ASLAM RIAZ HUSSAIN, J.-This judgment shall dispose of three appeals, i.e. Criminal Appeal No. 113/78 by Khuda Bakhsh, 114/78 by Iqbal and 115/78 by Elahi Bakhsh. All the three appeals were filed by the aforemen--tioned convicts through Jail and leave was granted to the appellants by this Court on 7-3-1978.
2. The occurrence in this case took place at about 4-30 p. m. On 17-8-1979 in Mohallah Kotla Khan Peshawar City wherein the three appellants of whom Khuda Bakhsh was armed with a chhuri while the other two were empty-banded, are alleged to have caused the death of Ghulam Farid and also caused simple injury with a knife to Altaf (P. W. 9). They were tried under section 302/324/34, P. P. C.
By the learned Sessions Judge, Peshawar, who by his judgment dated 14-3-1975, convicted all of them under sec--tions 302/34 and 324/34, P. P. C. Under the first mentioned offence the trial Court sentenced Khuda Bakhsh appellant to death, as he had given the solitary knife blow to the deceased and sentenced the remaining two appellants to transportation for life (the sentence should have been imprisonment for life because the Law Reforms Ordinance, 1972 had come into force when the offence in question was committed). On appeal the High Court maintained their conviction and sentence vide the impugned judgment dated 11-12-1975.
Feeling aggrieved the appellants filed separate appeals through Jail. As already mentioned leave was granted for reconsideration of their case.
3. The prosecution case made out at the trial was that on the night of occurrence at about 9-30 p. m. Muhammad Hanif (P. W. 8), Ghulam Farid (deceased) and Altaf Hussain (P. W. 9) were standing in the street in their Abduallah Muhammad Farid (P. W. 11), Azhar Abdullah (P. W. 10) and Inayat A.I (P. W. 12) were also standing at a distance of 2-3 paces from them. There was sufficient light as the shops close to the spot were open and electric bulb on the pole near the scene of occurrence was also on : that in the meantime Khuda Bakhsh, Elahi Bakhsh alias Muni and Iqbal alias Baley accused came there and asked Muhammad Hanif, Iltaf Hussain P.Ws. And the deceased as to "what did they say" but the witnesses and the deceased kept quiet that Elahi Bakhsh and Iqbal accused-appellant then caught hold of Ghulam Farid deceased and Khuda Bukhsh accused delivered a knife blow at the abdomen of deceased which fell on inguinal region, on receipt of the injury the deceased fell on the ground. Altaf Hussain P. W. Came forward to rescue him but the accused advanced towards him (Altaf Hussain P. W.) where--upon he started running. The accused, however, chased him and caused him an injury on the left thigh which was described by the doctor as an "abrasion 1/4` x 1/4'."
A cot was brought on which the injured Ghulam Farid was placed and taken to the Police Station where Muhammad Hanif (P. W. 8) lodged the F. I. R. Which was recorded by Mahboob A.I Khan ASI (P. W. 14).
The motive as alleged by the prosecution for the incident in question is that 2/5 days prior to the occurrence Ghulam Farid deceased had caught hold of a pigeon of Khuda Bakhsh appellant which he refused to return and there had been a quarrel between them over it.
The doctor who performed autopsy found a solitary knife injury on the dead body of the deceased which has been described as follows :- "Incised wound 2' x 1' in size in the left ingunial region about 4" lateral to the left public crest on external examination."
He also found the left femoral artery and vein injured.
After recording the FIR Mehboob A.I Khan ASI went to the spot and collected some blood-stained earth from there. He went to the houses of the accused but found them missing. They were finally arrested on different dates in the months of November and December, 1973. No incriminating recovery was made from them.
4. At the trial the prosecution relied mainly on the evidence of 5 eye--witnesses, namely, Muhammad Hanif (P. W. 8), Iltaf Hussain (P. W. 9), Azhar Abdullah (P. W. 10), Farid Khan (P. W. 11) and Inayat A.I (P. W. 12). Of these Muhammad Hanif is the brother of the deceased while the remaining four are not related to the deceased and are independent persons. It also relied on the medical evidence and the evidence of motive,
5. The accused denied their guilt and pleaded innocence and stated that they had not absconded but had gone to Karachi in connection with their work.
6. We have heard the learned counsel for the appellants and have gone through the entire record.
No doubt most of the eye-witnesses are independent persons and none of them had any motive to falsely involve the appellants. But what has attracted our attention is the statement of Muhammad Hanif complainant in the F. I. R. As well as the statements of the witnesses at the trial that when the deceased and the witnesses were standing in the street on the date and time of occurrence all the three accused came there, addressed the witnesses and said "what do you say", but the P. Ws. Kept quiet. It is rather odd that whereas the motive for the occurrence is stated to be that few days prior to the occurrence Ghulam Farid deceased caught a pigeon of Khuda Bakhsh appellant over which there had been a quarrel, yet when the accused came across the deceased and the P. Ws. In the street, they should have asked them as to "what they had to say". This sentence obviously indicates that the witnesses were saying something unpalatable about the accused-appellants which the latter resented. 7his view is borne out by the following statement in the cross-examination of Farid Khan (P. W. 11)
"The accused addressed only Ghulam Farid deceased as to what they had to say. I was examined by the C. M. On 8-4-1974. It is wrongly recorded in my C. M. Statement that the accused enquired from us that "whether we are saying something against them and we remained silent."
7. After giving our anxious consideration to the matter we are of the view that when the appellants met the deceased and the witnesses in the street and heard them seeking some comments against them. They resented the same and came forward to ask as to what they were saying against them. It is most likely that after the noted incident in the street, an altercation took place between Ghulam Farid deceased and Khuda Bakhsh appellant who had quarreled with each other earlier over a pigeon, and Khuda Bakhsh who was carrying a knife under his shirt suddenly whipped it out and aimed a blow at the deceased's abdomen, which, however, fell on his left inguinal region, cutting the femoral artary and vein, which resulted in his death. It is evident from the statement of the complainant himself that Khuda Bakhsh was carrying chhuri `under' his shirt which was thus, not visible. It cannot, therefore, be said with any certainly that two companions of Khuda Bakhsh (of whom Iqbal was only 14 years old boy at that time), had come to the spot with a premeditated intention to murder Ghulam Farid or that they even knew that Khuda Bakhsh appellant was carrying a chhuri under his shirt. They cannot, therefore, be burdened with `common intention' of committing the offences in question with Khuda Bakhsh appellant. As for the injury to Iltaf Hussain P. W. The mere fact that it was an abrasion and that too measuring only 1/4' x 1/4", shows that notwithstanding the doctor's opinion, it could not have been caused with a chhuri. We, therefore, feel that case against Elahi Bakhsh and Iqbal appellants is doubtful and they are entitled to acquittal of charges under sections 302/324/34, P. P. C.
Consequently we accept their appeals (Criminal Appeals Nos. 114/78 and 115/78) and acquit them.
They be set at liberty forthwith if not required in some other case.
8. With regard to Khuda Bakhsh appellant, as discussed above it appears that a sudden and unexpected quarrel took place between him and the deceased when he (Khuda Bakhsh) heard him (the deceased) saying some--thing nasty and unpalatable about Khuda Bakhsh when the latter was passing nearby and that in a fit of anger Khuda Bakhsh gave the solitary blow with his knife (the size of which has not been mentioned by the prosecution but it must be a smell one as the appellant was carrying it under his shirt). As such although the offence committed by him amounts to murder under section 302, P. P. C. Yet in the aforementioned circumstances it does not cal for capital sentence. There are a number of authorities by this Court that where the accused gives a single blow to the deceased in a sudden flare-up the lesser sentence is sufficient to meet the ends of justice.
We, therefore, reduce his sentence from death to that .Of imprisonment for life. However, after hearing the appellant's counsel on this aspect. We also sentence him to a fine of Rs. 30,000 under section 445, Cr. P. C. Additionally in default of payment of which be would undergo another 5 years'
R. I. We also fine him to pay Rs. 1,000 under section 544-A, Cr. P. C., in default of payment of which he shall suffer further R. I. For 6 months. The fine under both the aforementioned sections, if recovered, shall be paid to the heirs of the deceased.