SALEEM MAZHAR, J.-The appellant Muhammad Ishaq aged 24 years was tried for the murder of Maqbul Ahmad aged 22 years and having been found guilty by the learned Sessions Judge, Lahore, was convicted under section 302, Pakistan Penal Code, with an award of sentence of death and a fine of Rs. 5,000 vide judgment dated 31st August 1971 now under appeal. His case has also been referred to us under section 374, Code of Criminal Procedure, for the confirmation of the death sentence. This judgment will dispose of the appeal as, well as the murder reference.
2: The occurrence took place on 9th April 1970 at 7-45 p.m. In Street No. 67, Wassanpura, at a distance of three furlongs from Police Station Misri Shah.
The facts of the prosecution case as revealed in the statement (Exh. P. D.) made by Muhammad Ikram (P. W. 8.) a cousin of the deceased, briefly are that Maqbul Ahmad (deceased) was his cousin. Muhammad Ishaq appellant lived at a short distance from the house of the deceased. The deceased suspected the appellant of having illicit relations with his wife and on that account Maqbul Ahmad asked Muhammad Ishaq not to visit his house. About six month prior to the occurrence a quarrel took place between the deceased and the appellant and they were, separated.
On the day of occurrence the complainant alongwith Maqbul Ahmad (deceased) was returning to his house after closing their shops and at about 7-45 p.m. When they reached at the corner of Street No. 67, the appellant came there having an open knife in his hand and gave a Lalkara. Then the appellant inflicted several blows to the deceased hitting him on both the legs. Muhammad Saleem, Muhammad Shafiq and Dilawar Khan P. Ws. Who were present near the spot, also witnessed the occurrence. On the alarm of the complainant and that of Muhammad Saleem, Muhammad Shafiq and Dilawar Khan the appellant ran away from the spot. The deceased was taken in an injured condition by the complainant and the P. Ws. To Mayo Hospital, Lahore, where he was medically examined on 9th April 1970 of 8-15 p.m. By Dr. Nisar Ahmad (P. W. 1).
3. Dr. Nisar Ahmad (P. W. 1.) found the following injuries on the person of Maqbul Ahmad:-
(1) A small nick in apigastrium.
(2) Human bite left forearm front.
(3) An incised wound 2--- x ----- at front of left thigh above left knee.
(4) A small incised nick at front of lift chest.
(5) A small abrasion outside of right elbow.
(6) An incised wound --' x --" at outside of right leg upper part bleeding.
(7) An incised wound 2' x --at back and inside of left thigh above knee' bleeding.
(8) A small incised nick at right poplitial fossa.
Patient was shocked and dyspanic. He was admitted in South Surgical Ward: injuries Nos. 1, 3, 4, 6, 7 and 8 were caused by sharp-edged weapon. Injury No. 2 was human bite. Injuries No. 1, 3, 4, 6, 7 and 8 were kept under observation.
4. S. I. Muhammad A.I (P. W. 16) received information about the present occurrence and he reached Mayo Hospital at 9-45 p.m. On 9th April 1970. He made an inquiry from the doctor vide Ruqqa (Exh.
P. H./A) if the injured was capable of making a statement but the doctor gave the reply in negative.
The Sub-Inspector recorded the statement of Muhammad Ikram P. W. Which is Exh. P. D. And sent the same to the Police Station Misri Shah where the formal F. I. R. (Exh. P. D/1) was recorded by A. S. I.
Bashir Hussain Shah (P. W. 6) at 11-10 p.m. The Sub-Inspector recorded the statements of Muhammad Saleem, Muhammad Shafiq and Dilawar Khan P. Ws. In the Hospital. On the following morning at 4 a.m. S. I. Muhammad A.I received an information about the death of Maqbul Ahmad.
He proceeded to Mayo Hospital and after reaching there prepared the inquest report (Exh. P. J.) of the deceased and sent the dead body for post-mortem examination under the escort of F. C.
Ghulam Rasul (P. W. 5) and F. C. Muhammad Ashiq (P. W. 7).
5. Dr. Muhammad Aslam Maan (P. W. 2) also examined Maqbul Ahmad and found the following injuries:-
(1) Oblique, incised, stab wound on the back of lower left thigh.
(2) A stab wound on the lateral side on right upper leg.
(3) A stab wound on the middle side of right upper leg.
(4) A stab wound on the front of the chest to the right of mid line.
He observed that the condition of the patient was very precarious. There was no pulse, no respiration, no recordable blood pressure. He was removed to Operation Theatre on 10th April 1970 and be expired on the operation table. The doctor also admitted that the patient had already been examined by Dr. Nisar Ahmad (P. W. 1) and according to his report there were eight injuries.
6. On 10th April 1970 at 3 p.m. Dr. Muhammad Aslam (P. W. 9) conducted the post-mortem examination on the dead body of Maqbul Ahmad and found the following injuries:-
(1) An incised wound J' x J' x muscle deep in the epigastrium (It was bandaged).
(2) Human bite with 8 markings (as shown in the figure) in somewhat circular way on the front of the middle of left forearm. The injury was superficial.
(3) An incised wound 2' x --' x 1' on the front and inner aspect and lower part of the left thigh 1--' above the knee joint (wound was dressed).
(4) A small nick on the front of the right side of chest.
(5) Two abrasions measuring 1' x --' and 1----- x --' on the back and outer aspect of right elbow joint.
(6) A stitched wound 5--' with 8 stitches on the back of the inner aspect of left thigh 2--' above the middle of the left poplitial fossa. (The wounds were dressed).
On dissection the skin had superficial fascia. Muscles of the back thigh and the femoral artery with its branches, which had ligated to control profuse bleeding as the femoral artery was a very big vessel.
(7) An incised wound --' x ----- on the outer aspect of the upper part of the right leg. The wound was dressed.
(8) Multiple abrasions on the front of right knee joint and the upper part of the knee of the right leg.
7. On 10th April 1970 A. S. I. Muhammad Zaman (P. W. 15) arrested Muhammad Ishaq appellant, who was present at Bus Stand Badami Bagh. The appellant was injured. The Assistant Sub-Inspector prepared his injury statement (Exh. P. M.). The appellant got recovered blood-stained clothes, shirt (P. 2) and Shalwar (P. 3) vide Memo. (Exh. P. B) from underneath the bridge in Kucha Sirajan. These were made into a sealed parcel. The appellant then led the A. S. I. To his house and got recovered blood-stained knife (P. 4) from the ventilator of his kotha, which was also made into a sealed parcel vide Memo. (Exh. P. C). These recovery Memos were attested by Abdul Aziz (P. W. 13), Dilawar Khan (P. W. 10) besides the A. S. I. Muhammad Zaman (P. W. 15). According to the report of the Serologist (Exh. P. R.) the earth, knife and clothes of the appellant were found to be stained with human blood. A. S. I. Muhammad Zaman deposited two sealed parcels with A. S. I. Bashir Hassain Shah (P. W. 6) which were handed over to Muhammad Ashiq P. W. On 13th April 1970 which were delivered at the office of the Chemical Examiner the same day.
8. A. S. I. Muhammad Zaman sent Muhammad Ishaq appellant for his medical examination and Dr. Tariq Mahmood (P. W. 3) on 10th April 1970 at 4-30 p. m. Medically examined Muhammad Ishaq appellant and found the following injuries:-
(1) Incised wound --' x 1/8' into skin deep oblique on the back of left index finger just above the second knuchel.
(2) A scabbed abrasion 1/3' x --' on right knee cap.
(3) Contusion 2' x 1--' with soft scabbed abrasion of around on the back of neck lower part.
(4) Contusion 7----- x 7' on left buttock and overside of thigh.
(5) Contusion 7--' x 7' on right buttock and outer side of thigh redish colour with bluished tinge.
All the injuries were simple. Injury No. 1 by sharp-edged weapon, rest dy blunt and all within 24 hours duration.
9. S. I. Muhammad A.I (P. W. 16) reached the spot on 10th April 1970 and recovered blood-stained earth from the spot and made it into a sealed parcel vide Memo. (Exh. P. F.). He also got prepared the site plan. He deposited three sealed parcels with Moharrir Head Constable Muhammad Aslam (P.W.14) who kept them in the Malkhana.
10. The appellant denied his guilt. He, however, admitted that the deceased suspected that he had illicit connections with his wife. He also admitted that there was exchange of abuses between him and the deceased about six months prior to this occurrence but denied that Ikram (P. W. 8) and Abdul Aziz (P. W. 13) were present there. He stated that as Maqbul (deceased) suspected him of having illicit relations with his wife this false case has been made against him. In answer to a question, anything else to say, he made the following statement: ---When the occurrence had taken place, Maqbul deceased had knife in his hand. The deceased had previously quarrelled with me as he suspected me of having illicit relations with his wife. On the night of occurrence, when I reached the turning of the street, the deceased attacked me with an open knife. I warded off the blow with my hand, which was aimed at me by the deceased. I received a scratch on the finger of my left hand. He wanted to give me a thrust blow and I caught of his wrist and bit wrist. When I bit him, the knife fell down from the hand of the deceased in between his feet and that of mine. The deceased was powerful. He pressed me and bit me on the back of my neck. When he pressed me a little more, the knife carne into my hand. The deceased did not leave me. In order to rescue myself. I gave 2/3 knife blows on the shin of the deceased. The deceased then left me and picked up an air pump from a bicycle shop. He gave out lalkara that be would not leave me. He attacked me with that air pump. I lost my senses. I was sure that he would kill me. He again came over me and pressed me. I gave 2 more thrusts with knife on the thigh of the deceased. Had I not done so, I would have been finished, as he was much more powerful. I ran away from the spot. I have no illicit relations with the wife of the deceased."
He produced no defence.
11. The learned Sessions Judge relying on the ocular testimony of Muhammad 1kram and Muhammad Saleem P. Ws. 8 and 12 besides the recoveries at the instance of the appellant convicted and sentenced the appel--lant as stated above. He did not accept the statements of Dilawar Khan and Muhammad Shafiq P. Ws. 10 and 11.
12. We have heard the learned counsel for the appellant and also the learned State counsel and have gone through the evidence on the record with their help.
13. The learned defence counsel has only contended that it was the deceased who had attacked the appellant with knife and gave him injuries and the appellant acted in the exercise of his right of self-defence In support of this contention the learned counsel has relied on Miana v. The State (PLD 1972 Lah. 129) and Ghazi Khan and another (PLD 1965 Quetta 33) but we see no force in this contention of the learned counsel for the appellant because if the deceased was armed with a knife and attacked the appellant then the damage caused to the appellant would have, been much more because it is quite possible that injury No. I on the person of the appellant might have been received from his own hand while he was inflicting injuries to the deceased. As regards the other injuries there is evidence of A. S. I. Muhammad Zaman that the appellant was a man of desperate character. He had put up resistance before the police, and he had misbehaved when he was arrested and was being taken to the place of recovery and also at the place of recovery, and that he received those injuries when he misbehaved. So this contention of the learned counsel for the appellant loses all its force and the authorities are of no avail to the appellant that he had acted in the exercise of the right of self---defence of his person.
14. The ocular testimony has been furnished by Muhammad Ikram (P. W. 8) and Muhammad Saleem (P. W. 12). Muhammad Ikram P. W. Has stated that on the day of occurrence he and his cousin Maqbul Ahmad (deceased) were coming to their houses after closing their shops and when they reached the turning of Street No. 67, the appellant came there armed with an open knife and inflicted several blows to the deceased on his legs. The deceased fell down on receipt of the knife blows and the occurrence was witnessed by Muhammad Saleem, Muhammad Shafiq and Dilawar Khan P. Ws., who also took the deceased in an injured condition to Mayo Hospital, where he was medically examined. Though this witness is a cousin of the deceased this fact alone is not sufficient to discard his testimony because his testimony is also corroborated by Muhammad Saleem (P. W.
12 who has stated that he was waiting for a taxi at the place of occurrence at about 7-45 p.m. On the day of occurrence alongwith Shafiq and Dilawar P. Ws. When the present occurrence took place. They also shouted at the appellant, who ran away after inflicting injuries. This witness is quite independent and disinterested and his testimony cannot be discarded. The learned Sessions Judge has rightly convicted and sentenced the appellant on the ocular testimony of these two eye-witnesses, namely, Muhammad 1kram and Muhammad Saleem P. W. 8 and P. W. 12 respectively.
15. We also find that the recovery of the blood-stained clothes of the appellant and the blood- stained knife has been supported by Abdul Aziz (P. W. 13) who is quite an independent witness and the recoveries were effected on the next day of occurrence immediately after the arrest of the appellant. The blood-stained clothes and knife recovered at the instance of the appellant were found to be stained with human blood according to the report of the Serologist. We, therefore, hold that the appellant has been rightly convicted and sentenced as stated earlier.
16. The only circumstance in favour of the appellant is that he inflicted injuries to the deceased which are not on vital parts of the body and only one injury i.e. No. 6 has been declared to be sufficient individually in the ordinary course of nature to cause death. We, therefore, refrain from imposing the death sentence and we are of the view that the imprisonment of life and a fine of Rs.
5,000 would meet the ends of justice in this case.
17 The upshot of the discussion is that we substitute the life imprison--ment instead of death sentence under section 302, Pakistan Penal Code, on the appellant and maintain the fine. The appeal is accepted to this extent only. The murder reference is rejected.