1. SAJJAD ALI SHAH, J.-This appeal is filed against the judgment dated 4th September, 1979 of learned Ex Officio Additional Sessions Judge at Karachi, whereby appellant has been convicted under section 302, P. P. C. And sentenced to death. There is also before us a reference from the trial Court for confirmation of death sentence as provided under section 374, Cr. P. C. We propose to dispose of both the appeal and the reference by this single judgment.
2. Shortly stated the prosecution case is that vn 7th February, 1973 mother of complainant, Shaikh Mazhar sent 10 eggs to her house through Baby Fahmidah. On her way Khalid, friend of appellant Mohammad Yousuf, took away two eggs from Fahmidah, who complained to her mother. Mother of complainant went to the house of Khalid, and inquired from him about eggs but he expressed his ignorance. In the meantime appellant Mohammad Yousuf came there took the side of- Khalid, abused mother of the complainant and warned every body not to touch Kltalid. Complainant and Shaikh Fareed deceased also reached there and appel--lant started to quarrel with them.
3. Mohallah people intervened and there--after complainant and 'deceased returned to their shop.
4. Shortly after--wards deceased went to take a `paan' from Cafe Dakhan where appellant and his brother slapped him. On the same day at about 12-45 noon deceased Shaikh Fareed was returning to his shop when appellant climbed the roof of his house and warned other people to move aside and fired from his gun at Shaikh Fareed who became injured in the chest and died at the spot. At that time an Assistant Sub-Inspector happened to reach the scene of offence went up the roof of the house, apprehended the appellant and took from him the gun. Deceased was removed to Jinnah Hospital where statement of complainant was recorded by Police which was subsequently incorporated in First Information Report.
5. Ch. Mohammad Ashraf, S. H. O., Police Station, Landhi got entry No. 21. From the Station Diary in respect of dead body having been brought to Jinnah Hospital. He went to the wardat situate on the main Road No. 6 on the pavement around which there were shops. He met A. S. I. Kabir Ahmed who had appellant with him in custody. A. S. I. Kabir Ahmed produced before him a .12 bore shot-gun, one live cartridge and one empty cartridge which were recovered by him from the appellant. S. H.
6. O. Took the appellant in custody and also seized weapon and cartridge. He inspected the scene of offence and scratched blood from the pavement where deceased was allegedly shot down. S. H. O.
7. Went to the hospital where statement of complainant was recorded and was sent to the Police Station for incorporation in F. I. R. Register. Dead body was inspected and was handed over for post-mortem examination. S. H. O. Went back to the scene of offence and prepared the mashirnama. He recorded the statements of witnesses. After completing the steps of investigation he presented challan in the Court.
8. Prosecution has examined 13 witnesses in support of its case. From them 5 have been examined as eye-witnesses. Two such eye-witnesses namely P. W. 3 Nazir Mian and P. W. 5 Mohammad Hassan did not support the prosecution case and were declared hostile. P. W. 12 Kabir Ahmed, A. S. I. Came to the spot at the nick of the time and saw a man lying injured on the pavement writhing in pain and a man standing on the roof of the house with a gun. This witness went up to the roof and apprehended appellant and snatched the gun from him. P. W. 1 Mst. Fahmida is a child witness aged about 10 years when examined in the Court and has supported the prosecution case on the question of motive with regard to taking away two eggs by Khalid a friend of the appellant as stated above. P. W. 6 Qabil Khan A. S. I. Was informed at Police Station about the arrival of a dead body and he made such entry in the Station Diary, and sent a copy to the S. H. O. P. W. 7 Atta Mohammad A. S. I. After telephonic message from the hospital went to the hospital, where inspection memo of the dead body was prepared and then he delivered the dead body to the police surgeon for post-mortem examination. P. W. i0 A. S. I. Masood Ahmed received statement of the complainant written by S. H. O. Ch. Mohammad Ashraf, which was incorporated by this witness in the register of F. I. R. Report of Ballistic Expert Exh. 46 is positive. Report of Chemical Examiner Exh.
9. 44 is also post--tive to the effect that clothes and earth were found to be stained with human blood.
10. Post-mortem exaMination of the dead body was performed by Dr. S. A. Farooqi on 7th February, 1973 and according to the report deceased had sustained one gun-shot injury below the left nipple 1--- x 1--- cavity deep directed downward. The bullet had passed through the heart which had smashed into pieces and separated fibres and then passed in the lower lobe of right lung making an exit wound on the back below the angle of right scapula. Injury on the back is exit wound.
11. According to the opinion of the doctor deceased died due to shock as result of fire--arm injuries received by him. This doctor was examined before the inquiry Court and his evidence was brought on the record in the Sessions Court under section 509, Cr. P. C.
12. Before the trial Court the statement of the appellant under sec--tion,-'342, Cr. P. C. Was recorded in which he has admitted that he had fired the shot from his gun with cartridge No. 4 at the deceased and further claim is made that it was not intentional murder but the deceased and P. Ws. Had attacked the house of the appellant and he was compelled to take such action in order to save his life. It is further stated in that statement by the appellant that deceased and his companions had come to the house of the appellant and wanted to kill his (deceased's) aunt Sughra alias Piary. The appellant did not allow that to happen hence the deceased and his companions attacked the house of the appellant and tried to break open the door. Appellant used cartridges of No. 4 only.
13. Further statement in writing was also filed by the appellant before the trial Court on the day when his statement tinder section 342, Cr. P. C. Was recorded. In this application in writing the stand taken by the appel--lant is same as in his 342, Cr. P. C. Statement and further the appellant has pleaded guilty to the charge of culpable homicide not amounting to murder The appellant did not examine any witness in defence. Now so far the case of the prosecution is concerned, it is a case of intentional murder and the manner in which the incident took place has been stated above which need not be repeated. Out of five eye-witnesses 3 eye--witnesses have fully supported the prosecution case. They are P. W. 2 Haider Ali Khan, P. W. 8 Shaikh Mazhar, complainant and P. W. 9 Mohammad Zakeria Khan. It is a broad daylight murder and the incident has taken place on the pavement on road where there are shops. The time of the incident is 12.45 noon when the shops are expected to be open. P. W. 2 Haider Ali Khan has deposed that he has .a hardware shop on that road. Deceased and complainant have also shop of hardware on that road. This witness was there in the quarrel which took place before the incident between the appellant on one side and deceased and complainant on the other side and he was informed by Mst. Fahmidah also about the taking away of two eggs by Khalid. Thereafter he saw the incident and he tried to help the deceased but was threatened by the appellant. He also saw A. S. I. Kabir Ahmed coming to the roof and apprehending the appellant. This witness has stated that Mst. Fahmidah is his sister-in-law and P. W. Zakeria is husband of his wife's sister. Similarly P. W. 8 complainant Shaikh Mazhar also fully supported the prosecution case and he admits that he is brother of deceased. He has also deposed about the story of motive regarding eggs and quarrels upon them. Likewise P. W. 9 Mohammad Zakeria has also supported the prosecution case. This witness has admitted his relationship with Haider Ali Khan. He has been subjected to lengthy cross-examination but there is nothing in it to show or suggest that he has not seen the incident. The other two eye-witnesses who have not supported the prosecution case are P. W. 3 Nazir Mian and P. W. 5 Muhammad Hassan. P.
14. W. 3 Nazir Mian has deposed before the trial Court that at the time of the incident be was working as sales man in the shop of Abdus Sattar and beard gun report. He saw deceased Shaikh Farid lying injured about 50 paces away from his shop. He did not go outside. He saw people collecting there and took injured to the hospital in a taxi. After about 15 minutes he saw a Police Officer taking away the appellant. He was declared hostile and cross-examined. He was confronted with his statement before the Inquiry Court Exh. 7 where he had stated that at the time of the incident appellant fired from his gun from the roof of his house and was arrested by the Police Officer. This witness further denied a suggestion before the trial Court that be has been won over by the appellant and his relatives. Similarly the other eye-witness P. W. 5 Mohammad Hassan did not support the prosecution case and was declared hostile. He deposed before the trial Court that the shop of the, deceased was opposite his shop and before going over the details of the actual incident this witness stated before the trial Court that his statement under section 164, Cr. P. C. Was recorded, which he was in the Court but did not know the name or number of the officer who recorded it. He further stated that it was not recorded by a Magistrate. He was declared hostile and cross-examined. He was confronted with his statement recorded before the Inquiry Court in which he had admitted that his statement under sec--tion 164, Cr. P. C. Was recorded before A. C. M.
15. Court No. 9 on 10th March, 1973. He was confronted with the contents of his 164, Cr. P. C. Statement according to which he saw appellant standing on the roof of his house with a shot-gun and fired at Shaikh Farid who fell down injured and died. A. S. I. Went up to the roof and apprehended the appellant.
16. After the cross-examination of P. W. 3 Nazir Mian before the trial Court on the same day an application was moved under section 288, Cr. P. C. By the A. P. P. Purporting to request the trial Court to bring on record the statement of the witness before the inquiry Court to be treated as substantive evidence but it appears that inadvertently the language used by the A. P. P. In the application is different. This applica--tion was granted by the trial Court on the same day. The intention further appears to be so by reason of the fact that before this application there is already statement of the witness recorded before the inquiry Court brought on the-record as Exh. 7 and the application is Exh.
8. Furthermore the application specifically is under section 288, and the request also clearly appears to be relating to transfer of the statement to the record of the trial Court. We are therefore of the view that the statement of this witness recorded before the inquiry Court has been transferred to the Court of Session under section 289, Cr. P. C.
17. So far the deposition of P. W. 5 Mohammad Hassan is concerned before the trial Court, after he was declared hostile, he was confronted with his statement under section 164, Cr. P. C. But no further request was made by the prosecution to transfer the statement of this witness recorded before the inquiry Court to the Court of Sessions as in the case of P. W. 3 Nazir Mian. We therefore rule out of consideration deposition of Muhammad Hassan who has not supported the case of prosecution.
18. Excluding the evidence of Mohammad Hassan still there is ocular testi--mony of 4 eye-witnesses fully supported by medical certificate which is to the effect that deceased died due to injury received by him from one gun shot on the left side of his chest. Ocular testimony is further supported by circumstantial evidence of the arrest of the appellant at the spot by A. S. I. Kabir Ahmed who has been examined as P. W.
12. This Police Official came to the spot at the proper time climbed over the roof of the house apprehended the appellant and recovered the gun from him.
19. This witness has been cross-examined at length but nothing turns on his credibility. He had arrested the appellant at the spot apprehended. He has no enmity with the appellant or interest with the complainant party. He simply passed by at the time of the incident. All eye-witnesses have seen him going up and arresting the appellant. We find absolutely no reason to disbelieve the evidence of this witness who has fully supported the prosecution case and has played an important role in apprehending the appellant at the spot by climbing over the roof of his house.
20. The next piece of evidence is report of Ballistic Expert. The gun was recovered from the appellant by Kabir Ahmed, A. S. I. And be also took one crime empty which was lying on the roof of the house. So far the arrest of appellant and recovery of gun are concerned prosecution 'has examined P. W. 11 Zahoor as mashir who has not supported the prosecu--tion case and was declared hostile. Co- mashir Bane Khan has not been examined but we find no hesitation in relying upon the evidence of Investigating Officer on this recovery. In any case the appellant himself admits having fired in the circumstances stated by him. He has admitted so in his 342; Cr: P. C. Statement and has also filed an application in writing before the trial Court in which such admission is made.
21. So far the plea of the appellant before the trial Court is concerned, stand taken by the learned counsel for the appellant before us was not clear. On one hand he contended that eye-witnesses have falsely deposed against the appellant, who is innocent and on the other hand submitted that alternatively the facts of the case indicate that appellant fired from his gun at the deceased while exercising right of private defence. It appears from the statement under section 342, Cr. P. C. Of the appellant recorded before the trial Court that the plea taken by him that the deceased and his companions came to kill their aunt Sughra alias Piary who was sitting in the house of the appellant and since the appellant did not allow them to do so, they attacked the house of the appellant and tried to break open the door hence the appellant used cartridges of No. 4 only is an after--thought.
22. If this was true the appellant would have taken such plea specifically and in such details as mentioned by him in his 342, Cr. P. C. Statement before the trial Court. The plea with such details should have been put, to the eye-witnesses. He should have mentioned specifically that who were the companions of the deceased who had come alongwith him. Why the appellant is vague about the companions of the deceased. Secondly the assertion made by the appellant is not factually correct because if the appellant was, attacked by the deceased and his companions who had broken open the door of the house of the appellant and the deceased and companions were armed with iron bars and belchas then the incident would have taken place there at the door and there was no neces--sity for the appellant to go to the roof of the house and fire from there on the deceased who fell - down on the pavement on the road. There is one thing more that the appellant has also given in writing before the trial Court an application which is signed by him and also signed by his counsel. The relevant portion in that application is :- "A person has been killed by me, my conscience is giving a verdict that I am sinful hence for a peaceful eternal life I would plead guilty to a charge of culpable homicide not amounting to murder and place myself at the mercy of this Honourable Court and request for a lenient view of sentence."
23. In this application although a mention is made that the appellant was constrained to take this action after he came to the conclusion that for the life and prestige of the household ladies and one relative of the deceased Mst. Piary (Phoopi) he had fired on his feet with the gun of his father after loading with a cartridge of birds shooting simply to prevent him from entering into the house.
24. It is clear that in that application there is no allegation that deceased and his companions wanted to enter the house of the appellant with iron bars and belchas and wanted to break open the door.
25. However there is only one thing which engages our attention in this context that when appellant was apprehended there were slight injuries one on his eye and one on the arm as admitted by the S. H. O. Ch. Mohammad Ashraf in his evidence before the trial Court. The S. H. O. Has further stated that he had sent the appellant to police surgeon for examination and sent also the pants of the appellant to the Chemical Examiner as they were stained with blood. Now the firing in the instant case is alleged to have taken place from the roof of the house and deceased was down on the road on pavement so there is no question of contact between the two and so the-pants of the appellant could not be said to have been stained with the blood of the deceased. It is obvious that pants of the appellant became stained from his own injuries. These injuries are not explained by the prosecution. Injuries of the appellant are medically proved by Dr. Abrar who was examined before the Lower Court and his deposition has been brought on the record of the Sessions. He examined appellant on 7th February, 1977 at 10.45 p. m. And found three injuries. First injury was lacerated wound on the left eye-brew skin deep, second is scraches in the right hand middle finger and 3rd is abrasion on the left hand. All these injuries were declared by the doctor to have been caused by blunt weapon with probable duration of 24 hours. The other thing which is note worthy is that as per the record of the Sessions Court statement of appellant was recorded on 5th August, 1978 and the age of the appellant has been shown as 22 years. The incident took place in February.
26. 1973 i. e. About 5 years earlier than 1978 which brings the age of the appellant at the time of the incident to be about 17 years We consider the young age and unexplained injuries on the person of the appellant at the time of his arrest as good ground for reduction a of the sentence from death to life imprisonment. Otherwise there is over--whelming evidence to connect him with commission of crime as stated above. In the result the appeal is dismissed with modification that sentence is reduced from death to life imprisonment as such the reference for confirmation of death sentence is not accepted.