KHALILUR RAHMAN KHAN, J.-The appellants, Zulfiqar Ali (aged 21) and his brother Iftikhar Ali (aged 16) were tried for having intentionally caused the death of Muhammad Sarwar their neighbour, and were convict--ed by the learned Sessions Judge, Gujranwala under section 302/34, P. P. C. Vide judgment dated 16th May, 1979. Zulfiqar Ali was sentenced to death and to pay a fine of Rs. 2,000 ; or in default, to further undergo one year's R. I. Iftikhar Ali was awarded imprisonment for life and a tine of Rs. 2,000 or in default, to suffer one year's R. I.
2. The prosecution version, narrated in the F. I. R., was that Muhammad Ehsan, P. W. And his nephew Muhammad Sarwar (deceased) used to sell fruit on a Rehri near Sheikhupura More of Grand Trunk Road, Gujranwala. On 26th September, 1978 at about 11-00 a. m. Children of the deceased and a brother of the appellants happened to quarrel with each other while playing. Even prior to this, the children used to quarrel and because of the quarrels Zulfiqar Ali appellant, got annoyed and he had one or twice asked the deceased to restrain his children otherwise he would have to pay for it and would be murdered. It was further alleged that on 25th September, 1978 at about Peshiwela, Muhammad Ehsan complainant went to the house of the deceased to get money from him. He was present in his house. In the meantime, Zulfiqar Ali appellant armed with chhuri accompanied by Iftikhar Ali appellant came in front of the house of the deceased and called him out. In response to the call as soon as the deceased stepped out of the outer gate, Zulfiqar Ali asked Iftikhar Ali to secure the deceased as he would not be left alive. On this, Iftikhar Ali held Muhammad Sarwar in his clasp from behind and Zulfiqar Ali gave chhuri blow to him on the right side of the abdomen. The second blow given by Zulfiqar Ali, appellant landed on 'the right side of the back of the deceased who started bleeding profusely and his intestines were protruding. The incident was stated to have been witnessed by Habib Ullah and Muhammad Salim besides Muhammad Ehsan, the complainant. The injured was removed to Civil Hospital, Gujranwala where he was medically examined. Muhammad Ehsan P. W., after taking the medico-legal report from the Doctor, proceeded towards the police station to lodge a report but near the gate of the Hospital, he came across Ali Muhammad, A. S. I. To whom he submitted the medico-legal report and informed him about the incident. The A. S. I. Accompanied by Muhammad Ehsan P. W. Went to the Hospital and inquired from the Doctor about the fitness of the injured to make a statement and when the Doctor opined in the negative, he recorded Fard Bayan Exh. P. C. Of Muhammad Ehsan P. W. On the basis of which formal F. I. R. Exh. P. C./I was registered at 4-30 p. m. The A. S. I. Then went to the spot, wherefrom he collected blood-stained earth by pulling out a brickbat from underneath the thresh - -hold of the outer door of the house of Muhammad Samar (deceased) and sealed it vide Memo.
Exh. P. 1 in the presence of Habib Ullah P. W. And Muhammad Salim (given up P. W.). Shalwar P. I , Shirt P. 2 and Vest P. 3, clothes of the injured were taken into possession by the Investigating Officer vide Memo. Exh. P. B. On 26th September, 1978 he received the information of death of Muhammad Sarwar and thereafter went to the Hospital where he prepared the injury statement and Inquest Report. Post--mortem examination was conducted on the dead body of the deceased by Dr. Harbans Lai P. W. On 26th September, 1978 at 2-30 p. m. And found the following injuries : -
(1) One stitched wound 2" long on the front of abdomen, on the right side 3" from and above the umblicus.
(2) Incised wound ----- x ----- x going deep on the back in the right lumbar area, 4" from the vertebral column, corresponding to injury No. 1.
3. The investigation was taken up by S. I. Shahid Farooq, on 26th September, 1978 and the appellants were arrested on 28th September, 1978, when they were produced before him by one Mansab Dar son of Abdul Rehmon. On Interrogation, Zulfiqar Ali allegedly offered to get recovered the weapon of offence and leading the Police party to his house gut recovered blood-stained chhuri P. 4 from behind a box lying in a small room of his house.
4. The prosecution, at trial, relied on the ocular account of Muhammad Ehsan and Habib Ullah, the eye-witnesses, the medical evi--dence contained in the statement of Dr. Ashfaq Ahmad, P. W. Who had medically examined the deceased in the injured condition and Dr. Harbans Lai, P. W. Who had conducted post-mortem examination and the evidence of recovery. As against this, Zulfiqar Ali, appellant in his statement under section 342, Cr. P. C. Took the plea that he was not present at the time of incident and that he was innocent while Iftikhar Ali appellant, stated that he was arrested on 25th September, 1978 when he produced blood-stained Chhuri P. 4 before the Police which was subsequently planted on his brother Zulfiqar Ali, appellant. In reply to the question as to why this case against him, he answered as under :- "On the day of occurrence at about 1.00 p. m. I was sleeping in my house. I heard the noise of a quarrel between the children. I went out and saw that my younger brother and sister were quarrelling with two childern of the deceased. Meanwhile Sarwar deceased also came out. My mother also came out of her house and she asked Sar--war deceased as to why he was slapping my younger brother and sister. Thereupon he started slapping my mother as well. I went inside my house and brought Chhuri P. 4 and I gave a Chhuri blow in the abdomen of Sarwar deceased which pierced through and through. Thereafter he walked upto the tharra in front of his house and sat there. My brother Zulfiqar Ali was not present there. I am 16 years old."
The appellants, however, produced no evidence in defence.
5. The learned counsel for the appellants, argued that neither Muhammad Ehsan nor Habib Ullah P.
Ws. Had seen the occurrence and they were cited as eye-witnesses merely because the former was a near relation while the latter was a partner in business of the deceased. It was further contended that, in view of material contradictions bet--ween the statements of eye-witnesses recorded during the trial and those made to the Police, tainted testimony of interested witnesses cannot be relied upon for basing conviction. In the alternative it was argued that Iftikhar Ali appellant acting under grave and sudden provocation gave chhuri blow to the deceased and in any case he is entitled to the benefit of Exceptions Nos. I and 2 to section 100, P. P. C. Learned counsel for the State conceded before us that, in view of the discrepancies and contradictions pointed out, it is apparent that the witnesses had not seen the occurrence and in the circumstances the appel--lants according to his view are entitled to acquittal.
6. We have gone through the entire evidence with the assistance of the learned counsel for the parties and have also considered the argu--ments addressed. We agree with the learned counsel to the extent that the claim of the eye-witnesses to have seen the occurrence cannot be accepted.
Muhammad Ehsan P. W. Claimed to have seen the occurrence, when a person having business dealings with him, came from the fruit market and demanded some money from him. As the witness had no money at that time, he left his Rehri and came to the house of the deceased in order to bring money for the aforesaid person. When he reached the house and was talking with the deceased, in response to the call made from outside Muhammad Sarwar went out of the house and was fatally injured. The reason for the presence of Muhammad Ehsan at the time of occurrence was the visit of a person from the fruit market for taking money, but Muhammad Ehsan was not able to tell as to who that person was, who came to him for the money and how much amount was demanded from him by that person. Moreover, entire version of a visit by a person from the fruit market and the demand made by him and then the visit of Muhammad Ehsan P. W.
To the house of the deceased to get the money was not mentioned by the witness in his statement before the Police. It will be seen that if this version is not believed, then there was no reason for Muhammad Ehsan to go to the house of the deceased and, therefore, his claim that the occurrence took place in his presence becomes highly doubtful. More--over, Muhammad Ehsan P.
W. Claimed that he carried the deceased in injured condition to the Hospital, but in the medico- legal report Exh. PD of Dr. Ashfaq Ahmad (P. W. 5), Muhammad Ehsan P. W. Was not mentioned as the person who brought the injured to the Hospital. Likewise, Habib Ullah the other eye-witness who is a business partner of the deceased; stated that he had .Run away immediately after the incident and nobody picked up the deceased in his presence. He claimed to have seen the occurrence standing near the corner of the street for about 3 minutes only Habib Ullah P. W. Further stated that he was going to the market for purchasing vegetable and when he reached near the corner of Gali Ismailwali where he resides, he heard Zulfiqar Ali appellant calling upon his brother Iftikhar Ali appellant to catch hold of the deceased and acting under this direction, Iftikhar Ali appellant took Muhammad Sarwar in his clasp from behind and Zulfiqar Ali appellant caused injuries to the deceased. However, in cross-examination, he was con--fronted with his statement before the Police Exh. D, B. Where it was re--corded that be and Muhammad Salim (given up P. W.) were going to the house of the deceased in connection with fruit business. The reason because of which he happened to be near the scene of occurrence was changed. Even the conduct exhibited by running away from the scene when a business partner was fatally injured does not inspire confidence. Moreover, both the eye-witnesses stated that Zulfiqar Ali appellant gave two blows. ; one in the abdomen and the other on the back of the deceased, but according to Dr. Harbans Lal, P. W . Injury No. I corresponded with injury No. 2. The Doctor, in cross-examination, stated that be bad written in the post-mortem report that injury No. I corresponded with injury No. 2 as he bad actually probed those injuries at the time of post-mortem. From this it can safely be concluded that one blow was given in the abdomen with chhuri which pierced through and through causing an exit wound towards the back of the deceased. The version of the eye-witnesses that two chhuri blows were given by Zulfiqar appellant, therefore, stands contradicted.
7. In view of above, the claim of both the eye-witnesses that they had seen the occurrence, cannot be accepted. We, therefore, have no alternative but to discard the testimony of the eye-witnesses and; in _A these circumstances, we have to accept in toto the appellants' version given in their statements under section 342, Cr. P. C. Zulfiquar Ali appel--lant, pleaded that he was not present, whereas Iftikhar Ali appellant pleaded that on hearing the noise of a quarrel between the children he went out and saw that his younger brother and sister were quarrelling with two children of the deceased. Meanwhile the deceased as well as the appellants' mother also came out of their respective houses and his mother asked the deceased as to why he was slapping the appellants' younger brother and sister. Thereupon the deceased started slapping his mother. On seeing this, he went inside the house, and brought a chhuri P. 4 and gave a chhuri blow in the abdomen of the deceased.
8. It is well established that in a case where the ocular account of the eye-witnesses is totally discarded, the version of the defence in toto is to be believed. Following this principle we have now to determine as to whether any offence is made out from the version pleaded by Iftikhar Ali appellant. Learned counsel for the appellants argued that both the appellants were entitled to acquittal as Zulfiqar Ali was not pre--sent and Iftikhar Ali gave, a single blow acting under grave and sudden provocation. He also argued that the case of Iftikhar Ali appellant falls under Exceptions Nos. 1 and 2 to section 100, P. P. C. As the single injury was caused in defence of the person of the mother of the appellants. The plea that Iftikhar Ali appellant's case would fall under Exceptions to H section 100, P. P. C. Is not tenable. The mother was admittedly given slaps only and, in these circumstances, it cannot be suggested that the assault made, could reasonably cause the apprehension that death or grievous hurt will be the consequence of the slaps being given. On the basis of the statement made, the offence under section 304; Part 1, P.P.C. Is clearly made out. We, therefore, alter the conviction of Iftikhar Ali appellant from section 302, P.P.C. To section 304, Part 1, P.P.C. And sentence him to life imprisonment and a fine of Rs. 10,000. The fine on realisation shall be paid to the heirs of the deceased. It may be added that the sentence of fine has been enhanced after notice to the learned counsel for the appellants and after hearing him on this aspect of the case. Iftikhar Ali, appellant shall also be entitled to the bene--fit under section 382-B, Cr. P. C. Of the period during which he re--mained in jail before conviction. With alteration to the above extent, his appeal is dismissed.
9. As the prosecution has failed to prove the charge against Zulfi--qar Ali appellant, his appeal is accepted, the conviction and sen--tence of death is set aside and he is acquitted. By short order, he has already been directed to be released forthwith, if not required in ally other case.