1. WAHEEDUDDIN AHMAD, J.-This appeal by special leave is directed against the judgment of the Lahore High Court, dated the 9th February, 1971, in Criminal Appeal No. 608 of 1969 (Murder Reference No. 186 of 1969). By this judgment, the death sentence awarded to the appellant was maintained and the appeal was dismissed.
2. The appellant Ijaz Ahmad was tried under section 302/34, P. P. C. Along with one Abdur Rahim for committing the murder of Muhammad Bashir. They were also tried under section 307/34, P. P. C. For making the murderous assault on P. W. Mehraj Din. The appellant was convicted by trial Court under both the sections 302 and 307, P. P. C. He was sentenced to death under section 302, P. P. C.
3. And to five years' R. I. Under section 307, P. P. C. Abdur Rahim co-accused was acquitted of the charges. The matter was taken in appeal and reference to the Lahore High Court. The High Court confirmed the death sentence imposed on the appellant and dismissed the appeal.
4. Special Leave was granted to the appellant to consider the following points :-
(1) That the judgment of the High Court directed itself in the first instance to the alleged shortcomings of the defence with the result that after discarding the defence version, the High Court pre-disposed to accepting the version of the prosecution. In this process, while certain shortcomings of the defence were specifically noticed, similar shortcomings of the prosecution version were overlooked.
(2) That while discarding the defence version, the circum--stances that the judgment regarded as improbable wore noticed and assessed, but when dealing with the prosecution version the same degree of consideration was not bestowed on impro--babilities.
(3) That in the facts of this case involving one murder on each side and the existence of injuries on the person of the petitioner, the High Court was not quite right in rejecting the plea of self-defence.
5. In assessing the evidence as regards self-defence, a stricter standard of proof was applied than what is ordinarily regarded as adequate.
6. The prosecution case is that Sikandar Khan P. W. 10 was doing business of saria in partnership with Muhammad Bashir deceased on Zaildar Road, Lahore, near Data Darbar. He purchased an old Dodge car from Abdur Rahim for Rs. 2,150. It was agreed upon between the parties that Abdur Rahim would pay the token tax to the Excise and Taxation Department or pay the amount of Rs.
7. 187.50 to Sikandar Khan in cash on the 22nd April, 1968.
8. On the 22nd April, 1968, Abdur Rahim met Sikandar Khan P. W. At about noon time and Sikandar Khan demanded the amount of token money from him and told him that if he failed to pay the same to him by the evening, he will be liable to return the sale price paid by him. Abdur Rahim promised to pay. On the same day at about 7-00 p. m. He came to the shop of Sikandar Khan along with Ijaz Ahmad appellant. Muhammad Bashir deceased was also present at the shop. Ijaz Ahmad appellant told Sikandar Khan not to demand the money from Abdur Rahim and threatened that if he insisted, he would be made to pack up his business. Muhammad Bashir deceased told Abdur Rahim not to interfere in the matter as he had nothing to do with it. The appellant left the place along with Abdur Rahim and threatened to show whether he had anything to do with the matter or not. Sikandar Khan also left for Bhati Gate as he had some business there. He returned at about y-15 p. m. And saw Ijaz Ahmad appellant accompanied by Muhammad Ehsan the deceased accused proceeding towards his shop. At that time, Muhammad Bashir was sitting with his brother Mehraj Din at the shop. The appellant and Muhammad hhsan raised a lalkara. Muhammad Bashir and Mehraj Din then took to their heels and started running towards Data Darbar in the western direction on the Zaildar Road. Both the accused were armed with knives. They chased and overtook them near the sweetmeat shop called `Awan--i-Nimat'. Ijaz Ahmad appellant inflicted knife blows on the person of Muhammad Bashir deceased. Muhammad Ehsan deceased accused gave a knife blow to Mehraj Din. P. W. Mehraj Din snatched the knife from him. The knife fell down on the ground.
9. Thereupon, Muhammad Ehsan picked up an iron bar, Exh. P. 3, from a nearby shop and belaboured Mehraj Din with it. The appellant Ijaz Ahmad continued to inflict knife blows on Muhammad Bashir.
10. Muhammad Bashir picked up a scissors from the khokha of Muhammad Riaz Barber and inflicted injuries with it both to Ijaz Ahmad appellant and Muhammad Ehsan. As a result of the above injuries Muhammad Bashir and Mahraj Din V, W. Fell on the ground. Ghulam Nabi P. W. 14 tried to rescue them. Muhammad Ehsan the deceased accused also gave him 2/3 saria blows. The accused then left the place of occurrence. Appellant Ijaz Ahmad took knife along with him. Muhammad Ehsan, however, left the iron bar at the spot. The occurrence W was witnessed by Sikandar Khan, Mehraj Din P. W., Ghulam din Nabi, Muhammad Ishaq, Muhammad Riaz, Ghulam Mohiuddin, Proprietor, Awan-in-Nimat.
11. Mehraj Lin and Muhammad Bashir were taken in a tonga by Sikandar Khan and Ishaq to the Mayo Hospital where they were examined by Dr. Nasir Ahmad P. W.
2. One of the constables attached to the casualty ward informed Muhammad Shafi Cheema, S. I. Incharge, Police Post, Lower Mall on telephone, who arrived at the hospital with some constables, within a short time. The S. I., recorded the statement, Exh. P. A. Of Sikandar Khan P. W. 10 and sent it back to the Police Station, New Anarkali, Lahore for the registration of the case. The formal F. I. R., Exh. P.A./1, was recorded at the police station at 11-00 p. m. On the same night on the basis of the said statement. From there, the S. I. Proceeded to the spot. Muhammad Saeed, A, S. I., P. W. 16, was already present there. After inspecting the spot, Muhammad Shaft Cheema S. I., took into possession some blood-stained earth. He also took into possession blood--stained knife, Exh. P.
1. Blood-stained piece of scissor, Exh. P. 2, and a saris Exh. P. 3, which were lying at the spot vide Memo, Exh. P. B. All these articles with the exception of iron bar, were found stained with human blood. Appellant Ijaz Ahmad and Muhammad Ehsan deceased accused were also taken to the hospital. Muhammad Bashir deceased and Muhammad Ehsan deceased accused were both operated upon by Dr. Ijaz Ehsan.
12. Muhammad Bashir died on the 23rd April, 1968 at 7-00 p. m. Muhammad Ehsan died on the 23rd April, 1968 at 1-30 p. m. Their bodies were sent for post-mortem examination.
13. Ijaz Ahmad appellant was arrested on the 23rd April 1968. He led to the recovery of knife, Exh. P. 5, which was buried in the ground under a cigarettes shop in Mohallah Bagh Chomala, Bhati Gate, Lahore. The recovery was made after 15/16 days from his arrest. The knife was not found stained with human blood.
14. Dr. Nazir Ahmad, C. M. O. Mayo Hospital, Lahore, examined Muhammad Bashir and Muhammad Ehsan when they were alive. He also examined P. Ws. Mehraj Din, Ghulam Nabi and appellant Ijaz Ahmad.
15. The prosecution case is supported by Sikandar Khan P. W. 10, Muhammad Riaz P. W. 11, Muhammad Ishaq P. W. 12, Mehraj Din P. W. 13 and Ghulam Nabi P. W.
14. They are the eye-witnesses of the occurrence and have fully supported the prosecu--tion case. Out of these witnesses, Mahraj Din and Ghulam Nabi received injuries during the incident. Their presence at the spot, therefore, was established. The presence of Mehraj Din even is admitted by the defence.
16. Mr. Manzoor Qadir, learned counsel for the appellant, has priticised the statements of the eye- witnesses and the prosecution case. It was contended that the prosecution case has been fabricated and the defence version was correct. It was also contended that none of the eye- witnesses was present except Mehraj Din and that some of the eye-witnesses, namely, Muhammad Riaz and Muhammad Ishaq were not mentioned in the F. I. R. And were introduced later on. It was also contended that the story about a barber, i. e. Riaz P. W. Who is alleged to have set up a khokha near the spot on that very morning, was mere concoction and had been introduced only to explain the presence of a barber's scissors which Muhammad Bashir deceased used. It was contended that the falsity of the setting up of a khokha by the barbar was amply demonstrated by the fact that it was alleged to have been removed on the next day. According to the learned counsel, the aggressors were the deceased party and the appellant, in self-defence, inflicted injuries on the deceased and other persons. He also contended that the allegation that the deceased and Mehraj Din ran towards trio west on hearing the lalkara was not mentioned in the F. I.
17. R. And have been introduced subsequently in order to support the false version that the occurrence took place before Awan-i-Nimat.
18. We have considered the arguments of the learned counsel for the appellant and have come to the conclusion that they have no force. The presence of Sikandar Khan is amply proved by the fact that it was he who removed Muhammad Bashir and Mehraj Din to the Mayo Hospital immediately after the incident. He also gave the First Information Report. His statement was recorded and on its basis, the F. I. R. Was recorded at the Police Station. This also shows that he was present at the spot and had seen the occurrence. No enmity has been proved between Sikandar Khan and the appellant party and, therefore, Sikandar Khan had no reason to involve the appellant party falsely. He has given the true facts. If he had been inclined to involve anyone falsely, he would have named Abdur Rahim as being present at the spot and having taken part in the attack and caused some injuries to deceased Muhammad Bashir and Mehraj Din.
19. In our opinion, the F. I. R. Had not been lodged after due deliberation and consultation with the police. Had that been the case the defects pointed out by the learned counsel. For the appellant, would not have been there and the name of Muhammad Riaz barber would have been mentioned in it.
20. The learned counsel for the appellant contended that Muhammad Riaz P. W. 11 was not present at the spot. According to him, he had not set up his khokha on that very morning and removed it on the following day. He contended that his name was not mentioned in the F. I. R. It was contended that the existence of khokha was introduced only to provide a place from where Muhammad Bashir deceased could be said to have picked up a barber's scissors. We have gone through the evidence of Muhammad Riaz and we are satisfied that his statement appears to be a statement of a truthful witness. It was contended that Muhammad Bashir deceased and his brother Mehraj Din were barbers and, therefore, a barber was introduced in this case. This contention also has no force because there is no satisfactory proof that Muhammad Bashir and his brother Mehraj Din were barbers. The khokha of Muhammad Riaz was shown in the site plan, Exh. P. F.
1. In front of the shop of Ghulam Muhammad Tanurwala. Muhammad Riaz P. W. Has stated that he had set up his khokha in front of the shop of Feroze Din and that he had also taken an electric connection from the said Feroze Din. We agree with the High Court that the above-noted discrepancy appears to be due to some lapse on the part of draftsman and does not belie Muhammad Riaz P. W. 11 or falsify the prosecu--tion version. The prosecution witnesses had deposed that there was a khokha of Muhammad Riaz and that amply proved that deceased Muhammad Bashir picked up a scissors from the khokha of Muhammad Riaz and attacked the appellant and Muhammad Ehsan with it. We do not see any reason to disbelieve the state--ment of Muhammad Riaz P. W. 11 as he is not related to the complainant party. He has denied this suggestion and there is nothing on the record to contradict this fact.
21. There can be no doubt that Mehraj Din P. W. 13 received large number of injuries on his person and his presence at the spot cannot be doubted. The defence side has failed to establish any enmity between him and the accused party and we see no ground to hold that he has falsely implicated the appellant in the case or he has given a false version of the case. He has also mentioned the name of Muhammad Riaz as the person from e whose khokha Muhammad Bashir deceased picked up the scissors. There are minor discrepancies in his statement and we attach no importance to them. The statement given by him is supported by other independent evidence. The High Court, therefore, was perfectly justified in relying on his statement.
22. Ghulam Nabi P. W. 14 is also an eye-witness of the occur--rence. It was urged before us that he was a servant of Muhammad Bashir deceased and Sikandar Khan and was employed at that time at their shop. This was denied by this witness during his cross-examination. He also suffered some injuries during the occurrence. The learned counsel for the appellant contended that these injuries were self-inflicted. This question was also examined by the high Court and they have rightly held that this point has no force. The medical evidence shows that Ghulam Nabi was also examined by Dr. Nasir Ahmad as the other injured persons. In view of this, there was no time for Ghulam Nabi to manufacture these injuries. He is an inde--pendent witness and his statement has greatly weighed with us. The version given by him supports the prosecution case and reliance can be placed on it.
23. In this connection, it will be noticed that at the trial Ijaz Ahmad appellant gave his version and explained his injuries on his person in the following words :- "I and my brother Anwar run a shop under the name and style of Mir and Company. It is 4th shop from the place of occurrence and I produce rent receipts of the same in my name as well as that of my brother which are Exh. D. 1 to Exh. D.
8. On the day of occurrence just as I closed my shop for proceeding home Ehsan also casually joined with me. We had hardly travelled two yards and were in front of Awan--i-Nimat, suddenly Bashir deceased armed with a scissors and Mehraj Din armed with knife, Exh. P. 1, attacked Ehsan deceased. I was bare handed. I tried to intervene. I was also given injuries. Ehsan took up a knife from his pocket, he whipped out a knife. He defended himself while I picked up a chimta from the Halwai shop of Awan-i-Nimat and with that chimta I defended Ehsan as well as myself. Bashir and Mehraj Din suffered the chimta injuries at my hands which I gave in defence. We both fell at the spot unconscious. We were removed to the hospital by our relations who also reported the matter at the police post. The prosecution version is a concoction and they have suppressed the facts. Ghufam Nabi P. W. Is a servant of the deceased. Riaz is his relation, Sikandar Khan is partner while Ishaq is their common friend. No independent person from the locality has supported their version."
24. From the above version of the appellant, it is quite clear that he has not denied the incident but has only given a different version to make out a case of self-defence. We have examined the version of the defence and are of the opinion that it is not a reliable one. There is no proof of the fact that the appellant had a shop on Zaildar Road near Awan-i-Nimat. The site plan. Exh. P. F. 1, does not show that any such shop existed. Sikandar Khan P. W. 10 has denied the existence of any such shop. The defence has not produced any witness to prove the existence of the shop near the spot. The rent receipts produced by the appellant are of little value as the owner of the alleged shop was not produced in the trial Court to prove them. Motive suggested by the defence counsel to Mehraj Din during cross-examination, namely, that he and his brother Muhammad Bashir deceased after closing their shop were deliberately sitting to deal with Ehsan who was a badmash of that area and with whom he had rivalry over narcotics business. This suggestion has been denied. The High Court was perfectly justified in observing that "hay Muhammad Bashir deceased and Mehraj Din P. W. Any motive to attack and kill Muhammad Ehsan and Ijaz Ahmad appellant, Muhammad Bashir deceased would have armed himself with an appropriate weapon rather than a barber's scissors which is a delicate and fragile instrument." It was urged that the injuries on the person of Mehraj Din could not have been inflicted with saris, Exh. P. 3, which was of about ----- of diameter and 3--ft. In length. According to the learned counsel these injuries were inflicted with a chimta as stated by Ijaz Ahmad appellant in the defence version. In our opinion, the contention of the learned counsel has no force as the saria could also cause injuries of the breadth of ----- wide, 1" wide or even 2' wide.
25. After going through the defence version, one fact is certain that the venue of the incident was near Awan-i-Nimat. The High Court and the learned trial Court have rejected the defence version and nothing has been shown to us to come to a contrary conclusion. We, therefore, agree with the High Court that the prosecution case had been proved beyond reasonable doubt by, the ocular testimony of Sikandar Khan P. W. 10, Muhammad Riaz P. W. 11, Mehraj Din P. W. 13 and Ghulam Nabi P.
26. W. 14. g This is corroborated by the recovery of the knife, Exh. P. 1, al piece of barber's scissors, Exh. P.
27. 2, and an iron bar, Exh. P.
3. These recoveries have been supported by Sikandar Khan P. W. 10 and Muhammad Riaz P. W.
11. We have also not relied on the statement of Muhammad Ishaq which was discarded by the trial Court and the High Court.
28. After carefully considering the evidence of the prosecution and the defence version, we are satisfied that the case of the prosecution has been established beyond reasonable doubt against the appellant. He has been rightly convicted under section 302, P. P. C. His conviction under section 307, P. P. C. Is also in accordance with law. We see no reason to differ with the reasoning of the High Court. We would, therefore, dismiss the appeal.