' JAVID IQBAL, J.--- Siraj son of Ismail, aged 37 years, armed with knife, has been convicted under section 302, P.P.C. For the murder of Muhammad Yaqoob aged 30 years, and vide judgment of the Additional Sessions Judge, Faisalabad, dated 13-2-1978 was sentenced to death plus fine of Rs,5,000 or in default to undergo two years' rigorous imprisonment. His three brothers, namely Chiragh, .Armed with knife, Ramzan armed with Barchhi, Muhammad Bakhsh, armed with Barchhi, and his nephew Mukhtar, armed with knife, were given the benefit of doubt and acquitted. The appeal of the convict as well as reference for the confirmation of death sentence awarded to him are being taken up and disposed of together by this judgment.
2. The occurrence took place at 4-05 p.m. On 26-3-1975 within the area of Chak No, 54/RB, at a distance of 14 miles from Police Station Khurrianwala, District Faisalabad. F.I.R. Exh.P.A. Was lodged by Abdul Ghafoor P.W.9, brother of the deceased at 7-00 p.m. On the same day and it was recorded by Muhammad Haneef A.S.I. P.W.13.
3. The motive of crime, as set up by the prosecution, is that nine months prior to the present occurrence Sardar Muhammad, brother of the appellant, was murdered and in that murder case Mehr Din, father of the present deceased, and three of his brothers were challaned and were being tried. The murder of the deceased, therefore, was committed in order to avenge the murder of Sardar Muhammad.
' The murder of Sardar Muhammad and the implication in that murder case of the father and three brothers of the deceased has not been denied by the accused party. It is, therefore, obvious that the accused and the complainant parties have deep-rooted enmity and they appear to have been involved in blood feuds.
4. The prosecution has produced three eye-witnesses of the occurrence, namely, Abdul Ghafoor P.W.9, injured brother of the deceased, Abdul Majid P.W.10 and Shaukat Ali P.W.11, both unconnected and chance witnesses who were also partisans. Godi had been cited as an additional eye-witness of the occurrence but was given up as won over.
' It may be pointed out at this stage that all the eye-witnesses have been disbelieved by the trial Court for the reasons given in paras. 10 and 11 of the judgment at pages 53 to 57 of the paper-book.
5. The appellant and the acquitted co-accused offered themselves for arrest two days after the occurrence through the Lambardar and were formally arrested by Ghulam Raza I.P. P.W.12. Siraj appellant produced blood-stained knife P.29 which was taken into possession vide memo. Exh.P.F.
Dated 28-3-1975. Bloodstained clothes of Siraj appellant, namely, Chaddar P.30, shirt P.38 and Khes P.32 were got removed from his person and taken into possession vide memo. Exh.P.G. Dated 28-3- 1975. From Mukhtar, acquitted co-accused, was recovered blood-stained knife P.33 which was taken into possession vide memo. Exh.P.H. Dated 28-3-1975. All these recoveries have been attested by Bashir Ahmad P.w.7, a close relative of the deceased, Jalal Din P.W.1, nephew of the deceased and Ghulam Raza I.P. P.W.12. No other recovery was effected. According to the report of the Serologist Exh.P.U. At page 15 of the paper-book scrapings of knives P.29 and P.33 as well as cloth cuttings of Chaddar, shirt and Khes P.31 and P.32 were found to be stained with human blood.
6. In their statements before the trial Court the acquitted co-accused denied having participated in the occurrence. Mukhtar disowned recovery and all of them stated that they had been falsely implicated due to enmity. Siraj appellant, however, did not deny the occurrence but raised the plea of self-defence. He stated that on the fateful day he was coming to his village. The deceased per chance happened to meet him at the place of occurrence. He started talking about the murder case against his brothers because the accused party were opposing the bail application of his brothers. During the talk the deceased got enraged and he started giving him knife blows which he saved on his left hand. At last he apprehended danger to his life from him. He had a knife with him and he drew out the knife and gave the deceased four blows with the said knife in the exercise of his right of private defence. He further stated that the eyewitnesses were not present at the time of occurrence, but the complainant party afterwards concocted a false story and involved him as well as the acquitted co-accused in this case due to enmity.
7. In the F.I.R. The occurrence is reported to have taken place in the following manner: On the fateful day Abdul Ghafoor P.W.9 and the deceased were returning on their bicycles to the village after selling cloth in different Chaks. When they arrived near the garden of Ch. Sher Muhammad, at that time Abdul Ghafoor P.W. Was at some distance ahead of the deceased, when suddenly the appellant as well as the acquitted co-accused, armed as described above, emerged out of the garden and raised a Lalkara that the deceased would not be spared. The deceased, who was at a distance of about 25/30 Karams behind this witness, got down from his bicycle and ran backwards.
The accused party chased him and Muhammad Bakhsh, acquitted co-accused encircled him at some distance. Abdul Ghafoor P.W. Also left his bicycle and ran towards the deceased, his brother, in order to rescue him. But in the meantime Chiragh, acquitted co-accused gave a knife blow which fell on the left flank of the deceased. Thereafter, the remaining members of the accused party including the appellant started giving blows one after the other with their respective knives and Barchhis to the deceased on the chest, right flank, left armpit and left hand. The deceased fell down and died on the spot. Mukhtar, acquitted co-accused gave two successive knife blows to Abdul Ghafoor P.W. Which fell on the middle fingers of his left and right hands. On the alarm of Abdul Ghafoor P.W. Shaukat Ali P.W.11, Abdul Majid P.W.10 and Godi (given up as won over), who were nearby, rushed to the scene of crime. On seeing them the accused party ran away; The occurrence was witnessed by these eye-witnesses besides Abdul Ghafoor P.W. Leaving behind Ghulam Muhammad Chowkidar and father of the deceased to guard the dead body, Abdul Ghafoor P.W. Proceeded to lodge the report.
8. Dr. Ahmad Saced P.W.1 conducted post-mortem examination on the dead body of the deceased at 10-00 a.m. On 27-3-1975 and found on his person four stab wounds and three incised wounds on chest and abdomen region as well as left index finger and left thumb. The stab-injuries had been caused by sharp-pointed weapon while the incised injuries had been caused by sharp-edged weapon. The incised injuries were simple in nature but the stab-injuries were collectively sufficient to cause death in the ordinary course of nature. The time between injuries and death was within about quarter to half an hour.
' Dr. Muhammad Asghar P.W.2 medically examined Abdul Ghafoor P.W. At 9-00 a.m. On 27-3-1975 and found on his person a superficial incised wound on the right middle finger, an abrasion on the front of left ring finger, an incised wound on the left middle finger, multiple linear abrasion on an area of inner side of left fore-arm, multi-abrasion an area of the back of left leg, two abrasions on the left knee and one abrasion on the left shoulder. All injuries were simple. Incised injuries had been caused with a sharp-edged weapon whereas the rest had been caused with blunt weapon within the duration of 24 hours.
' On 28-3-1975 at 11-00 a.m. He medically examined Siraj appellant and found on his person six incised wounds on the left finger, left hand, ring finger, front of left hand little finger, front and inner side of left palm and two superficial injuries on front of left palm. All injuries were simple in nature and caused by a sharp-edged weapon within the duration of 48 hours.
9. We have heard learned counsel for the appellant as well as the State and carefully perused the record. It has been argued by the learned counsel that the trial Court, in the instant case, has totally disbelieved the ocular testimony and has given the finding that the three eye-witnesses produced by the prosecution were not present on the spot. It is next submitted that although the relevant recoveries, which had been discussed above, were believed by the trial Court, it has given a finding in para. 12 of the judgment that since there was no reliable ocular evidence on the record from the prosecution side to connect the commission of crime, these recoveries could not he made a basis for conviction of those members of the accused party from whom they were effected, namely, Siraj appellant and Mukhtar, acquitted co-accused. Learned counsel then referred to para. 13 of the judgment of the trial Court and pointed out that the trial Court had arrived at the conclusion that the appellant besides having exceeded the right of private-defence had intentionally caused the murder of the deceased and, therefore, was guilty of his murder. He acquitted rest of the members of the accused party, because the prosecution did not succeed in proving its version of the occurrence as against them. However, he proceeded to convict the appellant under section 302, P.P.C. And sentenced him to death plus fine. It was argued by learned counsel that if the ocular testimony had been disbelieved and the recovery evidence had not been considered of any corroborative value and furthermore if the plea raised by the appellant of self- defence was accepted by the trial Court, there remained a contradiction in the judgment that if the appellant had exceeded the right of private-defence, then how could he be considered to have intentionally caused the murder of the deceased.
' We have carefully considered the argument of learned counsel. The trial Court has discussed the ocular testimony in paras. 10 and 11 of the judgment which are reproduced below:-.
"10. The ocular evidence produced by the prosecution in this case consists of the statements of Abdul Ghafoor P.W.9, Abdul Majid P.W.10 and Shaukat All P.W.11. Abdul Ghafoor P.W.9 is the person who lodged the F.I.R. Exh.P.A. And is real brother of the deceased. The relationship inter se of the accused person given by him in his statement is admitted by the accused persons and similarly the enmity given by him in his statement stands admitted by the defence side and I, therefore, need not discuss these two points of his statement. This P.W.9 in his statement has stated that about three years back at about 4 p.m., he alongwith his brother Yaqub deceased was coming back to his Chak on cycles after selling the cloth in the adjoining villages. Yaqub was about 25/30 Karams behind him and when he reached near the garden of Sher Muhammad Gujjar the accused persons came out from the side of garden. Muhammad Bux and Ramzan accused according to his statement were armed with spears whereas the rest of the accused were armed with knives. The accused raised Lalkara addressing Yaqub deceased that he would not he allowed to go, at which Yaqub deceased threw his cycle there and ran backwards but before this witness could reach to rescue his brother, Chiragh accused gave a knife blow to Yaqub in the left flank and thereafter the other accused also started giving injuries to Yaqub with their respective weapons and on the noise of this witness, Majid P.W. And Godi P.W. Reached there and saw the occurrence. He has further stated that Ramzan accused gave a spear blow in the abdomen of Yaqub, Chiragh gave a second knife blow in the front chest of Yaqub and Muhammad Bakhsh accused gave a spear blow under the right armpit of Yaqub and when this witness tried to rescue his brother, Mukhtar accused gave him two knife blows which he saved on his hands. According to him, Yaqub fell to the ground and died at the spot. The cross-examination of this witness shows that in his statement in Court, he has made a lot of improvements as compared to his statement Exh.P.A. He has duly been confronted with those parts of his statement in Court which are not given in Exh.P.A. In Exh.P.A. What he stated was that all the accused came out from the garden armed with spears and knives, attacked Yaqub and caused injuries on his person. In Exh.P.A. He has not attributed any specific injury to any accused whereas in his statement in Court he has tried to attribute specific injury to the accused persons which obviously shows that he has tried to make a material improvement in his statement in Court. In Exh.P.A. The only specific injury is attributed to Chiragh accused whereas in his statement in Court, he has tried to attribute specific injury to every accused person. In his cross- examination, he has admitted that Chiragh accused is an eyewitness in the murder case of Sardar pending against his father and his brothers and that said case was lodged by Din Muhammad brother of Chiragh accused. Yet another point which makes the statement of this P.W.9 doubtful is that in his statement in Court he has stated that Mukhtar accused gave him only two knife blows which he saved on his right and left hands, but according to the statement of P.W.2 when he examined this witness, this witness had as many as seven injuries on his person. Besides, having injuries on the right middle and the left ring and middle finger, he had injuries on mid front and inner side of left forearm. Multiple abrasion 6" x 1" on back of left leg. Two abrasions 1/4" x 1/4" on left knee, and one abrasion 1/2" x 1/10" on left shoulder. In his statement this P.W.9 has not given any satisfactory explanation of the injuries on his person at the time of examination by P.W.2 which were on his back, on his leg and on his fore-arm. The statement of this witness, therefore, that he was present at the time of occurrence and received injuries at the hands of Mukhtar accused is highly doubtful one. Yet another point which goes against this witness is that though, according to the `Qarvai' police on Exh.PA. He was found to have two injuries one each on his both hands, he was not sent to the doctor for medical examination immediately after the recording of Exh.PA. And was rather taken to the place of occurrence from where he was sent for medical examination. P.W.13 Muhammad Hanif, A.S.I. Who prepared the injury statement of this P.W.9 Exh.P.L. Has shown four injuries on his person. It is strange that according to the `Qarvai' police at the back of Exh.PA. This witness had only two injuries one each on his each finger of both the hands at the time of the lodging of Exh.P.A. At the time of preparation of injury statement, this P.W.9 had four injuries, vide Exh.P.L. And yet at the time when he was examined by P.W.2, he had seven injuries on his person vide Exh.P.R. How and in what circumstance the injuries on the person of this P.W.9 continued increasing is not explained by this P.W.9 in his statement. It cannot be said by any stretch that when he was examined at the time of lodging of Exh.P.A. Or at the time of preparation of Exh.P.L. The A.S.I. Did not minutely examine the body of this P.W.9. P.W.13 in his cross-examination, at first stated that his injury statement was prepared at the place of occurrence and when confronted with his report on Exh.P.A. He again said that it was prepared at the police station but was sent for examination from the place of occurrence. I am afraid, even this P.W.13 has not been able to give any satisfactory reply about the injuries on the person of this complainant at the time of his lodging of F.I.R. Exh.P.A. Men may tell a lie but the circumstances do not. It, therefore, appears that the injuries alleged to have been received by this P.W.9 at the time of occurrence are highly doubtful which makes even his presence at the time of occurrence a highly doubtful one. The argument of the learned counsel for the defence is not without force that had the accused with a pre-planning assembled in the garden to cause the murder of Yaqub due to their previous enmity with the complainant party, this P.W.9 would not have been allowed to go with only two injuries one each on his both hands. His this argument also does have some force that had the accused intentionally and with pre-planning formed an unlawful assembly in the garden to avenge the murder of their nephew, they would not have spared this P.W.9. I may make a mention here that the prosecution has not produced any evidence to show as to how these accused were in the know of the time of the return of this witness and the deceased from their routine round of the surrounding villages so as to give them an opportunity to pre-plan the murder of Yaqub. In the absence of any explanation in this respect in the whole prosecution evidence it seems highly doubtful that all the accused had pre-planned the murder of Yaqub and murderous assault on this P.W.9 and assembled in the garden at a particular hour of the day. It is in the statement of this P.W.9 that he and his brother had left the village in the morning time i,e, about seven hours before their return to the village. The accused cannot be expected to have pre-planned and waited for them for seven long hours in the garden. To my mind the possibility of some of the innocent persons having been involved in the case by this witness due to previous enmity between the parties, cannot be ruled out specially when in his statement in Court, this witness has tried to specifically attribute injuries to every one of the accused persons. The statement of this P.W.9, therefore, in the above stated circumstances, being that of an interested person who had reason to falsely implicate some of the accused persons due to his previous enmity with the accused party cannot be relied upon and hence a very strong independent corroboration to the statement of this witness is necessary for reliance on him."
11. The other two witnesses produced by the prosecution as eye-witnesses in the case are P.Ws. 10 and 11. Both these witnesses in their examination-in-chief have no doubt, corroborated the statement of P.W.9 on material particulars, but similar is the case with these witnesses in respect of their previous statements before the police Exh.D.C., Exh.D.D. And in their statements before the C.M.
The position of both these witnesses is that of chance witnesses and they are not the persons whose presence at the place and time of occurrence can be said to be natural one. According to their statements these two P.Ws. Accompanied by Godi were coming to Chak No,56 to see a buffalo. Their having been present at the time and place of occurrence as shown by them is a mere chance. The statements of both these witnesses besides being contradictory on material particulars to their previous statements before the police and the C.M. Are contradictory to one another also. These contradictions in their statements pertain to the place where they gathered in their chak with a view to go to Chak No,56. In their statements before the C.M. The way in which the occurrence took place is also given in a different way in which they have given in Court. According to the statement of P.W.10 before the C.M. When the accused came out from the garden, Muhammad Bakhsh accused aimed his spear at Yaqub deceased and Yaqub to save the same laid down on the ground at which all the other accused gave him blows with their respective weapons when he was lying on the ground whereas, according to his statement in Court all the blows were caused to the deceased in standing position. This P.W.10 Abdul Majid has denied his relationship with P.W.11 but it is very much clear from the statement of P.W.10 that he and Shaukat P.W. Have been appearing together as witnesses in criminal cases against Shahbaz and others. No doubt, both these witnesses have denied the suggestion that they are stock witnesses of the police but the statements of these chance witnesses cannot be taken as an independent corroboration to the statement of P.W.9. P.W.12 Ghulam Raza who investigated this case in his cross-examination has admitted that some persons claiming themselves to be the eye-witnesses to the occurrence appeared before him during the investigation of this case and told him that three of the accused namely Chiragh, Ramzan and Muhammad Bakhsh were innocent in this case but said persons were not prepared to be cited as witnesses in this case due to fear. He has even gone to the extent of saying that Muhammad Bakhsh, Ramzan and Chiragh accused were not present according to his investigation at the time and place of occurrence but as the P.Ws. And the complainant were insistent about the presence of these accused persons also, he left the matter for the Court to decide. He has also admitted that in the case diary, he has written that according to his investigation these three persons were found to be innocent. I am afraid, in view of the statement of P.W.12 above, the statements of P.Ws. 10 and 11 cannnot be taken to be an independent corroboration to the statement of P.W.9. The ocular evidence, therefore, produced by the prosecution on the record is not free from doubt and I doubt it very much that P.Ws. 9, 10 and 11 were present at the time of occurrence. The previous enmity between the parties is an admitted fact and, therefore, the possibility of this P.W.9, having falsely implicated some of the innocent persons cannot be ruled out. The injuries on the person of this P.W.9, which are shown by the prosecution to have been received by this witness in the occurrence are also highly doubtful and as observed by me above, the injuries Nos. 4 to 7 found by P.W.2 on the person of this witness and given in Exh.P.R. Are not explained by this P.W.9 or any other witness in his statement. If this witness received only two superficial injuries, one on each hand in the occurrence, how he happened to have seven injuries on his person at the time of examination by P.W.2. The injuries on this witness as shown by P.W.2 and P.Ws. 10 and 11 in their statements in Court and mentioned in Exh.P.R. Are not of such a nature which cannot be self-inflicted or inflicted by friendly hand. The argument of the learned counsel for the defence that in order to prove the presence of this P.W.9 at the time of occurrence, this P.W.9 managed to get some superficial injuries inflicted on his person, is a plausible one because there being previous enmity between the parties such like possibility cannot be ruled out. The ocular evidence therefore, produced by the prosecution is absolutely insufficient to connect the accused with the commission of this offence and is highly doubtful one."
' In our view, the trial Judge was not at all correct in his assessment of the ocular testimony and there was no jurisdiction on his part to arrive at the erroneous conclusion that the eye-witnesses were not present on the spot. A perusal of the ocular testimony has made us arrive at the conclusion that they were interested witnesses and, therefore, their testimony should have not been accepted without corroboration qua each member of the accused party. Abdul Ghafoor P.W.
Was real brother of the deceased. He had sustained some injuries. At the time of his appearance before the police when he got recorded the F.I.R. He had two injuries on his hands. The number of his injuries may have increased subsequently but the question as to whether or not he had received these injuries in the course of occurrence was not of any relevance. He might or might not have received injuries on the spot. Even if he had received injuries on the spot and his presence on the spot was established, he was still an interested witness with a motive to falsely implicate as many members of the accused party as possible. Similar is the case with Abdul Majid and Shaukat Ali P.Ws. Who were chance witnesses and partisans and, therefore, could be considered as interested witnesses. The additional reason for considering them as interested witnesses who had a motive to enlarge the net is this that according to the testimony of Ghulam Raza I.P.P.W. 12, he had stated that he had interrogated four persons of the village, who claimed themselves to be eye-witnesses of the occurrence but he did not cite them as P.Ws. In this case because they were not prepared to come forward as eye-witnesses. According to his investigation, Muhammad Bakhsh, Ramzan and Chiragh, acquitted co-accused were not present at the time of occurrence.
He had written in the case diary that according to his investigation the aforesaid three members of the accused-party were innocent but as the persons who stated so before him were not prepared to appear as P.Ws. He also challaned them on the basis of the statement of Abdul Ghafoor, Abdul Majid and Shaukat Ali P.Ws., in the instant case, as the complainant side had insisted that the said three persons had likewise participated in the occurrence. Furthermore, no recoveries could be effected from Chiragh, Ramzan and Muhammad Bakhsh, acquitted co-accused. Thus, it is evident that the ocular testimony, in the instant case, was interested and should have been considered with abundant caution. The only mode known to consider the interested ocular testimony is to seek its corroboration coming from an independent source. In the instant case, recoveries had been effected from the appellant and Mukhtar, acquitted co-accused, of the weapons of offence as well as clothes of the appellant and according to the report of the Serologist all these articles were found to be stained with human blood. Consequently, so far as the ocular testimony was concerned, it was corroborated so far as the present appellant and Mukhtar co-accused are concerned. At this stage, it was pointed out by learned counsel for the appellant that the appellant has admitted the occurrence in the sense that he was attacked by the deceased and in the exercise of his right of self-defence he caused injuries to the deceased with his knife and killed him.
It is, therefore, submitted that it is evident that in the course of occurrence the clothes of the appellant got blood-stained as well as his knife. He had himself appeared before the police two days after the occurrence and produced the human blood-stained knife as well as human bloodstained clothes which he was wearing. Thus, the reasoning of learned counsel is that the recovery evidence which may be considered as corroborating the ocular testimony qua the appellant must also be considered to corroborate the plea of self-defence being raised by the appellant as he had sustained injuries on his left hand caused by the knife blows of the deceased in the course of the occurrence. It was submitted that the medical evidence further supported the plea of the appellant that he had received the injuries on his left hand within 48 hours. Learned counsel argued that the injuries on the person of the appellant had not been explained by the eye- witnesses of the occurrence. Consequently, according to learned counsel if the plea raised by the appellant is put side by side with the interested ocular testimony corroborated by the recovery evidence in respect of the appellant, then as between the two versions, the version of the appellant must be accepted.
' We have carefully considered these arguments of learned counsel but find them without any substance. The cross-examination of the eye-witnesses indicates that the suggestion in respect of the plea of self-defence raised by appellant was put to them but they categorically denied the same. A perusal of the statements of the eye-witnesses, particularly their cross-examination, further reveals that no question was put to them as to how the appellant had sustained injuries on his hand. There is no mention in the F.I.R. That the appellant had received any injuries at the hands of the deceased. Similarly, there is no mention of this fact in the ocular testimony at the trial stage, The defence never suggested to the eye-witnesses that the appellant had injuries on his hands and they should explain as to how he got them. We are also aware that the appellant was not apprehended on the spot or arrested soon after the occurrence. He voluntarily appeared two days after the occurrence before the Investigating Officer through the Lambardar and produced human blood-stained knife as well as human bloodstained clothes worn by him and it was only at that time that injuries were found on his hand. According to the medical evidence, the injuries found on the hand of the appellant were within the duration of 48 hours. They arc all on left hand and all simple in nature. The case of the defence is that there was nothing on the record to show that he was a left-handed person and might have received these injuries on the course of his giving blows to the deceased. We have considered this aspect of the case. According to the appellant, the deceased had attacked him with a knife and caused injuries to him on the hand, and in the exercise of his right of self-defence he took out his own knife and caused injuries to him. However, the deceased died on the spot and his knife was not left on the spot. The appellant produced his own knife before the police two days after the occurrence when he had offered arrest. The nature of the injuries on his hand is simple and the possibility cannot he ruled out that these might have been self- inflicted after the occurrence but before the arrest of the appellant in order to make out a plea of self-defence. So far as the record is concerned, there is nothing there to support the version of the appellant of self-defence except his own statement. In the ocular testimony this suggestion had been categorically denied. The eye-witnesses were never asked to explain as to how the appellant had sustained injuries on his left hand. The natural inference would be that at the time of the occurrence while he was causing injuries to the deceased, he did not sustain any injury but came forward with the same when he offered himself for arrest before the police two days after the occurrence.
' The trial Judge has discussed the plea of self-defence of the appellant in para.13 of the judgment as follows:-- "13. The prosecution having failed to prove its version of the occurrence now, what I have to see is the version of the occurrence given by Siraj accused in his statement recorded under section 342 of the Cr.P.C. It is well-settled law that when the version of the accused is to be made a basis for the decision of a case, it is to be believed as a whole or rejected as a whole and the Court cannot base conviction of an accused person on a part of his statement. The version of the occurrence given by Siraj accused in this case is that at the alleged time and place of occurrence, he was coming to his village, when he per chance happened to meet Yaqub deceased who was alone and in their this meeting on a conversation pertaining to the hail of the brother of Yaqub deceased in case of murder of Sardar brother of this accused Yaqub got enraged, took out his knife caused injuries to this accused and in his right of private defence he also caused four injuries with a knife to Yaqub deceased. It is these injuries with which Yaqub died, according to the statement of P.W.1.
Now what I have to see is that if the statement of this accused is believed in toto, he has exceeded his right of private defence or not. The injuries on the person of this accused Siraj as given by P.W.2 in his statement in Court as well as in his report Exh.P.S. Shows that he had five injuries on his person, one incised wound 1/2" x 1/8" skin deep on front of left finger, an incised wound 1/2" x 1/8" skin deep on front of left hand little finger, an incised wound 1/4" x 1/10" skin deep on front and inner side of left palm and two incised wounds 1/2" x 1/4" skin deep superficial on front of left palm. These injuries clearly show that all these injuries besides being simple by a sharp-edged weapon are superficial in nature and are on the left hand of this accused person. Even if his this statement is believed that Yaqub deceased with a knife inflicted these injuries on his person, the nature of these injuries is such which would show that this accused had absolutely no danger to his life at the hand of the said deceased so as to cause the deceased those injuries which have been found on the person of the deceased in his postmortem report and which are admitted by this accused to have been caused by him to the said deceased. Injuries Nos.1 to 4 are stale wounds on the person of the deceased and every one of these injuries is grievous and on the vital part of the body of the deceased. Every single injury out of these injuries on the person of the deceased was by itself a fatal one and it cannot be said that after inflicting any one of these injuries on the person of the deceased this accused still apprehended danger to his life from the deceased. The severity, the seat of injuries and the weapon used by the accused in causing these four stab wounds on the person of the deceased are indicative of the fact that instead of an intention of saving himself from the hands of the deceased, this accused with an intention to cause the death of said deceased, for which he had a reason and motive, he gave these injuries to the deceased. The injuries, therefore, caused by this accused on the person of the deceased cannot be said to have been caused by him simply with a view of right of private-defence but with an intention to cause the death of said person. Injuries Nos. 5 to 7 on the person of the deceased clearly show that he received those injuries while warding off the infliction of these injuries on his person because all these three injuries are on the left hand of the deceased. It is a well-settled principle of law that where an accused pleads a right of self-defence, it is for him to satisfy the Court that the act done by him was necessary to save his own life and that he did not exceed the force which was needed for his self- defence. Once, it is proved that such an accused has used more force, than it was needed by him for his private-defence, he is said to have exceeded the right of private-defence. Men may tell a lie but the circumstances do not. The nature of the stab wounds on the dead body of the deceased speak themselves of the fact that these injuries were caused on his person with an intention to cause his death and not in right of private-defence. On the basis of the statement of the accused Siraj coupled with the medical evidence on the record, it can very safely be said that besides exceeding his right of private-defence, he intentionally under the pretext of his right of private- defence caused the death of Yaqub deceased by causing such bodily injuries on his person which he knew would definitely result in his death due to the grudge which he had against Yaqub for the murder of his brother Sardar by the brothers and the father of the deceased.
' In these circumstances, therefore, I am of the considered opinion that besides having exceeded the right of private-defence, this accused had intentionally caused the death of Yaqub and so has been guilty of his murder. As the prosecution has not succeeded in proving its version of the occurrence, it cannot be said to have succeeded in proving its case against Mukhtar, Chiragh, Ramzan and Muhammad Bakhsh accused. In these circumstances, I convict Siraj accused under section 302, P.P.C. And sentence him to death and a fine of Rs,5,000 or two years' R.I. In default with the direction that he should he hanged by the neck till he be dead."
In our considered opinion, the assessment of evidence by the trial Judge on this point is absolutely erroneous, and his conclusion, on the face of the judgment, is altogether contradictory. There is nothing on the record to support the plea of self-defence raised by the appellant. Consequently, if the plea of self-defence was not available to the appellant, there was no justification in considering the question as to whether or not he had exceeded the right of self-defence. The ocular testimony is corroborated in respect of the appellant as well as Mukhtar, acquitted co-accused and the trial Court should have proceeded to arrive at its conclusion in the light of the evidence on the record.
However, the position is that the trial Judge has convicted the appellant under section 302, P.P.C.
And we agree with him so far as the, conviction of the, appellant is concerned for the reasons discussed above, but we regard his findings and conclusions as erroneous and misleading. In our considered view, the prosecution had succeeded in establishing its case beyond any shadow of doubt as against the present appellant as well as Mukhtar, acquitted co-accused. But unfortunately Mukhtar had been erroneously given the benefit of doubt and acquitted and there is neither any State appeal nor any criminal revision as against his acquittal before us. Even if we were to give a suo motu notice to him as to why he should not he convicted under section 302, P.P.C. Like the present appellant and sentenced accordingly, it would, at the most, mean -a retrial of Mukhtar. In the circumstances, therefore, we do not consider that it would serve any useful purpose for issuing suo motu notice to Mukhtar, acquitted co-accused.
' In the light of the above discussion, in our considered opinion the conviction of the appellant under section 302, P,P.C. Was quite proper because on the basis of assessment of evidence by us, we have arrived at that conclusion. Consequently, his conviction is maintained. As for the question of sentence it was argued by learned counsel that the brother of the appellant had been murdered by the father and three other brothers of the deceased about nine months prior to the present occurrence and they were being tried when the present occurrence took place. Consequently, if the appellant murdered the deceased, it was only in order to avenge the murder of his brother. It was urged that in the circumstances a case was made out for lesser penalty so far as the appellant was concerned. We have considered this aspect of the case. The record shows that in the murder case of the brother of the appellant only one of the brothers of the deceased had been convicted under section 302, P.P.C. And sentenced to imprisonment for life, whereas the father and other brothers of the deceased, who were implicated in that murder case were acquitted. Since the appellant had caused the death of the deceased in order to avenge the murder of his brother, we are of the view that a case was made out for the awarding of lesser penalty. The result is that although the conviction of the appellant is maintained under section 302, P.P.C. The sentence of death awarded to him is altered to that of imprisonment for life. The sentence of fine is maintained and if it is realized from the appellant it should be paid as compensation to the heirs of the deceased. With this modification the appeal is dismissed.
' The death sentence awarded to the appellant is not confirmed. Death sentence not confirmed.