' SARDAR MUHAMMAD RAZA KHAN, J.--This is an appeal by leave of Court filed by the complainant against the judgment dated20-8-1996 of a learned Division Bench of Lahore High Court whereby the respondents Muzammal Khan and Muhammad Khan sons of Rana Niaz Muhammad were acquitted of the charge under sections 302/34, P.P.C. Qua the murder of one Haji Muhammad Anwar.
2. Admittedly Muhammad Khan respondent is dead by now and, therefore, the instant appeal against him abates.
3. The background of the case is furnished by Muhammad Asgher complainant in F.I.R. No,439 dated 10-9-1985 of Police Station, Gulberg, Faisalabad, to the effect that he served with Muhammad Anwar deceased as a `Munshi'. The latter was constructing a house and in connection with the purchase of bricks owed a sum of Rs,1,300 to the appellants. A day prior to the occurrence, Rana Niaz Muhammad, the father of the respondents demanded the amount from Muhammad Anwar deceased who replied that it would be paid within 5/6 days. Rana Niaz Muhammad remarked that when their amounts are not paid, they are in habit of recovering the same by tying down the debtors. After some altercation the deceased paid the amount of Rs,1,300.
4. On the next day of occurrence Muhammad Asgher and Muhammad Anwar deceased, while returning from Mohallah Azam Abad to their home, saw Muzammal Khan, Muhammad Khan and Nazir Khan sitting in front of their own house in the street. They taunted that they would receive the money the way they wanted to. The deceased and the complainant replied that when the amount stood already paid, there was no occasion to make such unwanted remarks, whereupon, all the three got infuriated and started abusing them. They were answered in the same tune on which Muzammal Khan attacked with a `Chhuri and inflicted two blows on Haji Muhammad Anwar.
Muhammad Khan gave a `Danda' blow on the head of . Haji Muhammad Anwar who fell down.
Complainant advanced to fescue him whereupon Nazir Khan gave a `Chhuri' blow on his head and buttock while Muhammad Khan gave a `Danda' blow on his right arm. The occurrence was witnessed by Mumtaz, Mehmood-ul-Hassan and Zahid Mehmood. The complainant added that they also had injured Muhammad Khan and Muzammal Khan. Haji Muhammad Anwar was taken to hospital where he succumbed to his injures.
5. The learned trial Court believed in the ocular testimony as well as the medico-legal and post- mortem reports in addition to the recoveries made by the investigating agency. The motive also was taken in support and ultimately Muzammal Khan was awarded death sentence while Muhammad Khan, life imprisonment. On the other hand, the High Court was of the view that the motive was implausible because once the payment of Rs,1,300 had been made to the accused a dayearlier, there was no occasion for them to ask for the trouble or to pass any untoward remarks.
The High Court reasoned that the accused being the `Rehrabans' were people of small status, they could never be expected of entering into trouble with the deceased who was a well placed man and who also had contested local election. It was held by the High Court that the motive in the instant case was the other way round and it were the deceased and the complainant who had attacked the accused in order to avenge the insult shown to them a day earlier when the amount was paid.
6. After discussing various aspects of the case, the High Court was of the view that Muhammad Anwar deceased while armed with a pistol had attacked the accused right in front of their house in order to avenge the insult of the previous day. That the accused while acting in self-defence had committed the murder. They were accordingly acquitted.
7. After having gone through the evidence on record and both the judgments of the learned trial Court and the learned High Court, it appears that, so far as the motive is concerned, the High Court has taken correct view of the matter. The motive as furnished by the prosecution, in the circumstances, is not plausible because once the payment had stood made to the accused, they being people of small status could not have had the courage to pick up trouble with the deceased.
It appears more logical as well as plausible that the deceased went to settle the account of his insult and reached right in front of the house of the accused whereupon the trouble ensued resulting into the death of Muhammad Anwar.
8. This being, so the question that remains for determination is as to how far it was a case of self- defence. The High Court has placed implicit reliance in this behalf on the statement of Muhammad Ashgar, A.S.-I. Who appeared as P.W.13 and stated to have recovered the pistol from Rana Niaz Muhammad, the father of the accused on the spot which in turn was recovered by him from the deceased, then injured. It is a point of serious consideration as to where Rana Niaz Muhammad was at the time of occurrence, as to how he managed to snatch the pistol from the injured who never retaliated and who never fired at Rana Niaz Muhammad. It is also a matter of serious consideration as to how the accused who were not better armed escaped the fire of the deceased while they were located close to each other. All these questions could well and could only be answered by Rana Niaz Muhammad, the snatcher of the pistol but such witness was never produced by the prosecution or by the defence. We firmly believe that the recovery of pistol on the spot from the deceased by Rana Niaz Muhammad is not proved and primary evidence to that effect has been suppressed.
9. If the story of recovery of pistol from the deceased remains unproved, it leads to the conclusion that on the spot the deceased was never armed with pistol. On the one had, we agree that the deceased and another had gone to the place of the accused to settle the account of their insult and on the other hand, it is apparent that he was not armed with a lethal weapon like pistol. It is obvious, therefore, that both the parties entered into altercation or fight where they were equally armed. The injuries sustained by the accused party are so superficial that it did not provide them any reason to retaliate in such a manner so as to cause the death of the other person. The story of recovery of pistol from the deceased by Rana Niaz Muhammad is also absent in the statement under section 161, Cr.P.C.
10. Resultantly, we are of the view that the instant one is a case of exercise of exceeded right of self- defence falling, according to the then prevailing law, under section 304 of the P.P.C.
11. Consequently, the appeal is accepted, the impugned judgment dated 20-8-1996 of the learned High Court is set aside and the respondent Muzammal Khan son of Rana Niaz Muhammad found guilty under section 304, P.P.C. And is hereby sentenced to rigorous imprisonment for 10 years and a fine of Rs,10,000 in default of payment of which he shall suffer further simple imprisonment for one year which shall run consecutive to the main sentence. He is further sentenced to pay a compensation of Rs,30,000 under section 544-A, Cr.P.C. In default of payment whereof he shall undergo simple imprisonment for six months in addition to the mode of recovery given in the section itself. This imprisonment shall also run consecutive to the above two imprisonments. To this effect the short order is reviewed. Benefit of section 382-B, Cr.P.C. Shall, however, be available.