' ASIF SAEED KHAN KHOSA, J.---Muhammad Khalil appellant was convicted for an offence under section 302, P.P.C. By the learned Sessions Judge, Sheikhupura vide judgment, dated 6-10-1994 and was sentenced to death and a fine of Rs,20,000 or in default of payment thereof to suffer rigorous imprisonment for a period of three years. It was ordered that the fine, if recovered, shall be paid to the heirs of Muhammad Arshid alias Achhu deceased. The appellant was also ordered to pay a sum of Rs,20,000 to the heirs of the said deceased by way of compensation under section 544-A, Cr.P.C. The appellant has challenged his conviction and sentences before this Court though Criminal Appeal No, 539 of 1994 which has been heard by us along with Murder Reference No, 239 of 1994 seeking confirmation of the sentence of death passed against him. We propose to decide both these matters together through the present consolidated judgment.
2. The prosecution story narrated in the F.I.R. Was that Muhammad Yagoob complainant was a resident of Mauza Kot Pindi Das, situated within the area of Police Station Factory Area, District Sheikhupura and was an agriculturist by profession On 13-12-1992 Muhammad Khalil appellant and his father namely Khurshid had quarrelled with each other and the complainant's brother namely Muhammad Arshid alias Achhu had reprimanded the appellant as to why he was calling bad names to his father whereupon the appellant had become angry. During the said incident Muhammad Arshid alias Achhu had repeatedly slapped the appellant regarding which the appellant bore a grudge against Muhammad Arshid alias Achhu. At about 4-00 p.m. On 15-12-1992 the complainant's brother Muhammad Arshid alias Achhu went out of his house to buy vegetables and when he reached near the house of one Bashir the appellant, who was hiding in a corner of the street, emerged there armed with a Chhurri and shouted a Lalkara to the effect that he would teach Muhammad Arshid alias Achhu a lesson for his insult. The appellant then gave a Chhurri blow to Muhammad Arshid alias Achhu hitting him at his front chest on left upper part of his abdomen. The second blow of chhurri was given by the appellant to Muhammad Arshid alias Achhu at his left flank below the arm. The third Chhurri blow given by the appellant landed at Muhammad Arshid alias Achhu's neck a little above his shoulder. The fourth and last blow was given by the appellant to Muhammad Arshid alias Achhu at his right flank above the hip-joint.
Muhammad Arshid alias Achhu fell down upon receipt of those injuries. He then stood up and started running but after taking a few paces he again fell down and died at the spot. The appellant then started running away from the place of occurrence but by that time upon the hue and cry raised' by Muhammad Yaqoob complainant Muhammad Hanif, Muhammad Hussain, Muhammad Khalil and Nisar Ahmad P. Ws. Had also reached the spot and they also witnessed the incident.
They all tried to apprehend the appellant but he managed to run away while shouting Lalkaras and brandishing his Chhurri. Leaving the dead body of his brother at the place of occurrence in the case of Muhammad Hanif and Muhammad Siddique P.Ws. Muhammad Yaqoob complainant then left for reporting the incident to the police.
3. Upon the statement of Muhammad Yaqoob complainant F.I.R. No, 516 was recorded at Police Station Factory Area, District Sheikhupura on the same day at 5-30 p.m. For an offence under section 302, P . P.0 . Li aqat Ali, Inspector/S.H.O. (P .W .9) had recorded the said F.I.R.
4. After recording the F.I.R. Liaquat Ali, Inspector/S.H.O. (P.W.9) took up the investigation of this case and proceeded to the place of occurrence whereat he prepared an injury statement as well as an inquest report in respect of the deceased and then dispatched the dead body to the mortuary for autopsy. He then inspected the place of occurrence, prepared a rough site-plan thereof and secured blood-stained earth therefrom. He also recorded the statements of witnesses at the spot.
5. Post-mortem examination of the dead body of Muhammad Arshid alias Achhu was conducted by Dr. Muhammad Naeem (P.W.8) at 11-00 a.m. On 16-12-1992. The doctor had found six injuries on the dead body which were all ante-mortem. Injuries Nos.1 to 5 had been caused by sharp-edged weapon whereas injury No,6 had been caused by blunt weapon. The cause of death was severe shock and haemorrhage leading to cardio-respiratory arrest. All the injuries collectively and injury No,2 individually were sufficient to cause death in the ordinary course of nature. Probable time elapsing between the injuries and death was immediate whereas the same between the death and postmortem examination was within twenty-four hours.
6. After post-mortem examination of the dead body Liaquat Ali, Inspector/S.H.O. (P.W.9), the Investigating Officer, received the last-worn blood-stained clothes of the deceased on the same day. Subsequently he got a formal site-plan of the place of occurrence prepared by a draftsman.
The appellant was arrested by him on 27-12-1992. At the time of his arrest the appellant had injuries on his person and, therefore, through an application (Exh. P.I) submitted by the investigating officer, the appellant was got medically examined for his injuries.
7. Dr. Muhammad Riaz (P.W.7) medically examined the appellant at 3-10 p.m. On 27-12-1992 and found three injuries on his person which had been caused by blunt weapon within a duration of approximately two weeks.
8. During the investigation Liaquat Ali, Inspector/S.H.O. (P.W.9) recovered a bloodstained. Chhurri at the instance of the appellant. Thereafter, he completed the other formalities, concluded his investigation and submitted a challan against the appellant.
9. At the commencement of the trial a charge under section 302, P.P.C. Was framed by the learned trial Court against the appellant to which he pleaded not guilty and claimed a trial.
10. During the trial the prosecution produced as many as nine witnesses in support of its case against the appellant. Muhammad Yaqoob complainant (P.W.5) and Muhammad Hanif (P.W.6) furnished the ocular account and also stated about the motive. Muhammad Hanif (P.W.6) also deposed about the recovery of a blood-stained Chhurri from the appellant's custody during the investigation Dr. Muhammad Riaz (P.W.7) and Dr. Muhammad Naeem (P.W.8) provided the medical evidence. Liaquat Ali, Inspector/S.H.O., (P.W.9) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
11. In his statement recorded under section 342, Cr.P.C. The appellant denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. He had categorically maintained that it was Muhammad Arshid alias Achhu deceased who had in fact attacked him and had caused him injuries with his Chhurri. It was maintained by the appellant that he had been implicated in this case by the prosecution witnesses due to enmity and party faction and because of their close relationship with the deceased. He had gone on to maintain that he was innocent and that the prosecution had twisted the real facts on account of ulterior motives.
The appellant had, however, opted not to make a statement on oath under section 340(2), Cr.P.C.
And he also did not produce any witness in his defence.
12. At the conclusion of the trial the learned Sessions Judge, Sheikhupura found the prosecution's case against the appellant to have been proved beyond reasonable doubt and, thus, the appellant was convicted and sentenced as mentioned and detailed above. Hence, the present appeal and the connected Murder Reference before this Court.
13. We have heard the learned counsel for the appellant as well as the learned counsel for the State and the complainant and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellant that the appellant had acted in the exercise of his right of private defence and the same had not been exceeded by him. Thus, according to the learned counsel for the appellant, the appellant had wrongly been convicted and sentenced by, the learned trial Court under section 302(b), P.P.C. In the alternative it has been argued by the learned counsel for the appellant that at worst the appellant had exceeded his right of private defence and, therefore, he ought to have been convicted and sentenced under section 302(c), P.P.C. As against that the learned counsel for the State and the complainant have maintained that the guilt of the appellant had been proved to the hilt and that the conviction as well as sentences recorded against him by the learned trial Court did not warrant any interference by this Court.
14. After hearing the learned counsel for the parties and going through the record we have noticed that the appellant had accepted his presence and participation in the occurrence not only in his suggestions put to the eye-witnesses produced by the prosecution but also in his statement made under section 342, Cr.P.C. We have also noticed that the appellant was related to the complainant party inasmuch as Muhammad Yaqoob complainant had maintained that the appellant was his nephew as he was a son of his paternal cousin. The complainant had further elaborated that the father of the appellant was a son of a younger brother of the complainant's father. According to the complainant, Muhammad Hanif (P.W.6) was also related to him. No reason was available on the record prompting the said witnesses to falsely implicate the appellant in a case of this nature.
The appellant had failed to point out any background of serious or bitterness between the parties for the appellant's false implication on a capital charge. Recovery of a blood-stained Chhurri from the appellant's possession during the investigation had provided corroboration to the ocular account which had also found ample support from the medical evidence. In this view of the matter we are quite sanguine that it was none other than the appellant who had perpetrated the murder in question.
15. We have, however, found that the motive set up by the prosecution had remained far from being proved. Muhammad Yaqoob complainant (P.W.5) and Muhammad Hanif (P.W.6) had not witnessed the alleged incident of motive and, therefore, their statements in that regard were nothing but hearsay. Liaqat Ali, Inspector/S.H.O. (P.W.9) had conceded that he had not conducted any investigation regarding the alleged incident of motive and had also failed to join the father, mother or sister of the appellant in the investigation so as to confirm the alleged motive. In these circumstances it was not clear as to what had propelled the appellant into aggression against the deceased. We have also significantly noticed that both Muhammad Yaqoob complainant (P.W.5) and Muhammad Hanif (P.W.6) had not witnessed the origin of the present incident. According to the F.I.R. Both the said witnesses were not accompanying the deceased at the time of inception of the occurrence and both of them had been attracted to the place of occurrence upon the hue and cry emanating from the place of occurrence. During the trial both these witnesses had completely omitted to explain as to how and at what point of time they had joined the deceased at the place of occurrence. If these witnesses had actually not witnessed the inception of the occurrence then they were not in any position to state as to who had initiated the assault. Thus, in the absence of any independent proof to contradict the same the plea of exercise of right of private defence advanced by the appellant could well be true. It is critically important to mention in this context that at the time of his arrest the appellant was found by the Investigating Officer to be carrying injuries on his person and the medical evidence produced by the prosecution itself had confirmed that the injuries found on the person of the appellant had been sustained by him at or around the same time as the sustaining of injuries by the deceased. Sustaining of injuries by the appellant during the same incident having been proved it had then become imperative for the prosecution to explain the said injuries on the person of the appellant but, unfortunately, the said injuries of the appellant were never explained by the prosecution at all. The locale of the injuries sustained by the appellant was such that it could .Reasonable be maintained that the appellant had suffered the said injuries while warding off an assault launched upon him by the deceased. The dimensions of the injuries sustained by the appellant also pointed towards the same possibility. In these circumstances it could reasonably be inferred that, the appellant had been attacked by the deceased first and that the appellant had, after receipt of injuries at the hands of the deceased, caused injuries to the deceased in exercise of his right of private defence. However, in retaliation for his injuries sustained at non-vital parts of his body the appellant had given forceful Chhurri blows to the deceased at the latter's most vital parts of the body and had caused his instant death. To us such retaliation by the appellant was quite excessive and manifestly disproportionate and, therefore, we have concluded that the appellant had exceeded the right of private defence becoming available to him.
16. Consequent to the discussion made above the conviction of the appellant recorded by the learned trial Court under section 302(b), P.P.C. Is set aside and the same is substituted by a conviction under section 302(c), P.P.C. The sentence of death passed against the appellant by the learned trial Court is, therefore, set aside and the same is substituted by a sentence of rigorous imprisonment for ten years. The appellant shall also be extended the benefit under section 382-B, Cr. P . C . The sentence of fine passed against the appellant by the learned trial Court is also set aside as unwarranted by the law. The order passed by the learned trial Court regarding payment of compensation by the appellant to the heirs the deceased is also set aside in view of our finding that the appellant had acted in exercise of his right of private defence although he had exceeded the same. Thus, Criminal Appeal No, 539 of 1994 preferred by Muhammad Khalil appellant is partly accepted in the terms stated herein.
17. As the sentence of death passed against Muhammad Khalil appellant by the learned trial Court has been set aside by us, therefore. Murder Reference No,239 of 1994 is hereby answered in the negative.
The Sentence of Death is Not Confirmed