' Muhammad Siddique was tried by an Additional Sessions Judge of Lahore under section 302, P.P.C. for the murder of one Faiz Muhammad deceased and convicted under the said section and sentenced to life imprisonment and to pay a fine of Rupees three thousand (Rs,3,000) or in default thereof to undergo further rigorous imprisonment for three yeaRs, The fine, if recovered, was ordered to be paid as compensation to the heirs of Faiz Muhammad, deceased. The appeal (Cr.A.91 of 1982) preferred by Muhammad Siddique convict, against his conviction and sentence, is now before me for disposal.
2. The brief facts of the case are that on 19-3-1979 at 8-00 p.m. Nazar Muhammad complainant, P.W.4 gave a statement to Muzaffar Mubarik S.I. P.W.13 that half an hour back he had rectived information that his son Faiz Muhammad, deceased, had been murdered near Butt Spray Painters at Abbot Road, upon which he went there and found the dead body of his deceased son lying there.
3. Prosecution story as stated by the prosecution witnesses is that Muhammad Siddique accused, was a Chaukidar in the workshop of Salahud-Din Butt. On 19-3-1979 at 7-30 p.m. he was present in the said workshop. Javed Nlasih P.W.9, Shahbaz (won over P.W.) and Shaukat P.W.8 were also present in the said workshop and were changing their clothes, after finishing their work. Faiz Muhammad, deceased came there and entered into controversy with Muhammad Siddique, accused. They exchanged abusive language and entered into an altercation, upon which Muhammad Siddique, accused, took out a dagger from his Naifa and gave three/four blows with it to the deceased. The deceased fell down on the ground and Siddique, accused, ran away from there. The eye-witnesses also left for their houses.
4. On 20-12-1979, Muhammad Siddique, accused, was arrested by the Rawalpindi Police.
5. On 26-12-1979, Muhammad Siddique, accused, led to the recovery of Chhuri P.B. which was taken into possession, vide memo Exh.P.J., in the presence of Noor Muhammad P.W. 11 and Nazir Ahmad and Nawab Din (given up P.Ws.).
6. At the trial, the prosecution produced Muhammad Shaukat P.W.8 and Javed Masih P.W.9 in proof of the motive and the ocular account, Dr.Sabir Ali P.W.3 in suport of the medical testimony and Noor Muhammad S.1. P.W.11 in proof of the recovery.
7. Muhammad Siddique, accused, denied all the accusation that were levelled against him, including the recovery effected at his instance, and expressed his ignorance about his false involvement. He admitted that he had worked in the workshop of Salah-ud-Din in Royal Park for about a month, but since Salah-ud-Din did not pay his wages, he had left his employment a month prior to the occurrence and had gone to Rawalpindi. He admitted that Javed Masih P.W.9 was working in the workshop of Salah-ud-Din.
8. The learned trial Judge, relying upon the motive, the ocular testimony of Javed Masih P.W.9, the recovery and the medical evidence, convicted and sentenced Muhammad Siddique, accused, as stated above.
9. This is a jail appeal. I have heard the argument of Mr. Inayat .Ullah Cheema, learned counsel for the State, with his assistance, I have also read the oral and documentary evidence. The testimony of Javed Masih P.W.9 is reproduced verbatim by the learned trial Judge in para.23 of his judgment and I need not, therefore, repeat the same here. Javed Masih is a natural witness, as he was working at the spray painting shop of Salah-ud-Din Butt, and the occurrence occurred between 7- 00 and 7-15 p.m. when he and his other companions were changing their clothes after finishing work and were about to depart for their homes. No enmity has even been suggested to this witness from which it can be shown that he had any motivation to falsely implicate the appellant.
According to his testimony, after the occurrence, he went to the house of his master Salah-ud-Din Butt, but not finding him there, he went home. It appears that next day he did not appear at the shop in time and had to be sent for by Salah-ud-Din Butt from his house. Being a young man, he was afraid to return to the workshop at the relevant time and had to be sent for. This circumstance supports the inference that he had seen the occurrence or knew about it. If this was not so, he would have returned to the workshop at proper time and would not have been sent for from his cause by the owner. It was not suggested on behalf of the appellant that he (Javed Masih P.W.1) had committed the murder of the deceased. Taking all circumstances into consideration, Javed Masih P.W.9 appears to be a natural and truthful witness. His testimony rings true. Since he is a distinterested witness, no further corroboration to his testimony is required.
10. The recovery of Chhuri P.8 at the instance of the appellant is not a very strong and incriminatory circumstance against the appellant considering that the recovery was effected almost nine months after the occurrence but in view of the disinterested, testimony of Javed Masih P.W.9, the recovery is not without significance either.
11. The ascendance of Muhammad Siddique, appellant, from 19-3-19791, to 20-12-1979 is substantially incriminatory and offers confirmatory circumstance to show his criminal involvement.
12. The upshot of the above discussion is that the motive, the ocular account of Javed Masih P.W.9, the recovery, the medical testimony and the absconcion of the appellant, prove the case to the hilt against the appellant.
13. The only question that now remains to be determined is the offence the appellant committed.
The evidence of Javed Masih P.W.9 clearly shows that Faiz Muhammad, deceased was drunk at the time he particularly came to pick up a quarrel with the appellant that he exchanged abusive language with the appellant, that the appellant made genuine efforts to prevail upon the deceased not to abuse him and trouble him, but to go away, but the deceased, instead of ending the matter, threw his Perna on the ground, folded his shirt sleeves upwards, and tried to assault the appellant whereupon the appellant drew his Chhuri from his Naifa and stabbed him with it. These are the facts that clearly appear from the evidence. What does not appears and can be fairly inferred is that the deceased used such filthy language in his drunken state that it provoked the appellant beyond all abnormal limits of anger. It is true that the appellant gave three injuries to the deceased with his Chhuri, but it cannot be forgotten that he was, highly provoked at that time by the deceased who, not only was thoroughly drunk and belligerent, but had himself offered and invited the provocation. In these circumstances, the fact that the appellant through sheer desperation, inflicted three quick injuries to the deceased, it cannot be said that the appellant acted in a cruel or unusual manner. In these circumstance, the appellant appears to have exceeded his right of self-defence.
The appellant is, therefore, guilty under section 304-1, P.P.C. His conviction and sentence, therefore, under section 302, P.P.C., is hereby set aside. The appellant is sentenced under section 304-1, P.P.C., to seven years' rigorous imprisonment with a fine of Rupees Three Thousand (Rs,3,000) or, in default of payment of fine, to undergo further rigorous imprisonment for one year. The fine, if recovered, shall be paid as compensation to the heirs of Faiz Muhammad, deceased. The benefit of section 382-B, Cr.P.C. shall be granted to the appellant.
14. This appeal, therefore, stands partly accepted, in terms of alteration of conviction and reduction in sentence, as stated above.
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