Chiragh son of Ilahi Bakhah, aged 45 years, has been convicted under section 302, P. P. C. And sentenced to transportation for life for the murder of Manzur vide judgement dated the 14th of December, 1971, of the Sessions Judge, Lyallpur. His two co-accused, namely, A.I Muhammad and Muhammad Sadiq were acquitted. The appeal of the convict is before me which is being, disposed of by this judgment.
2. The occurrence took place at 9 p.m. On the 5th of August, 1970, in street No. 3, Jhang Bazar, Lyallpur, at a distance of two furlongs from Police Station Kotwali, Lyallpur. F. I. R. (Exh. P. A.) was lodged by Ghulam Hussain (P. W. 9) father of the deceased at 9-45 p. m. On the same day and it was recorded by Ikramullah Khan Niazi S. I. (P. W. 12).
3. The motive for crime as set up by the prosecution in the F. I. R. Is that a son had been born in the house of Muhammad Sadiq acquitted co---accused, who was a close relative of the appellant and their women-folk were celebrating the same while the deceased was found peeping inside the family quarters. It is stated that this led to the occurrence.
According to Rehmatullah (P. W. 8) about 1J months prior to the occurrence relatives of Muhammad Sadiq acquitted co-accused, namely, Safdar, Iqbal and Muhammad Hussain gave injuries to the deceased who lodged a report under section 324, P. P. C. Against them, About a week before the occurrence the deceased and the appellant abused each other in front of their houses which were opposite to each other but were separated by Rehmatullah P. W. And Inayat A.I. The appellant at the time of leaving had threatened the deceased that he would kill him.
4. The prosecution has produced three eye-witnesses of the occurrence in this case, namely, Ghulam Hussain (P. W. 9), father of deceased Muhammad Islam (P. W. 10). Brother of the deceased Muhammad Ikram (P. W. 11) another brother of the deceased. The only independent witness, reamed in the F. I. R., namely, Jan Muhammad was not produced but was given up as unnecessary.
The eye-witnesses produced are closely inter--related And also related to the deceased.
5. The appellant who was injured, was arrested on the 6th of August, 1970, by Ikramullah Khan Niazi S. I. (P. W. 12). A.I Muhammad and Muhammad Sadiq acquitted co-accused were arrested on the 7th of August, 1970.
The revelant recovery made in this case is blood-stained knife P. 1 re--covered from the appellant and taken into possession vide memo. Exh. P. C. Dated the 6th of August, 1970. The attesting witnesses of this recovery are Muhammad Saleem (P. W. 6) and Muhammad A.I (P. W. 7) besides the Investigating Officer.
According to the report of the Serologist (Ex. P. M) scrapings from knife P. 1 were found to be stained with human blood.
Nothing was recovered from the acquitted co-accused.
6. Dr. Imtiaz Ahmad Gill (P. W. 1) performed post-mortem examination on the dead body of the deceased at 9-15 a. m. On the 6th August 1970, and found on his person one stab wound in the chest, incised wound on the right ankle, and four abrasions on the right knee, left knee, right wrist and left forearm. Two injuries wire caused by sharp-edged weapon and rest by blunt weapon.
Death in his opinion was due to shock and haemorrhage caused by the incised injury in the chest, This injury was sufficient to cause death in the ordinary course of nature. The death was immediate. The deceased who had been removed to the hospital, died at 9-20 p. m. On the 5th of August, 1970.
He also medically examined on the same day at 9-45 p. m. The appellant who had got himself admitted in the hospital, and found on his person incised wound on the left side of chest, another incised wound on the left index finger and an abrasion on the left chest. First two injuries were caused by sharp-edged weapon and the third injury was caused by a blunt weapon. All injuries were simple. In his opinion, the incised wound on the chest co-accused by a friendly hand although rest of the injuries could be caused during the scuffle. The appellant was admitted in hospital on the 4th of August, 1970, and was discharged on the 6th of August, 1970. In this opinion, the four abrasions on the person of the deceased could be caused by a fall on a hard substance as all these injuries were on the bony points.
7. The appellant in his statement before the trial Court admitted that A.I Muhammad acquitted co- accused was his brother and Muhammad Sadiq acquitted co-accused was his maternal uncle's son. He also admitted that 1i months prior to the occurrence the deceased bad been injured at the hands of his relatives and a case was registered against them at the instance of the deceased under section 324, P. P. C. He disowned knife P.
1. About the injuries on his person he explained that a son was born to Muhammad Sadiq acquitted co-accused on the day of occurrence. The house of Muhammad Sadiq acquitted co-accused was a small one. Young girls of their family were collected in his house to celebrate the child birth. They were singing and playing on dholak. The deceased had taken liquor and was misbehaving, as well as peeping at them. The appellant was on the upper storey. He told him to stop misbehaving. Then the appellant came down in the street.
At that time, he had no shirt on his body. He told the deceased not to misbe--have but the deceased abused him. Thereafter, abuses were exchanged between the parties and they grappled with each other. The appellant felled the deceased down on the ground. The deceased took out a knife which the appellant tried to snatch and got an injury on his hand. The deceased got; injury on his foot as it struck against the bricks which were lying nearby. Then the deceased got up and gave him a knife injury and in self-defence the appellant gave him injury. A.I Muhammad and Muhammad Sadiq acquitted co-accused supported this version.
8. In the F. I. R. The occurrence is reported to have taken place in the following manner: Ghulam Hussain P. W. Alongwith sons Muhammad Ikram and Muhammad Islam P. Ws. As well as Jan Muhammad (not produced) were' having dinner in the upper storey of the house of Ghulam Hussain P. W. At about 9-00 p.m. Suddenly, they heard alarm from the street. They also heard a voice to the effect that the deceased would not be spared. On hearing this, they rushed to the scene of crime and witnessed that the deceased was being held by A.I Muhammad acquitted co- accused whereas Muhammad Sadiq acquitted co-accused was giving a laths blow to him. The P.
Ws. Raised alarm. In the meantime, the appellant came there with a knife in his hand, He gave knife blow on the chest of the deceased. The deceased fell down and his assailants ran away. The deceased was removed to the hospital where he died.
9. I have heard learned counsel for both the sides and have carefully perused the record. Part of the defence version is supported by the prosecu--petition. The deceased was drunk and peeping at the women-folk of the appel--lant while they were singing and dancing on the occasion of a child's birth. The appellant told the deceased not to misbehave. According to the prosecu--petition also what led to the occurrence was the same incident except that it did not state that he was drunk. Further it stated that the appellant had a suspicion that fit was peeping at his women-folk.
The prosecution has also tried to introduce another motive in order to show enmity between the accused and the complainant parties due to previous litigation. Anyway, it is clear from the record that the immediate cause of present occurrence was that the deceased (whether he was drunk or not) was found peeping at the women-folk of the appellant and that the appellant on noticing this came down from the upper storey of his house and stopped him from doing so. The parties altercated with one another, grappled and a sudden fight started between them in which both the sides appear to have used knives. There is an incised injury on the chest of the appellant as well as there is an incised injury on the chest of the deceased which proved fatal. The eye-witnesses produced by the prosecution in this case are all closely connected with the deceased. Their version consequently has to be considered with abundant caution in the circumstances of the case.
Anyway, according to their statements it cannot be said that they knew .As to what led to the present occurrence. The only independent witness, namely, Jan Muhammad was given up as unnecessary. If the principle of sifting of evidence is applied to the ocular testimony which is corroborated by the recovery of human blood-- stained knife P. 1 from the appellant as well as the medical evidence and to some extent also by the statement of the appellant it is reasonably probable that the behaviour of the deceased led to a sudden fight between him and the appellant in the course of which the, deceased was killed whereas the appellant sustained injuries. In the circumstances, the case of the appellant was covered by Exception 4 to section 300, P.P.C and, therefore, he should have been convicted under section 304 (I), P.P.C. In the light of what has, been discussed above I alter the conviction and sentence of the appellant; from section 302, P. P. C. To section 3040), P. P. C. And sentence him to five' years' R. I. The appeal is accepted to this extent.