MUHAMMAD MUNIR KHAN, J.--This Criminal Appeal No. 583 of 1981 and the connected Murder Reference No.1 of 1982 arise from the judgment of the learned Additional Sessions Judge, Gujranwala whereby he, on 30-9-1981 while acquitting Ashiq Ali co-accused convicted Zulfiqar -- Ali (30) under section 302, P.P.C. For causing the death of Ate Ullah and under section 307, P.P.C. For murderous assault on Abdur Rashid P.W. And sentenced him as under:- (i)Under section 302, P.P.C. To death and a fine of Rs.10,000 in, default thereof two years' R.I.; (ii)Under section 307, P.P.C. To ten years' R.I. And a fine of Rs.5,000 in default thereof one year's R.I.
It was directed that out of the fine of Rs.15,000 two-third of the same be paid to the legal heirs of Atta Ullah deceased.
2. The occurrence took place on 16-8-1979 at 7 p.m. Near Crown Cinema. F.I.R. Exh.P.B. Is the statement made by Abdur Rashid complainant P.W.5 at 9-3a p.m. In D.H.Q. Hospital, Gujranwala which was recorded by Ghulam Abbas A.S.I. P.W.9. The formal F.I.R. P.B./1 was drawn up at Police Station, Baghbanpura, Gujranwala on the same day at, 9-50 p.m. By Bashir Ahmad, Head Constable P.W.2. The distance between the place of occurrence is six furlongs.
3. The motive as alleged by the prosecution was that 6 days before the occurrence, Abdur Rashid P.W.5 and Atta Ullah deceased had gone to Dhullay to see their maternal-grandfather Ghulam Muhammad. When they were returning and were near the shop of Hafiz Kashmiri, Zulfiqar Ali appellant forbade them from visiting that Mohallah Atta Ullah deceased showed resentment whereupon Atta Ullah deceased and Zulfiqar Ali grappled each other and Atta Ullah deceased gave 2/3 slaps to Zulfiqar Ali appellant. The Mohallahdars separated them. Zulfiqar Ali appellant threatened that he would avenge the insult hence this occurrence.
4. As far the main occurrence, it has been stated that at the eventful time, Atta Ullah deceased, Abdur Rashid complainant P.W.5 and Muhammad Hafeez P.W. (not produced) had gone to see a film in the cinema. When they came out of the Cinema House they found Zulfiqar Ali appellant armed with a dagger and Ashiq acquitted accused armed with knife standing outside. Zulfiqar Ali appellant raised Lalkara that he would not spare Atta Ullah and gave two dagger blows on his person. Abdur Rashid P.W.5 and Muhammad Hafeez P.W. Intervened whereupon Ashiq acquitted accused gave two blows to Muhammad Hafeez P.W. Zulfiqar Ali appellant gave one dagger blow on the right hand of Abdur Rashid P.W.5. On receiving the injuries, Atta Ullah had run from the spot and on reaching the bank of the Rajbah, he fell down. The occurrence was also seen by Nazir Hussain P.W.6 and Muhammad Yousaf (not produced). Atta Ullah in his injured condition was removed to the hospital but he succumbed to the injuries on the way.
5. On 16-8-1979 at 9 p.m. Dr. Harbans Lai P.W.7 examined Abdur Rashid P.W.5. He found following injuries on his person:-- "Incised wound 10 c.m. x 1 -- c.m. Bone deep on the front of right hand palm. It was situated obliquely from middle of inner side to base of index finger, with underneath metacarpal bone cut across the palm, it was bleeding profusely, advised X-ray right hand. The injury was caused by sharp-edged weapon and was grievous in nature."
The Doctor also examined Muhammad Hafeez P.W. (not produced) on the same day at 9-10 p.m.
He found following injuries on his person:-- (1)Incised wound 7 c.m. x 11 c.m. x muscle deep on the back of right upper arm just above elbow joint.
(2)Incised wound 3 c.m. x 1 c.m. Going deep on the back of right chest, in the lower part. It was situated obliquely 11 c.m. From the vertebral column. The injuries were caused by sharp-edged weapon and were simple in nature.
On 17-8-1979 at 3-00 p.m. Dr. Gulzar Ahmad P.W.8 conducted post-mortem examination on the dead body of Atta Ullah. He found:- (1)Incised wound 6 c.m. x 3 c.m. x cutting the biceps muscle and muscles of inner side of left upper arm at his middle in oblique direction.
(2)Incised wound 4 c.m. x 2 c.m. x going deep at left side of chest. Injuries Nos.1 and 2 were in line each other and were in the same direction. Both these injuries were sustained by sharp-- edged weapon.
On internal examination, he found third left zib cut, left pleura was cut and pleural cavity was full of blood. The left lung was cut under injury No.2, decending aoita was cut under injury No.2. The stomach contained semi-digested food.
6. Zulfiqar Ali appellant was arrested by Ghulam Abbas S.I. P.W.9 from near Crown Cinema, Gujranwala on 17-8-1979. He was allegedly carrying blood-stained dagger P.6 with him at that time which was taken into possession, vide memo. Exh.P.F. Attested by Nazir Hussain P.W.6 and Muhammad Yousaf (not produced). The Serologist report Exh P-Q. Reveals that dagger P.6 was stained with human blood.
7. To prove its case prosecution examined 9 witnesses. Abdur Rashid P.W.5 and Nazir Hussain P.W.6 have given the ocular account of the occurrence. They claim to have seen the appellant causing injuries to the deceased and Abdur Rashid P.W.5 and Ashiq Ali co-accused causing injuries to Muhammad Hafeez P.W. (not produced). Abdur Rashid P.W.5 has also supported the motive. Nazir Hussain P.W.6 and Ghulam Abbas S.I. P.W.9 supported the recovery of blood-stained dagger P.6 from Zulfiqar Ali appellant. Dr. Harbans Lal P.W.7 has proved medico--legal reports of Abdur Rashid P.W.5 and Muhammad Hafeez (not produced). Dr. Gulzar Ahmad P.W.8 has proved post-mortem, examination report. The rest of the evidence is more or less of formal nature.
8. When examined under section 342, Cr. P.C. The appellant denied all the incriminating circumstances. In reply to question No.7 i.e. Why this case against him? He stated; "This is a false case against me and the actually happened was that when Atta Ullah deceased, Abdul Rashid complainant and Hafeez P.W. Exhibited Ghundaism with me when I was passing near the Cinema. Atta Ullah deceased removed Purna from my head and when I protested they started beating me. I tried to run but they overtook me near Rajbah in order to save my Life I took out small knife from my pocket and acted in self-defence of my person and as such Atta Ullah, Abdul Rashid, and Hafeez Ullah received the injuries. My co-accused never participated on this occurrence. I never intend to cause death of anybody. T i,e real incident is just a fabrication to provide a false motive. The deceased and P.Ws. Were not known to me before this occurrence. I was arrested from the spot at that time and the F.I.R. Was actually written on the next morning. The knife with which I caused the injuries was handed over just after the incident if the case. This evidence relating to the recovery of dagger fabricated. "
9. The trial Court has not believed recovery of blood-stained dagger P.6 from the appellant. While believing the motive and the ocular evidence and disbelieving the defence version, has convicted and sentenced the appellant as stated above. The trial Court acquitted Ashiq co-accused by giving him the benefit of doubt.
10. The learned counsel for the appellant contended that prosecution has failed to prove its case against the appellant beyond reasonable doubt inasmuh as the F.I.R. Was recorded after preliminary investigation; that the two eye-witnesses are not reliable; that the ocular evidence is not in confirmity with the medical evidence in that the eye-witnesses have stated that Zulfiqar Ali appellant had inflicted two dagger blows on the person of the deceased whereas Dr. Gulzar Ahmed P.W.8 has stated that injury Nos.1 and 2 are the result of one blow; that ocular evidence has been disbelieved to the extent of Ashiq co-accused and that the recovery of blood-stained dagger P.6 from the appellant has already been disbelieved by the trial Court. In the alternative the learned counsel argued that the offence if any committed by the appellant would be punishable under section 304-II, P.P.C. Conversely the learned counsel for the state assisted by the learned counsel for the complainant has supported the judgment of the learned trial Court.
11. We have considered the arguments advanced by the learned counsel for the parties with care.
We have not been able to persuade ourselves to agree with the learned counsel for the appellant.
We find that the F.I.R. Exh.P.D. Is a genuine document. No doubt Abdur Rehman's P.W.4 has stated in the cross-examination that the Police had accompanied Atta Ullah from the spot to the hospital but since no attempt was made to spot out the police officer who had accompanied Atta Ullah from the spot to the Police Station and the statement remains ambiguous therefore, it cannot be said that Exn.P.B. Was recorded by Ghulam Abbas S.I. P.W. 9 after preliminary investigation. The F.1.R.
Contains the names of the eye-witnesses, names of the accused and the manner of occurrence.
This piece of document can safely be used to corroborate the statement of Abdur Rashid P.W.5 i.e. Its maker. The .Two eye-witnesses namely Abdur Rashid P.W.5 and Nazir Hussain P.W.6 had no motive to involve the appellant in the case falsely and as such they cannot be termed as interested witnesses. The mere fact that Abdur Rashid was cousin of the deceased will not make him an interested witness. Mere relationship of a witness with the deceased has never been considered a sufficient ground for discarding testimony of the witnesses. By the fact of injury on his person the presence of Abdur Rashid is proved beyond any doubt. His presence at the time of occurrence has also been admitted by the appellant. Nazir Hussain P.W.6 has also given a probable cause of his presence on the spot at the time of occurrence. The witnesses have successfully faced the test of cross-examination. Their statement does not suffer from any legal infirmity. The statement of the Doctor that the two injuries found on the person of the deceased would be a result of one blow cannot exclude the possibilities of the two injuries having been inflicted in a line and in same direction independently and that statement of the eye-witnesses cannot be rejected on the possibility that the two injuries might be the result of one blow. The number and the nature of the injuries found on the person of the deceased and the witnesses, commensurate with the number of the persons named as assailants by the eye-witnesses. The statement made by the two eye-witnesses are in consonance with the probabilities and materially fit in with the other evidence and have inspired confidence of truth in our mind. The case of Ashiq co-accused was quite distinguishable in that he had not inflicted any injury to the deceased and Muhammad Hafeez to whom he had caused the injuries had also not appeared as a witness. The trial Court has quitted him while giving him the benefit of doubt, so his acquittal has no adverse effect upon the credibility of the eye-witnesses. The motive is also proved by the statement of Abdur Rashid P.W.5.
12. Coming to the arguments addressed by the learned counsel for the appellant in the alternative, we find that the case does not fall within exception 4 to section 300 , P.P.C. Inasmuch as it was a premeditated attack. The appellant had come to the Cinema after having armed himself with the dagger. The kind of the weapon, the nature of the injuries, the force used by him and the seat of the injury selected by him shows that he had no intention other than that of killing the deceased. The appellant had taken undue advantage and had also acted cruelly while inflicting injuries to Atta Ullah who was empty-handed at H that, time. Furthermore, there was no sudden fight at the time of the murder. For all these reasons, we are convinced that the trial Court has rightly convicted the appellant under section 302, P.P.C.
13. This brings us to the question of sentence. We find that there, is a mitigating circumstance in favour of the appellant for lesser penalty inasmuch as the deceased had insulted him by giving him two slaps 6 days before the occurrence and as such the act of killing was somewhat provoked.
14. The upshot of the above discussion is that the convictions of the appellant under section 302, P.P.C. For causing the death of Atta Ullah is upheld, and under section 307, P.P.C. Is altered to one under, section 326, P.P.C. The sentence of death is, however, altered to imprisonment for life. The sentence of 10 years' R.I. Is reduced to seven years' R.I. The sentences shall run concurrently. The fine of Rs.15,000 awarded under sections 302 and 307, P.P.C. And sentences of imprisonment in default thereof are maintained. The fine when recovered, out of the same Rs.10,000 be paid to the legal heirs of the deceased and Rs.5,000 be paid to Abdur Rashid P.W.5 as compensation.
The sentence of death is not confirmed.