' Sardar Muhammad, J.-- Rustam (17) son of Ghulam Muhammad P.W.6, (complainant in the case) was murdered by Sher Zaman appellant by causing injuries with a knife on 28th June, 1979 at 2-00 p.m. Near lqbal Tea Stall, outside the gate of Liaquatabad Mills, District Mianwali. Sher Zaman appellant was caught by Muhammad Afzal P.W.7, after chase bloodstained knife (P.4) was also snatched from him.
2. Earlier in the day, Rustam (deceased) had informed his father that Sher Zaman who is a bad character, was pressing him to have illicit connections with him, and teases him every day on the gate of the Mills, after closing hours. The complainant had told his son to remind him after .Working hours, and he will talk to Sher Zaman. The complainant and the deceased after working hours had come to the Tea Stall of lqbal at about 1-45 p.m. And sat there to take tea. Afzal P.W.7 and given up P.Ws. Muhammad Amir and Muhammad Nayvaz were already sitting there. When the appellant had appeared near the Tea Stall at about 2-00 p.m. The deceased had reminded his father by pointing out towards the appellant. It was thereupon that the appellant had attacked and murdered Rustam deceased. Rustam was removed to the Civil Hospital, Piplan, where the doctor declared him dead.
3. Faiz Muhammad, S.H.O. Police Station Piplan (P.W.9) after recording F.I.R. Exh.P.E. On the statement of Ghulam Muhammad P.W.6 reached the spot. Sher Zaman was produced before him by Muhammad Afzal P.W.7 alongwith blood-stained knife The Sub-Inspector arrested the appellant and took blood-stained Knife into possession vide memo. Exh. P F.
4. At the time of autopsy, follwing injuries were found on the person of the deceased:-
(1) A stab wound on the left side of chest between 8th and 9th ribs, elliptical in shape and its direction was oblique along the intercostal space. It measured 6 c.m. x 2 c.m. Into chest cavity with viscera coming out.
(2) A stab wound on the top of left shoulder, close to neck 2 c.m. x 1 c.m. x going upwards and backwards into the neck, through the muscles for 6 c.m. It was oblique in direction.
' According to the opinion of the doctor,. Rustam (deceased) had died as a result of injury No,1.
5. Sher Zaman appellant was found injured at the time of his arrest. The S.H.O. Had got him medically examined from Dr. Habib Ullah P.W.2 who noted an incised wound 11 c.m. x c.m. Skin deep on front of right hand and another incised wound 1 c.m. x k c.m. Into skin deep on the top of the right middle finger. Both the injuries were declared simple.
6. Learned Sessions Judge, Mianwali, by his order 7th March, 1981 convicted Sher Zaman appellant under section 302. P.P.C. And sentenced him to death. The convict has filed appeal, and learned Sessions Judge has also sent the case for confirmation of death sentence. Both the matters are being disposed of by the same judgment.
7. The eye-witness account at the trial has been deposed by Ghulam Muhammad complainant (P.W.6) and Muhammad Afzal (P.W). Ghulam Muhammad P.W.6 has repeated statement Exh. P.E.
Made by him to the Police. Muhammad Afzal P.W. Has corroborated him. Both have stated that Sher Zaroan had caused injuries to the deceased with knife P-4, and that the appellant was caught by Muhammad Afzal P.W.7 when he had tried to run away, and the knife P-4 was also snatched by him from the appellant.
' Ghulam Muhammad complainant has also stated about the fact of his son Rustam (deceased) having told about the coercion being exercised by the appellant for entering into illicit connections with him.
8. The appellant, in his statement under section 342 of the Code of Criminal Procedure denied the allegations and took up the plea that: "Actually the deceased wanted to have illicit connections with me and when he came out of the Mills gate, he invited me for it. I abused him and he assaulted me and injured me with knife, which I snatched and injured him in self-defence. I threw away the knife at the spot and myself reached the Police Station."
9. The appellant also examined in defence Lal Khan D.W.1 and Gul Khan, D.W.2. Lal Khan stated that he was running a Khokha outside Mills gate near the hotel of his brother lqbal. He did not know Sher Zaman and Rustam. He has stated when he was sitting with his father at the Khokha, Rustam assaulted Sher Zaman with a knife who snatched the knife and caused injuries in self-defence to the deceased. In cross-examination he admitted that he had not appeared before the Police to say that he was an eye-witness of the occurrence. Gul Khan D.W.2 has stated that he was present at his Tea Stall. The deceased and the accused exchanged abuses, thereafter, the deceased assaulted the accused with knife who snatched. The same and then many people collected. He has not stated anything as to how the deceased received injuries.
10. Learned counsel for the appellant, at the very outset stated that the parties have entered into compromise and that the father of the deceased has in sworn affidavit stated that he had pardoned the appellant and that the Court may act upon the same. Original affidavit was produced at the time of arguments.
11. There was no enmity between the appellant and they prosecution witnesses prior to the present occurrence, except the complaint made by the deceased to his father that the appellant was forcing him to enter into illicit connections with him. The suggestion put during cross-examination that the appellant and the deceased belonged to two different groups, did not bear fruit. It was, as a matter of fact, a bald suggestion, which was denied by the complainant. No relationship of Muhammad Afzal P.W.7 with the deceased has been proved. In fact, no relationship has been even alleged. There is nothing on the record to consider that there was even a remote possibility of the prosecution, witnesses having made false statements. The appellant was caught almost on the spot, 'and blood-stained knife (P.4) was snatched from him. The defence version putforth by the appellant, does not advance his case in any manner. He has not succeeded in his attempt to show himself to be a boy of 17 years, as according to the doctor, who had examined him for injuries, he was 19 years of age, apart from the observation by learned trial Court that he was 19-20 years old.
The injuries suffered by him are such which could have been suffered by him when Muhammad Afzal P.W.7 had snatched the knife (P.4) from him.
Although we do not consider that ther-e is any iota of truth in the statement of the appellant, still we would like to observe that after having snatched the knife from the deceased, the appellant had no right to cause him injuries, as no fear 'for attack was left, and as such, no right of private defence could have been urged even in that case.
' The statements of the defence witnesses do not inspire confidence. Lal Khan D.W.1 was brought from the jail. Apparently, it seems that he had cultivated relations with the appellant as co-under trial and so he came up as a defence witness. His admission that he never appeared before the Police to say that he was an eye-witness of the occurrence, in spite of the fact that the Police had visited the spot in his presence, speaks ill, of his bona fides. Gul Khan D.W.2 has not stated anything as to what happened after the appellant had snatched the knife from Rustam (deceased). He has not stated as to how the deceased was injured. Apart from that, according to the site plan he did not have any Tea Stall at the place of occurrence. The Draftsman, since has shown the existence of other Tea Stall, he would not have missed to show his Tea Stall.
' In the circumstances, the defence version put forth by the appellant, and the defence evidence led by him, do not inspire any confidence.
12. We have no doubt that the ocular account in this case is completely unbiased, and the same finds corroboration from the fact of the appellant having been caught on the spot and the knife (P.4) having been recovered from him. We, therefore, hold that the prosecution has succeeded in proving the case against the appellant beyond any reasonable shadow of doubt. His conviction, under section 302, P.P.C, therefore, is maintained.
13. Since the complainant Ghulam Muhammad (P.W.6) who is father of the deceased, has filed an affidavit that he has pardoned the appellant. In similar cases the sentences were altered by the Supreme Court from death to imprisonment for life. Reference may be made to Muhammad Bashir v. The State PLD 1982 SC 139 and Muzaffar Mustafa alias Zdfar All v. The State 1982 SCM R 695.
In the circumstances, the sentence of death of the appellant is reduced to that of imprisonment for life, with benefit of the provisions of section 382-B of the Code of Criminal Procedure.
14. We have taken note of the fact learned trial Court having failed to pass the sentence of fine and payment of compensation to the heirs of the deceased, which is a mandatory provision of law. We, therefore, sentence the appellant to pay a fine of Rs, 5,000 in default whereof to suffer 2 years' R.I.
Whole of the fine, on recovery, shall be paid as compensation to the heirs of the deceased. .