FAKHRUDDIN H. SHAIKH, J.--The above accused/appellants have been convicted by learned II Additional Sessions Judge, Karachi for offences under section 302/307, read with section 34, P. P. C.
By his judgment dated 16th November, 1981 and sentenced as under :-
(a) Accused Waqar Hussain to death under section 302(34, P. P. C.
(b) Accused Muhammad Sharif and Azeem to life imprisonment for offence under section 302, P. P.
C.
(c) Accused Waqar Hussain to seven years' R. I. Under section 307/34, P. P. C. And
(d) Accused Muhammad Sharif and Azeem to five years' R. I. For offence under section 307.
All the accused have further been directed to pay compensation of Rs. 2,000 to the heirs of deceased Younus for offences under section 302/34, P. P. C. Or in default to undergo R. I. For three months and further all of them to pay compensation of Rs. 200 each to injured Ghani Zar for offences under section 307/34. P. P. C. Or in default of payment to under--go further R. I. For one month.
2. The learned Additional Sessions Judge has made reference to this Court for confirmation of death sentence on accused Waqar Hussain. This accused has also filed appeal against his conviction which is Appeal No. 228/1981. Appellants Azeem and Muhammad Sharif have also filed separate appeals against their conviction and sentences, which are Criminal Appeals Nos. 243 and 244/1981 respectively. The reference and all the appeals will be decided by this judgment.
3. The case of the prosecution is that on the night between 11th and 12tb of May, 1979 complainant Muhammad Zar accompanied by his brother Ghani Zar and one Younus had gone to Nigar Cinema to see a picture Jan Ke Dushman. After purchasing tickets of Rs. 4 each they sat in the Cinema Hall at 9.15 p. m. The three accused Waqar Hussain, Azeem and Muhammad Sharif, who were known to the complainant party before hand, were sitting just behind the complainant and his com--panions. When the picture started, accused Waqar Hussain is alleged to have asked complainant Muhammad Zar to take off his cap so as to enable him to see the screen clearly.
Complainant obliged him by taking off his cap. Accused Waqar Hussain was still not able to see the screen clearly, he therefore, tapped on the head of Muhammad Zar asking him to lower his head as he was not able yet to see the screen. Upon this, it appears, there was some exchange of hot words between them which developed into an altercation. All the three accused thereupon grappled with Muhammad Zar. His companions Ghani Zar and Younus tried to rescue him, whereupon Azeem and Muhammad Sharif accused are said to have caught hold of Younus.
Meanwhile accused Waqar Hussain is said to have taken out a knife (Churri) from his Shalwar and started stabbing Younus. In this scuffle Ghani Zar also received one stab wound from Waqar Hussain. 1n the turmoil that followed the film was stopped and the lights of the hall were switched on. Two employees of the Cinema, Manzoor and Nazir Ahmed came there and caught hold of Waqar Hussain and over-powered him and also snatched the blood--stained knife (Churri) from him. Taking advantage of the turmoil prevail--ing in the hail, accused Sharif and Azeem made good their escape.
4. Injured Younus fell down on the ground due to injuries. He was removed to the Civil Hospital by Muhammad Zar. He was received at the Hospital by Dr. Owais Shafqat, who found three incised wounds on his chest, abdomen and thigh. He died in the Hospital as a result of the above injuries after three days of the incident i. e. On 14th May, 1979. Injured Ghani Zar was also carried to the Hospital by the complainant on the same night where he was treated by the same Doctor.
5. Earlier Manzoor Ali and Nazir, who were Lineman and Gateman respectively of Nigar Cinema, and who had overpowered accused Waqar Hussain and snatched the blood-stained knife from him, had taken him immediately to their Manager Mr. Mansoor Hussain Mirza, who informed the Police on telephone about the incident.
6. Mr. Moinul Islam was Sub-Inspector of Police at Risala Police Station. At about 10-30 a. m. He received telephonic message from Civil Hospital, Karachi that Ghani Zar and Younus injured bad been brought there by complainant Muhammad Zar. He made such entry in the Roznamcha, went to the Civil Hospital and recorded statement of Muhammad Zar under section 154, Cr. P. C. (Exh. 7- A), at I 1-50 p. m. The same night. He also recorded statement of injured Ghani Zar in the Hospital.
Muhammad Younus injured was un-conscious, therefore, his statement could not be recorded.
7. Mr. Moinul Islam then proceeded to Nigar Cinema accompanied by complainant and P. W. Ghani Zar and saw the place of incident in presence of Mr. Mansoor Mirza, the Manager of the Cinema and Juman Gul Chowkidar of the Cinema. Nothing was secured from there. Accused Waqar Hussain who was in the custody of Manzoor alias Chati, the said employee of the Cinema was produced before the Police alongwith the blood-stained Churri. The person of the accused was searched whereupon three cinema tickets were secured. He was taken to the Police Station. The S. I.
P. Then handed over the papers to Mr. Ghulam Siddiq S. H. O. For further investigation.
8. On 14th May, 1979. Mr. Ghulam Siddiq received information at 4.15 p. m. From Civil Hospital, Karachi that injured Younus had expired in the Hospital. He went to the Civil Hospital and held inquest on the dead body in presence of Ali Akbar and Sher Bahadur. He then requested the Medical Officer Dr. S. Iqbal Ahmad to hold post-mortem examination on the dead body. Earlier the deceased had been treated by Dr. Owais Shafqat who was incharge of the Casualty Ward of the Civil Hospital on 11th May, 1979 when the injured was first received in the Hospital.
9. On 15th May, 1979 accused Azeem and Sharif were arrested. On 24th May, 1979 P. Ws. Nazir and Manzoor were produced before a local Magistrate for statements under section 164, Cr. P. C. On the same day the blood-stained Churri was sent to the Chemical Examiner for report. The Chemical Examiner reported vide his report Exh. 23-A that the Churri was stained with human blood. After completing the investigation the accused were sent up for trial. They were tried by the II Additional Sessions Judge, Karachi with the result stated above. In his statement, before the trial Court, accused Waqar Hussain has denied having caused the death of Younus or injuries to P. W. Ghani Zar or that he had any altercation with Muhammad Zar in the Cinema Hall. He denied that he or his companions Azeem and Muhammad Sharif had at all gone to Nigar Cinema on that night to see the film. He has stated that he was arrested from Hashim Hotel, where he used to work as a waiter and that the two accused Sharif and Azeem were out of Karachi at Sehwan on that day. Accused Azeem and Sharif have stated that they are also employees of Hashim Hotel and that there was dispute between them and P. W. Manzoor over price of tea, therefore, they have been implicated in this case. They have further alleged that on the night of the incident they were out of Karachi at Sehwan Shareef and were arrested by the Police on their return from Sehwan. They have pleaded not guilty.
10. In support of the prosecution case complainant Muhammad Zit, (Fxh. 7). Injured Ghani Zar (Exh.
8), Juman Gul Chowkidur of Nigar Cinema (Exh. 10). Mansoor Mirza Booking Clerk of Nigar Cinema (Exh. 11) (he has been described by P. W. Manzoor Ali as Manager of the Cinema), Mashir Ali Akbar (Exh. 12) City Surveyor Murtaza Ali (Exh. 13) (who had prepared the sketch of wardat). Head Constable Azizur Rehman. (Exh. 14), Manzoor Ali Lineman (Exh. 15), Mr. Noor Ahmad, Magistrate. 1st Class, Karachi (Exh. 17) (who had recorded section 164, Cr. P. C. State--ments of Manzoor Ali alias 'Ghutai and Nazir Ahmed), Dr. S. Iqbal Ahmad (Exh. 19), Dr. Owais Shafqat (Exh. 20), Moinul Islam Sub Inspector of Police (Exh. 22) and Mr. Ghulam Siddiq S. H. O. (Exh. 23) had been examined. Besides the above evidence Mr. Ghulam Siddiq S. H. O. Has produced Chemical Report in respect of Churri as Exh. 23-A, which is in the positive: The accused persons have not examined any witness in defence.
11. So far as the facturn of the injuries on the person of deceased Younus and his subsequent death as a result thereof, is concerned, there is evidence of Dr. Fiqbal Ahmed (Exh. 19) and Dr. Owais Shafqat (Exit. 20). Dr. Owais Shafqat was tncharge of the Casualty Ward. Civil Hospital, Karachi on llth May. 1979 at 9-15 p. m. When injured Muhammad Younus and Ghani Zar were taken to him by complainant Muhammad Zar. He examined both of them. On the person of Muhammad Younus he found following three injuries:--
(1) Incised wound 2" x 1/4" on interior chest wall suspected cavity deep, on the left side.
(2) Incised wound 2----- x ----- on left lower chest and left side of upper abdomen with a piece of comentum, protuding outside.
(3) Incised wound.2" x ----- on left thigh frontly.
His condition was serious, therefore he was admitted in the Surgical' Unit. According to Film the above injuries appeared to have been caused by knife or Churri. All the injuries were fresh. He prepared such certificate which he has produced as Exh. 20-A, On 14th May, 1979 Muhammad)
Younus had died in the Hospital whereupon the C. M. O. Concerned on that date namely, Dr. Syed Iqbal Ahmad was requested by the Police to hold post-mortem examination on his body. Dr. S. Iqbal Ahmad (Exh. 19) has deposed that at the time of the post-mortem he found following three injuries on the person of the deceased :--
(1) Stitched wound left side chest at the level of nipple 3--- from midline measuring 1" with two stitchings.
(2) Stitched wound left side-lower chest 2" with tree stitches.
(3) Stitched wound on left side 2" with three stitches.
It may be noted that the above three stitched wounds corresponded to the same three injuries which were noted down by Dr. Owais Shafqat on the first day of examining this injured. On internal examination Dr. S. Iqbal Ahmad found that spleen of the deceased was cut, diaphragum was also cut and abdominal cavity was found full of blood. In his opinion injury No. 2 was individually sufficient to cause death in the ordinary course of nature and that the death was due to shock and haemorrhage as a result of the above injuries which appeared to have been caused by a sharp cut--ting weapon such as knife, Churri or dagger.
12. The factum of death of Muhammad Younus as a result of the above injuries has not been contested by the accused persons because their plea simply is that they have no concern whatsoever with this murder and that they do not know who killed Muhammad Younus or caused injuries to Ghani Zar. Dr. Owais Shafqat (Exh. 20) had also examined Ghani Zar on the very night of the incident when he had received him alongwith injured Muhammad Younus. He had found only one incised wound 1----- x ----- on the left side of chest of injured Ghani Zar. He has deposed that this injury was simple in nature and appeared to have been caused by a sharp cutting weapon such as knife or Churri. He was sent to the Surgical O. P. D. For dressing and then discharged. A certificate in respect of his injury has been produced as Exh. 20-B. There can be no manner of doubt as to the fact that both Younus and Ghani Zar bad received knife injuries on 11th May, 1979 in Cinema Hall of Nigar Cinema as alleged by the prosecution.
13. So far as the connection of the three accused persons with this crime is concerned, it would be appropriate to deal with the case of the Waqar Hussain separately from that of co-accused Muhammad Sharif and Azeem. So far as accused Waqar Hussain is concerned, the prosecution has relied on the ocular testimony of complainant Muhammad Zar (Exh. 7), Ghani Zar (Exh. 8), the corroborative evidence of Juman Gul (Exh. 3) and Manzoor Ali (Exh. 15), who is said to have caught accused Waqar Hussain red-handed with the Charri and produced him before Mirza Mansoor, Manage r/Booking Clerk of the Cinema. These witnesses are further corroborated by Mansoor Mirza (Exh: 11) before whom Waqar Hussain was produced by Manzoor Ali and Nazir (who has not been examined) and who had informed the police about the incident.
14. Complainant Muhammad Zar and Ghani Zar have completely supported the prosecution story as stated above. They have deposed that Waqar Hussain first asked complainant Muhammad Zar to take off his cap and then tapped upon his head to lower it down so as to enable him to see the screen and that thereupon an altercation ensued in which accused Waqar Hussain, with the help of his two companions, started attacking the complainant and his companions namely Ghani Zar and Younus and that in this assault Younus had received three stab wounds while Ghani Zar one stab wound. From their evidence it further appears that due to this incident there was a commotion and turmoil in the Cinema Hall due to which the lights were switched on, whereupon the two compa--nions of Waqar Hussain ran away but accused Waqar Hussain was caught by Manzoor Ali and Nazir, the employees of the Cinema House.
15. P. W. Manzoor Ali (Exh. 8) was working in Nigar Cinema as Lineman on the night of the incident.
On hearing of the commotion, he and the Gateman Nazir went inside and found accused Waqar Hussain and his two companions assaulting the complainant and his companions and that in this incident one of the companions of the complainant had received serious stab wounds. This witness alongwith witness Nazir had over--powered accused Waqar Hussain who was holding a knife in his hand. He had taken this accused to his Manager Mr. Mansoor Mirza and pro--duced Waqar Hussain before him. He has fully supported the prosecution case.
16. P. W. Mr. Mansoor Mirza (Euh. 11) w: s Booking Clerk of the Cinema on the night of the incident. He had served as Mashir of the arrest of the accused Waqar Hussain by the Police. Mr. Moinul Islam (Exh. 27) was the Sub-Inspector of Police, who had received information of this incident from Civil Hospital, Karachi. He had first visited the Hospital, recorded F. I. R. Of Muhammad Zar, held inquest and then proceeded to Nigar Cinema where accused Waqar Hussain was produced before him by Manzoor Ali and others. The Churri was also produced before him which was blood-stained. He had prepared such Mashirnama. There is minor contradiction about the production of Churri. According to the prosecution story, P. W. Manzoor Ali while overpowering the accused Waqar Hussain, had snatched the Churri and taken the accused Waqar Hussain to the Manager of the Cinema and that on the arrival of the Police the accused as well as the Churri were produced before Sub--- Inspector Moinul Islam. However, in his deposition Manzoor Ali has stated that Churri was still in the hand of the accused when the Police arrived. Whereas Mansoor Mirza has stated that the Churri was in the hands of the Subedar. (S. I. P.). It appears that the P. Ws. Namely, Manzoor Ali and Mansoor Mirza have disclaimed snatching of the knife (Churri) from accused Waqar Hussain due to, perhaps, apprehension that the possession of the crime weapon might be taken to be an incriminating circumstance against themselves. It is not unusual in such circumstances for the witnesses to give distorted version of the incident so as to keep their own conduct absolutely clean and unconnected with the incident. This minor discrepancy is, therefore, of no consequence. It is fully established that the accused Waqar Hussain was caught red-handed in the Cinema Hall by Manzoor. Ali and was produced before the Police later alongwith the blood-stained Churri. This Churri, according to the chemical report, (Exh. 23-A), was found to be stained with human blood.
17. Accused: Waqar Hussain bas alleged in his statement under section 342, Cr. P. C. That he had not gone to the Cinema Hall on that night and that he was arrested from Hashim Hotel where he worked as a bearer. He has not alleged any enmity against Ghani Zar and Muhammad Zar P. Ws.
But has stated that he has been implicated in this case by P. W. Manzoor Ali. But he does not explained as to why P. W. Manzoor Ali was interested in implicating him in a murder case, nor does he allege any enmity against Muhammad Zar and Ghani Zar who had identified him at the spot and had seen him being caught by P. W. Manzoor and other employee of the Cinema with blood- stained knife (Churri). If he was not arrested from the Cinema Hall, but was taken by the Police from Hashim Hotel where he claims to have been working as a waiter, then the best defence evidence for him would have been of his employer i. e. Owner of' Hashim Hotel or any employee of Hashim Hotel, who could have proved that this accused was at the Hotel and not in the Cinema at the time of the incident. From the statement of Mansoor Mirza (Exh. 11) who is Mashir of the arrest of the accused it would appear that three Cinema Tickets were also, secured from the person of this accused. Thus the evidence of eye-witnesses Muhammad Zar and Ghani Zar and the corro-- borative evidence of Manzoor Ali, Mansoor Mirza and Mr. Moinul Islam leave no doubt as to the fact that accused Waqar Hussain had caused three stab-wounds to deceased Younus and one stab- wound to P. W. Ghani Zar.
18. So far as the role of accused Sharif and Azeem is concerned, there is the word of Muhammad Zar and Ghani Zar that they had caught hold of Younus while accused Waqar Hussain gave him stab-wounds. But P. W. Ghani Zar who had himself received one stab-wound has clearly stated in examination-in-chief that accused Azeem in this case is not the same Azeem who was accompanying accused Waqar Hussain. It is already in evidence that the incident had taken place when there was no light in the Hall as the film was going on. It was after some time that due to the prevailing commotion, the lights were switched on and immediately thereafter both the companions of accused Waqar Hussain had run away. It is doubtful if under these circumstances, the witnesses could have correctly identified the companions of accused Waqar Hussain. The other witness namely, Manzoor Ali had reached the spot after the light was switched on. It is difficult to believe that the companions of accuses Waqar Hussain were still at the spot when this witness arrived. Even if these persons were there, it would have been difficult for Manzoor Ali to have identifed correctly the two companions of accused Waqar Hussain with certainty in the prevailing turmoil in the Hall. Moreover P. W, A Ghani Zar, who is one of the most important witnesses in the sense that, he had received one simple knife injury from accused Waqar Hussain, has refused to identity accused Azeem as one of the companions of accuses Waqar. We, therefore, hold that so far as Azeem and Muhammad Sharif are concerned, the case of the prosecution is doubtful. We therefore give benefit of doubt to them and acquit them of the offences they have been charged with.
19. About accused Waqar Hussain it is proved beyond a shadow of doubt that he was caught red- handed with the crime weapon i. e. Blood--stained Churri at the spot where he had caused three stab-wounds to deceased Younus and one knife injury to P. W. Ghani Zar. Two, out of the three knife injuries on the person of Younus, were on his vital part i. e. Chest. It must, therefore, be presumed that accused Waqar Hussain fully knew that the injuries were likely to prove fatal. The conclusion: therefore, is that his intention in causing injuries with the knife on the chest of deceased Younus was to kill him. The charge under section 302. P. P. C. For causing murder of Younus has, therefore, been brought home to him beyond any doubt.
20. So far as injury to P. W. Ghani Zar is concerned, it was simple knife injury for which he was treated as an 'Outdoor Patient' for one day only. As the incident had taken place all of a sudden, hence it cannot be presumed that by causing simple injury the intention of the accused was to kill Ghani Zar. He can at the most be held liable for causing simple injury with a knife to Ghani Zar which will be an offence punishable under section 324, P. P. C.
21. Now the question is as to what should be the sentence for the offences under sections 302 and 324, P. P. C. Which have been proved against accused Waqar Hussain. From the evidence it would transpire that the action of accused Waqar Hussain was not premeditated. It had occurred all of a sudden. Before this accused had attacked Younus with a knife it seems that there was verbal altercation between the complainant party and the accused party. As a result thereof accused Waqar Hussain had, in a fit of frenzy, taken out the Churri and attacked Younus indis--criminately.
Learned counsel for the State has conceded that in view of the unpremeditated action of accused Waqar Hussain death penalty is not called for. We are inclined to agree with the learned State counsel and hold that as the accused had acted as the spur of the moment and had killed Younus in a sudden fight, hence the extreme penalty of death would not be called for. We, therefore, convert his death sentence to life imprisonment and to fine of Rs. 10,000 or in default of payment of fine, sentence him to further R. I. For a period of two years. His conviction under section 307, P. P. C. Is converted to one for offence under section 324, P. P. C. As stated above and the sentence of seven years' R. I. Awarded by the learned trial Court for offence under section 307, P. P. C. Is reduced to R. I.
For one year. Both the substantive sentences shall run concurrently. The period of detention undergone by accused Waqar Hussain from the date of his arrest until the announcement of the judgment shall be adjusted towards the sentence of imprisonment for life.
22. The result is that the appeals of accused/appellants Muhammad Sharif and Azeem are allowed and they shall be released forthwith if not required in any other case. The reference made by the learned trial Judge for confirmation of the death sentence is not accepted and the appeal of Waqar Hussain accused is partly accepted to the extent of sentence only as stated above.