1. NASIM HASAN SHAH, J.-This petition is directed against the judgment dated 12-2-1980 passed by a learned Single Judge of the Lahore High in Criminal Appeal No. 805 of 1977.
2. The petitioner along with three of other persons, namely, Muhammad Bakhsh, Ahmad Bakhsh and Gul Muhammad was tried under sections 302/423/325 and 34, P. P. C. For the Murder of Muhammad Hassan deceased and for causing injuries to Mst. Gamoon, Muhammad Rafique, Talib Hussain and Ghulam Rasool, P. Ws. The learned Sessions Judge convicted the petitioner under section 302, P. P. C. And sentenced him to life imprisonment. Fine was also imposed, while his co- accused was sentenced to various terms of sentence under section 323/325, P. P. C. The petitioner alone appears to have challenged the judgment of the learned trial Court by filing an appeal before the Lahore High Court which was dismissed. Hence this petition for leave to appeal.
3. The prosecution case as given in the F. I. R. Is that on 23-7-1976 at about 5 p.m. Muhammad Hassan deceased and his brother Muhammad Rafique were sitting in the house of their maternal uncle Ghulam Muhammad, all the four accused came in front of the said house in the street. At that time, Allah Ditta, petitioner herein, was armed with knife and the remaining accused, namely, Muhammad Bakhsh and Gul Muhammad were armed with sticks, They called out Muhammad Hassan deceased, who came out along with his brother Muhammad Rafique, Allah Ditta, petitioner herein, shouted that they were their enemies and now they had beaten their cousin and then he started abusing. The deceased Muhammad Hassan also abused him in return. Meanwhile, Mst.
4. Gamoon, Ghulam Rasool and Talib Hussain P. Ws. Reached the spot. Allah Ditta accused-petitioner gave a knife blow in the abdomen of Muhammad Hassan deceased, who fell down. Mst. Gamoon, Ghulam Rasool, Muhammad Rafique and Talib Hussain P. Ws. Tried to rescue the deceased but they were given stick blows by Muhammad Bakhsh, Ahmad Bakhsh and Gul Muhammad accused.
5. On hearing the noise, Iqbal Jat and Khadim Hussain also reached the spot and the petitioner and his co-accused fled away.
6. The motive for the crime is stated to be that one year prior to the occurrence Allah Ditta petitioner had suspicion about the illicit relation of Rab Nawaz son of Ghulam Muhammad with Mst. Kaneez Mai, the sister of Allah Ditta, petitioner. On 23-7-1976, at about 3 p.m. Muhammad Akram brother of the deceased went to take bath in the mosque where Allah Ditta son of Haq Nawaz, cousin of Allah Ditta petitioner removed the shoes of said Muhammad Akram. On this Muhammad Akram and Raq Nawaz started querrelling and abused each other. Talib Hussain P. W. Separated them. This incident was the immediate motive for the crime.
7. Dr. Ziaud Din examined the deceased when he was alive and found the following injury on his person:---- "A stab wound in the right side of the abdomen 1' x 1/4' x 1' going inward obliquely at a distance of 3 -- from the umblious. The injured was semi conscious, pulse weak and the patient was referred to Nishtar Hospital for admission and treatment."
8. P. Ws. Ghulam Rasool, Talib Hussain and Muhammad Rafique were also examined and some injuries were found on their persons.
9. The Doctor also examined Allah Ditta petitioner and found the following injuries on his person :- "(1) Contusion mark on the outer and back aspect of left elbow joint 3' x 2' obliquely with swelling around in area of 4' X 3'.
(2) An abrasion on the back of right shoulder 1' x 1/2' oblique.
10. Injury No. 1 was found to be grievous and there was a fracture of the elbow joint."
11. Muhammad Bakhsh co-accused was also examined and was found to have suffered two injuries.
12. The Police also led evidence as to the recovery of blood-stained knife at the instance of the petitioner.
13. The prosecution case relied upon the ocular evidence, the evidence of motive and the medical evidence in support of its case.
14. The petitioners during the trial made the following statement :-- "At the time of occurrence at about 3-33 p.m. I and Muhammad Bakhsh went to the house Ghulam Muhammad to complaint against beating which had been given to Allah Ditta son of Haq Nawaz that the complainant party all of a sudden assaulted as with sticks. All the neighbours Qureshi, Mochi and Rajputs collected at the spot and in the confusion that ensured some body gave a stab blow to Hassan. When the complainant party beat me I was injured and I had also retaliated."
15. The trial Court while dealing with the defence version held :-- "The last point raised by the learned defence counsel is that the accused Allah Ditta and Muhammad Bakhsh were assaulted by the com--plainant patty and they had simply retaliated. He has further elaborated this point by pointing out that portion of the statements of the eye- witnesses which goes to say that Allah Ditta and Muhammad Bakhsh accused had tried to carry away Muhammad Hassan deceased from the spot, and then Talib Hussain and Ghulam Rasool P.
16. Ws. Had gone to their houses, from there they collected the sticks, by which they inflicted the injuries to the persons of Allah Ditta and Muhammad Bakhsh accused. I fully concede the contention of the learned counsel that this portion of the statements of the P. Ws. Is false on the face of it. Talib Hussain P. W. Must have given the stick blow to the accused party, before his right arm was broken. I have no hesitation to say that the P. Ws. Have tried -to create justifica--tion for the injuries which were found on the persons of accused Allah Ditta and Muhammad Bakhsh. But I do not agree that due to this padding of the P. Ws. Their entire statements should be discarded and disbelieved. The principle of falsus in uno falsus in omnibus (false is part false in toto) cannot be safely applied in this country. Moreover, the accused have not claimed the right of private defence or sudden provocation. They were guilty conscience and not clear in their minds about the defence."
17. On appeal, the learned Judge in the High Court was of the opinion that "there are no circumstances which may indicate that the presence of the appellant at the spot was innocent and that he defended himself only when he was attacked by the opposite-party. It may be remembered that when he visited the place of occurrence he was armed with a knife. This would show preparation for the offence before going to the place of occurrence. The learned Additional Sessions Judge has taken great points in sifting the evidence and coming to a finding of guilt against the appellant. I find no reason to disagree with him".
18. Mr. M. B. Zaman, in support of this petition, has mainly contended, that the learned trial Court did not examine the plea of self-defence, notwith--standing his findings which have been reproduced above solely on the ground that the right of self-defence has not been clearly claimed by the accused. He has further submitted that there were two motives alleged by the prosecution, namely, that a year before the occurrence the petitioner suspected that the cousin of the deceased Rab Nawab carrying on with his sister Kaniz Mai. The immediate motive was that on the day of the occurrence Muhammad Akram, the brother of the deceased had gone to take bath in the mosque and Allah Ditta took his shoes and there was a quarrel between two boys who were separated by Talib Hussain. In this scuffle, Allah Ditta petitioner bad attacked the deceased with a knife. The incident was not denied nor the recovery denied; however, as the first motive was not proved, the result was that this case was one of sudden fight and not a case of premeditation, hence section 302, P. P. C. Was not applicable.
19. We have given our consideration to this plea that find that it pertain exclusively to the appraisement of evidence which we are not inclined to re-appraise at this stage, especially when we find no error of law or principle in the appraisement of the evidence made by the learned trial Court. We also do not agree that the first motive was not established.
20. This petition must, therefore, fail and is dismissed hereby.