BASHIRUDDIN AHMAD, J.--Bashir Ahmad (25) alongwith his younger brother Nazir (19) and their father Allah Ditta (51) were tried for the murder of Sai Muhammad, in furtherance, of their common intention, on December 21, 1966, by the Additional Sessions Judge, Gujrat, who acquitted Nazir and Allahditta, but convicted Bashir under section 302, P. P. C. And sentenced him to death. The convicted person appealed and the case is also before us on reference under section 374, Cr. P.
Code, for confirmation of the death sentence. This judgment will dispose of the appeal as well as the reference.
2. The facts of the case, shortly stated, are that on the eventful day, the deceased was assaulted by the appellant, who caused him spear injury which resulted in his death, at the shop of Muhammad Hussain Carpenter in village Khojianwali, as a day earlier Nazis Muhammad, a brother of the deceased, had not only abused Nazir co-accused, but had also given him fist and kick blows when his flock of sheep trespassed into the land of Nazir Muhammad and caused damage to the crop.
A.I Ahmad and Muhammad witnessed the occurrence. Muhammad Machhi informed Nazar Muhammad about the occurrence who went to the spot and got Sai Muhammad removed to the Civil Dispensary, Kunjah. The doctor in ' the Civil Dispensary, informed the bearers of the deceased that his condition was serious and he should better be removed to the Civil Hospital, Gujrat. Sai Muhammad was then taken to Civil Hospital, Gujrat, where he died early the next morning. After equipping himself with a medico-legal certificate, Nazar Muhammad proceeded to Kunjah Police Station where .a case under section 307 read with section 34, P. P. C., was registered at 4 p.m., the same day by Ghazanfar Ullah Shah Muharrir (P. W. 2). After the death of Sai Muhammad the offence was changed from one under section 307 to that under section 302, P. P. C. Read with section 34, P. P. Code.
3. The case was investigated by `Sub-Inspector Khadim Hussain (P. W. 15), who reached the spot, collected blood-stained earth and sealed it into a parcel " on 22-12-1966, on the same day, he received intimation from the doctor regarding the death of Sai Muhammad, went to the hospital prepared the injury-sheet and the inquest report arid then despatched the dead body to the mortuary for post-mortem examination. The appellant was arrested on 23-12-1966. While in custody, the appellant led to the recovery of blood-stained spear, Exh. P. 2, from under a heap of parali lying on the roof of his house which was taken into possession by the police in the presence of Ghulam Haider (P. W. 9) and Sai Muhammad (P. W. 10). It may be stated here that no blood on the spear Exh. P. 2 had been detected by the Chemical Examiner.
4. Luring the lifetime of Sai Muhammad, he was examined by Dr. A. A. Qadir Syed (P. W. 1) on December 21. 1966 at 3 p. m., who found a penetrating wound 2' x 1' on the chest, 8 -- below the left axillary fold. The air was entering and coining out of the wound.
The deceased died 'in the Civil Hospital, Gujrat, on 22-12-1966 and Dr. Tariq Rashid Toosi (P. W. 16) held the autopsy on the dead body, the same day at 12-15 p.m., and noticed a stab wound over the left chest situated 4f down from inferior angle of left scapula i.e. 2' x 1'. In the opinion of the doctor, Sai Muhammad died as a result of shock and haemorrhage caused by injury No. 1, which was sufficient to cause death in the ordinary course of nature.
5. The defence of the appellant was that in fact the deceased was put to death by Muhammad Hussain Carpenter when Sai Muhammad tried to take away forcibly his cattle because he would not give back to him the fodder-cutting machine and that the prosecution witnesses being inimical to the appellant and related to the complainant substituted the appellant for the real.
Culprit.
6. No evidence was produced in defence.
7. At the trial, Sher Muhammad (P. W. 12), A.I Ahmad. (P. W. 13) and Muhammad (P. W. 14) furnished direct evidence. On the day of the alleged occurrence, Sher Muhammad had accompanied the deceased 'to the house of Muhammad Hussain to whom they had sold a fodder-cutting machine for a sum of Rs.
40. He had paid them Rs. 10.00 and promised to pay the balance afterwards. They were having a talk with Muhammad Hussain when Allahditta, the father of the appellant, scaled over the wall of the court--yard of Muhammad Hussain armed with a hatchet and shouted a lalkara that he would not spare Sai Muhammad deceased. Allahditta aimed a blow with the hatchet at the deceased, but Sher Muhammad caught hold of him. In the meantime, The appellant entered the courtyard of Muhammad Hussain by the outer gate armed with a spear. He was followed by his brother Nazir, who carried a stick. The appellant speared the deceased who fell down on the ground after the receipt of the fatal injury. The evidence of A.I Ahmad and Muhammad Machhi is that on the day of the occurrence at chhuhmela, they happened to pass in front of the shop of Muhammad Hussain while going to village Mungowal when they beard an alarm and save Allahditta holding a hatchet in his hand and Sher Muhammad P. W. Was grappling with him. The appellant was armed with a spear, while his brother Nazir carried a stick. As soon as they reached the courtyard, Nazir shouted a lalkara and the appellant gave a spear blow to Sai Muhammad deceased who fell to the ground. The assailants then went away. Allahditta shouted that they had taken the revenge for the beating given a day earlier to their men.
8. The trial Judge after scrutinising the testimony of A.I Ahmad and Muhammad Machhi decided not to rely on their evidence and apart from the reason which prevailed with the trial Judge to distrust their evidence, he was also influenced by the circumstances that Sher Muhammad unequi--vocally stated that A.I Ahmad and Muhammad P. Ws. Come to the spot after the injury had been inflicted on the appellant. The conviction of the appellant rested on the statement of Sher Muhammad alone who is distantly related to the victim of the crime, but his presence at the spot at the time of the occurrence is established. He had accompanied the deceased to the house of Muhammad Hussain Carpenter for realising from him the balance of price of a fodder-cutting machine which had been sold to him.
9. Learned counsel for the appellant vehemently contended that the conviction was improper inasmuch as the evidence had been disbelieved against the two others, who were acquitted. We do not agree. It has to be borne in mind that Allahditta, father of the appellant, though alleged to have been armed with a hatchet at the time of the occurrence did not inflict any blow to the victim which militated the theory of his presence on the spot at the time of the occurrence. Nazir, a brother of the appellant was credited with a spear in the first information report by Nazar Muhammad, not an eye-witness, but at the trial it was stated by the witnesses shat Nazir carried a stick and simply raised lalkara. The trial Court in acquitting Allahditta and Nazir gave substantial reasons with which we agree.
The testimony of Sher Muhammad on which the conviction of the appellant is based is free from self-inconsistencies. His presence on the spot at the time of the occurrence was believed by the trial Court, On a perusal of his statement, eve are convinced that he was present when Sai Muhammad was fatally assaulted by the appellant at the shop of Muhammad Hussain. The omission on the part of the prosecution to produce Muhammad Hussain as a witness at the trial is understandable. The parties are proprietors in the village. Muhammad Hussain being a Carpenter is a kamin and could ill-afford to give evidence with impunity against the appellant who is a Jat Gondal. The failure of the prosecution to produce him as a witness does mot adversely reflect upon its case, as it was open to the defence to have insisted that Muhammad Hussain should be offered for cross-examination, but nothing of the kind was done. Thus the grievance that Muhammad Hussain was deliberately held back has no substance. The defence is equally to blame with the prosecution.
10. The recovery of spear, Exh. P. 2, at the instance of the appellant is sufficiently proved by the evidence of Ghulam Haider and Sai Muhammad besides the Investigating Officer. Sai Muhammad one of the recovery witnesses is distantly related to the deceased, but he bears no grudge against the appellant. Ghulam Haider is a completely disinterested and indepen--dent. We, therefore, hold that in view of the evidence on record, the trial Court was right in believing the recovery of spear, Exh. P. 2 from the house of appellant at his instance. No doubt, the weapon was not stained with human blood, but the statement of Sher Muhammad that the injury to the deceased was caused by means of a spear is sufficiently corroborated by the medical evidence. The doctor opined that the injury caused was a piercing wound. It could only be caused with a weapon having a blade which is sharp on both the sides as in the case of a spear. Once it is held that the injury to the victim was caused by means of s spear, as alleged by the prosecution, it becomes immaterial whether spear Exh. P. 2 or any other spear was actually used in causing the injury to the victim.
11. The story of the motive as narrated in the report to the police was not substantiated by Nazar Muhammad, the maker of the F. I. R. In his statement at the trial. According to Sher Muhammad, the trespass by the sheep in the crop of Nazir Muhammad bad taken place 2 or 3 days before the occurrence, but the witness admitted that he was not present at that time and did not see the incident. The incident which served as a motive was stated in the first information report to have taken place a day earlier. A.I Ahmad who deposed that Allahditta, father of the appellant, shouted that they had avenged themselves of the beating to their men, a day earlier, was disbelieved as he did not say so in his statement before the committing Magistrate and the trial Judge considered it an improvement. The finding of the trial Court that motive was not established cannot be held to be either improper or unreasonable.
12. On the view of the evidence that we have taken, we are firmly of the conviction that the appellant was responsible for the fatal injury caused to the deceased by means of a spear. He appears to have been rightly convicted under section 302, P. P. C. For the murder of Sai Muhammad.
13. The defence version that the deceased was actually stabbed by Muhammad Hussain Carpenter and the appellant was substituted in his place due to enmity is preposterous and does not require any elaborate discussion to be rejected. We, therefore, discard it.
14. What remains to be considered now is the question of sentence to be awarded to the appellant.
Since it is held that the prosecution failed to prove the motive which precipitated the attack on the deceased, we are inclined to replace the sentence of death awarded to the appellant with the lesser punishment provided under section 302, P. P. C., as it is not clear what preceded the assault on the deceased at the shop of Muhammad Hussain with spear by the appellant. The house of Allahditta, father of the appellant, being in close proximity, the possibility about the appellant having come to the shop of Muhammad Hussain either by chance or on hearing something uttered by the deceased cannot be ruled out.
While upholding the conviction of the appellant for the murder, we substitute the sentence of death with that of transportation for life. The appeal is accepted, to this extent only. The death sentence is not confirmed. The reference is answered accordingly.