M. DILAWAR MAHMOOD, J.---Munawar Hussain, appellant, aged 24 years along with his father Mehraj Din was tried by the learned Sessions Judge, Lyallpur for the murder of Javed alias Jaidi. The learned Sessions Judge vide his judgment dated 15th of December, 1976 acquitted Meraj Dm accused by giving him benefit of doubt while Munawar Hussain appellant was convicted under section 302, P.P.C. And sentenced to death. He was also sentenced to pay a fine of Rs. 1,000 or in default to suffer R.I. For a period of six months. The fine if realised was directed to be paid to the heirs of the deceased as compensation. The learned Sessions Judge has referred this case for confirmation of death sentence while the appellant has also filed an appeal against, his conviction and sentence. This judgment will dispose of both the reference and the appeal.
2. The occurrence in this case took place on 10 of February, 1974 near the graveyard of Mohallah Sohail Abad, Lyallpur. This place is at a distance of one and a half miles from the Police Station, Peoples Colony, Lyallpur. F. I. R. In this case was based upon the statement Exh. P. D, of Inayat (P. W.
6) which was recorded by Muhammad Saeed, Sub-Inspector (P. W. 12) at 5-30 p. m. On Satiana Road while he was on patrol duty there. Formal F. I. R. Exh. P, D/1 was recorded by Atta Muhammad, A. S. I. (P. W. 3) at Police Station, Peoples Colony, Lyallpur at 5.50 p. m. According to the statement of Inayat (P. W. 6) Javed alias Jaidi was his real brother. At about 5.00 p. m. On the day of occurrence he had come out of his house to buy kerosene oil. He was standing in front of the shop of Bashir, purchasing kerosene oil when he saw Jaidi deceased going from Jhal towards his house. When the deceased was near the grave of maan baita both the accused namely Munawar Hussain appellant and his father Meraj Din emerged from the enclosure of the grave. Meraj Din raised a lalkara and shouted that the deceased should not escape alive. He held the deceased whereuponth Munawar Hussain appellant who was armed with a dagger gave a blow with it to Jaidi deceased.
This blow hit Jaidi on his left thigh. Baba Nazir Sain. Muhammad Rafi P. Ws. And Khadim Hussain who were standing near him ran to the deceased who was being attacked at a distance of is karams from them. The deceased fell down on the ground unconscious. The appellant and his co- accused fled away and Munawar appellant took the blood-stained dagger with him. Inayat (P. W.
6) and Khadim Hussain (not produced) were taking the deceased to the Hospital in a rickshaw but be succumbed to the injury on the way. Leaving the dead body in the custody of Khadim Hussain, Inayat (P. W. 6) left for the Police Post, Peoples Colony. He met Muhammad Saeed, S. I. (P. W. 12) on the way who recorded his statement Exh. P. D. Which was the basis of the formal F. I. R. Exh. P. D/1.
Inayat (P. W. 6) further stated that a day prior to the present occurrence there was a quarrel between Jaidi deceased and Munawar appellant. Munawar appellant was snatching a kite from a boy. Jaidi deceased intervened and dissuaded Munawar appellant from doing so. This led to an altercation between the two during which they abused each other. Baba Nazir Sain (P. W. 7) intervened and separated them. This, according to the prosecution, bad provided motive for the present crime.
3. Dr. Bashir Hussain Kahlon P. W. Conducted the post-mortem examination on the dead body of Javed alias Jaidi on 11February, 1974 at 10-30 a. m. He found the following injury on his person:-
(1) An incised wound 3" x 2" x 6" on the outer side of the left thigh at its upper part.
Left femoral vessels were cut. In his opinion death was caused due to shock and haemorrhage as a result of injury to the main blood vessel. This injury was sufficient to cause death in the ordinary course of nature. It was caused by a sharp-edged weapon. According to the doctor, death was occurred within an hour or half an hour after the infliction of injury.
4. On 16th February, 1974 this doctor examined Munawar appellant and found following injuries on his person:--
(1) An incised wound 1/2" x 1/2" skin deep, each on the front of fingers of left hand.
(2) An incised wound 1/2" x 1/4" x skin deep on the front of left thumb.
Both these injuries were simple in nature and caused by a sharp-edged weapon within about seven days.
5. Munawar appellant was arrested on 16 of February, 1974 by Muhammad Saeed, S. I. (P. W. 12).
While in police custody he led to the recovery of dagger Exh. P. 9 from his house. The blade of the dagger was 8 inches long while the total length of the dagger was about one foot. This was taken into possession by the Investigating Officer vide Memo. Exh. P. F. Dated 17 of February, 1974.
Witnesses to this recovery besides Investigating Officer are Ashiq Hussain (P. W. 5) and Muhammad Saleem (not produced). This weapon was sent to the Chemical Examiner and the Serologist for examination. They opined vide their reports Exhs. P. J. And P. K. Respectively that the dagger Exh. P. 9 was stained with human blood.
6. The prosecution has relied upon the testimony of three eye--witnesses, namely Inayat (P. W. 6), Baba Nazir Sain (P. W. 7) and Muhammad Rafi (P. W. 8), the recovery of, dagger Exh. P. 9 at the instance of the appellant, the motive and the medical evidence.
7. Munawar Hussain appellant while examined under section 342, Cr. P. C. Stated that on the day of occurrence he himself went to the police and complained that it was the deceased who bad attacked biro with the dagger. As regards injuries on his person, he stated:- ---The deceased was a bad character and used to smoke charas alongwith Baba Nazir Sain and other witnesses. On the day of occurrence the deceased had brought a boy with him to which I objected and he attacked me with dagger P. 9. 1 warded of the attack with my left band as a result of which I sustained the injuries. I tried to snatch the dagger from the deceased by giving a jerk to his hand with which he was holding it. This dagger hit the deceased on his left thigh.th th th No evidence was led in defence, however reliance was placed upon two judgments Exh. D. B. And Exh. D. C. In order to prove that Javed alias Jaidi deceased and Inayat (P. W. 6) were persons of shady character and were challaned under section 13/14 of Goonda Ordinance, 1959.
8. Inayat (P. W. 6) has given a detailed description of the occurrence as already narrated in para. 2 of the judgment. Baba Nazir Sain (P. W. 7) who was a mujawar of the grave of moan baita near the place of occurrence has fully supported Inayat (P. W. 6). Apart from giving a graphic description of the occurrence he has also referred to the event of the day prior to the occurrence when there was altercation between the appellant and the deceased. The appellant had tried to snatch a kite from a boy in the street. The boy had started weeping and the deceased had reprimanded the appellant for snatching a kite from a boy. According to this witness, the appellant and the deceased started abusing each other. He intervened and separated them. Munawar appellant at that time had threatened the deceased that he would teach him a lesson. He is a natural witness of the occurrence. The boundary wall of the graveyard runs almost parallel to the street where the occurrence took place. A suggestion was put to this witness that he was challaned under the Excise Act for smoking narcotics. This suggestion was denied. He had, however, admitted that he and his brother had injured Bashir, a Gold Smith and that they were prosecuted for that offence and were sentenced to one ear's R. I. Each. It was nowhere suggested to this witness that he had any enmity or ill-will towards the appellant.
9. Muhammad Rafi (P. W. 8) is the third eye-witness of this occurrence. He is a resident of this very Mohalla. He was attracted to the place of occurrence by the hue and cry which was coming from near the grave of moan baita, which was at a distance of about 30/35 karams from him. He ran towards that side along with Inayat and Baba Nazi Sain P. Ws. And Khadim (not produced) when he saw that Meraj pin accused was holding Javed alias Jaidi deceased from behind and Munawar appellant armed with a. Dagger was iving a blow with it on the left thigh of the deceased. They were at a" distance of 14/15 yards from the place of occurrence when both the accused ran away.
Munawar appellant took away the dagger along with him. Thus this witness fully supports and corroborates the testimony of the other two witnesses in all material particulars.
10. We have gone through the entire evidence of the case with the help of the learned counsel for the parties. The learned counsel for the appellant submitted that the eye-witnesses should not be believed. He argued that Inayat (P. W. 6) was a real brother of the deceased. He was a bad character and in fact a Goonda and his evidence should be discarded. He produced two judgments Exh. D. B. And Exh. D. C. In order to establish that Javed alias Jaidi deceased anal Inayat (P. W. 6) were declared Goondas by order of District Tribunal, Lyallpur. The first order is dated 19 of July, 1971 while the latter is 26th of June, 1973. He criticised the testimony of other two eye-witnesses, namely Nazir and Rafi (P. Ws. 7 and 8) mainly on the ground that they had denied the injuries on the person of the appel--lant and that there were discrepancies in their statements. He further submitted that natural witnesses of the occurrence i.e. The other shop--keepers in the area have not been produced. As regards the motive he submitted that the boy whose kite had been snatched by the appellant has not been produced. In the end, the learned counsel submitted that it was the deceased who was the aggressor and that the appellant had caused the death of Jaidi in self-defence and that the defence version was more plausi--ble and should be believed. We have already discussed the evidence of eye-witnesses above. We are of the considered view that Inayat (P. W. 6) was no doubt of a bad character and was declared to be a Goonda in 1973 almost five years before the present occurrence, no foundation has been laid down in the present case to describe his evidence as partisan. There is nothing on the record whatsoever to suggest that Inayat (P. W. 6) has any animus against the appellant to falsely implicate him in the case. Similarly we find that Baba Nazir Sain (P. W. 7) and Muhammad Rafi (P. W. 8) are natural witnesses. Baba Nazir Sain (P. W. 7) is a mujawar of the grave of maan baita which is near the place of occurrenceth while Muhammad Rafi P. W. Belongs to this very Mohalla. There is nothing on the record to suggest that these two eye-witnesses have any animus or ill-will against the appellant. They are witnesses of truth. Their testimony inspires confidence. In our view explicit reliance can be placed on this evidence. We find that the testimony of Inayat (P. W. 6) is fully corroborated by the evidence of Nazir Sain (P. W. 7) and Muhammad Rafi (P. W. 8) and that the conviction of the appellant can be sustained on this evidence alone. The testimony of eye-witnesses is fully corroborated by the recovery of dagger Exhs. P. 9 at the instance of the appellant. Ashiq Hussain (P. W. 5) who was residing in this very Mohalla at the time of occurrence has supported this recovery as he lived near the house of the deceased. No infirmity has been pointed out in this evidence. He is not a party man nor any suggestion to this effect was put to him in the cross-examination. In this regard we would also like to rely on the testimony of Muhammad Saeed, S. I. (P. W. 12). No doubt he is a Police Officer and in the absence of any allegation that the investigation was not conducted honestly, we are of the view that his testi--mony was worthy of as much credence as of any other witness. No such allegation is forthcoming on the record. Accordingly we hold that recovery of the weapon of offence Exh. P. 9 which was found to be stained with the human blood fully corroborated the ocular account of the occurrence. Nature, number and seat of the injury on the person of the deceased fully corroborate the ocular testimony. All the eye-witnesses are unanimous in saying that the injury was inflicted on the left thigh of the deceased. According to the medical evidence left femoral vessels were cut. Death was caused due to shock and haemorrhage as a result of the said injury. This injury was sufficient to cause death in the ordinary course of nature.
We find that there is no force in the contention of the learned counsel for the appellant that it was the deceased who was the aggressor and that the appellant caused the death of the deceased in self-defence. There is nothing on the record to substantiate this submission of the learned counsel.
Incised wounds on the fingers and thumb of the left hand of the appellant which were seven days old go a long way to establish the implication of the appellant in the case and the nature and number of injuries received by the appellant and the deceased clearly demolish his plea of self- defence.
11. As regards the motive the fact that the boy from whom kite was snatched by the appellant had not been produced would not militate against the prosecution. Motive is not a necessary ingredient of a crime and what really motivates an accused person at the time he commits a crime, is best known to him and none else. We would, therefore, not labour on this point any further. In our view motive has not much relev--ance in a case where the testimony of eye-witnesses is found to be cogent and truthful.
12. The contention of the learned counsel for the appellant that the appellant caused only one injury and that too not on a vital part of the body would demonstrate that the appellant did not intend to cause the death of the deceased. The appellant was armed with a dagger of 8" blade and had attacked the deceased with considerable force as the depth of injury was six inches. This resulted in cutting the femoral vein which is a large blood vessel in the thigh. In our opinion it was clear that the appellant intended to cause the injury which was found on the deceased person and the said in--jury was sufficient to cause death in the ordinary course of nature. The case of the appellant was therefore, fully covered by the 3rd clause of sec--tion 300, P. P. C.
13. In the circumstances discussed above we are of the view that the prosecution has established its case against the appellant beyond any reasonable doubt. We, therefore, uphold the conviction of the appellant.
14. This brings us now to the question of sentence. According to the statements of eye-witnesses, when they ran towards the place of occurrence they saw that Meraj accused was holding the deceased while Munawar appellant gave a dagger blow on the left thigh of the deceased and that when they were at a distance of 14/15 yards from the deceased both the accused ran away. The eye-witnesses have not explained the injuries on the person of the appellant nor they have deposed what exactly preceded the actual assault. The possibility that the deceased may have said or done something before he was fatally assaulted cannot be ruled out. Looking at the case from this angle, we consider that extreme penalty of death Provided by the law under section 302, P. P. C. Was not called for in the facts and circumstances of the case. We set aside the sentence of death imposed upon Munawar Hussain appellant and substitute it with imprisonment for life.
Sentence of fine is maintained. The appeal of Munawar Hussain is accepted to this extent only.
The sentence of death is not confirmed