' ZAPPAR HUSSAIN MIRZA, J.-This is an appeal as of right from a judgment and order passed by a Division Bench of the High Court of Sind, Karachi whereby the acquittal of the appellant from a charge under section 302 of the Pakistan Penal Code was set aside and he was convicted under the same section and sentenced to imprisonment for life. He was further sentenced to pay a 'fine of Rs, 10,000 or in default to suffer rigorous imprisonment for six months.
2. The occurrence in this case took place on 9-6.1972 at about 1-45 p.m. In the Verandah of Chakiwara Police Station, Karachi. The case of the prosecution as stated in the F. I. R. Lodged by Anisur Rebman S. H. O. Kalakot Police Station on behalf of the State, was that at about 12-55 p.m: Mr. Moosa Ibrahim, C. M.
0., informed from the Civil Hospital, Karachi that Khan Bahadur son of Lal Khan had been brought to the hospital alongwith Saheb Khan, in a serious injured condition. After entering the information in the daily diary Mr. Shamim Siddiqui S.4. Went to the Civil Hospital. In the meantime at 1-30 p.m.
Appellant All Khan alongwith Muhammad Khan, Gulrang Khan, and Mir Abdullah also came to make a report against Khan Bahadur. While Anisur Rehman, S. H.
0. Was busy in conversation with them. Afzal Khan deceased alongwith Lal Khan (P. W.) and Shamsher Khan also arrived from the Civil Hospital. As the latter were talking about injured Khan Bahadur, the appellant suddenly took out a big fish-shaped knife from the folds of his Shalwar and assaulted Afzal Khan deceased. He inflicted a deep injury with the knife on the abdomen of AfzalKhan deceased as a result of which he was knocked down on the ground. The appellant then made a second attempt which hit Gulrang in the stomach slightly. After this both parties grappled with each other but in the meantime the S. H.
0. Over powered the appellant alongwith his knife. Ashiq Hussain Constable (P. W.) alongwith other constables and A. S.-I. Muhammad Younus (P. W.) overpowered the rest of the combatants. Afzal Khan deceased was sent to the Civil Hospital in an injured condition in a taxi alongwith Lal Khan and another but breathed his last on the way and his dead body was received by Dr. Muhammad Umer.
3. 'According to Dr. Muhammad Umer who carried out the post-mortem examination of the deceased, he had received one incised wound in the abdomen 4' x i" X cavity below the ribs which had cut about f of costal cartilage. This injury had caused internal damage by cutting deep into the liver.
4. The occurrence as already stated had taken place in the Verandah of Chakiwara Police Station.
It may, however, be stated that Chakiwara Police Station as well as Kalakot Police Station are situated in different portions of the same building and the building itself is situated within the jurisdiction of Chakiwara Police Station. Complainant Anisur Rehman was at the relevant time S. H.
0 Kalakot Police Station and Muhammad Younus A. S.-I. (P. W.) was Incharge of the Chakiwara Police Station at that time. It was, therefore, that after seizing the knife and capturing the appellant at the spot he forwarded the report in writing which was received by the latter and recorded within 15 minutes at 1-45 p.m. The investigation was conducted by Khalid Anwar, S. H. Q. Chakiwara Police Station who secured blood on a piece of cloth from the ground at the scene of occurrence and also seized the knife received by him in the seized condition. This knife was stained with blood which was found by the Chemical Analyser to be of human origin. The appellant was tried by the learned IIIrd Additional Sessions Judge, Karachi.
5. At the trial the prosecution examined Anisur Rehman, Lal Khan, Muhammad Younus, Zakir, Hussain, Sher Samad and Ashiq Hussain by way of ocular testimony in support of the charge.
Reliance was also placed on the circumstantial evidence consisting of recovery of the knife by Anisur Rehman from the appellant and his having been caught red-handed at the scene of occurrence.
6. The appellant in his statement under section 342, Cr. P. C. Denied having caused knife injury to the deceased and also that he was apprehended alongwith crime weapon at the scene. He stated that he was innocent and had been falsely involved in the case due to the enmity between the parties. He further produced the certified copy of the complaint filed by Gulrang Khan injured against Lal Khan (P. W.) and other under section 307/324/ 323/34 of the Pakistan Penal Code, which gives the version of the appellant side regarding the occurrence. He also produced a certified copy of his own direct complaint against Lal Khan and others. The appellant, however, appeared as a witness in his own defence and also examined Muhammad Khan, Fahimullah, Khushdil Khan and the evidence of Dr. Ali Raza Khan as well as Gulrang Khan who were both not available and had been examined at the inquiry stage was brought on record under section 33 of the Evidence Act. In his statement on oath in his own defence the version of the appellant was that on 9-6-1962 he was sitting in the house of his brother-in-law Gulrang Khan when at about 1-15 p.m. His cousin Muhammad Khan son of floor Khan came in an injured condition bleeding from injuries on his body and told him that he had been injured by Lal Khan, Khan Bahadur and others. He then carried injured Muhammad Khan with the help of two others in a Buggy to Kalakot Police Station. At the police station they met Anisur Rehman S. H.
0. And while the S. H.
0. Was making inquiries from them, Lal Khan (P. W.), Afzal Khan deceased, Saheb Khan, Shah Mir Khan and Sher Samad (P. W.) came at the police station and started abusing them, protesting why the appellant had come to lodge report first. Then Lal Khan and others came forward to beat injured Muhammad Khan and as he was attempting to intervene to save Muhammad Khan, Sher Samad (P. W.) stabbed the appellant on the buttock. Thereafter Afzal Khan gave injuries with a knife on the appellant's stomach and Lal Khan gave him Lathi blew on the left hand thumb. The other persons from the complainant side also gave him Lathi blows. Gulrang also received the knife injury at the hands of Sher Samad on his arm. Deceased Afzal Khan is said to have given knife injury on his stomach. Thereafter as Afzal Khan wanted to inflict another blow to Gulrang the latter caught hold of his hand "and Afzal Khan tried to force the hand with the result that the knife struck in his stomach". Afzal Khan fell down on the ground as a result of the injury. The appellant was made to sit at the police station and after consultation the police officers put him under arrest.
7. At the trial the prosecution case mainly rested on the ocular testimony furnished by six witnesses, namely, Anisur Rehman S. H.
0. Kalakot Police Station (complainant), Muhammad Younus A. S.-I. Chakiwara Police Station, Ashiq Hussain H. C. Kalakot Police Station, Zakir Hussain A. S.4., Chakiwara Police Station, Lal Khan brother of the deceased and Sher Samad a relation of the deceased. The knife alleged to have been secured when the appellant was overpowered and captured at the scene seems to have been lost during the trial and was, therefore. Not produced in evidence. The trial Court, on examining the evidence of these witnesses came to the conclusion that the witnesses produced by the prosecution did not come out with the real circumstances of the occurrence. This conclusion was mainly based upon the ground that they had suppressed the injuries received by the appellant and Gulrang. The injuries sustained by the appellant were proved in the evidence by means of the statement of Dr. All Raza brought on the record of this case as already stated under section 33 of the Evidence Act. Dr. Ali Raza had produced on record the injuries certificate issued by his predecessor Dr. Muhammad Umer Khan who was a jail doctor at the relevant time. According to this certificate the appellant was found to have received one incised injury xi' on the right buttock, painful swelling wound on the thumb which seemed to be dislocated and an abrasion iff X r on back of forearm. Sahibul Hassan (D. W.) Record Clerk of the Civil Hospital produced the X-Ray - report- of the appellant - which showed- the-dislocation of his thumb endorsed by Dr. S. H. Qureshi who had left Pakistan. In the statement of Gulrang recorded during the committal proceedings and brought on the record of this case, he had disclosed that Afzal Khan deceased had given him a knife blo on the left side of the stomach and another by Sher Samad (P. W.). Further, injuries were also inflicted to him by Sher Samad and others. He has further stated that he was removed to the Civil Hospital and was subsequently operated upon twice and remained there for 22 days. In addition it is mentioned in the judgment of the trial Court that the prosecution had produced the medical certificate of Gulrang which showed that he had suffered three incised injuries. The statement of Dr. Moosa the then .C. M. O. Civil Hospital, Karachi through Dr. Abdul Sattar Leghari whose statement was brought on record by the defence also supported the fact that Gulrang sustained three incised wounds. The learned trial Court was of the view that the two private witnesses, namely, Lal Khan and Sher Samad were partisan witnesses with a background of strong enmity with the accused side over the murder of Bahaaur Khan who was the son of Lal Khan (P. W.) their evidence was, therefore,. Not reliable without independent corroborarion. As to the remaining four witnesses from the Police Department, although their presence at the scene was natural and could not be denied their version of the occurrence was not found reliable on account of suppression of injuries sustained by appellant and Gulrang. The circumstantial evidence of the recovery was also rejected by the trial Court as the knife was not produced in evidence. Due to the strong enmity between the parties the learned trial Court was also unable to accept the testimony of the defence witnesses as well as of the appellant himself as to their version of the occurrence.
On an overall consideration of the evidence on record the learned trial Court came to the conclusion that the parties being present at the police station at the time of the occurrence when their emotions running high indulged in a free fight in which both sides participated and, therefore, it was not possible to determine as to who was the aggressor. As a result, giving the benefit of doubt to the appellant he was acquitted vide judgment dated 23-11-1981. The State being dissatisfied with the acquittal of the appellant filed an appeal before the Sind High Court which was allowed by the impugned judgment in this appeal dated 6-10-1983 by a Division Bench of the High Court whereby the acquittal of the appellant was set aside, he was convicted under section 302 of the Pakistan Penal Code and was sentenced to life imprisonment, as well as to pay fine of Rs, 10,000 or in default suffer further rigorous imprisonment for six months. The amount of fine if recovered was ordered to be paid to the heirs of Afzal Khan deceased as compensation.
8. The learned Judges of the Division Bench in upsetting the judgment of the trial Court, held that the four police officers wbo appeared as eye-witnesses of the occurrence were natural witnesses and their presence could not be denied. Reliance was placed upon the testimony of these four witnesses and it was rurther held that they were corroborated by Lal Khan and Sher Samad (P. Ws.), whose presence was not denied by the defence. According to the view expressed by the learned Judges the trial Court had also not disbelieved the eye-witnesses regarding the main incident in which Afzal Khan deceased was fatally wounded and that Ali Khan appellant was responsible for causing the fatal knife injury. They, however, found that the learned trial Court had fallen into an error by acquitting the appellant notwithstanding its findings that appellant was responsible for inflicting the fatal blow in a free fight between the parties, for, in such a case he would be still liable for his individual act. They even disagreed with the finding of the trial Court that the evidence disclosed a case of free tight. According to their analysis of evidence the parties entangled with each other in a free fight after the appellant bad inflicted the fatal injury upon the deceased and, therefore, the deceased was not injured in a free fight. The learned Judges of the High Court summed up their conclusions as under :- "In the present case the respondent was caught red-handed with crime weapon in daylight within the precincts of a police station. As many as six witnesses includmg four police officials of that P. S. Had witnessed the incident and had supported the prosecution. We are also convinced that the reasons given by the trial Judge for disbelieving these witnesses are of speculative and artificial nature and finding arrived at by him are based on misinterpretation of law and misreading of evidence which has ended in miscarriage of justice.
' Consequently we allow the appeal and set aside the judgment of IIIrd Additional Sessions Judge and find the appellant guilty of offence under section 302, P. P. C. So far as the sentence is concerned, there are mitigating circumstances which do not call for capital sentence. The act of the respondent was not premeditated. He had caused only one knife injury to the deceased and had not acted in a cruel manner. It also appears that the incidents should have preceded by a verbal altercation between the parties, which had led the respondent to make the fatal attack upon Afzal Khan."
9. Mr. Muhammad Hayat Junejo, learned counsel for the appellant did not seriously dispute that the appellant was responsible for inflicting the fatal blow to the deceased. He mainly contended that in arriving at the finding that the appellant was guilty of murder under section 302 of the Pakistan Penal Code, the learned Judges in the High Court have misread the evidence and not appreciated all the circumstances appearing in the evidence. His argument was that the criminal liability of the appellant at the most would fall under Part I of section 304 of the Pakistan Penal Code. According to Mr. Junejo the presence of injuries on the appellant which were totally suppressed by the prosecution witnesses including the so-called independent police witnesses has the effect of falsifying their version and supports the plea of the appellant that the inflicted the sole injury on the deceased in self-defence. The learned Additional Advocate-General who appeared for the State has argued that the circumstances appearing on the record do not make out a case of self- defence. He, however, did not support the conviction of the appellant under section 302 of the Pakistan Penal Code as according to him the appellant is guilty of an offence under section 304, Part I of the Pakistan Penal Code. Mr. Murtaza Hussain, who sought our permission to appear for the complainant which was refused, has addressed us with the consent of the learned counsel for the appellant as amicus curiae. He sought to support the conviction of the appellant under section 302 of the Pakistan Penal Code and argued that the guilt of the appellant has been brought home to him from the following circumstances ; the F. I. R. Was promptly lodged within 15 minutes and contains all the material particulars of the prosecution resulting in the brutal murder of the deceased, the intention of the appellant was clear from the nature and locale of the injury, the defence case was found improbable by the High Court and motive is not a necessary ingredient of the offence of murder. He fully supported the judgment of the High Court.
10. .After going through the evidence we find certain features of this case which support the argument of the learned counsel for the appellant that the present is not a case of premeditated or planned murder. It is in the evidence of the prosecution that on the day of occurrence at about 11-00 a.m. Khan Bahadur who is the son of Lai Khan (P. W.) was allegedly fatally injured by Muhammad Khan cousin of the appellant and had been removed to the Civil Hospital. In this first incident Muhammad Khan also seems to have received injuries in connection with which appellant and his other relations had brought Muhammad Khan to the police station to lodge a report. Lal Khan, deceased Afzal Khan, Sher Samad Khan and others also came at the police station for report regarding the murder of Khan Bahadur. In these circumstances it appears natural that the party of the deceased must have been greatly offended to see that the alleged assailants had already reached the police station to report against them. It also appears natural for them to be outraged by this so-called act of high handedness on their part, and therefore, it was rightly argued that the grudge lay on their side. It was suggested to Anisur Rehman (P. W.) who was working as S. H.
0. Kalakot that on entering the police station Afzal Khan placed his legs on his table and made a grievance that Muhammad Khan and others on the one hand had caused injuries to a member of their party and on the other had reached the police station earlier to lodge the report against him.
He was contradicted with his statement during the committal proceedings to the effect that there was a free fight at the police station between the rival parties. The basis of Anisur Rehman in favour of the complainant party was demostrated by the learned counsel from certain circumstances in his evidence. It was pointed out that in the inquiry Court he had admitted that he had seen the injury on the abdomen of Gulrang after removing his shirt but still this witness asserted in his evidence that the latter sustained a single injury during the occurrence. As a police officer one would expect him to note all the injuries. Further, he admitted that he did not register the F. I. R. Of injurned Muhammad Khan although he was free at 2-00 p.m. And left it to be recorded much later at 4-15 p.m. The injuries sustained by Ali Khan were also not mentioned by this witness although it would be natural for the appellant to point out to him that he had received the same. He did not even send appellant to the Civil Hospital for examination nor did A. S.-I. Do so. The other witnesses from the police department have adopted the same attitude and denied having seen the appellant being injured and having minimised the injuries sustained by Gulrang. Muhammad Younus A. S.-I. Cbakiwara Police Station (P. W.) also admitted that in his previous statement he had stated that there was free fight between both the parties 20 minutes of the incident. In this statement he had taken the absurd position by stating that the free fight between the parties took place after the recording of the F. I. R. Ashiq Hussain (P. W.) who was constable of Kalakot Police Station stated as under : "It is correct that as soon as Afzal Khan came to police station he put his feet on the table of Anisur Rehman and expressed loudly that at one place they had fired at their man and at the same time they had come to police station earlier."
11. Having regard to all the circumstances of the case we feel that it is highly improbable that the appellant would come to the police station with a pre-planned determination to kill the deceased inasmuch as it is not easy for a culprit to commit a heinous crime like murder within the precincts of a police station where it is ordinarily expected that police officers and police force would be present. It seems also likely that the complainant side would be the aggrieved party, as one of them had been subjected to murderous assault, to see that their opposite side had already reached the police station, which is commonly regarded as an advantage in criminal cases. It is also admitted position that Muha nmad Khan son of Noor Khan who belonged to the accused side had sustained injuries and was bleeding. In these circumstances it is natural for the two parties to be highly charged with emotion and excitement. The fact that there are injuries received by two persons from the accused side also shows that the parties attacked each other. The version of the eye-witnesses that Gulrang was accidentally injured by the appellant when he attempted to inflict a second knife blow to the deceased appears to have been falsified by the presence of more than one injury on the former. The version of the appellant that the deceased died by his own hand is also unbelieveable having regard to the gravity of the injury. The over all effect of these surrounding circumstances is that a sudden quarrel seems to have arisen between the parties when they confronted each other at the police station and the single fatal injury was inflicted by the appellant to the deceased without premeditation in the heat of the passion. The High Court has already correctly held that the act of the appellant was not premeditated and that the incident was preceded by a verbal altercation between the parties and that he had not acted in a cruel manner. All these circumstances fit in with the provisions contained in Exception IV of section 30.1 of the Pakistan Penal Code. We accordingly find the appellant guilty of an offence under section 304, Part I of the Pakistan Penal Code and set aside his conviction under section 302 of the Pakistan Penal Code.
12. In the result this appeal is partially allowed and the conviction of the appellant is altered from section 302 of the Pakistan Penal Code to section 304, Part I of the Pakistan Penal Code. The sentence is also reduced to 10 years' rigorous imprisonment and fine of Rs, 10,0,)0 or in default to suffer 3 years' rigorous imprisonment. It is further directed that if the fine is realised, it shall be paid to the heirs of the deceased. The appellant shall also be given the benefit of section 382-B, Cr. P. C.
The appeal is disposed of in these terms.