' SARDAR MUHAMMAD RAZA KHAN, C.J.---Abdul Mutalib son of Khawaja alias Haji Muhammad, resident of Refugee Camp Koga, Police Station Nawagai has filed this appeal against the judgment dated 7-7-1997 of the learned Sessions Judge/Zilla Qazi Buner at Daggar whereby he was convicted under sections 302/34, P.P.C. And sentenced to imprisonment for life and a .Fine of Rs,30,000 for the murder of Muhammad Gul or in default whereof to suffer R.I. For two years. He was also convicted under sections 307/34, P.P.C. And sentenced to 3 years' R.I. And a fine of Rs,10,000 on two counts for attempt at the lives of complainant Haji Abdul Basir and P.W. Malik Nabi or in default whereof to undergo R.I. For 4 months on each count. In case of murder half of the fine was to be paid to the legal heirs of the deceased and so was the case of sentences under section 307/34, P.P.C.
2. Complainant Haji Abdul Basir, his brothers Malik Nabi and Muhammad Gul, on 29-4-1995 at 18-00 hours were present in the Pickup Stand of Koga Camp when in the meanwhile Abdul Mutalib appellant alongwith his sons Jalil and Niaz Muhammad appeared on the scene. Abdul Mutalib was armed with an axe who attacked Muhammad Gul with his axe that hit on the head of the victim who subsequently succumbed to the injuries. Jalil and Niaz Muhammad also gave stone blows to the complainant and P.W. Malik Nabi with which they got injured at their face and nose. The motive for the occurrence is alleged to be an altercation between P.W. Malik Nabi and Niaz Muhammad that had taken place a day earlier. They immediately rushed to Police Station Nawagai where the report was lodged within forty-five minutes.
3. The injury-sheets were prepared by the Investigating Officer and the injured were sent for medical examination. Muhammad Gul subsequently died on 5-5-1995 and hence, his inquest report was prepared and autopsy on his dead body was also conducted which are Exh.P.W.9/1 to Exh.P.W.9/6. A case had been registered on 29-4-1995 at Serial No,101 at Police Station Nawagai. The appellant was arrested on 2-5-1995 while his sons Jalil and Niaz Muhammad are absconders.
4. The prosecution produced Haji Abdul Basir complainant (P.W.4), Abdur Razzaq (P.W.5) and Malik Nabi (P.W.6) as eyewitnesses to the occurrence. Among them Haji Abdul Basir and Malik Nabi were injured witnesses. P.W. Hafizullah was abandoned as unnecessary. A detailed examination of the witnesses aforesaid would indicate that they had successfully linked the appellant with the commission of offence and their version could not be shattered in the cross-examination. The presence of brothers in transport business at Pick-up Stand can also not be doubted especially when two of them are injured as well. From the tenor of the arguments of the learned counsel for the appellant it appears that he could not point out any material discrepancy in the version of the eye-witnesses and thus the learned counsel also took the plea that if the version of the eye- witnesses is taken to be true then from the circumstances and from the site-plan it appears that the attack was launched at the accused-party. The learned counsel had taken this plea in the alternative.
5. We have examined the evidence as well as the site-plan wherefrom it appears that the Pick-up stand and the Flour Machine of Abdul Mutalib appellant are close to each other and hence, the presence of both the parties is highly probable and one cannot ascertain, in the absence of evidence to the contrary, that the attack was launched by the complainant-party. The motive also appears to be plausible because a day earlier the altercation referred to above had also taken place between P.W. Malik Nabi and Niaz Muhammad on a dispute over the boarding of passengers.
Thus the presence of the parties is natural but the question of attack cannot be presumed without evidence simply because the appellant owned a Flour Machine near or on the spot.
6. The second plea was with regard to the motive and it was said that the previous altercation had taken place between P.W. Malik Nabi and Niaz Muhammad (absconder) and hence, the appellant had no business to jump into the affairs that had taken place on the spot. This also does not appear to be logical because Niaz Muhammad is the son of the appellant and as the presence of everybody was quite natural, the hard fact cannot be ignored that the appellant would have joined with his sons in a common intention. The learned counsel also urged that from the evidence on record it appears that some altercation had taken place immediately preceding the occurrence and thus the appellant brought an axe from the Flour Machine which was most likely to occur at the spur of moment and hence, the appellant be given a right of self-defence.
7. We have given our considered thought to the argument and in the light of evidence we do believe that at the time of occurrence some altercation which is rather more natural had preceded the occurrence during which the appellant fetched axe from his Flour Machine but we do not agree to the logic that this by itself gives the appellant a right of self-defence. Rather, we are of the view that because of that altercation, he, with mens rea, fetched the axe and not only fetched it but used it for the purpose indicating his intention to kill and most likely deviating from the common intention of others. The taking place of something at the spur of the moment cannot by itself give an impression that the act done at the spur of the moment can be defensive alone. It can be offensive as well as defensive but in view of the evidence on record, the act of the appellant clearly appears to be offensive. 'There is no evidence to the effect that the complainant-party was at all armed on the spot. There was no occasion to do anything in defence.
8. The next plea was to the effect that the appellant himself was injured which injuries were never explained by the prosecution. The report Exh.C.Q. Would indicate that the appellant had received some minor abrasions and complained of pain in the left shoulder. His examination was done three days after the occurrence and hence, it is not certain if such minor abrasions were received during the occurrence.' The accused-appellant cannot derive any benefit of his injuries in case those are not proved to be sustained during the occurrence.
9. Moreover, no doubt the prosecution is bound to explain the injuries sustained by the accused- appellant yet those should be material injuries to be taken notice of and not superficial as those are in the instant case. We hold that the injuries so superficial in nature are not required to be explained by the prosecution particularly when it has come in evidence that there was some altercation as well. He might have got bruises on his shoulder during altercation which, in the circumstances, is altogether immaterial. The interesting aspect of the injuries of the accused- appellant is that no plea thereabout was taken in his statement under section 342, Cr.P.C.
10. From the plea that the appellant has taken and even from his statement under section 342, Cr.P.C., the presence of the appellant is proved on the spot. It was mentioned in the cross- examination of P.W. Abdur Razzaq that the appellant brought the axe from his Flour Machine. The said Machine is so closed that it can be done within seconds. It is noteworthy that P.W. Abdur Razzaq is related to both the parties.
11. The evidence and the circumstances of the case as well as the very statement of the appellant under section 342, Cr.P.C. Would sufficiently prove that both the parties were present on the spot at Pickup Stand and that due to some minor altercation the appellant fetched the axe and used it for the purpose that he achieved. It is a case of promptly lodged F.I.R. Within forty-five minutes involving a distance of 6/7 kilometres. We also do not agree with the argument that appellant being an elderly man was involved in the case because he was involved alongwith his sons little knowing at the time of F.I.R. That the young sons were going to abscond and hence, some third person be also involved.
12. Learned counsel for the appellant lastly argued that it was a case which should have fallen under section 302(c), P.P.C. And not under section 302(b), P.P.C. He wanted to bring home that section 302(c), P.P.0 corresponds to the repealed section 304, P.P.C. We have also considered this aspect as well and comprehend no circumstances whatsoever attracting the provisions of section 302(c), P.P.C. Every one has altercated on the spot and the most might have resorted to grappling as well but the appellant deviated from that process, fetched the axe and used it for the purpose which was of course attained. We resultantly hold E that the appellant was rightly convicted as well as sentenced under section 302, P.P.C.
13. So far as his conviction on two counts under sections 307/34, P.P.C. Is concerned, the evidence is not at all clear but is rather discrepant as to who caused injuries to the complainant and P.W. Malik Nabi. He is entitled to the benefit of doubt in this behalf.
14. Consequently, the appeal is partially accepted. The conviction recorded under section 302, P.P.C.
And the sentence imposed by the learned Sessions Judge/Zilla Qazi, Buner at Daggar vide his judgment dated 7-7-1997 against the appellant, are upheld and the appeal is hereby dismissed.
The appellant is, however, acquitted under sections 307/34, P.P.C. On both counts. He shall also be given benefit under section 382-B, Cr.P.C.
Appeal partially accepted.