MUHAMMAD HAYAT JUNEJO, J.---- Appellant Ghulam Akbar alias Chappoo son of Shah Jehan alias Shabban aged 19 years has been convicted by Mr. Hyder Shah M. Syed, Additional Sessions Judge, Karachi under section 302, P. P. C. And sentenced to death for the murder of deceased Abdul Majid aged 25 years. He has preferred this appeal ; while the learned Additional Session Judge has referred to his case to us under section 374, Cr. P. C. For confirmation of the sentence of death. We shall dispose of both the appeal as well as the reference by this judgment.
2. The prosecution case in brief was that on 15-7-1967 at about I1-30 a.m. Deceased Abdul Majid had come to the hotel (cabin) of P. W. Mahmood to purchase a "Pan". The appellant also came there and asked for water. Abdul Majid replied that he should help himself. On this there was exchange of hot words between them but the quarrel was averted on the intervention of Abdul Ghani, elder brother of the appellant. Deceased Abdul Majid went and sat on a cot lying in front of the hotel, while the appellant went to his house. The appellant, however, returned after five minutes with an open knife in his hand. After abusing the deceased the appellant attacked him with his knife, as a result of which the deceased received a fatal injury on his chest. The appellant, however, succeeded in running away. Apart from P. W. Mahmood the incident was witnessed by P. W.
Muhammad Anwar, who was sitting with the deceased on the same cot. P. W. Hussain, cousin of the deceased who works in the office of Anjuman Ittehad-e-Ghariban situated about 60 paces away from the scene of offence also came there on commotion and witnessed the occurrence. P.
Ws. Noor Muhammad and Abdul Wahid arrived a little later and saw the appellant running away with a knife in his hand. Several other persons also collected at the spot. In the meantime P. W.
Muhammad Anwar rushed to the Khadda Police Station situated 4 furlongs away from the scene of occurrence where he lodged his First Information Report, Exh. 5, within 45 minutes of the incident at 12-15 p.m.
3. P. W. Dost Muhammad, A. S. I. P. Khadda Police Station recorded this First Information Report, while S. H. O. Inayat A.I Cheema, who died before he could be examined as a witness in this case, proceeded to the spot and conducted the investigations. He recorded the statements of all the five witnesses mentioned above during the course of the day. The appellant was arrested a few hours after the occurrence from his house, when the police secured blood-stained clothes, namely, a shirt article `B', a shalwar article `C' and a banyan article `D' from his person in presence of Mashir, Fakir Muhammad P. W. 9, vide memo. Of recovery, Exh.
17. The appellant, there--after took the police and the Mashirs to an abandoned house and informed them that he had thrown the knife in that house. He pointed out the knife Article `A', which was secured vide memo. Of recovery, Exh. 23 in presence of Mashir Muhammad Ahmed, P. W.
15. These articles were sealed at the spot and later sent to the Chemical Examiner, whose report Exh. 23-A, showed that all the articles were stained with human blood.
4. The appellant was examined the same day by Dr. Nuzhat Ara Aziz, C. M. O., Civil Hospital, Karachi, who found the following injuries on his person :-
(1) Incised wound back of left thigh 1" x --" x skin deep.
(2) Incised wound right thigh front and lower part 1'' x --'' x muscle deep.
(3) Incised wound back of right hand --'' x --" x skin deep.
(4) Incised wound on right index finger 1" x 1/6" x skin deep.
(5) Incised wound on right index finger ventral aspect --" x --'' x skin deep.
All the injuries were simple in nature. In her cross-examination the doctor expressed the opinion that these injuries could not be self-inflicted. After the usual investigations were concluded the appellant was challaned.
5. The autopsy on the dead body of deceased Abdul Majid was conducted by Dr. Abdul Majeed Khan P. W. 14, Medical Officer Incharge Police Hospital, Karachi, who found the following solitary injury on his person An incised wound ab out 1--" x --" x chest deep on the left fifth inter-costal space2" lateral and below the left nipple on the medial axillary line.
This injury was sufficient in the ordinary course of nature to cause death and according to the opinion of the doctor it could be caused by a knife such as Article `A'.
5. The defence of the appellant was one of denial. In the Court of the committing Magistrate he stated that the witnesses were "men of the complainant" and had "given evidence at the instance of the police". At the trial, however, the appellant alleged enmity with the witnesses but the nature thereof was not disclosed. To quote his exact words ---The witnesses have enmity with me and are deposing at the instance of police. On the day of incident I was beaten by six or eight persons including the deceased. They were Majid deceased, P.
W. Anwar, and others. I raised cries. They had given me stabbing wounds 6-7 in number. This beating had taken place at 11 a.m. In the morning on the day of incident. On my alarm many persons had gathered there. They saved me. The public had attacked Abdul Majid and his party. I then went away to my house. I am innocent.--- No witness was examined in defence.
6. The prosecution case against the appellant rests mainly on the ocular evidence of P. W. 1 Muhammad Anwar, P. W. 2 Mahmood and Hussain P. W. 3, corroborated by the evidence of P. Ws.
Noor Muhammad and Abdul Wahid, who came to the scene on commotion and found the appellant running away with his knife. All these witnesses are residents of the locality and their presence can hardly be disputed. The incident has taken place right in front of the cabin of P. W.
Mahmood at 11-30 a.m. When he is expected to be working there. He is a completely disinterested and independent witness, who is not in any manner connected with the deceased; nor has he any reason to falsely implicate the appellant. He was subjected to a lengthy cross--examination but barring a minor contradiction as to the size of the knife carried by the appellant, nothing was brought out in his cross-examination to discredit his testimony in the slightest degree. The evidence of this witness was fully relied upon by the trial Court and Mr. G. M. Shah, the learned counsel for the appellant, has not been able to advance any reason as to why we should take a contrary view on this point. We accordingly, consider that the evidence of this witness alone is sufficient for sustaining the conviction of the appellant.
7. The learned counsel for the appellant has assailed the evidence of other prosecution witnesses on the ground that P. W. Muhammad Anwar is a friend of the deceased while P. Ws. Hussain, Noor Muhammad and Abdul Wahid are his relations. According to the learned counsel they are interested witnesses because of this relationship with the deceased, and, therefore, they should not be believed. This argument does not appeal to us. As observed by their Lordships of the Supreme Court time and again, an interested witness is one who has a motive for falsely implicating an accused person and every person who is a relation or friend of the deceased cannot be characterized as such, merely because of such relationship.
8. A witness is normally considered to be independent unless he or she springs from sources which are likely to be tained and that usually means that unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last person to screen the real culprit and falsely implicate an innocent person; and hence, the mere fact of relationship, far from being a founda--petition for criticism of the evidence, is often a sure guarantee of truth.
9. In this case although P. W. Muhammad Anwar is a friend of the deceased and P. Ws. Hassan, Noor Muhammad and Abdul Wahid are his relations, they have no enmity with the appellant and, therefore, no reason at all for falsely implicating him in this case. They are all natural witnesses, being residents of the locality, and must have witnessed the occurrence. P. W. Muhammad Anwar was sitting with the deceased on the same cot while Hussain is employed in the office of Anjuman Ittehad-e-Ghariban situated only 60 paces away from the place of incident. P. W. Noor Muhammad's house is only 15-20 paces away, while P. W. Abdul Wahid resides 25-30 paces away from the scene of occurrence. The names of P. Ws. Mahmood and Hussain also appear in the First Information Report lodged by P. W. Muhammad Anwar. In the First Information Report reproduced in the printed paper-book at page 9, the name of P. W. Hussain does not find any place, but this is due to an error in printing or translation. There is no such omission in the original F. I. R. Which we have seen in Court in presence of the learned counsel. This F. I. R. Was lodged with the utmost promptitude within 45 minutes of the occurrence. All these witnesses were examined by the police the same day. We, accordingly find no reasons to disbelieve any of the, witnesses. Although P. Ws.
Noor Muhammad and Abdul Wahid may not have seen the actual infliction of knife injuries they saw the appellant running away with a knife in his hand and ; their evidence strongly corroborates the testimony of the eye-witnesses. The evidence of P. W. 7 Yar Muhammad also confirms that all these witnesses were present at the scene when he came there on cries shortly after the occurrence. He is admittedly a disinterested witness.
10. The appellant also produced a blood-stained knife article `A' in presence of Mashir Ahmed P. W.
15 after making a statement that he had thrown the knife in the abandoned house where it was secured by the police vide memo. Of recovery Exh.
23. The report of the Chemical Analyser, Exh. 23- A showed that this knife was stained with human blood. This circumstance further supports the prosecution case against the appellant.
11. We do not, however, place much reliance on the blood--stained clothes having been recovered from the person of the appellant as he had some injuries on his person and this blood may possibly be due to these injuries. There is no evidence on record that the blood on his clothes was of a group different from that of the appellant or that these stains were of the same group as the blood of the deceased.
12. Faced with all this over-whelming evidence Mr. G. M. Shah, the learned counsel for the appellant contended that the appellant appeared to have acted in exercise of the right of private defence as he was attacked by-the deceased and his friends who had caused as many as 5 injuries on his person. We find nothing on record to support this contention. Even the appellant has not taken up the plea of exercise of right of private defence. In the Court of Enquiry his defence was one of bare denial ; while at the trial also, he did not specifically state that he had caused the injury in exercise of the right of private defence. It is no doubt true that Dr. Nuzhat Ara Aziz had stated in cross- examination that the injuries on the person of the appellant could not be self-inflicted; but we fail to see on what basis this confidence of the doctor could be based. It does not require great imagination to see that these trivial injuries which were on the fingers of right hand as well as on the left buttock could be easily self-inflicted. In any case these could be self-suffered, being caused by a friendly hand. All except one are skin deep and even the one that is, muscle deep is a trivial injury. Admittedly all the injuries are simple in nature. If the appellant had been attacked by so many persons as asserted by him the consequences would have been certainly more serious.
Moreover, if he had been saved by the people who collected at the spot, he had no reason to run away from the scene. He would in that case have naturally invoked the sympathy of every one and he could have reported the incident to the police himself. The conduct of the appellant in running away is absolutely inconsistent with the belated defence taken up before us. We have, accordingly, no hesitation in repelling this contention of the learned counsel as well.
13. The appellant appears to have been rightly convicted under section 302, P. P. C. And we would maintain the conviction under that section.
The question of sentence, however, requires consideration.
The appellant is a young man 19-20 years of age at the time of this incident. This circumstance however, would not by itself be considered sufficient to entitle him to the benefit of the lesser sentence of transportation for life as pointed out by their Lordships of the Supreme Court in Sher Hassan v. The State (PLD 1959 SC (Pak.) 480). Nevertheless, other circumstances of the case cannot be lost sight of. The death of the deceased was a result of a single knife injury. The case of the prosecution itself was that this murder was the result of a sudden quarrel between the appellant and the deceased, which led to exchange of hot words only 5 minutes before this occurrence. As observed by their Lordships of the Supreme Court in Sikandar v. State (PLD 1966 SC 555) ---But the fact that there was a sudden quarrel followed by a sudden fight cannot be ignored, in the manner of the Courts below, as an element having effect to mitigate the offence in relation to the sentence. A sudden quarrel imports provoca--petition on both sides, and unless it is artificially raised as an excuse for making a pre-determined fatal attack, the responsi--bility for the provocation and the raising of tempers, which necessarily follows a quarrel is, under the law, to be shared by the parties equally. When the quarrel is followed by a direct clash, the Courts cannot fail, as they have done in this case, so take note of the fact that thereby a great heat is imported into the affair. A crime committed in hot blood, for the raising of which the victim is equally responsible with the offender, is not to be visited with the same punishment that the law reserves for deliberate offences of the same kind, committed in the cold blood, that is with malice afore--thought.---
14. Following this authority in Pinda Khan v. The State (PLD 1967 Pesh. 325), a Division Bench of this Court reduced the sentence from death to transportation for life on the ground that the accused had met the deceased on road by chance shortly after the deceased had set fire to his haystack. It was held that as the murder was committed only one or two hours after the earlier incident the appellant had some provocation as "he must still be smarting with passion against the deceased."
15. In Kaicha Sarkar alias Kanchoo and another v. The State (PLD 1966 Dacca 508), the High Court altered the sentence from death to transportation for life only on the ground that the deceased was way laid and mortally attacked 3 hours after he had abused the appellant, notwithstanding the fact that as many as 10 incised injuries were caused to the deceased. An earlier decision of the Dacca High Court, namely, Crown v. Seraj All (7 D L R 119), wherein murder had been committed in realisation for an exchange of hot words some 11-12 hours earlier, was relied upon.
16. In Sher All v. Crown (PLD 1956 Sine 7), it was observed by a Division Bench consisting of Muhammad Bachal and Rahim Bux Munshi, JJ. That youth of the accused coupled with other facts of the case could be taken as a mitigating circumstance for the purpose of awarding the lesser sentence of transportation for life. Their Lordships in that case were impressed by the fact that "only one blow with knife was given" by the accused who was only 20 years of age.
17. The question whether in a given case sentence of death or the lesser sentence of transportation for life should be passed is essentially a matter in the discretion of the trial Judge and it cannot be fettered by any hard and fast rule. This Court would not normally interfere with that discretion if it has been exercised on sound judicial principles. It is no doubt correct that the normal sentence for an offence under section 302, P. P. C. Is one of death and under section 367, Cr. P. C. The convicting Judge is not required to give any reasons when he passes the sentence of death ; nevertheless, there is a duty cast on the trial Court to examine all the surrounding circumstances of the case and then to decide whether to pass the normal sentence of death or the lesser sentence of transportation for life.
18. In the instant case the learned Additional Sessions Judge after finding the appellant guilty proceeded to sentence him to the extreme penalty of death without considering anything more.
This is obvious from para. 20 of his judgment. Indeed, if the learned Judge had considered all the surrounding circumstances of the case carefully, he could not have failed to notice-
(a) that the appellant was a young man hardly 19-20 years of age ;
(b) that the murder of deceased Abdul Majid was not pre-arranged ; but was committed shortly after a sudden quarrel leading to exchange of abuse ;
(c) that the appellant came back within 5 minutes of the earlier incident which could hardly be considered as sufficient time for the tempers to cool down. It was accordingly a murder committed in hot blood ; and
(d) that only one injury was caused to the deceased.
All these circumstances, when considered together entitled the appellant to the benefit of the lesser sentence. We would, accordingly reduce his sentence from death to that of transportation for life.
19. With the modification in the sentence the appeal stands dismissed. The reference for the confirmation of death sentence is rejected.