Muhammad Afzal Zullah, J.--Muhammad Raza aged about 16 years has been convicted under section 302, P. P. C. for the murder of Abdur Rahman aged about 35 years and sentenced to death by the Additional Sessions Judge, Lahore, vide his judg ment dated 12th of July 1969. The proceedings are before us under section 374, Cr. P. C. for confirmation of death sentence. The convict has also filed an appeal. Both the matters are being disposed of by this judgment.
2. The facts of the case as disclosed in the statement of Roshan Din (P. W. 7) who is an eye-witness and is also the first informant are as follows :-- Abdur Rahman deceased was the brother of the wife of Roshan Din P. W. Their houses are in front of each other across a lane. The appellant used to reside in the house of his elder brother Muhammad Sabir which is on the Western side of the aforementioned two houses. A small open space (Chowk) inter venes the two houses and the house of the appellant. The appellant used to stand in the chowk in front of the houses of Roshan Din and his brother-in-law. They had suspicions about his character. They did not approve his standing in the chowk because there were young girls in their houses. On the day of occurrence i.e. 18th November 1968 at about 7-30 a.m. the appellant stood in front of the house of Abdur Rahman deceased for sometime. Roshan Din P. W. and the deceased were sitting in the house of the deceased. They objected to the appellant's so standing but in spite of that he did not move from that place.
The deceased stood up and said "he would see how he does not move from that place." He then came out of the house and while he stood in the door the appellant got on the thara in front of the door and stabbed the deceased on his left flank, with chhuri P. 1, which he had taken out from the dab of his loin cloth. Abdur Rahman fell partly in the door and partly on the thara. The occurrence was witnessed by Roshan Din, the first informant and two other persons namely Farooq Hassan (P.
W. 9) and Rashid Ahmad (C. W. 1). After stabbing the deceased the appellant tried to run away but he was apprehended with the chhuri P. 1 by afore-mentioned Farooq and Rashid and was laid on a cot in the street. In the meanwhile Ghulam Nabi (P. W. 3) also appeared at the spot. Roshan Din, Ghulam Nabi and some other persons carried the injured to the hospital but he expired before the doctor could give him any aid.
It appears the police learnt about the death therefore Muhammad Salim Sub-Inspector (P. W. 10) reached the hospital at about 9/9-15 a.m. He recorded the report Exh. P. A. at the instance of Roshan Din P. W. at 9-30 a.m. A case was subsequently registered at Police Station Tibbi, Lahore city at 9-55 a.m. vide F. I. R. Exh. P. A./I. After the usual routine preliminaries the dead body was sent for post-mortem examination.
Dr. Nusrat Ullah (P. W. 1) performed the autopsy on 19-11-68 at 2-00 p.m. The dead body which had a blood-stained shirt and shalwar was soiled with blood. The doctor found the following injuries :-- "(1) An incised wound 1" x 1/8" left side chest at anterior axillary line 74" below the axilla situated vertically stab had cut the skin superficial fascia deep fascia, muscles of the chest sixth intercostal muscles and pleura. Pleural cavity contained 1450 CC blood. There was cut 3/4' long at the lower part of pericardium on left side and stab had entered the left verticle causing the wound ' long at its apex. Pericardial cavity contained 40 CC of blood.
(2) Abrasion Y' x 1" right shoulder.
(3) Abrasion \ x Y right side of neck lateral aspect."
The heart was empty from both the sides. Stomach contained 2 ounces of brown coloured fluid which according to the doctor could either be the gastric secretions or some fluid taken by the deceased. Small intestines contained chyme and large intestines contained fascia. Liver and kidney were pale. Bladder contained one ounce of urine. The death was due to cardiore spiratory failure caused by haemorrhage and shock as a result of injury No. 1 which was sufficient in the ordinary course of nature to cause death. Injury No. 1 was caused by sharp-edged weapon while injuries Nos. 2 and 3 which were simple were caused by blunt weapon. The duration between injuries and death was few minutes and between death and post-mortem was about 30 hours.
According to the doctor there could be two hours variation on either side so far as the last mentioned time is con cerned. He did not exclude the possibility that it may be 36 hours. According to this opinion, therefore, the occurrence might have taken place between 2 a.m. to 10 a.m. This does not conflict with the time of occurrence given by the eye-witnesses.
The Sub-Inspector reached the spot a little after 10 a.m. He found the appellant present there in custody of aforementioned Farooq and Rashid the eye-witnesses and one Muhammad Ishaq (P.
W. 8). Farooq who had in the meanwhile taken the chhuri P. 1 from the appellant produced it before the Sub-Inspector who took it into possession vide memo. Exh. P. C. Blood-stained pieces of wood were scraped from the door of the house of the deceased which were taken into possession vide memo. Exh. P. D.
3. At the trial Roshan Din and Farooq Hassan the eye witnesses fully supported the prosecution case as stated above. Rashid Ahmad who was mentioned in the calendar of witnesses as a P. W. was given up by the prosecution at the commitment stage as having been won over. He was examined by the committing Magistrate as a Court witness. No specific explanation was offered by the prosecutor at the trial with regard to giving up this witness but on 10th July 1969, a statement was made to the effect that the prosecution closed its case without examining him. Learned trial Judge examined him as C. W.
1. He does not claim to have witnessed the occurrence. According to him however he was going to the bazar and was passing in front of the door of Abdur Rahman when he saw him (Abdur Rahman) lying in street in front of his house. Roshan Din was present there. On the inquiry by the C. W. Roshan Din stated that "some body stabbed him with a chhuri'''. Thereafter Roshan Din and some other persons took the deceased on a cot to the hospital. The witness did not go to the hospital and returned to his own house. He was examined by the learned Public Prosecutor at some length. An attempt was made in cross-examination to show that the witness is a man of small means and that he tried to get money from both sides and because the family of the appel lant made payment of money, therefore, he deposed in his favour. The witness denied the suggestion. He, however, was constrained to admit that after the occurrence there was a quarrel between his children and the children of Roshan Din P. W. As a result thereof the son of Roshan Din had suffered an injury on his head. The witness explained that the injury was suffered by the child accidentally by striking against a wall while he was running away after throwing a stone on his son.
On account of this ill- feeling it was suggested to him that he demanded Rs. 500 from the family of the deceased which they refused to pay him. This last mentioned suggestion was, denied. In answer to question put by the learned defence counsel he admitted that when he saw Abdur Rehman lying in the street it was at about 7 a.m. He further admitted that the police reached the spot at 12-30 p.m. and arrested the accused from Sua Bazar and brought him to the place of occurrence. He admitted that he had thumb-marked the two memos, i.e. with regard to the recovery of the blood stained chhun and the blood-stained wood scraps Exhs. P. C. and P. D. respectively but denied as to what were the contents thereof. He denied that the chhuri P. 1 and the wood scrapings were taken into possession by the police in his presence. He categori cally stated that Ishaq and Farooq P. Ws. were not present when he saw Abdur Rahman in the street. According to him they were [[called by Roshan Din later on. On a very significant Court question he gave the following reply :-- "I did not notice whether Abdur Rahman was bleeding when he was found by me lying injured in the street. I did not see any blood on the spot."
Earlier in answer to question put by the Public Prosecutor he had stated that he did not know whether at that time Abdur Rahman was dead. The fact that the appellant was apprehended at the spot has been deposed to by Muhammad Ishaq and Farooq Hassan P.Ws. They have also deposed about the recovery of blood-stained chhuri P. 1 from the appellant. At that time Farooq P.
W. told Muhammad Ishaq P. W. that the appellant had stabbed Abdur Rehman deceased. The Sub- Inspector has also deposed about the arrest of the appellant and recovery of chhuri P.
1. When examined the plea of the appellant before the committing Magistrate was that of total denial in respect of the motive as well as the occurrence. About his arrest his case was that he was taken into custody by the police from the shop of his maternal uncle in Suha Bazar. While explaining the case against him he stated that he had been falsely implicated by Roshan Din P. W. as he put it "because my father and I had told him several times that he should stop the visit of objectionable strangers to his house as his daughters were not of good moral character." He denied the recovery of chhuri P. 1 from him. He stuck to this plea at the trial. No evidence in defence was produced.
The learned trial Judge believed the ocular account given by Roshan Din and Farooq P.Ws. He however after pointing out certain infirmities in the statement of Rashid Ahmad C. W. did not rely on his statement. It appears that an argument was raised before the learned Judge that the deceased was attacked by two persons. One was alleged to have been armed with a sharp-edged weapon and the other probably with a stick and that is why he suffered the abrasions i.e. injuries Nos. 2 and 3. The learned Judge however did not accept this version and accepted the explanation that these injuries could be the result of fall as plausible. Certain discrepancies and various other features pointed out by the defence have also been commented upon and dealt with in the judgment of the learned Judge.
4. There are some salient features of this case which have to be noticed at the very outset.
(i) The appellant is fairly closely related to Roshan Din and Abdul Rehman deceased. One of the sisters of the deceased is married to Roshan Din while his other sister is married to Sabir, the elder brother of the appellant. Keeping in view the social conditions it will be very difficult to come to a conclusion that Roshan Din would falsely implicate the appellant and would substitute him for the real culprit.
(h) The time of occurrence i.e. about 7-30 a.m. is not nega tived by either medical evidence or the statement of the Court witness on which the learned counsel for the appellant has laid great stress.
According to the doctor who performed the autopsy at 2 p.m. on 19th November 1968, the death might have taken place 30 hours before the examination. This would place the time of occurrence at about 8 a.m. No doubt the doctor allowed the margin of 2 hours on either side which could even be extended to 3 hours and he also agreed to the suggestion that the margin could be 6 hours. But unless there is some other supporting circumstance for adopting such a supposition, we have to go by the doctor's opinion (as to the more probable duration which if we read his entire statement comes to about 30 hours before the autopsy) which fixed the time as noted above at about 8 a.m.
From the reading of the statement of the Court witness, an impression is gained that when he saw the deceased lying in front of the house he by that time was not dead. According to the doctor the time that elapsed between the injuries and the death would be few minutes. The Court witness went to the spot at about 7 a.m. The time given by him was not the time by the watch. In other words even according to the version other than that of the prosecu tion the deceased would have suffered the injury at about 7 a.m. Learned counsel tried to argue and suggested that the occurrence might be of night, i.e., before the early morning hours when nobody witnessed the occurrence. But the above circumstances show that the occurrence did take place at about the time as deposed to by the eye-witnesses and there in no material to accept the suggestion of the learned counsel.
(iti) The house of Roshan Din is very near the house of the deceased. They are closely related to each other. He claims to have gone to the house of the deceased for taking bath. It is clear from the site plan that there is no bath room in the house of Roshan Din which consists of only two rooms while a bath room is indicated in the house of the deceased. There is nothing unusual with regard to the above expalnation given by the witness. It is, therefore, not at all improbable that Roshan Din was present with the deceased when the occurrence took place. Indeed this part of the prosecution version is supported by the Court witness who otherwise tried to help the appellant in that when he saw the deceased (who was then alive) Roshan Din was present with him and that the Court witness was told by the P. W. that the deceased was given an injury with a chhuri. All these details create an irresistible impression that even the C. W. could not deny the presence of Roshan Din P. W. at or about the time of occurrence.
(tv) During the days of occurrence there were young girls in the houses of deceased and Roshan Din P. W. Even Rashid Ahmad C. W. admitted that a daughter of Abdur Rehman deceased was married after his death. This has a direct bearing on the motive alleged by the prosecution.
Normally parents do not make false and frivolous imputations involving their own young daughters. In this case the allegation which was made against the appellant by Abdur Rehman and Roshan Din P. W. is such that it would not have brought good name to the family. It also has to be kept in mind that one of the sisters of the deceased is the sister-in-law of the appellant. Therefore the accusation by the deceased against the appellant must have had some basis. That is why he persisted in dissuad ing the appellant from standing in front of his house. If the appellant was in the habit of standing in front of his house so as to stare at the young girls who were the inmates of the house of Abdur Rehman and Roshan Din it stands to reason that Abdur Rehaman when annoyed with this conduct would act in the manner suggested by the prosecution i.e. at the time of occur rence he not only tried to go out of his house to teach a lesson to the appellant but also used filthy language. Learned counsel for the appellant argued that because of the relationship between the parties it was not possible for the appellant to have stared at the young girls in the house of Abdur Rehman. We do not accept the supposition envisaged by the learned counsel. No doubt the relationship is close but it is not of the type where the young boys of the age of the appellant would not try to stare at his relations. It was also suggested during the arguments that there was nothing objectionable or wrong with regard to the appellant's standing in front of his door i.e. about 3 feet away in the chowk which is hardly 9 to 12 feet wide on each side, and that Abdur Rehman had no right to dissuade the appellant from standing in front of his house. Apart from the legal position the question which at present needs to be determined is whether or not the conduct of the deceased would have given some annoyance to the appellant. The answer is in the positive. With regard to the legal justifica tion of the conduct of the appellant it may be a relevant consideration for determining the question of sentence and therefore is being left at that for the moment.
The sum total of the above discussion give rise to an irresis tible conclusion that there was a motive and immediate cause in this case for the appellant to have stabbed the deceased that the time and place of occurrence (particularly as deliniated in the site plan) is such that it must have been witnessed by some body and Roshan Din is one of the natural witnesses that the place is so conjested that after the occurrence it is not at all unnatural that the appellant may have been apprehended at the spot by the persons who saw the occurrence or who came soon thereafter and that in a case like the present one it is highly improbable rather impossible that the appellant (who is a young boy of 16 years of age) has been fa'sely implicated by a relation as a substitute for the real culprit.
5. In view of the above features of the case and considering that there might be some difficulty in contending that the appel lant is not guilty at all Mr. Barkat Ali Saleemi, Advocate the learned counsel for the appellant started with the argument that even if the prosecution story is to be believed, sentence of death in this case was not called for. Thereafter he urged some points on merits.
As arguments on merits have been raised, therefore, before dealing with the question of sentence it is necessary to deal with those arguments. They are :-- (/) That there are two versions of the case one supported by Roshan Din and Farooq P. Ws. and the other by Rashid C. W. which if equally possible should give rise to a conclusion that the one more favourable to the accused has to be adopted as true.
(/i) That there are some inherent improbabilities in the case ; which coupled with some weak links in the investigation would show that the prosecution has failed to prove the case beyond reasonable doubt.
6. It is true that Rashid C. W. has tried to exonorate the appellant. He undoubtedly, at the time of occurrence was a disinterested and a natural witness. He is a neighbour of Abdur Rehman deceased. But it cannot be said that even after the occurrence and before he appeared as Court witness he remained a disinterested witness. According to his own admission there was an incident of fight between the children, on the one side of Roshan Din complainant and on the other of Rashid Ahmad (C. W. 1) in which one boy had sustained an injury on the head. To assume, as the learned counsel would have us believe that such an injury would not leave any mark of disagreement between the parties, is not possible. It is also not possible to believe that the complainant would have mentioned his name in the F. I. R. as a witness and the police would have included him as a P. W. in the calendar of P. Ws. without knowing at that stage that he would support the prosecution. There may or may not have been some negotiation with regard to the consideration of money to be paid to the witness for the purpose of making him appear as a witness but the fact remains that he was no more a distinterested witness in so far as the complainant party is con cerned. Therefore he is not a type of witness who can be depended upon for the purpose of deciding this case. This supposition is strengthened by what he stated at the trial. He claimed to have seen injured lying in the street but did not notice whether he at that time was bleeding. At the same time he admitted that when he found the deceased in the street, he (deceased) was lying injured. Moreover, neither he stood at the spot nor he went with the injured to the hospital. This is an unnatural conduct of a witness of recovery of chhuri P. 1 and also the memo, of recovery of wood scraping from the door but claims that he did not know the contents thereof.
This makes his state ment highly suspicious. He appears to be a typical witness who has completely been won over by the defence. He was constrained to make certain admissions which as already noted make his statement unnatural. The impression that one gains of his having gone over to the accused side (may be due to his bad rela tions with the complainant) makes it unsafe to rely on his statement in preference to the statements made by Roshan Din and Farooq Hassan P. Ws. It is not a case of two versions about the same occurrence being equally possible. It has to be seen which version is more reasonable. In the peculiar circumstances of this case we don't agree with the learned counsel that out of the two versions given by the P. Ws. and by the Court witness, the one favourable to the accused must necessarily be accepted. In our view the version given by C. W. is not at all reasonable. Moreover, from various circumstances already noticed it is clear that Roshan Din P. W. has definitely seen the occurrence. If that is so it is not at all likely that he would have substituted the appel lant for the real culprit. We, therefore, after carefully considering the statement of Rashid Ahmad C. W. do not think that the appellant can be given any benefit on that account.
7. Learned counsel cited Sikandar v. State (1) to contend that if a natural witness is not produced a presumption should be raised against the prosecution. The circumstances of that case are different from the present one. Rashid Ahmad C. W. was given up even at the commitment stage as won over. The above discussion about the statement made by him would show that it was not necessary for the prosecution to have produced him at the trial. He was examined by the committing Magistrate as a Court witness. He has also been examined at trial. Therefore this is not a case of withholding by the prosecution of a witness. In any case the presumption to be raised under section 114 of the Evidence Act is not irrebutable. The circumstances discussed above with regard to the position of this witness clearly indicate that no reliance can be placed on him.
8. The improbabilities pointed out by the learned counsel have not impressed us. According to him it was unnatural that the accused would have been kept at the spot in custody of some witnesses particularly when those persons must have been under constant fear that the relations of the appellant might have attempt ed to rescue him. Learned counsel has ignored the fact that the place of occurrence is in a Mohalla of the city of Lahore. The appellant having been apprehended at the spot by an eye-witness and a by-stander, other people must have collected there. Those who would have tried to rescue him forcibly would have incurred a risk. Thus it cannot be held as irresistible proposition that as no untoward incident took place after the appellant was appre - hended at the spot therefore it should be concluded that he was not apprehended there.
9. It was also argued that police station being hardly at about a furlong away from the place of occurrence it is unnatural that the police would not have reached the spot before 10 a.m. At the same time the learned counsel indirectly suggested that the occurrence must have been known to the police soon after it took place and that some police officials must have arrived at the spot much before the arrival of the Sub-Inspector. From this the learned counsel concluded that if the police had gone to the spot between 7-30 a.m. and 10 a.m. they would have taken the appellant to the police station and, therefore, the witnesses told a lie that the appellant was kept by them in custody at the spot till the [13] arrival of the Sub-Inspector. A possibility cannot be excluded that some police officials might have reached the spot before the arrival of the Sub-Inspector who has stated that he had gone to the hospital presumably without first going to the spot. If some foot constable as was suggested by the learned counsel, had gone to the spot and if the appellant was being held there, in coustody by the witnesses along with a chhuri they or for that matter any police officer would in our view not have taken the responsibility of re moving the appellant to the police station without the knowledge of the Sub-Inspector because the circumstances that the accused was apprehended and held at the spot after the occurrence by itself is a very important piece of evidence in the case. In this connection it was pointed out by the learned counsel that Ishaq P. W. who deposed about the recovery of chhuri from the appellant and its production before the Sub-Inspector belongs to Suha Bazar which is at a long distance from the place of occurrence. Ishaq P. W. has explained that his Shoe factory is in Gumti Bazar. Gumti Bazar it is an admitted fact is near the place of occurrence.
He claims to have gone to Koocha Kali Mata the place of occurrence from his factory at about 8 a.m. to inquire about the health of his maternal grandmother who is the mother of Abdur Rehrnan deceased. The explanation offered by the witness is not at all improbable. He is a relation of the deceased and had a factory nearby. Even if we assumed that he had not gone to inquire about the health of his maternal grandmother, the other possi bility that he might have rushed to the spot on hearing about the occurrence cannot be excluded. In fact, he in his cross-examina tion disclosed that his shoe factory is hardly 100 yards away from the place of occurrence therefore we find no force in the criticism advanced by the learned counsel qua this witness.
10. It was also pointed out by the learned counsel that there was no blood on the Thara. In this behalf a small discrepancy was pointed out by the learned counsel. It is between the state ment of Roshan Din and Farooq P. Ws. on one hand and the Sub-Inspector on the other. According to one version there was blood on the Thara while according to the other no blood was found there. It is true that the Sub-Inspector had stated before the committing Magistrate that he had not seen the blood stains on the Thara where the dead body of Abdur Rehman was lying / but he at the trial corrected himself by saying that he saw a few stains of blood on the floor which was of red stone. The state ment made by the Sub-Inspector at the trial is supported by the eye- witnesses. It appears that the Sub-Inspector could not remove the blood from the red stone, therefore, he preferred taking into possession the blood-stained scrapings from the door which was easy for him to do. The suggestion that the blood on the door was in the form of a smear as if rubbed by somebody was denied by all the concerned witnesses. We therefore give no improtance to the statement made by the Sub-Inspector before the committing Magistrate. It is admitted by the learned counsel that the police usually prepares a spot inspection note. The situation and condition as to where the blood was found is a very important matter to be mentioned in the inspection note. Had- there been any discrepancy between what the Sub-Inspector stated at the trial and what he noted in the inspection note it must have been brought in his cross-examination. The omission to do so is very significant. We have also noticed that according to the doctor the body of the deceased was soiled with blood and both his shirt and shalwar were blood-stained. It means that the blood flowing out of the wound first soiled the body and whatever amount of blood was left was absorbed by the clothes. This we have specifically mentioned because of a very important observa tion made by the doctor. While describing injury No. 1 he clearly stated that the plural cavity contained 1450 CC of blood and that paricardial cavity contained 40 CC of blood. There was only one injury from which the deceased must have bled. Therefore it is not a case in which the blood would have profusely flowed outside the body.
In the light of the above discussion we find that there is no substance in this contention.
12. The learned counsel then pointed out that the stomach contents of the deceased indicated that the occurrence took place at a time when it was still dark or it was some early hour of the morning when nobody was present. We have already made some comment on this aspect of the case.
There is no indication in the evidence except for the suggestion made by the learned counsel in arguments that either some thief may have killed the deceased or that he might have gone out in such a situation and condition and at such a time that some body inimical to him stabbed him and ran away. In fact, the evidence does not show that somebody other than the appellant was inimical to the deceased. However we have carefully examined the statement of the doctor in the light of the contentions raised by the learned counsel. No doubt the stomach did not contain any solid matter but it did contain 2 ounces of brown coloured fluid. According to the doctor the fluid could either be some fluid taken by the deceased and that must have been at the morning time and may be morning tea or according to him it could be the gastric secretions. The quantity of fluid i.e. 2 ounces goes against the supposition that it might be gastric secretions. However, one thing is clear that the bladder of the deceased contained only one ounce of urine. This coupled with the fact that no question was asked from Roshan Din P. W. in respect of whether the deceased had taken anything before the occurrence shows that the doctor's statement does not necessarily help the appellant. It does not at all negative the supposition that the deceased might have taken tea in the morn ing. He might have also avacuated himself. It may further be possible that the fluid in tea might have been so absorbed as to form one ounce of urine when the occurrence took place.
13. A discrepancy was pointed out by the learned counsel that according to one witness the hands of the appellant were tied behind his back and according to the other on his front. Similarly according to one witness the hands were tied with a string and according to other with a piece of cloth. We have seen the relevant statements out of which so-called discrepancy arises. Statements are not so definite as to give rise to conclusion that the witness told lies. These are a matters of detail and the perception of each individual differs in matters of detail. We, therefore, attach no importance to it.
14. It was pointed out with regard to Farooq Hassan one of the eye-witnesses that he is not a natural witness. Therefore, he having claimed to have reached the spot only by chance should not be believed. In his statement the witness claimed that he is a shopkeeper of Koocha Bali Ram and gave his address as Koocha Kali Mata inside Lohari Gate. He explained that he had gone to see one Hanif in Koocha Kali Mata, that is how he was able to see the occurrence.
The learned Assistant Advocate-General pointed out the number of the shop of this witness and the number of the shop of Ishaq P. W. to show that both of them are in Gumti Bazar. According to Ishaq P. W. his shop is about 100 yards away from the place of occurrence. From this the learned counsel deduced that Gumti Bazar in which the shop of Farooq Hassan P. W. is situated is not very far away. The argument is undoubtedly impressible but there is a further support for the supposition that the arrival of Farooq P. W. at the spot may not be entirely unnatural. He runs a Tea Stall and his claim that he opens it at about 7 a m. is not at all unreasonable. It is true that he admitted that sometimes there is a rush of customers in the morning time because they come to take the breakfast but this circumstance alone is not sufficient to conclude that he would not at all leave his shop in the morning time so as to go to the house of Muhammad Hanif to which he- wanted to go is adjacent to the house of the appellant in Koocha Kali Mata. He further ( explained that he could not see Hanif because of the present occurrence. This is very natural conduct. Thus if in the morning time he left his tea stall for a while to go to a house nearby say at a distance of about 100 yards on some important buisness, which was of such a nature that he was unable to disclose it even in Court there is nothing wrong or unnatural about his assertions as a witness. Learned counsel however pointed out that the refusal of the witness to disclose the; business at the trial stage should be taken was something very serious and a presump tion should be raised against the prosecution-. The refusal of the witness is in? the following words :-- "I had a private business with him which I do not want to disclose."
It was his desire that he should not disclose the business. It does not appear there from that the learned Judge or for that matter the learned counsel for the appellant insisted on his dis closing the business. It appears as if every body accepted that there was nothing wrong in the failure of the witness to disclose the purpose of his visit. During cross-examination sometimes such like situations arise when there is understanding on every side and the point is not pressed any further.
We, therefore, are unable to raise any presumption against the witness (or against \ the prosecution) that if he would have disclosed the purpose that would have prejudiced the case of prosecution. It is quite possible that if he might have disclosed the purpose, it might have exposed him to social ridicule or some similar consequence.
It is not possible to deal with this matter in any detail as it is only a collateral issue.
15. Considering all the circumstances and after having gone through the evidence we are satisfied that Roshan Din and Farooq Hassan P. Ws. did see the occurrence and have correctly named the appellant as culprit. We are also satisfied that Rashid Ahmad, C. W. did see the occurrence but out of the motive which may not be entirely laudable he is not a dependable witness. We are also satisfied that the appellant was apprehended at the spot and that the chhuri which was ultimately found to have been stained with human blood was recovered from his possession. The motive in this case is undoubtedly proved and was sufficient for the appellant to have attacked the deceased. We, therefore, maintain the conviction of the appellant under section 302, P. P. C. for having intentionally caused the death of Abdur Rehman at the time and place alleged by the prosecution.
16. The next question to be considered is that of sen tence. It is admitted in the statement of Farooq Hassan P. W. on which admission heavy reliance was placed by the learned counsel for the appellant that the deceased had hurled the filthy abuse 'haramzada' to the appellant before the latter stabbed him. It is also admitted in the statement of Roshan Din P. W. that Abdur Rehman told the appellant to go away from the place which according to the site plan is about 3 feet in front of the door of his own house. From the place where he was standing technically speaking the appellant could not be removed. Not only this Abdur Rehman came out of bis house and threatened the appellant with the words "he would see how he does not move from that place." It is no doubt an admitted position that the deceased was unarmed at that time but when he uttered those words abused the appellant and tried to come out of his house he must have assumed some threatening posture. The appellant admittedly at the time of occurrence was a lad of 16 years of age. He was standing in front of his own house when he was abused and threatened by the deceased, therefore he at that very moment might have acted on an impulse to kill the deceased. Though his act in causing the death of Abdur Rehman is intentional it does not appear to have been pre-planned. Thus considering the conduct of the deceased and also considering the age of the appellant in the peculiar circumstances of this case we deem it a fit case for reduction of sentence. The sentence of death awarded to the appellant is not confirmed. Instead he is sentenced to transporta tion for life. The appeal is only partly accepted.