MUHAMMAD AFZAL CHEEMA, J.-Muhammad Yasin (32) was tried and convicted by the Sessions Judge, Gujranwala, for having committed the murder of Shaukat Ali deceased on the 8th of July 1967, at 8 p.m. Near the G. T. Bus Stand, Gujranwala town and was awarded capital punishment. He has appealed against his conviction and sentence and we have also before us his case under section 374, Cr. P. C. For the -confirmation of the death sentence. This judgment will dispose of the Criminal appeal as well as the Murder Reference.
2. The simple facts of the prosecution case are that the appellant, who sold water-melons, had borrowed a sum of Rs. 50 from Shaukat Ali deceased. He promised to pay back the amount within fifteen days, which, however, was not done. On the 8th of July 1967, the day of occurrence, Shaukat Ali deceased: accom--panied by his brother Muhammad Ishaq P. W. 10 met the appellant near the bus stand close to the G. T. Road, where he sold water-melons, and demanded the money from him. He promised to make payment at 8 p.m. The to brothers again visited him at 8 p.m. But this the he flatly refused and hurled abuses at them. The deceased remonstrated with him that instead of making the payment, he was also hurling abuses at them. At this the appellant picked up chhuri P. 2, lying there and after inflicting several blows on the deceased tried to run away from the spot towards the bus stand. He was chased by Muhammad Ishaq complainant P. W. 10 ; Muhammad Nazir P. W. 8, and Abdur Rehman, P. W. 9, but succeeded in making good his escape. Chhuri P. 2, which he later admitted to be his, was picked up by Muhammad Afzal Shah P. W. 7, at a short distance from the spot who also saw the appellant running away. The deceased was immediately placed in a bus for being removed to the District Headquarters Hospital, Gujranwala, but expired on the way. On receipt of a telephonic message from the Hospital, Muhammad Sharif A. S. I., Police Post, Civil Lines, P. W. 4, informed Rana Ali Hasan, S. H. O., City Police, Station, Gujran--wala, P. W. 11, on the telephone about the occurrence, who immediately, reached the Hospital where Muhammad Ishaq ; complainant made statement Exh. P. D. Before him at about 9-20 p.m. On the basis of which the case was formally registered at 9-35 p.m. Vide F. I. R. Exh. P. D./1. The S. I. Prepared injury statement of the deceased Exh. P. H. Inquest report Exh. P. H./1 and leaving the dead body in the custody of F. C. Muhammad Ijaz P. W. 2, himself went to the place of occurrence, reaching there around 10 p.m. It was there that Muhammad Afzal Shah P. W. 7 produced blood-stained chhuri P. 2 before him which was taken into possession vide memo. Exh. P. E. Attested by Muhammad Nazir and Abdur Rahman P. Ws. Besides Muhammad Afzal Shah. It may be mentioned in this context that the blood-stained chhuri and the blood-stained earth, recovered from the spot vide memo. Exh. P.
F. Were found to be stained with blood vide Chemical Examiner's report Exh. P. J. But on being sent to the Serologist, the blood on the earth was found to be of human origin whereas the nature of the blood on the chhuri could not be determined owing to its disintegration. The Sub-Inspector recorded the statements of the P. Ws., got prepared site plan Exh. P. C. But could not trace the appellant who had absconded. It was not till the 5th of August 1967, that Muhammad Islam, H. C.
Police Post Civil Lines P. W. 6 while on patrol duty succeeded in arresting the appellant near Dinga Railway Crossing on the G. T. Road.
3. Post-mortem examination was conducted by Dr. Imtiaz Ali Cheema, Medical Officer; District Headquarters Hospital, Gujran--wala, on 9-7-1967, at 9 a.m. Vide his post-mortem examination report Exh. P. G. He found it to be a body of a well built person with the following injuries :-
(I) An oblique incised wound 3" x I" x going deep on the right side of chest --" below the right arm pit.
(2) An oblique incised wound 1" x --" going deep into abdominal cavity on the left abdomen 5" outer to left urnblicus omentum is coming out of wound.
(3) An ablique incised wound 1" x 3/8" x --" (depth oblique direction) on the left abdomen on the lower rib margin 5--" from the umblicus at 1 o'clock position.
(4) Oblique stab wound 1" x --" x --" just below the left arm pit.
(5) Vertical incised wound 2" x --" x 1" on the left upper arm, upper 1/3rd inner side, starting from the left arm pit and extend--ing into the arm.
(6) Oblique stab wound 1--" x --" x --" on the left upper arm middle third outer side.
(7) Abrasion --" x --" on the right forehead.
Injuries Nos. 1 to 6 were caused with a sharp-edged weapon while injury No. 7 was caused with a blunt weapon. Lower lobe of the right lung was cut through and through. Right plural cavity contained to pounds of partly clotted blood. Diaphragm and the greater lobe of the liver were cut.
Death in the opinion of the doctor was due to injury No. 1 which had perforated the right lung lower lobe through and through piercing the diaphragm and liver. It was sufficient in the ordinary course of nature to cause death.
4. The prosecution case rested on the testimony of three eye-witnesses, namely Muhammad Nazir Beg P. W. 8, Abdur Rahman P. W. 9 and Muhammad Ishaq P. W. 10, besides that of Muhammad Afzal Shah P. W. 7 who produced the blood-stained chhuri and also claimed to have seen the appellant running away from the spot. The position taken up, by the appellant before the Committing Magistrate was one of' denial simpliciter where he denied that chhuri P. 2 belonged to him and gave no reason why the case has been brought against him. But, at the trial, he raised a specific plea of self-defence, which simplified the matter, bringing the discussion into a much narrow compass. He admitted that chhuri P. 2 belonged to him, denied that he had been arrested by Muhammad Islam, H. C. And stated that he had voluntarily appeared before the police. For a proper appreciation of the position, the appellant's version may better be reproduced in his own words :- "Shaukat deceased was a `badmash' of my Ilaqa. He owed me Rs.
20. I asked for the money back.
He told me that no one can dare to get any money back from me. I told him that he should return the money back to me because the money belonged to a widow Shaukat was purchasing mangoes from a nearby shop I told him that instead of purchasing mangoes, he should pay up the debt. Shaukat thereafter left after purchasing mangoes. I thereafter asked his brother Ismail that Shaukat should pay up the debt. He told me that they were also fed up with him, and had no control over. Him. On the day of the incident, Shaukat again came near my shop. When he was on the road, I again demanded money from him. He struck his head against my mouth, which broke my teeth. He had also abused me earlier. I fell down. Abdur Rahman P. W. Caught hold of my arms from behind. Shaukat pressed my knees with my body and was hitting me. The 'chhuri P. 2, which was stuck in my `dab' hit me in the thigh. I pulled it out, and it gave me a scratch on my thigh. I gave a 'chhuri' blow to Shaukat in my defence and thus released myself and ran away, leaving behind the 'chhuri'. I had a poor neighbour, who was sick. When I came from Lahore three years ago, my sick neighbour asked me to introduce him to such a fellow who could arrange to get back his debt of Rs. 500 which he had advanced to some one. I introduced him to Shaukat. Shaukat told him that it was an ordinary thing and he would get back the money, because he could not be a bigger badmash than Shaukat. Shaukat asked my sick neighbour to advance Rs. 50 as he would spend this money for the S. I and the S.. P. Upon this, the old sick man brought Rs. 20 from his sister and gave it to Shaukat. The old sick man died, but his widow is alive. I used to demand these Rs. 20 from Shaukat because this money belonged to the widow of the sick man.
I attacked Shaukat 'badmash' in my defence. I am innocent."
5. The sole question that falls for determination in the case is whether something could be spelt out from the record in favour of the appellant's plea of self-defence. In the first instance, it, may be observed that the assertion that the deceased owed Rs. 20 the appellant clearly suffers from vagueness for the reason it the particulars of the sick neighbour; who sought the good fices of the appellant in the matter of the recovery of his debt of Rs. 500 remained undisclosed. In order to meet the alleged demand of Rs. 50 of the deceased, the unknown sick nighbour is stated to have borrowed Rs. 20 from his sister, no equally remains obscure. In support of this version, no evidence was led in defence. Another relevant con--sideration is the conspicuous-absence of any suggestion in regard to the plea of defence to Abdur Rahman P. W. 9, whose presence was admitted by the appellant himself. No doubt it was suggested to Ali Hasan Sub-Inspector that he deliberately avoided to show the arrest of the appellant as he had injuries on his person and was sent to jail after the injuries were healed, but this, in our opinion, is not helpful to the appellant.
Firstly, it would be difficult to believe that despite having arrested the accused in a case of murder, the Investigating Officer would not send him to jail only to wait for the healing of the injuries not caused by himself. Again, it was open to the appellant to have brought the alleged fact to the notice of the Inquiry Magistrate when he was produced before him, which he never did even sub-- sequently. It was equally open to him to have sent some kind of representation from the jail of which there is no indication either. Furthermore, the fact of his having been hit by the deceased resulting in the loss of to teeth or of having sustained an injury with his own chhuri during the scuffle was not mentioned by him before the committing Magistrate in his examination under section 342, Cr. P. C. On the contrary, the appellant has been rather blowing loot and cold as would appear from the suggestion made by his counsel to Muhammad Ishaq complainant at the trial. It was put to this witness that his brother, Shaukat deceased, had gone to the stall of the appellant where a dispute arose at the price of a water-melon and the deceased gave blows to the appellant which resulted in the loss of his to front teeth. It was further suggested that the deceased had given a knife blow to the appellant hitting him on the leg. This would clearly show that the appellant had been changing ground as to the origin of the dispute and the way he was injured, if at all.
6. On the other hand, having carefully considered the pro--secution version, we find that even if we exclude the statement of Muhammad Afzal Shah, with which we are not impressed, the account given by the other witnesses, namely, Muhammad Ishaq, Muhammad Nazir and Abdur Rahman, is quite consistent and natural which we see no reason to disbelieve. A couple of minor discrepancies as to the precise the by the watch when Muhammad Nazir and Abdur Rahman P. Ws. Met at the house of the former or the duration of their stay together, to which our attention was drawn by the learned counsel, would be wholly immaterial. Abdur Rehman's presence was admitted by the appellant himself. Thus, in view of direct ocular evidence available in the case, supported by the medical evidence, coupled with the recovery of blood-stained chhuri P. 2 and corroborated by the fact of the appellant's abscondence for about a month was, in our view, rightly considered to be sufficient to bring home the offence to the appellant under section 302, P. P. C. We are satisfied that the defence version was discredited by the learned Sessions Judge, for good reasons. We accordingly maintain the conviction.
7. In the circumstances, of the case, the question of sentence however, deserves consideration.
Whatever might have been the origin of the quarrel between the deceased and the appellant, we are satisfied that the assault by the appellant must have been preceded by exchange of hot words and abuses, as was suggested in cross-examination to Muhammad Ishaq complainant. It does not stand to reason that merely on a demand by the deceased of the repayment of loan, the appellant straightaway started giving him blows causing him as many as seven injuries. It can be appreciated that the chhuri had not been specifically taken by the appellant on the particular occasion indicating preparation, but would be normally available with a person selling water- melons. It was admitted by Muhammad Nazir P. W. Before the committing Magistrate that the deceased and the accused exchanged ho words and the chhuri, was lying on the ground at that the. Obviously, therefore, it was a case of a sudden quarrel ; but in view of the nature and number of injuries, the intention of causing bodily injuries likely to cause death, within the knowledge of the appellant of which injury No. 1 was sufficient in the ordinary course of nature to cause death, can be clearly spelt out. The case, though clearly taken out of the purview of Exception No. 4 to section 302, P. P. C. Would, nevertheless, justify the lesser sentence of transportation for life Sikandar v. The State (PLD 1966 SC 555) may be cited as an authority in point.
8. The upshot of the discussion, therefore, is that while maintaining the conviction under section 302, P. P. C. We alter the sentence, of death, which is not confirmed, to one of transportation for life.