' MUNAWAR ALI KHAN, J.-This appeal arose from the murder of Khamiso Lohar, resident of Deh Fateh Khan, Taluka Shah Bandar, District Thatta. The prosecution, case briefly is that 3/4 days prior to the occurrence which took place on 1-5-1982, accused Allah Warayo approached the deceased Khamiso who was doing the work of blacksmith, for repair of his spade. The deceased made the necessary repairs for Rs, 12 which amount the accused promised to pay later on as he had no money at that time.
' On the day of occurrence at about 7-30 p. m. The deceased accompanied by his cousin Muhammad went to Allah Warayo for collecting the repair charges from him. Allah Warayo who met them at the `Otaq' of Ghulam Mustafa Panjabi however, refused to make the payment. On deceased's insistence for the payment the accused uttered abusive words to which the deceased and his cousin took a serious exception. Thereupon the accused took out a dagger from folds of his `Shalwar' and inflicted injuries to both, the deceased and his cousin. They raised cries which attracted Ismail Shah and Natho Zangejo. On seeing them the accused took to his heels. Ismail Shah and Natho brought the deceased and his cousin to their home where complainant related the facts to his father Maule Dino who took the injured persons to the Police Outpost Qadir Dino Shah about 14 miles from the place of occurrence where F. I. R. Was lodged by the deceased. The entry made in the `Roznamcha' in the Police Outpost was subsequently transferred to Police Station Ladyoon where formal F. I. R. Was registered in the 154, Cr. P. C. Book on the basis of the said entry.
' Sahibdino (P. W. 8) who was Head Constable at the Police Outpost recorded the F. I. R. At 12-45 a. m. On the next day of occurrence i. e. 2-5-1982. As stated above he forwarded the entry of the Roznamcha containing F. I. R. Through P. C. Qasim to Police Station Ladyoon for further action. He prepared memo. Of injuries (Exh. 14) noticed by him on the persons of the deceased Khamiso and injured Muhammad in presence of Mashirs Muhammad Hassan and Ghulam Asghar Shah.
Muhammad Yousuf S. H.
0. (P. W. 12) after incorporating the entry relating to F. I. R. In 154, Cr. P. C. Book proceeded to make further investigation. First h'e went to Choohar Jamali where he learnt about the death of deceased Khamiso. Meanwhile Sarfaraz Khan A. S. I. (P. W. 7) of Police Outpost Choonar Jamali had, on learning about the death of deceased Khamiso, reached the hospital of Choonar Jamali and prepared Mashirnama (Exh. 15) and Inquest Report (Exh. 16) of the dead body in presence of Mashirs Muhammad Hassan and Ghulam Asghar Shah. He handed over the case papers to S. H.
0. Muhammad Yousuf when the latter had arrived there. The S. H.
0. Recorded statements of Moule Dino and Muhammad Hassan. Thereafter he proceeded to the Wardat and inspected the same in presence of Mashirs Qamar Din and Muhammad Hussain and prepared Mashirnama (Exh. 17). He then recorded statements of Ismail Shah, Natho Zangejo, Yaseen, Abdul Shakoor and Abdul Khaliq. Thereafter he arrested accused Allah Warayo in presence of same Mashirs and prepared Mashirnama (Exh. 18). On interrogation of the accused he led the police to the Otaq where he was living and took out blood-stained dagger from his beddings and produced the same before the S. H.
0. The dagger was secured and sealed by S. H.
0. In presence of the aforesaid Mashirs vide Mashirnama (Exh. 19). Since the accused possessed no license for the dagger, a separate case was registered against him under the Arms Ordinance. On 3-5.1982 the accused was produced before the Mukhtiar, ar and F. C. M., Shah Bandar where his confession was recorded under section 164, Cr. P. C. The S. H.
0. Secured and sealed the clothes of the deceased produced by P. C. Muhammad Siddique and prepared Mashirnama (Exh. 21). On the same day he also examined Muhammad Siddique. He despatched the blood-stained articles to the Chemical Examiner for his report. He has produced Chemical Report (Exh. 38). After completing the remaining investigation he cnallaned the accused in the Court of law.
' Dr. Liaquat Ali (P. W. 9) of Rural Health Centre, Choohar Jamali examined deceased Khamiso when he was still alive. He found one stab wound over left side of his chest below nipple laterally between 8th and 9tn ribs: 25 mm x 10 mm x 100 mm. As the deceased was in shock and his condition was serious, the said doctor referred him to Civil Hospital, Hyderabad for further treatment. However, on his way to the hospital the deceased breathed his last. Therefore he was brought back to the same doctor for autopsy. On external examination of the dead body, the doctor came across the same injury referred to above. However, on internal examination he found that spleen of the deceased was ruptured as a result of the aforesaid external injury. The doctor was of the opinion that the death of the deceased was caused by shock and bleeding resulting from the above injury. The said injury in his opinion was caused with sharp cutting weapon such as dagger or knife.
' The same doctor also examined injured Muhammad and found one stab wound on left side of his chest 90 mm below left nipple between 7th and 8th ribs: 10 mm x 5 mm x 50 mm. According to the doctor this injury was caused with sharp cutting weapon such as dagger or knife. As his condition was also serious, he was referred to Civil Hospital, Thatta for X-ray and further treatment. There is no dispute about deceased Khamiso having died of the injury found on his person. Similarly it is also not disputed that Muhammad had stab wound on his chest.
' The material question to be answered is whether accused Allah Warayo had caused the injuries to the deceased and his cousin Muhammad. On this point the prosecution case rests on: ocular evidence, dying declaration, recovery of blood-stained dagger, motive and judicial confession of the accused: ' The eye-evidence is furnished by Muhammad (P. W. 1), Ismail Shah (P. W. 2) and Natho (P. W. 3).
Muhammad is cousin of the deceased. His presence at the Vardat at the time of occurrence cannot be disputed in view of the stab wound discovered on his person in course of his medical examination. According to him he accompanied deceased Khamiso, on latter's request, to recover Rs, 12 from the accused. They met him at the Otaq of the Punjabi where the accused was residing.
His statement shows that when the deceased demanded his dues from the accused, the latter refused to make the payment. This witness further states that after exchange of hot words which followed the accused's refusal, the accused took out a dagger from folds of his Shaiwar and stabbed the deceased on his abdomen. As Muhammad intervened and tried to save the deceased, he too was not spared by the accused who caused him stab wound on his chest. It appears from his evidence that Isma il Shah and Natho witnessed the incident right from its commencement.
' According to him on arrival of other persons, the accused fled away. Muhammad finds full support from Ismail Shah (P. W. 2) and Natho (P. W. 3). According to Ismail Shah he was present in the Otaq where the deceased demanded his dues from the accused in presence of Muhammad. He connrms that the accused refused to make the payment whereupon the exchange of abuses took place between the parties. He says it was the accused who first uttered the abuse which was also returned by the deceased. Ismail Shah also saw the accused taking out dagger from the folds of his Shaiwar and stabbing both the deceased and Muhammad with the same. According to him Natho was attracted on commotion. Natho has also stated that he went to the spot on hearing commotion. However, be claims to have heard the accused telling the deceased that he would set him right. He also claims to have witnessed the actual stabbing of the deceased and Muhammad at the hands of the accused. Both Ismail Shah and Natho are independent witnesses. All that accused has stated in his statement under section 342, Cr. P. C. As regards the witnesses is that they are interested and inimical to him. Elaborating his statement, further he has alleged enmity only against Mashir Muhammad Hassan who according to him had evil eye on the lands of his cousin and wanted in buy the same. His statement does not show that above witnesses are in any way connected with Muhammad Hassan nor does it show that they have been prompted by said Muhammad Hassan to give false evidence against him. In absence of any material B indicating bias or prejudice on the part of Ismail Shah and Natho, their evidence can be safety relied upon. As stated above they have thrown their full weight on side of Muhammad, and have fully corroborated his evidence inasmuch as that the accused caused injuries to him and the deceased.
The next piece of evidence which seeks to link the accused with commission of the murders is dying declaration. It has been proved by Sahibdino (P. W. 8) in the shape of F. I. R. (Exh. 25) which was recorded by him from the dictation of the deceased who was then alive. H. C. Sahibdino has denied having recorded the F. I. R. As per dictation given by Motile Dino or Muhammad Hassan who according to him were sitting C outside the office at the time of recording of the F. I. R. Thus it is established from evidence of H. C. That the F. I. R. Dictated by the deceased was entirely his own version of the occurrence. As no one else was present at the time of its recording, it was obviously free from any extraneous influence. It has come on record that after registration of the F. I. R., the deceased was referred to hospital where his injuries were examined. As the condition of the deceased was serious, he was forwarded to Hyderabad Hospital for better treatment but on his way to the said hospital, he expired. So the deceased gave the dying statement a few hours before his demise. Such statement of the deceased is invariably accepted as true one, particularly when it is uninfluenced by extraneous forces. In the instant case it is not shown that the deceased's dying statement in the form of F. I. R. Suffered from any adulteration, rendering it unacceptable. In these circumstances we place full reliance on the dying declaration in which the deceased has implicated the accused by stating that he was the author of his injury and the injury of his cousin Muhammad. It is also stated by the deceased in his dying statement, that Ismail Shah and Natho were eye-witnesses to the occurrence beside his cousin Muhammad.
' As far recovery of blood-stained dagger the prosecution have relied upon the evidence of Mashir Muhammad Hassan (P. W. 5) and S. H.
0. Muhammad Yousif (P. W. 12). According to the S. H. O. He arrested the accused in presence of Mashirs Muhammad Hussain and Qamaruddin. He states that following the accused's interrogation, he led the police party to the Otaq where he was living and took out a blood-stained dagger from the beddings and produced the same before him. The S. H.
0. Secured and sealed the dagger in presence of aforesaid Mashirs. He is corroborated by Mashir Muhammad Hassan who confirms that arrest of the accused and recovery of dagger from his possession were made in his presence. Although questions were put to Mashir Muhammad Hussain in cross-examination in an attempt to show that he has falsely implicated the accused, he categorically denied allegations of enmity with Muhammad Hassan of whom the accused claims to be cousin and Hari. It was denied by the Mashir that he ever pressed the said Muhammad Hassan through the accused for sale of his lands to him. Even otherwise above Mashir is not the only witness on the point of recovery. He is supported by S. H.
0. Muhammad Yousaf who has obviously no motive to falsely implicate the accused. We are therefore convinced that dagger was recovered from possession of the accused. F It was subsequently sent to the chemical examiner. The chemical report (Exh. 38) which has gone unchallenged clearly shows that the dagger was stained with human blood. Thus the recovery of blood-stained dagger from accused's possession lends further support to the prosecution case as to the implication of the accused.
' So far motive is concerned, it is stated in the F. I. R. Which is the earliest version of the incident and which has been used as dying declaration that 3/4 days prior to the occurrence the accused had got his spade repaired from the deceased for Rs, 12 and on the day of incident the deceased alongwith his cousin Muhammad went to the accused to collect his dues from him. The accused however refused to make the payment whereupon exchange of hot words followed between the deceased and the accused and that the latter took out dagger from folds of his Shaiwar and inflicted injuries to both the deceased and his cousin Muhammad. This story of motive also finds mention in the evidence of Munammad. In this way the evidence of motive also seeks to connect the accused with 6 commission of the crime.
Last piece of evidence produced by the prosecution is judicial confession of accused (Exh. 33). It was recorded by Mr. Gobindram (P. W. 10), Mukhtiarkar and F. C. M., Shah Bundar. The learned trial Judge however excluded the confession from consideration, as according to him precau-H tions necessary for recording of the confession were not taken by the recording Magistrate. We see no reason to take a different view on the question of evidentiary value of the accused's confessional statement. Moreoser the said statement is not confession in strict sense of the term. It is exculpatory in nature. No doubt the accused has admitted having caused injuries to Khamiso and Muhammad but not in the circumstances narrated in the prosecution version of the incident.
According to the accused, he made use of the dagger only in his self-defence after he was abused and insulted by the other side (i. e. Muhammad and deceased) who also hit him with brick bats. For these reasons the confession of th accused has been rightly kept out of consideration.
In view of the overwhelming evidence discussed above we have come to an irresistible conclusion that fatal blow from dagger which culminated in the death of the deceased Khamiso was dealt by the accused and1 the dagger injury found on the person of Muhammad was also caused by him.
However, the learned counsel for the appellant realizing that the accused could not escape the liability of having caused the said injuries, attempted to impress us that he caused those injuries in his self-defence. When it was pointed out to the learned counsel that the accused has raised no such plea at any stage of the case, he referred us to judicial confession of the accused wherein though he has admitted having caused injuries to deceased Khamiso and Muhammad but has explained that he had done so only after he was abused and insulted and hit by brickbats by the deceased's side. As has been stated above the judicial confession was not taken into consideration against the accused. In other words it was not used as confession on the part of the accused. Of course, the accused's statement recorded under section 164, Cr. P. C., if not used as confession, can be used as his admission. But in the instant case the accused has made a categorical denial of having made such statement. The question is if the accused can be permitted to use such statement which he has himself refused to own. Surely he cannot be allowed to blow hot and cold in the same breath. On one hand he has denied having made ti,e statement and on the other hand he wants to use that very statement in support of his plea of right of private defence. Such self- contradicting stand taken by the accused will not be permissible.
' As a last resort to save the accused from gallows, his learned counsel urged for reduction in sentence awarded to the accused. In support of that argument the learned counsel invited our attention to the ocular evidence which, according to him. Shows that exchange of hot words and abuses between the accused and the deceased had taken place before the accused had caused injuries to the deceased and his cousin Muhammad. It was further submitted by the learned counsel that had the accused intended to kill the deceased he would not have stopped at causing of one injury. According to him the presence of a single injury each on person of deceased and Muhammad was indicative of the accused's intention which could never be to take their lives. In support of his submissions the learned counsel referred to the case Aziz Ahmed v. The State (1), in which the accused after killing his wife and his sister-in-law went and lodged F. I. R. He stated in F. I.
R.
"Since this morning my wife and my sister-in-law had been taunting me and abusing me and told me that I was impotent and should sit wearing bangles, whereupon I lost my temper." It was held: "In this view of the matter, the appellant can rely upon the F. I. R in support of his contention that he acted under impulse. We would, in the circumstances of the present case reduce the sentence of the appellant to transportation for life."
' The passage from the evidence of Muhammad relevant for appreciate PLD 1960 Kar. 272 ing the argument of the learned counsel for the appellant as regards reduction in sentence may be reproduced with advantage as under:-"When Kamiso demanded the money due from accused, who refused to make the payment and after exchange of hot words, accused Allah Warrayo took out a dagger from the folds of his Shalwar and stabbed Khamiso on left side of the abdomen."
Like Muhammad, other two eye-witnesses Ismail Shah and Natho have also mentioned about exchange of abuses between the accused and deceased prior to causing of injury to the latter by the former. But according to them the accused was first to utter an abuse. In any case the accused admittedly resorted to stabbing after he was abused, no matter if he was abused before or after he had uttered the abuse. Furthermore the argument of the learned counsel for the appellant that in view of single injury caused by him to the deceased, he cannot be saddled with intention to kill the deceased is also not without force. It appears to us that accused inflicted solitary injury to the deceased obviously in the heat of moment following the exchange of abuses between the two.
Keeping the above circumstances in view, we hold that sentence of life imprisonment would meet the ends of justice. Accordingly death sentence is converted into sentence life imprisonment. In addition to lite imprisonment we would like to impose upon the accused fine of Rs, 5,000, or in default R. I. For one year. We direct that fine, if realized will be paid to the heirs of the deceased.
Subject to above modification in the sentence the appeal is dismissed. In consequence of the change in the sentence, the reference for conurbation of death sentence is rejected. We further direct that the accused will be given the benefit of his detention as under-trial prisoner under section 382-B Cr. P. C.