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Criminal Appeal No.345 of 1982, heard on 26th May, 1984.

---Ss. 302, 304, Part I & 100--Offence, alteration of--Private defence, plea of--Accused admitting occurrence but giving a different version and pleading right o f private defence--Incident more likely to have taken place as alleged by accused but exaggerating his version--Deceased given four incised stab wounds in region of chest and abdomen--Number of injuries on person of deceased, held, demolishing plea of private defence of accused and showing accused having exceeded right given to him by law--Conviction of accused under S. 302, P.P.C. altered to one under S.304, Part I, P.P.C. in circumstances.

Ch.Abdur Rashid for Appellant.

Kh.Shaukat Ali for the State.

Dates of hearing: 20th and 26th May, 1984.

Labha Masih s/o Hussain Masih, Christian, resident of Haveli Chiragh Masih, Butcher Khana, Madho Lal Hussain, Baghbanpura, Lahore, was tried for the murder of Barkat Masih by the Additional Sessions Judge, Lahore; who, by judgment, dated 24-6-1982, convicted him under section 302, P.P.C. and sentenced him to imprisonment for life. He was also ordered .to pay Rs.2,000 to the heirs of the deceased as compensation. Hence this appeal.

The occurrence took place on 28-10-1981. Time was 4 p.m. Nazir Masih alongwith his brother Natha were coming from their house to Baghbanpura. They had to buy Baan. Their uncle Barkat Masih used to sit at the shop of Marshal Mukhtar on G.T.Road. When Nazir and Natha reached near the shop of Marshal Mukhtar they saw Labha appellant and Barkat grappling. Labha shouted that he would not spare him because he had beaten his uncle with Danda six months ago. Thereafter Labha brought out a Chhuri from his Dub. He attacked Barkat. He was hit in the chest and abdomen. Nazir Masih and others tried to apprehend the appellant but he managed to escape alongwith the Chhuri. The injured was taken to the hospital but he died ten minutes after his arrival there.

On coming to know of the incident, Ghulam Qamar Sub-Inspector, Police Station, Shalimar, reached Mayo Hospital. There he recorded statement (Exh.P.C) of Nazir Masih.

The two eye-witnesses in this case are Nazir Masih first informant and his bother Natha. The rest of the evidence consists of the recovery of Chhuri P.7 and the post-mortem report of the deceased.

The appellant denied the murder charge. He gave a counter -version of the incident but declined to produce any evidence in defence.

Nazir Masih affirmed on oath the same statement which he gave to the police. I, therefore, don't think it is necessary to repeat his statement before the trial Court.

Nazir Masih was fully corroborated by Natha. His version was that he and his brother Nazir were on their way to Baghbanpura where they had to purchase Baan. It was near the shop of Marshal Mukhtar close to Habib Bank that the two brothers saw the appellant and the deceased grappling. In their presence Labha brought out Chhuri from his Dub and gave injuries to Barkat. He tried to save himself and thus received injuries on the hand. He was a1So injured in the chest and abdomen.

The only thing worth noticing in the evidence of Natha is that he said that during the scuffle it was quite possible that the appellant might have also received injuries from his own Chhuri. The witness also confirmed the same motive as given by Nazir Masih.

Natha Masih attested the recovery memo. P.F. pertaining to Chhuri P.7.

On 29-10-1981, Dr. Muhammad Siddiq conducted the post-mortem examination on the dead body of Barkat Masih. The deceased was about thirty-five when he was killed. In all the doctor found six injuries. Two were abrasions. The rest were incised wounds. One of the injuries was a vertically oblique incised stab wound 2 cm. x cm. or, front of chest middle just to the right of mid line. Under this injury, right third costal cartilage near the sternal was found cut through the paricardium. Left lobe of liver was also cut under this injury. This injury alongwith shock and haemorrhage was sufficient to cause death in the ordinary course of nature.

On the same day the same doctor at about 1 p.m. examined the appellant. He had a transversely oblique skin deep incised wound 2 cm. x 1/4 cm. on right side front of chest 3-cm. below the nipple and a superficial incised wound 11 cm. on the anterior fold of right axilla. Both the injuries were caused by sharp-edged weapon and were simple in nature. Duration between the injuries and examination was twenty four hours.

The appellant admitted that he was arrested on 28-10-1981 at about 10.30 p.m. by Malik Ghulam Qamar Sub-Inspector. He also admitted that when he was arrested his clothes were stained with blood. He further said that he was injured by the deceased who wanted to kill him. When questioned why this case against him, he answered as under:-

"At about 11.00 a.m. on 28-10-1981 Barkat deceased came to the shop of Mukhtar Marshal and started drinking in the company of Rafi Masih an employee of Mukhtar Marshal. I objected to it. The deceased left the place in the state of intoxicant and came afterwards to the place of occurrence with a Chhuri in his hand and started abusing me. I came there. He inflicted Chhuri blows upon my chest and right axilla. I tried to save myself from the deceased and tried to snatch the Chhuri from the deceased during that scuffle the deceased also received injuries. This was done in order to save my life from the deceased. Hako Masih is not related to me nor I have motive to kill the deceased.

Learned counsel for the appellant criticised the prosecution evidence and submitted that the eye-witnesses were related to the deceased. They were interested. Hence their evidence deserves to be rejected.

In the alternate learned counsel argued on the basis of the plea taken by the appellant in his statement under section 342, Cr.P.C. that killing in this case was not murder but it was done in the right of private defence.

So far as first contention is concerned, there are two versions of the incident. One as given by the eye-witnesses and the other by the appellant. I am not prepared to outright reject the evidence of the eye-witnesses on the ground of their being relatives. Nevertheless, if the prosecution story is to be believed then this appeal has to be dismissed. But if the appellant's version is accepted then either he shall be acquitted or given some concession in the sentence.

I don't think it is a case of acquittal. However, it is more likely that the incident might have taken place as alleged by the appellant but his version is exaggerated. The number of the injuries on the person of the deceased demolishes the plea of private defence. This shows that he exceeded the right given to him by law.

I would, therefore, set aside the conviction under section 302 P.P.C., alter the same to one under section 304, Part 1, P.P.C. and reduce the sentence to ten years' R.I. lie shall also be given benefit under section 382, Cr.P.C.

The appellant was ordered to pay Rs.2,000 as compensation to the legal heirs of the deceased. This amount being not reasonable, it was enhanced upto Rs.10,000 (ten thousand) after giving notice to the counsel for the appellant who duly accepted the same.

The Collector concerned is directed to take immediate steps for realization of the amount of compensation and its payment.

S.G.D. Order accordingly.

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