KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No.977 of 1998 filed by Muhammad Riaz, appellant who was convicted under section 302, P.P.C. And sentenced to death with further direction to pay Rs.50,000 in default six months' S.I. By learned Additional Sessions Judge, Pasrur vide judgment dated 22-10-1998.
Murder Reference No.478 of 1998 for confirmation or otherwise of death sentence shall also be replied through this single judgment.
2. Occurrence in this case had taken place at 1-00 p.m. On 27-6-1994 within the revenue estate of Mauza Chobara which is at a distance of 4 kilometres from Police Station Sabzpeer while the matter was reported to the police by the complainant at 3-00 p.m. On the same day at Rural Health Centre, Chawinda and formal F.I.R., Exh.P.E. Was recorded by Muhammad Farooq, S.-I. At 3- 45 p.m.
3. Briefly stated the facts of the case are that the complainant was plying tonga from Chowk Qadirabad to Mundiala. Riaz alias Taidi was also driving the tonga. On 27-6-1994 at about 1-00 p.m., the complainant was present at Chowk Qadirabad alongwith Riaz. One passenger sat on the tonga of the complainant which was objected by Riaz alias Taidi and Riaz also hurled abuses to the complainant. The complainant asked Riaz to take the passenger but Riaz became provoked and gave Kassi blows on the left and right arms of the complainant, Sadiq Patwari saved the complainant but Riaz while extending threats went away on his tonga. After a short while, Sultan, Bhutto alongwith Riaz alias Taidi came back. Sultan and Bhutto started giving fist blows upon which the complainant started running. From behind, Riaz alias Taidi gave a dagger blow which landed on the left flank of the complainant and he fell down on the ground. The complainant was removed to hospital where he made statement before Muhammad Iqbal, S.-I./S.H.O.
4. Investigation of the case was taken over by Muhammad Iqbal, S.-I. (P.W.12). He after receipt of information about the occurrence rushed to hospital, there recorded statement of the deceased in the presence of the doctor, the said statement was thumb---marked by the complainant (deceased), shirt P.1 and vest P.2, both stained with human blood were taken into possession vide memo. Exh.P.A., then the Investigating Officer went to the spot, took into possession the blood-- stained earth vide memo. Exh.P.B. And arrested Riaz accused. On the same day that is, 27-6-1994, the Investigating Officer received information that the injured has died. He again went to the mortuary, prepared injury statement Exh.P.K., inquest report Exh.P.K/2. Riaz accused while in custody on 2-7-1994 led to the recovery of dagger P.4 which was taken into possession vide memo. Exh.P.D.
Sultan and Muhammad Arif alias Bhutto accused were arrested. After completion of the investigation, all the three accused were sent to face the trial.
5. At trial, prosecution in order to prove its case produced 12 witnesses in all. The learned D.D.A.
Tendered in evidence reports of the Chemical Examiner Exh.P.M., Exh.P.N., reports of the Serologist Exh.P.D., Exh.P.P. And then closed the case of prosecution. Inspector Hameed was examined as C.W.1.
After that statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded false implication and also in their defence produced Ghulam Ali as D.W.1. However, after conclusion of the trial, Muhammad Riaz, 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 F.I.R. Lodged by the complainant, deceased was fabricated one; the two eye-witnesses namely Muhammad Akram and Mst. Irshad Bibi were not mentioned in F.I.R.; in fact they were not present at the spot; had they been present at the spot at the time of occurrence, they must have taken the injured to hospital for medical treatment; the appellant having received the injuries was also medically examined on the same day but his injuries were suppressed by the prosecution; the occurrence had taken place at spur of the moment; there was no premeditation and that as a case or right of self-defence. In nutshell, learned counsel submits that prosecution has miserably failed to prove its case against the appellant and he is entitled to clean acquittal:
7. On the other hand, learned counsel for the State submits that appellant is named in the F.I.R., he has not claimed the right of self-defence before the trial Court, it being a case of single accused, there was no question of substitution but admits that the appellant was also injured during the occurrence and was medically examined on the same day.
8. We have heard learned counsel for the parties and have gone through the record. In the instant case, Liaqat deceased was the complainant who lodged the F.I.R. Two eye--witnesses namely Muhammad Akram and Mst. Irshad Bibi P. Ws. 1 and 2 were produced by the prosecution.
Muhammad Akram P.W.1 is brother-in-law () while Mst. Irshad Bibi was mother-in-law () of the deceased. Had both the eye-witnesses been present at the spot, they must have taken the injured (deceased) to hospital in injured condition for medical treatment. It was Ghulam Ali examined as D.W.1 who took the injured to hospital. His name finds mention on the MLR of the injured. The conduct of the eye-witnesses was not natural. So, we rule out of consideration the eye-witness account furnished by the eye-witnesses. Now, we remain with the statement of Liaqat, complainant/deceased. It is correct that the injured had stated that he was injured by the present appellant by firstly giving two Kassi blows and then an injury was caused with dagger. The co- accused of the appellant were alleged to have given fist blows. Sultan co--accused of the appellant was murdered during the pendency of trial while Muhammad Arif alias Bhutto was acquitted by the trial Court. We are sorry to observe that Liaqat deceased even at the death bed did not tell the truth and did not explain the four injuries on the person of the appellant. Dr. Ghulam Mustafa, P.W.11 examined Riaz, appellant on 27-6-1994 having been produced by the police. We are also sorry to slate about the conduct of appellant because while making statement under section 342, Cr.P.C. He did not explain the injuries of the deceased and stated that seeing him under a violent attack, persons who had gathered there caused injuries to the deceased in order to save his life. Answer given by appellant to question No.1 in his statement under section 342, Cr.P.C. May advantageously be reproduced:-- "I am innocent. The case has been got registered in absolutely false premises. The F.I.R. Is patent fabrication. As a matter of fact Liaqat Ali deceased was a known bad character of the area who was involved in a large number of criminal cases. He was hot headed person. On a petty matter, he started giving me filthy abuses and initiated a murderous assault upon me by firstly giving Danda blows which incidentally dropped from his hands after hitting my body. He immediately took out a knife and started inflicting injuries upon my person. Seeing me under a violent attack, persons who had gathered there caused him injuries to save my life. Had they not done, se, then I would have been killed at his hands. I was medically examined for my injures."
We are not going to believe the version of the appellant but the fact remains that injuries on the person of the appellant which were with sharp-edged and blunt weapon were not explained inasmuch as one incised wound was on the head of the appellant. In our view, the occurrence had taken place at the spur of the moment and there was no premeditation rather the appellant has acted in exercise of right of self-defence though exceeded the same. In these circumstances, we are of the considered view that case of the preset appellant does not fall under section 302(b), P.P.C., but sue under section 302(c), P.P.C. For this view, we are fortified from a judgment of the Hon'ble Supreme Court in the case of Manzoor v. The State (1993 SCM R 1624).
Resultantly, conviction of the appellant under section 302(b), P.P.C. Is altered to one under section 302(c), P.P.C. And the period of sentence which the appellant has remained in jail is treated to be sufficient to meet the ends of justice. The sentence of compensation is set aside because in a case of grave and sudden provocation, family honour, self-defence, such a sentence is not to be awarded. The appellant Riaz alias Taidi is in jail. He shall be released forthwith, if not required to be detained in any other case. The death sentence of Muhammad Riaz, appellant is NOT confirmed and Murder Reference is replied in the NEGATIVE.