1. ' MUNAWAR ALI, KHAN, J.---The appellant Abdul Rashid was tried for the murder of Farrukh Saeed alias Shakir. He was convicted under section 302, P P. C. And sentenced to death vide judgment dated 21-1-1985 of the VIII Additional Sessions Judge, Karachi. By the same judgment he was further directed under section 544-A, Cr. P. C. To pay compensation of Rs, 10,000 to the heirs of the deceased or in default suffer R. I. For six months. The appellant preferred the present appeal against his conviction and the trial Court made the reference for confirmation of the death sentence awarded to the appellant.
2. ' After hearing the arguments addressed at the Bar, both the appeal and the reference were disposed of by short order dated 5-8-1985. The death sentence was reduced to imprisonment for life As for compensation payable to the heirs of the deceased, its limit was raised to Rs, 15,000 after giving verbal notice to the learned counsel for the appellant who waived the notice and submitted his arguments on the enhancement of the compensation. The imprisonment of R. I. For six months to be undergone in default of the payment of compensation was however left intact. Subject to the above modification in the sentence as well as in he compensation, the appeal was dismissed.
3. Consequently the reference for confirmation of the death sentence stood rejected. Following are the reasons in support of the short order.
4. ' As disclosed in the F. I. R. The prosecution case is that on 28-12-1977 at 6-30 p.m. The complainant Liaqat Saeed was in his house when his brother Farrukh Saeed arrived in injured condition. He informed his brother that accused Abdul Rashid caused him injuries with `Chhuri' in front of the clinic of Dr. Iqbal. Meanwhile Zulfiqar Alam Zaidi, Intizar Ali, Muhammad Sharif and other people of the Mohalla came there. They too related the same story to the complainant that accused Abdul Rashid had given `Chhuri' blows to the deceased Farrukh Saeed. Without losing any time the complainant with the assistance of Zulfiqar Alam put the deceased in a taxi and rushed him to the Civil Hospital where he succumbed to the injuries. On learning about the occurrence, the S. H.
0. Tajammul Hussain of Brigade Police Station went straight to the hospital where he came to know that the dead body of the deceased was taken away by his relatives to their residence. When he reached there, he learnt that the dead body was sent back to the hospital for post-mortem examination. However, the S. H.
0. Recorded the state nent of the complainant under section 154, Cr. P. C. Which was later incorporated in the register maintained for that purpose by S. I. P. Muhammad Yasin.
5. ' Once again the S. H. O. Dashed to the hospital and in presence of Mashirs Javed Mustafa and Ab id Rauf prepared inquest report (Exh 9-A) and Mashirnama (Exh. 9-B) of the dead body which he entrusted to the P. C. Muhammad Ashraf for post-mortem examination. He returned to the scene of offence and inspected the same in presence of Mashirs Intezar Ali and Waliullah. He secured blood-stained earth from there and sealed the same vide Mashirnama (Exh. 7-A). He then recorded statements of Zulfiqar Alam, Tabir Ahmed, Muhammad Sharif, Shabir Ahmed, Waliullah and Intizar Ali. On 22-1-1978 the S. H.
0. Arrested the accused from the Petrol Pump at Bus Stop of Chowrangi Water Pump, Federal 'B'
6. Area. The Mashirs in whose presence the arrest of the accused was effected were Muhammad Akhtar, Mohsin and Hassan Marghoob vide Mashirnama (Exh. 8-A). On interrogation, the accused volunteered to produce bloodstained clothes. On 28-1-19 /8 he led the police party to the boundary wall of the Blind School near Mazar of Quaid-i-Azam where from the bushes he dug out blood- stained bushirt and patloon wrapped in newspaper. The S. H.
0. Took the same into his possession under Mashirnama (Exh. 6-A). The clothes along with other blood-stained articles were sent to Chemical Examiner. On 2-3-1978 the accused was sent up in Court to take his trial it seems that the deceased was examined by two doctors : first time by Dr. Anwar Ali (P. W. 12) when the deceased was still alive and second time by Dr. Muhammad Rafiq (P.
7. W. 11) who performed the autopsy of the dead body of the deceased. The last mentioned doctor discovered six surface injuries on the dead body from which four injuries were incised wounds located on chest and shoulders and the remaining two were contused wounds on chest and lumber region. In the Doctor's opinion the death was the result of shock and haemorrhage produced by multiple stab wounds caused with sharp-edged weapon like a `Chhuri'. It is not controverted by the accused that the deceased Farrukh Saeed died of the injuries found on his person.
8. ' To prove the complicity of the accused with the commission of the murder of the deceased, the prosecution have placed reliance on ocular evidence, dying declaration, recovery of incriminating articles, motive and abscondence of the accused. Eye-evidence is furnished by Alam Zulficiar, Muhammad Sharif, Intizar Ali and Tahir Ahmed who are the neighbours of the deceased and hence natural witnesses. They all have implicated the accused Abdur Rashid by stating that it was he who had inflicted the Chhuri blows to the deceased Farrukh Saeed. Their evidence is not shattered in any way in cross-examination nor have they any motive to falsely involve the accused. Accordingly we see no reason to disbelieve their testimony.
9. Beside above, complainant Liaquat Saeed and Shabbir Ahmed have deposed with regard to dying declaration. According to them the deceased in their presence had implicated the appellant inasmuch as that the appellant was author of his injuries. In his statement under section 342, Cr. P.
10. C. The accused has merely alleged that the witnesses who have deposed against him are interested and related inter se and were workers of P. P. P Such allegation apart from being vague, cannot be accepted as a ground for a witness to make a false statement. As per statement of the S. H. O. Supported by Mashir Tabir Ahmed the accused had also dug out blood-stained clothes from bushes near the Mazar of Quaid-i-Azam and produced the same before the S. H.
0. The above evidence pieced together brings guilt home to the accused. The four D. Ws. Namely Maqsood Ahmed, Obaidur Rehman, Muhammad Junaid Farooqi and Altaf Ahmed Khan examined by the accused are of no assistance to him as none of them claims to be an eyewitness of the occurrence. Maqsood has merely deposed as to voluntary surrender of the appellant. Messrs Obaidur Rehman and Muhammad Junaid Farooqi have stated that the accused was a P. N. A.
11. Worker and according to Mr. Altaf, Muhammad Akhtar is not residing in his flat. Thus, their evidence is thoroughly useless.
12. ' In view of the above evidence the learned counsel for the appellant did not press appeal on merits.
13. ' The learned counsel for the appellant, however, made a forceful plea for reduction of the sentence and confined his arguments to the said plea. In this connection it was submitted by him that the prosecution have not been able to prove any motive for the accused for perpetrating the crime involving capital punishment. According to him the motive attributed to the accused is preposterous. The learned counsel argued that no reasonable mind will be willing to accept such type of motive as sufficient to prompt the accused to take the life of the deceased. In his opinion, the real motive in the instant case is shrouded in my story. In other words, he stated that it was not known what the immediate cause was for the deceased's murder. To reinforce his arguments he placed reliance on several authorities.
14. ' The first case referred to by him is Ghulam Nazir v. The State (1). In this case the motive advanced for the murder of the deceased lady was that 10/11 years prior to the incident her hand was demanded for marriage with the appellant. However, she was betrothed to some other person 5-6 years later and there was no indication that she had in any manner spurned the appellant. While disbelieving that the deceased was done to death by the appellant for the motive put forth by prosecution, the Supreme Court observed : "It would, therefore, appear that the real motive is shrouded in secrecy. In these circumstances the learned Advocate-General stated that the interests of justice will be sufficiently met if the sentence of death is altered to life imprisonment. We will, therefore, while not disturbing the other sentences alter the death sentence to life imprisonment."
15. ' Another case relied upon by the appellant's counsel is of Ehsan All v. The State (2). In this case the appellant was passing in front of the house of the deceased when he noticed a dog on the path whereupon he remarked : "Hat Muawiya" the deceased and his brother took exception to the remark and exchange of words followed between the parties. There was, however, no evidence to show what words were actually exchanged. The appellant
(1) 1981 SCM R 805 (2) 1983 SCM R 331 went to his house and brought out the licensed gun and fired two shots at the deceased. It was held :- "The suddenness of the affair, the lack of preparation and deliberation, the agitated state of his mind, and absence of malice aforethought are factors which stand out We find that on the facts of the case the appellant's case was one of sentence of life imprisonment."
16. ' In the above-reported case reference was also made to the authority laid down in Sikandar v. The State (1).
17. ' The next case on which reliance has been placed is also of Supreme Court reported as Mubarak All v. The State (2), wherein para. 10 of the High Court judgment reproduced below was approved : "The question of sentence would not bother us anymore ; in that the occurrence had taken place over an altercation the nature of which has not been given, between the deceased and the appellant nor any motive has been advanced for the depict, therefore, mitigating circumstances exist and the learned trial Court has rightly sentenced the appellant and needs no interference by this Court."
18. ' In the case of Vali Muhammad v. Bajoo and others (3), it was held : "The only question which remains for consideration is, that of the sentence to be passed against the respondent, Bajoo. As both the eye-witnesses claimed to have come to the Wardat, after hearing the alarm, as submitted by Mr. Junejo, there is no evidence to show how the occurrence between the respondent and the deceased had begun. Additionally, we would repeat here that we are not impressed by the evidence of motive produced by the prosecution. Accordingly in the circumstances, the prosecution has failed to prove that the occurrence was premeditated murder.
19. As the possibility of a sudden fight cannot be ruled out, we would give this respondent the benefit of the lesser penalty. And further, as the murder was committed before the Law Reforms Ordinance, 1972 the sentence cannot be imprisonment for life, but only transportation for life. Accordingly, we allow the appeal against the respondent Bajoo, only, convict him under section 302. P. P. C. And sentence him to transportation for life."
20. ' The question of awarding lesser sentence also came up for consideration in the recent case of Muhammad Jabal and another v. The State (4), in which it was contended on behalf of the appellants that the motive as set up by prosecution was not proved and the real cause of this occurrence in the circumstances still remained shrouded in mystery. It was further pointed out that the motive for the occurrence was said to be previous quarrel between the appellant and the deceased in which the latter had suffered beating. The alleged quarrel, it was argued, was not enough to provide a motive for commission of an offence in which two persons were murdered. It was held that the above contention was not without force and the sentence of death was altered to life imprisonment.
21. ' On the other hand, the learned counsel for the complainant referred to the following two cases to show that in the circumstances of the instant case the reduction in sentence was not called for : "(1) Mansab Khan v. The State 1982 SCM R 714.
(1) p L D 1966 SC 555 (2)1980 S CM R 176
(3) 1978 SCM R 257 (4) 1984 SCM R 1184
(2) Mansab Khan v. The State 1982 SCMR 722.
22. ' In the instant case the motive put forth by the prosecution is that a year prior to the occurrence the accused Abdul Rashid had stabbed one Asad Hussain Zaidi, who being friend of deceased Farrukh Saeed was removed to the hospital by the latter and on this account the accused nursed grudge against the deceased. On the point of motive the complainant Liaquat Saeed has stated as follows "The relations between accused Abdul Rashid and deceased Farrukh Saeed were strained. About one year prior to the incident the accused Abdul Rashid had stabbed one Asad Hussain Zaidi who was friend of my brother Farrukh Saeed. My brother Farrukh Saeed had taken injured Asad to hospital. It is, therefore, there was enmity between my brother Farrukh Saeed and accused Abdul Rashid."
23. ' However, in course of his cross-examination it is admitted by the complainant that he had no personal knowledge of Asad Zaidi having been stabbed by the accused nor of his removal to the hospital by his deceased brother. According to him he learnt that story from Farrukh Saeed, his deceased brother. His evidence does not show that he was further informed by his deceased brother that the accused had expressed his anger or had held out any threat to him. Thus, it was clearly the complainant's own conjecture that the accused might have committed the deceased's murder on account of aforesaid reason. But this was incredible on face of it. It was absurd to think that the deceased's act of taking Asad Zaidi to hospital who was allegedly stabbed by the accused could provide any motive to the latter to take the life of the deceased. It was too weak a motive for perpetrating such a heinous crime. Even if the above act of the deceased was sufficient for the accused to retaliate, he would not take a year to punish the deceased. It an admitted position that both accused and deceased were residents of the same Mohalla and were close neighbours.
24. Placed in such an advantageous position the accused would not wait for such a long period and allow the deceased to move freely, if he really nursed grudge against him and wanted to take revenge from the deceased. There is nothing to show that during the intervening period of one year the accused had no opportunity to teach the deceased a lesson for his act of providing assistance to Asad Zaidi. If he was so bold and brave that he did not hesitate to inflict injuries to the deceased in a thickly populated locality, nothing prevented him from showing such performance earlier, soon after the deceased had irritated him by taking Asai Zaidi to the hospital, when the accused's anger was still fresh and his temper was high. The time is a great healer. By passage of time passions subside and one gets reconciled to hi surroundings. The aforesaid grudge allegedly nursed by the accused was not so grave that it would linger in his mind for a year or so. Moreover, it was not of such magnitude that the accused would go to the length of taking the deceased's life.
25. For above reason we are not satisfied that the alleged motive ever existed. Even if it did, we are of the view that it could never be the reason for committing heinous crime of the murder by the accused. Thus the real cause which spurred the accused to kill the deceased was a shrouded mystery. Accordingly in view of the aforementioned authorities relied upon by the learned counsel for the appellant, the appellant was entitled to lesser punishment. We have given our due thought to the cases referred to by the learned counsel for the complainant. In our view they are not applicable in the instant case Obviously the facts of these cases are distinguishable from the facts of the instant case as in the reported cases owing to accused's continued possession of the disputed land, the enmity between the parties persisted and hence provided sufficient motive for commission of the offence.
26. In view of above discussion, the death sentence was converted into the sentence of life imprisonment. Consequently we thought it fit to enhance the quantum of compensation. The learned counsel for the appellant was therefore, put on notice. He, however, waived the notice and did not seriously contest the raising of the limit of the condensation. Accordingly as stated above the amount of compensation was increased leaving intact the sentence of imprisonment to be suffered in default thereof.