SHAUKAT ALI, J.-Ashiq Hussain and Ghulam Abbas were convicted under section 302/34, P. P. C.
Ashiq Hussain was sentenced to death while Ghulam Abbas to transportation for life. The former has filed Criminal Appeal No. 288 of 1968 through counsel and the latter Criminal Appeal No. 326 of 1968, through Jail. The learned Additional Sessions Judge, Multan, has made the usual reference under section 374, Cr. P. C. For the confirmation of sentence of death of Ashiq Hussain. This judgment will dispose of both the appeals and the reference.
2. The prosecution case has been set out in the first infor--mation report, which was made by the deceased Sardar Muhammad. The incident took place on 24th of November 1966 at 11 a. m. In front of Majahid Gharib Nawaz Hotel, in the area of Mumtazabad, within the jurisdiction of Police Station Saddar Multan, which is at a distance of four miles from the place of incident.
3. The facts are these. Muhammad Ali P. W. Had a provi--sions store near Railway crossing Mumtazabad. Ashiq Hussain accused used to purchase merchandise from him on credit and thereby he was under debt of Rs. 50.00 to him. About fifteen days before the incident Muhammad Ali P. W. Demanded the amount from Ashiq Hussain resulting in an alteration between the two, Sardar Muhammad deceased, who was the maternal uncle of Muhammad Ali P. W. And Ashiq Hussain accused to Radar Din P. W. Ashiq Hussain deposited his wrist watch P. 7 with Radar Din P. W.
On the understanding that he would pay Rs. 50.00 to him and would get back his watch. After the expiry of the prescribed period, Muhammad Ali P. W. And Sardar Muhammad deceased went to Radar Din P. W. And enquired from him whether Ashiq Hussain had paid the amount, who told them that this was not done and that the wrist watch was still with him. It is alleged the demand of money resulted in the present occurrence.
4. On 24 the November1966, at about 11.00 Muhammad of Sardar Muhammad deceased went to Ashiq Hussain accused, who was sitting at Mujahid Gharib Nawaz Hotel. They demanded the money from him and this resulted in conflict between them. Ghulam Abbas accused, who was a baker at the Hotel, caught hold of the deceased. Ashiq Hussain accused gave three blows to the deceased with knife P.
3. The blows landed in the abdomen, chest and on the back of the deceased. He fell down on the ground. The occurrence was witnessed by Muhammad Ali, Ghulam Muhammad, Muhammad Sharif and Abdul Humid P. Ws. Both the accused decamped from the spot. Ashiq Hussain was apprehended on the way by Ghulam Muhammad son of Muhammad Bakhsh and Abdul Majid P. Ws. He was overpowered and knife P. 3 was taken from him. Ashiq Hussain suffered an injury at the hand when the knife was being snatched from him. Muhammad Sharif P. W. Took the injured in a rickshaw to Nishtar Hospital, Multan, where he was medically examined at 12-10 p. m. By Doctor Umar Din at 12-45 p.m. The Doctor informed on the phone Mulazim Hussain A. S. I. (P. W. 4) as to the admission of the injured in the hospital. Mulazim Hussain A. S. I. Entered this information in the daily diary and sent the copy to Mushtaq Ahmad A. S. I. (P. NV.
17). Mushtaq Ahmad A. S. I. Proceeded to the hospital and contacted Doctor Haider Bakhsh Bokhari.
Registrar of the Ward, where the injured was lying. He inquired from the Doctor vide Ruqqa Exh. P. 'f.
Whether Sardar Muhammad was in position to make a statement. The Doctor vide Exh. P. 711.
Replied in the affirmative. The A. S. I. Went to the Ward and recorded the statement Exh. P. H. At 1-30 p. m. Formal first information report Exh. P: H/l was recorded at 2-50 p.m. At the Police Station the same day by Mulazim Hussain A. S. I. The A. S I. Proceeded to the spot and reached there at 3-15 p.m. Ghulam Mtihamnliad, Abdul Majid, Muhammad Sharif. Abdul Hamid and Ghulam Muhammad Lambardar were present at the spot. Ashiq Hussain accused was also in their custody. Ghulam Mulrammad Lambardar produced Ashiq Hussain and the bloodstained knife P.
3. The accused was put under arrest and the knife was made into a sealed parcel ride memo. Exh. P. B. Shirt P. 4 was got removed from the person of Ashiq Hussain and made into a sealed parcel ride Memo Exh. P. C. The A. S. I. Took into possession blood-stained earth from the spot and made it into a sealed parcel vide Memo. Exh. P. D. Ashiq Hussain accused was injured at the time of his arrest. The A. S. I.
Prepared his injury statement and got him medically examined.
On 28th November 1966, at 1-20 a.m. Mushtaq Ahmad A. S. I., was informed on Telephone that Sardar Muhammad had expired in the hospital. He proceeded to the hospital, prepared his injury statement and the inquest report and des--patched the dead body to the mortuary for post- mortem examination. On 29th November 1966, he arrested Ghulam Abbas accused from the Hotel of Sarbaland Khan at Multan. On 3rd of January 1967, Muhammad Hussain, Sub-Inspector, took into possession wrist watch P. 7 from the possession or Badar Din P. W. And made it into a sealed parcel ride Memo. Exh. P. J.
The post-mortem examination of the deceased revealed three injuries. The nature and the exact position of the injuries were as f lows:-
(1) A stitched Wound 4 -- " on the left side of abdomen.
(2) A stab wound -- " x -- " on the right side of chest.
(3) A stitched Wound -- " x -- " on the right back shoulder.
Death in the opinion of the Doctor, was due to shock and haemorrhage tend peritonitis. Injury No. 1 was sufficient in the ordinary course of nature to cause death.
6. Doctor Muhammad Amin P. W. Examined Ashiq Hussain accused, ;ind found the following injuries on his person.
(1) An incised wound -- " x -- " skin deep on the back of the right hand at the basle of index finger.
(2) A contused swelling 2 " x 1"on the right cheek.'
(3) Bleeding from the right nostril.
All the injuries were pronounced simple in nature. Injury No. 1 was caused by a sharp-edged weapon while the others by a blunt weapon.
7. Both the appellants protested innocence. Ashiq Hussain accused admitted that he used to purchase the provisions on credit and owed Rs. 50.00 on that account to Muhammad Ali P. W. He admitted having deposited his wrist watch with Badar Din P. W. With a promise to return the money within a period of fifteen days. He denied the other prosecution allegations and made the following statement from the dock:- "They (the deceased and Muhammad Ali P. W.) approached me for the return of the money within seven days of deposit of watch. With them were Muhammad Din and two others. They assaulted me with the knife. I told them that I will definitely return the amount and have back the watch. After that deceased Sardar Muhammad insisted for immediate payment. They then started assaulting me. I was injured and received injuries on .My hand, face and back. A small pen knife for cutting vegetable was lying near even. I took a that and struck Sardar Muhammad with it in my defence.
Ghulam Abbas denied all the prosecution allegations against him and stated. That Sarbland Khan and Police were at daggers drawn and as he was the mail of Sarbland Khan, therefore, he was implicated in thist, case. No evidence was examined in defence.
8. The prosecution in support of its case examined Muhammad Ali P. W. 9 Ghulam Muhammad P.
W. 10 Muhammad Sharif P. W. 11 and Abdul Hamid P. W . 12 as eye-witnesses of the occurrence.
Ghulam Muhammad P. W. 13 and Abdul Majid P. W. 14 stated that they apprehended Ashiq accused. Badar Din P. W. 7 deposed to the motive. Muhammad Hussain Sub-Inspector, P. W. 8 and Mushtaq Ahmad, A. S. I. P, W. I'7 investigated the case. The statement of Sardar Muhammad deceased was relied upon as dying declaration. The evidence of other witnesses is of formal nature.
9. We have however, to scrutinize the dying 'declaration if it is a statement of truth. It is a so to be seen whether the eye-witnesses examined by the prosecution were present at the time of the incident. The first information report which is the dying declaration of the deceased and was promptly lodged contained the names of all the eye-witnesses.
It may be said at once that When a man, who is dead and has left a statement throwing light upon the cause of his death, that statement is relevant evidence under section 32, Evidence Act. A dying declaration made soon after the incident or at a time when the deceased expected death or at a time by which the deceased could not have consulted others or received hints' from others, will ordinarily, be deserving of great weight. Simi--larly, if the contents of the dying declaration indicate that what is alleged there is probably true, that no apparent attempt has been made to exaggerate the incident or to rope in false persons, it will ordinarily be considered to be a dying declaration worth reliance. There is no evidence on the record nor even a suggestion that the dying man made this statement after consultation or receiving hints from others. It was promptly made and there was no time for the dying man to fabricate or for his friends to suggest falsehood. There is nothing improbable in the story stated in the dying declaration. The dying man had described the incident in its detail. It is true that the dying man did not explain the two injuries as a result of fist blows on the person of Ashiq Hussain accused, but he has stated that there was an altercation between him and Ashiq Hussain. Therefore, it is quite possible that Ashiq Hussain suffered these two injuries during the conflict. As to the third injury, which is the result of sharp-edged weapon, there is overwhelming evidence while he was deprived of the weapon of offence.
10. After examining the dying declaration carefully, we are of the view that the dying declaration in this case is the strongest piece of evidence against the accused. Muhammad Ali P. W. 8 is a relation of the deceased. He has described the incident in detail. He stated that they went to Mujahid Gharib Nawaz Hotel, as he knew that Ashiq Hussain accused usually used to sit there. He deposed that they demanded money from him, upon which the deceased and Ashiq Hussain fell into altercation. At this stage, Ghulam Abbas accused, who was working at the oven of the hotel, came and held the deceased by the neck. Ashiq Hussain accused gave a knife blow to the deceased on the left side of the abdomen. The deceased tried to catch Ashiq Hussain whereupon he gave another blow with a knife to the deceased. The second blow was given in the chest and the third was inflicted on the back of the deceased. He stated that when the knife was snatched from Ashiq Hussain, he received a scratch of knife at that time on the finger and had also received an abrasion at his face. In cross-examination he stated that he did not state before the Police that Ashiq Hussain accused received injuries by the knife which was in his hand. He said that the incident took place on a busy road and the shops were open at the time of the incident. Ghulam Muhammad P. W. Is a barber by profession. His shop is situate at a distance of 10-12 kararns from the place of incident. He ,was living in the neighbourhood of deceased. He supported the prosecution ..Case in its entirety. He stated that he saw Ghulam Abbas accused holding Sardar Muhammad deceased by neck and Ashiq Hussain accused inflicting blows to the deceased. In cross-examination he stated that he could not say what was the intention of Ghulam Abbas, whether he wanted 'the partis to go and fight away from the hotel or he was a party to the murder itself. He de--posed that he did not see any injury on the hand or face of Ashiq Hussain.
Muhammad Sharif P. W. Was also a neighbourer of the deceased. He was at the shop of Ghulam Muhammad P. W. For hair cut. He stated that he saw Ghulam Abbas holding Sardar Muhammad by neck in front of Mujahid Gharib Nawaz Hotel. Ashiq Hussain gave blows with the knife to Sardar Muhammad. He stated that when the knife was being snatched from Ashiq Hussain, he suffered an injury at his hand. Abdul Hamid P. W. Is a Cobbler by calling, and was at his shop near the crossing of Mumtazabad. He stated that Ghularn Abbas accused held the deceased by neck and in the meantime Ashiq Hussain accused gave three blows to the deceased with a knife. He stated that Ashiq Hussain accused suffered injuries at the time when the knife was being snatched from him by Ghulam Muhammad Lambardar. Ghulam Muhammad P. W. 13 and Abdul Majid P. W. 14, stated that they overpowered the accused and deprived him of the weapon of offence and that Ashiq Hmsain suffered a minor injury at his finger in that process when the knife was snatched from him.
11. Our view with regard to these eye-witnesses for the prosecution is that they were the persons who saw the incident. Ghulam Muhammad and Abdul Hamid P. Ws. Had their shops in the close proximity of the place of incident. Muhammad Ali P. W. Accompanied the deceased while Muhammad Sharif P. W. Was at the shop of Ghulam Muhammad P. W. For hair Cut. Nothing has been brought in, their cross-examination to cast doubt as to their presence at the time of the incident. They have described the incident correctly and there is no material on. The record to discredit their testimony. It is true that there are minor discrepancies in their statements as to the injuries suffered by Ashiq Hussain accused at his hand and face, but the substance of their evidence is that Ashiq Hussain accused suffered an injury at his hand with a knife when he was deprived of his weapon of offence. From the evidence of Ghulam Muhammad P. W. 13 and Abdul Majid P. W. 14 it is clear that the injury on the hand was suffered by Ashiq Hussain when he was deprived of the weapon of offence. As to the injury suffered by him at his face, we may say that it is possible that the deceased being empty-handed gave fist blow to his assailant when attacked.
The possibility that this injury was received by Ashiq Hussain when he was overpowered and deprived of the knife cannot be excluded.
12. There is nothing on the record to support the plea of self-defence except the bare statement of Ashiq. Hussain accused. In face of the unimpeachable evidence on the record we repel it.
13. We are doubtful about Ghulam Abbas's part in to incident. From the dying declaration. And the statements of Muhammad Ali and Ghulam Muhammad P. .Ws., it cannot be inferred with certainty that Ashiq Hussain accused inflicted injuries on the deceased when Ghulam Abbas accused was holding him. In face of the dying declaration and the evidence of Muhammad Ali and Ghulam Muhammad P. Ws., it is C difficult to accept the evidence of Muhammad Sharif and Abdul Hamid P.
Ws. At its face value. Furthermore, Ghulam Abbas had no community of purpose with Ashiq Hussain. The result, therefore, is that so far as Ghulam Abbas accused is concerned, the charge under section 302, P. P. C. Is not brought home against, him beyond all reasonable doubt. He is entitled to the benefit of that doubt and is acquitted.
14. The question however, is of what offence Ashiq Hussain accused is guilty. It is in the evidence of Badar Din P. W. That the deceased and Muhammad Ali P. W. Left saying that they would bring Ashiq Hussain accused to him. Muhammad Ali also stated that he in the company of the deceased went to Mujahid Gharib Nawaz Hotel, as he knew that Ashiq Hussain accused used to sit there, and demanded money from him. The record also shows that in the course of altercation, the deceased and Ashiq Hussain came out of the hotel. It is quite possible that the intention of Muhammad Ali P.
W. And the deceased was to compel Ashiq Hussain accused to accompany them to Badar Din P.
W. They might have applied some pressure on him, but we are of the opinion that under these circumstances, Ashiq Hussain accused had no right in law to react in the manner in which he did.
15. The deceased was unarmed and attack with a knife P. 3 was unjustified. Ashiq Hussain accused inflicted three incised wounds on Sardar Muhammad. The doctor opined that injury No. 1 was sufficient to cause death in the ordinary o course of nature. The infliction of blows three times shows the intention of the assailant. We are, therefore, of opinion, that the offence committed by Ashiq Hussain in causing the death of Sardar Muhammad is the offence of murder under, section 302, P. P. C.
16. The question of sentence requires consideration. It is in evidence the deceased went to the hotel and pestered Ashiq Hussain accused for the return of the loan, though by pledging his own watch he hail showed his bona fide to return the loan. The incident happened all of a sudden. There was no premeditation on the part of Ashiq Hussain. In all probabili--ties he picked up the knife from the hotel and inflicted blows to the deceased. In the circumstances, we are of the view E that lesser penalty of law will sufficiently meet the ends o justice. Accordingly, we maintain the conviction of Ashiq Hussain, but reduce his sentence from death to transportation for life. With this modification in the sentence the appeal of Ashiq Hussain is otherwise dismissed. The sentence of death of Ashiq Hussain is not confirmed.