' This judgment will dispose of Criminal Appeal No,102-J of 1992 filed by Ghulam Sarwar alias Bholi, who was convicted and sentenced to undergo life imprisonment under section 302, P.P.C., with a fine of Rs,10,000 (ten thousand) for the murder of Manzoor Hussain, in default 2 years R.I. He was also directed to pay compensation of Rs,10,000 (ten thousand) under section 544-A, Cr.P.C., in default 6 months R.I. In case he fails to pay compensation it was ordered that the same will be recoverable as arrears of land revenue. This judgment was passed on 23-6-1988 by the learned Additional Sessions Judge, Lahore. Benefit under section 382-B, Cr.P.C., was also granted to appellant.
2. The occurrence in this case took place on 13-5-1986 at 7-30 p.m. In Ichhra Bazar in front of Saw Machine {{URDU TEXT}} and the matter was reported to the police at 9-30 p.m.
3. The brief facts of the case are that complainant Muhammad Mukhtar alias Piranditta P.W.5 was residing with his deceased brother Manzoor Hussain alias Zahura alongwith their parents in the area of Nasirabad. The complainant sent Manzoor Hussain deceased to Bhabra Bus stop to purchase ice where accused Ghulam Sarwar alias Bholi was also present. He was neighbour of the complainant. An altercation took place between the accused and the deceased as accused cut a dirty joke with the deceased. They grappled with each other but were separated from each other by Muhammad Iqbal son of Sadar Din P.W.4. Ghulam Sarwar accused, however, extended threats that he will teach a lesson for his insult rather he will create a miracle. That complainant Muhammad Mukhtar, Muhammad Siddique son of Ali Sheikh P.W.6, Muhammad Hanif P.W.3, and Lal Din son of Raj Din not produced were talking at road side in front of the Saw Machine of one Idrees situated at Nasirabad, Ferozepur Road, Lahore, when deceased after having purchased ice reached there and narrated the occurrence. Meanwhile, as they were talking about it Ghulam Sarwar accused armed with Chhurri came there from his home and shouted at the deceased that he will not go alive and attacked at the deceased with 'Chhurri' which hit on the chest toward right side. The deceased tried to snatch the chhurri and during struggle accused also sustained minor injuries and deceased's right hand's finger was also injured. The complainant tried to intervene but accused Ghulam Sarwar raised Lalkara that if anybody tried to approach him he will meet the same fortune. Manzoor Hussain deceased meanwhile fell on the ground and Ghulam Sarwar alias Bholi left the accused flourishing his 'chhurri'. The complainant removed the deceased to General Hospital where he succumbed to his injuries.
4. The motive stated to be is that an altercation took place between the deceased and the accused about 3/4 days prior to the occurrence on a dirty joke. -
5. The Investigating Officer after reaching the spot collected blood-stained earth from the spot through sealed parcel vide memo. Exh.P.D. The appellant was arrested on 16-5-1986. He got recovered knife (Chhurri) P.3 on 23-5-1986 which was taken into possession vide memo. Exh.P.F.
6. Prosecution in order to prove its case produced 11 witnesses in all. Amongst them there are 3 eye-witnesses namely Muhammad Hanif P.W .3, Muhammad Mukhtar P.W .5 (complainant) brother of the deceased and Muhammad Siddique P.W.6.
7. Mian Muhammad Danishmand learned counsel for the appellant appointed by me at State expenses after reading the evidence of the P.Ws., statements of the appellant and two D.Ws., submits that prosecution has not approached the Court with clean hands. He submits that the appellant was also injured but the police intentionally in connivance with the complainant did not get him medically examined. It is also contended that appellant had also given an application to the learned Magistrate for his medical examination but no action was taken on that application. It is also contended that in fact the appellant was given a 'Phatti' blow on his head and he was apprehending further blows from the hands of the deceased and his companions, that he caused solitary injury on the person of the deceased in order to save his life, that all the eye-witnesses produced by the prosecution did not approach the Court with clean hands. He also submits that appellant in order to prove his innocence had produced two D.Ws. And their evidence cannot be discarded.
8. Learned counsel for the State, on the other hand submits that the appellant was armed with 'Chhurri'. He gave a knife (Chhurri) blow on the chest of the deceased which is vital part but he concedes that both the appellant and the prosecution witnesses had not approached the Trial Court with clean hands.
9. I have heard the learned counsel for the parties and have also gone through the evidence recorded by the Trial Court. From the first day the plea of the appellant was that he was given a blow with wooden 'Phatti' by the deceased, that he was apprehending a great danger to his life by the deceased and his companions and he grappled with the deceased and both of them fell on the ground but deceased received a 'chhurri' blow which was lying on the ground. This defence of the appellant is also an absurd one. Both the appellant and the prosecution, as submitted by the learned counsel for the State, did not approach the Court with clean hands but this fact cannot be denied that the appellant was also injured in this occurrence. This is an occurrence which took place in the year 1986 and since then the appellant is behind the bars. Conviction of the appellant is altered from section 302, P.P.C., to section 304, P.P.C. The sentence which he has already undergone is treated to be sufficient in the interest of justice and in the circumstances of the case.
Direction of payment of fine and compensation is set aside because the case in hand, in my opinion, is case of self-defence and it has been held by the Hon'ble Supreme Court that in case of grave and sudden provocation and also in cases of self-defence no fine or compensation shall be granted.