GHULAM MUJADDID MIRZA, J.-Suleman son of Muhammad Din (aged 21) Caste Sheikh, student, resident of Clerkpura, Jalalpur Jattan was hauled up for the murder of Nisar Ahmad. He was tried by an Additional Sessions Judge at Gujrat who found him guilty and sentenced him to death and a fine of Rs. 5,000 or in default to undergo rigorous imprisonment for two years.
2. According to Qamar Din who lodged F. I. R. Exh. P F with Police Station Jalalpur Jattan on 8th October, 1974 at 4-45 p. m. His brother Nisar Ahmad was working at the Ration Depot of Ch. Dildar Khan, Advocate in ward No. 13. Three days prior to the occurrence, Suleman appellant in the presence of Qamar Din complainant brought otta worth Rs. 10 on loan.
On the day of occurrence at 4.00 p. m. When the deceased alongwith the complainant were present in Bari Gali near Bus-stand close to the house of Fazal Ahmad Kunjahi, the appellant passed by there. He was asked to pay the amount. Thereupon they exchanged hot words and grappled. It is alleged that the appellant brought out a chhuri from his dub and stabbed the deceased twice. He fell down. On the hue and cry raised by the complainant, Muhammad Yusuf and Ghulam Mustafa came to the spot and witnessed the occurrence. They even chased the appellant but he escaped. Nisar Ahmad died at the spin.
3. The appellant denied the allegation and gave his own version which is reproduced below :--- "I am innocent. The occurrence did not take place in the manner brought by the prosecution before the Court. The occurrence took place at 2-45 p. m /3.00 p. m. On 8th October, 1974. At the place of occurrence Nisar Ahmad deceased was present. I was going to my house. Nisar Ahmad insisted for the payment of Rs. 10 to him. He quarrelled with me and abused me. I also abused him in exchange. On this, Nisar Ahmad started belabouring me. He was more stout and strong than me.
He made me to fall on the ground beat me and injured me. I tried to rescue myself from him. Nisar Ahmad gave me a chhuri blow which hit my left wrist. He was about to inflict the second blow of chhuri in my chest. To save myself Injured Nisar Ahmad with my knife. The alleged eye--witnesses were not present at the spot at he time of occurrence who are false witnesses. After the occurrence, I went to Polio Post Jalalpur Jattan. One head constable and one constable were present therein. I made the complaint before them and asked their to lodge my report according to manner deposed above. The3 refused. They made me to sit in P. P. Jalalpur Jattan. The H. C rang up the S. H. O., P. S. Jalalpur Jattan and talked with him about my arrival. After some time both of them took me to P. S Jalalpur Jattan and produced me before the S. H. O. There I requested to lodge my report. However, my complaint was not recorded. Rather, I was arrested for the murder of Nisar Ahmad My injury statement was prepared by the S. H. O. And I was got medically examined.
The injuries found on my person have beer explained by me as above. In the exercise of the right of self defence to my person and to save myself I injured Nisar Ahmad."
4. Three eye-witnesses were produced by the prosecution in support of its case. They are the complainants himself (P. W. 14). Muhammad Yusuf (P. W. 2) and Ghulam Mustafa (P. W. 11). Reliance was also placed on the extra-judicial confession made before Abdul Rashid (P. W. 8) ant; Abdul Hamid (P. W. 9) and the medical evidence.
5. Qamar Din's statement before the trial Court being almost the same as in Exh. P F no need to repeat.
Ghulam Mustafa (P. W. 11) deposed that on the day of occurrence at 3-45/4-00 p. m. He was present in the bazar when Muhammad Yusuf (P. W. 2) met him. He requested him to accompany him to get the house of his sister vacated. They both went to Bus-stand and entered Bari Gali. They saw the deceased and the appellant quarrelling. The dispute was about Rs. 10, price of the aria. The appellant, all of a sudden, brought out a chhuri from his dub and inflicted two blows to the deceased Qamar Din complainant brother of the deceased was also present there. The deceased received one blow in the left flank and other in the abdomen.
Muhammad Yusuf (P. W. 2) could not be examined at the trial because of his death. Therefore, his statement before the Committing Magistrate was got transferred to the file of the trial Court under section 33 of the Evidence Act. He corroborated the statement of Ghulam Mustafa (P. W. 11).
6. Dr. Solaman Elahi performed post-mortem examination of the deceased on 9th October, 1974 at 9-30 p. m. He found two injuries, one incised wound ----- x ----- on the left chest below the nipple and other an incised wound 1----- x ----- into abdominal cavity on the left side of abdomen. In his opinion, the death had occurred due to severe shock on account of haemorrhage in the abdomen.
We may observe here that the appellant was also injured. He was examined by the same doctor the same day at 1-30 p. m. He noticed four simple injuries on the person of the appellant details of which will be given later on.
7. Before discussing the contentions raised by the learned counsel for the appellant, we: may also refer to the evidence of Abdul Rashid (P. W: 8) and Abdul Hamid (P. W. 9), the witnesses of the extra-judicial confes--sion. The former deposed that the appellant was his friend. On the day of occurrence, at 4-00/4-40 p. m. He was sitting in his baithak. The appellant came with a chhuri in his right hand and told him that he had commit--ted the murder of Nisar Ahmad. When Abdul Rashid and Abdul Hamid told him that he had not done well, he inflicted a chhuri blow on his left wrist and said that he was going to the Police Post to inform the Police that he had murdered Nisar Ahmad. Same is the statement of Abdul Hamid (P. W. 9).
8. We have examined the prosecution evidence per se as well as in juxtaposition with the statement of the appellant. He admitted to have used a knife in exercise of the right of his self- defence. It is, therefore, to be seen whether he has been able to establish this plea, if he has failed to do so in toto, yet if the story given by the appellant is probable or possible, still he will be entitled to its benefit.
Therefore, the only way to find out something in support of such plea, is the prosecution evidence.
We have examined the entire case from this angle. But we are of the view that there is nothing on the record in support of this plea. Our reasons for holding so are that the ocular evidence fully implicates the appellant and we do not agree with the learned counsel that the eye-witnesses were not present when the occur--rence took place.
However there is one important factor which needs minute examination and that is the injuries on the person of the appellant on which the learned counsel laid great stress. The appellant had one incised wound 1" x 1/4' muscle deep, two abrasions and one reddish purple bruise over the right cheek. Out of these four, the only important injury is the spindle shape incised wound. It was found to be simple and had been caused by a sharp-edged weapon. This injury as well as the three others could be caused by grappling.
9. The next point urged by the learned counsel was that the plea of the appellant was not an afterthought. This was the position taken by the appellant in the first available opportunity.
Reference was made in this connection to the evidence of Barkat Ali Head Constable (P. W. 6) who said that the appellant was coming to the Police Post Jalalpur Jattan and while he was at a distance of 20 yards, he was taken into custody. The appellant was thereafter produced before the S. H. O. Nevertheless, this witness further deposed that no report was lodged by the appellant about the occurrence.
We don't find much force in this point because had it been so, as stated by the appellant, then he would have left no stone unturned in taking all the necessary steps to bring this plea to the notice of the higher Police authorities.
10. Learned counsel pointed out minor contradictions in the state--ments of the eye-witnesses and submitted that they contradict each other with regard to the fact that which of them had gone to the hospital and who proceeded to the Police Station. This contention has no force be--cause the learned counsel at the same time submitted that investigation in this case had not been conducted in an- honest manner. Therefore, we don't think any importance can be attached to the testimony of the Investigating Officer on the point.
11. Age factor was also pressed into service because according to the learned counsel, at the time of occurrence the appellant was 17 and when the trial commenced he was 20. It was urged that it was established from the record that the deceased was of a strong built and in a situation like this, the only practical solution to save his life was to use force. The appellant did not exceed the right of private-defence.
12. We have taken all the relevant facts into consideration specially the plea of right of private defence and have examined the entire case in` juxtaposition with the statement of the appellant.
Certain facts are admitted both by the prosecution and the defence. For instance, the appellant purchased atta for which he had to pay Rs. 10 as the price. The appellant also admitted that the deceased did make a demand for the loan which led to exchange of hot words and grappling. It is from here onward that two versions start. No doubt, the onus is always on the prosecution to prove its case but when a specific plea is taken, the law imposes some duty as well on the accused to substantiate that plea, and to give as best an explanation as is possible in the circumstances or the case.
It is not the appellant's case that it was with the same chhuri which the deceased used on him with which he stabbed the deceased. On the other hand, without giving any explanation as to where did he get the n knife, the appellant stated that be inflicted injury with a knife. This; being the most important aspect it goes unexplained by the appellant and, therefore, casts serious doubt on his veracity. Hence we are of the view that there is no substance in the plea taken by the appellant which is, hereby rejected.
13. The case of the prosecution stands proved by the ocular testi--mony supported by the medical evidence and we, therefore, hold that the appellant has rightly been convicted under section 302, P.
P. C.
14. This leaves us to consider the question of quantum of sentence. It is in evidence that before the murder took place, some hot words were exchanged but there is no evidence to show as to what was actually said. Naturally the language must be offensive because it led to the grappling. Who took the initiative, the prosecution is silent on this point. Therefore, F its benefit must go to the appellant though not in the form of grave and sudden provocation but something short of that.
Hence be is entitled t reduction in the sentence.
15. Accordingly we commute the sentence of death awarded to the appellant to the imprisonment for life. We uphold the sentence of fine which shall be paid to the heirs of the deceased. The Collector concernee9 shall take necessary steps to recover the amount of fine.
16. The appeal and reference are disposed of accordingly.
Death sentence not confirmed.