' KHAWAJA MUHAMMAD SHARIF, J.--- This judgment will dispose of Criminal Appeal No,849 of 1996 filed by Ghulam Sarwar alias Baga, appellant, who was convicted under section 302, P.P.C. And sentenced to death and to pay compensation of Rs,50,000, in default six months' S.I. By the learned Additional Sessions Judge, Faisalabad vide judgment, dated 2-10-1996. Murder Reference No,277 of 1996 for confirmation of death sentence of the convict or otherwise shall also be replied through this single judgment.
2. Occurrence in this case had taken place at 1 p.m. On 10-9-1994 at a distance of four furlongs from Police Station Ghulam Muhammad Abad while the matter was reported by Sharaf Din, complainant vide complaint Exh.P.B. At 9 p.m. The same night and the formal F.I.R. Exh.P.B./1 was recorded by Khalid Mehmood, Head Constable.
3. Briefly stated the facts of the case are that Sharaf Din, complainant deals in Tat Boras. On 10-9- 1994 the complainant on a cycle, Muhammad Shafique his son and Muhammad Aslam his grandson on a separate cycle were going towards Patri Mandi near Gol Mosque. Aslam, the grandson of the complainant was driving the cycle while Muhammad Shafique, son of the complainant was sitting behind him and they were going ahead from the complainant for few paces. At 1 p.m. When the complainant alongwith his son and grand son reached near Iqbal Chowk, suddenly from the opposite side, Muhammad Sarwar emerged on a cycle swiftly and collided his cycle with the cycle of Muhammad Aslam, grandson of the complainant as a result of which both Muhammad Aslam and Shafique fell down. Sarwar took out a Chhuri from his loin cloth and gave a blow to Muhammad Shafique hitting on the right side of his chest. On receiving the injury, Shafique fell down on the ground. Sarwar also raised Lalkara that if anybody came forward, he would not be spared and he also gave Chhuri blow on the neck of Shafique. On the noise raised by the complainant, Muhammad Mushtaq and Muhammad Anwar Pasha attracted to the spot and witnessed the occurrence. The injured was taken to Allied Hospital but Shafique expired at 8 p.m.
' The motive behind the occurrence was that Sarwar was vagabond and had developed relations with Muhammad Shafique. 3/4 days prior to the occurrence, a Punchayat was convened and Sarwar was stopped to meet the son of the complainant. Manzoor the brother of Sarwar had threatened in presence of Muhammad Afzal and Ghulam Sarwar, D.Ws. After the Punchayat that he shall have to face the consequences of the insult by calling the accused in the Punchayat and for this reason, Sarwar on the abetment of his brother Manzoor committed the intentional murder of son of the complainant.
4. After registration of the formal F.I.R., Rashid Ahmad Tahir, Inspector/S.H.O./(P.W.14) proceeded to Allied Hospital, Faisalabad, prepared injury statement Exh.P.K, inquest report Exh.P.K.1 of Shafique deceased, then he went to the place of occurrence, inspected the same and took into possession the blood-stained earth vide memo. Exh.P.L. The cycles belonging to accused and the deceased P.6 and P.7 were secured vide memo. Exh.P.M., Exh.P.N. Rough sketch plan was also prepared, on 26-9- 1994, the Investigating Officer arrested both the accused, on 2-10-1994, Sarwar accused got recovered Chhuri P.3 which was taken into possession vide memo. Exh.P.D. And after completion of the formal investigation both the accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 14 witnesses in all; then the learned D.D.A. Tendered in evidence reports of the Chemical Examiner Exh.P.S., Exh.P.Q., reports of the Serologist Exh.P.S and Exh.P.T. And closed the prosecution case. Thereafter, statements of the accused were recorded under section 342, Cr.P.C. In which Sarwar appellant took the plea of self- defence. After the conclusion of the trial, Manzoor was acquitted while the present appellant was convicted and sentenced as stated above.
6. Learned counsel for the appellant after having read the entire prosecution evidence and, other material available on record submits that it was a case of right of self-defence, the appellant has not exceeded the said right, the occurrence had taken place in September, 1994 and since then the appellant is behind the bars, the complainant in connivance with the Police had concocted the false story and that the F.I.R. Was recorded after due deliberation and consultation.
7. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that it is a case of single accused, injury on the person of the deceased was mentioned in the F.I.R., motive is proved and that the ocular account is corroborated by the medical evidence.
8. We have heard learned counsel for the parties and have gone through the record. Occurrence in this case had taken place at 1 p.m. And the matter was reported through complaint Exh.P.B. At 9 p.m. And the formal F.I.R. Exh.PB/1 was recorded at 9-30 p.m. Though the police station is at a distance of 4 furlongs from the place of occurrence. It is mentioned in the F.I.R. That after causing a blow in the chest of the deceased, Muhammad Sarwar also caused injuries with Chhuri on his neck.
We are not going to believe this version of the complainant. In our view, this was the reason in getting the F.I.R. Lodged with such an unexplained delay. Dr. Khalid Mehmood Fakhar Medical Officer (P.W.7) had medically examined Sarwar appellant on the day of occurrence and found the following injuries on his person:---
(I) An incised wound 5 c.m. x 2-1/2 c.m. On front of neck with thyroid cartilage.
(2) An incised wound 6 c.m. x 1/2 c.m. Skin deep on left side of neck.
(3) An incised wound 5 c.m. x 3/4 c.m. Above injury No,2 skin deep.
(4) An incised wound 3 c.m. x 1/2 c.m. Skin deep on the back to injuries Nos.3 and 4.
(5) An incised wound 5 c.m. x 1/3 c.m. Skin deep above injury No,4.
A bare perusal of the injuries would show that the injuries were on the neck of the deceased. During the cross-examination the doctor had stated that he agreed to this extent that the wounds on the neck may be more often homicidal. The deceased had received only one injury on the chest of the appellant. The appellant has given his version in his statement under section 342, Cr.P.C. In reply to Question No,9 which reads as under:--- "I am innocent. I have been falsely involved in this case. Muhammad Shafique deceased had launched an attack upon me armed with a Chhuri and caused injuries to me. I apprehending extreme danger to my life, grappled with him and tried to snatch the Chhuri from him. During the struggle and scuffle the deceased received injuries with the same Chhuri. Had I not done so in my self-defence of person, the deceased would have murdered me. I appeared before the Police and was got medically examined on the same day. The complainant party has also falsely involved my brother in this case."
' We are not going to believe the version of the appellant that the deceased received injuries during the scuffle and struggle. Both the parties have suppressed their roles. They have not told the truth.
In our considered view, it was totally a case of right of self-defence. The appellant was arrested in this case on 10-9-1994 and is behind the bars since then. So, we convert the sentence of the appellant from sections 302(b), P.P.C. To 302(C), P.P.C. And the sentence which the appellant has already undergone is treated to be sufficient to meet the ends of justice in view of the facts and circumstances of the case mentioned above. The sentence of amount of compensation to the tune of Rs,50,000 and in default 6 months' S.I. Is, however, maintained. Appeal filed by the appellant is disposed of in the above terms. His death sentence is not confirmed. Murder Reference is replied in the negative. The appellant is in jail and he shall be released forthwith, if not required to be detained in any other case, but subject to payment of amount of compensation.