' MAZHARUL HAQ, J.--Siddiq Masih (23) and Ghulam Masih (19) were tried for the murder of Boota Masih and for having injured his mother Mst. Sharifan. On 14-5-1981, Additional Sessions Judge, Sialkot, found both accused guilty on the first charge. He sentenced Siddiq Masih under section 302/34, P.P.C. To death and fined him Rs,10,000 in default to undergo 3 years R.I. Ghulam Masih was awarded imprisonment for life and was also fined Rs,10,000 in default to undergo 3 years R.I.
Further. Half of the fine, if realized, was ordered to be paid as compensation to the heirs of the deceased. Both accused were acquitted of the charge under section 324/34, P.P.C. The appeals of the convicts and the connected murder reference are before us.
2. Occurrence in this case took place in an open place opposite the house of the deceased where the two accused were playing a game with walnuts in the morning on 28-3-1980. Boota Masih (deceased) stopped the accused from playing in front of his house, which enraged them. Siddiq Masih started giving fist blows to Boota. On the alarm, his mother Mst. Sharifan came out of the house. Lqbal Masih also appeared there. They intervened. The accused went away threatening that they would avenge the insult, Boota Vasih went inside his house. Ten/Fifteen minutes thereafter, Siddiq Masih, armed with a knife, alongwith Ghulam Masih, appeared in front of the house of the deceased. They started abusing him. Mst. Sharifan came out first; Boota Masih followed her. The two accused pounced at him. Ghulam Masih held him in a Jhappa. Siddiq Masih inflicted the first knife blow in his chest; thereafter he inflicted more knife blows to him, as a result of which he fell down. The accused fled away. Since Mst. Sharifan was trying to intervene, she also received an injury with a knife on her right hand. Besides her, the occurrence was witnessed by P.Ws. Iqbal Masih and Siddiq Masih son of Allah Rakha Masih. The witnesses took Boota Masih to the Allama lqbal Memorial Hospital, Sialkot, but he died on the way.
3. At 9-30 a.m. The same day, P.W.5 Dr. Captain Khawar Rafique, Medical Officer, Allama Iqbal Memorial Hospital, Sialkot, examined Mst. Sharifan and found "an incised wound V shaped 1" x I" x skin deep on hypothanar eminence of right hand".
' The same day the doctor also examined Siddiq Masih, accused, and found "an incised wound 21" x 1" x depth not probed right side upper part of pelvis." The injury was kept under observation and x- ray of the pelvis was advised. He was admitted in the hospital. The injury was later declared simple.
4. P.W. 14 Fateh Khan, A.S.I. Was on Gasht duty in the Grain Market, where he received information about the occurrence. He went to the hospital. P.W. Mst. Sharifan made statement Exh. P.G. Before him at 9-38 a.m., on the basis of which formal F.I.R. Exh. P.G/1 was registered at Police Station City Sialkot at 9-50 a.m. After preparing the necessary documents, the A.S.I. Sent the dead body for its postmortem examination. Thereafter, he went to the place of occurrence, and took into possession blood-stained earth. The same day, he arrested Siddique Masih, accused, whose blood-stained shirt P.6 and Chadar P.7 were got removed, taken into possession and made into a sealed parcel vide memo. Exh. P.M., attested by P.W.7 Rafiq Masih and Salim Masih (given up as unnecessary).
5. On the following day, P.W. 12 Dr. Muhammad Younus Sheikh, Medical Officer, Allama lqbal Memorial Hospital, Sialkot, held the autopsy and found the following injuries on Boota Masih's dead body:-
(1) Three abrasions each of size 14" x 3/4" on the left side of the chest.
(2) Incised wound 3/4" x i" on left upper chest near the nipple.
(3) Incised wound 3/4" x 4" front side of left lower chest.
(4) Incised wound 14" x i" anterior surface of the left thigh.
(5) Lacerated wound on the right thumb 1" x 4".
(6) Abrasion on the left knee joint and right elbow 2" x 1" and 1" x 4".
' Death occurred due to shock and hemorrhage caused by injuries Nos.2 and 3 which damaged the left lung and the heart.
6. On 2-4-1980 Siddiq Masih in custody led to the recovery of Churri P.9 from inside the court-yard of his house, from where it was dug out, taken into possession and made into a sealed parcel, vide memo. Exh. P.F. Attested by P.W.8 Nazar Masih and Rehmat Sohail (given up as unnecessary). On 30-4-1980, Ghulam Masih, accused, was arrested by P.W.4. Atta Muhammad, A.S.I. The investigation was thus completed.
7. At the trial, both accused denied guilt. Explaining the case against him, Siddiq Masih made the following statement:- "I am innocent. The fact of the matter is that the children were playing in the common park. They were making noise. I also happened to be present over there at that time.Boota Masih, deceased, objected to the making of noise by children and reprimanded them as well as slapped some of them. The children got flared up and they threw brick bats on him. I only intervened to persuade Boota Masih deceased not to quarrel with the children. He got infuriated and attacked me with a Churri from behind. He caused me an injury on my thigh. I tried hard to dissuade him from attacking me further, but he persisted.I apprehended immediate death at his hand. I had a small knife in my pocket with which I caused injuries to him in self-defence. He was taken to the hospital in an injured condition by Farhad Wasim, Sohail and others, I myself proceeded to the police post and apprised the police of this incident but the police refused to record my statement in collusion with the complainant party."
' According to Ghulam Masih, he had been implicated because he was a first cousin of Siddiq Masih accused. Both accused desired to produce evidence in defence, but later they did not do so, instead they made statements to the effect that their defence witnesses had been pressurized by the complainant, therefore, they would not like to produce any defence.
8. Relying on the evidence of the eye-witnesses and the recovery of incriminating articles from Siddiq Masih, trial Court came to the conclusion that the prosecution case was satisfactorily proved against both the accused. It, however, acquitted the accused on the charge under section 324, P.P.C. For the reason that Mst. Sharifan alone mentioned about the injury to her which she claimed to have suffered while intervening.
9. Criticizing trial Court's finding, learned counsel for the appellant contended that in order to put up a case of a premeditated attack, the prosecution has split the occurrence into two separate incidents, whereas it was one occurrence and in that too the deceased first attacked Siddique Masih, appellant, with a Churri and the appellant acted in defence. In support of this submission, learned counsel argued that the eye-witnesses have not explained the sharp-edged weapon injury suffered by the appellant. Moreover, the Investigating Officer admitted that Siddiq Masih, appellant, had come to police post first but he arrested him. True, the eye-witnesses have concealed the injury suffered by Siddiq, appellant, but we find that he was examined by the Medical Officer on the day of occurrence. There is also a glaring discrepancy A in the statement of the Investigating Officer and the note which he recorded at the foot of the First Information Report (i.e, Karwai Police) regarding the appearance of Siddiq Masih, appellant, at the police post soon after the occurrence. According to this note, the*A.S.I. Received information about the occurrence while he was on Gasht duty in the Grain Market. It was from there that he preceded to the hospital; whereas at the trial, he said that it was Siddiq Masih, appellant, who had appeared before him at the police post and thereafter, he went to the hospital. The A.S.I. Was declared hostile and cross- examined at the trial, but this did not improve the prosecution case. On the other hand, the statement of the A.S.I. That he received information of the occurrence from the accused is supported by the fact that the accused was medically examined on the day of occurrence, before the injured B witness was examined by the doctor. The appellant, however, also stated that he went to the police post on his own. The question for determination .Would be that even if it be believed that Siddiq Masih, appellant, was the first to give information to the police and the complainant party made no effort to make a report, would these circumstances per se make out a case for the exercise of right of self-defence. True, the prosecution witnesses have concealed appellant's injury which would show their interest in the deceased, but, on the other hand, we find that except for the bare statement of Siddiq Masih, appellant, there is nothing in the evidence of this case to indicate that some C children were involved in the occurrence and that these children had also thrown brick-bats at the deceased. In all probability, the occurrence was one transaction which took place when the deceased stopped the accused from playing in front of his house, upon which the fight ensued in which both Siddiq Masih and Boota Masih (deceased) inflicted injuries to each other.
Since Boota Masih (deceased) also appeared to have been armed with a Sharp-edged weapon, it would be highly', improbable that Ghulam Masih had held him in a Jhappa. Moreover, her also does not bear any injury. Giving him the benefit of doubt, we acquit him. He shall be released forthwith, if not required in any other case.
10. In so far as the case of Siddiq Masih is concerned, for the reasons giving earlier, we alter his conviction to section 304, Part 1, P.P.C. And sentence him to 7 years, R.I. The sentence of fine is reduced to Rs,3,000 in default to undergo six months, R.I. Further. Fine if realized shall be paid to the heirs of the deceased. He is also given the benefit of section 382(b), Cr.P.C. The appeal is accepted to this extent. Death sentence is not confirmed.