' GULBAZ KHAN, J.--Javaid son of Bukat Ali, aged 22 years, resident of Ivlohallah Jangalianwala, Ichhra, Lahore, was convicted by the learned Additional Sessions Judge. Lahore, on 7th September 1973, under section 302, P. P. C., and was sentenced to death. Javaid preferred an appeal against his conviction and sentence of death. This judgment would dispose of Criminal Appeal No, 643 of 1973, filed by Javaid appellant and Murder Reference No, 166 of 1973.
2. Ghulam Muhammad P. W. Was a contractor for the construction of houses. Muhammad Sharif deceased worked with him as mason. Ghulam Muhammad P. W. Constructed a house in Street No, 53, Abdul Street, in front of the house of Javaid appellant. He rented out that house to Manzoor P. W.
On 26th September 1971, at the monthly rent of Rs,
75. Manzoor lived in that house alongwlth three other boys, who were unmarried. On 28th September 1971, at about 10 a m., Ghulam Muhammad P.
W. Was going towards Pir Ghazi Road accompanied by Muhammad Sharif deceased. When he reached near taklya Sain Siraj Din, Javaid appellant caught hold of him and told him to get his house vacated immediatly otherwise he would not let him live alive. Ghulam Muhammad P. W.
Replied that he would get it vacated after one month because he had received one month's rent in advance. The accused insisted that he should get it vacated that very day, but Ghulam Muhammad declined. It led to quarrel between the two. Muhammad Sharif deceased helped Ghulam Muhammad in that dispute. Barkat Ali (P. W. 9), Shahab Din and Ramzan P. Ws. (not produced) intervened and separated the parties. On the same day, Ghulam Muhammad P. W.
Accompanied by Muhammad Sharif deceased were proceeding towards their house and when they reached in front of the house of Babu Rafique, the accused came there armed with a chhuri and gave out lalkara. Muhammad Sharif deceased was going ahead of Ghulam Muhammad P. W.
The appellant attacked the deceased and inflicted a chhuri blow on the right side of his abdomen.
He inflicted second blow on the left side of the abdomen, but the deceased tried to ward it off and received injuries on his left hand. On the receipt of blows, the deceased fell down. Besides Ghulam Muhammad, the occurrence was witnessed by Muhammad Yaseen and Ghulam RaFool P. Ws. On the noise raised by Ghulam Muhammad, many persons reached the spot. The accused fled away towards Pakistani Chauk. The deceased expired at the spot immediately. Leaving Ramzan at the spot, Ghulam Muhammad left for the police station and lodged report Exh. P. A., the same day, at 12-45 p.m., which was recorded by Muhammad Salim, S. H.
0., Police Station, Ichhra.
3. The S. H. O., on reaching the spot, prepared injury statement and inquest report and sent the dead body for post-mortem examination. He collected pieces of brick and a pair of shoes of the deceased from the spot. He took into possession clothes of the deceased vide memo. Exh. P. D. He arrested the appellant on 29th September 1971. On interogation, the appellant offered to lead to the recovery of chhuri. Consequently, he produced blood stained chhuri P. 7 from graveyard, Kambohan. It was sealed into a parcel. Inam Ali Shah, Draftman, prepared site plan Exit, P. J. The appellant was challaned after investigation.
4. The prosecution examined 13 witnesses in support of the case. Nazir Ahmad, a recovery witness, was examined as a Court witness.
5. Doctor Rafi-ud-Din conducted autopsy on the dead body of Muhammad Sharif, on 29th September 1971, at 1-30 p.m. The deceased was aged about 23/2 years. The following injuries were found on his person :-
(1) An incised wound 1' x 1 /r x skin deep on the outer and back of left wrist.
(2) An incised wound 1r x 1/2' x skin deep on the front and outer side of left forearm 1/2' above injury No 1.
(3) A stab wound 3" X 3/4' x small and large intestines coming out on the left side of the abdomen half inch to the left midline and one inch above the umblicus.
(4) A stab wound 1.1" x 1/2' x loop of small intestines coming out in oblique direction just at the right inguinal iligamont 1/2' below the right enterior superior iliac spine.
' The left pleural cavity contained about 1200 cc of blood. The left lung was pale and was found cut 1/2 on the interior border duo to injury No,
4. The paritoneum was out due to injuries Nos. 3 and 4.
The diaphragm was punctured on the left lower border due to injury No,
4. The stomach was found punctured at the 'pyloric and due to injury No,
4. Dudenum was punctured due to injury No,
4. The stomach contained blood clots. The greater omantum and mesentry were found cut due to injury No,
3. The small intestines were found cut due to injury No, 4 and contained liquid faeces. Large intestines were found cut on the right side at two places due to injury No, 4 and contained faeces.
There was lot of clotted blood in the pelvic cavity. The interior venacava had a snip as a result of injury No,
4. In the opinion of the doctor, the death was due to shock and haemorrhage and injury to left lung. Injuries Nos. 3 and 4 were individually sufficient to cause death in the ordinary course of nature. All the injuries were inflicted with sharp-edged and pointed weapon. Time between injuries and death was immediate and between death and postmortem about 20 to 24 hours.
6. Ghulam Muhammad (P. W. 10), Ghulam Rasool (P. W. 11) and Muhammad Yaseen (P. W. 12) were examined as eye-witnesseS in this case. They supported the prosecution case by stating that Javaid accused inflicted chhuri blows to the deceased and committed his murder and that they had witnessed the occurrence.
7. Manzoor (P. W. 8) deposed that he was rented out a house by Ghulam Muhammad P. W. On 26th September 1971, at the monthly rent of Rs, 75 and he lived in the said house alongwith Abdul Hamid, Khushi Muhammad and another person named Muhammad Sharif. Barkat All (P. W. 9) stated that on the day of murder, at about 10 Javaid accused caught hold of Ghulam Muhammad and told him to get his house vacated from the tenants and Ghulam Muhammad replied that he had already received the rent for one month in advance. The witness further stated that Sharif tried to intervene, but the parties were separated by him, Shahab and Ramzan.
8. Fazal Elahi (P. W. 5) and Nazir Ahmad (C. W., I) deposed that Javaid appellant produced blood- stained chhuri P. 7 from graveyard, Karnbohan, and they attested the relevant memo.
9. The appellant, in his statement before the trial Court, stated that Muhammad Sharif was residing in front of his house and he had objected to it. He told Ghulam Muhammad in front of his house on the day of occurrence, at 10 a.m. To get the house vacated from Sharif deceased. About the main occurrence, he took up the following plea :- "I had gone to my house. My sister complained to me that Sharif deceased had cut jokes on 3/4 occasions. I told to her that I would talk to Ghulam Muhammad in the morning about the behaviour of Muhammad Sharif. I came out of my house and found Ghulam Muhammad P. W. Who was there in front of his house. Ramzau was also there. I asked Ghulam Muhammad to get the house vacated as Muhammad Sharif deceased was cutting jokes with my sister. He agreed and I went to my place of business. He also left the place. I came to my house at about 12 noon to have my lunch. I was coming to my house and in the way, I purchased mitha from a fruit shop. My face was towards the bazar. I saw my sister and mother. They were getting the water from the public tap. Sharif was coming after my sister and he touched his shoulder with the shoulder of my sister and said to her."
"Have you spoken to your paramour". He caught hold of my sister from pigtail and threw her on the ground. Sharif deceased and my sister had not seen although I noticed them. I thought that I was insulted in the bazar. I bad that chhuri with me with which I was cutting the mitha. I inflicted blows on the person of Sharif deceased and ran away in provocation. The P. Ws. Are from the same brotherhood. There are Christian, Kumhar, Kamboh, Bungils in the mohallah. Two khokhas and a cycle shop were opened at that time."
' The appellant produced his mother MA Walayat Begum (D, W. 1), Munir Ahmad (D. W. 2) and Muhammad Ramzan son of Ghulam Ahmad Khan (D. W. 3) in support of his plea.
10. The ocular evidence was furnished by Ghulam Muhammad (P. W. 10), Ghulum Rasool (P. W. 11) and Muhammad Yaseen (P. W. 12), Although Ghulam Muhammad and Muhammad Yaseen denied their relationship inter se their relationship stood prove I from the cross-examination of Ghulam Rasool P. W. The witness admitted in cross-examination that Mst. Ghulam Fatima mother of Muhammad Yaseen P. W. Was a sister of (Thulam Muhammad P. W. Statements of Ghulam Muhammad and Muhammad Yaseen were corroborated by the disinterested evidence of Ghulam Rasool P. W. Shop of Ghulam Rasool was situated near the spot of occurrence. Thus, he was a natural witness. He appears to be a pious person as he stated in cross-examination that he offered his prayers regularly. On hearing the lalkura, he reached the spot and witnessed the occurrence.
We have minutely scrtinized the statements of three eye-witnesses and do not find any inherent defect in them. The occurrence had taken place at any time. The statements of the eye-witnesses are further corroborated by the recovery of blood-stained chhuri at the instance of the appellant.
Fazal Elahi (P. W. 5) and Nazir Ahmad (C. W. 1) the recovery witnesses, A. Ere disinterested persons.
From their statements, it stood proved that the appellant , produced blood-stained chhuri P. 7 and it was sealed into a parcel. This chhuri was found to be stained with human blood vide report of the Serologist Exh, P.
1.
11. The case, as set up by Ghulam Muhammad P. W. Regarding the motive, was that he had rented out his newly constructed house to Manzoor Ahmad P. W. On 26th September 1971, at the monthly rent of Rs, 75 and in that house, Manzoor Ahmad was living alongwith Abdul Hamid, Khushi Muhammad and another person named Muhammad Sharif and all of them were bachelors. The appellant told Ghulam Muhammad P. W. On 28th September 1971, at about 10 a.m , to get his house vacated from Manzoor etc., who replied that he had already received advance rent for one month and his reply led to an altercation and the deceased. Shahab Din and Ramzan P. Ws. Intervened and separated them. The case of the appellant was that Muhammad Sharif deceased lived in that house and he the appellant told Ghulam Muhammad in front of his house to get the house vacated from the deceased. Manzoor Ahmad (P. W. 8) and Barkat Ali (P. W. 9) were produced in support of the version of Ghulam Muhammad complainant. In case the appellant had been aggrieved of the conduct of Manzoor Ahmad P. W. Or any of the other occupants of the house, be would have directly complained of it to the person concerned. There is nothing on the record to show that Manzoor Ahmad or other occupants of the newly constructed-house had made any sort of advances towards the sister of the appellant. House of Ghulam Muhammad P. W. Was in front of the house of the appellant. One of the doors of the house of Ghulam Muhammad opened towards the house of the appellant. It was, so admitted by Barkat Ali (P. W. 9) in his cross-examination.
Suggestions were thrown to the witnesses if Muhammad Sharif deceased lived in the house of Ghulam Muhammad, but those were denied. Ghulam Rasool P. W. Was put the same suggestion and he replied that it was incorrect that Sharif deceased used to live at the house of Ghulam Muhammad P. W. His position before the Committing Magistrate was that Sharif deceased used to live with Ghulam Muhammad. He was confronted with that statement where it was so recorded. It was rightly argued by the learned counsel for the appellant that the real target was the deceased and not Ghulam Muhammad. In case the appellant had any grudge against Ghulam Muhammad for the reason that he had not agreed to his request, he would have attacked him and caused him injuries. Ghulam Muhammad was also present at the spot. He could not have escaped the assault.
During the morning incident, Muhammad Sharif did not contribute much. When the appellant and Ghulam Muhammad started the quarrel, the deceased, Shahab Din and Ramzan intervened and separated them. It is not the case of the prosecution that during the morning incident, the deceased had manhandled the appellant. Had the deceased assaulted the appellant and given him thrashing, the motive could have been with the appellant to commit his murder on that account, but it was not the case. It was quite clear that the appellant had no grudge against the deceased on account of morning incident. Since the appellant had cause of annoyance against Muhammad Sharif, he committed his murder.
12. The appellant did not take up any plea in his statement before the Committing Magistrate. He answered every question put to him that he would make statement in the Court of Session. Now it is to be seen as to whether the plea of the appellant taken up at the trial was correct or not. The learned counsel for the appellant contended that the presence of the mother and sister of the appellant at the spot besides the presence of one bucket, clearly supported the plea of the appellant. The appellant stated that while proceeding towards his house at noon-time, he purchased mitha from a fruit shop and then he saw his sister and mother getting water from the public tap. He noticed the deceased rubbing his shoulder with the shoulder of his (appellant's) sister and also heard telling her as to why she was not speaking to her paramour. He saw the deceased holding his sister from the pig-tail and throwing her on the ground. He was holding a chhuri in his hand and he inflicted blows to the deceased under provocation. Names of Munir Ahmed (D. W. 2) and Muhammad Ramzan (D. W. 3) were not suggested to the prosecution witnesses nor the appellant named them in his statement and for these reasons, no reliance could be placed on the statements of the said two defence witnesses. Mst. Walayat Begum is the mother of the appellant. She was to support his plea. The occurrence had taken place at about noon-time in the bazar. Several shops were situated near the spot of occurrence. According to the appellant, he heard the deceased addressing his sister. It would show that he was very close to the place. He was not hiding himself in any place and was present in the bazar. We are not prepared to accept that the deceased could not notice him.
' Mst. Parveen was not going also. She was accompanied by her mother. In the presence of the mother, the deceased could not rub his shoulder with Mst. Parveen or address her. Had he behaved in that manner, Al::. Walayat Begum would have made a hell of it. The deceased could not catch hold of the pig-tail of Mst. Parveen in the presence of her mother and fell her on the ground. In view of the above discussion, we are not prepared to accept the defence plea. It was not a case of grave and sudden provocation. We reject the defence version as being false. There was nothing on the record to show that Mst. Parveen and her mother Mst. Walayat Begum were taking water in the bucket from the water tap. Ghulam Rasool P. W. Simply admitted that at the time of occurrence, mother and sister of the accused were present. He did not mention that they were present at or near the spot of occurrence. On hearing the noise, the two ladies might have reached the spot.
Since there was a water tap, the bucket would have been there. None of the prosecution witnesses stated that Mst. Parveen and her mother had the bucket with them. The presence of the bucket near the spot was not of any help to the case of the appellant.
13. The very fact that the appellant had attacked the deceased and caused him injuries proves that he intended to commit his murder and not of Ghulam Muhammad P. W. As discussed above, the appellant could not have any grudge against the deceased on account of the morning incident.
The deceased lived in the house of Ghulam Muhammad and the appellant wanted Ghulam Muhammad to turn him out of the house. This fact establishes that on some previous occasions, the deceased bad tried to make advances towards the sister of the appellant and the appellant had resent- 4 ment against the deceased on that account. His resentment was obvious from the words which he uttered when Sharif deceased cried that he was going to die. For this reason, we are of the view that it was not a case of extreme penalty. While dismissing the appeal, we reduce the sentence of Javaid appellant from death to imprisonment for life and a fine of Rs, 000 or in default in payment of fine, to undergo further rigorous imprisonment for three years. This sentence would meet the ends of justice in the circumstances of the case. The amount of fine, if recovered, shall be paid to the heirs of the deceased by way of compensation. The sentence of death passed upon Javaid appellant is not confirmed. .