1973 P Cr (PLP)

9. Mohammed Umer Khan (P. W. 1) has stated that the body of deceased Janan was examined by him on the day following the incident and he found one incised wound on his person. This incised wound was 1' x 1/2' x cavity deep on the six intercostals space lateral to mid-sternal line. This injury had punctured his heart and pericardium and cut the thorax. According to the Medical Officer the injury was sufficient in ordinary course of nature to cause death. The eye-witnesses Zahir Shah and Malook were also examined by Dr. Izharul Haq and the certificate issued by the doctor shows that both of them had incised wound on their persons. Zahir Shah had an incised wound 1 ' x 1/4' without any depth at the mid line front chest in level of nipples. Malook had also an incised wound 3/4' x x 1/4' on loft ring finger. I have already stated was the earlier part of the Judgement about the injury that was found on the person of appellant.

10. The death of deceased Janan has not been questioned before us and the medical evidence contoured alongwith the evidence of eye-witnesses clearly establishes that deceased Janan died on account of injuries that lie suffered.-

11. The only question that now remains for consideration is whether the injuries to deceased Janan and witnesses Zahir Shah and Malook were caused by the appellant and if so whether the appellant is protected by provisions of Exception II or IV, or, either of them, to section 300, P. P. C. " In this case five eye-witnesses have been examined by the prosecution. Out of them Zahir Shah, the complainant and the name of Habib Khan and Taj Maloak have been mentioned in the F. I. R. as -eye-witnesses. The remaining eye-witnesses Saifur Rehman and Sher Zaman are not mentioned in the F. I. R. butt they have given clear and convincing evidence with regard to the transaction that resulted in the death of Janan and injuries to Zahir Shah and Malook. All these witnesses are residing in Feature Colony and therefore it is not improbable that they should have seen the incident. The incident had taken place in broad daylight and there is no question of mistaken identity in this case. The evidence of these witnesses in regard to the broad features of the transaction I is consistent as far as the main incident relating to the death of` Janan is concerned. These witnesses have also given evidence in regard to the cause of the quarrel. In fact the appellant also had mentioned the names rot all these witnesses to his statement before the Additional Sessions Judge as the persons who were present at the time of the transaction although he has given his own version with regard to the incident.

13. Then there is also the evidence that the appellant had been sent to the Hospital for examination in regard to the injury that he bad on his person. It has been proved that the appellant had injuries on his person. The evidence further discloses that immediately after the incident the appellant had gone to the Police Station which circumstance also goes to show that he was concerned in the transaction relating to the death of deceased Janan and injuries to Zahir Shah and Malook, Besides, the clothes seized from the person of the appellant, on the day of the incident were stained with human-blood. This circumstance of the recovery of the bloodstained clothes has been admitted by the appellant who in his statement stated that the police had secured his clothes which were on his person and were stained with human blood., There is also evidence with regard to the appellant having led the police to a place froth where the weapon of offence, viz a knife was recovered. This knife has been certified by the Chemical Analyser to be stained with blood but on account of disintegration of the blood the origin thereof could not be determined. However since the knife w" recovered from a pit sad the same had blood, on it the circumstance is also not without significance, even though the origin of blood has not been determined.

14. Even in cross-examination no serious attempt has been made to discredit the prosecution evidence in so far as it relates to the appellant stabbing the deceased and causing injuries to Malook. The suggestions in crops-examination were that when the appellant was inside the house, After the first quarrel with Habib, the witnesses forcibly broke open his door and went inside and caused injuries to the appellant. Evidence in regard to this suggestion which points to the existence of the right of private defence in favour of the appellant will be considered later in this Judgment when I proceed to determine the question whether the appellant was protected by Exceptions 11, IV to section 300, P. P. C. Suffice it to say that no serious attempt was made even in cross-examination to disown the part played by the appellant in the transaction which resulted in the death of deceased and injuries to witnesses.

15. For all these reasons I am clearly of the view that it was the appellant who caused the death of Janan and was con cerned in causing injuries to Zahir Shah and Malook.

16. The question then is as to whether the appellant could be held guilty under section 302, P. P. C. or is entitled to the benefit of any of the Exceptions to section 300, P. P. C. The appellant did receive injury on his head which was a lacerated around. This fact is proved by the evidence of Dr. Iftikhar Ahmed who had examined the appellant on the day of the inci dent. The appellant had an injury on the left parietal region of the head. The Medical Officer has also stated that the wound had to be stitched. Besides the evidence of Medical Officer there is also the evidence of S. I. P. Raza Ajayab Khan who had stated that the appellant had injury on his person and was sent .to the Hospital for examination and treatment. The same police officer had also written a letter to the Medical Officer of Civil Hospital wherein it was stated that the appellant had received injuries at the time of occurrence. In addition there is the evidence of Police Constable Mohd. Fazal who has stated that on the day of incident he had taken the appellant alongwith Zahir Shah and Malook to the Hospital. Curiously enough this police constable had said that he did not see any injury on the person of the appellant. In view of the very clear evidence of S. I. P. Ajayab Khan and the Medical Officer I have no hesitation in partly disbelieving the evidence of Mohd. Fazal Constable to the extent that he did not see any injuries on the person of the appellant.

17. Besides, the evidence of three defence witnesses Faziullah, Abdul Ghaffar and Saifur Rehman also establishes the fact that the appellant received an injury on his head. Out of these threes witnesses, Faizullah is related to the appellant but the other two witnesses appear to be absolutely independent. Moreover, defence witnesses Abdul Ghaffar and Saifur Rehman were examined by S. H. O. Nawab Hussain when he took over investigation from S. I. P. Ajayab Khan. In fact S. H. O. Nawab Hussain has stated that he had got defence witness Saifur Rehnan examined under section 164, Cr. P. C. These two defence withesses Saifur Rehman and Abdul Ghaffar were not examined by the prosecution so that the appellant examined them !n his defence. As already stated, these three defence witnesses have also spoken of the appellant having received the injuries and there after having left for the police station, perhaps for lodging a report or giving his version of the incident. Moreover, the prosecution witness Taj Malook has stated that when he had gone to the police station with complainant Zahir Shah before lodging the report he found the appellant already present at the police station. Even P. W. Saifur Rehman had in his evidence in the committal Court stated that he had seen injuries on the appellant but did not mark on what part of the body had he received injuries. This statement of course, was denied by him in the Sessions Court and therefore an extract from his evidence in the committal Court was brought on the record as Exh. 18.

18. The weight of all this evidence leaves me in no doubt that appellant did receive injuries in the transaction in which Janan lost his life and Zahir Shah and Malook sustained injuries.

19. The prosecution witnesses namely eye-witnesses have not explained as to how the appellant received this injury. Each one of these eye-witnesses was cross-examined but they denied that the appellant .had any injury on his person. This injury on the head of the appellant could not be self-inflicted nor was any attempt made before us at the time of arguments to show that this injury could be self-inflicted or self-suffered. Even the learned Additional Sessions Judge had in his judgment expressed as follows: - "The accused had only a lacerated wound on left parietal region, this injury was declared simple having been caused by a hard blunt object. Thus the presence of the injury on the person of the accused has neither been suppressed by the pro secution nor it has been withheld from this Court. The amused might have received this simple hurt on his head during the scuffle when he had assaulted Janan in the lane. It was due to the scuffle that Zahir Shah and Taj Malook P. Ws. had also received incised wounds." The above passage from the Judgment of the Additional Sessions Judge conclusively shows that the learned Judge was conscious of the fact of injury on the person of the appellant. Hut curiously enough he ignored the same when he proceeded to determine the nature of offence committed by the appellant.

20. There is' no doubt whatsoever that there was a verbal altercation and quarrel between Habib Khan and appellant on amount of former throwing dirty gutter water in front of the houses Of the appellant. No previous enmity ear grievance is shown to exist as between the parties. The evidence of e witness also establishes that the appellant and Habib Khan abused each other and this mutual abuse continued for about 5 or 7 minutes. This quarrel which was sudden must hay raised a heat of passion. The quarrel was mutual and the abused were also mutual. The injury suffered by the appellant was o the head and 'the nature of the injury is such as supports the allegations of the appellant that he had been given that injury with a Belcha (Shovel). The Medical Officer states that the injury may have been caused with a hard blunt object although the same was a lacerated injury. I am of the view that a lacerated wound could be caused with a Belcha but even if a Dunda had been used for the purpose of causing this injury the appellant could not be considered to have acted in cruel or unusual manner or taken any undue advantage is using a knife on the deceased. The deceased suffered only on injury which was on the chest but the appellant had 21so be given an injury on the head which, too, is a vulnerable part o the body. In cases of sudden quarrels the initiation of assault or provocation is immaterial.

21. The evidence of the three defence witnesses has given a version that the complainant party had broken open the door of the house of the appellant and then a fight ensued in the house of the appellant. They have not been able to say as to who had given the first injury, although the appellant on the version of the defence evidence, would in that case be entitled to use force against the complainant party. However the evidence of defence witnesses clearly shows that both the appellant and the deceased received injuries in a single transaction. The evidence of the defence witnesses also indicates that there was a mutual quarrel and abuses before the actual incident.

22. Considering all the circumstances of this case I am clearly of the view that the prosecution witnesses have concealed the full facts in regard to this transaction. They have failed to explain the injury on the person of the appellant and in fact go to the extent of denying that the appellant was injured. The fact of injury on the person of the appellant is established beyond a reasonable doubt. In these circumstances of the case I hold that the appellant would be fully protected by Exception IV to section 300, P. P. C. in so far as the charge under section 302, P. P. C. is concerned. I hold that the appellant is also guilty under section 324, P. P. C. in regard to the injuries on Zahir Shah and Malook.

23. In the result, the conviction of the appellant under section 302, P. P. C. is set aside and he is convicted under section 304, Part I, P. P. C. in respect of the killing of Janan. The appellant is also guilty under section 324, P. P. C. Allowing the appeal to that extent the sentence of death imposed on the appellant is not confirmed. He is convicted under section 304, Part I P. P. C. and sentenced to R.I. for seven years. The sentence of one year, R. I, under section 324, P. P. C. is also maintained. The period .pf imprisonment awarded on various counts shall run concurrently. With this modification in conviction and sentence this appeal is dismissed. DORAB PATEL J-I agree. Order accordingly