enmity with us. Muhammad Asghar P.W., Bashir Ahmad and Muhammad lshfaq nourished a grudge against us for the quarrel which took place between me and Muhammad Ashfaq a day prior to the present occurrence while we were playing football in Killa No,20 of Sq. No,61, Chak No,261RB. Myself and my co-accused Muhammad Ashraf appeared before police and informed about the occurrence but because the death of Muhammad Ishfaq and Bashir Ahmad police did not register the case against the complainant party for the aggression committed upon me and my father. On the contrary the police intentionally delayed our arrest and the medical examination in order to strengthen the prosecution case.
' The accused Akhtar Ali when examined he stated that he was not present at the spot and relied upon the further statement of his co-accused Muhammad Ashrat He stated that he would lead defence evidence. And accordingly produced documents Exh.DF and Exh.DG on 14-11-1993 and closed his defence evidence. The accused Inayat All also stated that he was not 'present at the spot and relied upon the detailed statement of his co-accused Muhammad Ashraf. He stated that he would not lead any defence evidence. The accused Muhammad Asghar also claimed his innocence and refused to adduce any defence evidence.
8. After hearing the learned counsel for the parties and going through the record, the trial Court convicted Muhammad Ashraf and Muhammad Akbar Ali accused/appellants under section 302, Part H, P.P.C. And sentenced each of them to life imprisonment and compensation amounting to Rs,50,000 to the legal heirs of Muhammad Ashfaq and Bashir Ahmad deceased. They were also ordered to pay compensation of Rs,10,000 each to Asghar Ali P.W. Both the said appellants were also sentenced to pay a fine of Rs,10,000 each or in' default thereof to further undergo R.I. For 2 years each. Both of them were further convicted under section 324 P.P.C. And were' sentenced to 7 years' R.I. For launching attack on Asghar Ali P.W. The accused/appellant Akhtar Ali was convicted under section 302, Part III, P.P.C. And was sentenced to R.I. For 7 years. All the accused/appellants were extended benefit of section 382-B, Cr.P.C. The accused Inayat Ali was extended benefit of doubt and was accordingly acquitted. The accused/appellants have felt aggrieved and filed this appeal. Along with this appeal Criminal Revision No,21 of 1995 has also been filed by Muhammad Akram for the enhancement of sentence awarded to accused/appellants. As both the instant appeal and Criminal Revision No,21 of 1995 arise out of the same judgment, so the same are being disposed of by this single judgment.
9. Arguments have been heard and record perused with the assistance of the learned counsel for the appellants, for the State and for the complainant.
10. Learned counsel for the appellants has assailed the prosecution evidence from three different angles. His first contention is that as F.I.R. Has been lodged at another ace than the police station, so it is presumed to have been lodged after due consultation and preliminary investigation and as such no simplicity reliance can be placed upon its contents and relied upon Muhammad Ashraf and another v. The State 1989 PCr.11 1453 is next contention is that ocular account which has conic on record through the statements of Muhammad Asghar (P.W.7), Muhammad Akram complainant (P.W.8) and Muhammad Arshad (P.W.9) is in conflict with the medical evidence of Dr. Capt.
Maqbool 'Ahmad (P.W.6), who conducted the post-mortem examination of Bashir Ahmad and Muhammad Ashfaq deceased and also examined Muhammad Ashraf and Akbar Ali accused/appellants. He contended that complaint Exh.PA is silent about the injuries on the person of accused/appellants, as such no reliance can he placed on such ocular account and relied upon Naik Muhammad alias Noata v. The State (1996 SCM R 317). He next argued that occurrence in the instant case stands admitted and it is evident that accused while inflicting injuries on the person of deceased Bashir Ahmad and Muhammad Ashfaq as well as Muhammad Asghar injured had not exceeded the right of their self-defence. He argued that at the time of alleged occurrence the .Accused were in imminent danger and had they not acted in their self-defence they would have been killed by the complainant party. He canvassed that case of the accused/appellants was covered by section 106, P.P.C. .And accused/appellants were entitled to acquittal in the peculiar circumstances of this case and relied upon Liaqat v. The State (1994 SCM R 1161). He thus submitted that the impugned judgment has not been passed in accordance with law as such appeal may be accepted and the accused/appellants be acquitted.
11. Conversely the learned counsel for the State assisted by learned counsel for the complainant have supported the impugned judgment. Learned counsel for the complainant further submitted that all the accused/appellants have not been awarded the prescribed punishment and further prayed for the enhancement of the same. In support of their contention they relied upon (1992 SCM R 309 and 1625).
12. As per prosecution stand, incident took place at about 2-00 p.m. And the statement of - complainant was recorded at 5-00 p.m. When he met Anwar Khan. S.I. (P.W.11) at Bus-stop Dijkot while on his way to the police station for lodging the F.I.R. The mere fact that F.I.R. Has been lodged at a place other than the police station does not mean that instant F.I.R. Is the result of due consultation and preliminary investigation. As the incident is admitted so the contention of the learned counsel for the appellants that F.I.R: has been lodged after due consultation and preliminary investigation, is devoid of any force.
13. Much stress has been laid on the point that as the complainant party attacked the accused party so it was in retaliation that accused party inflicted injuries in the exercise of right of self- defence. There are two versions of the incident. The stand of complainant is that while the deceased Bashir Ahmad along with Muhammad Ash lay and Muhammad Asghar were returning from their fields, they were waylaid and attacked by the accused party. On the other hand, the stand of accused/appellants is that they had not initiated the attack but were the victim of attack, on the part of complainant party. Now is to be seen which of the versions is nearer the truth. A perusal of record shows that as a result of attack of the accused party, Bashir Ahmad deceased received three injuries out of which injuries Nos.1 and 2 are stab wounds whereas injury No,3 is an incised wound, Similarly the other deceased Muhammad Ashfaq also received one injury on his person which has been declared a stab wound. The injured Asghar Ali was also examined on the same day and as many as 8 wounds have been found on his person. Out of the said wounds; injuries Nos.1, 5 and 8 are incised wounds whereas injuries Nos.2, 3 and 7 are stab wounds. On the other hand Inayat Ali accused was examined on 30-11-1993 and three injuries were found on his person, out of which injury No,1 was a healed wound whereas injuries Nos.2 and 3 were simple abrasions. Akbar Ali accused/appellant was also examined on 30-11-1993 and four injuries were found on his person, out of which injuries Nos.2 and 4 are healed abrasions whereas injuries Nos.1 and 2 pertained to complaints of pain. Now if the injuries on the person of complainant party are compared with the injuries received by the accused party, it becomes clear that it was the accused party who was aggressor and not the complainant party. Incised wounds and stab wounds on the persons of the deceased as well as injured clearly show that accused party had come fully prepared for attack and it was they who launched the attack and caused injuries to the complainant party. There is no doubt that right of private defence is available to a person when he is put in danger of life. But in the instant case it is not proved from record that they were in danger of life at the hands of complainant, party. It proves from record that accused party had come fully prepared for launching an attack and had caused the injuries to the deceased as well as to the injured. The presence of injuries on the person of accused in no way proves that they have caused the injuries to the deceased as well as injured in the exercise of their right of self-defence. On the other hand it clearly evinces that they exceeded the right of self-defence in causing injuries culminating into the death of Bashir Ahmad and Muhammad Ashfaq as well as causing injuries to Muhammad Asghar P.W.
14. It may also be mentioned here that it has been argued by the learned counsel for the accused/appellants that complainant Muhammad Akram (P.W.8) has suppressed the injuries on the person of Muhammad Ashraf and Akbar Ali accused/appellants. There is no doubt that complaint Exh.PA is silent about the injuries on the person of accused named above. However, a perusal of injuries on the person of Muhammad Ashraf and Akbar Ali accused/appellants clearly reveal that the said injuries are of negligible nature. Thus it cannot be held that the said injuries have been intentionally suppressed by Muhammad Akram complainant (P. W .8).
15. The upshot of above discussion is that when the prosecution version is kept in juxta-position with the defence version, it proves beyond any shadow of doubt that accused party transgressed the right of their self-defence and committed the murder of deceased Bashir Ahmad and.
Muhammad Ashfaq and caused injuries to Muhammad Asghar P.W. Accordingly the trial Court has convicted and sentenced the accused/ appellants in accordance with law. The impugned judgment does not call for any interference, as such the appeal fails and is hereby dismissed. The accused/appellant Muhammad Akbar Q Akbar Ali is on bail. His bail bonds are cancelled. He is ordered to be taken into custody and sent to jail to serve out the sentence awarded to him.
16. With the disposal of appeal Criminal Revision No,21 of 1995 becomes in fructuous and as such stands disposed of.