BASHIRUDDIN AHMAD, J.-Shahmad (61), Noora (18); Shera (27) and Manzur (16) were tried for the murder of Ghulam on September 12, 1966, in furtherance of their common intention, by the Additional Sessions Judge, Gujrat, camp Gujranwala, who acquitted Noora, Shera and Manzur, but convicted and sentenced Shahmad under section 302, P. P. C. -to suffer death.
2. The condemned person appealed and the case is also before us on reference under section 374, Cr. P. Code, for confirmation of the death sentence. We propose to dispose of the appeal and the reference by a single judgment.
3. The case for the prosecution, briefly narrated, is that on the eventful day, at about chkah-wela, the appellant, who suspected the deceased of prosecuting a love-intrigue with his niece, stabbed him by means of a chhuri near the shop of Muhammad Mochi, in the area of village Kanwanwali.
Murad and Rahman witnessed the occurrence. While the deceased was being taken to his house by his father, he was attacked by Shahmad, Noora, Shera and Manzur near the house of Haku.
Noora and Shera caused him injuries with hatchets at the instigation of Shahmad, who inflicted on him a chhuri blow. Manzur was empty-handed. This incident was witnessed by Inayat and Bashir.
Ghularn died at the spot.
4. Aft6r the occurrence, Rahman proceeded to Sukheki Police Station at a distance of four miles from the scene of the crime and reaching there at 10-00 a.m. Lodged the report, Exh. P. A., which was taken down by H. C. Allahditta (P. W. 12j, who proceeded to the spot, took into possession blood-stained earth from two places and sealed it into parcels separately. He prepared the injury- statement and the inquest-report and- then despatched the dead body to the mortuary for post- mortem examination.
5.The case was partly investigated by Sub-Inspector Mahfooz Husain Shah (P. W. 13); who associated Muhammad Nawaz (P. W. 7) and Inayat (P. W. 8) with the investigation and in their presence, the appellant produced blood-stained chhuri, Exh. P. 1, which was concealed under the quilts inside his house. It was taken into possession and sealed into a parcel by the Police. It may here be stated that the chhuri Exh. P. 1 was found by the Serologist to be stained with human blood.
The appellant was arrested on 13-9-1966.
6. The autopsy on the dead body of Ghulam was performed by Dr. Muhammad Hafiz Khan (P. W. 1) on September 13; 1966 at 10-30 a.m., who found the following injuries:-
(1) An incised wound 2--x1"x chest cavity deep on the front of the left side chest, just below the left nipple oblique in direction. The inner end of the wound was 3--" to the left of front middle line.
(2) An incised wound 2-- x --" abdominal cavity deep on the region between 8th and 9th ribs.
Intestines were coming out of the wound. The inner' end of this wound was 6" to the left of the middle line.
(3) An incised wound 2" x --" x 1-- " deep on the left side lumber region upper part, one inch below the last rib, oblique in direction. The sacrospinalis muscle was cut in outer part. The inner end of the wound was 2" to the left of middle line.
(4) An incised wound on the inner part and back of left side chest, opposite 3 to 6 dorsal- vertebra spines 3" x 1" x 1" deep. The wound was oblique in direction and muscles under the wound were cut.
The wound was 2" to the left of back middle line.
(5) A superficial cat 1--" x 1/6" x --", skin deep, on the inner side of the right thigh just below its middle, oblique in direction.'
(6) An incised wound on front and upper part of left side patella --" x 1/6" x skin deep oblique in direction.
Death, in the opinion of the Doctor, was due to shock and haemorrhage caused by the injuries to the chest and abdomen. Injuries Nos. 1 and 2 were caused by a sharp-edged and pointed weapon and injuries Nos. 3, 4, 5 and 6 were due to sharp-edged weapon. The Doctor opined that injuries Nos. 1 and 2 were individually, sufficient to cause death in the ordinary course of
7. Dr. Muhammad Mushtaq (P. W. 2) examined Shahmad appellant on September 13, 1966; at 4-30 p.m. And found the following injuries on his person: -
(1) An abrasion --" x 1/3" on the back of left hand at the web between the thumb and index finger.
(2) An arbrasion 1/3" x --" on the web of left hand thumb and index finger 1/3" away from injury No. 1.
(3) An abrasion --" x --" on the right scapula region.
8. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. He ascribed the case to enmity. Explaining the injuries found on his person, the appellant stated that he was beaten by the Police.
9. No evidence was called in defence.
10. At the trial Inayat (P. .W. 8), Bashir (P. W. 9), Murad (P. W. 10) and Rahman (P. W. 11) furnished direct evidence.
Inayat and Bashir had also seen the incident which took place near the house of Haku in' which Noora, Shera and Manzur had taken part. Manzur was empty-handed. Noora and Shera are alleged to have caused injuries to the deceased with hatchets near the house of Haku. On the day of the alleged occurrence, Rahman and his son were going to Murad, as they were in need of fuel-wood.
When they reached near the shop of Muhammad Mochi, the deceased stopped there to get his shoe mended. Rahman proceeded ahead as he noticed Murad standing near the house of Salehun. He was talking to him when they heard a noise from the shop of Muhammad Mochi They rushed in that direction and within their sight the appellant gave a. Chhuri blow to the appellant.
Noora, Shera and Manzur, who were present at some distance were taken together with Shahmad towards their house by Murad. Rahman took his son towards his house. When they reached near the. House of one Haku, the appellant gave a lalkara calling out to Manzur, Noora and Shera. They came over the roofs of their houses. Manzur was empty-handed. The appellant carried a chhuri.
They caused injuries to the deceased. Rahman raised an alarm. His daughter-in-law Mst. Nooran, Inayat and Bashir witnessed the incident. Inayat stated that Bashir had come to his house and from there they .Started for his behak and in the way witnessed the assault. Basbir contradicted him. He deposed that he joined Inayat in the street near she house of Haku. He denied that. He had gone to the house of Inayat and were coming together from his house. Inayat deposed that Bashir accom--panied him towards his behak -as he had to purchase cattle. Bashir, however, denied it.
He stated that he was going to his behak to give fodder to the cattle while Inayat was going in connection with his own affair and that Inayat had no particular business with him. In view of their contradictory statements, the trial Judge doubted the presence of Inayat and Bashir on the spot at the time of the occurrence. Notwithstanding the evidence of Rahman, who implicated Noora, Manzur and Shera, the trial Judge decided to acquit them. He believed Murad and Rahman with regard to .The incident, which took place liar the shop of Muhammad Mochi.
Murad is a Jat and was present near the house of Salehun when Rahman Machhi approached him for fuel-wood. They were talking when they heard a noise from the direction of the shop of Muhammad Mochi and rushed to the spot. Their evidence is quite consistent that the appellant gave a chhuri blow to the deceased within their sight. Rahman is a 'Machhi. Murad, who is a Jat had nothing in common with him so as to induce him to volunteer evidence falsely. The house of Murad is at a distance of 1/2 killa towards the west of the shop of Muhammad Mochi. Murad stated that he was going to help his son who was ploughing his field at a distance of one killa in sowing bajra when he met Rahman Machhi and started talking to him. Murad fully coroborrated the version of Rahman as regards the incident that took place at the shop of Muhammad Mochi. We have examined the statement of Murad with care and the impression that we have gained is that he is a truthful witness. He is not proved to be inimical towards the appellant. Learned counsel for the appellant was not able to persuade us to discard his evidence for good and sufficient reasons.
He, however, contended that Murad was a chance witness. We do not agree. He belongs to the village where the occurrence took place and although his house is not in the neighbourhood of the place of the occurrence, but he has given reasonable explanation of his presence on the spot at the time of the occurrence. He tells us that his son was ploughing a field at a. Distance of one killa, from where he was present, and as he was going to assist his son for sowing bajra, he cannot be called a chance witness. We, therefore, repel the contention as being devoid of any force.
11. It is on the record that Rahman originally belongs to another village and had come to reside at Kanwanwali two or two and a half years ago. Shera Machhi was evicted from a house 2 or 2J years back by Murad, Bashir and Inayat P. Ws. And they gave the house to Rahman, the father of the deceased, but that, by itself, is not sufficient to hold that Rahman was in a position to influence Murad to depose falsely against the appel--lant. When Shera Machhi was turned out of the house, he instituted proceedings for the breach of the peace against Rahman, his son Ghulam deceased, Murad P. W. And Soehnt, the uncle of Bashir, and Najabat. This it best, shows that the relations between Murad and others on one side and Shera Machhi on the other were not cordial after the eviction of Shera Machhi from the house. Shera Machhi is the sepi of the appellant, but in case Rahman and Murad had decided to implicate any one in the case falsely, Shera Machhi would have figured as one of the accused. Murad and Rahman both attributed chhuri injuries to the appellant. Murad accompanied Rahman to0 the thana when he went to Sukheki to lodge the report. He was named as a witness in the first information report, Exh. P. A. Which was lodged without any undue delay. We, therefore, agree with the the trial Judge that Murad witnessed the occurrence. He fully corroborated the story narrated by Rahman as regards the incident which took place in front of the shop of Muhammad Mochi. The presence of blood near the shop of Muhammad Mochi confirmed that the occurrence had taken place there. Blood was also found near the house of Haku, where the deceased was assaulted when he was being taken by his father towards his house. It further confirmed the story, as narrated by Rahman. The earth taken front both the places was found by the Serologist to be stained with human blood.
12. The recovery of blood-stained chhuri, Exh. P. 1 from the house of the appellant at his pointing out was supported at the trial by Muhammad Nawaz (P. W. 7) and Inayat (P. W. 8) besides the investigating officer. Muhammad Nawaz is a dis-- interested witness. Inayat is a collateral of Murad, but there is nothing on the record to suggest that he supported the recovery at the instance of Murad. The defence tried to establish that Muhammad Mochi was not present at his shop when the occurrence had taken place, but had gone to village Handuwana. The suggestion was, however, repelled by Muhammad Nawaz, who stated-that actually the family of Muhammad Mochi had gone to the house of the father-in-law of Muhammad, who remained present in the village. Nothing was elicited in cross-- examination of Muhammad Nawaz or Inayat to show that a.
Fake recovery of chhuri Exh. P.1 was made by the Police. Thus the recovery of blood-stained chhuri al the instance of the appellant, which was found to be stained with human blood by the Serologist, goes a long way to corroborate the evidence of Murad and Rahman.
13. Besides, the presence of injuries on the person of the appellants, tell-tale evidence of his participation in the commis--sion of the offence. In view of cite nature of tire injuries, we are not inclined to believe that the sane were caused to the appellant by the Assistant Sub-Inspector in the course of the investigation.
14. It has now to be determined as to what offence the appellant has committed in this case. The deceased had as many as six injuries on his person. Injuries Nos. 1 and 2 were caused by a sharp- edged and pointed weapon. Injuries Nos. 3, 4, 5 and be were due to a sharp-edged weapon. The presence of sharp-edged weapon injuries on the deceased is a pointer to the participation of the accused other than the appellant in the occurrence. Injuries Nos.1 and 2 were caused by means of a chhuri and were individually sufficient to cause death in the ordinary course of nature. We, therefore, hold that the appellant was rightly convicted for the murder of Ghulam under section 302, P. P. C.
15. This brings us to the question of sentence. The deceased who was a Machhi openly prosecuted a love-intrigue with a niece of Shahmad appellant who is a proprietor in the village. The murder of Ghulam thus appears to have been committed by the appellant from a sense of honour. We are, therefore, of the view that the lesser penalty provided under section 302,' P. P. C. Would amply meet the ends of justice in this case. We maintain the conviction of Shahmad under section 302, P. P. C., but alter his sentence from death to one of transportation for life.The appeal is accepted to this extent only. The death sentence is not confirmed.