JAVID IQBAL, J.-Muhammad Ishfaq, aged 20, and his brother Muhammad Aslam, aged 27, both sons of Ali Afsar were, tried by the Additional Sessions Judge, Attock, who vide his judgment dated 6th July, 1978, convicted and sentenced them as follows : Muhammad Ishfaq was convicted under section 302, P. P, C. For the murder of Gharib Nawaz aged 26 years, and was sentenced to death plus fine of Rs. 1,000 or in default to undergo three months' R. I. And if the fine was realized from him, it was to be paid as compensation to the heirs of the deceased. Muhammad Aslam was convicted only under section 323, P. P. C. For causing simple injuries to the deceased and was sentenced to a fine of Rs. 350 or in default to undergo one month S. I. Both the convicts have appealed and their appeal is being taken up and disposed of alongwith Reference for the confirmation of death sentence awarded to Muhammad Ishfaq, by this judgment.
2. The occurrence took place at 9-00 a. m. On 16th June, 1976 in the area of Rakba Bahadur Khan, at a distance of 3J miles from Police Station Hazro, District Campbellpur. F. I. R. Exh. P. D. Was lodged by Rehmat Ali P. W. 5, cousin of the deceased, on the same day at 10-00 a. m. And it was recorded at the police station by Shabbir Hussain, S. I. P. W. 9.
3. The motive for crime, as stated in the F. I. R., is that the deceased was on friendly terms with a young boy, namely, Tariq Shah. Muhammad Ishfaq appellant used to tease Tariq Shah, who had made a complaint to this effect to the deceased. It is stated that two days before the present occurrence the deceased had an altercation with Muhammad Ishfaq appellant on this issue and the deceased gave two danda blows to him as well as reprimanded him for his behaviour.
Muhammad Ishfaq appellant is stated to have given him a threat that he would teach him a lesson for the same. Ibrahim P. W. 3 was a witness of the earlier incident. This Ibrahim P. W. Is stated to be engaged to the sister of Rehmat Ali P. W. 5.
4. There are three eye-witnesses of the occurrence, namely, Rehmat Ali P. W. 5, cousin of the deceased, Muhammad Fazil P. W. 6, belonging to the Biradari of the deceased, and Rab Nawaz P. W.
7, who is maternal uncle of Rehmat Ali P. W. 5.
5. Both the appellants were arrested on 21st June, 1976 (five days after the occurrence) by Shabbir Hussain, S. I., P. W.
9. Muhammad Ishfaq appellant led to the recovery of danda P. 5 whereas Muhammad Aslam appellant led to the recovery of danda P.
6. Both these dandas were not stained with blood and were taken into possession respectively vide memos Exits. P. B. And P. C.
Dated 21st June, 1976. These are attested by Hassan Askari P. W.
2. Cousin of the deceased, Shah Hinchi Khan (not produced) and Shabbir Hussain S. I. P. W. 9. . Since the dandas in question were not found to be stained with blood, they are of no corroboratory importance.
6. In the F. I. R. The occurrence is reported to have taken place in the following manner. On the fateful day Rahmat Ali P. W. 5 and the deceased were grazing cattle when the appellants armed with dandas came to the spot and raised a lalkara to the deceased to the effect that they were going to teach him a lesson for beating Muhammad Ishfaq appellant. Since the deceased was empty-handed, he started to run in order to save his life. But he was chased by the appellants.
When he reached near the Kassi, the appellants overtook him and both of them gave ore blow each with their dandas on the back of the deceased. In the meantime Rehmat Ali P. W. Also followed them. Thereafter, each of the appellan's started beating the deceased, who fell down in the Kassi. While he was in the fallen condition Muhammad Aslam appellant sat on his legs whereas Muhammad Ishfaq appellant started strangulating his neck with the bare hands. On the alarm of Rehmat Ali P. W. Muhammad Fazil P. W. 6 and Rab Nawaz P. W.
7. Who were cutting grass nearby, rushed to the scene and pleaded with the appellants to spare the deceased. Anyway, they left the deceased and went towards the road raising lalkaras, when the eye-witnesses reached near the deceased, they found that he had died on the spot. Thereafter, Rehmat Ali, P. W. Proceeded to lodge the report.
7. Dr. Muhammad Khan P. W. 8 conducted post-mortem examination on the dead body of the deceased on 16th June, 1976 at about 2-is p. m. He found the following injuries on his person:--
(1) Neck swollen, finger marks were present on each. Side of neck and dark fluid was coming from mouth.
(2) An abrasion on back side of right forearm 4 -- " x 1".
(3) A contusion mark on right and front side of chest 4 --" x 1" close to right nipple.
(4) A contusion mark on outer aspect of left arm 4" x 1 --" x 3" above elbow joint.
(5) An abrasion on outer aspect of left forearm 1/2" x 3/4".
(6) A contusion mark on back side of left shoulder 3" x 1."
(7) A contusion mark on left and back side of chest 3 --''. x 3/4'', 6 --" below shoulder joint.
(8) A contusion mark on right and back side of chest 5 -- "x 1", 6 --'' below right shoulder.
(9) Two abrasions on back 3/4" x 1/3" x 1/3" respectively.
(10) A contusion mark on front side of left thigh 3 -- " x 3/4", 3" above knee.
(11) A bruise on right cheek 1 /2" x 1 /6---.
In his opinion injury No. 1 was grievous and dangerous to life which was caused by throttling with pressure of fingers on the throat. The other injuries from 2 to 11 were simple and had been caused by blunt weapon. The death had resulted due to strangulation and shock which was sufficient to cause death in the ordinary course of nature. The probable time between injuries and death was sudden and between death and post-mortem examination was from five to six hours.
On 17th June, 1976 at 9-40 a. m. He also medically examined Muhammad Ishfaq appellant and found on his person contusion mark on the back side of left elbow. The injury was caused by blunt weapon within duration of 3 to 4 days. It was kept under observation and was sub--sequently declared simple.
8. The appellants, in their statements before the trial Court, denied having participated in the occurrence. They disowned recoveries and stated that they had been falsely implicated in order to harm them. Muhammad Aslam appellant also stated that he bad been falsely involved because he had refused to act as a prosecution witness on behalf of the present complainant-party in the case of the murder of his father.
9. We have heard learned counsel for both the parties and carefully perused the record with their assistance. It was argued by learned counsel, firstly, that it was an unwitnessed occurrence and that had the eye-witnesses been present there, they would have interfered in order to rescue the deceased, who was being strangulated by Muhammad Ishfaq appellant, who was at that time aged only 18 years whereas the deceased was aged 26 years. It was then argued that even if the ocular testimony was to be relied upon, it was not a case where Muhammad Ishfaq appellant could have been convicted under section 302, P. P. C. But be could be at the most convicted under section 324 or section 304, Part II, P. P. C. The reasoning of learned counsel is that in the light of the blunt-weapon simple injuries sustained by the deceased at the hands of the appellants, it was evident that the intention of the appellants was not to murder the deceased but only to cause simple injuries to him and thus to teach him a lesson for having given danda blows to Muhammad Ishfaq appellant in the earlier incident. Consequently, according to learned counsel the act of throttling the deceased with bare hands by Muhammad Ishfaq appellant was under sudden provocation. It was next submitted that in any case Muhammad Ishfaq appellant was only eighteen years old at that time whereas the deceased was a full-grown man aged 26 years and that it could hale been only under sudden provocation that a young man like the appellant Muhammad Ishfaq had throttled and killed the deceased by strangulation. In the light of these arguments it was submitted that the conviction of Muhammad Ishfaq appellant should be altered from section 302, P. P. C. To section 324, P. P. C. Or section 304, Part II, P. P. C. In this connection reliance was placed on Nanak and another v. Emperor (AIR 1931 Lab. 189). In that case the deceased was grazing his sheep and he hit the dog of the accused with a stick for having molested his sheep whereupon the accused seized hold of him in a sudden temper and took the turban of the deceased from his head and strangulated him to death whereas there had been no previous enmity between the two and it was a sudden and unpremeditated attack. It was held that the accused was guilty of offence under section 304, Part II, P. P. C. And not of murder punishable under section 302, P. P. C. Reliance was also placed on Jahana v. Emperor (34 Cr. L. J 1213). In that case it was held that where it appeared that a dispute must have taken place before the accused became violent and though it was evident that the accused was violent and intended to be so a doubt must remain whether so far as his intention went, the deceased's death was riot accidental, he was entitled to the benefit of doubt. In the said case death was caused by strangulation and it was held that the conviction should be alterted from section 302, P. P. C. To section 304, Part 11, P. P.
C. Reliance was likewise placed on Sultan and two others v. The State (1976 P Cr. L J 621). In that case the accused was thrown on the ground by the deceased after the receipt of injuries at the hands of the deceased and then the accused strangulated the deceased to death. It was held that the accused having no apprehen--sion of receiving grievous hurt, only exceeded his right of self- defence in the circumstances and, therefore, his conviction was altered from section 302, P. P. C. To section 304, Part I, P. P. C.
We have carefully considered this aspect of the case. The perusal of the authorities cited by learned counsel has made us to arrive at the conclusion that these authorities are not applicable to the facts of the present case. In the present case, Muhammad Ishfaq appellant used to tease Tariq Shah, a young boy, who was on friendly terms with the deceased. This Tariq Shah complained to the deceased about the matter whereupon two days prior to the present occurrence the deceased showed his resentment and reprimanded Muhammad Ishfaq appellant as well as gave him two donda blows due to his behaviour. Muhammad Ishfaq appellant is stated to have given him threat that he would avenge the insult. Two days thereafter, according to the ocular testimony, Muhammad Ishfaq appellant and his brother Muhammad Aslam appellant both armed with dandas chased the deceased, who, in order to save his life, tried to escape from the scence of crime. They gave him danda blows and the injuries sustained by the deceased at their hands were no doubt simple in nature. Had they stopped at that, the inference could be drawn that the intention was only to cause simple injuries to the deceased in order to teach him a lesson. But then the eye-witnesses informed us that the deceased fell down near the Kas4i. At this stage there was change of intention so far as Muhammad Ishfaq appellant was concerned. He did not stop at that but he sat upon the deceased and strangulated him to death with his bare hands. Thus, it was a clear case of murder and not a case of culpable homicide not amounting to murder. Learned counsel has tried to argue that it was an unwitnessed occurrence and the reason given by him for that is that had the eyewitnesses reached the spot, they would have attempted to rescue the deceased from the clutches of Muhammad Ishfaq appellant, who was only a boy of 18 years, But the eye-witnesses had stated that they did not go near the deceased out of fear and furthermore the appellants had threatened them not to come closer, otherwise they would meet the same fate.
It is reasonably probable that due to fear the eye-witnesses did not advance forward. Furthermore, there is no previous background of enmity between the parties and it cannot be said that the eye- witnesses, in the instant case, are interested or had any motive to falsely implicate Muhammad Ishfaq appellant for the part which they had ascribed to him. In that view of the matter, there is no reason why the ocular testimony should not be relied upon. The perusal of the record indicates that the ocular testi--mony is reliable, in the instant case, and it is further supported by the motive as well as medical evidence. It was a day time occurrence which took place at 9.00 a. m. And the F. I.
R. Was lodged promptly at 10. a. m. We are, therefore, convinced in our mind that the prosecution has succeeded in establishing its case as against the appellants beyond any shadow of doubt.
At this stage it was argued by learned counsel that even if the convic--tion of Muhammad Ishfaq appellant under section 302, P. P. C. Is maintained, a case was made out for the awarding of lesser penalty to him for the reason that he was only a young man of 18 years at the time of the occurrence whereas the deceased was 26 years old. In our view, this cannot be considered as a mitigating circumstance. Muhammad Ishfaq appellant was the one who had first teased Tariq Shah and thus started the matter. When he was remanded by the deceased, two days thereafter he along with his brother chased him and gave him danda blows. However, he did not stop at that and when the deceased had fallen down he sat on his chest and with his bare hands strangulated A him to death as he had there and then formed the intention to murder the deceased although there was no provocation on the part of the deceased. In that view of the matter, no case is made out for awarding him lesser penalty. Consequently, the convictions as well as sentences awarded to the appellants, in the circumstances, were quite proper and are accordingly maintained. The appeal is dismissed.
The death sentence awarded to Muhammad Ishfaq appellant is confirmed.