' Muhammad Younas, son of Khushi Muhammad, aged 19, armed with knife, and Muhammad Din, son of Imam Din, aged 30, empty-handed, his uncle, have been convicted under section 302/34, P.P.C., for the murder of Amanullah, aged 29, and each of them was sentenced to life imprisonment plus fine of Rs,4,000 or in default to undergo six month's rigorous imprisonment with the direction that if the fine was realized from them, half of the same be paid as compensation to the heirs of the deceased. They were also convicted under section 307/34, P.P.C., for murderous assault on Inayat Ullah (P.W. 11), brother of the deceased, and each of them was sentenced to seven years rigorous imprisonment plus fine of Rs,2,000 or in default to undergo three months' rigorous imprisonment with the direction that if the fine was realised from them, half of the same should be paid to Inayat Ullah P.W. As compensation. The sentences of imprisonment were ordered to run concurrently. The judgment against them had been passed on 19-8-1980 by the Sessions Judge, Sialkot. The appeal of the convicts is being disposed of by this judgment.
2. The occurrence took place on 20-11-1979 at 4 p.m. In front of the shop of the deceased within the area of village Kot Banda at a distance of four miles from Police Station Daska, District Sialkot.
Statement (Exh. P.H.) was made by Rehmat (P.W. 9) (an unconnected person) at 7-30 p.m. On the same day, and it was recorded by Mubarik Ahmad A.S.I. (P.W. 12) at Chowk Civil Hospital Daska where he was on patrol duty and also was discharging some other official dudes when Rehmat Ali P.W. Chanced to meet him while proceeding towards the police station. On the basis of the aforesaid statement formal F.I.R. (Exh. P.H . /1) was registered at the police station by Muhammad Younas Khan M.H.C. (P.W. 3) on the same day at 7-45 p.m. Initially a case was registered against the appellants under section 307/34, P.P.C., but on the death of the deceased on 25-11-1979 at 12-30 a.m. Section 302, P.P.C. Was added thereto.
3. In the F.I.R. The occurrence is reported to have taken place in the following manner. On the fateful day, at the fateful time, the appellants came to the shop of the deceased when the deceased asked Muhammad Younas appellant to return the sum of money of which he had purchased commodities from the shop of the deceased. Muhammad Younas appellant abused the deceased and the deceased abused him in retaliation. Thereafter, both the appellants raised a Lalkara to the effect that they will teach the deceased a lesson for demanding the money back.' Then Muhammad Din appellant held the deceased in a Japha while Muhammad Younas appellant gave him a knife blow which fell on his left flank. As a result the belly of the deceased was cut and his intestines came out. In the' meantime, the younger brother of the deceased, namely, Inayat Ullah (P.W. 11) came to the spot and advanced forward to rescue the deceased. But Muhammad Din appellant also held lnayat Ullah P.W. In a Japha when Muhammad Younas appellant gave him a knife blow which fell on his left flank. The intestines of Inayat Ullah P.W. Also came out of his belly.
Many people assembled on the spot when the occurrence took place. The occurrence was witnessed, besides Rehmat Ali. P.W,, the first-informant, by Muhammad Ashraf (P.W. 10) and Ghulam Rasool (not produced) as well as Said Muhammad (not produced). Thereafter, the appellants waving the knife in the, air ran away from the spot and no one tried to apprehend them out of fear. The deceased and Inayat Ullah P.W. Were taken to the Civil Hospital Daska in an injured condition and admitted there. Rehmat All P.W. Then was proceeding towards the police station in order to lodge a report when he chanced to meet Mubarik A hmad A .S.I., P.W., in the Chowk of Civil Hospital Daska and his statement was recorded by the police officer. Initially, a case was registered against the appellants under section 307/34, P.P.C., but on the death of the deceased on 25-11-1979 at 12-30 a.m. Section 302, P.P.. C. Was added thereto.
4. The prosecution has produced three eye-witnesses of the occurrence, namely, Rehmat All (P.W.
9), who is the first informant and an unconnected person, Muhammad Ashraf (P.W.10), who is also an unconnected person and Inayat Ullah (P.W. 11) injured brother of the deceased. Two other eye- witnesses who have been cited in the F.I.R. Namely, Ghulam Rasool and Said Muhammad, were given up as unnecessary.
5. The motive for crime as stated in the F.I.R., is that Muhammad Younas appellant had to pay Rs,25 to the deceased for having purchased some commodities from the shop of the deceased. On the day of the occurrence when the deceased had demanded the repayment of the amount, there was exchange of abuses between him and Muhammad Younas appellant and it was in this background that the appellants first attacked the deceased and thereafter, attacked his brother Inayat Ullah P.W. Who had advanced forward in order to rescue the deceased.
6. The appellants in their statement before the trial Court denied having participated in the occurrence. Muhammad Younas appellant in his statement before the trial Court admitted that he had purchased on credit goods worth Rs,25 from theKaryana shop of the deceased and he owed that money to him. However, he denied having participated in the occurrence. He disowned the recovery and also stated that the dying declaration made by the deceased, in the instant case, while he was still alive, was a fabricate& piece of evidence. In his version of the occurrence he has not denied participation in the same. His version is that he was passing through the lane where the shop of the deceased was located. The deceased ridiculed him for not having paid the money in time and he gave him filthy abuses and also tried to give a blow on his head with the Kilo weight.
Thereupon, Muhammad Younas appellant picked up a soap-cutting knife from his shop and in the exercise of his right of self-defence he stabbed the deceased. The deceased had used highly provocative language and hurled such dirty abuses which caused him grave and sudden provocation. Thereafter, Inayat Ullah P.W. While armed with knife chased Muhammad Younas appellant and launched an attack on him. He then defended himself with the same knife and had he not done so, he would have been given either grievous injury or done to death by him. He further stated that his uncle Muhammad Din appellant was not present there at the time of the occurrence and he had been falsely implicated in this case because he had a dispute over eight Marlas of land with the complainant and had also a fight with him previously. He said that the so- called eye-witnesses of the occurrence were not present at the time. Inayat Ullah P.W., being a Moeen of the complainant and other eye-witnesses were under their influence and as such, they had supported the prosecution version by suppressing the actual manner and mode of occurrence as well as the part played by the deceased and Inayat Ullah P.W. In the occurrence. He stated that he was innocent but he did not produce any evidence in defence.
' Muhammad Din appellant, on the other hand, also denied having participated in the occurrence.
He stated that he had been falsely implicated because there was a dispute over eight Marlas of land with Rehmat Ali P.W., the complainant. He had quarrelled some time before the occurrence with him and because of this enmity he had been falsely implicated in this case, although he was not present on the spot at that time. He also stated that Inayat Ullah, injured P.W., and the deceased were the Moeens of the so-called eye-witnesses. He stated that he was present at Chak Gillan at the, time of occurrence. Thus, he raised the plea of alibi and produced one witness, namely, Muhammad Shafi, son of Muhammad Din (D.W. 1) in support of his plea of alibi. This witness is merely a cultivator and had stated that Muhammad Din appellant was present at the Urs of Peer Fatain in Chak Gillan which was at a distance of ten miles from village Kot Banda on 'the day of occurrence i.e, 20-11-1979 from 12 noon to 3 p.m. And thereafter, in the evening of that day.
This witness stated that he and one Ghulam Muhammad had produced Muhammad Din appellant before the police at village Dhamoke on 21-11-1979. Ghulam Muhammad, Muhammad Sharif and he appeared before the Investigating Officer in support of his plea of alibi and about 25 other persons had also appeared before the Investigating Officer in support of the plea of alibi raised by Muhammad Din appellant. They had appeared before the police on 22-11-1979. But it may be pointed out at this stage that the Investigating Officer has denied the suggestion when he was asked the question in the cross-examination about more than 25 persons appearing in support of the alibi plea of Muhammad Din appellant. In the cross-examination this defence witness stated that no date was fixed for the Urs of Peer Fatain but it was celebrated in the month of Maghar. He also stated that he was not falsely deposing in favour of Muhammad Din appellant under the influence of his maternal uncle. He had stated that the maternal uncle of Muhammad Din appellant lived in his village and so Muhammad Din appellant used to visit him in their village off and on. The house of the maternal uncle of Muhammad Din appellant was at a distance of about four or five houses from his house.
7. Dr. Mumtaz Ahmad Bhatti (P.W. 1) medically examined the deceased, while he was still alive, at about 8-00 p.m. On 20-11-1979 and found on his person a stab wound 3 x 2 c.m., vertical in direction, on the upper part of left iliac region. Small intestines were lying outside. The patient was under severe shock. The injury was grievous and was caused by a sharp-edged weapon and was fresh.
' On the same day, at about 8-30 p.m., he medically examined Inayat Ullah P.W. And found on his person a stab wound 3 x 2 c.m. Opening in the abdomen, vertical in direction on the back and lateral part of left lumbar region with loops of small and large intestines coming out of the wound as well as contusion with laceration 1 x 1 c.m. On the inner aspect of left side of upper lip. The first injury was grievous and the second was simple. The first injury had been caused by a sharp-edged stabbing weapon, whereas the second injury had been caused by a blunt weapon. Both these injuries were fresh.
' On 20-11-1979 Mubarik Ahmad, A.S.I. P.W. Enquired from him if Aman Ullah deceased, while still alive, was fit to make a statement and he had replied in the negative. This application was again presented to him on 22-11-1979 and as the patient was then fit to make a statement, he had replied in the affirmative. Aman Ullah deceased died in the hospital on the night between 24th and 25th November, 1979, at about 12-30 a.m. (mid-night). He conducted post-mortem examination on the dead body of the deceased at about 12-30 noon on 25-11-1979 and found on his person the same injury except that the wound was stitched. Death in his opinion was the result of shock and haemorrhage caused by this injury which was sufficient to cause death in the ordinary course of nature. In the cross-examination he denied as incorrect the suggestion that death had been caused due to injury to peritonitis. In his opinion the second injury on the person of Inayat Ullah P.W.Could have been caused with a fist blow.
8. Both the appellants were arrested by Mubarik Ahmad, A .S.I. (P.W.12) on 29-11-1979. At the instance of Muhammad Younas appellant was recovered blood-stained knife (Exh. P.5) which was taken into possession by the police vide Memo. Exh. P.N, dated 29-11-1979. The attesting witnesses are Muhammad Ashraf (P.W.8), (an unconnected person). Muhammad Anwar (not produced) and Mubarik Ahmad, A.S.I. (P.W. 15). According to the report of Serologist (Exh. P.T.) scrappings from the aforesaid knife were found to be stained with human blood.
9. I have heard learned counsel and carefully perused the record. In this case on 22-11-1979 dying statement (Exh. P.O.) was recorded and Mubarik Ahmad, A .S.I., P.W. Claims that be recorded the same. The alleged dying statement of the deceased is Exh. P.O. At page 99. However, it has not been' relied upon by the trial Court for the reasons stated in paragraph 16 of the judgment. The trial Court has rightly observed that the alleged dying statement was in 'line with the language used in the F.I.R. And that despite the fact that there were 2/3 Magistrates posted at Daska, there was nothing on the record to show as to why the police officer had not brought them to record the dying statement. Even the presence of the Medical Officer was not secured by the police officer when he allegedly recorded the dying statement. Since it could not be said with certainty that the Investigating Officer had recorded the dying statement in the words of the deceased while he was still alive, the trial Court was justified in not relying upon the same. There is, besides the said dying statement, ocular testimony of Inayat Ullah P.W. Who is brother of the deceased and who was injured in the course of the occurrence. The other witnesses of the occurrence are Rehmat All and Muhammad Ashraf P.Ws. Learned counsel for the appellants argues that the deceased was Moeen of thdse witnesses as well as his brother Inayat Ullah P.W. And that, therefore, they were interested witnesses. I am afraid, I am not prepared to accept this argument unless and until learned counsel succeeds in showing to me that Rehmat Ali and Muhammad Ashraf P.Ws. Had motive to falsely implicate the appellants, because, they were inimical towards them. Learned counsel also submitted that Rehmat Ali and Muhammad Ashraf P.Ws. Were chance witnesses who had not seen the occurrence. He argued that only Inayat Ullah P.W. Who was injured in the course of occurrence was present on the spot. Be that as it may, Inayat Ullah P.W. Has sustained an injury in the course of occurrence and, therefore, his presence on the spot is established. Anyway, Inayat Ullah P.W. Is supporting the statement made by. Rehmat Ali P.W. Who is the first informant and implicating both the appellants in the commission of crime. Even Muhammad Younas, appellant, the main accused, does not deny in his. Statement made before the trial Court that he had caused injuries to the deceased as well as to his brother except that he is trying to bring in his case under one of the Exceptions of section 300, P.P.C. i.e, Exception Four, by raising the defence plea to the effect that it was a sudden fight in which he had acted in the exercise of his right of self-defence. Learned counsel produced Muhammad Hayat v. The State PLD 1977 Lah. 222 and Muhammad Iqbal v. The State 1976 PCr.LJ 409 in order to bring home the point that it was a case of a sudden fight which was covered by Exception Four to section 300, P.P.C. And, therefore, the proper course would be to hold each of the appellants responsible for his own act and that since Muhammad Din appellant was not present at the time of occurrence and the part ascribed by the eye-witnesses to- him was mdrely a fabrication, he should be given the benefit of doubt and that so far as the case of Muhammad Younas appellant is concerned, he could at the most be convicted under section 304 Part I, P.P.C. Learned counsel wants to argue on the plea of alibi of Muhammad Din appellant in the instant case.
I have carefully considered the arguments of learned counsel for the appellants. In my view, in the light of the evidence on record, no case is made out to the effect that the matter is covered by one of the exceptions to section 300, P.P.C. The motive in the' instant case has not been denied by the main accused i.e, Muhammad Younas' appellant. The two eye-witnesses of the occurrence, besides the brother of the deceased, namely, Rehmat All and Muhammad Ashraf P.Ws., are unconnected and independent. In their cross-examination they have totally denied the version of the incident given by Muhammad Younas appellant when it was suggested to them. Similarly, they totally denied the plea of alibi raised by Muhammad Din appellant to the effect that he, was not present at the time of occurrence. According to the eye-witness account, Muhammad Younas appellant owed some money to the deceased who was running a Karyana shop. The deceased demanded payment of the said money and in return Muhammad Younas appellant is said to have abused him. The deceased retaliated by abusing Muhammad Younas appellant and on this it is stated that an altercation took place in which Muhammad Din appellant, uncle of Muhammad Younas Appellant, held the deceased in a Japha, while Muhammad Younas appellant gave a knife blow in his flank, so much so, that the intestines of the deceased came out. At this juncture, according to the eye-witness account, the brother Of the deceased, namely, Inayat Ullah P.W.
Rushed out from the Haven in order to rescue his brother. Muhammad Din appellant also held him by his arms when Muhammad Youans appellant stabbed him in the same way in the flank and his intestines also came out. Thereafter, the two appellants are stated to have run away from the, scene of crime. The same version of the occurrence has been provided by Inayat Ullah P.W. Who has survived from the injury received at the hands of Muhammad Younas appellant. Thus, his version is being corroborated by the two independent and unconnected eye-witnesses. It is further being corroborated by the recovery of human blood-stained knife at the instance of Muhammad Younas appellant and is also supported by the medical evidence. The only point which requires determination is as to whether the defence version is plausible or not. The defence version is that Muhammad Younas appellant was alone present at the time of occurrence and he had retaliated by causing knife injuries, one each to the deceased and his brother, because they had abused him profusedly and also attacked him. Thus, his version is that he had acted under grave and sudden provocation and also in. The exercise of his right of self-defence. The plea of alibi has been raised by the other appellant i.e, Muhammad Din, but as I have pointed out earlier, there is nothing on the record to establish the defence version. According to the ocular account, which comes from an independent source, Muhammad Younas appellant had not been gravely or suddenly provoked in the instant case, nor he had acted in the exercise of his right of private defence. Similarly, Muhammad Din appellant was present at the time of the occurrence and had facilitated the commission of crime by holding the deceased as well as his brother one after the other, while Muhammad Younas appellant stabbed both the brothers. In that view of the matter, as I have pointed out earlier, no case is made out for bringing the case of the appellants under any of the Exceptions to section 300, P.P.C. In the light of the evidence on record am convinced in my mind that the prosecution has established its case as against both the appellants beyond any shadow of doubt. In that view of the matter, the convictions of the appellants as well as the sentences awarded to them were quite proper and these are accordingly maintained. The appeal of the appellants is dismissed.
' However, the jail authorities are hereby directed to grant them the benefit of the provisions of section 382-B, Cr.P.C., at the time of computation of the sentence of life imprisonment and other imprisonment sentenced to them. The sentence of fine awarded to both the appellants is accordingly maintained.