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Criminal Appeal No. 411 and Murder Reference No. 96 of 1974, decided on 14th March 1975.

‑‑ Ss. 302 & 300, Exception IV‑Murder‑Evidence‑Eye‑witnesses giving consistent account of occurrence‑Evidence of such witnesses of reliable character and sufficient to warrant conviction of accused Attack following a sudden quarrel started by deceased and without premeditation on part of accused‑Lesser penalty, held, will be sufficient to serve ends of justice, in circumstances of case‑Sentence of death altered to that of imprisonment for life.‑[Evidence Witness‑Sentence].

S. 96‑Private defence, right of‑Plea of self‑defence not specifi cally raised‑Held, can be taken into consideration if from material on record a case for right of private defence made out.‑[Private defence, right of].

Kh. Shaukat Ali for Appellant.

Major Mufti Nazar Muhammad for the State.

Date of hearing : 14th March 1975.

Muhammad Akram, appellant who was convicted under section 302, P. P. C. by the Sessions Judge, Rawalpindi, of having murdered Abdur Rehman deceased on 3rd June 1972 at 12 noon in the area of village Pandora, police Station New Town, Rawalpindi, and was awarded the sentence of death and a fine of Rs. 2,000, has appealed through jail. This judgment will dispose of tits appeal as also the reference received for confirmation of the death sentence.

2. The brief facts of the prosecution case are that about two years before the occurrence, Mst. Suriya Begum (P. W. 5), daughter of Nur Ilahi (not produced) was married to the appellant and he started living with her parents as a Khana Damad. The appellant used to maltreat Mst. Suriya Begum. About twelve or fourteen days before the occurrence, he beat her, over which there was an altercation between him and Nur Ilahi. Thereafter, Nur Ilahi left that house and started living separately after getting another house on rent. About five days before the occurrence the appellant again thrashed Mst. Suriya Begum P. W. Abdur Rehman deceased rescued her from the appellant and also assaulted him. Nur llahi, Malik Dad and Ghulam Qadir P. W. intervened and rescued the appellant from the deceased. On the next day, the appellant left for his village Sedhan with all his belongings and Mst. Suriya Begum went to the house of her parents. The prosecution story proceeds that on 3rd June 1972 at abut noon time the appellant went to the house of the parents of Mst. Suriya and asked her to accompany him. He caught hold of her by her hair and dragged her to the lane. The alarm raised by Mst. Suriya and her mother Asmat Jan y attracted Abdur Rehman deceased, Ansar Khan, Sher Afzal and Ghulam Qadir P. Ws. Abdur Rehman deceased tried to rescue Mst. Suryia whereupon the appellant gave him a knife blow on the left upper chest. He inflicted another knife blow which landed on the right buttock of the deceased. On receiving the injuries Abdur Rehman deceased fell down and died at the spot. Ansar Khan P. W. tried to apprehend the appellant and caught hold of him by his shirt but he ran away leaving the shirt in his hands. Leaving the dead body with Ansar Khan and Ghulam Qadir P. Ws. Sher Afzal P. W. went to Police Station New Town, Rawalpindi, where he reported the occurrence at 1-10 p.m. to Chan Pir, S. H. O., vide F. I. R. Exh. P. C.

Sher Afzal complainant is the brother of the deceased. Ansar Khan P. W. is the first cousin of the deceased. Mst. Suriya Begum P. W., wife of the appellant, is the cousin of the deceased as also of Sher Afzal complainant. Ghulam Qadir P. W. is the maternal uncle of the wife of the deceased. The evidence about the relationship of the deceased with Mst. Suriya Begum and Ghulam Qadir P. Ws. is somewhat ambiguous. In the F. I. R. Sher Afzal complainant, brother of the deceased, stated that Nur Ilahi, father of Mst. Suriya, was the son of the sister of his mother while at the trial he deposed that Mst. Suriya Begum was his cousin. If the mother of this witness was the sister of the mother of Nur Ilahi, then Mst. Suriya was his niece and not first-cousin. Ghulam Qadir P. W. stated that the wife of Abdur Rehman deceased was his real sister's daughter and in the same breath he gave out that Abdur Rehman deceased was the son-in-law of his sister-in-law.

3. After recording the F. I. R., Chan Pir Shah, Sub-Inspector, reached the spot. He prepared the injury-statement (Exh. P. D.) and the inquest report (Exh. P. E.) of the dead body of Abdur Rehman deceased and sent it to the mortuary for post-mortem examination. Ansar Khan P. W. produced shirt (Exh. P. 1) of the appellant before him and he secured it under memo. Exh. P. A. He took some blood-stained earth from the spot and made it into a seated parcel vide memo Exh. P. B. The appellant absconded after the occurrence and was declared a proclaimed offender. He was arrested on 18th October 1972. After the investigation, a case was sent up against him under section 302 of the Pakistan Penal Code.

4. On 4th June 1972 Dr. Karam Hussain, C. M. O., D. H. Q. Hospital Rawalpindi, conducted the autopsy on the dead body of Abdur Rehman deceased and found the following injuries on it:---

(1) An incised wound 2" x '' chest deep in front of left chest upper part.

(2) An incised wound 1 x " x 2' deep on the right buttock.

Both the injuries were ante-mortem caused by a shard-edged weapon. Injury No. 1 was grievous and sufficient to cause death in the ordinary course of nature. Injury No. 2 was simple. Probable time between injury and death was half an hour and that between death and post-mortem examination about 24 hours.

5. To support its case, the prosecution relied on the ocular testimony of Sher Afzal, Ansar Khan, Mst. Suriya Begum and Ghulam Qadir P. Ws. Abscondence of the appellant after the occurrence was also relied on as a corroborating circumstance.

6. The appellant pleaded not guilty to the charge. He admitted that four or five days prior to the occurrence he had beaten his wife Mst. Suriya P. W. but contended that Abdur Rehman deceased was not there nor had he intervened to rescue her. He also admitted that after this incident, he left the house with his belongings and his wife had gone to the house of her parents. He stated that after leaving the house of his in-laws he had gone to Karachi and had no knowledge about the occurrence. He professed innocence and contended that he had been falsely implicated due to enmity with the complainant party. No evidence was led in defence.

7. The learned trial Judge believed the ocular account and found its corroboration in the abscondence of the appellant after the occurrence and the production of his shirt (Exh. P.1) before the police which completely fitted him.

8. The learned counsel for the appellant did not urge any thing against the ocular account furnished by Sher Afzal, Ansar Khan. Mst. Suriya Begum and Ghulam Qadir P. Ws. In the grounds of appeal it was stated that the eye-witnesses had attacked the appellant in order to kill him and he inflicted the knief blows to the deceased to save his own life. It was further alleged that it was a sudden fight and there was no premeditation on the part of the appellant.

9. On going through the evidence with the help of the learned counsel for the appellant and the State we find that the above-mentioned eye-witnesses had given a consistent account of the occurrence. The only notable discrepancy in their statements was about the place of residence of Ghulam Qadir P. W. Ansar Khan P. W. stated 'that Ghulam Qadir P. W. was residing in their Mohallah whereas Sher Afzal complainant stated that Ghulam Qadir P. W. was a resident of New Katarian situate at a distance of one mile from the place of occurrence. Mst. Suriya P. W. stated that Ghulam Qadir P. W. was riot a resident of the locality but lived at a different place, and Ghulam Qadir P. W. himself gave his residence as New Katarian. If the evidence of Ghulam Qadir be excluded from consideration, even then there remains sufficient evidence of a reliable character on the file to warrant the conviction of the appellant. There is no material on the file to show that that eye-witnesses had any motive to falsely implicate the appellant in a heinous crime lake murder. Mst. Suriya Begum P. W. is the wife of the appellant and it is not possible to believe that size would falsely implicate him merely for the reason that he had been thrashing her. So far as the plea of self‑defence raised by the appellant before us is concerned, we feel no hesitation to say that it is an after‑thought. The plea of self‑defence'" though it be not specifically raised can be taken into consideration if from the material on the record a case for right of private defence is made out. In the instant case, no suggestion was put to the eye‑witnesses that they had attacked the appellant and he had acted in self‑defence. The appellant did not suffer even a scratch at the hands of‑the eyewitnesses and there is utter want of any such material as could support the plea of self‑defence.

10. It is in evidence that the deceased was attracted to the post on hearing the alarm and when he tried to rescue Mst. Suriya, the appellant gave him two injuries with a knife. It appears that the attack followed a sudden quarrel started by tile deceased who wanted to secure the release of Mst. Suriya Begum. There was no premeditation on tug; part of the appellant and the incident happened all of a sudden. We are, therefore, of the view that lesser penalty of law will be sufficient to serve the ends of justice in this C case. Therefore, while maintaining the conviction of the appellant under section 302, P. P. C., we alter his sentence from death to imprisonment for life. The appellant wag fined Rs. 2000. He could not engage a counsel to defend him which shows that he is not possessed of sufficient means. The sentence of fine is, therefore, set aside. With this modification in the sentence, the appeal is dismissed. The death sentence is not confirmed.

11. While parting with this judgment, we may add that while discussing the evidence about the abscondence of the appellant the learned trial Judge observed that "No evidence has been led by him to show that he ever lived in Karachi. Moreso, if he had not committed the murder, he would have at once come back on learning about the murder of his wife, but he did not do so". In this case the victim of crime was Abdur Rehman deceased and not the wife of appellant. She was a P. W. in this case.

Sentence reduced.

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