JAVID IQBAL, J.----Muhammad Anwar son of Ghulam Haider aged 25 years and his cousin Muhammad Bashir son of Muhammad Amir aged 30 years have been convicted under suctions 302/34, P. P, C. For the murder of Pervaiz Akhtar aged 22 years and Muhammad Anwar was sentenced to death plus fine of Rs. 2,000 whereas Muhammad Bashir was sentenced to imprisonment for life plus fine of Rs. 2,000 or in default to undergo one year's R. I. Vide judgment dated 29th of June 1974, of the Sessions Judge, Rawalpindi. It was also ordered that the fine if recovered from the con--victs, it should be pair to the heirs of the deceased as compensation. The appeal of the convicts as well as reference for the confirmation of death sentence awarded to Muhammad Anwar are being taken up and disposed of together by this judgment.
2. The occurrence took place at about 5 p.m. On 20-10-1972 on Hayatsar Road, Gujar Khan at a distance of half mile from Police Station Gujar Khan. F. I. R. (Exh. P. A.) was lodged by Muhammad A.I P. W. 14, a friend of the deceased, at 7-30 p.m. On the same day and it was recorded at Police Station Gujar Khan by Allah Dad Khan S. 1. P. W. 17.
3. The motive for crime as set up by the prosecution is that four days prior to the present occurrence the deceased was going on a bicycle with Nazar Hussain P. W.
11. The bicycle collided with Muhammad Anwar, appellant. As a result abuses were exchanged between the deceased and Muhammad Anwar appellant and they h also slapped each other. 1t is stated that the present occurrence had resulted due to the earlier incident. It may be pointed out that there is no history of previous enmity between the parties.
4. The prosecution has produced three eye-witnesses of the occurrence namely Muhammad A.I P.
W. 14, friend of the deceased, Abdul Ghani P. W. 15, and Muhammad Nazir P. W. Ifs. The deceased remained alive for two days after the occurrence. His dying declaration was recorded by Muhammad Anwar Kayani, M. I. C. P. W. 12 and it is Exh. P. N./4.
5. The appellants were arrested on 22-10-1972 by S. I. Allah Dad Khan P. W.
17. Blood-stained knife P.
3 was recovered at the instance of Muhammad Anwar, appellant and taken into possession vide memo. Exh. P. D. Dated 30-10-3972. The attesting witnesses are Fazal Karim P. W. 9, Sultan Akbar, P.
W. 10 and the Investigating Officer. Nothing was recovered from Muhammad Bashir appellant.
According to the report of the Serologist (Exh. P. Q.) scrapings from knife P. 3 were found to be stained with human blood.
6. The appellants in their statements before the trial Court totally denied having participated in the occurrence. Muhammad Anwar appellant disowned knife P.
3. They both stated that they were not present at the scene of crime. Muhammad Anwar, appellant had stated that they had been falsely implicated because of enmity with the members of the family of the deceased. He brought many documents on record as defence evidence in order to show that the eye-witnesses produced in this case were either chance witnesses or stock witnesses of the Police and that therefore, they should not be believed. Muhammad Bashir appellant had sustained one injury. He stated that he had got the said injury on his hand in ordinary persuit of life. He further stated that he had been implicated because he was cousin of Muhammad Anwar, appellant.
7. In the F. I. R. The occurrence is reported to have taken place in the following manner :-On , the fateful day the deceased who was a friend of Muhammad A.I P. W. 14, came to see him where he was working and from there in order to go to their house they both proceeded on Hayatsar Road.
When they reached near the Girls High School and the office of the Municipal Committee, the appellants suddenly appeared there and raised a lalkara that they would not spare the deceased.
Thereafter Muhammad Bashir appellant caught hold of the deceased and Muhammad Anwar appellant gave a knife blow to him on the right side of his belly. The deceased fell down. The occurrence was witnessed by Muhammad A.I P. W. 14, Abdul Ghani, P. W. 15 and Muhammad Nazir P.
W. 16 who had rescued him. Then the appellants ran away. The deceased was taken to the Civil Hospital Gujar Khan by Abdul Ghani and Muhammad Nazir P. Ws. On receiving this information cousin of the deceased namely Mehrab also arrived at the Hospital. The Medical Officer after medically examining the deceased, while he was in an injured condition, directed the P. Ws. That he should be immediately taken to the District Headquarters Hospital, Rawalpindi. Consequently the deceased in an injured condition was taken to Rawalpindi in a car. Then Muhammad A.I P. W.
Returned from Rawalpindi alongwith the medico-legal report pertaining to the injury sustain--ed by the deceased and lodged the report at Police Station Gujar Khan.
The dying declaration of the deceased was recorded in the District 14 Headquarters Hospital Rawalpindi by Muhammad Anwar Kayani, M.
1. C. P. W.
12. It was to the following effect. On the fateful day the deceased was returning to his house alongwith Muhammad A.I P. W. And when they were proceeded on Hayatsar Road, the two appellants came there. Muhammad Bashir appellant caught hold of the deceased and gave him fist blows. At the same time he told Muhammad Anwar appellant that he should stab the deceased with a chhuri. On this Muhammad Anwar appellant gave a knife blow which fell on the right side of the belly of the deceased. The cause of occurrence was that few days before the present occurrence the deceased had slapped Muhammad Anwar appellant in the Committee. The occurrence was witnessed by Muhammad A.I and Muhammad Nazir P. Ws. Besides many other people.
8. Dr. Muhammad Aslam Arshad P. W. 1, medically examined the deceased while he was still alive, at 5-30 p.m. On 20-10-1972 in the Civil Hospital, Gujar Khan an4i~found on his person incised stab wound on the right side of abdomen. The injury was caused by a sharp-edged weapon and was dangerous to life. The duration of injury was fresh (about half an hour). He remained in the hospital for about 20/25 minutes. At that time his condition was not serious and he was conscious. His wound was stitched and dressed up by this Medical Officer. The said injury was beyond his treatment, therefore the Medical Officer advised that the patient should be taken to the Hospital at Rawalpindi.
On the 22nd of October 1972, the same Medical Officer examined Muhammad Bashir appellant who was produced before him by the police and found on his person a lacerated wound on the left little finger. The injury was simple and was caused by a blunt weapon within the duration of about 48 hours.
Dr. Abdul Jabbar P. W. 2 conducted the post-mortem examination on the dead body of the deceased at 12-45 p .m. On the 22nd of October 1972. He noted the same injury on his person. The death in his opinion was due to injury in the abdomen which was sufficient to cause death in the ores wary course of nature.
9. We have heard the arguments of learned counsel for both the sides and carefully perused the record. Learned counsel for the appellants attempted to argue that there was considerable delay in lodging the F. I. R. And that in the intervening period the deceased might have been prompted by his relatives and friends to get his dying statement recorded in order to implicate the appellants. It was further submitted that all the eye-witnesses of the occurrence were not only chance witnesses who resided far away from the place of occurrence and had no reason to be there, but they were also stock witnesses of the police and that, therefore, their testi--mony should not be relied upon.
We have carefully examined this aspect of the case and the argument of learned counsel does not appeal to us. The delay in lodging the F. I. R., in our view, has been satisfactorily explained. The dying statement of the deceased mentions the presence on two eye-witnesses namely Muhammad A.I and Muhammad Nazir P. Ws.l who had witnessed the occurrence. In other words it is corroborated by the testimony of Muhammad A.I and Muhammad Nazir P. Ws. This evidence is further corroborated by the recovery of human blood-stained knife P. 3 recovered at the instance of Muhammad Anwar appellant and is supported by the medical evidence. There is no history of any long standing previous enmity between the parties. Therefore, neither the deceased nor the two eye-witnesses mentioned in the dying declaration had a motive) to falsely implicate the appellants. Learned counsel then argued that, the case of Muhammad Bashir appellant was distinguishable from Muhammad Anwar appellant. It was submitted that in the earlier instance only Muhammad Anwar appellant was involved and Muhammad Bashir appel--lant was not present there. Consequently Muhammad Bashir appellant had no motive to murder the deceased.
It was further submitted that the allegation in the F. I. R. Against Muhammad Bashir appellant was that he only held the deceased. It was stated in the dying declaration that he gave fist blows to the deceased. Although subsequently, at the trial, the eye- witnesses had also stated that Muhammad Bashir appellant gave fist blows to the deceased on the chest, this part of their testimony was not supported by the medical evidence, as the deceased bad only one incised injury in the abdomen which was attributed to Muhammad Anwar, appellant. It was pointed out that according to the statement of Muhammad A.I, P. W. Muhammad Bashir appellant had held the deceased from his shoulders and if that was so, it was not possible for biro to sustain a lacerated wound on his left little finger. The argument of learned counsel was that Muhammad Bashir appellant could not be treated at par with Muhammad Anwar appel--lant as he could not have been aware that Muhammad Anwar appellant was carrying a knife and that he would use the same on the deceased. It was submitted that it was quite probable that the two appellants con--fronted the deceased and owing the earlier incident, again abuses were exchanged and an altercation took place in the course of which Muhammad Bashir appellant might have grappled with the deceased only as was stated by the P. Ws. And while this was going on Muhammad Anwar, appellant took out the knife and stabbed the deceased. It was argued that m the circumstances it would not be proper to saddle Muhammad Bashir appellant with the responsibility of causing the murder of the deceased, as he could not have possibly participated in the intention of Muhammad Anwar appellant to murder the deceased. The reasoning of learned counsel was teat section 34, P. P. C.
Was not attracted to the case of Muhammad Bashir appellant, even if it be considered that he was present on the spot and had grappled with the deceased as stated by the eye-witnesses. We have carefully noted the argument of the learned counsel. In our view both the appellants were present at the scene of crime, although it could not be said that they were present there, with the intention to murder the deceased. In our considered opinion the act was not premeditated. It is reasonably, probable that the two appellants were present on the road and when they saw the deceased passing alongwith his friend Muhammad A.I P. W. They altercated with him due to the previous incident in order to chastise him. It is further reasonably probable that an altercation took place between them and the deceased, in the course of which Muhammad Bashir appellant grappled with him, and in the meantime Muhammad Anwar appellant gave, a single knife blow to the deceased in the abdomen, which eventually led to his death after two days. It is clear that in the dying statement of the deceased as well as the account of the eye-witnesses the fact of fist blows being given by Muhammad Bashir appellant to the deceased was not supported by the medical evidence. He may have therefore, only grappled with him without knowing as to what Muhammad Anwar appellant would do. In the circumstances, in our considered opinion, the case of Muhammad Bashir appellant was distinguishable from Muhammad Anwar appellant since he could not be burdened with the intention to murder the deceased, it was not proper for the trial Judge to apply section 34, P. P. C. In the case appellant. We therefore set aside his conviction of Muhammad Bashir, appellant sentence under section 302/34, P. P. C. But in our opinion, since he was Present at the scene of crime, and had assaulted the deceased, we convict him instead under section 352, P. P. C. And sentence him to three months R. I. As well as fine of Rs. 200 or in default to undergo two months' further it. He has already suffered the sentence awarded to him by us. U he pays up the lice, he shall be released from jail forthwith if not wanted in any other case, otherwise he should undergo two months further R. I. In lieu thereof. 1f the fine is recovered from him it should be paid 'to the heirs of the deceased. His appeal is accepted to this extent.
So far Muhammad Anwar appellant is concerned, in our con--sidered opinion the prosecution has succeeded in establishing its case as against him and his conviction under section 302, P. P. C. Was quite proper. It is accordingly maintained. Respecting the question of sentence, learned counsel had argued that the act of Muhammad Anwar appellant was not premeditated and that there was no long-standing previous enmity between the parties. It was submitted that the deceased and Muhammad Anwar appellant had altercated a few days before the present occurrence and they had slapped each other. Thus the present occurrence should be considered in the background of the previous incident. As they had altercated again, in the course of which only one knife blow was given by Muhammad Anwar appellant to the deceased, in the circumstances a case was made out for him for the awarding of lesser penalty. Thereforce in the argument of the learned counsel.
The act of Muhammad Anwar appellant was not premeditated. There is no history of previous enmity. They might have altercated due to the previous incident. Since only one knife blow was given to the deceased acid in consideration of the circumstances in which it had been caused, we are of the view that the awarding of lesser penalty to him would be sufficient to meet the ends of justice The result is that his conviction under section 302 is maintained but the sentence of death is altered to that of imprisonment for life. The sentence of fine awarded to Muhammad Anwar appellant is maintained and if the amount of Rs. 2,000 is recovered from him it should be paid as compensation to the heirs of the deceased. With this modification his appeal is dismissed.
The death sentence awarded to Muhammad Anwar appellant is not confirmed.