1. ' AGFIA ALI HYDER, J.-The appellants and one Yagoob were tried by the learned Additional Sessions Judge, Karachi for an offence under section 302 read with section 34, P.P.C. Yaqoob was acquitted, but the appellants were convicted. The appellant Ameer was sentenced to death while the two other appellants were sentenced to undergo life imprisonment. They were also sentenced to pay Rs, 2,000 each as fine which was to be paid to the heirs of the deceased as compensation. In default of payment they were ordered to undergo R. I. For one year each. There is a reference made by the trial Court for the confirmation of the death sentence, and there is an appeal preferred by the three appellants. The reference and the appeal will be disposed by a common judgment.
2. ' The appellants Ameer and Mustafa are the sons, and the appellant Umar the son-in-law of Yaqoob. The latter had built a house close to the one in which he was living with his family members, and the same had been rented out to Aslam, since deceased. He wanted to have the same vacated, forthwith. Aslam was not agreeable to the same, and wanted some time, as his wife P. W. Mst. Nasim Akhtar was expecting delivery at that time. Aslam is stated to have taken Muhammad Yousaf the informant, and two other persons namely P. Ws. Sher Jung and Abdul Rehman with himself to Yaqoob, to intercede on his behalf. There were long parleys, but ultimately the matter took an ugly turn, when Yaqoob started throwing away some household effects of Aslam. Yaqoob received some injuries when Nasim Akhtar closed the door on him. The prosecution story is that thereafter Ameer had brought a knide from the house. His companions caught hold of Aslam, and he inflicted a number of knife injuries to him. Aslam, a little later collapsed on the ground and succumbed to his injuries. Muhammad Yousuf had thereafter gone to the Baldia Police Station at about 9.30 p. m. And lodged the report. S. H.
0. Saleh Muhammad Khan after recording their F.I.R. Proceeded to the vardat and secured the blood-stained knife which was lying there, and also prepared the mashirnama of the vardat. The appellants then came to be arrested from the house of Yaqoob. The clothes of Ameer and Muhammad Mustafa were stained with blood, and came to be secured under a mashirnama. Then came the inquest report. Later inquiries were made from Sher Jung, Abdul Rehman, Mst. Nasim Akhtar and her sister Mst. Pervin. After due investigation the case came to be challaned.
3. ' The appellants in their statements at the trial, denied the allegations made against them and maintained that they had been involved in the case because of the grudge that the witnesses bore against Yagoob.
4. ' Dr. Abdul Majeed Khan had held the autopsy over the dead body of Aslam, finding the following injuries on his person :- (1)ncised wound 3/4" x 1/4" into S. D. On the lateral side of the right ear obliquely.
(2) Incised wound 11" x 11" chest deep on the front of left chest 11" below the left middle clavicle region.
5. (3)ncised wound 1" x 1/2" chest degp on the front of left chest 11" middle the left nipple and 11' lateral to the middle sterns.
(4) Incised wound 1" x x abdomen deep on the left hypo chon- drum 11" lateral to the medial line and 21" above the left public syphilis.
6. (4)Incised wound 31" x 1" x skin muscle deep on the left joint vertically.
7. (5)Incised wound 2" x 1" x skin muscle deep on the lateral side of upper 1/3" right forearm.
8. ' According to the Medical Officer death had occurred because of shock and haemorrhage, due to injuries caused by a sharp-cutting weapon. The injury No, 3 was individually sufficient to cause death in the ordinary course of nature.
9. ' There were 5 witnesses of the incident natuely Muhammad Yousuf, Sher Jung, Abdur Rehman, Mst.
10. Nasi m Akhtar and her sister Mst. Perween. Out of them Mst. Perween could not be served and was given up. Muhammad Yhusuf is the step-father of Nasim Akhtar, the widow of Aslam, Sher Jung and Abdur Rehman were friends of Aslam. The last two were co-villagers as well.
11. ' Mst. Nasim Akhtar states, Muhammad Yaqoob had rented out a house of his, to them, three months before the incident, and insisted that they vacate the same forthwith. Aslam was not prepared to quit, especially in view of her pregnancy, but had agreed to surrender the tenancy after a period of two months. Muhammad Yaqoob was adamant in his demand. On the afternoon of the incident Aslam had collected, Muhammad Yousuf, a Police constable and his friends referred to above, to intercede on his behalf. They state to have approached Muhammad Yaqoob and entreated on behalf of Aslam. But Muhammad Yaqoob did not relent, in spite of prolonged talks, extending to about an hour and a half. Late in the evening, Muhammad Yaqoob seeing that Aslam was not prepared to hand over the possession of the house lost his temper, and walking over to the house of Aslam, started throwing away a table, in the lane. It is said by Nasim Akhtar the other witnesses are reticent about it, though the rest of the narration is totally consistent that Muhammad Yaqoob and the present appellants had also slapped Aslam earlier. It is the case of all the witnesses that when Muhammad Yaqoob, was once again coming inside the house, Mst. Nasim Akhtar had hanged the iron door on him, which had struck him on the forehead. Muhammad Yaqoob had fallen down, and bled from his injury. The appellant Ameer had become furious, brought a knife and repeatedly struck Aslam in various parts of the body. Aslam had tried to escape from the clutches of the other companions of Ameer but after a few paces collapsed and succumbed to his injuries. Nasim Akhtar had watched this harrowing incident from a window, while the rest were near about Aslam. Nothing worthwhile could be elicited from them in cross- examination. Nasim Akhtar's presence cannot be open to doubt. Sher Jung and Abdur Rehman lived a mile or so away from the vardat, and Muhammad Yousuf also lived elsewhere, but their presence at the time of the incident is admitted by Ameer in his statement under section 342, Cr. P.
12. C. He as well as Yagoob asserted that they had also joined in the beating administered to the latter, with iron bars and "dandas", Mustafa and Umar, however, maintained, that they knew nothing of the happenings at all.
13. ' The injuries on the person of Yagoob were as follows :-
(I) Lacerated wound on the head, right dorsal surface size is about I" x 4'" x 1/4" scalp deep.
(2) Long abrasion on the medial line of the outer chest wall, size is about 4" x 4" in the 9th to 11 inter costal space.
(3) Abrasion on the left middle finger dorsal surface middle phalange. Size is about 1" x 1/4".
(4) Multiple small abrasion on the right dorsal of the foot.
14. ' These injuries, as opined by the Medical Officer, were from a hard and blunt weapon.
15. ' They have in the main come out with a story, which approximates with truth. Their version is also consistent with the medical evidence in the case. The acquittal of Yaqoob does not shake their evidence. It will not serve any purpose to say anything in that regard, as there is no appeal against the same.
16. ' The only other evidence in the case is against Amir and Mustafa. As the knife was found by the witnesses, in the hands of the S. H.
0. It was duly considered and this part was ruled out of consideration by the trial Court. All that remains was, that the clothes secured from the person of Amir and Mustafa, were blood-stained.
17. The arrest was soon after the incident and from the house of the said appellants. According to the Chemical Examiner's report the material on the clothes which were born by Amir, had not enough material to form an opinion about. However, blood was detected on the clothes secured from Mustafa. Looking into the circumstances of the case and the fact that the appellant's party was bent upon throwing away Aslam from the house, there is no room for doubt that the appellants were very much there. The fact that Aslam was done to death and Yagoob had entered into the house of Aslam earlier, clearly establishes that their party was not wanting in number. Aslam also had three other persons with him. Looking to the principles laid down in Ma: v. State (1) and Nazir v.
18. State (2) I am satisfied about the presence of all the appellants, as alleged.
(1) PLD 1960 SC 387 (2) PLD 1962 SC 269 ' It was however, contended by Mr. Shaikh, learned counsel for Muhammad Umar that the genesis of the trouble was the injury inflicted by the complainant's party to Yaqoob. He states that it was Aslam and his companions, who had come armed with iron bars and dandas and were spoiling for a fight. That will be against all probabilities, as it was they who had a favor to ask, and had nothing to gain for picking up a quarrel. It is also not denied that there were long drawn talks. It was during the course thereof that Yaqoob had adopted an imperious attitude, and was intent upon throwing away Aslam, and when he failed to achieve his object, starting creating buisance. It is a trite proposition of law that a landlord cannot take law in his own hands, and pre-emp torily throw away the house hold effects of a defaulting tenant. Faced with this predicament Aslam and his family members had every right to use reasonable force to defend their possession from a trespasser.
19. The A injuries are simple and could be caused as stated by the witnesses. Even the use of any other handy article would not be open to exception. This action of their would be covered by the principles of self-defence embodied under sections 96 to 105, P. P. C. Amir went to the house and brought a knife while the others caught hold of him, knowing fully well, as to what would be the consequences. Mr. Shaikh cited a number of authorities showing absence of common intention but the same will not be relevant, in the circumstances of the case. I am clearly of the opinion that a case under section 302, P. P. C. Has been made out against appellant Amir, and under sections 302 read with 34, P. P. C. Against the 2 other appellants. The trial Court was in error to convict, Amir for an offence under section 302 read with 34, P. P. C. The correct-; tin can be made without any prejudice to the appellant is being done. The other two appellants have been given life imprisonment. The substantive sentence is already the lesser one under the law. As for Amir I am of the opinion that he should be spared the supreme penalty under law. The facts remain that he had seen his old father lying on the ground and bleeding. It was thereafter and not before that he got worked up, brought a knife and struck Aslam fatally. The houses are quite close. c I am therefore, of the opinion that the ends of justice will be served by reducing the capital sentence awarded to him by life imprisonment. The fines imposed on the appellants are maintained. The reference is there refore not accepted. With this modification, only, the appeal is dismissed. .
20. SAJJAD ALI SHAH, J.-I agree.