1. MUNAWAR ALI KHAN, J.--This case arose from the murder of Khan Muhammad alias Atiq, brother of the complainant, Mian Muhammad. Both the brothers who originally hailed from Mianwali were living near Haji Camp, Karachi. They ran a laundry just in front of the gate of the Camp. According to the prosecution story as disclosed in the F. I. R., the appellant Muhammad Amir alias Heera who was close neighbour of the two brothers, had borrowed Rs. 300 from the deceased about six months prior to the latter's murder. On the previous day of the incident which occurred on 31st January, 1978 there had been a wordly duel resulting in exchange of abuses between the deceased and the accused over repayment of the loan. It is alleged that on demand of his dues by the deceased, the accused not only refused to return the same but also gave him abuses. On the following day at about 8-45 a. m. While the complainant was coming towards his laundry shop, he saw accused Heera abusing his deceased brother just at the Noor Bhai Pan Shop, which situates near the deceased's laundry. He further saw that the accused stabbed the deceased with knife, causing him injuries near his heart and on his ribs on the left side. The incident was also witnessed by Abdul Ghafoor, Islamuddin, Haji Yaqoob, and Soomar. The accused somehow managed to disappear taking away the knife with him. Thereafter Abdul Ghafoor and Islamuddin helped the complainant to remove his injured brother to the Civil Hospital. After a short while of their arrival there, the doctor announced that the deceased had expired. The complainant then rushed to the Police Station Kalakot which is shown to be at a distance of one mile from the place of occurrence and lodged F. I. R.
2. The S. H. O. Majid Hussain took down the F. I. R. At 10-00 a. m. The same day. He then proceeded to the scene of offence which was shown to him by P. W. Abdul Ghafoor. The wardat situated right on the Haji Camp road. The S. H. O secured blood-stained earth from the wardat and recorded statements of Abdul Ghafoor, Islamuddin, Haji Yaqoob and Soomar. He then went to the Civil Hospital where he prepared inquest report of the dead body of the deceased. The blood--stained earth and blood-stained clothes of the deceased were sent to chemical examiner for his opinion.
3. The police spared no efforts to locate the accused, but he was untraceable. The challan was accordingly pro--duced in the court with entry showing that the accused was absconding. He was ultimately apprehended by A. S. I. Muhammad Khan on 4th February, 1978 at Rawalpindi and produced in-the court. The accused was tried in the Court of Additional Sessions Judge, Karachi, who by his judgment dated 23rd January, 1982 convicted him under section 302, P. P. C. And awarded him sentence of death, with further direction that he shall pay Rs. 3,000 under section 544-A, Cr. P. G. As compensation the legal heirs of the deceased. This appeal is directed against the above judgment and the case has also been referred to this court under section 374, Cr. P. C.
4. For confirmation of the death sentence.
5. Autopsy on the dead body of the deceased Atiq was performed by Dr. Muhammad Abbas (P. W. 7).
6. He found the following three injuries on his person :- (1)Incised wound left side chest --" x --" x muscle deep 6" below shoulder tip, 8" left to centre of sterna, oblique in direction.
7. (2)Incised wound left side 1/2" x 1/4" x cavity deep 3 1/2 inches from midline in the seventh interspace vertical in direction.
(3) Incised wound left side chest on the 12th rib vertical in direction 3" left to costal margin in mid axillary --" x --" x cavity deep."
8. In the opinion of the doctor all the three injuries were ante-mortem and were caused by sharp cutting weapon such as knife. According to him the injury No. 2 was sufficient in ordinary course of nature to cause death. The appellant does not dispute the factum of the deceased having died of the knife injuries mentioned above. It is thus established from the medical evidence that the death of the deceased Atiq was caused by the injuries that had been inflicted on him.
9. The material point for consideration is whether the appellant was the author of the injuries found on the person of the deceased. In this con--nection the prosecution have relied on three-pronged evidence: (1) motive, (2) eye evidence and (3) abscondence of the appellant.
10. As for motive the complainant Mian Muhammad (P. W. 1) who is admittedly brother of the deceased Atiq has deposed to the following effect :- Some days before the incident, accused had taken loan of Rs. 30 from my deceased brother. One day before the incident, my deceased brother had demanded the return of the money .On which the accused had abused my brother. Accused had abused my brother. Accused had threatened my brother that in case he again demanded the money, accused will treat him badly. This A was the enmity.""
11. He is corroborated by Soomar (P. W. 2), Abdul Ghafoor (P. W. 3), and Haji Yaqoob (P. W. 4).
12. According to them, they saw the deceased demanding his dues from the appellant and the latter abusing him in return. The appellant's reaction to the evidence of notice is bare denial. He has not elaborated in his statement under section 342, Cr. P. C. As .To why the deceased had laid false claim of having advanced a loan of Rs. 300 to him. He has also not been able to show why the witnesses have falsely implicated him. His allegations that the witnesses are related inter se, interested and inimical to him are manifestly devoid of any substance. There is no indication on the record that P. Ws. Soomar, Abdul Ghafoor, and Haji Yaqoob are related to complainant Mian Muhammad or in any manner interested in him or his deceased brother. Atiq. P. W. Soomar is a Kathiawari P: W. Abdul Ghafoor is a Pathan and Haji Yaqoob is a Kachchi. They have obviously no relationship with the complainant who happens to be Awan by caste. We are there--fore convinced about the independent character of these witnesses. Being residents of the locality where the wardat is situate, they also appear to be natural witnesses. There is not a trace of material creating any suspicion about their truthfulness.
13. So far the occurrence is concerned, besides complainant, P. Ws. Soomar, Abdul Ghafoor and Haji Yaqoob have given eye-witness account. Their evidence 'which is quite consistent., discloses that in the morning they saw that the deceased had opened his laundry shop and was busy sweeping the same When the appellant arrived there. Within their hearing, the appellant inquired from the deceased as to why he had disgraced him on the previous day whereupon the deceased asked the appellant to return his Rs. 300. This was followed by exchange of abuses between the two who came out of the shop grappling- with each other. It is in their evidence that when they came near the Noor Bhai Pan Shop the appellant whipped out a knife and stabbed the deceased causing him injuries right near the heart and on the ribs on the left side. They further saw that the deceased fell down while the appellant managed to escape, taking away the knife with him.
14. As has been stated earlier these are natural witnesses and their presence at the scene of offence cannot be doubted. P. Ws. Abdul Ghafoor and Haji Yaqoob have shops admittedly in the neighbourhood of the shop of the deceased. So far P. W. Soomar is concerned, he is shown to be living in a but just nearthe Haji Camp and at the time of the occurrence he happened to be present at the wardat as he .Had gone to by a pan from Noorbhai Panshop. None of them bears any animus against the appellant. We have no doubt in our mind that their evidence is free from any bias.
15. The eye evidence mentioned above finds further support from the S. H. O. Majid Hussain (P. W. 8), who confirms that the wardat was located on Haji Camp Road. According to him the blood-stained earth secured from the wardat was sent to the Chemical Examiner whose report is positive showing that the earth was stained with human blood.
16. Further evidence relied upon by the prosecution is abscondence of the accused. The S. H. O, Maid Hussain has stated in his evidence that after the occurrence the appellant was missing from his house and despite a search to locate his whereabouts he was untraceable. It is disclosed in the evidence of A. S. I. Muhammad Khan (P. W. 6) that he arrested him at Rawalpindi on 4th February, 1978. In the meantime the challan was produced in the Court in absence of the appellant showing him abscond--ing, The appellant does not appear to have seriously contested the evidence with regard to his abscondence.
17. In view of the evidence discussed above we have no hesitation to hold that the injuries found on the person of the deceased were caused by the appellant. The findings arrived at by the trial court in this regard have not been challenged even by the learned counsel for the appellant. His only submission however was that there was sufficient material available on the record to warrant reduction in the sentence. The learned counsel argued that the murder was the result of a sudden fight and no element of premeditation was involved. He tried to enlist support for his proposition from the nature of the injuries, arguing that had the appellant intended to commit the murder, the injuries would have been graver. He also placed reliance on the following authorities: M. S. Jalil v.
18. State (PLD 1969 SC 552); Mst.I Shaiqan v. Hashmat A1i and another (1972 SC MR 682) and Khan alias Khan Muhammad v. State (Confirmation Case No. 29/79/Cr. A. No. 74(79 of Sind High Court decided on 1st September, 1980).
19. In the case of M. A. Jalil, the observations a the Supreme Court relevant to the learned counsel's arguments may be reproduced as under :--- "There is no evidence to, show under what circumstances violence was committed on the deceased inside his bedroom and by whom. It might be that on the deceased's remonstration against his immediate evidence the appellant himself or one or more of his com--panions, at his instance, caught hold of the deceased by his neck with a strong grip in order to turn him out of the house by force and that the deceased having resisted, the fatal injuries were caused to him. This was the most likely thing that could have happened inside the deceased's bedroom. Having regard to the nature of the activities of the appellant throughout the entire period of his stay at Ghose's Bari up to the time of the' occurrence and the fact that his only object was to oust the deceased from that house, it can be safely said that he or his companions had no intention of causing the death of the deceased, or of causing such bodily injury as was likely to cause his death. At the most, the violence com--mitted on the deceased, whoever committed it, was done with knowledge that it was likely to cause his death, but without any intention either to cause death or to cause such bodily injury as was likely to cause death. In this view of the matter,, the offence committed in this case is clearly one falling under Part II 'of section 304 of the Pakistan Penal Code.
20. In the absence of any evidence as to who actually caused the fatal injuries to the deceased, the appellant who shared responsibility for his death is guilty under section 304, Part II read with section 109 of the Pakistan Penal Code, and his conviction is accordingly altered to one under the said section."
21. In the instant case, however, there was sufficient material to establish how the fight ensued and how it culminated in the death of the deceased. P. W. Soomar who .Is an eye-witness to the incident has stated in his evidence :- "In the meantime the present accused came and enquired from deceased as to why he insulted him yesterday night. Deceased Khan Muhammad asked the accused to return his money. There was exchange of abuses amongst them. Both came out of the shop while quarrelling viz. Grappling (Hathapai). Both came adjoining the shop. The accused then took out knife and gave three knife blows on the left side chest of the deceased."
22. The other eye-witness Abdul Ghafoor has described the situation in the following terms :- "On 31st January, 1978 at about 8-00 a. m. I was opening my shop. Deceased Atiq had opened his shop and was sweeping his shop. In the meantime accused carne and told deceased that he has insulted him yesterday. Deceased complained to the accused that he had borrowed Rs. 300 from him and accused is not returning this amount. He further complained that instead of returning the amount he is abusing him. Then both grappled. While grappling both came near the shop of Noor Bhai Panwala. Accused took out knife and gave repeated three blows near the heart."
23. The third eye-witness Haji Yaqoob while corroborating the other eye--witnesses has stated :- "On 31st January, 1978 at about 8-30 or 8-45 a.m. I was present in my shop. In my presence accused Amir came to the shop of deceased Khan Muhammad alias Atiq and asked him as to why the deceased had disgraced him yesterday. Deceased asked accused to give him Rs. 300 and thereafter there is no dispute between them. They exchanged hot words and started grappling.
24. Both came near the shop of Noor Bhai Panshop while grappling. Accused Amir then took out knife and gave three knife blows on the chest of deceased."
25. As pointed out above the evidence of these witnesses stands, absolutely unshaken. Their presence at wardat was beyond any doubt. They had no motive to falsely implicate the deceased.
26. From their evidence, unlike the reported case, the origin of the fight is clearly established. It is also proved from mouth of these witnesses that the accused and not the deceased was responsible for causing pro--vocation by uttering abuses. The witnesses have also proved by stating in their evidence that it was accused who committed aggression by attacking the deceased with knife. As stated above, the complainant has deposed with regard to the scuffle that had taken place between the deceased and C the accused a day before the incident. It appears that accused felt so humiliated by the said quarrel that on the next day morning when shop had hardly opened and the deceased was busy cleaning his shop, he. Directly broke into deceased's shop and questioned him as to why he had insulted him on the previous day. There is nothing to suggest that he had any other business to be at wardat. The knife that he used in cousin injuries to the deceased was already with him and had obviously been brought by him for the purpose. All the three injuries were seated at the chest which is the vital part of the body. The learned counsel for the appellant however contended that the dimensions of the injuries are indica--tive of the fact that the knife was of very small size and may be it was a penknife. He therefore argued that the appellant could not be attributed the intention of committing the murder with such knife. We are not impressed by this argument. The knife is not before us as the same was not recovered. It is therefore difficult to say about its size. We cannot base our findings in this regard merely on surmises. The fact remains that the appellant attacked the deceased with sharp cutting weapon such as knife and inflicted injuries on a very delicate part of the deceased's body namely, left side chest. According to the medical evidence the injury No. 2 was sufficient in ordinary course of nature to cause death. I. Thus if the act of accused is not covered by first t-1o clauses of section 300, P. P. C., it definitely falls within clauses thirdly and fourthly thereof. They read as under :- "S. 300 2ndly 3rdly----If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 4thly----If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to, cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
27. For above reasons, we are of the view that the case of the appellant is not one of grave and sudden provocation or that of sudden fight. Accordingly it is distinguishable from the reported case, in which premedi--tation was lacking. The unreported case of Khan alias Khan Muhammad is also on the same point that there was no premeditation on the part of the accused and as such it does not advance the case of the appellant--- The third case cited by the learned counsel is not relevant to the point under consideration.
28. After giving due thought to the material placed before us and the arguments addressed at bar we have come to the conclusion that with a view to avenge the insult that the appellant had suffered one day prior to the incident, he went fully prepared by taking knife with him and caused knife injuries to the deceased of which one was sufficient in ordinary course of nature to cause death and which the appellant knew that were so, imminently dangerous that they must, in all probability cause death. F Therefore the offence committed by the appellant falls under section 302, P. P. C. We are in agreement with learned trial court that there are n extenuating circumstances which call for lesser sentence. As has been explained above the learned counsel for the appellant has not been able to convince us that this is not a case of premeditation. Accordingly w dismiss the appeal and maintain the conviction and sentence passed by the learned trial Court. The sentence of death awarded to the appellant is hereby confirmed.