AJMAL MIAN, J.-This is an appeal filed by appellant Khalil Ahmed son of Fateh Nasib, against the Judgment dated 8-11-1980 passed by the yearned Third Additional District Judge, Hyderabad, convicting him under section 302, P. P. C. And awarding him death sentence subject to the confirma--tion of the High Court for murdering Abdul Razak alias China. According to F. I. R. Lodged by P. W. 1 Abdul Karim, brother of the deceased, it was alleged that the complainant (who was dealing in Hardwares work) at about 9.30 p. m. Slept after taking his meals. But, at about 23:15 Mst.
Shoarif4n wife of Nizamuddin came to his house and woke him up and informed him that his brother Abdul Razaq alias China was injured by accused Khalil Qureshi. It was further alleged by the complainant that on heiring this, he went with Sharifan to the place of wardat and saw that but brother Razak was lying on the road in front of the house of Pir Muhammad Tailor Master and that at the place of wardat he also noticed witnesses Muhammad Saleem, Shafi Muhammad and Nizamuddin, who told him that quarrel between the accused and his brother took place when the former after seeing the latter had spitted and in their presence Khalil Ahmed gave 3 injuries to Abdul Razaq and after that he ran away with Chhuri, from the wardat. It was also stated that his brother was unconscious due to the various injuries and that with the help of his uncle Saiahuddin, Rafiq and Umer they took the injured to the hospital, but he died on the way due to intolerance of injuries. It was further alleged in the complaint that in the morning on the day of the incident there was quarrel between deceased Abdul Razaq and accused Khalil Ahmed over money which was intervened.
2. The prosecution case hinges on the ocular evidence of 3 eye-witnesses namely, P. W. 2 Muhammad Salim, P. W. 3 Muhammad Siddik, P. W. 4 Muhammad Shafi. In addition to the above witnesses the other evidence comprises of P. W. 5 Dr. Abdul Majeed, who had carried out post- mortem examination on the body of the deceased. P. W. 6 Lal Muhammad, one of the Mashirs to the Mashirnama for the recovery of Chhuri, P. W. 7 Jamaluddin son of Haji Rasool Bux one of the Mashirs to the Mashirnama of the body of the deceased. P. W. 8 Ahmed Khan, Tapedar (who prepared the sketch of the wardat Exh. 27), P. W. 11 Pir Bashir Ahmed A. S. I. Who arrested the appellant and prepared Mashirnama of arrest Exh: 30, P. W. Khaliq Ahmed A. S. I. Who investigated the case and submitted the challan. The reliance has also been placed on the recoveries of- blood-stained churri and blood-stained clothes on the pointation of the appellant and also upon the motive mentioned in the F. I. R.
3. (a) P. W. 1 Abdul Karim son of Ibrahim has reiterated more or less the facts that were stated by him in the F. I. R. In his cross-examination, he has stated that he reached the place of wardat at about 11 .p. m. And that Mst. Sharifan had come to inform him at 10.45 p. m. He goes on to state that it took him about 5 minutes to reach the place of wardat from his house and that it was dark and that he did not see any accused at the wardat. He has further stated that the house of Abdul Salam was the nearest to the place of the wardat, but he was not present there. He has denied the sugges--tion that P. Ws. Were related to him. He has further stated that Mst. Sharifan was a neighbour. He has also deposed that he alongwith 3 others took away the injured Abdul Razaq to the hospital at about 11 or 11-30 p. m. In a Tonga, where they reached at about 11.30 and they stayed for half an hour in the hospital. He goes on to state that he went to the Police Station in a rickshaw and took about.15 or 10 minutes and that he lodged the F. I. R. At 12-15 mid-night, where the S. H. O.
Khalil Ahmed was present whom he stated the facts and from there he went to the hospital. He has further deposed that the S. H. O. Khalil came to his house at about 12-30 mid-night and stayed for 10 or 15 minutes there and that when he reached at his house it was about 12-30 mid-night, but he did not sleep and stayed at home till morning. He has also stated that he took the S. H. O. To the place of wardat, where the latter inquired into as to who was present there. He took also Sadiq, Saleem and Muhammad Shafi and many Mohallah people. He has further deposed that he accompanied the S. H. O. To the police station and that the S. H. O. Recorded the statement under section 161, Cr. P. C. However, he has further stated that he was not examined in any Court, He has also stated that nothing was sealed in his presence.
(b) P. W. 2 Muhammad Saleem has deposed that - he knew accused as he was residing near his house since 20 years and so also he knew deceased Aboul Razak alias China, who also resided in his neighbour. He has further deposed that about 2 or 2--years ago at about 11 p. m., he was sitting on a donkey cart parked without donkey near the house of Patiwala alongwith Khalil accused, where Muhammad Shafi, Baboo, Siddik, Abdul Razak came together. They conversed with one another. He has also deposed that seeing Abdul Razak, accused Khalil spitted twice or thrice, whereupon Abdul Razak resisted, which resulted into development of quarrel and both of them grappled with one another. He has also deposed that in the meanwhile Baboo went away but he, Shafi, and Sddik tried to pacify, but accused Khalil took out Chhuri from fold of his shalwar and attacked Abdul Razak at guest and armpit, whereupon he fell down near the house of Mir Muhammad Tailor near the cot lying there and became unconscious. He has further stated that Mst. Sharifan was standing there, who was attracted to the above commotion. She also saw the incident and went to inform the complainant Abdul Karim and, that the complainant Salanuddin and Umer Ali came there. He has further stated that the accused ran away and thereafter the complainant took away injured to the hospital or to the police station which he did not know as he aid not accompany them. He has also deposed that the police came on that night and examined him. His statement under section 164, Cr. P. C. Was also recorded Exh.
9. He has further deposed that he did not know specifically if there was any dispute between deceased and the accused previously but one woman Sharifan and Nizamuddin had informed him that the accused had fought with the deceased on the, previous day over money. In cross-examination, he stated that he worked on oven in a hotel. He has further stated that the deceased was his neigh--bourer and also a friend. He has also stated that it was not moonlit night but there were bulbs and that it was 10-45 p. m., when they were sitting there. He goes on to state that he was sitting in a corner of the street and the road, which is called Haji Umer Ali Road which leads towards Phuleli. He has further stated that these people came from Phulgli side. They were Siddik, Shafi, Baboo and China Abdul Razak.
He has further stated that first there was greeting between the parties and when he and Siddik were conversing Razak had slapped Khalil due to quarrel. Both grappled them, and that the quarrel continued for 10 to 15 minutes. He has further stated that there were 3 or 4 houses at the place of wardat but he did not know the names of the residents and that none of them came out from their houses. He has also stated that at the time of quarrel no body else apart from the people present came out. Voluntarily further stated that one woman came on commotion, her name was Mst.
Sharifan. He has denied the suggestion that he did not pay full attention either to the woman or to the quarrel; which had taken place. He has also stated that he was sitting on the cart, but he got down at the time of quarrel between appellant and the deceased and that he had seen the Chhuri and that it was a Chhuri and not a knife, which was about 1 ft. Long and which the accused took out Chhuri with his right hand. He has also stated that after seeing the Chhuri, he did not dare to intervene, but he did not go away from the place. He goes on to state that the accused inflicted 3 or 4 blows but he was not certain about the number of blows. He has also stated that the appellant inflicted blow on right side of stomach at the rib side. He has also stated that the police had called him at about 12-30 p. m. Mid-night and recorded his statement under section 161, Cr. P. C. And that he was also taken to the Court of Magistrate alongwith Siddik, Shafi and Salahuddin and the brother of the deceased.
(c) P. W. 3 Muhammad Siddiq has reiterated and corroborated the evidence of P. W. 2 Muhammad Saleem on all material points. In his cross-examination; he has denied that the deceased was his friend or enemy.
He goes on to state that he was simply acquainted with him. He has further stated that it was about 11 p. m. In the summer season and that he was not certain, whether it was moonlit night or not but there was light. He goes on to state that he was coming from Munir Hotel from where he started at about 11 or 10-45 p. m. Deceased Abdul Razak was sitting near building of Mai where he stopped near the donkey cart. There was no donkey at that time with the cart, which was parked at the corner of the street and that Khalil and Saleem were sitting on the cart. They had greeted each, other but Khalil spitted deceased Abdul Razak, whereupon, deceased told him to abstain from doing so. Thereafter, grappled with each other.
(d) Similarly P. W. 4 Muhammad Shafi in his testimony has corroborated the evidence of the other 2 eye-witnesses. However m cross-examination he has admitted that deceased was his friend and that he was residing in the same Mohallah and that he was a labourer and used to paint. He has further stated that he did not know if the deceased was addicted to anything nor he was in a position to say that it was moonlit night, but there was light. It was summer season. He has further stated that the incident took place about 2 years ago and that after taking tea from Munir Hotel he was returning and the deceased was near Muhammad Ali Sh. Building. He was with one or two persons whom he did not identify and that they greeted one another and he accompanied them.
(e) P. W. 5 Dr. Abdul Majid has deposed that he was the Medical Officer at Medico-legal Section, Hyderabad. On that date S. H. O. Khalil Ahmed referred to him a dead body of deceased Abdul Razak son of Muhammad Ibrahim for post-mortem examination, which was brought by Muhammad Ashiq F. C. At about 12-15 a. m. Mid-night on 10-6-78. He has further deposed that the body was identified by Mr. Muhammad Yasin son of Muhammad Bux, cousin of the deceased and that he started post-mortem at 10.45 a. m. And, finished it in 1 J hours. He found the body was of a mala person, well built of about 30 rigor mortis was present in the entire body. On external examination he found the following injuries: "(1) Incised wound on left side of chest in line with left nipple on sternum; 1--" x --" x cavity deep.
(2) Incised wound below, left armpit in mid axillary line. It was 1/3" x --" x --".
He opined that the above injuries were antemortem and appeared to have been caused by sharp cutting weapon such as knife. On internal examination he found following injuries: "(1) Thoracic cavity filed with blood.
(2) Through and through cut 1" long in sternal corresponding to external Injury No. 1.
(3) Through and through cut in left vertical of arm --" long, due to external Injury No.1. Stomach was 1/3 filled with semi-digested food articles. Bladder was empty. Remaining organs were normal."
He opined that the death was due to shock and haemorrhage caused by above-stated injuries and that Injury No. 1 was fatal, whereas Injury No. 2 was simple and that injury No. 1 was individually sufficient to cause death in ordinary course. He has further opined that time between death and post-mortem was about 12 hours while time between death and injury was about 1/2 hour and that the death could have been instantaneous. In cross-examination he has denied the suggestion that the injured could have been saved if he would have been brought earlier to the hospital.
(f) P. W.
11. Pit Bashir Ahmed A. S. I. P. S. Tando Jam. He has deposed that on 9-6-1978 he was A. S. I.
Phuleli. On 11-6-78 he left his quarter for Phuleli Police Station. When he reached near Ghotki he received a spy information that in Crime No. 90/1978 of S. P. Phuleli under section 302, P. P. C.
Accused Khalil Ahmed was present near the S. P. Office near Old University Campus, from Ghotki Chhatti. Thereupon, he reached there and took Abdul Razak on the pointation of spy and arrested him near the gate of Old University Campus in presence of Mashirs Imam and Chand Muhammad at about 10.15 a. m. Under Mashirnama Exh.
30. In his cross-examination he has stated that it was correct that he did not make any such entry prior to arresting the accused. He has further stated that both Mashirs were passing by from the spot and he asked them to act as Mashirs. There-- upon they agreed to act as such.
(g) P. W. 12 Khaliq Ahmed has deposed that on 9-6-1978 he was the S. H. O. Phuleli Police Station, that on that date at 11-15 p.m. The complainant, Abdul Karim came and lodged the F. I. R. Which he recorded in verbatim and read it over to the complainant and obtained his signature Exh.
7. From there he proceeded to the hospital and prepared Mashirnama of dead body Exh.
20. After that he prepared inquest report Exh.
21. He has further stated that he sent dead body for post-mortem examination through P. C. Ashiq Hussain. Then he proceeded to the place of wardat and prepared Mashirnama of wardat and secured blood-stained earth from the wardat and sealed it in presence of Mashirs Jamaluddin and Ramzan. He has also stated that he secured Chappal of deceased and cot stained with blood and so also the handkerchief belonging to the accused. He has further stated that thereafter he examined P. Ws. Muhammad Saleem, Muhammad Siddik, Muhammad Shafi, Salahuddin, Umer Ali, Mst. Sharifan and Muhammad Rafiq. He goes on to state that on 11-6-1978 A. S. I. Pit Bashir arrested the accused. He secured blood-stained clothes from the person of the accused in presence of Mashirs Jamal and Lal Muhammad in Exh. 1-8. He has further stated that on 12-6-1978 the, accused led them to his house and produced Chhuri used in the crime in presence of Mashirs Jamal and Lal Muhammad, in respect of which he prepaid Mashirnama Exh.
17. He has also stated that he had produced P. Ws. Muhammad Saleem, Muhammad Siddik, and Muhammad Shafi for recording their statements under section 164. Cr. P. C.
Then on 28-6-78 he received post-mortem report and on the same day he submitted the challan.
In cross-examination, he has stated that the deceased was challaned in language riots in 1977 and that he had also challaned him in Sind Crime cases. He has further stated that he reached hospital at about 12 mid-night and prepared Mashirnama there, and that the complainant bad taken dead body to the hospital and came to lodge the F. I. R. And that the accused was arrested on lath, but he did not know the time as A. S. I. Had arrested him.
(i) The statement of the accused under section 342, was also recorded by the learned Additional Sessions Judge, in which he denied the factum of having committed the offence.
4. (a) It may be observed that the defence was unable to bring any thing on record, which may cast doubt as to the veracity of the above eye-witnesses' testimony. There seems to be no contradiction on the material points. It. May be observed that P. W. 2 Muhammad Saleem and P. W.
4 Muhammad Shafi have admitted that they were friend of the deceased, but friendship simpliciter will not make these two witnesses as interested witnesses A in the absence of any plausible motive to implicate the appellant falsely in place of real culprit. Furthermore, P. W. Muhammad Saddik has denied that he was on friendly terms with the deceased. The testimony of this witness corroborates the testimony of the above two witnesses. In our view the ocular evidence of the above eye- witnesses has proved the case against the appellant beyond reasonable doubt inasmuch as nothing has been brought on record in the cross-examination by the defence on the basis of which it can be inferred that the above eye-witnesses had any motive to implicate the appellant falsely.
Their presence at the scene of offence appears to be natural. The motive alleged in the complaint has not been supported by the above 3 eye-witnesses as they had stated that they had no personal knowledge about the dispute over the money between the appellant and the deceased.
This fact also indicates that they were truthful witnesses. It may be observed that there is a discrepancy of about half an hour as to the time of lodging of the F. I. R. Between the time mentioned in the F. I. R. 8 i.e. 11.45 p. m. And the time given by P. W. 1 complainant, Abdul Karim in his deposition, namely, 12.15 midnight. In our view this is of no consequence.
(b) As regard recoveries. Mr. Ghulam Ali Agha, learned counsel for the State has candidly submitted that the recoveries are .To be discarded inasmuch as they were sent to the Chemical Analyser on 28-S-1979 though recoveries were made in Jane, 1978, i.e. After the expiry of nearly I1 months without any plausible explanation.
5. Since all the 3 eye-witnesses have in their depositions stated that the appellant spitted on seeing the deceased and thereupon the appellant and the deceased grappled with each other, which resulted into causing of fatal injuries by the appellant to the deceased. The question which requires consideration is, as to whether the instant case is a proper case in which the appellant should be visited with the capital punishment of death. It has been contended by Mr. Ahmed Saeed Qureshi, learned counsel for the appellant that the conviction should be altered from 302 P. P. C.
Into 304 Part 1, P. P. C. And that R. I. For few years will suffice: Reliance has been placed on the case of Pervez v. Khan Bahadur and 3 others (1982 SCMR 337), in which it was held that since there was omission on the part of the prosecution witnesses to explain the injuries on the person of the accused and that the story of the incident from both sides seems to be incomplete, in such a situation it is the duty of the Court to determine the correct position. It was also pointed out that the deceased party was also armed. On the basis of the above facts the Supreme Court allowed the appeal of one of the accused Bahadur Khan partly by setting aside his conviction and sentenced under section 302, P. P. C. Into section 304, Part 1, P. P. C. And awarded R.
1. Of 8 years and a fine of Rs. 20,000. In the instant case it is an admitted position that there was no injury on the person of the appellant. It seems that the appellant by inflicting Injury No. 1 intended to cause death. However, it cannot be urged that it was a premediated murder. The murder seems to have been committed in hot blood as it preceded with grappling between the appellant and the deceased, though the appellant initiated the quarrel by spitting after seeing the deceased. In our view, it will meet the ends of justice if the death sentence is substituted by life imprisonment. We, accordingly maintain the conviction, but substitute the sentence of life iml5risonment in place o death penalty. In addition are also impose a sum of Rs. 2,000 under sec--tion 544-A, Cr. P. C. As the amount of compensation to be paid by the appellant to the legal heirs of the deceased or in default six months' R.
1. The appellant shall be entitled to the adjustment under section 382-B from the period commencing from the date of arrest till the substitution of life imprisonment by this Court through this judgment.
As we have substituted life imprisonment in place of death sentence the reference made by the Additional Sessions Judge is rejected.