MUHAMMAD RAFIQ TARRAR, J.-Ghulam Farid appellant and his co---accused Pir Bakhsh were tried by the learned Additional Sessions Judge, Muzaffargarh, for the murder of .Abdul Karim. Pir Bakhsh was acquitted whereas the appellant was convicted under section 302 of the Pakistan Penal Code and sentenced to death and a fine of Rs. 100 or in default in payment thereof to undergo R. I. For one month. He was also convicted under section 324, P. P. C. And sentenced to R. I.
For one year. The sentence of imprisonment was to have effect only in the event of death sentence being not confirmed. The convict has appealed and the learned Additional Sessions Judge has referred the case for confirmation of the death sentence awarded to him. Both the matters are being disposed of by this judgment.
2. The brief facts of the prosecution case are that on 27th January 1972 shortly before sunset Khuda Bakhsh complainant, his brother Allah Bakhsh and his nephew Qadir Bakhsh were present in the house of the former when Abdul Karim deceased while going to village Rapri for shopping passed by that house. When he covered a distance of about four killas, Ghulam Farid appellant and Pir Bakhsh (acquitted accused) raised a lalkara and opened the attack on the deceased who raised hue and cry, attracting Khuda Bakhsh, Allah Bakhsh and Qadir Bakhsh P. Ws. To the spot. When they were at a distance of 30 to 35 karams from the place of occurrence, the appellant gave a knife blow on the right flank of the deceased. He inflicted another knife blow on his left hand. Pir Bakhsh (acquitted accused) gave a soti blow to the deceased. On receiving all these blows the deceased fell down when Ghulam Farid appellant gave him another knife blow on his head. In the meantime Ahmad Bakhsh P. W. Brother of the deceased, who was irrigating his field at a distance of about 40 or 50 karams from the spot, also reached the spot and stretched himself on the deceased to protect him from further assault. Pir Bakhsh gave a soti blow to Ahmad Bakhsh and the appellant gave him a knife blow on his back side. When Khuda Bakhsh, Allah Bakhsh and Qadir Bakhsh were at a distance of eight or ten karams from the place of occurrence the appellant and his co- accused ran away from the spot leaving a lungi at the place of occurrence.
The motive for the occurrence is that appellant Ghulam Farid had illicit relations with Mst. Wasso Mai, the father's sister's daughter of Abdul Karim deceased. Three or four days before the occurrence, the deceased had asked Ghulam Farid accused not to visit his basti upon which the appellant advanced a threat of murder to the deceased.
3. After the occurrence, Abdul Karim deceased who was then in injured condition, was taken on a cot to Primary Health Centre, Shahr Sultan. Leaving him in the hospital, Khuda Bakhsh P. W. Went to Police Station Shahr Sultan and reported the occurrence vide F. I. R. (Exh. PD) recorded by Muhammad Iqbal Sub-Inspector. He also produced fungi (Exh. P 3) before the Sub-Inspector who made it into a sealed parcel vide memo Exh. PE. After that, the Sub-Inspector reached Primary Health Centre, Shehr Sultan and recorded the dying declaration (Exh. PF) of Abdul Karim who was then in injured condition. Abdul Karim died the same day at about 10 p .m. The Sub-Inspector prepared the inquest report (Exh. PG) of his dead body and sent it to the mortuary for post-mortem examination. He reached the spot on 28th January 1972 and took some blood-stained earth into his possession vide memo Exh. PH. He arrested the appellant and his co-accused and removed shirt (Exh. P 4) and turban (Exh. P 5), both blood-stained, from the person of the appellant and made them into a sealed parcel vide memo Exh. P J. The appellant. While in custody, led to the recovery of blood--stained knife (Exh. P 7) from his house which was made into a sealed parcel vide memo Exh. P L. The appellant had injuries on his person. The Sub---Inspector prepared his injury statement (Exh. PO) and got him medically examined on 29th January 1972. After the investigation, the case was sent up against the appellant and the acquitted accused under section 302 of the Pakistan Penal Code.
4. Dr. Muhammad Arshad examined Abdul Karim deceased when alive and found the following injuries on his person:-
(1) An incised wound fin x 1-- x 1 1/3 scalp deep on the anterior part of the left half of the top of the head at lying anteroposteriorly 2' away from the midian line and 3-- above the left eye-brew.
(2) A stab wound 1-- x -- with protusion of loop of intestine lying vertically at the junction of the umbilical and right lumber area of the abdomen 2" away on the right of ubmilious.
(3) An incised wound 3-- x --" bone deep lying obliquely on the back of the left hand.
(4) An abrasion 1-- x --" on the front of left knee.
Injuries Nos. 1 and 2 were dangerous and injuries Nos. 3 to 5 were simple. Injuries Nos. 1, 2 and 3 had been caused by a sharp-edged weapon and the remaining two by a blunt weapon. After the death of Abdul Karim, the same doctor conducted the post-mortem examination on his dead-body on 28th January 1972 and found the injuries referred to above on it. In the opinion of the doctor, death was due to shock and internal haemorrhage in the abdo--minal cavity due to injury No. 2 which was sufficient to cause death in the ordinary course of nature.
On 27th January 1972 the same doctor examined Ahmad Bakhsh P. W. And found the following injuries on his person:--
(1) An incised wound 2" x --' x muscle deep lying obliquely on the lower part of the back of the right half of the chest. Corresponding with the cut on the shirt.
(2) An incised wound --' x 1/8' on the posteromedial part of the first metacarpo phalyngeal joint, of the left thumb.
(3) An abrasion 1" x -- ' on the outer aspect of the back of the right wrist.
All the injuries were simple in nature. Injuries Nos. 1 and 2 were inflicted by sharp-edged weapon and No. 3 by a blunt weapon.
On 29th January 1972 the same doctor examined Ghulam Farid appellant and found the following injuries on his person :-
(1) An abrasion with scab ----- x' 1/12 on the right half of the forehead, situated obliquely --' above the right eye-brew.
(2) An abrasion 1" x --' with scab lying obliquely on the right face --' below the right eye-lid just close to right border of the nose.
(3) An abrasion wedge shaped with scab 1' x --' at the upper end of the left buttok 1--' away on the left of the spine.
(5) A bruise 2--' x --' lying obliquely on the upper third of the right buttock.
(6) An abroasion -- x --' on the right cheek 1--' on front of the right ear with scab formation.
(7) An abrasion with scab j' x 1/6' lying obliquely on the left knee.
All the injuries were simple in nature, caused by a blunt weapon. The probable duration was 40 to 48 hours.
5. The ocular testimony was furnished by Khuda Bakhsh (P. W. 10) and Ahmad Bakhsh (P. W. 11).
They fully supported the prosecution case. The recovery of blood-stained clothes and knife was proved by Imam Bakhsh and Ghulam Farid P. Ws. The prosecution also placed reliance on the motive and dying declaration allegedly made by the deceased to Muhammad Iqbal Investi-- gating Officer. The appellant pleaded not guilty to the charges and denied the prosecution allegations against him. When asked to explain his injuries, he made the following statement: "It is correct that I was injured during the course of occurrence. The daughter of my sister is married in village Rapri. It was Eid-ud-Zoha day and I was going to village Rapri for giving Eidi to the daughter of my sister. It was about sunset time and it was little darkness at that time, when I was going to village Rapri. Abdul Karim deceased and his brother P. W. Ahmad Bakhsh were sitting while hiding themselves on the way inside the lai bushes. Abdul Karim deceased was armed with a knife and P. W. Ahmad Bakhsh had a soti with him. P. W. Ahmad Bakhsh started giving me lathi blows and Abdul Karim deceased asked him to make me unconscious. Abdul Karim deceased aimed a knife blow on my left flank but the same missed and I was struck by his knife blow on my left knee. I snatched the knife from Abdul Karim deceased. I continued raising hue and cry which attracted the other persons. I then ran away."
"The dying declaration of Abdul Karim deceased is a false one. When I snatched the knife from Abdul Karim deceased, I gave one or two knife injuries to Abdul Karim deceased and I ran away.
Khadim Hussain Khand quarrelled with Abdul Karim deceased and gave soti blows to the deceased. Khadim Hussain Khand also gave soti blows to the brother of Abdul Karim deceased.
The name of the brother of Abdul Karim deceased who was beaten by Khadim Hussain Khand is Ahmad Bakhsh. Khadim Hussain Khand and myself ran away and went to the Thana. I had injured Abdul Karim deceased in order to save my own life."
The learned trial Judge believed the ocular testimony of Khuda Bakhsh and Ahmad Bakhsh P. Ws., accepted the motive and the recovery of blood--stained knife and blood-stained clothes from the appellant. He discarded the dying declaration on the ground that it was not made on solemn affirmation and was not read over to its maker. He further observed that no certificate was obtained from the doctor as to the fitness of the deceased to make a statement and that according to Khuda Bakhsh complainant on receiving the injuries Abdul Karim had become unconscious. He also observed that there was possibility that the deceased might have been prompted by his relatives to make the dying declaration. The plea of self-defence raised by the appellant was rejected. Relying on the above evidence, the learned Additional Sessions Judge convicted the appellant under section 302 of the Pakistan Penal Code.
6. The learned counsel for the appellant disowned the plea of self---defence raised by the appellant in the Sessions Court and submitted that the injuries on the person of the appellant were the result of torture by police as alleged by him to the committing Court and his statement in the Sessions Court was not true. He contended that the delay in lodging the F. I. R. Indicates that the complainant gained sufficient time for deliberation, therefore, possibility of false implication cannot be excluded. He further argued that the eye--witnesses are closely related to the deceased and the account of occurrence given by them being at variance with the medical evidence, their testimony deserves no credence. After giving our careful consideration to the evidence on the record we are of the view that there is no force in the contention that the appellant had suffered injuries at the hands of the police. The investigat--ing officer (P. W. 12) had stated that he reached the spot on 28-1-1972 at 6 a.m. And after recording the statements of P. Ws. And other persons, arrested the appellant and his co-accused The appellant was medically examined on 29th January 1972 at 8 a.m. And according to the doctor the probable duration of his injuries was 40 to 48 hours. The injuries are thus not relatable to the time of the arrest of the appellant or the period of police custody and seem to have been suffered much earlier and rather correspond with the time of occurrence. We, therefore, reject the contention that the appellant suffered the injuries at the hands of the police. In the absence of anything to show that the appellant had suffered the injuries either before or after the occurrence, the natural probability is that he received the injuries during the occurrence and his statement at the trial is also to the same effect.
We also find that there was no delay in lodging the F. I. R. Rather, it was lodged promptly. After the occurrence which took place at 5-45 p m., the deceased who was in an injured condition, was taken on a cot to Primary Health Centre, Shahr Sultan situate at a distance of six miles from the spot, and after leaving him there the F. I. R. Was lodged at Police Station Shahr Sultan at 8-30 p.m.
There was, therefore, no delay in lodging the F. I. R.
It will be apt to sift the evidence of motive before dealing with the ocular witnesses. Khuha Bakhsh (P. W. 10) besides giving ocular version of the occurrence also deposed about the motive. He had stated that the appellant had illict connection with Mst. Wasso Mai, the daughter of the sister of the father of the deceased. About three or four days before the occurrence, the deceased had asked the appellant not to come to his Basti but the latter refused to do so and threatened the deceased with murder in cross-examination he stated that the deceased had told him that the appellant had threatened him with murder about three or four days prior to the occurrence. He further stated that he was not present when the appellant had threatened the deceased. The motive does not find any mention in the dying statement (Exh. P F) allegedly made by the deceased to the Sub- Inspector. The prosecution version that the appellant had threatened the deceased with murder, therefore, remains unsubstantiated. It is in the statement of Khuda Bakhsh P. W. That he had grudge against the appellant when he came to know that he had illicit intimacy with Mst. Wasso Mai. He further stated: "I may have given beating to accused Ghulam Farid or had murdered him if I had come to know that they were meeting at a particular place." The evidence on the file regarding the motive rather indicates that the motive was on the complainant side.
7. It was urged that Khuda Bakhsh is the maternal uncle of the deceased and Ahmad Bakhsh P. W.
Is his real brother, therefore, they are interested witnesses and their evidence does not deserve credence. The mere relation--ship of the witnesses with the victim is per se no ground to brush aside their evidence as worthless. However, after a scrutiny of their evidence we feel that it does not inspire confidence. In cross-examination Khuda Bakhsh P. W. Had stated that the sod blows given by Pir Bakhsh (acquitted accused) had hit Abdul Karim deceased on his back and that he had not given any sod blow on the knee of the deceased. The medical evidence shows that Abdul Karim deceased had five injuries on his person out of which only two, viz. Nos.4 and 5, had been caused by a blunt weapon. Both these injuries are located on the front of left knee. He further gave out that Pir Bakhsh had given four or five sod blows to Ahmad Bakhsh P. W. Which hit him on the back, head and near the left ear. This witness had three injuries out of which only one located on the back of right wrist had been caused by a blunt weapon. Similarly, Ahmad Bakhsh P. W. Stated in examination-in-chief that the appellant gave a knife blow to the deceased on the back of his neck as a result of which the shirt of the deceased was torn. It is not clear from the statement whether the blow had actually struck the back side of neck or not. The medical evidence does not show any injury on the back of the neck of the deceased. This witness further gave out that the appellant had given three knife blows on the right flank of the deceased whereas the medical evidence shows only one injury on the right side of the abdomen. At the trial the witness stated that the appellant had also given a knife blow on the head of Abdul Karim deceased whereas in his statements before the police and the committing Court with which he was confronted, it is not so recorded.
Apart from the above conflict in the medical evidence and the ocular account, the eye--witnesses deliberately withheld their part in the occurrence. Khuda Bakhsh P. W. Stated that none of them bad any weapon and they or the deceased did not give any beating to the appellant. The statement of Ahmad Bakhah P. W. Is also to the same effect. According to Anwar A.I, Patwari (P. W. 5) there are about 10 or 15 houses of persons of Arain case at a distance of about one and a half acre from the spot and the same number of houses of persons of Mehangi case at a distance of about 200 karams from the spot. Khuda Bakhsh P. W. Had stated that no other person had arrived at the spot till the time they carried the deceased to the hospital. It is indeed curious that only the close relations of the deceased were attracted to the spot. It appears that independent witnesses were deliberately withheld so that the part played by the complainant party may not come to light. The dying declaration (Exh. P F) allegedly made by the deceased also does not disclose the part played by the complainant party in the occurrence. The learned trial Judge discarded this piece of evidence for good reasons. The number, nature and location of injuries on the person of the appellant is such that' they do not appear to have been self-suffered and the natural probability is that the appellant suffered those injuries during the occurrence at the hands of the complainant party. The motive was also on the side of the com--plainant party because according to their own showing the appellant had illicit relations with Mst. Wasso Mai cousin of the deceased. There is no evidence that about three or four days before the occurrence the deceased had asked the appellant not to come to his Basti and the latter had threatened him with murder. It is also to be noted that according to Khuda Bakhsh and Ahmad Bakhsh P. Ws. At the time of occurrence the deceased was going to village Rapri for shopping. The Investigating Officer admitted in cross--- examination that in the inquest report it is not mentioned that any money was recovered from the clothes of Abdul Karim deceased. He further stated that no cloth or basket was produced before him which the deceased may be carrying while going for shopping and that he did not find any cloth or basket ` at the spot. In view of these circumstances, the possibility cannot be excluded that the complainant party who were smarting under the feeling that the appellant had illicit relations with Mst. Wasso Mai, might have attacked him. We are mindful of the fact that the appellant when asked to explain his injuries, made contradictory statements in the committal and trial Courts. We are also aware that he had stated at the trial that the deceased aimed a knife blow at his left flank but it missed and struck his knee but no injury by a sharp-edged weapon was found on his person.
We are of the view that such defects in the statement of an accused cannot negate his plea if it can find support from the evidence on the record. In Sadiq v. The State (PLD 1967SC356) the Lordships held as under:- "The correct principle is that falsities appearing in the statement of accused person do not bar the allowance to them of an advantage that the law permits, on the basis of facts that are found on a consideration of all the evidence and circumstances that can be accepted the case."
8. Accordingly, we alter the appellant's conviction from under section 302 to under section 304, Part I, P. P. C. And sentence him to R. I. For 10 years and to a fine of Rs. 2,000 (Rupees two thousand) or in default in the payment thereof to further R. I. For 2 years. The fine, if realized, shall be paid to the heirs of the deceased as compensation. We acquit the appellant of the charge under section 324, P. P. C. And set aside his conviction and sentence recorded there-under. His sentence of death is not confirmed.