1. ABDUL HAFEEZ MEMON, J.---The appellant was tried and convicted by the Vth Additional Sessions Judge, Karachi, under section 302, P. P C and sentenced to death for committing the murder of deceased Abdul Mannan. He has appealed against his conviction and sentence and the case is also before us on reference under section 374, Cr. P. C. For confirmation of sentence of death passed on the appellant. By this judgment, we propose to dispose of both the appeal as well as the reference.
2. The incident resulting in the death of the deceased took place on 19February 1973 at 3-15 p. m.
3. Near Nursery Stop in front of the main gate of Nomani Masjid. P. E. C. H. S., Karachi. The report of the incident was lodged by Traffic Head Constable Bashir Ahmed on the same day at 3-50 p. m. At Ferozeabad Police Station situated at a distance of 1 mile from the place of the incident. S. H. O.
4. Farooq Ahmed Khan recorded the F. I. R. And conducted the investigation. Doctor M. S. A. Farooqui conducted the post-mortem on the dead body of deceased and noted the following injuries in his report:- "(1) Incised wound, transverse right side middle of neck 2" below the right eye measuring 1" x --" x 1" muscle deep. Margin were clean cut angles were accetes shapper was ellepticle.
(2) Incised wound left side face, transverse 1----- in front of left ear lobule --" x --" skin deep.
(3) Incised wound back of right side lower parts chest at the lave of 10 ribs 1" x --" x muscle deep.
(4) Abrasion right temple ----- x --".
(5) Abrasion bridge of nose --'' x --".
5. Above Injuries Nos. 1, 2, 3, could be caused by a sharp-edged and pointed weapon like a knife and rest to fall and friction."th Prosecution case at the trial was that at the time of incident deceased Abdul Mannan was standing near his Thela in front of the shops of P. Ws. Abrar Hasan and Ghulam Sarwar when the appellant came there suddenly and attacked the deceased with a knife and after causing him injuries on the neck and chest started to run towards Khayam Cinema side. P. W. Head Constable Bashir Ahmed who was on traffic duty in the area or hearing the commotion gave a chase to the appellant by getting lift on a scooter and succeeded in apprehending him near Khayam Cinema with the help of P. Ws. Abdul Rais and Samiullah along with the blood-stained knife in his hand and after formally arresting him and securing the knife from him in presence of the aforesaid witnesses took him to the police station and handed him over to the S. H. O. Who finding blood stains on the shirt worn by the appellant secured it in presence of the above named mashirs.
6. The prosecution in support of its case at the trial relied on the ocular evidence of P. Ws. Abrar Hassan and Ghulam Sarwar who both had their shops at the vardat and had seen the incident, the evidence of P. Ws. Head Constable Bashir Ahmed, Abdul Rais and Samiullah, who had chased the appellant and apprehended him near the vardat, the circum--stantial evidence of recovery of blood-stained knife from the appellant and securing of blood-stained shirt from the person of the appellant, and the motive.
7. The trial Court on careful and intelligent appraisal of the evidence brought on record found the same to be independent and reliable and thus accepting it, convicted the appellant and sentenced him as stated above.
8. The question for consideration, therefore, is whether the appellant has been rightly convicted.
9. Mr. S. Nasiruddin, learned counsel for the appellant at the very out--set stated that in view of the evidence on record he could not challenge the conviction and pleaded for lesser sentence only, on the ground that the incident was a sudden one and it took place as a result of a i6ght between the appellant and the deceased which showed that it was not a premedi--tated act on the part of the appellant.
10. Although the learned counsel has not challenged the conviction, we propose to go through the evidence resulting in the conviction of the appellant as the case is also before us on reference under section 374, Cr. P. C.
11. The conviction of the appellant rests mainly on the ocular testimony of P. Ws. Abrar Hasan and Ghulam Sarwar. Out of these twos the first one is a Watch Maker and the incident took place in front of his shop situated at the vardat. He stated in his evidence that at the time of the incident he was sitting in his shop when he heard commotion. He got up from the shop and from a distance of 3 to 4 feet saw the appellant attacking the deceased Abdul Mannan with a knife. Deceased Abdul Mannan thereafter collapsed and fell on the ground and the appellant started to run. On commotion one public man and a Constable (P. W. Bashir Ahmed) chased the appellant and apprehended him and took him away in a taxi. He was cross-examined at some length but nothing worth mentioning was brought out therein to discredit his testimony. It was suggested to him in the cross-examination that he had a dispute with the deceased and that he was detained by the Police, but both the suggestions were denied by him and there is no material on record either to support the suggestion or to refute the denial by the witness. Admittedly, the witness had his shop near the vardar and the time of the incident being 3-15 p. m. He was expected to at his shop His presence in the shop, therefore, was natural and could not be doubted. That being so, he, indeed, could have seen the incident as testified by him. And there being nothing on record to substantiate that he had any reason to falsely implicate the appellant, his evidence was worthy of credit and was therefore rightly relied upon by the trial Court and was, indeed, sufficient to sustain the conviction of the appellant.
12. However, we have also evidence of P. W. Ghulam Sarwar. He stated in his evidence that at the time of the incident he was sitting in his shop when all of a sudden he saw the appellant and the deceased fighting with each other. He first thought that both were friends engaged in revelry but later on he saw the appellant running away with blood--stained knife in his hand. He further added that the appellant was chased by a traffic police constable (P. W. Bashir Ahmed) who appre-- hended him after the appellant had in the meantime thrown away the knife. In his cross- examination he confirmed that the deceased used to park his Thella in front of the shop of P. W.
13. Abrar Hassan who was present in his shop at the time of incident. The only improvement found in his evidence was that while in the lower Court he had stated that he had seen a person running away and another person was sitting in the Thela and was bleeding, he stated before the trial Court that he had seen the accused and the deceased grappling with each other and the appellant running away after giving knife blows to the deceased. The learned trial Judge explained the improvement by reasoning that nearly 3-- years had lapsed between the statement of the witnesses before the committal Court and his evidence in the Sessions Court. The learned Judge further observed that, at best, such improvement could be discarded but apart from it there was no discrepancy in his evidence that he had seen the appellant running away from the vardat and it being an admitted position that the had a shop at the vardat his presence at the time of the in-- cident was expected and he was natural witness who not being shown to have any reason to implicate the appellant falsely was worthy of reliance. We fully agree with the assessment made by the learned trial Judge of the evidence of this witness which fully supports the testimony of P. W.
14. Abrar Hassan and connects the appellant with the crime. The evidence of above two witnesses is further supported by the evidence of P. W. Head Constable Bashir Ahmed, P. W. Samiullah and P. W, Abdul Rais. P. W. Bashir Ahmed stated in his evidence that on the day of incident he was posted in Ferozeabad Traffic Section and was on duty near Nursery bus stop when he heard commotion that some body was running away after stabbing a "Thellawala". He went to the vardat and saw the appellant running away towards Khayam Cinema. He chased the appellant and apprehended him near the cinema along with the blood--stained knife with the help of P. Ws. Samiullah and Abdul Rais P. W. Samiullah supported the version of P. W. Bashir Ahmed and stated in his evidence that at the time of incident he was returning from the Nursery on the scooter and when reached near Khayam Cinema he heard cries of people to catch the appellant who was seen running towards them. At the gate of the cinema he stopped the appellant who had a knit-a in his hand.
15. Immediately thereafter P. W. Bashir Ahmed reached there and on seeing him the appellant threw the knife. P. W. Bashir Ahmed apprehended the appellant and some body brought the knife thrown away by the appellant. The Head Constable thereafter prepared the mashirnama of recovery of knife and took the appellant in a taxi and he followed them on the scooter to the police station where blood--stained clothes of the appellant were secured under a mashirnama produced by him. He was cross-examined at sufficient length but nothing material was brought out in his cross- examination to discredit his testimony. As to the witness conceding in his cross-examination that P.
16. W. Bashir Ahmed did not prepare mashirnama of seizure of the knife at the spot and that the clothes of the appellant were not secured in his presence, the learned trial Judge found the concessions to have been made to oblige the accused. P. W. Abdul Rais in his evidence also supported the above evidence of apprehension of the appellant by stating that on the day of the incident he was going on his scooter along with P. W. Samiullah when he saw the appellant running towards their side and being chased by Police Constable and 6/7 other persons. They stopped the appellant and the police constable apprehended him. He, however, stated that he did not know if the appellant bad anything in his hand. He also stated that the mashirnamas of securing of the knife and the shirt from the appellant were prepared at the police station and that he could not say whether they were the same as were shown to him in Court. As to this variation by the witness the learned trial Judge observed that the witness was a literate person and he having stated that the mashirnama was made and was signed by him after going through its contents which were true and it being not his allegation that he had not signed it or that his signature was obtained under duress, the concessions were made by this witness as well as Samiullah in order to oblige the appellant and discarded them from consideration. We entirely agree with the learned trial Judge and endorse his reasoning for ignoring the concessions and relying on the evidence of the aforesaid witnesses.
17. The next piece of evidence against the appellant is of the recovery of blood-stained knife from the appellant and securing of blood-stained shirt from his person. Both these articles were secured under mashirnama witnessed by P. Ws. Abdul Rais and Samiullah. Their evidence has been already dealt with and it having been found to be reliable there is nothing on record to doubt the evidence of recoveries from the appellant. Both these articles were sent to the Chemical Analyser who found them to be stained with human blood. That being so, this piece of evidence also connected the appellant with the crime and was rightly relied upon by the learned trial Judge against the appellant.
18. This leaves us with the question of sentence. Mr. S. Nasiruddin has pleaded for a lesser sentence of transportation of life on the ground that the evidence on record shows that the incident took place as a result of sudden fight between the appellant and the deceased and that no body had seen as to what had transpired before fight ensued between the deceased and the appellant. Mr. Agha Ghulam Ali, appearing for the State, in reply supported the learned counsel and stated that in view of the circumstances pointed out above this was a fit case for awarding lesser sentence to the appellant.
19. We are inclined to agree with both the learned counsel. The evidence of P. W. Ghulam Sarwar, would, indeed show that before the deceased was hit a sudden fight took place between the appellant and the deceased. Further, there is also no indication on the record as to what had trans--pired before the sudden fight took place between them, as the motive assigned by the prosecution had not been successfully established against A the appellant. In these circumstances, we feel that the ends of justice will be adequately met by awarding lesser sentence to the appellant. Accordingly, while maintaining the conviction of the appellant for the aforesaid reasons, we reduce the sentence of the appellant from death to that of transportation for life, as the incident took place on 19th February, 1973, before the amendment in the law.
20. With the above modification, this appeal stands dismissed and the reference stands rejected.