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Criminal Appeal No. 521 of 1983, decided on 29th January, 1985.

‑‑‑S. 304, Part I‑‑False implication‑‑Acquitted co‑accused found innocent by police in two investigations‑‑Such accused involved in third investigation, due to influence of complainant party‑‑Presence of these accused may have resulted in many more injuries to members of complainant party‑‑Co‑accused Mochies by profession, held, falsely involved by complainant party in circumstances.

‑‑‑S. 304, Part I‑‑Witness‑‑Three witnesses alleging that they were going to their own fields when they were attacked by accused party‑‑Two witnesses then stating that they were going to Lambardari square of N‑‑One witness admitting that if they went to their lands from their house, place of occurrence did not fall in the way‑‑Held, all such witnesses were very likely not present at spot in circumstances.

‑‑‑Ss. 304, Part I & 100‑‑Private defence, right of‑‑Eye‑witnesses admitting that prosecution witness had given a Sota blow to accused‑ Police not getting him medically examined‑‑Allegation of accused that he suffered a number of injuries and police deliberately not got him medically examined in order to suppress them could not be totally ignored‑‑Causing of injuries to prosecution witnesses, in self‑defence, though accused was silent about this fact in his statement, appearing probable‑‑Fact that accused was surrounded by about six armed persons, appearing probable‑‑Accused was disarmed at one stage‑‑Explanation of accused that he apprehended imminent grievous hurt at hands of assailants, who had disarmed him, not ruled out‑‑Infliction of solitary injury to deceased in self‑defence, appearing to be justified‑‑Accused acquitted in circumstances.

Abdur Rashid Gujjar for Appellant.

Sh. Ehsan Ahmad for A.‑G. for the State.

Malik Allah Yar Khan for the Complainant.

Dates of hearing: 23rd and 27th January, 1985.

Allah Bakhsh and his nephews Muhammad Riaz and Muhammad Khan were tried by the learned Sessions Judge, Sargodha, tinder section 302/323/34, P.P.C. for the murder of Khuda Bakhsh, deceased, and infliction of simple injuries to Muhammad Waris and Sadullah P.Ws. The learned trial Judge, by his judgment, dated 5‑7‑1983, convicted Allah Bakhsh under section 304‑1, P.P.C. and sentenced him to undergo ten years' rigorous. imprisonment and to pay a fine of Rs.5,000 or in default of payment thereof to undergo further rigorous imprisonment for one year and acquitted Muhammad Riaz and Muhammad Khan. The fine, if recovered, from Allah Bakhsh was ordered to be paid to the heirs of Khuda Bakhsh, deceased, as compensation. Allah Bakhsh, was given the benefit of section 382‑B, Cr.P.C. The appeal (Criminal Appeal No. 521 of 1983) preferred by Allah Bakhsh, convict, against his conviction and sentence and two private revisions (Criminal Revision 707 of 1983 and Criminal Revision 708 of 1983) preferred by Sadullah, complainant, for the enhancement of the sentence of Allah Bakhsh, convict, and for the conviction of Muhammad Riaz and Muhammad Khan, acquitted accused, are ell now before me for disposal.

2. The brief facts of the case are that four days prior to the occurrence i.e. on Eid day, Khuda Bakhsh, deceased, had his turn of water, when Muhammad Riaz, accused, cut his water. The deceased enquired from Muhammad Itiaz, accused, as to why lie had done the same, to which the latter replied that what he had done was right. The deceased slapped Muhammad Riaz, accused. Muhammad Ashraf P. W. G, who happened to be there, separated the two. Muhammad Riaz, accused, whilst leaving, threatened to take revenge for the disgrace meted out to him. The deceased told about this incident to his maternal‑uncle, Sadullah P.W:7, who went to Allah Bakhsh, accused, uncle of Muhammad Riaz, accused, and complained about the conduct of his nephew. Allah Bakhsh, accused, on the other hand, told Sadullah P.W.7 that they had been disgraced and that they would take revenge. On the day of occurrence, i.e. 23‑10‑1980, at about noon time, Sadullah P.W.7, Muhammad Waris P.W.8 and Khuda Bakhsh, deceased, were going to their field from their house. When they reached near the shop of Sardar Sial in the chowk, they saw Allah Bakhsh, Muhammad Riaz and Muhammad Khan, accused, all armed with Lathies. They shouted Lalkara that they had come to teach them a lesson for not giving them water. Allah Bakhsh, accused, then opened the attack and gave a Lathi blow to Sadullah P.W.7 on his head. Muhammad Riaz, accused, gave a Lathi blow to Muhammad Waris P.W.8 on his right arm. Allah Bakhsh, accused, again tried to give a Lathi blow to Sadullah P.W.7, when he warded off on his hand and snatched the said Lathi from him. Thereupon, Allah Bakhsh, accused, took out a Chhuri from his Dub and stabbed Khuda Bakhsh, deceased, with it on his chest, who fell down after receiving the injury. Allah Bakhsh, accused, also tried to give Sadullah P.W.7 a Chhuri blow, but the latter gave a Lathi blow to the said accused on his head in self‑defence. Muhammad Khan, accused, kept on shouting Lalkara and exhorting his companions to finish all of them. On the alarm of the injured, Muhammad Iqbal P.W.9 and Rehmat Khan (given up P.W.) came up and saw the incident. On seeing them, the accused fled away to their house alongwith their weapons, except the Lathi P.5 which Sadullah P.W.7 had snatched from Allah Bakhsh, accused.

3. Leaving the dead body and the Lathi P.5 in the charge of his brother Muhammad Waris P.W.8, Sadullah P.W.7 proceeded to Police Station Saddar Sargodha, where he lodged F.I.R. Exh.P.E. at 12‑30 which was recorded by Muhammad Masood Aziz S.I., P.W.11. After sending Sadullah P.W.7 for medical examination, the Police Officer proceeded to the spot, where he recovered blood‑stained earth, vide memo. Exh.P.G., and took into possession Lathi P.5 of Allah Bakhah, accused, produced before him by Muhammad Waris P.W.8, vide memo. Exh.P.P. After preparing the necessary papers, he sent the dead body of Khuda Bakhsh for post‑mortem examination.

4. The same day at 4‑45 p.m., Dr. Malik Muhammad Khan P.W.1 performed the post‑mortem examination on the dead body of Khuda Bakhsh, deceased, and found an incised wound 3 c.m. x 1 c.m. x cavity deep on the left side of the chest and an abrasion c.m. x c.m. on the right elbow. The 6th and 7th ribs, left lung, paricardium and heart were cut. The incised wound do the chest was found to be sufficient to cause death in the ordinary course of nature. The cause of death was shock and haemorrhage due to this injury. Probable time between injuries and death was about five to ten minutes and that between death and post‑mortem examination between four to six hours.

5. The same day Dr. Malik Muhammad Khan P.W.1 also examined Muhammad Waris P.W.8 and found a swelling 3 c.m. x 2 c.m. on his right fore‑arm, which simple blunt weapon injury was held to have been inflicted within twenty‑four hours of the examination. Likewise, he also examined Sadullah P.W.7 and found a haematoma on his right temple, which simple blunt weapon injury was held to have been inflicted within twenty‑four hours of the examination.

6. The evidence reveals that on 24‑10‑1980 Muhammad Riaz and Muhammad Khan, accused, were present during the police investigation, though they were not arrested.

7. On 1‑11‑1980, Allah Bakhsh, accused, was arrested. The same day he led to the recovery of a blood‑stained Chhuri P.6 from his house, which was taken into possession by the police vide memo. Exh.P.H. in the presence of Muhammad Iqbal P.W.9, Masood Aziz S.I. P,W. 11 and Rehmat Khan (given up P.W.). The blood‑stains on the said Chhuri P.6 were found to be of human origin by the Chemical Examiner and the Serologist.

8. On 29‑12‑1980, Muhammad Riaz and Muhammad Khan, accused, were formally arrested.

9. After completing the necessary investigation, the challan against the three accused was sent up.

10. At the trial, the prosecution produced Sadullah P.W.7 to prove the motive, the said witness and Muhammad Waris P.W.8 and Muhammad Iqbal P.W.9 in proof of the ocular account, Masood Aziz S.I. P.W.11 and Muhammad Iqbal P.W.9 in support of the recoveries and Dr. Malik Muhammad Khan P.W.1 in corroboration of the medical testimony.

11. At the trial, all the three accused admitted the occurrence that had taken place four days before the murder, but they alleged that it was Muhammad Riaz, accused, who had actually disgraced Khuda Bakhsh, deceased, on that occasion and that it was the deceased who had threatened to take revenge. They also stated that Muhammad Ashraf P.W.6 was not present at that occasion. Muhammad Khan and Muhammad Riaz, accused, denied the occurrence and imputed their false involvement due to their relationship with Khuda Bakhsh, deceased. They both stated that they had produced their evidence before the Investigating Officer and S.D.P.O. and that these Police Officers had declared them to be innocent and did not arrest them, till they were finally arrested, under the instructions of the Inspector, Crimes Branch, Sargudha Range. Allah Bakhsh, accused, however, admitted the occurrence though in different circumstances. His version recorded in his statement under section 342, Cr.P.C. reads as follows:‑

"On the day of occurrence I was going to my house from the Bazar and when I reached near the house of Ghulam Rasul, Weaver I was assaulted by Sadullah and Waris P.Ws., Khuda Bakhsh, deceased, and three others who were strangers: Sadullah shouted that he would teach me a lesson for helping my nephew Riaz who had disgraced him. Thereafter all of them gave me Lathi blows. Sadullah snatched my Lathi and when I felt that I have been overpowered and was about to be killed, I took out the Chhuri from my Dub,.which I was keeping due to Eid‑ul‑Azha days for slaughtering purposes and injured with it Khuda Bakhsh, deceased in self‑defence, who fell down, at which his companions attended to him and I managed to escape from the scene of occurrence. The motive for the assault was that there was an altercation between Riaz, accused, and the deceased due to turn of water. Our turn started at 6‑00 a.m., but the deceased whose turn was to begin at 7‑00 a.m. diverted our water to his field and it was for this reason that there was an altercation between Riaz and the deceased. After the occurrence I myself appeared before the police and produced the Chhuri. I made a similar statement before the police as my first version. My two co‑accused were not present at that time."

He also stated that he had produced himself with his Chhuri before the police and. had informed them of the manner in which he was attacked by the deceased and his companions. He also stated that he had with him the Chhuri in connection with slaughtering of the sacrificial animals during the post Eid‑ul‑Azha period. He also stated that he had shown to the police his injuries but the police did not show his arrest until his injuries had healed up.

12. In view of the admission of the occurrence by Allah Bakhsh, accused, though in different circumstances, the learned trial Judge, after placing in Juxtaposition the case bf the prosecution and the defence, found from the evidence that the case of Allah Bakhsh, accused, was reasonably probable and stood made out. However, the learned trial Judge did not accept the plea that Allah Bakhsh, accused, had acted in self‑defence; rather the trial Judge found that he had exceeded his right of private‑defence. Accordingly, the trial Judge convicted Allah Bakhsh, accused, as stated in para. 1 above and acquitted the rest.

13. I have heard the arguments of the learned counsel for the appellant, the complainant and the state and have also perused toe record. The earlier incident stands admitted in this case by Allah Bakhsh, appellant, and Muhammad Riaz and Muhammad Khan, acquitted accused. The only point in dispute is whether Muhammad Riaz, acquitted accused, felt disgraced and the attack was launched by his party of whether Khuda Bakhsh, deceased, felt disgraced and his party tried to assault Allah Bakhsh, appellant, but with this aspect I will deal with later.

14. As regards the ocular account, the story of the prosecution is furnished by Sadullah P.W.7, Muhammad Waris P.W.8 and Muhammad Iqbal P.W.9. Allah Bakhsh, appellant, had admitted the occurrence. His version as stated in his statement recorded under section 342, Cr.P.C. already stands reproduced in para. 11 above and need not be repeated. The trial Judge, after placing in juxtaposition the version of the prosecution and that of the defence, found from the evidence on the record and the surrounding circumstances that the story of the defence was reasonably probable. Having read the evidence, I am also of the opinion that the prosecution story cannot be believed. Muhammad Riaz and Muhammad Khan, acquitted accused, were found innocent by the police in two investigations. It has also come on the record that Sadullah P.W.7 is the personal driver of the daughter of Mian Muhammad Saeed Qureshi, Chairman, District Council, Sargodha. The probability that influence was used by the Chairman to compel the Crimes Branch to involve Muhammad Riaz and Muhammad khan, acquitted accused, in the third investigation, cannot be totally excluded. Had these two acquitted accused been present, they would have, with Allah Bakhsh, appellant given many more injuries to the members of the complainant' party. The two acquitted accused, being Mochies by profession, appear to have been falsely involved by the complainant party. The three witnesses allege they were going to their own fields and when they reached the shop of Sardara Sial in the chowk, that the accused party attacked them. Sadullah and Muhammad Waris P.Ws. then stated they were going to the Lambardari square of Nawabzada Muhammad Saeed Qureshi. Muhammad Waris P.W.8 then admitted that if they went to their lands from their house, the place of occurrence did not fall in the way. The witnesses, therefore, were very likely not present at the spot. It has been admitted by the eye‑witnesses that Sadullah P.W.7, gave a Sota blow to Allah Bakhsh, appellant, on his head, when he tried to injure the said witness. The police did not care to get this appellant examined. The allegation of the appellant that he suffered a number of injuries and the police deliberately did not get him medically examined, in order to suppress them, cannot be totally ignored. In these circumstances, the finding of the trial Judge that the defence version was reasonably probably, appears to be justified from the evidence on the record and the surrounding circumstances. The defence story has to be accepted as a whole and cannot be accepted in part. According to the appellant, when he was going to his house from the Bazar and was near the house of one Ghulam Rasul, Weaver, he was assaulted by Sadullah P.W.7, Muhammad Waris P.W.8, Khuda Bakhsh deceased, and three other persons, who were strangers. They all gave him Lathi blows. Sadullah P.W.7 snatched his Lathi and when he fell down, he was over powered and was about to be killed. He took out the Chhuri from his Dub, which he was keeping for slaughtering sacrificial animals, it being the post Eid‑ul‑Azha period, and he injured Khuda Bakhsh, deceased, with it in self‑defence. The injuries on Allah Bakhsh, appellant, appear to have been suppressed, as the police officer did not send him up for medical examination. The probability that he had a number of injuries, including one on the head, as admitted by the eye‑witnesses, cannot be totally excluded. The fact that he was surrounded by about six persons, who were armed, who assaulted him, appears probable. It appears he also caused injuries to Sadullah P.W.7 and Muhammad Waris P.W.8 in self‑defence, though he is silent about this in his statement. The fact that he was disarmed at some stage, is also admitted by the witnesses. Thus, his explanation that he apprehended imminent grievous hurt at the hands of his assailants, who had disarmed him, cannot be ruled out. His infliction of 'one solitary knife injury on Khuda Bakhsh, deceased, in self‑defence, appears to be justified. It cannot be said that he acted in any cruel or unusual manner in inflicting the injury, which he did. His case is, therefore, covered by section 100, P.P.C. The appellant is, therefore, entitled to the benefit of doubt.

15. For the foregoing reasons, this appeal is accepted and the conviction and sentence of Allah Bakhsh, appellant, is set aside. He shall be set at liberty forthwith, if not required in any other case. The fine, if realised, shall be refunded to him.

16. There being no merit in the two private revisions (Criminal Revisions 707 of 1983 and Criminal Revision 708 of 1983) filed by Sadullah, complainant, the same are dismissed in limine.

M. A. K.

Appeal accepted.

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