MUHAMMAD MUNIR KHAN, J.-This Criminal Appeal No. 554 of 1980 and the connected Murder Reference No. 140, of 1980 arise from the; judgment of the learned Sessions Judge, Multan whereby, he, on 30th April, 1980 convicted Ghulam Hussain, appellant under section 302, P. P. C. For causing the death of Zafar Iqbal, aged 32 years and sentenced him to death and a fine of Rs. 5,000 or in default thereof to further R.I. For one year with the direction that the fine if realized be paid to the heirs of the deceased under section 544-A, Cr. P. C.
2. The occurrence took place on 26th April, 1979 at 3-30 p. m. At Hafiz Jamal Road, Moballah Awanpura of Police Station, Kup.
3. The F.I.R. Exh. P. D. Is the statement of Shabi-ul-Hassan P. W. 7 recorded at Police Post Daulatgate at 4 p.m. On the same day by S.-I. Allah Dad Khan P. W. 6, incharge of the police post. The distance between the place of occurrence and the police post is 1-- Furlongs. The formal F. I. R. Is Exh. P. D./1 recorded at the Police Station, Kup at 4-15 p. m. On the same day by Muhammad Kamil. Head Constable P. W.
4. The distance between the spot and the Police Station is four Furlongs.
4. Motive.-It is alleged that 10 minutes before the occurrence Zafar tolqbal deceased with Shabi-ul- Hassan P. W. 7, Khalid Hussain P. W.
8. Hussain Bakhsh P. W. 9, Aslam and Bashir (both not produced) were present at Hafiz Jamal Road to have a cold drink when Ghulam Hussain appellant arrived there and told the deceased that the deceased had gam--bled and that he - would get the deceased apprehended on that day. Zafar Iqbal, deceased got infuriated and slapped Ghulam Hussain. Shabi-ul. Hassan P. W. 7 and others separated both of them. The appellant Ghulam Hussain left the place declaring that he would soon teach the lesson.
5. Occurrence.-----After ten minutes, the appellant armed with a chhuri came to the spot and gave a chhuri blow on the right thigh of the deceased. The companions of the deceased apprehended deceased and snatched chhuri from his hand and in that process the hand of the appellant got injured. Aslam and Hussain Bakhsh carried Zafar Iqbal to Nishtar Hospital whereas, Shabi-ul-Hassan and others took the appellant to the Police Post. On reaching the Police Post Shabi-ul-Hassan made his statement Exh. P.D. Which was recorded by S. I. Allah Dad Khan P.W.6.
The appellant was produced before police.
6- Investigation.-The statement Exh. P. D, was sent to the Police Station, Kup for the registration of formal F.I.E.S.I. Allah Dad Khan P. W. 6, recorded the statement of Khalid Hussain and Bashir Ahmad P. Ws. Under section 161, Cr. P. C. At the Police Post. He arrested the appellant who was produced before him by Shabi-ul-Hassan and others. Shabi-ul-Hassan P. W. 7 produced before him blood- stained chhurri P. 4 which allegedly had been snatched from Ghulam Hussain appellant and the same was taken into possession vide memo. Exh. P. F. The appellant was wearing blood-stained chola P. 5 and blood-stained shalwar P. 6 which were got removed and taken into possession vide memo. Exh. P.G. Ghulam Hussain appellant was injured. His injury statement was prepared and he was sent for medical examination. From Police Post, S.-I. Allah Dad Khan P. W.
6. Reached Nishtar Hospital, Multan where, Zafar Iqbal deceased had already died. He prepared the injury statement Exh P. K. And inquest report Exh. P. B. And sent the dead body to the mortuary for post-mortem examination under the escort of Fateh Khan Constable P. W. 5.
7. Medical.-Dr. Imtiaz Ahmad Khan P. W. 1 conducted the post--mortem examination on the dead body of Zafar Iqbal deceased on 27th April, 1979 at 10-30 a. m. And found the following injury on his person :- An incised wound 3 cm x 1-- cm on the anterior of right thigh in upper part. On dissection Femoral Artery and Femoral vein were cut through and through under injury No. 1. Underneath muscles of the thigh were also cut. Clotted blood present underneath injury No. 1. Corresponding cut of injury No. 1 was present on the shirt and shalwar.
1n the opinion of the doctor the death had occurred due to haemorrh--age and shock resulting from injury No. 1 cutting the big blood vessels of the right thigh. The injury was ante-mortem caused by the sharp-edged weapon and sufficient to cause death in the ordinary course of nature.
The time between the injury and the death was within two hours while the time between death and post-mortem was within 24 hours. In cross-examination the doctor stated that the deceased might have taken his last meals two to four hours before his death. He could not say after how much time of the receipt of the injury the deceased would go unconscious. He stated that in the instant case it was not essential to occur unconsciousness after the receipt of injury. He further stated that as soon as the papers for the post-mortem examination of the deceased were banded over to him by the police he proceeded to the Nishtar Hospital mortuary for conducting post-- mortem examination.
8. In order to prove its case the prosecution examined as many as 10 witnesses.
P. W. 1, Dr. Imtiaz Ahmad Khan.-He conducted the post-mortem examination.
P. W. 2, Anwar-ul-Hassan.-He identified the dead body of the decea--sed at the time of post- mortem examination.
P. W. 3, Saeed Muhammad Draftsman.-He prepared the site plan at the pointation of the witnesses.
P. W. 4, Muhammad Kamil H.C.-He kept intact in the malkhana the parcels pertaining to the case and delivered the same to Fateh Khan Cons--table for onward transmission to the Chemical Examiner.
P. W. 5, Fateh Khan Constable.-He took the dead body to the mortu--ary for post-mortem examination and also took parcels to the Chemical Examiner.
P. W. 6,S. I. Allah Dad Khan.-He investigated the case.
P. W. 7, Shabi-ul-Hassan.-He is the complainant and an eye-witness of occurrence. He reiterated the version given by him in the F. I. R. And also supported the recoveries.
P. W. 8, Khalid Hussain.-He is an eye-witness of the occurrence. He supported the complainant and gave almost the same version as given by P. W.
7. He also supported the recoveries of blood- stained clothes and chhurri.
P. W. 9, Hussain Bakhsh.-He is an eye-witness of the occurrence. He has also supported the prosecution case.
P. W. 10, Dr. Allah Nawaz.-He examined Ghulam Hussain appellant on 26th April, 1979 and found the following injuries on his person :-
(1) An incised wound 9 cm. x -- cm. x muscle deep on the palmer side of right hand. The injury was horizontal in direction.
(2) Swelling on the upper lip.
(3) Complaining of pain in the body.
(4) An incised wound -- cm. x 1/6 cm x skin deep on the back of left ear.
Injury No. 1 was caused with sharp-edged weapon while the rest were blunt. All the injuries were declared simple in nature.
9. The accused' when examined under section 342, Cr. P. C. Denied all the incriminating circumstances. In answer to question No. 7, he replied as follows :- "Shabi-ul-Hassan, Khalid, Hussain, Muhammad Bashir and Hussain Bux belonged to the party of Zafar Iqbal deceased. Shabi-ul-Hassan was the relative of the deceased while Khalid Hussain P. W.
Was his neighbourer who resided at a distance of 3 miles from the place of occurrence.
Muhammad Bashir, Hussain Bux P. Ws. And Zafar Iqbal deceased were gamblers and known bad characters. Hussain Bux P. W. Used to run a gambling den. Few days prior to the occurrence I had informed the police about their said activities and a raid was conducted on the said gambling den when they were challaned. I had protested against the activities of the said persons in the company of certain Mohalladars. I requested the said persons in the presence of the said Mohalladars not to gamble and not to tease the women of the area bust I was beaten up.
On the day of occurrence Muhammad Bashir and Hussain Bux P Ws as well as Zafar Iqbal deceased were requested by me and the Mohalladars to stop their bad activities to the locality but they attacked me. I was made to fall on the ground and was beaten by WarIqbal deceased while he was armed with a knife along ha Hussain Bux P. W. Belaboured me. There was a mellee and in confusion somebody from the crowd injured Zafar Iqbal deceased. I being poor have been made a victim of the occurrence. The Medical Officer has given the minimum account of my injuries with-- out any justification. I was in such a bad state that the Jail Doctor had admitted me in the hospital for over a month where I was treated. Zafar Iqbal deceased was a habitual offender and used to stab the people by trespassing in their houses. He was a proclaimed offender in a hurt case."
The appellant produced three witnesses in his defence.
D. W. 1, Dr. Muhammad Hussain.-He brought the in-door Register of the District Jail Hospital pertaining to the period 14th Jaunary, 1978 to August, 1979.
D. W. 2, Dr. Riaz Din, Medical Officer.-He stated that Ghulam Hussain son of Ghulam Mustafa under- trial was admitted in the Jail Hospital on 27th April, 1979 for treatment for wound on his right hand and he was discharged as cured on 5th May, 1979. He was again admitted on 14th May, 1979 and was discharged on 17th May, 1979 as he developed a reaction during calcium injunction. In cross- examination he stated that only one injury was mentioned in his Register.
D. W. 3, Ata Ullah Khan A. S. I.-He stated that Zafar Iqbal deceased was an accused in a case under section 452/324, P. P. C. He could not be arrested as he was absconder. Since Zafar Iqbal has been murdered, the proceedings in the case under section 452/324, P. P. C. Against him were dropped.
10. The learned counsel for the appellant contends that the prosecu--tion has failed to prove its case beyond reasonable doubt inasmu ch as the witnesses belonged to the group of the deceased ; they were chance witness--ses, the inhabitants of the locality were not, produced and in any case the appellant having acted under the right f his self-defence had com--mitted no offence. On the other hand, the learned counsel appearing for the State assisted by the learned counsel for the complainant has seriously defended the impugned judgment. He stated that the prosecution has brought home the guilt to the appellant beyond shadow of doubt.
11. After hearing the learned counsel for the parties and going through the record and keeping in mind that it is for the prosecution to prove its case beyond reasonable doubt and if there be any genuine doubt the appellant must get its benefit as a matter of right and not as a matter of grace, we have appreciated the evidence and have come to the conclusion that the prosecution has proved beyond reasonable doubt that the deceased had died at the hands of appellants and none else for the follow--ing reasons :-
(i) The F. I. R. Is prompt and concrete.-The occurrence took place at 3-30 p.m. And the report was lodged at 4 p. m. The names of the appellant, the witnesses, the weapon of pffence and the fact that the appellant was apprehended on the spot are mentioned therein. The appellant has not been able to shake the F.I.R., therefore, it is case of prompt F. I. R.
(ii) Ocular Evidence.-We find that the eye-witnesses are not inimical. The occurrence having taken place on the road. The eye-witnesses being the passersby are the natural witnesses of the occurrence and cannot be termed as chance witnesses. They have stood the test of cross- examination. The fact that the appellant was apprehended at the spot and immediately thereafter, produced before the police also indicates that the eye-witnesses were present at the spot at the time of the occurrence. The mere fact that the witnesses belonged to the same group (as stated by the learned counsel) would not bring them in the category of interested witnesses, because the interested wit--nesses are those who have some motive to falsely implicate the accused. The defence has failed to prove the enmity of the witness--ses with the appellant. The learned counsel has also failed to point out any material contradiction or discrepancy in their statements. To us, their evidence is in consonance with the probability, materially fits in with the other evidence and inspires confidence.
(iii) Recovery.-The recovery of the- blood-stained clothes of the appel--lant and of chhurri P-4 also connect the accused with the commis--sion of the crime. The appellant has not denied his presence at the time of occurrence.
12. Now, we take up the defence plea. The learned counsel has vehemently argued that the appellant had acted under the right of self-defence. We have gone through the statement of the - appellant with care. We find that he has not specifically taken the plea of self-defence. He did not lead any evidence to prove his plea. We further find that his plea is not spelt out from the prosecution case or surrounding circumstances. The injury found on his person appears to have been received by him at the time when he was apprehended and the chhurri was snatched away from him.
13. Resultantly it is held that the appellant and none else has caused the injury on the body of the deceased as a result of which he died at 4 p. m. On the same day.
14. The learned counsel for the State has contended before us that the offence made out against the appellant is that of a murder. We are unable to accept this contention for the following reasons :--
(i) That there was no previous enmity between the parties. The occur--rence took place all of a sudden. To us, the incident appears to b of sudden affair and of one transaction. It appears that when the appellant saw the deceased on Hafiz Jamal Road, he threatened the deceased to get him apprehended for gambling. The deceased slap--ped him and at that time the appellant gave hem a chhurri blow. The story that the accused-appellant had gone to his house and after ten minutes returned with chhurri, the prosecution witnesses and the deceased remained there till his arrival and did not stop him while he was coming to attack appears to be improbable to this extent.
(ii) That he did not repeat the blow. Even according h the prosecution case the appellant had declared that he would be lesson meaning thereby a beating.
(iii) Did not resist his apprehension which is
(iv) Only one blow was given on the thigh of the deceased which is apparently not a vital part of the body. The blow, however, cut blood vessels and on dissection it was found that b Femoral Artery and Femoral vein were cut through and through Muhammad Feroze No. 1. It was observed in a case reported as v. Muhammad Arif and others 1976 SCMR 497 that "the blow happened, however to cut femoral artery and veins. The learned Judges of the High Court have rightly observed that the appellant as a layman could not be saddled with the knowledge of the different arteries and veins in the human body, and in support of their view they have relied upon the case of Public Prosecutor v. Ramaswa mi Nadan. In the case under report it was observed that an ordinary person may not be pursumed to know the precise location of the arteries in the human limbs. If a stab with a knife or a dagger aimed at an arm or a leg severs any artery and the injured man dies as a result, it might be quite reasonable to argue that the offence was not one of culpable homicide and that the assailant could only be presumed to have intended to cause hurt or grievous hurt with a dangerous weapon.
We are also of the same view. From the nature of the injury caused to the deceased it is legitimate to infer that it was a hurt which endan--gered the life of the victim. The doctor has opined that the deceased D had died as a result of shock and haemorrhage. In our opinion, therefore, the appellant had committed an offence punishable under section 326, P. P. C.
15. The upshot of the above discussion is that the decision of the learned Session Judge is modified as follows :- The conviction is altered to one under section 326, P. P. C. And the appellant is sentenced to 7 years'
R. I.
With this modification the appeal is partly accepted. The sentence of death is not confirmed.