SAAR SAOOD JAN, J. -The appellant, Muhammad Hayat (aged ; 21 years) was convicted by n Additional Sessions Judge at Faisalabad of offences under sections 452 and 302 of the Pakistan Penal Code on the allegations that he committed house trespass into the baithak of Abdul Hamid (P. W. 1) and caused the death of Muhammad Shafique deceased. For the offence under section 302 he was sentenced to suffer imprisonment for life and to pay a fine of Rs. 10,000 or, in default thereof, to undergo further rigorous imprisonment for a period of three years. For the offence under section 452 he was ordered to receive rigorous imprisonment for a period of three years and to pay a fine of Rs. 1,000 or, in default thereof, to further undergo rigorous imprisonment for a period of one year. All the sentences were directed to run concurrently. The appellant has filed this appeal against his conviction and sentence. On its part the complainant party has filed a criminal revision for the enhancement of the sentence awarded to the appellant. The criminal revision was admitted to a regular hearing by a learned Single Judge of this Court and a notice thereof was duly served upon the appellant. This judgment will dispose of both these matters.
2. The case of the prosecution was that a year before the occurrence the appellant started persuading the deceased to have homosexual relations with him. The deceased refused to oblige him. Nevertheless, the appellant insisted upon his demand. On one occasion the deceased beat the appellant with fist and kicks. The appellant felt humiliated and was looking for an opportunity to take revenge.
3. It was further alleged by the prosecution that in the early afternoon of 16th August, 1976 the deceased together with his paternal--uncle, Muhammad Saleem (P. W. 2), went to the baithak of Abdul Hamid (P. W. 1) in Mohallah Fazil Diwan to discuss some matters relating to flood duty. It may be stated that the deceased, Muhammad Saleem (P. W. 2) and Abdul Hamid (P. W. 1) were all school teachers. At 2 p. m., when they had been at the baithak for hardly 15 minutes, the appellant came there carrying a knife. He raised a lalkara that he had come to take revenge for the beating given to him. Immediately thereafter he struck the deceased four times with his knife. The deceased fell down. Abdul Hamid (P. W. 1) and Muhammad Saleem (P. W. 2) tried to capture the appellant but he managed to run away with his knife. The deceased was removed to the Civil Hospital at Kamalia. On the information supplied by the doctor A. S. I. Aman Ullah (P. W. 8) reached the hospital at 2.50 p. m. After obtaining a certificate from the doctor that he was in a fit state to make a statement, A. S. I. Aman Ullah (P. W. 8) recorded the statement of the deceased. On the basis of this statement an F. I. R. Was recorded at Police Station Kamalia on the same day-at 4.45- pm.
4. The appellant was arrested by the police on 22nd August, `1976. After his arrest he led a police party to the ground floor of the baithak of Abdul Hamid (P. W. 1) and from there took up a blood- stained knife (Exh. P. 3). A. S. I. Aman Ullah (P. W. 8) who was heading the police party took the knife (Fxh. P. 3) into his possession. This recovery was also witnessed by Sardar Ali (P. W. 3) and one Abdur Rashid who was not produced at the trial. The knife was later sent to the Chemical Examiner and the Serologist. According to their reports the blood on the knife was of human origin.
5. On arrivial in the hospital the deceased was examined by Dr. Ghulam Ahmad. The deceased had four injuries on his person. These consisted of one stab wound in the region of epigastrium and three incised wounds on the left wrist, right shoulder and right forearm. On the same day he was taken to the District Headquarter Hospital at Faisalabad. He died there on 27th August, 1976. His post-mortem examination was conducted by Dr. A. A. Khalid. On dissection the doctor found that the peritoneum of the deceased had been injured. He expressed the opinion that the stab wound in the epigastrium was sufficient in the ordinary course of nature to cause death.
6. The appellant pleaded not guilty to the charges against him. He admitted that he was responsible for causing the death of the deceased. He al leged that on-the day of occurrence he was invited by Abdul Hamid (P, W. 1) and the deceased to the baithak of Abdul Hamid (P. W. 1). As soon as he reached there Abdul Hamid bolted the door from inside. The deceased then tried to satisfy his unnatural lust upon him. He picked up a knife which was lying there on a fruit --plate and in order to save his honour he struck the deceased a number of times. He then opened the door, threw the knife in the room and ran away. He did not lead any evidence in his defence.
7. The case of the prosecution against the appellant rests upon the ocular testimony of Abdul Hamid (P. W. 1) and Muhammad Saleem (P. W. 2), the dying declaration made by the deceased before A. S. I. Aman Ullah (P. W. 8) which also formed the basis of the F. I. R. And the recovery of the blood-stained knife at the instance of the appellant. Both Abdul Hamid (P. W. 1) and Muhammad Saleem (P. W. 2) stated that they were present in the baithak at the relevant time and had seen the appellant inflicting the knife blows upon the deceased. As noted above the appellant himself has denied that he had caused the fatal injuries to the deceased. In the circumstances the only question for consideration is whether the defence offered by the appellant has any substance in it.
8. It is common ground between the parties that the occurrence took place in the baithak of Abdul Hamid (P. W. 1). Now the structure of which the baithak forms a part is at a short distance from the residential house of Abdul Hamid (P. W. 1). The structure consisted of two storeys. There are two rooms on the ground floor and two rooms on the first floor. In the rooms on the ground floor chaff and cow-dung are stored. One of the two rooms on the first floor was used as a baithak by Abdul Hamid (P. W. 1).
9. Learned counsel for the, appellant argued that the presence of Muhammad Saleem (P. W. 2) at the scene of occurrence was extremely doubtful. In support of his contention he referred to two discrepancies between the testimony of this witness and that of Abdul Hamid (P. W. 1). In our opinion these discrepancies are so minor and inconsequential that they do not support the contention of the learned counsel. Thus one of the discrepancies pointed out by him was with regard to the nature of the furniture resent in the room contiguous to the baithak on the first floor.
Another alleged discrepancy related to the period which Abdul Hamid (P. W. 1) had spent in the hospital immediately after the attack upon the deceased. It is to be noticed that the trial of the appellant took place about three years after the occurrence. It is, therefore, not unlikely that such discrepancies should have crept in the testimonies of these witnesses. In any case they are not on any material aspect of the case. There was nothing unusual about Muhammad Saleem (P. W. 2) accompanying the deceased to the house of Abdul Hamid (P. W. 1) for discussing a programme in respect of flood duty. We are, therefore, unable to doubt the presence of Muhammad Saleem (P. W.
2) at the spot on the ground suggested by the learned counsel.
10. Learned counsel for the appellant also submitted that the fact that the deceased and Muhammad Saleem (P. W. 2) were present in the baithak of Abdul Hamid (W. P. l) and not at his residential house indicated that they had gathered there for some nefarious purpose. There is no merit in this contention either. As already stated the residential house of Abdul Hamid (P. W. 1) was at a short distance from the baithak and Abdul Hamid (P. W. 1) had explained that there was no baithak in his residential house. We can, therefore, find nothing extraordinary if Abdul Hamid (P. W.
1) received the deceased and Muhammad Saleem (P. W. 2) at the baithak instead of at his residential house.
11. Otherwise also the defence set up by the appellant does not seem to be very convincing. At the time of the occurrence the appellant was in a minority of one to three. According to his own account he was unarmed. If the deceased and his companions had called the appellant for the purpose of committing sodomy upon him it was unlikely that they would have allowed him to escape unscathed particularly when he had injured one of them. It is not the case of the appellant that he was injured during the course of occurrence. We have also seen the knife (Exh. P. 3) and it is not one which is normally used for cutting fruit.
12. For the reasons stated above we are unable to find any substance in the version set up by the appellant. Considering the nature of the weapon used and the site of the stab wound we have no doubt in our mind that he had intended to kill the deceased. He was, therefore, rightly convicted by the learned Additional Sessions Judge of the offence under section 302 of the Pakistan Penal Code.
His conviction under section 452 was also well deserved.
13. The question of sentence requires serious consideration. The only evidence with regard to motive in this case is to be found in the dying declaration of the deceased. In this statement the version of the deceased was that the appellant wanted to have homosexual relation with him. He rebuffed the appellant but that did not deter the latter from making his demands. Consequently, on one occasion he had beaten up the appellant. Now the statement of the deceased with regard to the motive does not appear to be very convincing. Dr. Ghulam Ahmad who first examined the deceased and Dr. A. A. Khalid who conducted his post-mortem examination described him to be of 25 years of ale. At the trial the appellant gave his own age as 21 years, which means that at the time of occurrence he was only 18 years of age. It is highly improbable that a 18 years old lad would be pestering a person who was 7 years his senior for a homosexual relationship. Before us the learned counsel for the complainant raised a dispute with regard to the ages of the appellant and the deceased at the time of occurrence. We are not prepared to go into this matter as no such challenge was made at the trial.
14. Now this is a case where the motive of the occurrence is obscure. Consequently, we are not inclined to interfere with the sentences awarded by the learned trial Court to the appellant for the offence under section 302 of the Pakistan Penal Code. His sentence for the offence under section 452 is also not inappropriate. Accordingly we dismiss the appeal as well as the criminal revision.