' M.S.H. QURAISHI, J.-- This appeal by leave of the Court is directed against the dismissal of the appellants' appeal by the Lahore High Court against their conviction and sentence recorded in a murder case. Safdar appellant had been sentenced under section 302, P.P.C. To death plus a fine of Rs, 1,000 for the murder of Hazrat Din deceased while Muhammad Iqbal appellant had been sentenced under section 352, P.P.C. To R.I. For three months.
2. The two appellants, who are brothers inter se, are said to have committed the murder on 2nd June, 1974 at about 9.15 a.m. On the bank of Laie Nalla, Rawalpindi. According to the prosecution, a show while before the occurrence they had slapped Muhammad Sabir (aged about 13) son of the deceased, who was grazing his buffaloes and had asked him to remove the buffaloes whereupon Muhammad Sabir had gone crying and complained to his father. The deceased alongwith the by and followed by his brother Ghulam Hussain, and son-in-law Sher Afzal, went to the spot. He and Muhammad Sabir crossed the Nalla while his relathies remained on this side of the Nalla. His protest, however, brought retaliation from the appellants who started beating him. The deceased tried to run back but while he was still on the other side of the Nalla he was chased and caught by Muhammad lqbal from the front while Safdar appellant whipping out a Chhuri from the fold of his loin cloth inflicted two blows upon his back at which he fell down. The deceased was taken to hospital but he died while being medically examined. The autopsy revealed the presence of two incised wounds located on the right side of the back of the chest, which had penterated the heart and had been individually and collectively responsible for the death. Both the appellants were arrested on 4th June, 1974. Five days later, Safdar appellant while in custody led to the recovery of a bloodstained Chhuri from his cattle-shed. Muhammad lqbal appellant who had swelling on the back of the left thigh was also subject to medical examination which showed the presence of a grievous injury. The ocular version was furnished by Ghulam Hussain P.W.5, Muhammad Sabir P.W.6 and Sher Afzal P.W.7. The presence of the latter who had his house 6/7 miles away, was, however, not believed by the trial Court and as such his evidence was excluded from consideration. Safdar appellant denied his involvement in the occurrence as also the recovery of the blood-stained Chhuri at his instance. Muhammad Iqbal appellant, however, stated that the deceased and his party had attacked him and fractured his leg and had brought this false case to conceal their own aggression. He further stated that a cross-case had already been filed against the complainant party which was pending. They produced no evidence in defence.
3. The trial Court held Safdar appellant guilty of the murder but as regards Muhammad lqbal it did not find any evidence that he knew of the presence of Chhuri with Safdar or of the latter's intention to cause the death of the deceased. It, therefore, held him guilty of his own individual act of assault on the deceased under section 352, P.P.C.
' The High Court concurred with the finding of the trial Court and hold that the occurrence having been committed in daylight and at a public place, the appellants being already known to the complainant party, there being no previous enmity subsisting between the parties and the F.I.R.
Having been lodged promptly, there was no scope for disbelieving the ocular evidence which was supported by the recovery of the bloodstained Chhuri. It rejected the plea of self-defence advanced by Muhammad Iqbal on the basis of the injury on his left. As regards Muhammad Sabir's statement that Iqbal, Rab Nawaz and Niaz had also accompanied the deceased at the time of the occurrence, the High Court expressed the view that if they accompanied the deceased they would have stood on this side of the bank alongwith the others.
4. Leave was granted to consider the question of the presence and effect of the injury found on the person of Muhammad lqbal appellant.
5. Learned counsel for the appellants did not press the appeal of Muhammad Iqbal, though he made much capital of the injury on his leg to support the contention that it was the complainant party which had attacked in number and inflicted the injury on Muhammad Iqbal. But there is no proper material on record to link the injury with the occurrence or to hold that it had been the result of an attack on him during the occurrence. According to the prosecution, the injury had been sustained by a fall while he had been fleeing from the scene and when the same was put to him in the committing Court, he simply replied in the negative. Before the trial Court, however, he came out with the plea that his leg had been fractured in the course of attack upon him by the deceased's party. It is to be noted that the medical officer, on a reference from the police in respect of this injury, had opined in Exh.P.G. That there was no surface mark of the injury, that no weapon had been used, that the injury could be due to fall and that its duration was one day. In view of the medical opinion and considering also the fact that Muhammad lqbal had been arrested two days after the occurrence, the High Court was not unjustified in holding that the injury was not relatable to the occurrence. In this connection learned counsel for the complainant pointed out that the cross-case instituted by Muhammad lqbal on a private complaint some five months after the occurrence, had since been dismissed. He also pointed out that this version of Muhammad Iqbal had not been put to the main prosecution witness, namely, Ghulam Hussain, and that Muhammad Sabir P.W. To whom it had been put, had pointedly rejected the same and asserted that "Iqbal accused did not receive any injury at the spot." We are satisfied that there exists reliable and adequate material on record to justify the concurrent finding of guilty under section 302,1 P.P.0 against Safdar and that the same requires no interference.
6. We are, however, not inclined to agree that the case calls for the award of capital punishment.
There had been no subsisting enmity between the parties nor is there any evidence of premeditation. The occurrence had been the result of a sudden flare-up. We, therefore, reduce Safdar's sentence to imprisonment for life plus a fine of Rs, 20,000 rupees twenty thousand only) 'or in default in payment thereof to R.I. For five years. Three-fourth of the fine on realization shall be paid to the heir of the deceased. He shall also pay Rs,5,000 (rupees five thousand only) as compensation under section 544-A, Cr.P.C. Or in default in payment of the same shall undergo R.I.
For six months. He shall receive the benefit of section 382-B, Cr.P.C. With this modification in the sentence, his appeal is dismissed. The appeal, as regards Muhammad Iqbal, is dismissed as not pressed.