' Ghulam Sabir was tried by an Additionel Sessions Judge of Sheikhupura under section 302, P. P. C.
For the murder of Sardar Muhammad, deceased. The learned trial Judge, by his judgment, dated 17th June, 1979, convicted Ghulam Sabir under section 302, P. P. C. And sentenced him to imprisonment for life with a fine of Rs, 10,000 or in default of payment of fine to further rigorous imprisonment for five years. The fine, if recovered was ordered to be paid to the legal heirs of the deceased. The sentence in lieu of non-payment of fine was ordered to run consecutively with the main sentence. The appeal (Criminal Appeal No, 873 of 1979) preferred by Ghulam Sabir convict against his conviction and sentence and the private revision (Criminal Revision No, 808 of' 1979) filed by Mst. Rashida Bibi for the enhancement of the sentence of the convict, are both now before me for disposal.
2. The occurrence is admitted by the appellant in his statement under section 342, Cr. P. C.
Recorded by the trial Judge. The only question that arises in the appeal is whether, after keeping in juxta-position the case of the prosecution and that of the defence, the evidence on record establishes the case of the prosecution beyond any shadow of doubt or leads to the inference that the defence of the appellant is true or reasonably probable.
3. I have heard the arguments of the learned counsel for the appellant, the complainant and the State and have also perused the record. The ocular account is furnished by Ghulam Yazdani P. W.
11, Muhammad Rafiq P. W. 12 and Allah Ditta P. W.
13. Ghulam Yazdani P. W. 11 is distantly related to Sardar Muhammad deceased ; the mother of Sardar Muhammad deceased being the sister of the grandfather of Ghulam Yazdani P. W.
11. Muhammad Rafiq P. W. 12 and Allah Data P. W. 13 are neither related to the deceased nor in any way inimical to the appellant. Muhammad Ibrahim and Muhammad Yasin (given up P. Ws.), who were brother and son respectively of Muhammad Rafiq and Sardar Muhammad, deceased, were given up as unnecessary by the prosecution. According to the ocular testimony, Ghulam Yazdani P.
W. 11, Allah Ditta P. W. 13 and Muhammad Ibrahim (given up P. W.) were present at the shop of Muhammad Rafiq P. W. 12 and were busy talking. Sardar Muhammad deceased, with a bundle of fodder on his head, followed by his son Mujahid Yasin (given up P. W), was passing by near the shop of Muhammad Rafiq P. W. 12, when Ghulam Sabir, appellant, confronted Sardar Muhammad, deceased, challenged him by stating that he would not spare him and immediately gave a dagger blow on his left arm pit. The bundle of fodder fell down from Sardar's head. Sardar deceased tried to run away towards his house, but Ghulam Sabir gave more dagger blows on his head, with the result that the deceased fell down. The witnesses went towards the deceased, whereupon the appellant decamped. The deceased died at the spot, after some attempt to put water in his mouth to make him revive, failed. According to the version of Ghulam Sabir appellant, as given by him in his statement at the trial, he was passing through the street in front of the houses of Sadhu Masih and Abdul Rahman, when Sardar Muhammad deceased confronted him and then exchanged abuses, whereupon the deceased, who was carrying a Danda, attacked him and felled him. The appellant grappled with the deceased for some time and when the deceased was going to throttle him, in the exercise of his right of private defence, he gave injuries to the deceased in order to save his life. None of the eye-witnesses either in their statements recorded by the Police or that recorded by the trial Judge explained the injuries on Ghulam Sabir appellant. According to the prosecution, the appellant was arrested on 30th September, 1977 and produced before Dr. Iftikhar Ahmad Qureshi P. W. 8 for medical examination the next day on 1st October, 1977 at 10-00 a. m. The doctor found the following injuries on his person :-
(1) Bruise 1" x 1" over left forehead above left eye-brow.
(2) Bruise 1" x 1/3" over left forehead above the injury No, 1.
(3) Contused wound 1" x 1" x skin deep over front tip of left ring finger.
(4) Bruise 4" x 1" over back of left elbow.
(5) Three small bruises /" x I" over back of left hand.
(6) Two bruises 1 x 1" over inner side of right elbow.
(7) Seven bruises of various sizes over back of right elbow.
' According to the doctor, all the injuries were simple and caused by blunt weapon within three days of the medical examination Ghulam Yazdani P. W. 11 in cross-examination denied, that the deceased and the appellant had grappled or that the deceased had given any injury to the appellant. He denied the defence version, when put to him in detail. He could not say whether Muhammad Shafi Lohar, Sardar Muhammad Arain and Sadhu Isai had joined the Police investigation or not. He admitted that the appellant was arrested on the day of occurrence, but stated that he did not know whether the appellant was injured at the time of arrest or not.
Muhammad Rafiq P. W. 12, in cross-examination, denied that the deceased and the appellant had grappled with each other. He also denied the defence version, when put to him in detail. Allah Ditta P. W. 13 could not say anything about the altercation, if any, between the appellant and the deceased. He denied that the two had grappled with each other. He denied the defence version.
However, what stands out a mile apart is that Ghulam Sabir, appellant, who was arrested op 30th September, 1977 and medically examined on 1st October, 1977, did have one contused wound and fifteen bruises on various parts of his body (particularly the left forehead and on the back and outer sides of both the left and right elbows and hands), which the doctor found to have been inflicted within a duration of three days. It is the case of the complainant that Ghulam Sabir appellant had voluntarily caused the said injuries to be inflicted on him, after he had escaped arrest, in order to make a plea of defence and that, therefore, no weight should be given to the existence of the said injuries and the statements of the witnesses who were disinterested, should be accepted implicitly. In the first instance, one cannot lose sight of the fact that Ghulam Yazdani P.
W. 11 clearly admitted in cross-examination that the appellant was arrested on the day of occurrence. Muhammad Ashraf S.-I. P. W. 14, in cross-examination, admitted that he had not interrogated the witnesses about the injuries on the appellant because the complainant had already explained the same in the F. I. R. The F. I. R. Exh. P. C./1 does not refer to the injuries. This unconscious admission clearly shows that when the F. I. R. Was recorded, the Police Officer did know that the appellant had been injured. The injuries on the person of the appellant are not those which give the indication that they were caused later by a friendly hands in order to create defence. If such injuries were caused with that object, they would have been on various parts of the body. But the injuries on the person of the appeal ant are primarily on the back and outer side of both the elbows and the left hand, apart from two injuries on the forehead. The injuries on the appellant clearly show that he tried to ward off with his hands the injuries being inflicted on him.
The appellant was examined three days later and a large number of injuries which would have been observed as contusions, had the appellant been examined on the day of incident, were observed as bruises. It is not the prosecution case that the injuries were caused by a friendly hand.
If that was their cases, the Investigating Office would have secured an opinion from Dr. Iftikhar Ahmad Qureshi P. W. 8 as to whether they were so and whether they had been inflicted after the incident. The very fact that the Investigating Officer did not put these queries to the doctor, clearly shows that he was aware that the appellant had been injured in the incident. If the Investigating Officer was certain that the injuries on the appellant were not suffered in the same incident which led to Sardar deceased's death, his subconscious mind would have immediately revolted on seeing the appellant appear with injuries on his person and he would have immediately put a number of questions to the doctor in that direction. The fact that his subconscious mind did not act in that direction clearly shows that he was aware of the fact that the appellant had substained the injuries in the same incident in which the deceased had met his death. It is, therefore, clear from the evidence on record and the surrounding circumstances that the appellant had sustained the injuries on his person distinctly in the same occurrence in which the deceased was fatally stabbed.
According to the appellant's own version, the deceased confronted him in the street and they exchanged abuses, whereupon the deceased, who was carrying a danda, attacked him, whereafter they grappled with each other and he was felled to the ground. This submission has a ring of truth. The deceased was coming with fodder on his head. He had no motive to make any murderous attack on the appellant. The injuries on the person of the appellant, clearly belie any inference that he was the first to launch the murderous attack on the deceased. Had he done so, as alleged, he would not have received any injuries from the deceased, because the deceased after three knife injuries, would not have been able to retaliate back at all. The case, therefore, appears to be one of sudden fight. The injuries on the appellant appear to be of a nature which can be caused with a dang. The appellant had a sharp-edged weapon with him, which is not denied, though the appellant does deny the recovery of dagger P.
3. It appears that in the sudden fight that took place the deceased used a clang and the appellant a sharp-edged weapon. Both were evenly matched, though the deceased came out worker in the attack. The offence committed is, therefore, not one under section 302, P. P. C. But that under section 304-1, P. P. C. The conviction of the appellant, therefore, is altered from one under section 302, P. P. C. To that under section 304-1, P. P. C. And his sentepce is reduced to ten years' rigorous imprisonment with a fine of Rupees five thousand (Rs, 5,000) or in default of payment of fine to further one year's rigorous imprisonment. The fine, if recovered, shall be paid to the legal heirs of Sardar Muhammad deceased. In view of section 382-B, Cr. P. C., the period of detention undergone by the appellant as an undertrial prisoner shall be treated as period of detention undergone by him as a convict.
4. This appeal, therefore, stands partly accepted in terms of alteration of conviction and reduction of sentence, as stated above.
5. The revision petition (Criminal Revision. No, 808 of 1979) filed by Rashida Bibi for the enhancement of sentence of the appellant has no merit and is dismissed.