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Criminal Appeals Nos. 520 and 571 of 1981 and Criminal Revision No. 764 of 1982, heard on 20th March, 1983.

‑‑‑S. 304, Part II/34‑‑Right of self‑defence, exceeding of‑‑Eye witnesses supporting prosecution case‑‑Eye‑witnesses closely related to deceased and admittedly inimical towards accused‑‑Only unconcerned witness, given up as won over‑‑Eye‑witnesses not residents of place of occurrence and found not present at spot at time of occurrence‑‑Case investigated by four police officers and three out of four officers holding accused and deceased involved in incident while acquitted co‑accused as innocent‑‑Trial Court also finding co‑accused as innocent‑‑Medical evidence not furnishing corroboration to ocular account‑‑Eye‑witnesses disbelieved‑‑Accused found exceeding their right while acting in right of self‑defence‑‑Accused not claiming exercise of any such right‑‑Accused receiving injuries during occurrence in which deceased received fatal injury‑ ‑‑Testimony of eye‑witnesses excluded‑‑Exceeding right of private defence by accused, held, could not be suggested after exclusions of testimony of eye‑witnesses from evidence on record‑‑ Conviction under S. 304, Part II, P.P.C. set aside and accused acquitted in circumstances.‑‑[Private defence, right of].

Nemat Khan for Appellant.

Sh. Naseerud Din Ahmad for the State.

D.M. Awan for the Complainant.

Date of hearing: 20th March, 1983.

Muhammad Altaf (18) and Javed Akhtar (25) were tried alongwith four other co‑accused (since acquitted), namely, Zafar Iqbal, Javed Iqbal son of Haji Zulfiqar, Jaffar Abbas and Muhammad Altaf son of Lal Din, by the learned Sessions Judge, Sargodha for the murder of Muhammad Altaf aged 25 years son of Muhammad Mumtaz on 17‑9‑1979 at 10‑15 a.m. in the city of Khushab, near the Government High School, Khushab.

1. The learned trial Judge, vide his judgment, dated 16‑9‑1981, has convicted Muhammad Altaf and Javed Akhtar aforesaid under section 304, Part 11, P.P.C. read with section 34, P.P.C. and sentenced each of them to eight years' R.I., and a fine of Rs. 6,000 or in default to two years' R.I. further. It is also directed that half of the fine, if realized would be paid to the heirs of the deceased as compensation. The co‑accused were, of course, acquitted.

2. Muhammad Altaf and Javed Akhtar both have challenged their aforementioned conviction and sentence through two separate appeals i.e. Criminal Appeal No. 520 of 1981 and Criminal Appeal No. 571 of 1981 respectively. Ghulam Haider complainant has filed Criminal Revision No, 764 of 1982 against the acquittal of the co‑ accused and also for alteration of conviction of appellants from section 304, Part II, P.P.C. to that of under section 302, P.P.C. and thus also for enhancement of their sentence. Both the appeals and the criminal revision shall be disposed of by this judgment.

3. The F.I.R. account of the prosecution version is, that on 17‑9‑1979 at about JO‑15 a.m., Muhammad Altaf deceased while going towards his land passed in front of Government High School, Khushab. Zafar lqbal (acquitted co‑accused) armed with a spring knife, Javed Iqbal acquitted co‑accused), Javed Akhtar appellant, Muhammad Altaf appellant Muhammad Altaf son of Lal Din (acquitted co‑accused) and Jaffar Abbas (acquitted co‑accused) empty‑handed already happened to be present in front of the school. They challenged Muhammad Altaf deceased. Muhammad Altaf appellant caught hold the deceased from his hair, Jaffar, Javed Akhtar appellant and Javed lqbal co‑accused dealt him fist blows while Zafar lqbal co‑accused caused him a knife blow in his left flank. The injuries with knife aimed at the deceased by Zafar Iqbal were also received by Muhammad Altaf and Javed Akhtar appellants on their legs. In the meantime, Ghulam Haider (P.W.10), the first informant Muhammad Altaf (P.W.II), Nazar Muhammad (given up) and Khan Muhammad (given up) reached the spot and witnessed the occurrence. All the assailants then made good their escape. Muhammad Altaf deceased was taken to Civil Hospital, Khushab while he was unconscious. Fifteen minutes later he succumbed to the injuries. Ghulam Haider (P.W. 10) the real paternal uncle of the deceased made the statement (Exh. P.K.) before Ghulam Mehdi (P.W.12), the then Sub‑Inspector. S.H.O. Police Station, Khushab at the Civil Hospital, Khushab at 11‑25 a.m. On the basis of this statement, formal F.1.R. Exh. P.K./I was recorded at 11‑40 a.m. on the same clay by Ahmad Khan the then Moharrir Head Constable Police Station, Khushab (P. W. 8).

4. As regards motive, it is alleged that a day prior to the occurrence, Zafar brother of the deceased, and Muhammad Ansar his relative, abused Javed lqbal (acquitted co‑accused) and gave beating to him while coming from the High School after playing hockey in the evening.

5. After recording the statement of Ghulam Haider, Ghulam Mehdi, Sub‑Inspector (P.W.12) prepared the injury statement and inquest report in respect of the dead body of Muhammad Altaf deceased. Then he entrusted the dead body to Mehr Muhammad F.C. (P.W.2) for despatch to the mortuary for autopsy. He also collected blood‑stained earth from the spot as well as from the hospital and secured into sealed parcels vide memos. Exhs. P.G. and P.F. respectively. He arrested Javed Akhtar and Muhammad Altaf appellants from the hospital in injured condition while wearing blood‑stained clothes. He secured their blood‑stained clothes vide memos. Exhs. P.H. and P.J. respectively. He prepared injury statements in respect of Javed Akhtar and Muhammad Altaf appellants vide memos. P.N. and P.O. respectively. Zafar Iqbal (acquitted co‑accused) was arrested on i8‑9‑ 1979. Blood‑stained knife was recovered from the fold of his loin‑cloth vide memo. Exh.P.L. Site plans (Exhs. P.E. and P.E./1) were got prepared by Noor Muhammad draftsman (P.W.6). After completing the investigation, challan was submitted.

6. P.W.1, Dr. Muhammad Riaz Ali, the then Medical Officer, Civil Hospital, Khushab, performed the post‑mortem examination on the dead body of Muhammad Altaf deceased on 17‑9‑1979 at 12‑15 p.m. He noticed the following injuries on the dead body:

(1) A stab wound 1‑1/4" x 1/4" x deep on left renal area.

(2) A superficial cut I/2" x 1/8" on left index finger at terminal part.

(3) A superficial cut 1/3" x 1/10" on left middle finger at middle digit.

(4) An incised wound 1/2" x 1/6" x skin deep on left temporal region.

Death in the opinion of the doctor, occurred due to haemorrhage and shock resulting from injury No. 1 which was sufficient to cause death in the ordinary course of nature. Rest of the injuries were declared as simple. All the injuries have been opined to have been caused by sharp edged weapon and were ante‑mortem. Exh.P.A. is the correct carbon copy of the post‑mortem report while Exh. P.A./1 is the pictorial presentation of the injuries.

7. On the same day at 12‑25 p.m. Javed Akhtar appellant, was medically examined by Dr. Muhammad Riaz Ali who noticed the following injuries on his person:‑

(1) A stab wound 1‑1/4" x 3/4" x 1‑1/2" on back of right thigh at middle.

(2) superficial cut on back of right little finger proximal digit.

Both the injuries were declared simple having been caused by sharp‑edged weapon. Exh. P.B. is the correct carbon copy of medico‑legal report in respect of Javed Akhtar while Exh. P.B./I is the diagram indicating the location of the injuries.

Muhammad Altaf appellant was also medically examined at 12‑50 p.m. on the same day by this very witness and in his case, a stab wound 1‑ 1/2" x 1/4" x injury was declared simple and it was opined that the same was caused by a sharp‑edged weapon. Exh. P.C. is the correct carbon copy of medico‑legal report in respect of Muhammad Altaf appellant while Exh. P.C./1 is the pictorial presentation of his injury.

8. Ghulam Haider (P.W.10) and Muhammad Altaf (P.W.11) have testified at the trial as eye‑witnesses.

9. On 2‑10‑1979, the learned Sessions Judge directed that an identification parade be held in the jail for the identification of the accused but this identification parade was held as late as 30th October, 1979 and the police, for the first time, produced the order of the learned Sessions Judge before the Magistrate on 23‑10‑1979. The parade was conducted by Muhammad Nawaz Makhdoom, the then Tehsildar M.I.C., Khushab (P.W.13). In this parade, Ghulam Haider and Muhammad Altaf P.Ws. correctly identified the accused. Nazar Muhammad identified the accused except Jaffar, but could not tell their names, while Khan Muhammad could not identify any of the accused. At the time of identification parade, all the accused raised objection that they were already shown to the P.Ws. by the police at the police station.

10. It transpires from the above resume of the facts of the prosecution case that it is based on ocular evidence, medical evidence and the evidence pertaining to identification parade.

11. Both the appellants as also their acquitted co‑accused claimed to be innocent. The acquitted co‑accused pleaded that they were falsely involved in the case due to enmity. Javed Akhtar appellant in reply to question No. 5, stated:

"A day before the occurrence, my brother Pervez Akhtar and Ishtiaq son of Alam Khan had given beating to Zafar, brother of the deceased. Alam Khan aforementioned approached the family of the deceased and asked for forgiveness. My father was away from Khushab and, therefore, we could not accompany Alam Khan on that occasion. The family of the deceased took it as their insult that we had not asked for forgiveness. Altaf deceased was a desperado. At the time of occurrence the deceased armed with a knife alongwith Aslam Muslim Sheikh and one Shera attacked me and Altaf accused son of Gulbaz, when we were passing from near the Government High School, Khushab, and they injured both of us. I went to the hospital immediately after the occurrence for medical examination and also informed the police about the incident:

In reply to the question: 'why this case against you ', the appellant replied:‑

"The police in complicity with the complainant party twisted the actual facts and I was falsely involved as the deceased happened to die."

Muhammad Altaf appellant claimed that his answers were the same as those of his co‑accused Javed Akhtar. No defence evidence has, however, been produced by the appellants or their co‑accused.

12. Ghulam Haider and Muhammad Altaf who have testified as eye witnesses at the trial have supported the prosecution case as contained in the F.I.R. except to this effect that in the F.I.R. it is alleged that Ghulam Haider, Muhammad Altaf, Nazar Muhammad and Khan Muhammad reached the place of occurrence together but at the trial Ghulam Haider and Muhammad Altaf, by improving their statements, have disclosed that Ghulam Haider and Muhammad Altaf deceased were going together towards their land when they passed in front of the Government High School, Khushab at the time of occurrence. Ghulam Haider is the real paternal‑uncle of the deceased while Muhammad Altaf is also a cousin of the deceased. Both these P.Ws. have admitted their previous enmity with the families of the appellants and of the co‑accused. Nazar Muhammad, the third alleged eye‑witness who has not been produced, also hails from the brotherhood of Ghulam Haider and Muhammad Altaf deceased. Khan Muhammad the 4th alleged eye‑witness was, of course, an unconcerned person but he has been given up as having been won over. The learned Sessions Judge, after discussing the ocular evidence in detail, has come to the conclusion that as a matter of fact Ghulam Haider and Muhammad Altaf were not the residents of Khushab. They were not present at the time of occurrence. He has thus, disbelieved both these eye‑witnesses. It is also noteworthy that this case, at the stage of investigations, has been investigated into by two Assistant Superintendents of Police, one Deputy Superintendent of Police and a Sub‑Inspector of Police, namely Ghulam Mehdi (P.W.12). These different investigations have been admitted by Ghulam Mehdi. But for the A.S.P. Headquarters, other Investigating Officers found that the appellants and the deceased were involved in the occurrence while the acquitted co‑accused were innocent. However, under the orders of the A.S.P. Headquarters, the challan was submitted against the appellants as also against the co‑accused. Certainly, the findings of the Investigating Officers are not binding on the trial Court but the said learned Court, after considering the evidence led at the trial also came to the conclusion that the acquitted co‑accused were innocent. Needless to say that according to eye‑witnesses, it was Zafar Iqbal who caused a solitary fatal blow with a spring knife in the left flank of the deceased. Zafar Iqbal has been acquitted and has been held to be innocent. Recovery of knife from him has also not been believed and, of course, justifiably, by the learned trial Judge. The medical evidence also does not furnish corroboration to the testimonies of eye‑witnesses in this behalf inasmuch as according to medical evidence, as many as four injuries caused by sharp‑edged weapon have been noticed on the person of the deceased and injury No. 1 on left renal area has been declared to be the fatal injury.

13. So far as the identification parade is concerned, as already observed, the learned Sessions Judge directed for holding the identification parade on 2‑10‑1979 but the police in utter disregard of his orders, produced the papers before the Magistrate for the first time on 23‑ 10‑ 1979. The Magistrate conducted the identification parade on 30‑ 1Q‑ 1979. At the time of identification parade, all the accused, viz. the appellants as also the acquitted co‑accused raised objection before the Magistrate concerned that they had already been shown to the P.Ws. at the police station. In spite of this objection, Nazar Muhammad and Khan Muhammad could not identify the accused.

14. The learned trial Court has found that the deceased suffered injuries as a result of which he died at the hands of two appellants which they caused him in exercise of their right of private defence and while doing so they exceeded their right of self‑defence. The appellants, however, in their statements recorded under section 342, Cr.P.C. did not claim exercise of any such right. They have, however, pleaded that they suffered injuries at the hand of the deceased who was a desperado and who accompanied by Aslam Muslim Sheikh and one Shera attacked them (the two appellants) when they were passing in front of Government High School, Khushab. They have thus claimed to have been injured by the deceased and his aforementioned two companions.

15. The fact, however, remains that the eye‑witnesses produced at the trial have been disbelieved; the prosecution case has not been believed and the learned trial Judge has based the conviction of the two appellants only on the ground that they received injuries during the occurrence in which the deceased suffered fatal injuries. After excluding the testimonies of the eye‑witnesses who have been disbelieved, there is nothing on the record to suggest that the appellants, while exercising their right of private defence, 1 exceeded their right and caused the death of the deceased. In this view of the matter, the conviction of the appellants under section 304, Part II, P.P.C. cannot be upheld. The version of the appellants, if accepted as a whole, suggests that the two appellants were attacked by the deceased and his two companions; the appellants received injuries at their hands caused by sharp‑edged weapons and, therefore, they had every right to exercise their right of self‑defence and while doing so, it cannot be said that they exceeded in the exercise of such right in regard to one injury in case of deceased which ultimately proved to be fatal. It is thus, found that no offence of even culpable homicide not amounting to murder is made out against the appellants.

16. For the foregoing reasons, both the under consideration appeals are allowed and the conviction and sentence of the appellants are set aside. They shall be set at liberty forthwith if not required to be detained in any other case.

The criminal revision petition is thus dismissed.

S.A./M‑59/L Petition dismissed.

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