MUHAMMAD AFZAL CHEBMA, J: Muhammad Yousaf appellant in Criminal Appeal No. 112 of 1970 and Muhammad Ismail appellant in Jail Appeal No. 137 of 1970 were tried by the learned Sessions Judge along with Pir Dakhsh, a third accused, for the murder of one Muhammad Yousuf, allegedly committed by them on the 27th of February 1969, at digarwela in Chak No. 209/R. B. Eight miles away from Police Station Nishatabad, Lyallpur. On conviction Muhammad Yousuf was sentenced to death while Ismail to that of transportation for life Pir Bakhsh having been acquitted vide the impugned judgment dated 10th February 1970.
2. The report Exh.P. B. Was lodged at police station by Muhammad Ibrahim P. W. 10, brother of the deceased at 5-00 p.m. The same evening and was recorded by Habib Khan, Sub-Inspector P. W. 13.
3. The case for the prosecution was that the two appellants, of whom Muhammad Yousuf was a resident of Himmat Pura, a suburb of Lyallpur, and Ismail, a resident of Peoples Colony, whose sister was the first wife of the deceased, who had remarried on her death, used to visit the house of Ibrahim complainant and developed illicit intimacy with his wife Mst. Khurshid. The brother of Ibrahim including Yousuf deceased took exception and stopped their visits which incensed both of them. On the 27th of February 1969, which was the day of sacrificial Eid (Eid-ul-Azha) while Ibrahim and his brother Yousuf deceased stood outside in the lane, the two appellants, accompanied by Pir Bakhsh, a cobbler of the same Chak (No. 2U9/R. B.) appeared there. Yousuf was armed with a knife while Ismail held a dagger. Yousuf challenged that nobody could stop them from passing through the lane. All the three then started hurling abuses on them. Yousuf told them to behave, whereupon Ismail caught hold of the shirt of Yousuf deceased near the neck while Yousuf appellant plunged his knife in his chest. Ibrahim rushed forward to rescue' his brother who was caught hold of by Pir Bakhsh. Yousuf deceased succumbed to the injuries. The alarm raised by Ibrahim attracted Muhammad Sharif P. W. 11, and Wali Muhammad P. W.
12. The three accused then tried to run away, but Ismail was apprehended at some distance by Muhammad Aslam 1'. W. 8, and Muhammad Ibrahim P. W. 9, and also received two injuries in the struggle, one on the head and the other on the hand. Yousuf appellant and Pir Bakhsh, however, succeeded in making good their escape. Ibrahim then left for the police station and lodged the report Exh. P. B. At Police Station Nishatabad at 5 p.m.
With Habib Khan Sub-Inspector P. W.
13. He accompanied Ibrahim infor--mant to the spot reaching there at about 5-30 p.m., prepared the injury statement Exh. P. H. And the inquest report Exh. P. J. Of the deceased and sent the dead body for post-mortem examina--tion under the escort of Foot Constable Salati Khan P. W, 3 Aslam P. W. 8 and Ibrahim P. W. 9, who is different from Ibrahim complainant, produced Ismail appellant before the Sub. Inspector. Aslam also produced a dagger like chhuri before him, which had been snatched from Ismail appellant at the time of his apprehension and was taken into possession vide memo. Exh. P. D. Ismail was arrested and found to have been injured. The Sub-Inspector prepared his injury statement Exh. P. K. And got him medically examined on the following day at 12-15 p.m.
4. Vide his medico-legal report Exh. P. K./1, Dr. Ahmad Ghulam Muhammad P. W. 1 examined Ismail appellant and found a contused wound, 1--" x --', scalp deep, vertically on the right side of his head, 41" above the right ear, and a small swelling on the right hand for which he was advised X- ray. Injury No. 1 was declared simple while injury No. 2 was kept under observation but no X-ray report was produced in this regard. According to the doctor, both the injuries were caused with a blunt weapon. It may be mentioned in this context that these injuries were specifi--cally referred to by Muhammad Ibrahim informant in his initial report Exh. P. B. As having been caused to Ismail by Muhammad Aslam P. W. 8 in his attempt to apprehend Ismail. Of course, at the trial, Muhammad Aslam confined himself only to having given a blow on the head of Ismail. The Sub-Inspector arrested Yousuf appellant and Pir Bakhsh, the acquitted accused. On the next day, i.e. The 28th of February 1969.
5. On the 28th of February 1969, at 11-3 a.m. Dr. Ahmad Ghulam Ahmad held autopsy on the dead body of Muhammad Yousaf. Vide his post-mortem report Exh. P. C. Ha found it to be the body of an old man of average built and observed a stab wound, 3/4" x 3/8", going inside the chest, obliquely situated on the front aspect on the right side of the chest, 1/4" below the level of the nipple going to the left side. The sternum was cut through and through. The pericardium was cut and full of blood.
Aorta was injured and was pierced through and through close to the heart. Stomach contained semi-digested food material. The bladder was empty. All other organs were found to be healthy.
Death, in the opinion of the doctor, was due to shock and haemorrhage as a result of injury to the aorta (injury No. 1) which was caused by sharp-edged and pointed weapon. This injury was sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injury and death was sudden and that between death and post-mortem was about 20-22 hours.
6. On return from mortuary, Salati Khan F. C. Produced before the Sub-Inspector blood-stained clothes of the deceased which were taken into possession vide memo. Exh. P. E. On the 1st March 1969, Muhammad Yousuf appellant led to the recovery of his blood-stained knife Exh. P. 4 from underneath a shisham tree in the courtyard of his house in Himmatpura, which was taken into possession vide memo. Exh. P. F.
Having completed the investigation, the Sub-Inspector sent up the three accused.
7. The prosecution case rested on the testimony of the three eye-witnesses, namely, Muhammad Ibrahim P. W. 10, brother of the deceased, Muhammad Sharif P. W. 11, another relation, and Wali Muhammad P. W. 12, the two wajtakkar witnesses Muhammad Aslam P. W. 8 and Muhammad Ibrahim P. W. 9, who had chased and apprehended Muhammad Ismail appellant, the evidence of recoveries, and the circumstances of the apprehen--sion of Muhammad Ismail appellant along with dagger Exh.P.1, from the spot.
8. Muhammad Yusuf and Muhammad Ismail appellants admitted their relationship inter se, the latter being the son of the formers' fathers' sister. The former also admitted that Yousuf deceased and Ibrahim P. W. Were his father's sister's son. Muhammad Yousuf appellant stated that he was falsely implicated on account of suspicion that he had illicit relations with the wife of Ibrahim complainant. Explaining his differences with the complainant party, he stated as follows "The deceased and his brothers suspected that I had illicit relations with Mst. Khurshid wife of Ibrahim, but factually it was incorrect. Two years ago, Ibrahim P. W. Saw his wife sitting on my cot in Himmatpura. He started abusing his wife. I told him that I had no connections with his wife and that he should abuse his wife only if he noticed something wrong. A quarrel took place between us and I told him that he should not visit my house and that I would not visit his house."
He denied his presence at the spot at the relevant time.
Denying the allegations, Ismail appellant explained as follows: - "I was taking meat and cooked rice for my sister's son and daughter. Ibrahim son of Nika P. W. Was cutting the meat. Yousuf was coming out of his house at that time. Yousuf deceas--ed abused me and told me as to why I had come there in spite of his having stopped me. Ibrahim P. W. Wanted to inflict knife blow to me. I caught hold of his knife. Yousuf deceased entered his house and brought a stick and gave stick blow to me on my head. I went towards the back side of Ibrahim P. W. Yousuf deceased gave me another stick blow on my right hand. I pushed Ibrahim P. W. Towards Yousuf deceased and accidentally knife of Ibrahim P. W. Entered into the chest of Yousuf deceased. I ran away. I went to the police station and informed the Thanedar. Thanedar told me to sit down and promised to record my report, but in the meantime the complainant party reached the police station and informed the Thanedar about the death of Yousuf. Thanedar shut me in the lock-up of the police station and himself went out of the police station."
Pir Bakhsh explained his false implication as follows: - "Ibrahim Arain, and Abdullah cobbler contested last B. D election. Siraj P. W. Was a helper of Ibrahim Arain. I was helper of Abdullah cobbler. I had exchanged hot words wit Siraj P. W. Who told me that he would see to it and would teach me a lesson. On that account, I have been involve falsely."
They led no evidence in defence.
9. The learned trial Judge placed full reliance on the ocular testimony, supported by medical evidence and that of recoveries in so far as the case of Yousuf and Ismail was concerned, who according to his finding, shared the common intention.
10. As stated earlier, Yousuf, to whom the fatal knife injury was attributed, was sentenced to death while Ismail to that of transportation of life. Having regard to the fact that Pir Bakhsh was a local resident of Chak No. 209/R. B., was not related to the other co-accused, being a cobbler by caste, and was admittedly empty-handed, with no specific role having been attributed to him, was acquitted.
11. Learned counsel for the appellants contended before us, firstly that Muhammad Ibrahim P. W. 10, and Muhammad Sharif P. W. 11, were not only closely related to the deceased but were also inimical to the appellants and as such could not be relied upon. Secondly that Wali Muhammad P. W. 12, the third eye-- witness, was on his own showing the chance witness and as such could not be believed without independent corroboration which was not forthcoming. Thirdly that the recovery of knife P.
4.At the instance of Yousuf appellant from the courtyard of his house in Himmatpura locality, in Chak No. 214, was not supported by a respectable of that village and as such could not be safely relied upon. It was next contended that Ibrahim P. W. 9, was not mentioned in the initial report nor was his presence at the spot referred to by the other P. Ws. And as such no reliance could be placed on him either and lastly that the defence version of the occurrence as explained by Ismail, who had admittedly received two injuries, should have been believed.
12. Having carefully considered the evidence on the record we would be readily inclined to believe that the background of the occurrence including the immediate motive as furnished by the prosecution, is correct. Yousuf and Ismail appellants were admittedly related inter se as also to the complaint and the deceased. The sister of Ismail appellant was the first wife of Yousuf deceased on whose death he had remarried. Yousuf frankly admitted that he was suspected of having illicit connection with Mst. Khurshid wife of Ibrahim. Although Ismail denied having been similarly suspected but he frankly conceded that he too had been stopped by Yousuf deceased from visiting their house. It is thus abundantly clear that irrespective of the fact whether both Yousuf and Ismail were suspected of a romance with Mst. Khurshid, as the prosecution would have us believe or whether Yousuf alone had a love affair with her, as admitted by him, the fact remains that Ibrahim complainant and Yousuf deceased did not relish their visits and had stopped both of them. It is equally clear that on the day of occurrence Yousuf who resided in Himmatpura, and Ismail, who lived in Peoples Colony, got together and decided to visit Chak No. 209/R. B. Presumably with the object of passing in" front of the houses of the complainant and the deceased despite the latter's exception to it. Considered in this background, it could be reasonably inferred that having anticipated some resistance or clash, they would have gone fully prepared to meet such an eventuality. We are also inclined to believe that Ismail, who had admittedly visited the spot and had received two injuries of course giving a counter-version of the occurrence, was apprehended at a short distance from the spot while trying to run away. The occurrence took place at digarwela and in the report promptly lodged by Ibrahim at the Police Station Saddar, Nishatabad, after covering a distance of eight miles, he made a detailed reference to the injuries sustained by Ismail at the hands of Muhammad Aslam P. W. And his apprehension at the spot. The Sub-Inspector reached the spot at about 5-30 p.m. And arrested Ismail, who was produced by Aslam P. W. 8 and Ibrahim son of Abdullah P. W.
9. Aslam also produced before him a dagger like chhuri p, 1, which was snatched by them from Ismail at the time of his apprehension. It was taken into possession vide memo. Exh. P. D. It may be pointed out in this context that having sent for the chhuri, we found that it was contained in a case or sheathe and yet a reference to the case is simply conspicuous by its absence in the statements of Aslam P. W. 8 and Ibrahim P. W. 9, as also in the recovery memo. Exh. P. D. However, in view of the fact that chhuri was specifically described both in the first information report as also in the recovery memo. Exh. P. D. As dagger-like, coupled with the significant absence of any question having been put to the P. Ws. About the sheathe, except, of course, the Sub-Inspector, who when questioned, about this admitted its production and seizure without a reference in the memo, we would be inclined to believe in recovery along with the apprehension of Ismail. Although the site plan does not clearly indicate the place where Ismail was apprehended. Having considered the relevant evidence we are inclined to think that he was overtaken in the lane adjoining the one shown in the site plan. His own assertion that he succeeded in making good his escape and went to lodge the report at the police station where he was taken into custody, seems to have no basis on the record, inasmuch as the only relevant suggestion made to Habib Khan S. I. P. W. 13, was as follows: - "It is incorrect that I recorded the F. I. R. At the spot. It is incorrect that Ismail accused was not captured at the spot and that I arrested him there. It is incorrect that all the accused appeared before me on 27th February 1969."
It is thus clear that no direct or specific question was put to the S. I. About the voluntary visit of Ismail to the police station the promise of the S. I. To record his report, the arrival of the complainant party informing him about the murder of Yousuf and the consequent apprehension and detention of Ismail in the police lock-up, as asserted by him in his statement under sec--tion 342 of the Code of Criminal Procedure. Of course, some support could be gathered from the police statements of Sharif P. W. 11, and Wali Mohammad P. W. 12, wherein no reference was made to the apprehension of Ismail at the spot, both having stated that the accused ran away brandishing their weapons. Sharif was duly confronted with this while Wali Muhammad admitted not having referred to the apprehension of Ismail in his police statement. Both of them, however, deposed at the trial that Ismail was arrested at some distance and brought to the spot. As stated earlier, in view of the specific and significant reference of arrest of Ismail in the initial report, promptly lodged at the police station, we have no reason to disbelieve the witnesses in this regard, merely on account of this omission in the police statements of Sharif and Wali Mohd.
13. Having carefully considered the ocular evidence and its criticism we find no reason to disbelieve the presence of the eye-witnesses at the spot. It being the day of Eid-ul-Azha, Ibrahim and Sharif could he naturally expected to be present in their houses. Wali Muhammad resided in another lane, half a killa away from the spot. He had gone to see Barkat, whose house is in the same lane opposite to that of Ibrahim complainant, as indicated in site plan Exh. P. A.
14. Learned counsel for the appellants contended before us that the statements of the eye- witnesses who were by no means independent and disinterested, were discrepant in regard to the dress of Ismail, the details of the actual grappling, in particular whether Ismail caught hold of the shirt of the deceased from the front side or from the back that Sharif could not give the motive or the cases bali did not notice any injury on the person of Ismail and that Wali Muhammad, on his own showing, was a chance witness. No doubt Ibrahim P. W. 10 is the real brother of the deceased, Sharif is a cousin as well as married to the sister of the complainant and the deceased. The only indication of any connection of Wali Muhammad P. W. 11, with the deceased was given by Sharif in his statement before the committing Magistrate wherein he admitted that Wali Muhammad and Aslam were nephews of Ibrahim P. W. In relation. Such a relationship per se and in particular of a vague and remote kind, would hardly justify the rejection of the testimony of Wali Muhammad. The discrepancies in the matters of minor details etc. Are quite natural having occurred either on account of lapse of memory or being bona fide mistakes of perception and as such would not justify the rejection of the testimony of the P. Ws. Which receives adequate corroboration from the circumstances of the apprehension of Ismail along with chhuri P. 1, and his admitted receipt of injuries during the occurrence. Reliance may also be placed in this regard on the testimony of Muhammad Zakaria P. W. 5, one of the attesting witnesses of the recovery memo. Exhs. P. D. And P.
G., who was altogether a disinterested witness. He categorically stated during cross-examination that when he reached the spot, he found. Ibrahim and Aslam P. Ws. Holding Ismail accused at the spot. He further stated that Aslam had produced dagger before the S.I. Which was not stained with blood. The only portion of his statement which does not fit in with the prosecution case, is his denial of Ismail's admitted receipt of injuries. The details of the apprehension of Ismail are also available in the statements of Muhammad Aslam P. W. 8 and Muhammad Ibrahim P. W. 9.
15. The recovery of knife P. 4, made at the instance of Yousuf from his house in Himmatpura, was criticised on the ground that no respectable of the locality had been associated by the police to witness the same. Although normally one should expect such recoveries to be made in the presence of the respectables of the locality if available. Yet the police may, for good reasons, such as the non--availability of any such local witness or his reluctance to attest the recoveries, proceed with the matter in the absence of any such witness. In answer to a question, the Sub- Inspector stated that no person from Himmat--pura was made to join the investigation but it appears that the matter was not pressed further, otherwise the Sub-Inspector would have given the reason for not doing so. No inference adverse to the prosecution could thus be drawn in respect of the recovery, which in our opinion was rightly believed by the learned trial Magistrate.
16. This brings us to the plea of defence raised on behalf of Ismail, who excluded the presence of Yousuf and gave his own version of the occurrence. The plea was raised by Ismail for the first time only at the trial. Even at that stage there seems to be no consistency as would be clearly indicated by the following suggestions made to Ibrahim P. W. 10: "It is incorrect that on the day of occurrence Ismail accused had come to meet his sister's issues and that I and Yousuf deceased attacked him, that I was holding a knife, while Yousuf deceased had a stick, that I attacked Ismail accused with knife, but Ismail accused snatched the knife from me, that Yousuf deceased gave stick blow to Ismail accused and Ismail accused gave knife blow to Yousuf deceased in self-defence."
It may be recalled that according to Ismail, whose statement under section 342, Cr. P. C. Has already been reproduced in extenso, he pushed Ibrahim towards Yousuf and accidentally the knife of Ibrahim "entered into the chest of Yousuf deceased." Apart from the fact that it was merely an afterthought the accidental hitting of the deceased, as sought to be explained by Ismail, is as absurd improbability.
17. The up shot of the discussion, therefore, is that we are inclined to believe the prosecution version not only as to the genesis of the occurrence, but also in regard to the actual happening of the fight.
The precise questions that arise for determination, however, are firstly as to whether Yousuf deceased or his brother Ibrahim complainant were within their rights to deny the appellants the right of passage through a public lane. Secondly, if the appellants could legitimately insist on the exercise of right of passage through a public lane, could they be justified in the use of force in exercise there of. Thirdly what offence if any, has been committed by them in these circumstances.
18. There can be hardly any dispute that every member of the public has the right to pass through a public lane and use the same for legitimate purposes. No resident can take exception on that account. It is the prosecution's own case, that on account of the appellant's illicit connections with Mst. Khurshid, they had become persona non grata and their visits were not relished by the deceased and the complainant. It is no wonder that despite Ismail appellant being the brother-in- law of Yousuf deceased, the latter did not countenance his objectionable visits for considerations of family honour and had thus stopped him from passing is front of his house. It also appears to us that the two appellants had come fully prepared to meet the challenge and wanted to pass through the lane with no innocent purpose. Obviously even an enemy could not be prevented from passing through a public lane in front of one's house, and ordinarily no exception can be taken to this, but having regard to the background of the case and the objection of the appellants' visit at this particular juncture, the exercise of right of passage could, by no means, be deemed to be legitimate or innocent. Since the matter involved the question of the honour of the deceased and the appellants the attitude of the former in taking exception to it was, in our view, not wholly unjustified in the circumstances. As they grappled, Ismail appellant took the initiative by holding the shirt of the deceased while Yousuf appellant gave him a knife blow in the chest. Although, as stated earlier, in all probability the occurrence could have been avoided if the appellants had not insisted on passing through the lane with apparently an ulterior motive or in the alternative if the deceased had allowed them to pass through it yet in view of the circumstances, explained above, we are clearly of the opinion that the appellants had forced the issue and as such could not escape the legal consequences of the act, despite the fact that they had not come initially with the intention of committing murder. In so far as Yousuf appellant is concerned, he could be safely burdened with the responsibility of having caused "such bodily injury as was likely to cause death," while Ismail could be constructively held liable of having accompanied Yousuf all the way from Lyallpur. Accordingly, the offence committed by them falls within the mischief of section 304 (Part I), P. P. C. Punishable with a maximum sentence of transportation for life. Accordingly we commute the death sentence of Yousuf appellant to that of transportation for life. As regards Ismail, despite having been armed with a dagger, he did not use the same at any stage, although he himself sustained two injuries during the' occurrence. Accordingly he would be entitled to a lenient view in the matter of sentence, which is reduced from one of transpor--tation for life to that of seven years' rigorous imprisonment. The appeal partly succeeds to this extent. The sentence of death of Yousuf appellant is not confirmed.