1. ' G. SAFDAR SHAH, J.-On 4-7-1974, at 12-30 p.m., respondent Mushtaq Ahmad is said to have in the District Courts premises, Multan, attacked deceased Abdul Ghafar with a knife, caused him multiple injuries as a result of which he later lost his life. The case of the prosecution in the trial Court was that after causing to Abdul Ghafar the said multiple injuries the accused-respondent started running, but he was chased and apprehended by Police Constable, Faqir Hussain (P. W. 18) and Ghulam Hussain (P. W. 13) who thereafter disarmed him of the knife. The occurrence was witnessed by P. Ws. Rana Muhammad Anwar, Advocate, Ch. Nisar Ahmad Saeed, Advocate, Mirza Alamgir (the petitioner in this case) and one Muhammad Siddiq. The record would show that S. I. P. Rao Shakir Ali (P. W. 12), who was -present in the District Courts, Multan, on duty recorded the statement of Alamgir Mirza at 1 p.m. On the basis of which F. I. R. Was later recorded at the Police Station. After recording the said statement, Rao Shakir Ali formally arrested the accused-respondent ; removed from his person a shirt which was stained with blood and took into possession the blood-stained knife vide the usual memo. After having completed the investigation thus the accused respondent was challaned to the Court of Additional Sessions Judge, Multan, who found him guilty for the murder of Mushtaq, convicted him and sentenced him to death and a tine of Rs, 1,000 and in default R. I. For one year. In the appeal filed by him in the High Court, to which reference was also made by the learned trial Judge under section 374, Cr. P. C. The learned Judges of the.Division Bench, after reviewing the evidence of the prosecution, reached the conclusion that "there is a strong possibility that just before the attack on him the deceased had in fact taunted the appellant and displayed the photograph of his sister Mst. Bano before him. This in our opinion was sufficient to cause grave and sudden provocation to the appellant so as to make him lose all his self-control.
2. After all the appellant was an immature boy of 17 years. We ace* the plea of grave and sudden provocation and alter his conviction to one under section 304, Part-I of the Pakistan Penal Code. For this offence we sentence him to two years' R. I. Which in our opinion would meet the ends of justice".
3. ' Syed Ansar Hussain, the learned counsel for the petitioner has assailed the impugned judgment of the High Court on the following grounds :-
(1) That the plea of grave and sudden provocation taken on behalf of the accused respondent in the High Court was an afterthought, as no such plea had been taken on his behalf in the Court of the Committing Magistrate nor indeed was any suggestion made in that behalf to the petitioner during his cross-examination.
(2) That the High Court was in error not to have given any importance to the fact that the recovery of knife from the accused-respondent had a blade Of 4 1/2 inches long which weapon a boy of the age of 17 years is not expected to possess unless he had criminal tendencies.
(3) That the High Court erred in disbelieving the natural eye-witnesses of the occurrence, namely, Ch. Nisar Ahmad Saeed and Rana Muhammad Anwar, Advocates, as also that the High Court has drawn unjustified inferences from the evidence on record.
4. By going through the evidence on record as well as the judgment of the High Court it should be plain enough that the various contentions urged by the learned counsel for the petitioner relate more to the appreciation of evidence, which however, is not the function of this Court. In any event, the High Court seems to have tested the eye-witness account furnished by P. Ws. Ch. Nisar Ahmad Saeed, Rana Muhammad Anwar and Mirza Alamgir (the petitioner) on the touchstone of naturalness and probabilities and consequently we respectfully agree with their conclusion. Now in his statement recorded under section 342, Cr. P. C. In the trial Court the accused-respondent indeed admitted to have caused to the deceased knife injuries but in that behalf notice must be taken of his fall statement which is to the following effect "I am a poor man. My parents reside at Kot Addu. I was employed with Hilal Jafari a Depot Holder as a servant at Multan on the day of occurrence. I came to the District Courts to purchase Chalan Forms as Hilal Jafari wanted to deposit money with the Bank as price of Sugar Quota. I had a chance to pass by the deceased. The deceased taunted at me that I am a Beghairat' and had dared to pass by him without paying Salam to him. He simultaneously showed the photos of my sister saying that he would marry her and he being my brotheiin-law, I should have paid respects to him. On this I lost control and caused injuries to him with an ordinary knife which I used to keep in connection with my duty while opening the sugar bags, etc. Thereafter I went straight to S. P.'s Office to report the matter. I was arrested by the D. S. P. And was made to sit in his Office. The present case was concocted against me after prolonged deliberations."
5. ' The evidence of the Investigating Officer, Rao Shakir Ali Khan lends ample support to the said stand taken by the accused-respondent. It is in the evidence of Shakir Ali Khan that after the autopsy on the dead body of the deceased had been carried out at the hospital, P. W. Ghulam Hussain, Foot-Constable who was entrusted with the dead body for that purpose, produced before him the blood-stained clothes of the deceased ; a pair of his chappals ; one packet of goldleaf cigarettes ; a fountain pen ; and a purse which contained two photographs of a young female. P.
6. W. Ghulam Hussain, Foot-Constable has supported Rao Shakir Ali Khan in that behalf, as his evidence is that after the autopsy was carried out on the dead body of the deceased, the said articles had been handed over to him by the doctor and he then passed on the same to the Investigating Officer. The learned counsel for the petitioner, however, firstly argued that these photographs, which indeed were proved to be the photographs of the sister of the accused- respondent, were entrusted in the case at a subsequent stage, as otherwise, why were they not recovered by the Investigating Officer before he sent the dead body of the deceased to the mortuary? There is no force in this contention. The evidence of Rao Shakir Ali Khan, which has been corroborated by P. W. Ghulam Hussain is clear on the point that nothing was recovered from the, person of the deceased when his body was sent to the mortuary. And further that the said two photographs, alongwith many other articles were brought back from the hospital by Ghulam Hussain, Foot-Constable after the autopsy had been carried out on the dead body of the deceased.
7. ' Doctor Abdul Wahid, of the Civil Hospital, Multan. Who had conducted the autopsy on the dead body, was the proper person to have been questioned in that behalf if at all there was any doubt in the mind of the petitioner that the said two photographs had been subsequently introduced in the case, with a view to providing a plausible defence for the accused-respondent. The fact, however, is that in his cross-examination no such question was put to the doctor, and consequently it cannot be said that the High Court was in error to have accepted the version put forward by the accused-respondent.
8. ' We are, therefore. Satisfied that in view of the evidence on record the' judgment of the High Court is unexceptionable. This petition, therefore, fails and is dismissed.