NASIM HASAN SHAH, J.- Muhammad Ismail (aged 35 years) and Mohammad Din alias Manna (aged 25 years) sons of Mohammad Shafi were tried for offences under section 302/307 read with section 34, P. P. C. By Mr. S. A. Waheed, Additional Sessions Judge, Sheikhupura, for committing the murder of Mohammad Anwar and murderous assault on Mohammad Din P. W. On 7-1-1969 at about peshiwela near the tubewell of Mohammad Amin, situate in the area of village Baddo, Police Station Ferozewala, District Sheikhupura. The learned Additional Sessions Judge vide his judgment dated 6-1-1971 acquitted Muhammad Din alias Manna of the charges levelled against him, He, however, convicted Mohammad Isma il under section 302, P. P. C. And sentenced him to death. He also convicted him under section 324, P. P. C. For the injuries caused to Mohammad Din P. w. And sentenced him to suffer R. I. For a period of one year. In case, the death was not confirmed, the last mentioned sentence was to run concurrently with the sentence imposed for causing the death of Mohammad Anwar. The appellant Muhammad Ismail has filed an appeal against his convictions and sentences. The proceedings have been referred to us under section 374, Cr. P C, for confirmation of the death sentence. By this judgment the aforesaid appeal and the reference shall be disposed of together.
2. The prosecution case briefly stated is that on 7-t-69 of about peshiwela Mohammad Anwar deceased along with the brother of his wife, Mohammad Akhtar P. W. Came from village Faizpur Khurd and got down from the bus on the pucca road just opposite the tubewell of Babu Mohammad Amin for proceeding towards village Nain Sukh. When they reached near the tubewell.
Muhammad Ismail appellant and his brother Mohammad Din shouted from behind that they would not spare the life of Mohammad Anwar deceased. They were holding knives in their hands, Mohammad Anwar started running towards the tubewell when they surrounded him and Mohammad Ismail gave a knife blow in his chest. The deceased staggered into the room of tubewell, fell there and died. Mohammad Din (P. W. 11), a brother of the deceased, who was at that time working in the nearby fields picking potatoes, rushed to the spot, whereupon both the appellant and his brother attacked him as well and caused injuries to him with their knives. Abdur Rashid (P. W. 10) allegedly also reached the spot meanwhile and witnessed the entire occurrence.
Afterwards, both Mohammad Ismail appellant and Mohammad Din co-accused decamped with their knives.
3. The motive for the crime, according to the prosecution, was that on 21-12-68 a quarrel took place between the appellant and his brother Mohammad Din on one side and the deceased Mohammad Anwar on the other, in which the appellant and his brother had beaten the deceased. The report of this occurrence was lodged by Mohammad Anwar deceased with the police, which had annoyed the appellant and his brother.
4. After the occurrence Mohammad Akhtar (P. W. 9) went to Police Station Ferozewala to lodge the F. I. R. Which was recorded by A. S. I. Rafiullah Khan (P. W. 7) on the same date at 4 p.m. After recording the F. I. R. Rafiullah Khan A. S, I. Proceeded towards the spot reaching there at 5-20 p.m.
He prepared the injury statement Exh. P. H. And the inquest report Exh. P. H./1 in respect of the deceased and despatched the (lead body to the mortuary for post-mortem examination. Later on, the investigation was taken over by S. I. Mohammad Yaqub (P. W. 12 ) who reached the spot at 10 P.M. On the same date. I He arrested both Mohammad Ismail applicant and his co-accused Mohammad Din on 9-1-1969. Mohammad Din, while in police custody, allegedly led to the recovery of blood-stained knife Exh.P.4 from under a guava plant. Similarly Mohammad Ismail appellant while in police custody, allegedly got recovered the blood-stained knife Exh P. 5 from a sugarcane field.
5. Dr. Naseer Ahmad (P. W. 3), Casualty Medical Officer, Mayo Hospital, examined Mohammad Din alias Mohammad Ali (P. W. 11) on 7-1-69 at 4-10 p.m. And found the following injuries on his person:
(1) An incised wound -- x -- and outside of left chest below injury No: 2.
(2) An incised wound 1' x --' at outside of left chest bleeding.
(3) An incised wound --' x -- and outside of left chest below injury No. 2.
(4) An incised wound --' x 1/8' behind left elbow."
In the opinion of the Medical Officer, all the injuries were simple, having been caused by a sharp- edged weapon within about four hours.
Dr. Muhammad Aslam Arshad (P. W. 6) Medical Officer, D. H. Q. Hospital, Sheikhupura, performed the post-mortem examination on the dead body of Mohammad Anwar deceased on 8-1-1969 at 3 p.m. And found the following injuries: "(1) An incised stab wound 1' x --' on the left side of chest 3' from nipple and I' from mid line at the level of third inter costal space.
(2) An abrasion 1 --' circular on front and outer side of left lower arm 2 above wrist.
(3) An abrasion 2' x -- on outer side of left thigh 3 above knee.
(4) An abrasion1-- x -- on the front of right leg 4' below knee.
(5) An abrasion -- x -- on the back of left chest 1' from mid line and 2' from spine of scapula."
In the opinion of the Medical Officer, the deceased died of haemorrhage and shock caused by injury No. 1, which was sufficient to cause death in the ordinary course of nature. This injury was caused with a sharp-pointed weapon while injuries Nos. 2 to 5 were caused by blunt weapon. Injury No. 2 was the result of teeth-bite.
The supplementary statement of Dr. Mohammad Aslam Arshad was also recorded by the trial Judge wherein he stated that injuries Nos. 3 to 5 on the person of the deceased could be caused by a fall on the ground. In cross-examination, he further stated that if the assailant was lying on the ground with his face upward and the deceased was sitting on him, injury No. 1 could be caused by the assailant on the deceased.
6. Mohammad Ismail and Mohammad Din both pleaded not guilty to the charges framed against them and in his statement under section 342, Cr. P. C. Mohammad Ismail appellant gave the following version of the occurrence, which is reproduced below: "During the days of occurrence I was employed in Rustam Cycle Factory, Shahdara. My turn of duty fell in the second shift which started at 4 p.m. I was on my way from village Saggian to the factory on the day of occurrence and when I reached near the tubewell of Babu Mohammad Amin, the deceased Mohammad Anwar and Mohammad Din P. W. Met me. Due to previous quarrel they both abused me and ii abused them in return. When they fell upon me and I was felled on the ground the deceased sat over my cheat and started throttling me with his hands, I tried to save myself by giving him teeth-bite a but I could not succeed. My brother Bashir who was coming back from his office carne there by chance and in order to save me he caused injuries to the deceased and Mohammad Din P. W. 8 He also denied the recovery of knife Exh. P.
5. He also examined two witnesses in defence, who are police officials. They certain documents in which it is recorded that Muhammad Anwar and Mohammad Din had been injured in a fight. Mohammad Din alias Manna completely denied the pro-secution case. According to him, he was not present at the spot, at the time of the occurrence and accounted his implication in tine case on account of enmity.
7. Mohammad Siddiq P. W. Who was given up by the Public Prosecutor as unnecessary was examined as C. W. 1 on the application of the appellant. He had taken Mohammad Din (P. W. 11) in an injured condition to the Mayo Hospital. He admitted in cross-examination that when he took the injured witness (Mohammad Din) to the Mayo Hospital, he had told the constable Incharge of Casualty Ward that the injuries were caused in a fight which took place on Lyallpur-Mouza Nain Sukh Road.
8. The prosecution to establish its case relied on the ocular evidence furnished by the statements of Mohammad Akhtar (P, W. q), Abdur Rashid (P. W. 10) and Mohammad Din (P. W. 11), who had allegedly witnessed the occurrence, the recovery of knife Exh. P. 4 at the instance of Mohammad Din co-accused and the recovery of knife Exh. P. 5 at the instance of Muhammad Ismail appellant as well as the motive for the
9. The learned Sessions Judge held that neither Mohammad Akbar (P. W. 9) nor Abdur Rashid (P. W.
10) were present at the spot and their statements could not, therefore, be believed. The alleged recovery of knife Exh. P. 4 at the instance of Mohammad Din co-accused, which was deposed to by Abdur Rashid (P. W. 10) was similarly disbelieved. Reliance was, however, placed on the statement of the last mentioned eye--witness namely, Mohammad Din (P. W. 11), the brother of the deceased.
It was observed that since he was injured in the occurrence, his presence at the spot could not be doubted. Nevertheless, the learned trial Judge held that his solitary statement was not sufficient to prove the prosecution case. The learned trial Judge appears to have reached the above conclusion on the ground that he was not found to be telling the whole truth. In this connection, it was noted that he had dented the suggestion that the deceased was given teeth-bite but according to the statement of Dr. Mohammad Aslam Arshad P. W. Injury No. 2 was the result of a teeth-bite.
The veracity of his statement to the effect that Muhammad Din co-accused took part in the incident was also doubted. The learned trial Judge was of the view that Mohammad Din, the brother of the appellant, could not have been present at the spot because if he had indeed been present, Mohammad Anwar deceased would have received more than one stab wound. The circumstance that the deceased had come to the spot without any prior plan also negatived the version that both the brothers were waiting for him. In view of these circumstances, it was held that Mohammad Din co-accused, the brother of the appellant, was not present at the spot at the time of the occurrence and he did not participate in it. The statement of Mohammad Din (I'. W. 11) to the extent that he had involved Mohammad Din co-accused its the transaction was accordingly not relied upon. The acquittal of Mohammad Din co-accused by the learned trial Judge was grounded on this view of the matter.
10. According to the trial Judge, the suggestion put to Mohammad Din (P. W. 11) in his cross- examination to the effect "that on the day of the occurrence he and the deceased were present near the tubewell of Mian Mohammad Amin when Ismail appellant passed by them on his way to Rustam Cycle Factory, on seeing him, he and the deceased got enraged, abused and felled him; during the quarrel, the deceased sat on the chest of Mohammad Ismail and started pressing his neck; Mohammad Ismail gave teeth-bite to the deceased in order to save himself and in this scuffle a knife blow was given to the deceased by Mohammad Ismail" appellant had the ring of truth. Consequently, in his opinion the incident appeared to have occurred as follows: - "On seeing Ismail accused passing by him the deceased in view of his earlier having been beaten by him might have exchanged abuses which led to a scuffle between them. In this scuffle Ismail accused did not fall on the ground because if he had fallen he would have sustained some injuries on his person. In the scuffle Mohammad Din P. W. Might have supported the deceased, his brother.
Ismail accused gave teeth-bite to the deceased and also a stab wound in his chest. Since Mohammad Din P. W. Was also involved in the scuffle he too received simple injuries with knife. I, therefore, hold that it was Ismail accused alone who gave the fatal blow to the deceased and caused injuries with his knife to Mohammad Din P. W."
11. Despite the above findings, the learned trial Judge convicted Mohammad Ismail appellant under section 302, P. P. C. For causing the death of Mohammad Anwar and sentenced him to death and also convicted him under section 324, P. P. C. For causing injuries to Mohammad Din P. W. The reason given for convicting the appellant under section 302; P. P. C. Was that he had not explained as to why he was carrying the knife with him at the time of the occurrence and its use against an unarmed person, which was evident from the fact that he himself did not receive any injury, showed that his act of inflicting the fatal knife blow on the deceased was not at all justified and, therefore, the offence committed by him fell under section 302, P. P. C.
12. Learned counsel for the appellant has not contested the finding of UN trial Judge that the appellant caused the injuries to the deceased which resulted in his death but he was argued that on the findings recorded by the trial Judge himself, the offence committed lay the appellant clearly fell under section 304, Part II, P. P. C. We are inclined to agree.
13. The background in which the incident took place was that only a fortnight earlier, a quarrel, had taken place between the parties in which the appellant had beaten the deceased. On the fateful day, the appellant passed by the deceased and his brother who, on account of the earlier incident, caught him, abused him and felled him to the ground. The appellant was outnumbered (the presence of his brother on the spot having been disbelieved) and was facing two enemies. The deceased sat on his chest and had caught him by the neck. The appellant first gave him a teeth- bite on his arm in order to get his throat released from him and then, in the heat of the moment to free himself from the clutches of the deceased and his brother, he used the knife against Mohammad Anwar deceased and also gave simple injuries to Mohammad Din (P. W. 11), who was also supporting his deceased brother. In our opinion, however, he did not have any intention to cause death or, even to cause such bodily injury as was likely to cause death when he used his knife, though it cannot be said that he did not have the knowledge that his act in aiming the knife in the chest region was likely to cause death. The offence committed by him falls within the purview o: the Second Part of section 304, P. P. C, Here, we may observe that the act that the appellant was carrying a knife with him is explainable on the basis that to get hips place of work, he had to pass by a route on which he could encounter his enemies and, therefore, he might well have, as a measure of self-protection, been carrying the knife with him.
14. In these circumstances, the conviction and sentence of the appellant under section 302, P. P. C.
Is not justified and is hereby set aside. Instead, he is convicted under section 304, Part II and sentenced to five years' R. I. His conviction tinder section 324, P. P. C. For the injuries he caused to Muhammad Din P. W. And sentence of one year R. I. On that account is upheld, sentence, however, shall run concurrently with the sentence imposed under section 304, Part 11, P. P. C. The sentence of death is not confirmed.