1. MUHAMMAD AFZAL ZULLAH, J.-Niamat Ali appellant and his mother Mst. Karam Bibi were tried for the murder of Din Muhammad son of Muhammad Ismail, by the learned Additional Sessions Judge, Lahore, who vide his judgment dated 9-I1-1967, acquitted both of them mainly ; for the reason that the solitary injury on the person of the deceased could not have been caused with the knife recovered from the appellant and that the circumstantial evidence contradicted the eye- witnesses. Some doubt was also expressed with regard to the place of occurrence. The State appealed against acquittal. A learned Division Bench of the Lahore High Court dismissed it in so far as Mst. Karam Bibi is concerned but allowed it against Niamat Ali. He having been found guilty of murder was sentenced to life imprisonment and a fine of Rs. 3,000 in default whereof to further R. 1.
2. For two years with the direction that the fine if realised. Shall be paid as compensation under section 544-A, Cr. P. C. Niamat Ali has chal--lenged his conviction and sentence through this direct appeal.
3. One of the eye-witnesses of the occurrence is Nazir Hussain (P. W. 17) a real brother of the deceased. The prosecution case as revealed in his deposition is that on the day of occurrence which took place on 24-8-1966, at 2-30 p.m., in a populated locality of Lahore, he was bringing his cattle home when Niamat appellant who had also his cattle with him, while coming from the opposite side, met him. The appellant gave a stick blow to a buffalo of Nazir Hussain which led to an altercation. They abused each other. There was exchange of abuses between their women-folk a day earlier. Niamat then attacked Nazir and gave him some stick blows. Din Muhammad deceased reached there. He tried to separate them. Mst. Karam Bibi, acquitted accused, was near the spot. She also joined the brawl and caught hold of Din Muhammad deceased from his wrist.
4. Niamat appellant who had by then threw away his dang pulled out a knife from dub and gave a blow to the deceased which hit him in the abdomen. After inflicting a knife blow Niamat appellant ran away. Din Muhammad son of Jewan (P. W. 13), Muhammad Yousaf (P. W. 15) and Hakimuddin (P. W. 16) also saw the occurrence. Din Muhammad was carried to the Police Station in an injured condition. He was still in his senses. The F. I. R. Exh. P. D. Which contains substantially the same version as narrated by Nazir Hussain P. W. Was recorded on his dictation, at 3-30 p.m.
5. In addition to deposition of Nazir Hussain P. W. The aforementioned eye-witnesses fully supported the prosecution version at the trial. The F. I. R. Was treated as dying declaration and was also relied upon as a piece of evidence. The appellant was arrested shortly after the occurrence within a few hours. From his search knife Exh. P. A. Was recovered. It was then blood-stained. However, as the chemical analysis took place several months after its recovery, the report in that behalf revealed that the blood, by then, had disintegrated. Therefore, its source could not be ascertained. This recovery also was relied upon as an incriminating evidence.
6. In his statement under section 342, Cr. P. C., the appellant showed ignorance about exchange of abuses between the women-folk of both the parties on a day prior to the occurrence. He denied the recovery of knife. Otherwise, his plea was that of total denial. Five witnesses were produced in defence through whom an effort was made to show: (1) that Mst. Siddiqan, widow of Din Muhammad deceased, had married Nazir P. W. Within a few months of the occurrence i.e. 5-6- 1967; and (2) that on the day of occurrence no incident took place at the spot where, according to the prosecution, the appellant gave a knife blow to the deceased.
7. As noted earlier, the learned trial Judge did not find the prosecution evidence sufficient to prove the guilt of the accused. Accordingly, both of them were acquitted. On State appeal against acquittal, a learned Division Bench of the High Court, re-examined the entire evidence and tested the reasons which prevailed with the learned trial Judge with reference to the evidence. Some of the conclusions reached by the learned trial Judge, it was found, could not be deduced from the evidence. After giving due benefit of doubt to Mst. Karam Bibi, they set aside the acquittal of Niamat with a finding that the approach of the learned trial Judge besides being "clearly perverse" had also resulted in grave miscarriage of justice.
8. With the assistance of the learned counsel, we have ourselves gone through the evidence. Learned counsel has reiterated all the points which prevailed with the learned trial Judge and also advanced additional arguments. He contended: that there was no motive for the appellant to have attacked Din Muhammad deceased and that in fact it was, as he put it, "a family affair" in which he further suggested, Nazir Hussain P. W. Brother of the deceased, wanted to marry his sister-in-law and in order to achieve this object both of them removed the deceased from their way-two circumstances have been relied upon in this behalf (i) that Nazir Hussain did not admit having married the widow of the deceased and (ff) that the evidence established that a Nikah was performed between the two; that the eye-witnesses had a partisan character and there is no independent corroboration of their testimony, particularly, when the recovery of the knife has been subjected to some doubt by the High Court; that the eye-witnesses have been contradicted by the position assigned to them by the draftsman, while preparing the site plan; that independent witnesses appeared in defence to prove that no occurrence, as alleged by the prosecution, had taken place at all-it was further pointed out in this behalf that Maqbool Alam, a natural witness, who had joined the investigation and had also made a statement under section 161, Cr. P. C. Had not been examined by the prosecution; that the acquittal of Mst. Karam Bibi having been maintained, due benefit should have been given to the appellant in this behalf; that the knife alleged to have been recovered from the appellant has a 1--- wide blade while the injury found on the deceased was 1--- X ----- it could not have been inflicted with the said knife on account of its width; and that no blood was recovered by the police from the spot nor the shirt of the deceased was blood-stained, therefore, the occurrence did not take place at the time and place alleged by the prosecution.
9. After hearing the learned counsel, we agree with the High Court that it is not possible to draw the suggested conclusion from the facts established through evidence. It is true that there was no long-standing previous enmity between the parties. But it will not be correct to suggest that exchange of abuses between the women-folk of the parties on a day prior to the occurrence and the incident in which Nazir P. W. And Niamat appellant exchanged abuses shortly before the main occurrence, which resulted in a severe blow to the deceased, would not constitute enough motive for the appellant to act in the manner he did. We have noted that the knife he was carrying is not such that he might have carried with him in order to kill the deceased. We also agree that there is nothing on the record to suggest that the appellant was aware that the deceased would arrive during his brawl with Nazir P. W. But these circumstances can help him only in the matter of sentence and this benefit has already been allowed to him. There is nothing on the record to show that the eye-witnesses are partisan in such a way as to falsely implicate the appellant. The relation--ship of Nazir P. W. With the deceased also cannot help the appellant. The previous incident of exchange of abuses between the women-folk was not so serious -as to motivate Nazir P. W. To falsely implicate the appel--lant in a murder case. The extraordinary argument advanced by the learned counsel, which was not pleaded by Niamat appellant, that in fact Nazir P. W.
10. Murdered his brother so as to subsequently marry his widow, does not find support from any part of the evidence. The mere circum--stance that there was a marriage several months after the occurrence, which during the trial was not owned by Nazir Hussain (it may be on account of social condition) cannot at all lead to an inference that they were responsible for the murder. Nazir P. W.
11. When examined by a Doctor was found to have been injured. This circumstance corroborates his version that he was present and bad witnessed the occurrence.
12. There is nothing to suggest that Din Muhammad deceased himself would have substituted an innocent man for the culprit. His statement in the form of the F. I. R. Has rightly been treated as a dying declaration. This by itself is a very strong piece of evidence against the appellant. No further corroboration through any so-called independent source, was necessary.
13. The acquittal of Mo. Karam Bibi is for the reason that the benefit of doubt was extended to her. This was correct approach by the learned Judges of the High Court as they were dealing with an appeal against acquittal. The mere fact that she was extended benefit of doubt would not show that Niamat appellant was in any way falsely implicated for the murder of Din Muhammad.
14. We have compared the statements made by the eye-witnesses with regard to the place from where they saw the occurrence with the site plan. There is no serious contradiction. Even if there would have been any, it would not have made any difference as no cross-examination was directed at the draftsman and/or the witnesses in this behalf so as to bring out the so-called contradiction. Similarly, the circumstance that a person, who appeared before the prosecution and his statement was recorded under section 161, Cr. P. C. Or for that matter the defence witnesses, stated that they did not see any incident on the day of occurrence near their houses, would neither show that the occurrence did not take place nor that the eye-witnesses have made false depositions. This aspect of the case has rightly been ignored by the learned Courts below We do agree that normally it would be expected that blood would ooze out from a wound inflicted on human body and would also besmear the wearing apparel. But the quantity of the blood and the manner in which it would besmear the clothes, would all depend upon the nature and location of the injury, the weapon used and the first aid rendered to the injured. In the case the sole injury on the body of the deceased was found to be a gaping stab wound on the abdomen which had penetrated the abdominal cavity at a place 3' above the iliac crest in the anterior axillary line. The location is such that immediately after the infliction of the injury the entire blood might have flowed into the abdominal cavity. As to how long it would have taken the cavity to be filled so that the blood would come out to besmear the clothes as also the place (earth) where the occurrence took place, were questions which should have been asked from the Doctor. The fact as to whether the blood would have gushed out of the wound immediately after the infliction of the blow also needed positive opinion from the Doctor. No such effort was made. This would also apply to the argument of the learned counsel that no blood was recovered by the police from the spot.
15. The other argument of the learned counsel which also prevailed with the learned trial Judge that the blade of the knife being 1' wide could not have caused an injury 1' x -----, is fallacious due to the misleading of the Doctor's statement.. The dimensions as contained in the evidence of the Doctor clearly show that the wound was 1' long and ----- wide. The depth was not mentioned by the Doctor who examined the injured when alive, presumably because, the wound being on abdominal cavity, any probe to measure the depth which in any case would be "cavity deep", might have been injurious to the injured/patient. Nothing was at all asked from the Doctor in this behalf. The argument is based on wrong suppositions. One inch long injury with its width being --" could be caused by a knife with 1--- blade. The point made in the judgment of the learned trial Judge as also advanced by the learned counsel in this behalf has absolutely no merit.
16. After carefully re-examining the evidence, we are satisfied that most of conclusions reached by the learned trial Judge in so far as Niamat Ali appellant is concerned, were not possible to be deduced from the evidence. The acquittal, undoubtedly, resulted in miscarriage of justice and has rightly been set aside.
17. Learned counsel for the appellant at the end urged that there being no long-standing enmity and the appellant having inflicted only one blow to the deceased and that too in consequence of a brawl with Nazir P. W. He should be given some benefit in the matter of sentence. Learned counsel has obviously .Misconceived the position of law regarding sentence in a con--viction under section 302, P. P. C. The appellant has already been awarded the lesser of the two possible sentences.
18. Nothing having been urged against the imposition of the fine and/or the award of the same as compensation, the law does not permit any further reduction of sentence. This appeal has no merit and is accordingly dismissed.