1. WAHIDUDDIN AHMAD, J.-Appellant Muhammad Siddique was tried along with his brother Muhammad Latif under sec--tions 302/34, 307/34, P. P. C. And under section 13 of the West Pakistan Arms Ordinance of 1965 for the murder of Muhammad Sharif and for the attempted murder of P. W.
2. 7 Abdul Hamid at about 12-30 p. m. On the 4th December 1966 in Jagan Street, Prem Nagar, Lahore, and for possession at that time the unlicensed chhurris Exhs. P. 5 and P. 6 respectively. Muhammad Latif was acquitted. Muhammad Siddique appellant was convicted and sentenced to death under section 302, P. P. C. By the Additional Sessions Judge, Lahore, by judgment dated the 24th June 1967.
3. He was further convicted under section 307, P. P. C. And sentenced to one year's rigorous imprisonment. He was also sentenced under section 13 of the West Pakistan Arms Ordinance to two years' rigorous imprisonment. In the event of non-confirmation of the death sentence by the High Court, the sentences of imprisonments were to run consecutively.
4. The case of the prosecution is that on the 4th December 1966, Abdul Hamid P. W. 7 brother-in-law of deceased Muhammad Sharif, at about noon time, gave one anna to his son Muhammad Yousuf.
5. Muhammad Yousuf went to bazar and shortly afterwards his cries were heard. P. W. 7 Abdul Hamid and deceased Muhammad Sharif were attracted by the cries of Muhammad Yousuf. They came out of the house and saw Muhammad Latif followed by Muhammad Yousuf who was weeping. On enquiry he told that Muhammad Latif, brother of the appellant had beaten him. On this, there was exchange of abuses between Muhammad Latif and the deceased Muhammad Sharif. Muhammad Latif wanted to attack the deceased but the dec--eased managed to escape and gave sugarcane blows to Muhammad Latif. Niaz Muhammad P. W. 10, who lives in the same locality, intervened and separated the parties. Muhammad Latif left the place with the challenge that he would see the accused later on. The deceased and his brother-in-law Abdul Hamid P. W. 7 came back to their house.
6. It appears that the father of P. W. 7 Abdul Hamid was ailing. After sometime deceased Muhammad Sharif and P. W. 7 Abdul Hamid left their house for paying visit to the ailing father of Abdul Hamid P.
7. W. 7 at Lohari Gate. When they reached the back side of their house they saw the appellant and his brother Muhammad Latif armed with chhuris, who challenged them. Appellant attacked the deceased and caused him two injuries one on the left thigh and the other on the right upper arm.
8. In the meantime, Bashir Ahmad P. W. 8, brother of the deceased and Muhammad Htlnif P. W. 9, who lives in the same locality reached on the spot. Bashir Ahmad grappled the appellant from behind and Muhammad Hanif P. W. 9 snatched away chhuri from his hand. Niaz Muhammad also reached there and the appellant was apprehended by the above three persons. Muhammad Latif, brother of the appellant attacked Abdul Hamid P. W. 7, but he could not cause any injury to him with his chhuri because Abdul Hamid gripped his hands in such a way that he was unable to use his chhuri.
9. Seeing this he got his hands released and ran away leaving his chhuri at the spot. This chhuri was also taken into possession by Muhammad Hanif P. W.
9. Thereafter Abdul Hamid and Bashir Ahmad P. Ws. Took the injured Muhammad Sharif to Mayo Hospital, Lahore. Muhammad Sharif died on the way to the Hospital.
10. A telephonic message was sent to Muhammad Ishaq P. W. 13 Sub-Inspector, from casualty ward of Mayo Hospital at about 1-45 p. m. On receiving the message he proceeded to the Hospital and reached there at about 2-00 p. m. He saw the dead body of the deceased lying in the verandah of the casualty ward and Bashir Ahmad and Abdul Hamid P. Ws. Present there. He recorded the statement of P. W. 7 Abdul Hamid (Exh..P. B.) at 2-00 p. m. And forwarded the same to Mozang Police Station where the case was formally registered by A. S. I Anwar Ali Shah P. W. 4 at about 2-30 p. m.
11. The plea of appellant Muhammad Siddique and Muhammad Latif before the committing Magistrate was of bare denial. Appellant took the plea of self-defence at the trial before the Sessions Judge. In this connection he made the following statement in his examination under section 342, Cr. P. C. Before the Additional Sessions Judge:- "I was selling gander is and sugarcane along the window of Khushi Muhammad, Yusuf, son of Abdul Hamid P. W. Came. He picked up ganderis from my chhaba. I gave him a slap. He ran back shouting. Hamid P. W. Came up. He gave me beating with sugarcane. I struck my head against his face four or five times. Then Sharif deceased came up. He was armed with chhuri Exh. P. 5 in his hand. He gave me chhuri blow in my abdomen. The shirt which I was wearing at that time is worn by me now as well. I produced it before the Court as Exh. D. I. I snatched chhuri Exh. P. 5 from Sharif.
12. The chhuri was in his right hand and I snatched it with my right hand. After I snatched Exh. P. 5 from Muhammad Sharif, lie picked up with his hand my chhuri which was in my chhaba. When he aimed a blow with that chhuri I gave him chhuri blow with chhuri Exh. P. 5 in order to save my life and I fled away. Then I contacted Muhammad Latif co-accused and he advised me to appear at the Police Station. When we went there Hanif and Niaz P. Ws. Were already present at the Police Station. Ch. Ishaq S. I. Was present there. I produced myself before the S. I. S. H. O. Sutlan Ali returned to the Police Station at about 8-9 p. In. Police arrested me and also Muhammad Latif co-accused."
13. The learned Additional Sessions Judge came to the conclusion that there was no earlier incident on the 4th December 1966 and disbelieved P. W. 7 Abdul Hamid and P. W. 10 Niaz Muhammad on this point. He further disbelieved the story of P. W. 8 Bashir Ahmad and P. W. 9 Muhammad Hanif that they had witnessed the occurrence. He also expressed doubt on the arrest of the appellant from the scene of occurrence. He held that Muhammad Saddique was not arrested from the scene of occurrence. He also believed the story of the appellant that he was selling gander is and in that connection a quarrel took place between the appellant and the deceased Muhammad Sharif. He, however, held the appel--lant as an aggressor and came to the conclusion that he attacked the deceased with the intention of killing the deceased and therefore convicted him under section 302, P. P. C.
14. On appeal the High Court upheld the conviction of the appellant and confirmed the death sentence but the learned Judges of the High Court disagreed with the trial Court and accepted the statements of the eye-witnesses, namely, P. W. 7 Abdul Hamid, 1'. W. 8 Bashir Ahmad, P. W. 9 Muhammad Hanif and P. W. 10 Niaz Muhammad. They also came to the conclusion that Muhammad Latif, the brother of the appellant, was also present on the scene of occurrence and the story of the prosecution against him was not without basis.
15. The appellant was granted special leave to appeal on a jail petition.
16. Similarly the contention of the learned counsel for the appellant that P. W. 8 Bashir Ahmad and P. W.
17. 9 Muhammad Hanif had not seen the commission of the crime is also not well founded. The learned Judges of the High Court have dealt with this aspect of the case in detail. Their appreciation of evidence on this point appears to be quite satisfactory. The evidence of these witnesses clearly show they had seen a part of the occurrence. P. W. 9 Muhammad Hanif is a B. D.
18. Member and has no enmity with the appellant. He is a resident of the locality and his reaching on the spot is quite natural. The evidence of P. W. 8 Bashir Ahmad, who is a brother of the deceased and lived with him, is also convincing. He grappled the appellant from behind and P. W. 9 Muhammad Hanif snatched the chhuri from his hand. They must have seen the occurrence. Their evidence, therefore, was rightly believed by the High Court. P. W. 10 Niaz Muhammad also reached at the spot immediately after the occur--occurrence. He also saw the appellant Muhammad Siddique in the custody of P. W. 8 Bashir Ahmad and P. W. 9 Muhammad Hanif. Churri Exh. P. 5 was also recovered in his presence. The discre--pancy in the statement of P. W. 10 Niaz Muhammad and P. W. 9 Muhammad Hanif about the place from where the appellant was arrested is of a minor nature. His arrest from the house of Muhammad Siddiq or from the spot will not make much difference. In the presence of such evidence the learned Judges of the High Court were perfectly justified in holding that the second part of the occurrence was witnessed by P. W. 7 Abdul Hamid, P.
19. W. 8 Bashir Ahmad and P. W. 9 Muhammad Hanif and their evidence was corroborated by the apprehension of the appellant at the spot along with blood-stained chhuri Exh. P. 5 which was, later on, found to be stained with human blood by the Serologist.
20. The plea of self-defence raised by the appellant does not find support from any independent or circumstantial evidence on the record. The S. H. O. P. W. 14 has stated that there is no place in Jagan Street where anybody can sell ganderis as a hawker. The observation of the learned Judges of the High Court that "if the appellant had been selling ganderis at the time and place of occurrence, the eye-witnesses and the investigating police might have found at the spot some sugarcanes or ganderis or baskets etc., or the necessary instruments for making the ganderis", is very pertinent. It is difficult to accept the plea of self-defence of the appellant because if the deceased Muhammad Sharif had come armed with chhuri and attacked the appellant he would have received some injury on his person. The absence of any injury on the person of the appellant clearly shows that he was not attacked by the deceased or by P. W. 7 Abdul Hamid. After carefully considering the evidence on record I am satisfied that the High Court was perfectly justified in not attaching any importance to this plea.
21. The conviction of the appellant is rightly based on the testimony of the eye-witnesses, namely, P.
22. W. 7 Abdul Hamid, P. W. 8 Bashir Ahmad and P. W. 9 Muhammad Hanif. Their statements are corroborated by the arrest of the appellant from the custody of P. W. 9 Muhammad Hanif and P. W.
23. 10 Niaz Muhammad at the spot and the production of blood-stained chhuri Exh. P. 5 by Muhammad Hanif P. W.
9. The motive of the crime is also proved by the testimony of Abdul Hamid P. W. 7 and Niaz Muhammad P. W. 10 about the earlier incident of altercation and quarrel between the deceased and Muhammad Latif. There is no doubt, therefore, that the appellant was responsible for the murder of deceased Muhammad Sharif.
24. It was next contended by the learned counsel for the appellant that as the injury was caused on the left thigh of the deceased which is not a vital part of the body, the appellant should be given a lesser penalty of transportation for life. The contention of the learned counsel has not impressed ma because the attack by the appellant was premeditated. He was armed with chhuri of 9" blade and attacked the deceased with considerable force which resulted in cutting the femoral vein which is a large blood vessel on the thigh. It is, therefore, quite clear that he intended to cause the injury which was found on the deceased person and that injury was sufficient to cause the death in the ordinary course of nature. This case is clearly covered by the third clause of section 300, P. P. C.
25. In the circumstances o this case the appellant does not deserve any lenient view. I` would, therefore, uphold his conviction and dismiss the appeal.
26. M. YAQUB ALI, J.-I agree.
27. M. R. KHAN, J.-I agree.