I. MAHMUD, J.-----Criminal Appeal No. 213/1976 has been filed by appellant, Mamoo, alias Matka son of Shabrat Qureshi, against his conviction by the Sessions Judge, Tharparkar at Mirpurkhas, vide his judgment dated 10th August 1976, under section 302, P.P.C. For the murder of one Abdullah son of Sheen Gul and against the sentence passed against him of imprisonment for life and payment of a fine of Rs. 3,000 and in default to undergo R.I. For 2 years. Criminal Revision No. 121/1976 has been filed by Sheen Gul son of Sarwar Khan, the father of murdered Abdullah, for enhancement of sentence of the appellant from imprisonment of life to death. Both these cases have been heard to--gether and will be disposed of by this judgment.
2. Briefly, the case of the prosecution was that deceased Abdullah and his elder brother Abdul Khalique (P. W. 5) were running a general store shop at New Town, in Mirpurkhas. The Appellant Mamoo alias Matka, a butcher by profession was known to them since long as he used to visit the shop for making purchases. About 10-12 days before the incident, tile appellant visited the shop in the afternoon and after making purchases, worth of Rs. 40, asked Abdullah to give him credit for the purchase price. Abdullah refused to give credit and snatched the articles away from the possession of the appellant. Thereupon, appellant got annoyed and threatened Abdullah that he would see him and then went away. This affair was witnessed by the deceased's brother Abdul Khalique (P. W. 5) who was present in the shop and is alleged to be the motive of the incident which occurred 10-12 days later on 18th September 1975. The incident occurred at 9.30 p. m. In a busy locality on a footpath about 10-20 paces in front of a road-side hotel of one Ghafoor, on Heerabad Chowk, Mirpurkhas. After closing their shop, Abdul Khalique (P. W. 5) and his brother deceased Abdullah went to Heerabad Chowk, in connection with some business, while passing by the hotel, they saw P. Ws. Hameed Butt (P. W. 6), Saeed Ahmed Khan (P. W. 7) and Syed Bahahuddin Shah (P. W. 8) sitting on a bench outside the hotel. On being invited to have tea with them, they went and sat beside them. After about 10-20 minutes, appellant suddenly came there armed with a butcher's knife and stabbed deceased Abdullah on the left side of his neck with force, in three successive blows. The first blow was so severe that it penetrated the vertebral column, with the result that the neck was almost severed and death was instantaneous. After inflicting these injuries, the appellant ran away taking the knife with him. This incident was witnessed by the informant, Abdul Khalique (P. W. 5) deceased's brother, Hameed Butt (P. W. 6), Saeed Ahmad Khan (P. W. 7) and Syed Bahauddin Shah (P. W. 8) whose names were mentioned in the F. I. R., which was lodged promptly within half an hour by Abdul Khalique (P. W. 5) at 10-10 p. m., at Town Police Station, Mirpurkhas situate at a distance of about 2J furlongs from the scene of the offence. After recording the F. I. R. The S. H. O. Ali Anwar (P. W. 9) proceeded to the scene of offence and reached there within 10 minutes, where he found the body of deceased Abdullah lying in between two benches with incised injuries on the left side of the neck and blood on the ground and on the bench lying near the body. , He also found present among the crowd, which had collected there Hameed Butt (P. W.
6) and Syed Bhahuddin Shah (P. W. 8). He found the place was well lighted with electric light from inside the hotel as also from the electric post near the deceased. After preparing mashirnama of the vardat and injuries on the deceased in the presence of mashir Abdullah Qureshi (P. W. 2) and another, he sent the body for post-mortem examination and proceeded to arrest the appellant, whom he arrested in the lane beside his house in Gawashalla Mohalia. He recovered from the appellant's person a blood--stained knife and blue-coloured shirt and loin-cloth which were also bloodstained, which were found by the Chemical Examiner to be staint--ed with human blood.
During the same night, he recorded the state--ment of Hameed Butt (P. W. 6). On the following morning he recorded the statements of Saeed Ahmed (P. W. 7) and Syed Bahauddin Shah (P. W. 8) and other witnesses including Ghafoor, the hotel-keeper and Ajmeri, owner of adjoining shop. On 20th September 1975, at 10-45 that is about 36 hours after the incident, the appellant made a judicial confes--sion which was recorded by the Mukhtiarkar and F. C. M., Mirpurkhas, Mohammad Ismail (P. W. 10), in which he confessed that he had inflicted the knife injuries on the deceased Abdullah but pleaded that he had done so in his self-defence. This confession was adhered to and affirmed by the appellant in his 342, Cr. P. C. Statement and, indeed there is no dispute that it was a free and voluntary statement. The confession reads as follows:--- "Abdullah Pathan (deceased) asked me a day before the incident that I should keep ready Rs. 1,000 for him as he would come in the evening to collect the amount. If he did not get the amount his (deceased) name is Abdullah and I should remember it. On the next day, viz. On the day of incident Abdullah happened to meet me at Hirabad. He was accompanied by one other person also. He told me that he had asked me to arrange for Rs. 1,000 and what has been done for that. I informed him I am very poor person and a petty trader and therefore I do not possess such amount.
Thereupon Abdullah immediately took out a revolver and pointed it at me and placing it on my chest actually fired from it but the bullet did not fire and remained stuck up inside. When Abdullah attempted to press the trigger second time I struck him with a chhuri (dagger) in order to save my life which was already in my hand as it was carried by me for the purpose of cutting meat as at that time I was going to slaughter house for the purpose of cutting meat. After striking him a dagger I immediately went to police station directly. That is all I know that much. I am absolutely innocent. In the incident I had no intention but what--ever happened it was all suddenly."
3. The Medical evidence was furnished by Dr. Abdul Sattar (P. W. 3) who carried out the post- mortem examination. He found following three injuries:---
(1) Incised wound 6" x 6" x vertebral column cut on left side of neck.
(2) Incised wound 3" x --" x tissue cut near injury No. 1.
(3) Incised wound 3" x --" x tissue cut near injury No. 2.
He certified that injury No. 1 was sufficient tit the ordinary course of nature to cause death and that the death was instantaneous.
4. In his 342 Cr. P. C statement, the appellant besides admitting the judicial confession as correct, admitted the recovery of the blood--stained knife and blood-stained clothes and the fact that he was arrested is the lane near his house. He denied the affair alleged by the prosecu--tion, as a motive of the crime regarding the purchase of the articles on credit from Abdullah's general store.
He stated that the P.Ws. Were interested and set-up and were of questionable character and in support he produced certified copies of a report under the Goonda Act against deceased Abdullah (Exh. 32), warrant of arrest against Abdullah (Exh. 33), copy of complainant against Hameed Butt under the Sind Crime Control Act (Exh. 34), copy of F. I. R. Against P. W. Abdul Khalique under sec-- tion 307, P.P.C. (Exh. 35), as also copy of F. I. R. Under section 13-D, Arms Ordinance against this witness. The appellant however, examined no witness in support of his plea of self-defence.
5. The learned Trial Court examined with cat a the ocular evidence of the eye-witnesses. He found their presence at the time of occurrence was established on the evidence and that despite minor discrepancies, there were no material contradictions, and that the evidence was consis--tent and direct. They were not interested witnesses having any enmity against the appellant or any motive to falsify the evidence merely because they were friends of the deceased. He therefore, held that these witnesses must have witnessed the crime. Accordingly, he accepted their evidence as worthy and independent. Ho examined the plea of self-defence in the light of the prosecution evidence and came to the conclusion that it was an afterthought and did not appear to be true.
The circumstances which led the Trial Judge to reject the plea of self-defence were as follows. No revolver or bullet was recovered from the vardat and there was nothing to support the appellant's suggestion that the revolver must have been picked a by the informant, Abdul Khaliq (P. W. 5) and thrown away, despite the fact that a crowd had gathered on the spot immediately after the incident. The appellant also had not even a scratch on his body which shows that it was improbable that a scuffle took place, as otherwise the scuffle would have attracted the nearby P.
Ws. And the shopkeepers. Moreover, it is doubtful that the deceased had gone there to demand the money from the appellant at the place of the incident, because the meeting appeared to be a chance meeting, as even in the confession, the appellant stated that the deceased "happened to meet me at Hirabad", which shows that it was a chance meeting and not a place appointed for demanding the money. There were other improbabilities and inconsistencies in the confession, for example with regard to the place or arrest of the appellant, in which. He stated that he "immediately and directly surrendered at the police station", whereas the evidence of the investigating officer and the mashir is that he was arrested from the land near his house. Therefore, the trial Judge dis--believed the plea of self-defence raised by the appellant. He found that it was the appellant who had suddenly appeared and inflicted three successive dagger blows and that he had run away. In r g found the prosecution case proved beyond reasonable doubt.
6. The main argument of Mr. Muhammad Hayat Junejo, learned counsel for the appellant was directed against the rejection of the plea of self-defence by the trial Court. Counsel relied on the decisions of the Federal Court in Safdar Ali v. The Crown (PLD 1953 FC 93) and Muhammad Aslam v. The Crown (PLD 1953 FC 115). These cases lay down the principle that under section 105, Evidence Act, the burden of proving the existence of circum. Stances to support the special plea of self-defence is on the accused person, who must satisfy the Court that the homicide was committed in such circumstances as gave to the accused the right to cause death in defence of his person. But, should the accused fail to lead evidence or should he fail to prove the special plea of self-defence; nevertheless, it is still the duty of the Court to review the entire evidence on record that has been produced by the prosecution and by the defence, if any, and if, after examination of the whole evidence, the Court is of opinion that there is a reasonable possibility that the defence put forward by the accused might be true, such a view reacts on the whole prosecution case and, in the so circumstances, the accused would be entitled to the benefit of doubt, not as a matter of grace, but as a matter of right, because the prosecution in that case cannot be said to have proved its case beyond reasonable doubt. Safdar Ali's case was applied by the Supreme Court in Shamir alias Shamir v. State (PLD 1958 SC (Pak.) 242) in which it was observed that the accused, statement of facts as to his plea of self-defence should be placed in juxtaposition to the circumstances of the case as found from the prose--cution evidence and the entire case examined as a whole, and if despite the fact that no evidence has been led by the accused to prove the plea, it receives support to the extent of being reasonably possible, from the circumstances proved by the prosecution evidence, the accused is entitled to acquittal.
7. Learned counsel for the appellant submitted that the following circumstances raise an inference of a reasonable possibility that the plea of self-defence might be true. The first circumstance relied on is the conduct of the appellant as not being that a guilty person, inasmuch as between the time of the killing and his arrest, he made no attempt to throw away the blood-stained knife or his clothes and .Further that the appellant made his confession promptly within a day and a half which is admittedly a voluntary and spontaneous statement. We regret that this submission has not impressed us. It is not unusual for an accused person, who has been seen and identified as an assailant by reliable and independent eye-witnesses, to create a plea of self-defence as the only means to save himself. Therefore, we think that the time lag and of a day a half was sufficient for the appellant to come forward with the plea of self-defence. As Mr. Azizullah Shaikh, learned counsel for the appellant in revision application, submitted, and rightly so, that not only the appellant failed to call any witness in support of his defence plea, considering that the incident had happened in a busy locality, but also there is nothing in the prosecution evidence to support the reasonable possibility of such a plea. The defence plea was not even suggested to the eye- witnesses in cross-examination so as to elicit even a denial, thus leading to an inference that if the appellant had made suggestions to the witnesses, the answer would have been adverse. In this connection, counsel referred to the observations of Muhammad Haleem, J. In Kazi Sirajuddin v.
Misbahul Islam (PLD1977 SC 14) wherein the learned Judge observed that as no question was put to any of the prosecution witnesses in cross-examination to the effect that it was the deceased who had opened the attack on the first respondent, no foundation was laid in the prosecution evidence to support plea of self-defence. But Mr. Hayat Junejo's explanation for the omission to suggest the defence plea to the prosecution witnesses in cross-examination was that, to have done so, would have meant that the presence of these witnesses would have conceded, whereas according to the defence case, these witnesses were not present and had come upon the scene after the occurrence. This explanation has not convinced us. The presence of these witnesses has been established beyond doubt for reasons discussed by the trial Court, with which we agree. The witnesses gave plausible reasons for going to the hotel for having tea and their presence was not unusual or unnatural. Their names were mentioned in the F. I. R. As having witnessed the crime, which was lodged promptly within half an hour of the occurrence, thus leaving no time for prior consultation and manipulation for giving false name of these witnesses who in fact lived in different parts of the town. The presence of two of them was corrobo--rated by the Investigating Officer Alt Anwar, who had reached the scene within 10 minutes after recording the F. I. R.
8. Mr. Hayat Junejo next tried to impeach the credibility of the eye-witnesses on the ground of their cad antecedent character, as also that they were friends of the deceased and were interested. On the first point, he relied on the certified copies of the legal proceedings taken against the deceased and two of the eye-witnesses under the Goonda Act and Sind Crime Control Act which were produced by the appellant in his 342, Cr. P. C. Statement. Mr. Junejo referred to Sabu and another v.
The State (PLD 1966 Kar. 637which laid down that where a case is pivoting on the sole testimony of eye-witnesses, whose antecedents were bad, the Court should be chary of accepting their oral testimony on its fact value. The facts in that case were, however, were different, in that the evidence of the eye-witnesses itself was found doubtful and unreliable and the question of the antecendent characher of the witnesses was only a further consideration which weighed with the Court against accepting their testimony. In the present case there is no reason to believe the testimony of the alleged bad charac--ter-witnesses, since their version besides being consistent, receives corroboration not only from the testimony of Saeed Ahmad (P. W. 7) whose character was unimpeachable but also from the exculpatory con--fession of the appellant and the recoveries.
Moreover, even the investi--gating officer has not stated that the bad character witnesses had formed a gang of notorious persons: nor in our view, is there any substance in the argument of the learned counsel that the eye-witnesses were interes--ted to falsify the evidence because they were friends of the deceased, when no enmity with appellant was even suggested.
9. Finally, Mr. Hayat Junejo contended that the incident occurred in a busy locality, yet the prosecution failed to examine any witness from that place and, in fact, even dropped witnesses Ghafoor, the hotel-keeper, and Ajmeri, the adjoining shopkeeper on the ground that they were not likely to support the prosecution case. The trial Court' had rejected the application by the defence to summon these two persons as Court witnesses, because it was open to the appellant to, examine them as defence witnesses if he so wished, which he failed to do Mr. Azizullah Shaikh cited Waloo and others v. The State (PLD 1970 Kar. 677) in which the conviction was based entirely an the testimony of police officers, who captured the accused on a busy railway platform. To the same effect he also cited Yaqub Shah v. The State (PLD 1976 SC 53) and Muhammad Iqbal alias Jawed Iqbal v. The State (PLD 1976 SC 291) in which the incident had occurred in the main bazar and in a crowded bus, respectively.
10. We are satisfied that the learned trial Judge has rightly appraised the oral testimony of the prosecution witnesses. After giving our anxious consideration to the case and after examining the whole evidence on record and the appellant's statement of facts as to his plea of self-defence in juxtaposition and in relation to the circumstances of the case as found from the prosecution evidence and considering the, preponderant probabilities, we are not left in any doubt that it is not reasonably possible that the plea of self-defence might be true. We are satisfied that the prosecution has established its case beyond reasonable) doubt.
11. In the result we would dismiss the appeal filed by the appellant.
12. With regard to the enhancement of sentence we see no reason to enhance the same. At least two circumstances have impressed us as justifying the lesser sentence. The first is that this is not a case of cold blooded pre mediated murder, but a case of a sudden attack on the deceased on a chance meeting. The second is that the prosecution has not come out with a convincing motive for the murder, which also justifies awarding of lesser sentence as held by a Division Bench of this High Court in Abdul Ghani v. The State (1977 P Cr. L J 377). We accordingly dismiss the, Revision Application.
AJMAL MIAN, J.----- I agree.