Muhammad Miskin son of Allah Dad, aged 28 years, has been con--victed under section 302, P. P.
C. For the murder of Gulzar Khan and was sentenced to transportation for life plus fine of Rs. 1,000 or in default to undergo six months' R. I., vide judgment dated the 20th of December 1973 of the Ex- officio Additional Sessions Judge, Rawalpindi. He was also convicted under section 307, P. P. C. For murderous assault on Banaras P. W. 10, son of the deceased and was sentenced to seven years' R. I.
Plus fine of Rs. 500, or in default to undergo three months' R. I. Both the sentences were ordered to run concurrently. Out of the fine if realized Rs. 1000 were to be paid to the heirs of the deceased as compensation. The jail appeal of the convict is before me which is being disposed of by this judgment.
2. The occurrence took place at 2-00 p.m. On the 7th of February 1972 outside the gate of D. M.
Textile Mills, Chak Madah Khan, at a distance of 2 miles from Police Station, A-Division, Rawalpindi.
Statement Exh. P. B. Was made by Muhammad Arif P. W. 9, son of the deceased at Police Post, Loco Shed, Rawalpindi on the same day at 6.00 p.m. And it was recorded by Amir A.I Shah S. I., P. W. 13 formal F. I. R. Exh. P. B./1 basing on this statement was registered at Police Station A-Division, Rawalpindi, by Muhammad Rafique A. S. I. (P. W. 5) on the same day at 7.15 p.m.
3. The motive for crime as stated in the F. I. R. Is that a day prior to the occurrence an altercation took place between Banaras P. W. 10, son of the deceased and the appellant when the appellant had purchased vegetables from him but did not pay for the same. A quarrel took place between Banaras P. W. And the appellant but they were separated by Safdar P. W.
11. At the trial the immediate cause of occurrence as stated by the eye witnesses was that the appellant came to the place where instead of Banaras P. W. The deceased was selling vegetables at 12.00 noon on the day of occurrence. The deceased asked him as to why had he altercated with his son Banaras P. W, and that if he wanted to get vegetables he would give the same to him. There abuses were exchanged between the two of them and the complainant party, namely, the deceased and his sons started pelting stones at the appellant as a result he was struck and injured. They were again separated by Safdar P. W. And the appellant who had been injured left the place. The occurrence took place on the same day after two hours at 2.00 p.m.
4. The prosecution has produced four eye-witnesses in this case, namely, Arif P. W. 9, son of the deceased, Banaras P. W. 10, injured son of the deceased, Safdar P. W. 11, not related to the deceased and Ghalib P.W. 12, also not related to the deceased. Shafi was mentioned as an eye-witness by the prosecution but was given up as having been won over. It may be pointed out at this stage that Arif and Banaras P. Ws. Are sons of the deceased whereas Safdar P. W. Worked with then in the same Mill and, therefore, is their co-worker and comrade. Ghalib P. W. Belonged to the same tehsil as the deceased.
5. The appellant was arrested on the 7th of February 1972, by Amir A.I Shah S. I. P. W.
13. Blood- stained knife P. 1 was recovered at his instance and taken into possession vide memo. Exh. P. E., dated the 7th of February 1972. The attesting witnesses are Abdul Ghafar not produced and Rehmat Khan P. W. 7 besides the Investigating Officer. According to the report of the serologist Exh. P. R. The above-mentioned article was stated to be stained with human blood.
6. Dr. Abdul Jabbar P. W. I medically examined the deceased while he was still alive at 4.30 p.m. On the 7th of February, 1972 at the hospital and found on his person the following injuries: 1 incised stab wound on the left lower chest; 2 incised stab wound on the outer side of left chest; 3 contusion on upper lip; 4 abrasion on the left ring finger, and 5 abrasion on the left middle linger. Injuries Nos. 1 and 2 were caused by sharp-edged weapon and the rest were caused by blunt weapon. Injuries Nos. 1 to 3 were kept under observation whereas the rest were simple. The deceased died at 6.30 a.m. On the 9th of February 1972.
The same Medical Officer at 5.00 p.m. On the same day medically examined Banaras P. W. And found on his person three incised wounds, two on the left side of the head, and one on the left buttock. The injuries had been caused by sharp-edged weapon and were kept under observation.
However, these were declared simple on the 18th of February 1972.
On the same day at 6.OJ p.m. This Medical Officer examined the appellant and found on his person tan injuries in the form of lacerated wounds, contusions and abrasions on the left eye-brew, head, shoulders, chest, neck, left fore-arm, left knee and right thigh. The injuries were caused by blunt weapon and were kept under observation. On the 16th -of February 1972, these were declared simple.
Dr. Karam Hussain P. W. 2 conducted post-mortem examination on the dead body of the deceased on the 9th of February 1972. He noticed the same injuries on his person except that the incised wounds were stitched. In his opinion, the death was due to shock and haemorrage as a result of injury No. I which was sufficient in the ordinary course of nature to cause death. According to him injury No. 1 was dangerous to life.
7. The appellant in his statement before the trial Court did not deny the occurrence but gave his own version. He stated that a day earlier he had quarrelled with the son of the deceased because he was charging high price for the vegetables. On the day of occurrence when he passed from the place where the deceased was selling vegetables, the deceased com--plained to the appellant as to why he had fought with his son on the previous day. The appellant told him to enquire about the incident from his own son because he was at fault. The deceased then abused him. The appellant asked him not to indulge in harking whereupon the deceased, his sons, Altaf, Banaras, Arif and their co-workers Shall and Ghalib attacked, him, while Arif was armed with knife and the others had sods. The deceased and Banaras P. W. Gave him soti blows. When they were doing so he snatched the knife from Arif P. W. And in order to save his own life he gave blows with it to the deceased and Banaras P. W. He stated that he acted in the exercise of his right of self-defence and was innocent.
8. In the F. I. R. The occurrence is reported to have taken place in the following manner; on the day of occurrence the deceased was selling vegetables as usual in front of the gate of the Textile Mill.
Banaras and Arif P. Ws. Were present at a Tandour nearby. The appellant came wrapped in a chaddar and gave a lalkara to the deceased to the effect that he had come to avenge the insult which had been hurled at him the previous day. Immediately thereafter he whipped out a knife from under the chaddar and attacked the deceased. He gave knife blows to the deceased which fell on his abdomen and left chest. The deceased fell down. Banaras P. W. Rushed towards him in order to rescue him. But the appellant gave three blows to him with his knife out of which two fell on his head and he fell down. The appellant gave him the third blow on his left thigh with the knife while Banaras P. W. Was in tire lying position. On their alarm Safdar and Ghalib P. Ws. Among other persons rushed to the spot who witnessed the occurrence. They saved the deceased as well as banaras P. W. From the clutches of the appellant. On seeing them the appellant ran away alongwith the knife. The deceased was taken to the hospital in an injured condition where he died at 6.00 a.m. On the 9th of February 1972.
9. I have heard learned counsel for the State and also examined the record. It may be pointed out at the outset that the eye-witnesses produced in this case are interested in the sense that Arif and Banaras P. Ws. Are sons of the deceased, Safdar P. W. Is a co-worker with them in the Mill and Ghalib P. W hails from the same tehsil and thana as the deceased. In the F. I. R. Arif P. W. Had stated that a day before the occurrence an altercation took place between his brother Banaras P. W. And the appellant because the appellant after having purchased vegetables from him did not pay him for the same. The appellant on the other hand had stated before the trial Court that what actually happened was that Banaras P. W. Demanded high price for the vegetables over which there was x quarrel between them and the appellant had abused him. On the day of occurrence, according to the testimony of Arif P. W. The appellant came to the place where the deceased was selling vegetables in order to take revenge for the insult of previous day, he raised a lalkara and then attacked the deceased. According to the version of Arif P. W. As given in the F. I. R. The fact that the appellant had sustained injuries at the hands of the complainant party due to pelting of stones had been concealed. At the trial stage Banaras, Safdar and Ghalib P. Ws. Appear to have introduced another motive as the immediate cause of occurrence. They stated that on the day of occurrence at 12-00 noon the appellant was passing by and the deceased complained to him as to why he had quarrelled with his son on the previous, day. Thereupon, abuses were exchanged between the deceased and his sons on one side and the appellant on the other. Thereafter, stones were pelted by the deceased and his sons at the appellant who sustained injuries but they were separated by Safdar P. W. And the appellant went away. According to this version after two hours the appellant came again, this tune wrapped in a chaddar and after raising lalkara attacked the deceased with a knife which he was carrying. If with this version, the statement of the appellant is read, it appears that there was no time lag (of two hours) between the incident at 12.00 noon and the occurrence at 2.00 p.m. But both these were part of the same transaction. It has already been pointed out that the appellant did not derv the occurrence. He had stated that he was passing by and the deceased complained to him as to why he had quarrelled with his son on the previous day. This led to an altercation and the deceased abused him. Thereafter, the deceased and his sons as well as Ghalib P. W. And Shafi attacked him. According to the version of the appellant Arif P.
W. Was armed with a knife and the others were armed with sotis. The appellant sustained sod blows from the deceased, Banaras P. W. And his brother Altaf. But according to him he managed to snatch the knife from Arif P. W. And in the exercise of his right of self-defence he caused injuries to the deceased and Banaras P. W. It is difficult to accept that when the appellant was being given blows with sots by the complainant party he still managed to snatch the knife from Arif P. W. And caused injures with the same to the deceased and Banaras P. W. If the statements of partisan eye- witnesses are considered with caution alongwith the dying declaration in this case of the deceased (Exh. P. T.) and the statement made by the appellant before the trial Court, what probably happened was that an altercation had taken place between the appellant and Banaras P. W. a day prior to the occurrence. On the day of occurrence the appellant was passing by and the deceased complained to him as to why he had quarrelled with his son. This led to a fight between the appellant on the one side and the deceased and his sons on the other. In the course of this fight stones were pelted by the deceased and his sons at the appellant and as a result he sustained ten injuries in the form of lacerated wounds, contusions and abrasion on the head, shoulders, chest, neck, left knee and right thigh as is clear from the medical evidence. It is further probable that in the course of the same fight the appellant also threw a stone or something which hit the upper lip of the deceased for he had one contusion injury there and two abrasions on the left ring finger and middle finger. Banaras P. W. Does not have any injury in the nature of contusion or abrasion but has three incised injuries. Anyway, either at the same time or shortly thereafter the appellant whipped out a knife and inflicted injuries to the deceased therewith and subsequently when Banaras P. W. Came to the rescue of his father he was also given three injuries with the knife by the appellant. According to the medical evidence the cause of death of the deceased was the incised injury on the stomach and none of the other injuries. In the circumstances it can be said that a sudden fight broke out between the appellant on the one side and the deceased as well his sons on the other in which pelting of stones was resorted to by the complainant side and the appellant used a knife. It was only one knife injury caused to the deceased which led to his death two days after the occurrence in the hospital. The three knife injuries sustained by Banaras P. W.
Were subsequently declared simple. I am, therefore, of the view that the case of the appellant was covered by Exception IV to section 300, P. P. C. And he should have been convicted under section 304(I), P. P. C. For having caused the death of the deceased.