1. M. R. KHAN, J.-This appeal, by special leave, is directed against the judgment and order of the High Court of West Pakistan, Lahore, by which the Death Reference No. 48 of 1968 was accepted and the sentence of death imposed on the appellant was confirmed and his Criminal Appeal No. 105 of 1968 was dismissed.
2. The prosecution case was that Ghulam Sarwar, deceased was a witness in a criminal case under section 307 of the Pakistan Penal Code against the appellant's two friends Mushtaq and Iftikhar.
3. The appellant had threatened the deceased two days before the occurrence and lastly in the evening of the 12th March 1967, not to depose against his friends in the said criminal case. On the 13th March 1967, at about 6 a.m., Ghulam Sarwar, deceased, who was working as a railway cooly, set out from his house for his work, accompanied by his brother Ghulam Rasul (P. W. 14) who had to go to the fruit market. As they reached Kucha Nasrullah Khan, the appellant emerged from his nearby house with a dang in his hand, confronted Ghulam Sarwar and enquired of him if he would still' be deposing against his friends in the criminal case. To this, Ghulam Sarwar replied that he would depose in that case and tell the truth. There upon, the appellant hit Ghulam Sarwar with the dang on his head. Ghulam Sarwar fell down on the receipt of the Bang blow. As Ghulam Rasul tried to intervene, the appellant gave him also a dang blow on his shoulder. The appellant gave then another dang blow to Ghulam Sarwar after he had fallen down. Muhammad Saeed (P. W. 15) and Muhammad Nazir (P. W. 16) tried to rescue Ghulam Sarwar, but the appellant gave a dang blow to Muhammad Saeed which hit his face. Thereafter the appellant made good his escape. The injured Ghulam Sarwar was taken by his brother P. W. Ghulam Rasul to the Mayo Hospital in a tonga.
4. Ghulam Sarwar, however, expired there at about 2 p.m. The same day.
5. On receiving a telephonic message from the casualty ward of the Mayo Hospital, the police arrived there at about 9 a.m. On the date of the occurrence and the Sub-Inspector Muhammad Rafiq recorded the statement of P. W. Ghulam Rasul on the basis of which the formal F. I. R. Was later recorded. P. Ws. Ghulam Rasul and Muhammad Saeed, who had received dang blows, were got medically examined the same day. The police sent the dead body of Ghulam Sarwar for post- mortem examina--tion which was performed on the 14th March 1967 by Dr. Muhammad Khalid Chowdhury (P. W. 1).
6. The appellant was committed to the Court of Session to stand his trial for an offence under section 302 of the Pakistan Penal Code. At the trial, he claimed the right of private defence of his person. He took up the position that Ghulam Sarwar, deceased had proposed to marry the daughter of one Ismail, but this proposal broke down on account of an adverse report given about his character by the appellant and his father and that it was for this grudge that when the appellant was going to his office on the morning of the 13th March 1967, the deceased, armed with a chhuri chased him up to the saw-mill of Mistri Siraj Din where he picked up a piece of wood and hurled it at the deceased in self-defence and the same struck the deceased on his head. The appellant denied the presence of P. Ws. Ghulam Rasul, Muhammad Saeed and Muhammad Nazir. He further denied to have given any dang blow to Ghulam Rasul and Muhammad Saeed.
7. Four witnesses, namely, Muhammad Ismail (D. W. 1), Akbar (D. W. 2), Abdul Qayyum (D. W. 3) and Mir Muhammad (D. W. 4) were examined in defence. The trial Court believed the evidence of the prosecution witnesses and rejected the oral evidence adduced in defence, accepted the truth of the prosecution case, convicted the appellant under section 302 of the Penal Code for committing the murder of Ghulam Sarwar and sentenced him to death. The conviction of the appellant rested on the direct evidence of P. Ws. Ghulam Rasul, Muhammad Saeed and Muhammad Nazir as corroborated by the medical evidence. Also the learned Judges of the High Court believed the evidence of the prosecution witnesses who, according to them, had no motive to give false evidence against the appellant. The learned Judges did not, however, take into consideration the evidence adduced on behalf of the defence. Nor the right of private defence claimed by the appellant was given due consideration. Accordingly, leave was granted to re-examine the entire evidence.
8. P. W. Ghulam Rasul who was in the company of the deceased gave a detailed account of the incident and the motive of the appellant for an attack on the deceased. He said that theappellant confronted him and as the deceased, on the appellant's query, persisted in giving evidence in a criminal case against his two friends, he gave two Bang blows to the deceased which ultimately proved fatal. This was corroborated by the two other witnesses, namely, Muhammad Saeed and Muhammad Nazir. Of the three witnesses, Ghulam Rasul and Muhammad Saeed were given one dang blow, each, by the appellant. They were examined by Dr. Sajjad Hussain (P. W. 12) on the very date of occurrence and one blunt weapon injury was found on the person of each of these two witnesses. So, the presence of these two injured witnesses at the place of occurrence was quite likely and their evidence was rightly believed. After the removal of the deceased to the hospital, he was examined for the first time by Dr. Nusratullah (P. W. 2). He found two blunt weapon injuries on the front part of the deceased's head. On post-mortem examination, Dr. Muhammad Khalid Chowdhury (P. W. 1) found the same blunt weapon injuries, apart from some bruises. The doctor found that the bones underneath the injuries on the head were fractured into pieces. The death, in the opinion of the doctor, was due to those injuries. Thus, the medical evidence corroborated the evidence of the eye--witnesses.
9. In his evidence, Dr. Muhammad Khalid Chowdhury who held the post-mortem examination stated that the deceased was wearing a Payjama. As the doctor did not say if any shirt was there on the dead body, Mr. Saleem, learned counsel for the appellant contended that the deceased was bare- bodied before the incident and that this supported the defence case that the deceased was not going to his place of work at the time of the incident, but chased the appellant with a chhuri. There is no substance in this contention. The doctor did not say if the deceased was or was not wearing a shirt. His silence in this regard might be due to the fact that he was not asked anything about it. P.
10. W. Ghulam Rasul was positive that the deceased was wearing a shirt, but it was cut and removed by the doctor as it had been soiled due to vomitting by the deceased. Mr. Saleem submitted that this evidence of Ghulam Rasul is unworthy of any credit as it remained uncorroborated. Moreover, the deceased, it was contended by the learned counsel, was not' in a position to vomit as be was in coma throughout. Dr. Nusratullah who had examined the deceased after his removal to the hospital deposed that he submitted a medico-legal report Exh. P. G. This report has not been included in the paper-book. We have, however, looked into the said report and find a remark therein stating that the deceased had vomited. Thus the doctor's remark in Exh. P. G. Clearly corroborated the statement of P. W. Ghulam Rasul that the deceased had soiled his shirt by vomiting. Thus, the finding of the learned Judges that the deceased's shirt was cut and removed was founded on good evidence.
11. P. W. Ghulam Rasul said that the deceased had taken lassi in the morning. There is no evidence if he had taken any food other than lassi. The doctor found only some liquid substance in the stomach of the deceased. This fits in with the evidence of Ghulam Rasul that the deceased had taken lassi.
12. Coming now to the defence evidence it appears that Muhammad Ismail (D. W. 1) and Mir Muhammad Din (D. W. 4) were examined to prove the alleged grudge of the deceased against the appellant. D. W. Muhammad Ismail said that as there was a proposal for his daughter's marriage with the deceased, he came to the house of the appellant in the evening of the 12th March 1967 to make inquiry about the deceased, but the proposal was rejected as the appellant and his father had reported against the character of the deceased. This witness hailed from a distant place in the district of Gujrat. He was a stranger and, on his own admission was not known to the appellant and his father from before. It was rather unlikely for such a stranger to make inquiry about the deceased from the persons not known to him. Moreover, there is no evidence whatever to show if between the evening of the 12th March 1967 and the next morning when the occurrence took place, any one had told the deceased about the alleged adverse report against him by the appellant and his father. So, there could be no cause of annoyance of the deceased against the appellant. D. W.
13. Mir Muhammad Din is the father of the appellant and is necessarily an interested witness. He also admitted that D. W. Ismail had not been known to him from before.
14. Akbar (D. W. 2) and Abdul Qayyum (D. W. 3) were examined to substantiate the defence plea that the deceased had chased the appellant up to the saw-mill of Mistri Siraj Din from where he picked up a wood and hurled it to the deceased. Both these witnesses admitted that they had not been summoned and were brought to the Court by the father of the appellant. The interestedness of these two witnesses is thus obvious. It appears from the site plan that the saw-mill of Mistri Siraj Din is about 80 feet away from the place where the occurrence took place. It is no body's case that the deceased ran away about 80 feet after the receipt of the dang blows and thereafter fell down. On the contrary, the evidence on the prosecution side is that the deceased fell down on receipt of the very first dang blow. According to the medical evidence, the bones underneath the injury on the front of the head were fractured into pieces. Having received such smashing blow, the deceased could have hardly run away to such a long distance. The very fact that the saw-mill of Mistri Siraj Din is about 80 feet away from the place of occurrence goes strongly against the defence plea that the appellant had picked up a wood from the saw-mill and hurled it at the deceased. Thus, the trial Court was right in rejecting the evidence of the defence witnesses and the plea of self- defence.
15. Thus, there is no merit in this appeal. The appeal is accordingly dismissed.
16. Learned counsel submitted that the appellant has been in mental agony since the imposition of the death sentence on the 12th February 1968 and, as such, his sentence deserves to be commuted to one for transportation for life. This is a matter for the executive Government to consider. The sentence of death being a legal sentence in this case, our interference with it is not called for.