GHULAM MAJADDID MIRZA, J.-Abdur Rehman son of Borh, Kashmiri by caste, resident of Munshi Mohallah, Lyallpur, was charged for the murder of Mahmood Ahmad. The learned Additional Sessions Judge, Lyallpur, who tried him found him guilty under section 304(11), P. P. C. And sentenced him to ten years' R.
1. And fine of Rs. 3,000 ; in default three years' R. I. The convict has filed this appeal against the judgment of the trial Court dated 8-12-1975. Laved Akbar complainant has also filed Criminal Revision No. 74 of 1976, praying that the sentence be enhanced according to law, in which notice was issued to the appellant. This judgment will dispose of the appeal and the revision petition.
2. The incident pertaining to the alleged murder of Mahmood Ahmad took place on 12-6-1974 at 3- 30 p.m. At Adda Narwala at the Tea-stall of one Muhammad Shall. The report was lodged by Javed Akbar at Police Station, Gulberg, Lyallpur, the same day at 4-30 p.m. Which was recorded by Manzoor Ahmad Sub-Inspector.
The motive for the alleged murder was that a day prior to the occurrence some alteration had taken place between the appellant and the deceased about a' sum of Rs. 50, which the deceased had advanced to the appellant. A demand was made for the return of the loan by the deceased but that was refused by the appellant. The deceased slapped the appellant. Javed Iqbal and Javed Akbar intervened and separated them. The appellant while leaving threatened the deceased to take revenge of the insult.
On the day of occurrence, Abdur Rehman came to the Tea-stall of Muhammad Shafi and started throwing bottles at Mahmood Ahmad. Both then grappled. Javed Akbar tried to separate them.
Abdur Rehman threw n bottle at him but it missed him. Abdur Rehman inflicted a blow with a piece of bottle on the neck of Mahmood Ahmad on account of which be started bleeding. With the same piece he inflicted another injury on the chest towards the left shoulder. Mahmood Ahmad fell down.
Abdur Rehman was also injured. Mahmood Ahmad expired while he was being taken to the hospital.
3. In the first information report the names of Javed Akbar P. W. 7, Abdul Rashid P. W. 9 and Muhammad Ashraf P. W. 10 along with Muhammad Ashraf son of Ghulam Muhammad and Nasir Ahmad were mentioned. These persons according to Javed Akbar saw the occurrence.
4. The investigation was conducted by Manzoor Ahmad Sub-Inspector who prepared the injury statement and inquest report of the deceased. On reaching the spot be collected blood-stained earth vide memo. Exh. P. B. As well as bloodstained broken pieces of Soda Water bottles vide memo. Exh. P. C. These pieces were sent to the Chemical Examiner, who noticed blood thereon and the Serologist reported that its origin was human.
The appellant was arrested on 12-6-1974. He was injured. The officer prepared his injury statement and sent him for medical examination.
5. The appellant when examined by the trial Court admitted his presence at the spot. He also admitted the fact of grappling but denied to have killed the deceased. His statement in extenso will be referred later on.
6. Javed Iqbal P. W. Deposed about the motive and what happened a day prior to the occurrence, whereas Javed Akbar, Abdur Rashid and Muhammad Ashraf P. Ws. Gave eye-witness account, According to them they were present when Mahmood Ahmad was killed.
7. We have gone through the entire evidence with the -help of the learned counsel for the parties.
The stand of the prosecution is that the above-mentioned three witnesses were natural and independent ; the prosecution with the help of their testimony had proved the case against the appellant beyond any shadow of doubt, but we do not think it is so because from the evidence it is established that they were interested and inimical. Moreover, we have noticed certain material contradictions in their version.
Javed Akbar admitted that he was a friend of the deceased and they were on visiting terms with each other. In cross-examination he wag reminded of his statement before the Committing Magistrate where he said that the appellant picked broken piece of soda water bottle and gave blows to the deceased as well as to him. On confrontation it was found that he bad not stated the word `picked'. On first sight this might appear to be a minor omission but in the latter part of his statement Javed Akbar admitted that he had stated before the Committing Magistrate that the appellant picked broken piece of bottle and gave injuries to the deceased, but it was not so recorded. Such an important fact cannot be ignored either as an omission or a slip of memory.
Abdur Rashid a student of B. A. Government College, Lyallpur, said that he reached the spot when the occurrence had started. In other words, he was not in a position to depose about the origin of fight ; when and how it started. He admitted the presence of 4/5 persons in the shop of Muhammad Shafi when the alleged occurrence took place.
Muhammad Ashraf's statement deserves to be discarded on the short ground of his not telling the truth. He denied the suggestion that he had appeared as a witness before the Investigating Officer against the appellant in a case under section 307, P. P. C. But when confronted with his statement before the Committing Magistrate it was found that it had been so recorded.
He was a bachelor when his statement was recorded before the Committing Magistrate, but before the trial Court in cross-examination he admitted that he was later on married to the daughter of maternal-uncle of Mahmood Ahmad deceased. As such he was both inimical and interested.
These are certain glaring flaws in the prosecution story on account of which it is not possible to believe it. In addition to this, we notice that the occurrence took place at the shop of Muhammad Shafi but be was not produced ; the explanation for that was that he was not there, but what about Nasir Ahmad, his employee, who was named in the F. I. R. As an eye-witness. Similarly, Muhammad Ashraf son of Ghulam Muhammad was given up on the pretext of having been won over.
8. The testimony of the eye-witnesses does not inspire confidence. I Having disbelieved the ocular testimony, we do not think the evidence) pertaining to bloodstained pieces of bottle would in any way help the prosecution case. On the whole, the prosecution story is very shaky.
On the other hand, the statement of the appellant is more convincing and plausible. It is, therefore, necessary to reproduce the same in extenso : "The deceased was a bad character and was in the habit of squeezing money at the shop. I was taking tea when he developed a quarrel with Muhammad Shall tea-seller. I intervened and the deceased Mahmood Ahmad threw soda water bottles on me, which broke while falling on the ground. The deceased grappled with me. We both fell on the ground and both were injured. None of these P. Ws. Was present on the spot."
According to the post-mortem, the deceased received two lacerated wounds, one on the left side of neck and the other on the front -of left chest at its upper part ; whereas the appellant had six injuries ; two lacerated wounds, one on the left and the other on the right eye brows and four abrasions. It was per chance that the injuries received by the appellant happened to be simple, but that did not debar the 'appellant from exercising,, the right of private defence and we are of the view that the case of the appellant falls in clause Secondly to section 100, P. P. C.
9. Mr. M. Arif, learned counsel for the complainant relied on Rehmuddin v. The State (1) 1973 SCMR 327 We have gone through this authority. The facts of this case were materially and substantially different to the present case ; therefore, with due respect we observe that the principle laid down in the said authority is not applicable to the facts of this case.
10. For the foregoing reasons we are of the view that the appeal must succeed. The same is accordingly accepted. The appellant shall be set a liberty forthwith if not required in any other case. The revision petition stands dismissed.