SHAUKAT ALI, J.-Five persons, namely, Taj Muhammad (19) his father Ali Muhammad (50), Umar- ud-Din (40), Fateh Din alias Iqbal Javed (30), brothers of Ali Muhammad and Shaukat Ali (30), a friend of the family, have been convinced and sentenced as under :- Taj Muhammad: To suffer death under section 302/149, P. P. C.
To undergo to years' R. I. Under section 148, P. P. C.
To undergo to years' R. I. Under section 324/149, P. P. C.
To undergo one year's R. I. Under section 323/149, P. P. C: The sentences of imprisonment were to take effect only if the sentence of death was not confirmed by this Court.
Ali Muhammad, Umar-ud-Din, Fateh Din and Shaukat Ali: Transportation for life each with a fine of Rs. 2,000 each, or in default to to years' R. I., each under section 302/ 149, P. P. C.
Two years' R.' I. Each under section 148, P. P. C.
Two years' R: I., each under section 324/149; P. P. C.
One year's R. I. Each under section 323/149, P. P. C.
All the sentences were ordered to run concurrently. The convicts have appealed against their convictions and sentences and there is also before us reference under section 374, Cr. P. C. For the confirmation of the sentence of death passed on Taj Muhammad.
2. Briefly, the facts of the case are as follows. On the 31st of March 1968, Qasim deceased, Fatoola, Lai, Sukha and Amir P. Ws., were present at the behk of Qasim deceased, which was in Killa No. 15 of Square No. 2, in Chak No. 218/ R. B. At about 2-00 p.m., Taj Muhammad, appellant went there and demanded Rs. 16 from Qasim deceased, which he owed to him as the price of the fodder. Qasim told him that he would pay the same within a day or to. The appellant, Taj Muhammad, abused the deceased, the deceased returned the abuse and gave a slap or to to Taj Muhammad. He left in anger. It is said, that after three hours, Taj Muhammad along with Ali Muhammad, Umar-ud-Din, Fateh Din and Shaukat Ali came at the behk of the deceased. Taj Muhammad was armed with a knife, Fateh Din had a gun while the others three were armed with sticks. Taj Muhammad, Shaukat Ali and Umar-ud-Din caught hold of Qasim deceased and felled him on the ground. Taj Muhammad gave a knife below on the left side of the chest of the deceased, Lai, P. W. Came running to the spot and tried to rescue Qasim whereupon Taj Muhammad gave a knife blow to him which landed - near his left eye-brew. Sukha P. W. Came to rescue whereupon Ali Muhammad gave a blow to Sukha and Lai P. Ws. Fatoola and Amir P. Ws. Tried to intervene, whereupon Fateh Din fired gun over their heads and shouted at the prosecution witnesses not to come near. The occurrence was witnessed by Fatoola, Lal, Sukha and Amir P. Ws. Qasim succumbed to the injuries instantaneously.
Fatoola P. W. Left for Police Station Sadar, Lyallpur, which is at a distance of six miles from the place of occurrence and lodged the report Exh. P. G:, at 7-15 p.m., which was recorded by Malik Muhammad Abbas, Sub-Inspector P. W.
13. The Sub-Inspector reached the spot the same night at about 9-00 p.m. Reaching there he prepared the injury statement and the inquest report and despatched the dead body to the mortuary for post-mortem examination. He prepared the injury statements of Sukha and Lal, P. Ws. And sent them for medical examination. He, collected blood- stained earth from the spot on the 1st of April 198, and made it into a sealed parcel vide memo. Exh.
P. B. He arrested Taj Muhammad, Ali Muhammad, and Umar-ud-Din on the 3rd of April 1968, Taj Muhammad led to the recovery on blood-stained knife, P. 4, from a hole behind the shutters of his residential kotha. It was taken into possession and sealed in a parcel vide memo. Exh. P. C. Ali Muhammad got recovered stick P. 5, which was taken into possession vide memo: Exh. P. D. The Sub-Inspector arrested Fateh Din and Sjuaukat Ali on the 7th of April 1968, on the 14th of April 1968.
One Abdul Ghafoor, produced -12 bore gun P, 6, and licence P. 7, of Fateh Din, the same were taken into possession vibe memo. Exh. P. E.
3. Doctor Ahmad Ghulam Muhammad, Medical Officer, conducted the post-mortem examination on the dead body of Qasim on the 1st of April 1968, at 4 p.m., and found the following injury thereon :- "A stab wound 1--" x 3/4", going inside chest, situated obliquely on the front aspect of the left side of the chest, 2--" below the level of the nipple and 2" outer side of it."
Death in the opinion of the doctor was due to shock and haemorrhage on account of injury to heart due to the above--mentioned injury which was caused by a sharp-edged and pointed weapon and was sufficient to cause death in the ordinary course of nature.
4. The same doctor also examined Sukha and Lal P. Ws. And found the following injuries on their persons.
Sukha P. W.
A contusin mark 4" x --" obliquely on the left scapula region.
The injury was simple in nature and was caused, by a blunt weapon.
Lal P. W.
(1) An incised wound, 3/4" x 1/8" skin deep, obliquely on the left side of the forehead in its outer aspect.
(2) An incised wound, 1/2" x 1/8" skin deep, obliquely on the left side of the forehead in its outer aspect f below injury No. 1.
(3) A contusion mark, 4--" x 1" obliquely at the back of the right side of, the chest in its middle.
All the injuries were simple in nature. Injuries Nos. 1 and 2 were caused by sharp-edged weapon and No. 3, by a blunt weapon.
5. Taj Muhammad appellant when examined denied the prosecution allegations and made the following statement from the dock :- "I am innocent. I had not sold any fodder to the deceased and neither he had anything to pay. In fact, Qasim deceased was caught red-handed while he was stealing our fodder due to which the deceased had fight with my brother Idrees and Muhammad Sharif son of Umar Din. In consequence to which the deceased received a daranti blow. I and other accused were not present at the scene of occurrence. I am employed in Municipal Committee, Lyallpur, and was there at the the of occurrence."
Fateh Din denied the prosecution allegation, but stated that .He got a case registered against Sher son of Fatoola P. W. And on account of that enmity he had been involved. He produced a certified copy of the complaint Exh. DD.
Shaukat Ali when examined denied the prosecution allegations and stated that he was a prosecution witness against Mogi brother of Qasim deceased and Sher son of Fatoola P. W. In a case which was registered at the instance of Fateh Din accused.
Ali Muhammad and Umar-ud-Din denied the prosecution allegations and stated that they had been implicated on account of enmity.
6. The learned Sessions Judge took the view that though Fatoola, Sukha and Lal, P. Ws., were the close relations of the deceased, but that by itself, was not enough to discard their evidence. He was not impressed with the testimony of Amir P. W., and as a matter of abundant caution, he excluded it from consideration. Relying on the testimony of Fatoola, Sukha and Lal P. Ws., and believing the recoveries he found that the charges had been brought home against the appellants.
7. After reading the prosecution evidence and hearing Ch. Nazir Ahmad, Advocate,, for the appellants and Mr. Saeed-ur---Rahman Advocate, for the State, we are unable to accept the findings of the learned Sessions Judge that the prosecution witnesses can be depended upon for full and accurate detail of the occurrence. We agree with the learned Sessions Judge that the evidence of interested witnesses cannot be rejected, but it cannot be lost sight of that where the witnesses are partisans there is always a tendency to strain a point in favour of a relation or a friend. It is doubtful whether such a witness would conceive that he was thereby doing anything improper. The attitude of mind is often a self-deception produced subconsciously by an outside cause. In these circumstances it . Appears to us that the best method of arriving at a conclusion is to look at the inherent probabilities of the case.
8. On the face of it is difficult to accept the prosecution case as it is not compatible with the normal human conduct. Had the murder been deliberate and thought out crime, Taj Muhammad appellant would not have come there armed with a pen-knife, nor this weapon should have been' used in killing, interestingly enough, though One of the appellants was armed with a .12 bore gun it was not used for killing. This does not appeal to reason. Furthermore, the deceased was a well-built and a strong man and was thrown on the ground, but surprisingly enough, not a single bruise was found on the dead body. In addition Exh. DD. Shows the prior to the occurrence on the 7th of February 1968, a case under section 24 of the Cattle Trespass Act; was registered at the instance of Fateh Din appellant against Sher son of Fatoola P. W. And Shaukat Ali appellant was one of the prosecu--tion witnesses in that case. Therefore, having regard to the interested nature of evidence and judging the case in the surrounding circumstances and the magnitude of the damage done to the complainant side, we are of the view that there was only one occurrence when Taj Muhammad along with Ali Muhammad went to ask for the price of fodder from the deceased at hi, A behk and in that course there was a quarrel which resulted in a fight between Taj Muhammad and Ali Muhammad appellants on the one side and the deceased, Lal and Sukha P. Ws., on the other, and in the heat of moment Taj Muhammad and Ali Muhammad, appellants, who were carrying their usual weapons of avocation used them. Therefore, each appellant would be responsible for his individual at.
9. The result is that we give the benefit of doubt to Umar-ud-Din, Fateh Din and Shaukat Ali, and acquit them of all the -charges. They shall be released provided always that they not required in any other case.
10. Taj Muhammad appellant struck only one blow with at pen-knife to the deceased and did not at in a cruel or unusuall manner. As such, he is entitled to the benefit of exception (iv) to e section 300, P. P. C. We would, therefore, alter his conviction from section 302/ I 49, P. P. C. To one under section 304, Part I, P. P. C. And sentence him to ten years' R. I. The sentence of; death is not confirmed. His conviction and sentence under section 324, P. P. C. Are maintained. Both the sentences shall run concurrently. He is acquitted of the remaining charges.
11. Ali Muhammad appellant caused injuries to Lal and Sukha P. Ws. With a stick. His conviction and sentence under section 323, P. P. C. Are maintained. He is acquitted of all the other charges. He has already suffered more than one year's R: I., therefore he is ordered to be released forthwith provided he is not required in any other case.