MUHAMMAD HAYAT JUNEJO, J.-This judgment shall dispose of to connected appeals, namely, Criminal Appeal No. 30 of 1967 filed by Farid Khan son of Kalandar Khan and Criminal Appeal No. 46 of 1967 preferred by Jehangir Kayani son of Raja Inayat Kayani. Beth the appellants have been convicted by an Additional Sessions Judge at Karachi for an offence under section 302/34, P. P. C.
And sentenced to transportation for life each for the murder of deceased Gul Mohammad alias Guloo.
2. This matter was to proceed on 20-2-1970 but Mr. K. H. Khurshid, the learned counsel for appellant Jehangir Kayani remained absent without any intimation to this Court. As the order dated 20-2- 1970 of a Division Bench shows he was called several times but remained absent throughout the day. As, however, the matter involved a sentence of transportation for life the hearing was adjourned and the appeals have been fixed before us today. This the again father of appellant Jehangir Kayani asked for a postponement of hearing to enable him to engage a counsel. We intimated to him that we could give him a few days' adjournment for this purpose but he stated that as he had no funds at the moment a long adjournment of at least a month or to was required.
This request was opposed by Mr. Ali Maqsood, the learned counsel for appellant Farid Khan as well as by Mr. Osman Ghani appearing for the State on the ground that the appeals had been pending since January 1967 and that because of lack of interest on part of one appellant the appeal filed by the other one was being unnecessarily delayed. We also find on record an application dated 3-12- 1967 made by one Mr. M. M. Kazi, Advocate, praying for adjournment of hearing on that date on the ground that he had been engaged by Jehangir Kayani and, therefore, he would file his power and argue the matter on the next hearing. This was, however, never done. In these circumstances we feel that it would be desirable to proceed with the matter and to treat the appeal filed by appellant Jehangir Kayani as a Jail Appeal.
3. The prosecution version of the occurrence may be stated in the words of P. W. 1 Fazal Din, who is the most important witness in the case. He stated as follows :- In July 1965 I was posted in Drigh Colony. It was 10-45 a.m. And I was on beat duty from 10 a.m. To 2 p.m. When 1 was coming from the main road, the to accused person in Court whom identify were beating the deceased with fists. It was near Cafe Hanif. Accused Farid and deceased Guloo came to grips. At that moment Kayani accused in Court. Pulled out a knife from the right side pocket and gave him a knife injury. I saw it and asked him not to do so. I rushed but the accused Kayani gave 2 or 3 knife injuries more in hurry and ran away. I followed him but could not catch him. Then I came back and caught the accused Farid. I knew the three persons from before. In the meantime Nazar Hussain Constable and Majid Beg Constable appeared there. I handed over Farid to them to be taken to Thana. I arranged for a motor rickshaw and alongwith Soomar I came with the injured to the P. S. I lodged the F. I. R. Exh.
6. It is correct and bears my signature. The injured was sent to the hospital. I accompanied the S. H. O. To the scene of offence and pointed out the place. He prepared the memo. The injured died after a few hours in the hospital."
The First Information Report relating to the occurrence was lodged by P. W. Fazal Din within 20 minutes of the incident at 10-50 a.m. As a result of which Fariduddin Ahmad S. H. O., Drigh Colony Police Station came to the scene of occurrence and conducted the investigation. Appellant Jehangir Kayani was arrested by A. S. I. P. Mukhtar Ahmad P. W. 15, the same day from a house in Natha Khan Goth. He led the police and the mashirs to Quarter No. 121/G in Drigh Colony and produced a blood-stained knife article `E' vide memo. Of recovery, Exh.
18. As the clothes of the person of this appellant appeared to be stained with blood the same, namely, a shirt and shalwar were also secured as articles `C' and 'D' by the Police vide Mashirnama Exh.
34. These articles were subsequently sent to the Chemical Analyser whose report shows that the knife as well as the clothes recovered from the person of Jehangir Kayani were stained with human blood. After the usual investigations were concluded both the appellants were challaned.
5. Dr. Major Hassan, Police Surgeon, Karachi, who conducted the autopsy on the dead body of deceased Gul Mohammad found three incised injuries or' his person all caused by a knife. One of the injuries was sufficient to cause death in the ordinary course of nature.
6. The defence of the ~ appellants was one of denial. In reply to questions as to why the witnesses were deposing against them they both stated that they did not know the reason. . No witness was examined in defence.
7. The prosecution case against both the appellants is founded on the ocular evidence of Fazal Din, Head Constable P. W. 1, Soomar P. W. 2, Ahmed P. W. 8, Ghazi P. W. 10, Punnu Khan P. W. I1 and Murad Y. W.
14. It is no doubt true that P. W. Ahmed is a relation of the deceased whereas both he as well as P. W. Soomar, are history-sheeters. The remaining eye-witnesses are absolutely disinterested witnesses having no connection whatsoever with the deceased, 'or any enmity with the appellant.
They arc all natural witnesses whose presence at the scene of occurrence cannot be doubted.
They have been cross-examined at length but nothing has come out in their evidence to discredit their testimony in the slightest degree. We feel that in the circumstances of this case the evidence of P. W. 1 Fazal Din alone is- sufficient to prove the allegations against both the appellants.
8. In addition to all this ocular evidence we have the testimony of Nazar Hussain P. W. 3 and Majid Beg P. W. 4, both of whom are police constables who reached the scene of occurrence immediately after the incident and took away the appellant to the Police Station. On this point we have also evidence of P. W. 9 Mohammad Ilyas.
9. Against appellant Jehangir Kayani there is also circumstantial evidence of the production of knife article `E' which the Chemical Analyser found to be stained with human blood. It is no doubt true that Mashir Zakarya Khan -P. W. 6 has tried to favour the appellant but the evidence of the investigating officer is fully corroborated by the mashirruima of recovery, Exh. 18, and we find no reasons to discard this evidence. What is more, a shirt article `C' and shalwar article 'D' recovered from the person of this appellant were also stained with human blood. On this point the evidence of Mashir Wali Mohammad has been assailed only the ground that he happens to be a Sindhi and the deceased also was a Sindhi. Vice have no hesitation in repelling this argument. It would be impossible to disbelieve a witness merely on the ground that he is a Sindhi.
10. On this view of the evidence the offence committed by appellant Jehangir Kayani is proved beyond any reasonable doubt against. He caused as many as three injuries to the deceased one of which was individually sufficient to cause death in the ordinary course of nature. As every person is presumed to intend the ordinary and natural consequences of his at it is obvious that appellant Jehangir Kayani has been rightly convicted. Although on the question of sentence we feel that he should 'has been sentenced to death we would not like to issue a suo mote notice for enhancement of sentence at this stage in view of the long delay.
II. We shall now address ourselves to the case of appellant Farid Khan. The evidence of P. W. I Fazal Din, which we have produced above in extenso as well as the rest of the evidence on record clearly shows that originally the quarrel developed when the deceased and appellant Farid Khan had on altercation as a result of which they came to grips. Appellant Jehangir Kayani suddenly took out a knife from his pocket and in quick succession caused three injuries to the deceased. As this knife was admittedly taken out from the pocket of Jehangir Kayani and was not visible before-hand it cannot be said that Farid Khan knew that Jehangir Kayani was armed with a knife much less could he be saddled with the knowledge that Kayani would at in the manner that he did. There is no allegation that Farid Khan instigated Kayani or asked him to attack the deceased. It is no doubt correct that P. W. Soomar stated that appellant Farid Khan warned the people not to come near but this part of his evidence is falsified by the extract Exh. 10 which is his lower Court deposition duly brought on record in which this fact is conspicuous by its absence. Similarly his statement Exh. 11 also makes no mention of this fact, and the same has been exhibited for the purpose of --showing that omission. The cross-examination of this witness further shows that he has made several improvements in order try implicate the appellants. We would, accordingly prefer to rely on the evidence as given by Fazal Din who is a completely disinterested witness.
12. Another circumstance in this connection which we would like to mention is that while appellant Jehangir Kayani immediately ran away and could not be secured, appellant Farid Khan made no such effort. In fact the evidence of P. W. Fazal Din shows that when he returned to the scene after chasing the other appellant, Farid Khan was still there. This conduct of the appellant is consistent more with his innocence than with his guilt. While dealing with this aspect of the case the learned Additional Sessions Judge observed as follows :--- "Here it is quite clear that both the accused fought the deceased and at first inflicted fist and leg blows on his person and then all of a sudden the accused Farid caught hold of the deceased and the accused Kayani gave the knife injury. It cannot be said that the knife injury was an isolated at of the accused Kayani. What transpired between the to before committing the offence is not known and cannot he known."
We may point out that like all other ingredients of the offence the burden of proving the common intention also lies on the prosecution and not on the accused. It is no doubt correct that in cases where circumstances speak for themselves there will be not much difficulty in coming to the conclusion that the several accused participating in a crime were acting 'under a pre--conceived plan. For example, if on account of some previous enmity both these appellants had come determined to kill the deceased and one of them had caught hold of him and the other had caused him injuries that would have been a clear case of common intention to commit murder.
However, that was not the position here. As observed by the learned Judge himself the quarrel started "suddenly" and "what transpired between the to before committing the offence is not known and cannot be known." Even on this finding benefit of doubt should have been given to the accused. Moreover, the learned Judge has not taken into consideration any of the circumstances which we have mentioned above.
13. Looking to the entire evidence as a whole we find it unsafe to hold that appellant Farid Khan had shared the common intention of the committing murder with appellant Jehangir Kayani. We would in this connection refer to the case of Ali Mohammad v. The State (PLD 1965 Kar.. l3;). In that case to appellants, namely, Ali Mohd. And Soomar were convicted under section 302/34, P. P. C. And sentenced to death. The deceased was, however, killed only by Ali Mohammad with a pistol. Which was concealed under his "ajrak" and he fired it after pulling out the same therefrom. Soomar was carrying a hatchet. In his hand and was brandishing the same to ward of pursuers. There was no evidence against Soomar that he had knowledge that Ali Mohammad was carrying a pistol or that he would use it with tragic consequences. It was on the facts held, by a Division Bench consisting of S. A. Mahmood and Raymond, JJ. That the shooting by Ali Mohd. Was his individual at and that Soomar could not be held constructively liable for the same. On this view of the matter the offence committed by appellant Farid Khan would more appropriately fall under section 323, P. P. C. We would accordingly, alter his conviction from section 302/34, P. P. C. To one under section 323, P. P. C.
And reduce his sentence from transportation for life to R. I. For one year only. As he has already remained in jail for three years after his conviction which was recorded on 30-1-1967, we would direct that he shall be released forthwith unless required in some other case. Criminal Appeal No. 30 of 1967 filed by this appellant is accordingly partly allowed to the extent indicated above.
14. For the reasons we have given above Criminal Appeal No. 46 of 1967 filed by Jehangir Kayani stands dismissed.