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Criminal Appeal No. 263 and Murder Reference No. 100 of 1984, heard on 22nd April, 1986..

‑‑ S. 302‑Evidence, appreciation of‑ Self‑defence, plea of‑Eye witnesses failed to explain injuries suffered by accused during occurrence‑tact per se, held, would not make out a case of self defence.

‑‑ S. 302 read with S. 300, Exception 4 & S. 304, Part I‑‑Offence, alteration of‑Self‑defence, plea of‑What transpired between parties before they fell out, not known‑Incident appearing to be a sudden flare up, without premeditation and in ensuing fight deceased on complainant's side losing his life‑Plea of self‑defence, held, not available to either party, in circumstances‑Conviction under S. 302, P. P. C. altered to that under S. 304' Part I, P. P. C.‑[Private defence, right off.

‑‑‑ Ss. 302 & 323‑Offence, alteration of‑Occurrence a sudden affair and accused causing simple injuries to deceased ‑Conviction under S. 302, P. P. C. altered to that under S. 323, P. P. C. in circum stances.

Dr. Khalid Ranjha for Appellants.

Muhammad Yamin for A.‑G. for the State.

Date of hearing : 22nd April, 1986.

‑Tariq Masih (22), Parvez Masih (21) and Bashir Masih (55) were tried for the murder of Paloos Masih. Parvez and Tariq were convicted by the Additional Sessions Judge, Sialkot on 5‑3‑1984 under section 302/34, P. P. C. and both were sentenced to death with a fine of Rs. 3,000 each, in default to undergo two years' R. I. Two‑third of the fine if realised was ordered to be paid as compensation to the heirs of the deceased. Bashir Masih was acquitted. Appeal of the convicts and the connected murder reference are before us.

2. About three months before the occurrence in this case Paloos Masih deceased beat up Parvez Masih accused. A compromise. was, however effected but the accused bore a grudge against Paloos. This was the motive for the crime. According to the prosecution on 11‑8‑1982 at 6 00 p.m. Pitras Masih (informant and his brother Paloos deceased were on their way to the village, as they reached near the shop of Allah Ditta Barber, Tariq armed with a Chhuri, Parvez with a stick and Bashir Masih empty handed appeared there Bashir raised a Lalkara that Paloos should not be spared upon which Parvez gave a stick blow on the back of Paloos's head who fell ; thereafter Tariq inflicted a knife blow in his abdomen. On the alarm raised by the informant P. Ws. Iqbal and Munawar reached there and intervened. The accused went away. Paloos was carried to Civil Hospital, Daska. P. W. 9 Dr: Javed Iqbal Medical Officer examined him at 6‑45 p.m. the same day and found 7 c.m. x 3 c.m. about 5 c.m. at the end of sternum, in the abdomen and another lacerated wound 5 c.m. x 1 c.m. scalp deep on back right side of the head. Paloos was in senses. The same day at 10‑00 p.m. P. W. 9 Dr. Javed Iqbal also examined Tariq Masih accused and observed the following injuries on him

"(1) A lacerated wound 1 c.m. x c.m. x bone deep near outer angle of left eye with abrasion 2 c.m. x 2 c.m. around it.

(2) An abrasion 2 c.m. y 2 c.m. x c.m. with contusion 17 c.m. x 2 c.m. on back of right shoulder.

(3) A contusion 12 c.m. x 2 c.m. on back of left side of chest in its upper part.

(4) A contusion width 2 c.m. on back of right side of chest.

(5) An abrasion 1 c.m. x 4 c.m. x c.m. on formal aspect of right index finger with swelling 2 c.m‑ x 2 c.m. around it and its rout.

(6) A lacerated wound 3 c.m. x c.m. X bone deep on palmer surface of right little finger with a lacerated wound 3 c.m. x c.m. bone deep on back of right little finger in its middle. Under line middle phalyn is fractured."

Injury No. 6 was declared grievous while rest simple. All injuries were caused by blunt weapon.

3. After obtaining the medical certificate Exh. P. R. Pitras proceeded towards the police station, on the way he met with P. W.5 A. S. I. Muhammad Akram and made statement Exh. P. A. to him at 10‑20 p.m. on the basis ' of which formal F. I. R. Exh. PA/1 was registered at the Police Station Daska the same evening at 10‑45 p.m. Police Station is at a distance of 14 miles from the place of occurrence. After registering the case A. S. I. went to the hospital. He obtained doctor's opinion on application Exh. P. E. that Paloos the injured was fit to make a statement, thereafter he recorded his statement P. Q. On the following day the A. S. I. went to the place of occurrence. collected blood‑stained earth. The same day he was informed that Paloos had died The A. S. I. went to the hospital, prepared the necessary documents and sent the dead body for its poet‑mortem examination.

4. On 13‑8‑1982 at 9‑00 a.m. P. W. 10 Dr. Mumtaz Ahmad Bhatti. M. S. Civil Hospital, Daska, held the, autopsy on the dead body of Paloos and found the same injuries on it which P. W. 9 Dr. Javed Iqbal had observed when Paloos was alive. According to the doctor Injury No. 1 had cut the peritonium, small intestines at seven places and the mesentry was also cut at two places. Stomach contained two ounces of liquid material. There was faecal matter in the large intestine. His bladder was empty. In doctor's opinion death occurred due to shock and haemorrhage caused by the injury in the abdomen; which was sufficient to cause death in the ordinary course of nature.

5. On 20‑8‑1982 P. W. 5 Muhammad Akram A. S.‑I. arrested the accused. The same day Tariq Masih in custody got recovered blood‑stained daggsr P. 3 from his house which was sealed in a parcel through memo. P. L. attested by P. W. 6 Javed Akhtar, Muhammad Rafiq (given up) and investigating Officer. The same day Parvez also got recovered his stick P. 4 from his house which was taken into possession through memo. p.m. attested by the same aforesaid witnesses. After completing the investiga tion the accused were tried in due course.

9. All accused denied guilt and ascribed the case to enmity. Explaining the case against him Tariq made the following statement :‑

"I am innocent. Actually while I was passing, the deceased attacked me and caused me injuries and I acted only to save my life and acted in the exercise of the right of self‑defence and I gave a knife injury to the deceased."

Parvez and Bashir denied their presence at the spot. No accused led evidence in defence.

7. Relying on the evidence of the eye‑witnesses that of the recoveries from the accused trial Court disbelieved Tariq's plea of self‑defence and observed that the accused were in fact the aggressors. It, however, gave Bashir accused the benefit of doubt on the ground that he was not ascribed any injury to the deceased but was only attributed a proverbial Lalkara.

8. Criticising the finding learned counsel for the appellants contended that prosecution did not explain the background of the earlier fight which allegedly took place three months before the occurrence. On the other hand it was prosecution's own case that the matter had been patched up. There was, therefore, no occasion for the accused to have retaliated that too after three months. Further contended that the eye‑witnesses were closely related to the deceased and were partisan witnesses, therefore, it was not safe to place reliance on them. It was also argued that no attempt was made to make a report with the police before obtaining the medico‑legal certificate of Paloos and that since the informant had concealed the injuries of Tariq Masih, this lent support to the defence version that in fact the deceased was the aggressor and Tariq had acted in self‑defence.

We have considered the matter and find that P. W. Dr. Javed Iqbal admitted having examined Tariq accused an hour after the examination of Paloos. Even the Investigating Officer deposed that at the time of Tariq's arrest, be produced a copy of his medical examination on which he made a query from the doctor about the nature of the injuries. We also find that the grievous injury suffered by Tariq is on the right little finger of his hand. Of course there is a 12 c.m. long contusion on the back of his left chest. Obviously, it appears to be a stick blow. The remaining two injuries are also simple. True, the eye‑witnesses did not explain Tariq's injuries at the trial but this per se would not make out a case of self defence. Again the accused's statement that he attacked the deceased in self‑defence because the deceased had attacked him leads us nowhere and is a vague statement for the determination of his right because in order to make out a case of self‑defence, it is necessary for the accused to explain the circumstances which compelled him to act the way he did or in the absence of the statement of the accused, the circumstances appearing in the prosecution case itself must lead a Court to the conclusion that the accused had acted in the exercise of' right of self‑defence. But on the other baud, like the defence, the prosecution case is also suffering from the same defect because neither in the F. I. R. nor at the trial, the back ground of earlier fight between the parties has been disclose. It remains a mystery. Not only that, we also do not know the nature of injuries which the accused suffered in the earlier fight. This in our view would be material because it is prosecution's own case that in spite of a com promise, the accused avenged the earlier incident that too after three months. Last but not the least, there is no corroboration of informant's statement about the earlier incident. In view of these circumstances, we are not satisfied with the prosecution's motive story. What transpired,, between the parties when they fell out on the day of occurrence is not known. In all probability, it appears to be a sudden flare up, without pre‑meditation on which the fight ensued and the deceased lost his life. It is an established principle of law that in a case of sudden fight, it is immaterial who made the first assault, as such there would be no question of self‑defence. In this view of the matter, we alter the conviction of fariq Masih to section 304, Part 1, P. P. C. and reduce his sentence to 7 years' R. 1. His sentence of fine is also reduced to Rs. 2,000 in default to undergo one year R. 1. further. The entire fine if realised shall be paid to the heirs of the deceased. Since Pervez Masih caused simple injury to the deceased, we, therefore, alter his conviction to section 323, P. P. C. C and reduce his sentence to the period already undergone by him. His sentence of fine is remitted and be shall be released forthwith if not required in any other case.

S. G. D. Order accordingly.

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