' G. M. SHAH. J.---The appellant and his father Munawwar Shah were tried together, for offences under section 302/34, P. P. C., for the murder of one Noor Khan. Munawwar Shah was acquitted, on the ground, that the evidence in respect of causing of danda blows by him, to the deceased, was not supported by the medical evidence and no other specific allegations, supported by other evidence, was brought on the record, against him ; whereas the case against the appellant, was proved and he was convicted under section 302, P. P. C, by the judgment dated 5-3-1978 and was sentenced to imprisonment for life. Since no reasons for awarding him lesser sentence, were given in the judgment, when the guilt of the appellant was proved beyond any shadow of doubt, the appellant was issued suo mota Notice to show cause, why the sentence awarded to him be not enhanced. The appellant has also impugned the judgment of conviction and sentence and has preferred this appeal. The suo motu Notice of enhancement of the sentence, and the appeal will be disposed of by this judgment.
2. By a short order dated 13-11-1979, we bad dismissed the appeal nd maintained the conviction of imprisonment for life and had discharged the notice of enhancement of sentence. The reasons for dismissing the appeal are given herein below.
3. Briefly the version of the prosecution case is that the deceased and the first informer Tayab, had gone together to Sindhi Hotel for shopping. They were returning at about 10-00 a.m. When they reached the place, opposite Block No, 18 Sector 5-K, Tayyab found a dried branch of a tree lying on the ground. He picked it up. The acquitted accused Manawwar Shah, who resides in the Quarter No, 5-E ; 18/9, came and abused Tayyab, and asked him to throw the dry branch, which he did. Still Munawwar Shah continued abusing him. The deceased Noor Khan, thereupon, asked him not to abuse, over which, he got enraged and gave him danda blows on the head of the deceased. In the meantime, the appellant, who is his son, came armed with an open knife and caused four successive knife injuries to Noor Khan on his chest, thighs and abdomen. In the scuffle appellant Muhammad Shah had also received two incised wounds on his left-hand-thumb and index finger.
The injuries were simple in nature. The deceased Noor Khan had fallen on the ground due to the injuries. On commotion, P. Ws. Abdul Hamid, Abdul Ghafoor and others, reached the spot and the appellant, alongwith his father, escaped from the scene of offence.
4. The first informer Tayyab hired a Rickshaw and took Noor Zaman, brother of the deceased, with him, and removed the injured to the Hospital. A telephone message was, in the meantime, sent from the hospital to Police Station New Karachi, by the doctor, informing the police that the injured Noor Khan was brought to the hospital, with knife injuries, and was admitted. The injured was examined by doctor Malik Muhammad Khan on 11-1-1975 at 11-20. He was then removed to the Surgical Ward. On the same day, another telephone call was received, by the police that the injured had died on the same day at 12-45. The S. H.
0. Of New Karachi Police Station, left the police station and reached the hospital, where he recorded the statement of Tayyab and sent it to the police station for registering the case under section 302/34, P. P. C. He also recorded the statements of P. Ws. Abdul Ghafoor, Abdul Hamid, Noor Zaman and others. The appellant and his father were subsequently arrested on the same day. In presence of the mashirs the appellant produced a knife of about 4' blade. The knife appeared to be washed.
It was secured and sealed, in presence of the mashirs. After completing the investigation, the case was challenged in the Court.
5. The autopsy on the dead body of the deceased, was performed on 17-1-1975 at about 2 p.m. By Dr. Abdul Hadi, police Surgeon Karachi. It revealed the following external injuries
(1) Incised wound right side chest in the interior axillary line or interior fold of axillary oblique in direction in the 8th intercostal space measuring 1' x r cavity deep.
(2) Stitched incised wound partially healed, right side upper outer part high measuring 3' l'x Muscle Deep.
(3) Incised wound partially healed transverse in direction 1' below the level of umbilicus and on the right of mid line measuring x quarter inch X cavity deep.
(4) Stitched incised wound partially healed left thigh outer side just above the left knee measuring x quarter inch x skin deep.
6. The above injuries had clean cut margins, acute angles, having elliptical shape. As a result of injury No, 1, the weapon of assault had passed through the 8th inter coastal space, cutting the lower border of-the 8th right rib and had caused a through the through wound in the lower border of the lower lobe of the right lung measuring i" x-1-". In the injury No, 3, the weapon of assault had passed through the interior abdominal wall, cutting the mesentric blood vessel, a lope of small intestine and then making a nick in the abdominal aorta. All the above injuries were ante-mortem.
7. As a result of the external injury No, 3, with its interal findings in the abdominal cavity, it was individually and collectively, with other injuries, found sufficient to cause death in the ordinary course of nature, resulting from homicidal injuries, caused by a sharp-edged and pointed weapon like a long knife.
8. The defence of the appellant was of denial of the prosecution version. He further stated that no one from the locality had come forward to depose against him ; whereas the witnesses from different localities, belonging to the same caste of the deceased, who are related to each other, were set up by Tayyab, had deposed against him. He claimed to have been involved in the case, due to enmity, at the instance of Noor Zaman Police Constable, the brother of the deceased. While explaining the injuries on his person, he stated that he was beaten up by the police. He had led no defence.
9. The prosecution case rests mainly on the occular evidence of the first informer Tayyab (P. W. 3) and Abdul Ghafoor (P. W. 5). The eyewitness account is further supported by Abdul Hamid P. W. 2 and Mehar Khan P. W.
4. There is also the recovery of the blood-stained knife, produced by the appellant. In addition, there was an injury on the person of the appellant, indicating his participation in the assault. The medical evidence has also supported the occular version of the eye-witnesses.
10. We have been taken through the evidence in the case by Mr. S. Nasiruddin, the learned counsel for the appellant and also by Mr. Murtaza Hussain, who appeared for the State. We are of the confirmed opinion that there is overwhelming evidence to sustain the conviction of the appellant.
The ocular testimony is of Muhammad Tayyab, the first informer, who was going along with the deceased at about 10-00 a.m. To make some purchases from the Sindhi Hotel, situated in the same area. On their return Tayyab, had picked up a branch of a tree, lying on the ground. On seeing this, Munnawar Shah the acquitted accused, had abused him and asked him, as to why he had picked up that branch of the tree and told him to throw it on the ground. Tayyab had thrown the branch on the ground. The acquitted accused, Munawar Shah, had given a couple of slaps to Tayyab. The occurrence was witnessed by P. W. Abdul Ghafoor who had seen the acquitted accused, Munawwar Shah, armed with a lathi, with which he had beaten Tayyab. At this point, the deceased Noor Khan had intervened and asked the acquitted accused Munawwar Shah, not to abuse Tayyab. He tried to save the deceased from the attack by the acquitted accused Munawwar Shah, who had grappled with the deceased Noor Khan. At the time of grappling, the appellant Muhammad Shah, had reached there, armed with a knife. He had open knife, in his hand, with which he had caused the injuries to the deceased. The evidence of these two eye-witnesses Muhammad Tayyab and Abdul Ghafoor, is consistent. Nothing has been brought out in the cross- examination, as to why Muhammad Tayyab would falsely implicate the appellant, when he is, neither related, nor is in any other way, interested in the deceased. It is admitted position that Noor Zaman P. W. 6 is brother of the deceased and is a police constable. He was merely infirmed by Tayyab, that his brother Noor Khan, had been injured. There is no suggestion even by the defence, bringing out any circumstance of hostility, between Noor Zaman and the deceased. On, one hand, and the appellant and his father, on the other. Abdul Ghafoor P. W. 5 and Mehar Khan P. W. 4 were going together at about 10 a.m. For getting their "Razaees" filled with cotton, near Bus Stop No, 5 as it was the month of January and was a winter season. Both of these witnesses had seen Tayyab and the deceased coming together. They had also seen Munawwar Shah objecting to Tayyab, picking up a dry branch of the tree, which Tayyab had thrown on the ground. They had also witnessed the quarrel between Munawwar Shah and Tayyab. When the appellant had come up with an open knife and had inflicted the injuries to the deceased, they had seen the entire occurrence. Abdul Ghafoor had frankly admitted that he was residing in the house, belonging to Noor Zaman, constable, brother of the deceased, and was not paying the rent, because they belonged to the same District Campbellpur. In the lengthy cross-examination, nothing has been brought out and shown that this witness was falsely implicating the appellant, due to any hostility.
11. As regards two other witnesses Abdul Hameed (P. W. 2) and Muhammad Raees (P. W. 1) it has been argued by Mr. S. Nasiruddin Advocate that they had not supported the case of the prosecution and were declared hostile. P. W. Races resides in New Karachi. He is a shopkeeper. He had seen the quarrel between the deceased and the appellant ; but had minimised the part. When he was confronted with his 164, Cr. P. C. Statement, recorded before a Magistrate, he had admitted, having stated therein that when he was going towards his shop, he had seen the first informer Tayyab and Munawwar Shah quarrelling with each other. He has also stated that Munawwar Shah had given two danda blows to Tayyab. He further admitted, having stated that the deceased Noor Khan was also with Tayyab and had asked Munawwar Shah, as to why he was beating Tayyab, whereupon Munawwar Shah asked him, as to whci was he to intervene. He further admitted having stated that Munawwar Shah also gave two danda blows to deceased Noor Khan. And Noor Khan and Munawwar Shah had grappled with each other. Meanwhile, the appellant Muhammad Shah came and gave knife blows to Noor Khan. He further stated that the police had taken him to the place, from where the appellant Muhammad Shah had produced a knife, which was seized by the police under the mashirnama bearing his signature. Finally he had explained the circumstances, about his changed statement in the trial Court, in 'the following words: "It is correct what I have stated in my 164, Cr. P. C. Statement, before the Magistrate, and what I had stated now, in the Court.
Due to lapse of time, I had not remembered the incident, but when I was confronted with my 164 statement, I recollected the entire incident and accordingly I had deposed correctly".
12, His statement recorded under section 164, Cr. P. C. Was transferred to the file of the Sessions Court under section 165-J of Cr. P. C. Which reads as, under :- "The statement of a witness, duly recorded under section 164, Cr. P. C. If it was made in the presence of the accused and if he had notke of it and was given an opportunity of cross-examining the witne3s, may, in the discretion of the Court, if such a witness is produced and examined, be treated as evidence in the case, for all purposes, subject to the provisions of the Evidence Act."
' From his 164 statements, it is evident that Muhammad Rais (P. W. 1) was an eye-witness. He had seen the quarrel taking place in front of his house between P. W. Tayyab and the acquitted accused Munawwar Shah, who gave two 'danda' blows to P. W. Tayyab. At that time, deceased Noor Khan was also with Tayyab, who had asked the acquitted accused Munawwar _Shah, as to why, he was beating Tayyab, whereupon, the acquitted accused replied that Tayyab had removed his 'Mari' (branch of a tree) and who was he (deceased) to intervene. The acquitted accused had given two 'danda' blows to the deceased Noor Khan. As they were grappling with each other, the appellant came there, armed with a knife and stabbed Noor Khan deceased, who was removed in a Rickshaw by Tayyab, in presence of this witness. At about 5-30 p.m. The police brought the appellant in front of Block No, 18 and in presence of this witness, the appellant led the police party to a katcha field behind the 'Kikar' bushes and produced a blood-stained knife with a blade of 4" long, having a red glass handle. Mashirnama was prepared at the spot, which was signed by this witness.
13. In the same manner Abdul Hameed (P. W. 2) who has got a firewood-stall in the same locality, had also witnessed the occurrence ; but had changed his statement at the trial. He was also confronted with his 164, Cr. P. C. Statement and he had admitted that he had correctly stated in his 164 Statement that the acquitted accused Munawwar Shah had abused Tayyab, who had asked him not to abuse, over which Munawwar Shah had given two slaps to Tayyab. When Noor Khan deceased intervened, Munawwar Shah had caught hold of him, by the neck and gave him danda blows. He further admitted having stated in 164, Cr. P. C. Statement that the appellant had come there, during the quarrel ; but did not admit having stated that he had an open knife and had inflicted 3-4 injuries to the deceased. In any case, it is evident that these two witnesses have made obliging statements for obvious reasons, since they were living in the same locality, as that of the appellants and appeared to have been tampered with. Since the 164, Cr. P. C. Statements of both of these witnesses were transferred on the file of the case and were treated as evidence in the case, for all purposes; there is nothing on the record to doubt the contents of 164, Cr. P. C. Statements, wherein this witness had also implicated the appellant.
14. The incident had taken place in the day light and had been witnessed by Muhammad Tayyab, Abdul Ghafoor and others. As a result of going through the record, we had not been pointed out a single circumstance to show, as to why the testimony of the two eye-witnesses should not be believed, particularly, when they had no hostility to falsely implicate the appellant. The circumstances in which the F. I. R. Was lodged, clearly indicate that the police constable Noor Zaman, brother of the deceased, had no hand, in falsely implicating the appellant. Since the deceased was in a serious condition, therefore, Tayyab had informed Noor Zaman, brother of the deceased, who had also accompanied the deceased and Tayyab, in an effort to, first, save the life of the deceased, who was first rushed to the hospital by them. There is no indication of any circumstance, to suggest that P. W. Noor Zaman had played any material' or pertinent role in the case for falsely implicating the appellant. The first information report was, accordingly, recorded by the police, at the hospital. The statements of the eye-witnesses were also recorded. After the arrest of the appellant, he bad led the police party and produced the knife, which was sent to the Government Chemical Examiner for opinion. As a result of the Chemical Analysis, the Government Examiner was of the opinion that the knife was stained with human blood.
15. The learned counsel Mr. S. Nasiruddin has also argued that it was an unwitnessed crime and that the witnesses were subsequently introduced in the case at the instance of Noor Zaman P. C., brother of the deceased. As referred above, we find no substance in this argument, as nothing has been suggested in the cross-examination, at the trial or pointed out, during the arguments, from statements of any of the two eye-witnesses, as to why, they had falsely implicated the appellant.
16. It was next argued that there was no blood at the scene of offence, which indicated that the occurrence had taken place on some other place. From the clothes of the deceased, recovered from his person, it appears that they were completely soaked with blood. It is possible that the blood was absorbed by the clothes, leaving nothing to drop on the ground. The scene of offence is a heap of katcha earth. Therefore, it was not possible to detect the blood on the ground.
17. It was next argued that the recovery of the knife was not reliable, on the ground that the evidence of the Investigating Officer, disclosed that P. Ws. Raees and Hameed had pointed out the place, where the knife was lying. When the witnesses Abdul Hameed and Raees were examined in the Court, no question was asked, on behalf of the defence, about the witnesses, having pointed out the knife, as is being suggested now. The witnesses, on the other hand, had clearly stated that the appellant had pointed out the knife, which was, at his instance recovered. A reference to the Mashirnama Exh. 7 also speaks of the fact that in presence of the witnesses, the - appellant had produced the knife. It is, therefore, more prudent to accept the version of the eye-witnesses, who are natural and had no hostility against the appellant.
18. It has, also, been argued by Mr. Nasiruddin that the quarrel was sudden and unpremeditated and therefore the offence would fall under section 326 alternatively under section 304(1) of P. P. C.
The facts of this case, as discussed above do not bring the case to fall under the aforementioned sections. The appellant had come armed with the knife, with the determined intention to cause the injuries to the deceased. From the nature of the injuries on the person of the deceased, it is obvious that he had repeatedly inflicted four injuries, which were deep enough to kill a person. Nature of the offence is to be determined from the weapon, part of the body, where the injuries are inflicted and nature of the injuries that are cause to the injured and the consequences arising out of the nature and facts of the injuries. This is the case, in which reliable evidence was led by the prosecution, leaving no room for doubt. The appellant had already been shown consideration, as a mitigating circumstance, for awarding lesser sentence, may be on the ground that due to grappling between the decease and Munawwar Shah, the father of the appellant, who momentarily los control over himself and caused the injuries to the deceased. It would not be correct. Because, the appellant had armed himself with a deadl weapon and started from his house with a definite purpose of finishing up th deceased, which background, has to be considered, in the instant case. Since there was no previous enmity between the parties, the appellant wa awarded lesser sentence, as his father, the acquitted accused, was foun quarrelling with the deceased and first informer Tayyab.
19. We now come to the suo moto Notice to the appellant to show cause, why the sentence awarded to him be not enhanced. Ordinarily, as is provided in section 367(5) of the Cr. P. C., the trial Court, in murder cases, when the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment, other than death, the Court shall, in its judgment, state the reasons, why sentence of death was not passed. The young age of the accused is no ground, for awarding lesser sentence. The appellant had seen his father fighting with the deceit and had, therefore, armed himself with the knife, to intervene and save hi father. We consider that aspect of the circumstance and mental condition of the appellant, as a mitigating circumstance, and discharge the suo mot Notice issued to him. There is, otherwise, no material in the evidence, t disturb the finding of the trial Judge. We would, therefore, confirm the judgment and dismiss the appeal.
7.71115.M