MUHAMMAD SALEEM Alias NASEEM Alias CHEEMA vs The STATE

1. MUHAMMAD YAQUB ALI, A. C. J.-The High Court has, on appeal and reference, confirmed the sentence of death awarded to Muhammad Saleem, appellant, under section 302 of the Pakistan Penal Code, for the murder of one, Yunis.

2. The occurrence took place on the 8th April 1958, in Kanak Mandi, a busy thoroughfare of Sialkot City, between 4-00 and 5-00 p.m. There was a background of bitterness between the family of the deceased and the appellant. They were transferred a house by the Settlement authorities. The deceased and his parents were given the ground floor while the appellant and his uncle, Kalu, were given the upper storey. They used a common staircase which led to mutual bickering. There had also been litigation between Mohammad Yusaf and Kalu on the transfer of the house. Two/ three days before the occurrence, the deceased objected to the presence of some undesirable persons in the upper floor of the house. This was resented by the appellant.

3. Kalu and the appellant ran a shop in Kanak Mandi. At the time of occurrence, the deceased happened to go to Kanak Mandi for making purchases. The appellant, who was sitting at his shop entered into a brawl with the deceased. In the course of exchange of abuses and fist blows which followed, .The appellant took out a knife from the fold of his loin-cloth and gave three blows with it to the deceased who fell down and died instantaneously.

4. Muhammad Yusuf, father of the deceased, made the first report to the Police, claiming to be an eye-witness. The Courts below, however, discounted his presence as well as the presence of another eye-witness named in the F. I: R., Mohammad Amin (P. W. 16), a close relative of Muhammad Yusuf. There were three other eye-witnesses, namely, Abdul Ghafur (P. W. 17), Fazal Karim (P. W. 18) and Karam Hussain (P. W. 19). All of them were natural witnesses and completely independent. They had seen the appellant giving knife blows to the deceased, as a result of which he died on the spot. The Courts below believed them and we found no reason to differ with their appraisal of evidence.

5. Leave to appeal was granted to consider whether in the circumstances of the case it was proper to impose the extreme penalty of death on the appellant for the offence of murder.

6. Fazal Karim (P. W. 18) stated that when he reached near the United Bank in Kanak Mandi he saw the appellant and the deceased fighting with each other and were exchanging fist blows. The appellant whipped out a knife from the fold of his loin-cloth and inflicted three blows with it on the deceased.

7. Karam Hussain (P. W. 19) likewise saw from a distance of 18 feet the appellant and the deceased quarrelling with each other before the former stabbed the deceased with a knife.

8. Abdul Ghafur (P. W. 17) expressed ignorance of any quarrel between the appellant and the deceased before the later was stabbed.

9. It was urged by Ch. Nazir Ahmad Khan that it was a case of a sudden quarrel and even if Exception I was not attracted, the circumstances in which the appellant acted warranted the lesser sentence of transportation.

10. Taking into consideration the exchange of abuses and fist blows which preceded the stabbing of the deceased, we agree with the learned counsel for the appellant that a lesser sentence w. Mild meet the ends of justice in the present case.

11. The appeal, is, accordingly, allowed in part. While maintain--ing the conviction of the appellant under section 302, P. P. C. We alter his sentence of death to transportation for life.