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Criminal Appeal. No. 632 of 1981, decided on 13th June, 1984.

--Ss. 302 & 304 (I)-Murder-Private defence, right of-Accused taking plea of self-defence on ground that in a sudden fight, crime weapon had fallen down from deceased which he picked up and inflicted injuries on deceased with that weapon-Injuries on person of accused simple in nature and not on vital part of his body but not explained in F. I. R.-Such injuries not stated or explained by eye-witnesses in their examination-in-chief - Eye-witness stating in cross-examination that accused bad fight with another person a little before occurrence and had received injuries in that incident--- Accused's fight with another person not mentioned in F. I. R. nor said other person who was said to be present at time of recording of F. I. R. was examined by Investigating Officer- Eye-witness also admitting in cross-examination that he had seen clothes of accused already stained with blood, before he had caused injuries to deceased-Held, omission of prosecution witnesses to explain injuries on person of accused was material and explanation of prosecution witness in cross-examination was an afterthought-Plea of accused for self-defence was, therefore, plausible and accused was attacked by deceased and prosecution witness as stated by him in his state ment under S. 342, Cr. P. C. and both deceased and eye-witness, were, therefore, aggressors - Accused, therefore, had a right to defend himself, which in facts and circumstances, accused exceeded as accused had injuries on his person of all simple in nature and not on vital parts of his body-Accused was guilty of S. 304 (I), P. P. C. and his sentence of imprisonment for life was, therefore, altered to one for seven years' R.I. with benefit of S. 382-B, Cr. P. C. in circumstances.-[Private defence, right of].

Aitzaz Ahsan for Appellant.

Malik Sarfraz Hussain for the State.

Date of hearing: 13th June, 1984.

Nasarullah appellant aged about 18 years was convicted by the learned Additional Sessions Judge, Gujranwala, vide judgment dated 29th October, 1981 for the murder of Zahid Hussain and sentenced to imprison ment for life and a fine of Rs. 10,000 or in default two years' R. I. He has come up in appeal against the said judgment- by which his co-accused Saifullah was acquitted.

2. The prosecution case in brief is that the complainant Muhammad Ashraf (P. W. 7) resided in village Mandiala Chhatha where his brother in-law Riyasat Ali also resided alongwith his family. About two months before the present, occurrence, which took place on 2nd October, 1979 at about degarwala, Nasarullab appellant alongwith his friends, Zafar and Khali Hussain, peeped into the house of Riyasat Ali aforesaid to intimidate his daughters. This was objected to by Javed Iqbal P.W., brother of Muhammad Ashraf P. W. and Zahid Hussain deceased aged 14. There was a quarrel but the respectables of the locality separated them. Again, on-lst October. 1979, at 6 p. m. Nasarullah accused and his aforesaid companions started peeping into the house of Riyasat Ali. Zahid Hussain deceased and Javed Iqbal (P. W. 8) took exception to the conduct of Nasarullah appellant and his companions, who started abusing Zabid Hussain deceased and his uncle Javed 1qbal, and thereafter stood in the street alongwith Iftikhar and Saifullah (acquitted accused). Ali Akbar Lambardar (P. W. 5) intervened and separated them. It is further stated that on 2nd October, 1979 at degarwala, Zahid Hussain deceased alongwith Javed Iqbal (P. W. 8) was coming back to his house with fodder loaded on a she-donkey. Muhammad Ashraf (P. W. 7) and Riyasat Ali (given up P. W.) were following them at some distance. When Zahid Hussain deceased reached near the field of one Irshad Ali, Nasarullah accused-appellant and Saifullah (acquitted accused) both armed with khanjars came out of the said field and attacked Zahid Hussain. Nasarullah appellant gave the first blow which fell on the abdomen of Zabid Hussain as a result of which the intestines came out of the abdomen. He fell down whereafter Saifullah gave knife blow on the right rib of the deceased. Then both the accused inflicted more injuries on the person of Zabid Hussain. The occurrence was witnessed by Muhammad Ashraf (P. W. 7), Javed Iqbal (P. W. 8) and Riyasat Ali (given up P. W.). The accused ran away from the spot with their respec tive weapons. A chadar was placed around the abdomen of Zahid, who had become unconscious. He was taken to the bus stand for going to the hospital but before they could catch the bus, Zabid Hussain expired at the bus stand. S.-I. Muhammad Zafarullah ('. W. I1), who was on patrol in the area, reached the bus stand where Muhammad Ashraf (p. W. 7) made statement Exh. P. B. on the basis of which Nur Hussain Moharrir Head Constable recorded the formal first information report Exh. P. B./I. After registration of the case, the police undertook investi gation. Both the accused were arrested on 3rd October, 1979. On that very day, Nasarullah appellant led to the recovery of dagger P. 8 which was taken in possession by Muhammad Zafarullah S.-I. vide memo. Exh. P. G. in the presence of Muhammad Hussain (P. W. 9) and Muhammad Sharif (given up P. W.). According to the report of the Chemical Examiner Exh. P. K., the dagger was not stained with blood and. there fore, not sent to the Serologist for further examination. Nasarullah appellant was challaned alongwith his acquitted co-accused, and convicted as stated above.

3. In support of its case, the prosecution examined Muhammad Ashraf (P. W. 7) and Javed Iqbal (P. W. 8), both uncles of Zahid Hussain deceased, as eye-witnesses. Dr. Imtiaz Ahmad Cheema (P. W. 6) had conducted post-mortem examination on the dead body of Zahid Hussain and had found the following injuries: -

(1) Incised wound 2.5 x 2 c. m. into going deep on the lateral side of right flank 7 c. m. above the right illiac crest.

(2) Incised wound 2 x 1 c. m. x muscle deep on the back of right chest out sider upper part.

(3) Incised wound 1 x 1 c. m. x skin deep on the top of right shoulder.

(4) Contusion 2 x 1 c. m. on the back of left chest upper part 4 c. m. left to middle lint .

(5) Incised wound 2 x 1 c. m. x skin deep on the back of left thigh lower part.

(6) Abrasion 3 x 2 c. m. on the outer side of left knee-joint.

(7) Abrasion 2 x 1 c. m. on the inner side of right knee-joint.

In the opinion of this witness injury No. 1 was grievous and was sufficient to cause death in the ordinary course of nature. All other injuries were simple in nature. Injuries Nos. 1, 2, 3 and 5 had been caused by sharp- edged weapon while other injuries had been caused by blunt weapon. As stated above, P. W. 9 Muhammad Hussain witnessed the recovery of dagger P. 8. Ali Akbar Lambardar (P. W. 5) deposed about the motive occurrence which had taken place a day earlier to the present occurrence. P. W. 11 Muhammad Zafarullah S.-I. had investigated this case.

4. The acquitted accused Saifullah denied hid presence at the spot. Nasarullah appellant admitted the date, time, and place of occurrence. He also admitted his presence at the spot and pleaded that he was returning from School when he was waylaid by Javed Iqbal (P. W. 8), armed with dagger, and Zahid Hussain deceased, armed with Danda. It was pleaded by him that the dagger of Javed Iqbal P. W. fell down which was picked, up by him. Zahid Hussain caused him injuries whereafter he had inflicted injuries on the deceased with the said dagger in self-defence. He produced his birth certificate Exh. D. D. and did not produce any other defence evidence.

5. I have gone through the entire evidence in this case with the assistance of the learned counsel for the appellant and the State. It is contended by the learned counsel for the appellant that in view of the admission of Nasarullah appellant, he would not challenge the time and place of occurrence as well as the presence of Javed Iqbal (P. W. 8) and also the presencc of Nasarullah accused. It was argued by him, as admitted by the S. I. Zafarullah (P. W. It) that at the time of arrest Nasarullah accused was found injured and that he got him medically examined from the medical officer. He referred to the medico-legal report pertaining to Nasarullah accused though not formally proved and accepted on the record of this case. According to this report, Nasarullah accused was found to be having 11 injuries on his person, out of which injuries Nos. 7 and 8 bad been caused by sharp-edged weapon and the rest by blunt weapon. He was examined on 2nd October 1979, at 11 p. m. All the injuries were simple in nature. It was, therefore, argued that the prosecution case is not worth reliance because the witnesses have suppressed the injuries on the person of Nasarullah accused and, as such, it is established that Nasarullah had acted in the right of his private defence. Learned counsel for the State has controverted these arguments of the learned counsel for the appellant.

6. I have considered the evidence on record in the light of the arguments of the learned counsel. The injuries on the persons of Nasarullah appellant were not explained in the F. I. R. These injuries were not stated or explained by the two eye-witnesses in their examination-in-chief. Javed Iqbal (P. W. 8) in cross-examination stated that Nasarullah had a fight with one Iftikhar, a little before the present occurrence, and had received the injuries in that incident. It was further stated by him that the said Iftikhar was present at the time of recording of the F. I. R. Exh. P. B. at the bus-stand but still this fact was not mentioned in the F. I. R nor the statement of said Iftikhar was recorded by the S. I. at the bus-stand. It was further admitted by Javed P. W. in cross-examination that at the time of present occurrence he had seen the clothes of Nasarullah accused already stained with blood before he had caused injuries to Zahid Hussain deceased. This explanation clearly is an afterthought. The omission of the prosecution witnesses to explain the injuries on the person of Nasarullab accused is material. In this view of the matter, I find that the story put forth by Nasarullah accused in his statement under section 342, Cr. P. C. is plausible. It will be noted that the prosecution witnesses were annoyed with Nasarullah accused, who alongwith his companions used to peep into the house of Riyasat Ali (given up P. W.) and which had resulted in. exchange of abuses on two earlier. occasions between the parties. It, therefore, appears that Nasarullah was attacked by Zahid Hussain deceased and Javed Iqbal P. W. when he was returning from school at about degerwala on they day of occurrence.

7. It is correct that Zahid Hussain and Javed Iqbal were the aggressors and Nasarullah had a right to defend himself but in the facts and circumstances of this case, I find that he had exceeded his right of private defence. The injuries on the person of Nasarullah accused were all simple in nature and not on the vital parts of his body. According to him, the dagger of Javed lqbal had fallen down which was picked up by him and he inflicted injuries on Zahid Hussain with that dagger. Zahid Hussain, according to him, was armed with Danda and bad caused only simple injuries to Nasarullah accused. 1n this view of the matter, Nasarullah was not justified/entitled to inflict grievous and simple injuries to Zahid Hussain deceased. I, therefore, find that Nasarullah exceeded his right of privated defence and was guilty under section 304 (1), P. P. C. He is accordingly convicted for the said offence and sentenced to seven years' R. I. and a fine of Rs. 10,000 or in default two years' R. I. He was arrested on 3rd October, 1979 and is in prison since then. He will be given the benefit of section 328-B, Cr. P. C. from 3ro October, 1979 to the date of his conviction on 29th October, 1981. With this modification; this appeal is disposed of.

M. Z. M. Appeal disposed of accordingly,

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