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Criminal Appeal No.18 and Murder Reference No.6 of 1984, heard on 7th June, 1986.

---S.302--Right of private defence--Plea of--Deceased allegedly dragging accused towards bushes for committing sodomy with him--No bushes found near place of occurrence--No bushes even shown in site plan--No marks of struggle on person of accused-Eye-witnesses seeing deceased and accused running when injury caused to deceased on back--Plea of self-defence not raised before investigating officer during investigation--Injury on back of deceased could hardly be believed to have been caused by accused during an attempt to commit sodomy with him--No merit found in plea of right of private defence raised by accused--Prosecution, held, had brought home guilt to accused--Death sentence confirmed 'in circumstances.

Ijaz Hussain Batalvi and Syed Ehsan Qadir Shah for Appellant.

Sh.Naseer-ud-Din for the State.

Date of hearing: 7th,Jqqe, 1987.

.--Muhammad Saleem (17 according to his statement and 22 by appearance) son of Niaz Muhammad has been convicted by a learned Additional Sessions Judge, Mianwali, vide judgment dated 17-12-1983, under section 302 PPC for causing the murder of Muhammad Ayub (50). He has been sentenced to death and a fine of Rs.5,000 or in default five months' R.I. He has also been directed to pay compensation amounting to Rs.5,000 to the heirs of the deceased under section 544-A, Cr.P. C. or else to undergo additional R.I. for five months.

The convict aforementioned has challenged his conviction and sentence through the present appeal while the matter also stands referred to us under section 374 Cr.P. C. seeking confirmation of the death sentence awarded to Muhammad Saleem.

Mst. Sahib Khatoon, an unmarried sister of Muhammad Ayub deceased has filed Criminal Revision No.627 of 1984, seeking enhancement in the amount of compensation. The revision has been directed to be heard along with the appeal. The aforesaid appeal, the murder reference and the criminal revision shall be disposed of by this judgment.

2. The occurrence in this case took place on 6-1-1982 at 8.00 p.m. near the bungalow of Col. Ataullah Khan Sumbal at a distance of about half a mile from Chowk Railway Station Mianwali, which is located at a distance of 2 kilometers from Police Station Sadar Mianwali. The occurrence was reported to the police by Muhammad Ayub himself through his statement Ex.PD which he made at Chowk Railway Station Mianwali before Muhammad Naeem ASI PW.8 at 9.30 p.m. on 6-1-1982. Formal F . I . R . Ex . PD / 1 was recorded at Police Station Sadar Mianwali at 10.00 p. m. on 6-1-1982 by Abdul Aziz SI PW.6.

3. Regarding motive it has been stated that the appellant Muhammad Saleem owed a sum of Rs.100 to the deceased. Muhammad Saleem met the deceased in the street 5/6 days prior to the occurrence. On that occasion the deceased was accompanied by Muhammad Afzal PW.5. The deceased demanded the payment of the amount of loan. During the talk an altercation took place but with the intervention of Muhammad Afzal P.W. the deceased as also the appellant were calmed. The appellant, however, held out a threat of dire consequences to the deceased while leaving the place of altercation.

4. About the main occurrence it has been stated that on the fateful day Muhammad Ayub had gone to Quaid Abad as he had to receive a sum of Rs.1000 from his friend Muhammad Aslam Khatki. On the same evening he returned and alighted from the bus at the Bus-stand Mianwali at 8.00 p. m. He started for his house on foot from the bus-stand. When he reached near the bungalow of Col. Ataullah Khan Sumbal, the appellant threw a challenge to him from behind whereupon the deceased started running but the appellant caused a chhuri blow from behind on the left lumber region. On account of alarm raised by Muhammad Ayub, Abdul Latif and Muhammad Afzal reached the place of occurrence, whereupon the appellant threw the chhuri and ran away from the place of occurrence.

The deceased was removed by Muhammad Afzal and Abdul Latif from the place of occurrence towards City Police Post but on their way to the police post, Muhammad Naeem ASI met them at Chowk Railway Station, where statement Ex.PD of Muhammad Ayub was recorded. Originally the case was registered under section 307 PPC, but Muhammad Ayub succumbed to the injuries in the hospital on 12-6-1982 and, therefore, section 302 PPC was also added.

5. On 6-1-1982, Dr. Ghazanfarullah P.W.4, the then Medical Officer, DHQ Hospital, Mianwali, medically examined Muhammad Ayub deceased, while he was still alive in injured condition. He noticed the following injury on his person: -

"An incised wound, 6 cm x 2 cm, freshly bleeding, depth was not probed. The wound was with sharp edges and was in the longitudinal plane, 6 cm from the mid line in the left lumber region. It was 19 cm medial and slightly above to anterior iliac spine and 17 cm above the level of anal cleft."

According to the doctor's report, the injured was taken to the hospital by Muhammad Naeem A.S.I. After the death of Muhammad Ayub on 12-1-1982 in the hospital, Dr. Ghazanfarullah intimated the concerned police through letter Ex.PB/2 about the demise of the deceased.

6. Dr. Muhammad Hussain Malik PW.9, the then Medical Officer, DHQ Hospital, Mianwali, performed the autopsy on the dead body of Muhammad Ayub deceased on 12-1-1982 at 11.30 a.m. He found a stitched incised stab wound, as was noticed by Dr. Ghazanfarullah on the body of the deceased. Additionally he also found two operational wounds on the body of the deceased. He opined that the deceased died due to shock, haemorrhage and toxaemia on account of injury No.l which was sufficient to cause death in the ordinary course of nature. All the injuries noticed by him were ante-mortem.

7. Blood-stained chhuri P.2, the weapon of offence, which was allegedly thrown at the spot by the appellant while escaping from there was produced before Muhammad Naeem ASI by Muhammad Ayub deceased himself on 6-1-1982. It was seized vide memo Ex.PC.

As per contents of reports Ex.PL and Ex.PM respectively of the Chemical Examiner and the Serologist the stains of blood on the chhuri were of human origin. The appellant was arrested on 9-1-1982.

8. Muhammad Afzal PW 5 and Abdul Latif PW 7 testified at the trial as eye-witnesses to furnish the ocular account of the prosecution version. Both these P.Ws. have fully supported the prosecution case.

9. The appellant, however, claimed to be innocent and in reply to the question "why the PWs have deposed against you " stated:-

"On the night of occurrence I was coming home when the deceased, who was a vagabond, caught hold of me and dragged me to the bushes. He tried to commit sodomy on me, threatening me with a chhuri. I tried to secure my liberty and in the process he received the chhuri blow. It was dark at that time and nobody saw the occurrence. I appeared before the police to report the matter, but due to the influence of the deceased, a false case was registered against me."

He has, however, not led any evidence to substantiate his plea of exercise of right of private defence.

10. It has been urged on behalf of the appellant that chhuri, the weapon of offence, has been produced before the police by the deceased himself and it has not been recovered from the appellant; the eye-witnesses saw the appellant and the deceased running and, therefore, they were not in a position to tell as to what transpired between the two earlier; the possibility that the appellant caused the solitary injury to the deceased in. exercise of right of private defence cannot be excluded. It has also been contended that even in the absence of direct evidence to substantiate the plea of private defence of the appellant, if the Court comes to the conclusion that the version disclosed by him was possible and probable, benefit needs to be given to him.

11. We have considered the arguments advanced on behalf of the appellant thoroughly and minutely, but unfortunately we find no substance in the same. It has been stated by the appellant that in an attempt to commit sodomy on him, the deceased dragged him towards the bushes but as per statement of the investigating officer Muhammad Naeem ASI there are no bushes on or near the place of occurrence No bushes are even shown in the site-plan. The seat of injury is on the backside of the deceased. The eye-witnesses have stated that the deceased as also the assailant were running when the assailant caused the injury to the deceased. In view of the seat of injury it can hardly be believed that this injury was received by the deceased at the hand of the appellant while he (the deceased) was attempting to commit sodomy on the appellant. Admittedly there were no marks of struggle on the person of the appellant. The investigating officer has stated that the plea of self-defence was not raised before him during the course of investigation.

12. In the light of the above observations we have come to the positive conclusion that there is no merit in the plea of exercise of right of private defence raised by the appellant and that the prosecution has fully brought home the guilt to the appellant. We, therefore, dismiss his appeal and maintain his conviction and sentence. The death sentence is accordingly confirmed. Criminal revision is dismissed in limine.

S.A.M-271/L Death sentence confirmed

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