1. MUHAMMAD HALEEM, Actg. C. J.-This appeal, by special leave, arises from the judgment of the Lahore High Court, Lahore, dated 18th of March, 1976, by which Criminal Appeal No. 397 of 1975 was dismissed and death sentence confirmed.
2. According to the prosecution, the appellant bad reputation of visiting the vicinity of Sarai No. 3, Ramgarh, Lahore, and teasing the girls who lived in the Sarai. He was also suspected of having illicit relations with one of the girls living there. At 5 p. m. On 25th of March, 1972, he again visited the place upon which he was told by Sirajuddin and Muhammad Yasin son of Ilam Din, residents of the locality, that as he stood there to tease the girls, he, should leave the place on which he got infuriated and fought with them but Muhammad Yasin son of Muhammad Sadiq intervened and separated them. Thereafter, the appellant left the place and returned after about half an hour, armed with a knife, and challenged Sirajuddin that he would kill him. Sirajuddin advanced to overpower him, but before he could succeed, he was given 3 or 4 knife blows by the appellant one of which struck him on his chest and he fell down. Muhammad Yasin son of Ilam Din attempted to rescue Sirajuddin on which the appellant also inflicted 3 or 4 knife blows on him and he too fell down unconscious. It was further alleged that both Sirajuddin and Muhammad Yasin son of Ilam Din had pelted brickbats at the appellant in an attempt to save themselves. Both of them were removed to the hospital by Muhammad Yasin son of Muhammad Sadiq where his statement was recorded at 9 p. m. By an A. S. I. Of Police Station, Mughalpura.
3. The same day the appellant was arrested from Shalimar Link Road and a blood-stained knife was recovered from the nepha of his Shalwar. His blood-stained clothes (Bunyan and Shalwar) were also seized from his person. As he was injured, he was sent for medical examination ; and three injuries caused by a blunt weapon were noticed on his person. The age of the injuries was given as six hours which coincided with the time of the occurrence.
4. Sirajuddin expired on 26th of March, 1972. On his body 5 stab wounds, one incised wound and one abrasion were noticed, Similarly, on Muhammad Yasin son of Bam Din, 5 incised wounds were detected out of which one was grievous in nature.
5. The prosecution examined Mst. Amino Bibi (P. W. 7), Muhammad Yasin son of Ilam Din (P. W. 8), Muhammad Yasin son of Muhammad Sadiq (P. W. 101 and Abdul Ghaffar (P. W. 11) to furnish ocular testimony. The prosecution also led evidence of the injuries sustained by the appellant and the seizure of the blood-stained knife and clothes from his person.
6. Both Muhammad Yasin son of Muhammad Sadiq and Abdul Ghaffar turned hostile ; and as Abdul Ghaffar had supported the prosecution case before the inquiry Magistrate, his statement recorded by him, was transferred to the Sessions file. Mst. Amino was the real sister of the deceased and Abdul Ghaffar was the maternal cousin of Muhammad Yasin son of Ilam Din.
7. The trial Court accepted the evidence of motive furnished by Mst. Aisia (p. W. 13) and the ocular testimony of Mst. Amina and Muhammad Yasin son of Ilam Din and held that Abdul Ghaffar had deliberately prevaricated at the trial and accepted his earlier statement. As for Muhammad Yasin son of Sadiq, the trial Court was of the opinion that he was not a reliable witness and, accordingly, disbelieved him. Further, the trial Court disbelieved the evidence of the recovery of the knife and the blood-stained clothes but relied on the injuries on the person of the appellant which supported the assertion of the prosecution witnesses that they were caused in self-defence by the deceased and Muhammad Yasin son of Ilam Din. The appellant, accordingly, convicted under section 302, P. P. C.
8. And sentenced to a h and also to pay a fine of Rs. 5,000 out of which 3/4th was ordered to be paid as compensation to the heirs of the deceased. The appellant was further convicted under section 307, P. P. C. And sentenced to suffer R. I. For 7 years and to pay a fine of Rs. 2,000 out of which 1/2 was ordered to be paid to Muhammad Yasin as compensation. In case of default, he was ordered to undergo R. I. For one year.
9. On appeal and reference, the High Court upheld the conviction and sentence of the appellant on a re-appraisal of the evidence. While giving its reasoning, the High Court held that the testimony of Muhammad Yasin, the injured witness, inspired confidence and was sufficient to prove the guilt of the appellant. As for Mst. Amina, her presence was also held to be established and further the High Court found no reason as to why both these witnesses would substitute the appellant for the real assailant. The participa--tion of the appellant was held to be corroborated by the injuries on his person. Lastly, the High Court believed the testimony of Mst. Aisia which went to establish the motive.
10. Leave to appeal was granted to consider as to whether in the facts and circumstances of the case the appellant had a right of self-defence as the prosecution had failed to explain the injuries on the person of the appellant. Doubts were also expressed as to the presence of Mst. Amina and further as to whether Muhammad Yasin son of Ilam Din's evidence could be accepted without corroboration. As he filled the character of a partisan witness.
11. Before I proceed to examine the plea of self defence , I would advert to the ocular testimony qua its credibility. Doubts are expressed as to whether Mst. Amino, the sister of the deceased, who resided in the locality known as Sukh Nehr, had in fact witnessed the incident. According to her testimony, she came to visit her brother after six months and it was, therefore, that she had an occasion to be in the house and witnessed the incident as she was returning to her abode after visiting someone who had come from Multan. It is difficult to discount her presence as she was examined at the spot by Muhammad Sharif, A. S. I., when he reached there for investigating the case. Prior to it she had also visited the hospital to see her brother. In the absence of any material to establish that she was called from Sukh Nehr after the incident, a hypothetical suggestion, that she could not have been there, is of no value. If the Courts below, therefore, held so, their finding cannot be said to be arbitrary or capricious. As she was an illiterate witness, she was prone to commit mistakes while answering the questions which had to be resolved in the context of her over-all statement. She was subjected to severe cross-examination and overlapping questions were put to her as a result of which some of the answers left room for doubt that she had not witnessed the incident. The trial Court took notice of those answers and held: - It is, therefore, clear that the witness was present at the place of occurrence. The above-quoted pieces of her statement do not lead to any ambiguous position but might be considered as vain effort to show her absence from the place of occurrence. However, these pieces cannot be relied upon in view of the clear cut words from the mouth of the witness that she was present and had seen the occurrence."
12. After examining her evidence as a whole, I agree with this conclusion of the trial Court which was also upheld by the High Court as both the Courts below had sifted the evidence and found no substantial reason for discarding her presence.
13. As for Muhammad Yasin son of Ilam Din, it is established beyond doubt that he was present and had sustained knife injuries at the behest of the appellant. I find no reason as to why he would falsely attribute to the appellant the role of assaulting him. As for Abdul Ghaffar, the Courts below have rightly accepted his evidence, which was transferred to the Sessions filed for substantial reasons. The trial Court while giving effect to his evidence,) held: - " ---.. On the contrary the reading of the statement before the C. M. Clearly shows that he had supported the prosecution story out and out. I think he came up with the truth while appearing before the C. M. Because his grief was fresh and the passage of time has not yet healed it. However, when he was examined after about two years of the time from his statement before the C. M., then he suddenly changed his statement in torn. This was perhaps because his brother Yasin injured P.
14. W., had survived the injuries inflicted to him by the accused. In this way and due to the efflux of time, he might have decided to appease with the circumstances. This is one of the instance in which one can say that the human sentiments melt favourably to the accused due, to the efflux of time between the occurrence and the trial."
15. In regard to motive, it was clearly stated by Mst. Aisia (P. W. 13) that the appellant was in the habit of cutting jokes with her since about 6 month or a year before and he further solicited her to develope illicit relations with him but she did not reciprocate. She has also spoken about the first incident half an hour earlier in which the deceased and Muhammad Yasin (P. W. 8) had a scuffle with him. In cross-examination it was sought to be made out that she was carrying on a love affair with Muhammad Yasin son of Sadiq and sending "Love-gifts" to him but she denied it. A further suggestion was also made that she met this Yasin stealthily in the house of Mst. Majidan and that this, meeting was discontinued on her parents' coming to know about this liaison which she denied.
16. These suggestions were obviously put to her not only `to malign her but to change the complexion of the case and to bring it up in conformity with the admissions of Muhammad Yasin son of Muhammad Sadiq who had turned hostile. The fact nonetheless remains that her examination established the reason for which both the deceased and Muhammad Yasin son of Ilam Din had dissuaded the appellant not to visit the place.
17. In regard to the plea of self defence, the medico-legal certificate which was brought on record had established that the appellant suffered one contused wound of the dimension 1-3/4' x 1/2' x scalp deep on the left side of head 3J' above the left ear; one contusion 1/4' x 1/4' above the outer end of the left eye-brew ; and a complaint of pain on the left shoulder joint but no visible injury was noticod. The appellant when questioned to explain these injuries, stated that they were caused as a result, of the beating given to him by the Police. Muhammad Sharif, A. S. I., was next cross- examined on this aspect of the case, and he denied having caused any injury to him with a Danda.
18. He also denied having pushed him down to the ground as a result of which he received an "abrasion." Ghulam Rasul (P. W. 15), on being cross-examined on this point, stated :- "------He was injured when it was tried to apprehend him after the commission of the offence."
19. It seems to me that no Police Officer could cause any visible injuries to the appellant as that would render him liable for prosecution. Further no reason is ascribed for, such beating nor there could be any reason as all the incriminating evidence had been collected upon his apprehension. The explanation thus given by the appellant about his injuries is false. On the other hand it transpires not only from the F. I. R. But also from the evidence of Muhammad Yasin son of Ilam Din that he had picked up the broken pieces of bricks from the street and hurled them at the appellant, and while doing so, he saw the appellant rushing towards him and finally assaulting him with the knife.
20. Mst. Amina had also stated about the pelting of pebbles at the appellant. It is nobody's case that either the deceased or Muhammad Yasin son of Ilam Din was armed with a Danda ; and if at all Muhammad Yasin son of Ilam Din was so armed, he would not have allowed the appellant to charge and assault him. The two injuries on his left palm evidently show that he attempted to ward off the attack and got injured in the result. Obviously, therefore, there could not be any question either of the deceased or Muhammad Yasin son of Ilam Din being the aggressor. Further, it should not be forgotten that it was the appellant who had come to avenge the earlier insult armed with a knife in which case it is difficult to accept that he could claim the right of self defence. It was a cool and a predetermined effort to assault the deceased and Muhammad Yasin son of Ilam Din; and if both or either of them had thrown the brickbats, that could only be construed in the context of making an attempt to deter him from carrying out his nefarious plan. The contusion on his eye- brew must be the result of a brickbat hitting him; and as for the other injury, that is not accountable by the brickbat striking him from a distance but if at all Muhammad Yasin son of Ilam Din was holding a brickbat, he could have hit him with force while being attacked. In any case, the presence of the contused wound on the appellant is not established as to when he sustained it; and no question was put in cross-examination to establish that it was caused by a Danda.
21. Different pleas were taken in the cross-examination of the witnesses. To Mst. Amina it was suggested that on a dispute over a loan of Rs. 2,000 taken by Muhammad Yasin son of Ilam Din from the appellant, they had grappled with each other and each caused injuries to the other with his knife. Muhammad Yasin son of Ilam Din denied this loan and so also the assault earlier suggested. Again, a different suggestion was made to this witness that Muhammad Yasin son of Muhammad Sadiq had illicit relations with Mst. Aisia and that there was an exchange of "love gifts" which came to the notice of her father who reprimanded them but this was also denied.
22. Further, it was put to this witness that the appellant informed Muhammad Yasin son of Sadiq that he was going to be married with his girl friend and on that account that Yasin got enraged and fought with the appellant in which scuffle this witness also got entangled and cause injuries to the appellant. Lastly, it was sought to be suggested to him that he had fought with Sirajuddin and his clothes were removed and he was given a different set of clothes to wear before being sent to the hospital. The last two suggestions were also denied. Eminently, therefore, in the wake of these suggestions no clear cut case of self defence was raised and as earlier observed an aggressor cannot plead self defence. For these reasons this pie has no substance.
23. The ocular testimony and the motive proved beyond all doubt his guilt and I see no reason to interfere with it. His attack on the deceased and Muhammad Yasin son of Ilam Din was premeditated and no mitigation circumstance exists for awarding any lesser sentence. The mere delay relied on for lenient treatment is not sufficient for awarding the alternate sentence. In the result, the appeal fails and is hereby dismissed.
24. MUHAMMAD AFZAL ZULLAH, J.-I agree.
25. SHAH NAWAZ KHAN, J.-I agree.