1. ' G. SAFDAR SHAH, J.-The three appellants herein were tried by the Sessions Judge, Lyallpur, under section 302/34, P. P. C. For the murder of Muhammad Yusuf, who found them guilty, convicted them and sentenced each one of them to imprisonment for life and a fine of Rs, 100, each and in default thereof R. I. For three months.
2. ' In the trial Court, the prosecution mainly relied on the eye-witness account furnished by Abdul Latif complainant (P. W. 8) and Abdul Ghafoor (P. W. 9). Jt also relied on the evidence of Muhammad Ashraf (P. W. 4) and Meraj Din (P. W. 5) as they were the attesting witnesses of the Mashirnama through which appellant Sikandar is said to have produced before the Investigating Officer, namely, Syed Anwar Ali Shah, the knife with which Muhammad Yusuf had been murdered just as it relied on the medical evidence of Doctor Imtiaz Ahmad, who had conducted the autopsy on the dead body of Yusuf as well as ermined appellant Sikandar, as he also was found injured.
3. Now the evidence of P. W. Abdul Latif, who is the maternal uncle of the deceased, and whose evidence substantially recalls what he had said in the F. I. R., is that on 21-2-1972, at about 5-30 p. m. He and his deceased nephew were sitting in front of the house of one Imdad Ali, situated near the Goshala in the city of Lyallpur, when P. W. Abdul Ghafoor arrived and informed him that the appellants herein were engaged in plucking the fruit from the ber trees situated in the near by graveyard; that upon this information he deputed his said nephew to go over to the graveyard and ask the appellants to stop plucking the fruit; that when the deceased did not return within about three minutes he along with Imdad Ali (not examined) proceeded towards the said graveyard, and when they reached near the Primary School for Boys, they heard a commotion from inside the compound of the Primary School for Girls; that that no sooner they entered the gate of the said Primary School than they saw appellants Muhammad Azam and Shabbir holding the deceased from his legs and arms while Sikandar appellant was giving him knife blows on the chest; that having witnessed the said occurrence he raised a lalkara upon which all the appellants decamped from the scene, after having climbed over the compound wall of the said School; leaving the deceased in an injured condition, who after having covered a distance of 50/60 karams, fell down and instantly died.
4. ' P. W. Abdul Ghafoor, who is the next door neighbour of Abdul Latif, has fully supported the case of the prosecution by corroborating the evidence of Abdul Latif in all material particulars. P. Ws.
5. Muhammad Ashraf and Meraj Din have also supported the case of the prosecution to the effect that in their presence appellant Sikandar, who was then in police custody, recovered the crime weapon, namely, the blood-stained knife, which was taken into possession by the Investigating Officer through the usual memo to which both of them were signatories. Now so far as appellant Sikandar is concerned, he has not denied the occurrence, as in his statement recorded under section 342, Cr. P. C., he alleged that "on the day of occurrence at about 7 or 8 p. m. I was cleaning the teeth in the compound of the school. In the meantime Muhammad Yousaf deceased arrived there and started abusing me. I asked him that he should not abuse me. Upon this he pulled out the knife and inflicted an injury with its reverse side on my chin he then opened the knife and caused an injury on my left temporal region from its sharp side. Apprehending danger to my life, I opened a small knife which I had with me tor cutting "datan". I inflicted injuries with that knife to the deceased in order to save my own life. Thereafter I went to the Hospital to get medical treatment in respect of my injuries". Shabbir and Muhammad Azam, the other two appellants however, denied the case of the prosecution saying that they had been falsely involved owing to the fact that once they had quarrelled with the deceased.
6. ' The learned trial Judge, in view of the evidence tendered before him by the prosecution, including the medical evidence, disbelieved the stand taken by the appellants, accordingly convicted them and sentenced them as aforesaid. In the appeal filed by them in the High Court, the finding recorded by the learned Sessions Judge against the appellants were approved, and consequently their appeal was dismissed. Feeling aggrieved of the judgment of the High Court, the petitioners came to this Court in petition for special leave to appeal and by the order, dated 24-3-1976, leave was granted to them as it was noted: (1) that whereas according to the learned trial Judge the two simple injuries suffered by appellant Sikandar were self-suffered, with a view to creating a plausible defence for himself, the learned Judge in the High Court, without applying his own mind in that behalf, approved the said finding-not realizing that even the doctor had not been questioned in cross-examination on those lines; (2) that the ocular testimony furnished in the case came from the real uncle of the deceased, namely, Abdul Latif and F W. Abdul Ghafoor, his neighbour, who also claimed to be his friend; and (3) that the evidence of the recovery of the knife in the presence of P.
7. Ws. Muhammad Ashraf and Meraj Din was not above suspicion.
8. ' We have heard Qazi Muhammad Salim, the learned counsel for the appellants. The learned counsel has taken us through the evidence on record as well as the judgments of the trial Court and the High Court. The learned counsel argued that the ocular testimony in the case, having come from the uncle of the deceased and P. W. Abdul Ghafoor who is a friend of Abdul Latif, was evidently unsatisfactory and so the same could not form the basis of the conviction of the appellants. In support of his contention, the learned counsel relied on the observations made in the leave granting order. But we find no force in his contention. The learned trial Judge, and the High Court, before feeling satisfied about the evidence tendered by the prosecution, had scrutinized all the evidence on record with care and the learned counsel has not been able to show that they had committed any legal error. It is true that the evidence of the witnesses is discrepant in respect of certain inconsequential particulars of the case of the prosecution, but substantially their evidence seems to be true and inspiring confidence..4 It is common ground between the parties that the occurrence had taken place in broad daylight; that the Girls Primary School, where Yousaf was done to death, is close to the houses of P.Ws. Abdul Latif and Abdul Ghafoor; that the F.
1. R. Of occurrence was promptly lodged by Abdul Latif at the local Police Station; and that neither Abdul Latif nor Abdul Ghafoor had any enmity against the appellants so as to involve them in a case of this nature. We are conscious of the fact that when appellant Sikandar was examined at 8- 30 p. m. On 21-2-1972 by Doctor Imtiaz Ahmad, he found on his person an incised wound, skin deep, on the left side of his temple and a lacerated wound 1" x 1/3" on the right side of his chin. But we agree with the conclusion of the trial Court, as well as the High Court that these injuries could not have been inflicted on him by the deceased. In point of fact the B injuries in question seem to have been suffered by him in the struggle when the deceased must have naturally attempted to release himself from the clutche of the appellants, as it would he absurd to believe the statement of Sikandar that for no conceivable reason the deceased came over to the compund of the Primary School for Girls, started abusing him and then took out a knife from his pocket and hit him with the closed knife causing him injury on his chin followed by another injury given him on the left temple with an open knife. In support of this conclusion one has only to refer to the eight stab and incised wounds suffered by the deceased, which are to the following effect :-
(1) A stab wound 1"X 1/2" below the left clavical. The injury was leading into the chest.
(2) A stab wound 3/4" x 1/4 on the left side of sternum. The injury was leading into the chest.
(3) A stab wound 1 1/2x 1/3" on the left sipple. The injury was leading into the chest.
(4) A stab wound 1 1/2" x 3/4" below the left nipple. The injury was leading into the chest.
(5) A stab wound X 1/3" x 1" on the left side of the abdomen.
(6) An incised wound r x rx on the left side of chin. (7). An incised wound 1 1/2 x1 skin deep on the left side of head. (8) An incised wound 2" x 1" on the left elbow.
9. ' The fact that all the said injuries were suffered by the deceased on the left side of his chest, abdomen, the left side of the chin, head and left elbow should leave no- room for doubt that he had been pinned down by the two appellants, whereas appellant Sikandar continually stabbed him with the knife.
10. ' The learned counsel also objected to the evidence of P. Ws. Muhammad Ashraf and Meraj Din on the ground that they had no business to be around at the place of occurrence, as Muhammad Ashraf was employed in the Premier Cloth Mills and Meraj Din was a chance witness. By going through their evidence, however, we disagree with the contention of the learned counsel. It is in their evidence that owing to the murder of Muhammad Yusuf, who was their neighbour, they were present in their Mohallah when the Investigating Officer brought Sikandar in hand-cuffs and Sikandar produced before him the crime weapon, namely, the knife from the roof of the quarter of the Chowkidar of the Primary School which he took into possession through the usual memo. And they attested the same as recovery witnesses. We see nothing unnatural in this evidence as the said two witnesses were the residents of the Mohallah of the deceased, had no enmity against the appellants, and the report of the Serologist supports them that the crime knife was found by him stained with human blood.
11. ' The learned counsel lastly argued that the very foundation of the case set up by the prosecution against the appellants was false inasmuch as none of the appellants could have scaled over the compound wall of the said Primary School, as it was 6 3/4 feet in height, and so the eye-witnesses in this case had evidently falsely implicated the appellants owing to the fact that previously they had a fight with the deceased. We are afraid, there is no force in this contention. The site plan (Exh.
12. P C/I), which appears at page 107 of the Paper Book, indicates that after having stabbed deceased Yusuf, the appellants scaled over the compound wall of the Primary School from Point No, 6, which is next to the quarter of. The Chowkidar. It is in the evidence of S. I. P. Syed Anwar Ali Shah (P. W. 10) that next to the wall of the said quarter was a heap of bricks and in that behalf no question was put to him that his claim was incorrect. In this view of the matter, there seems to be no escape from the conclusion that the appellants had succeeded to scale over the compound wall from Point No, 6, after having made use of the heap of bricks lying near the said point.
13. ' The learned counsel also faintly argued that appellants Shabbir and Muhammad Azam were 16 years and 12 years old, when they committed the crime, and so the sentence of imprisonment for life awarded to them is excessive. The learned counsel, however, failed to support his contention by any legal principle and considering that the said sentence awarded to them was the next legal sentence, after the sentence of death, we do not see as to how this Court will be able to alter the same into a lesser sentence.
14. ' This appeal, therefore, fails and is dismissed.