1. ' MUNAWAR ALI KHAN, J.-This judgment will dispose of Criminal Appeal No, 53/84 and Confirmation Case No, 19/84 arising therefrom and Criminal Appeal No, 55/84. The factual background leading to the aforesaid appeals and the criminal reference may be briefly stated as follows: On 29-10-1979 at about 94)0 p.m. The appellant Raja Azhar 'Mahmood committed the murder of Altaf Hussain at K. T. C. Depot, Korangi. Both the accused and the deceased were employees of K. T. C. At the time of the occurrence. It is alleged that Malang Shah who was watchman of the K. T. C. At the said Depot was on duty at the main gate. The deceased Altaf Hussain was also on duty. As disclosed in the F. I.
2. R. The accused who was off duty came over there and soon after his arrival altercation occurred between him and the deceased, as the latter addressing the former, called him "Chamcha" of the officers. Soon they got engaged in fighting with each other, having `pandas' in their hands. Several employees of the Corporation namely Syed Masood, Muhammad Rahman Jaffery, Babu Khan.
3. Imam Din and Khadim Hussain were attracted on commotion and witnessed the occurrence. On their intervention the accused and the deceased were separated and the deceased was taken into nearby security room, the door of which was bolted from outside. Nevertheless both the accused and deceased kept abusing each other. The accused who was standing outside the room managed to get himself free from the persons who had collected there, and forced to open a window of the security room, and fired pistol shot at the deceased through the window. The deceased was hit by the shot on his stomach. The deceased came out of the room with his hands on his abdomen with the accused chasing him. Somehow the deceased concealed himself and the accused went to the hotel opposite to the main gate of the Depot and sat there. Meanwhile a message was sent to police who arrived within minutes. The police arrested the accused from hotel alongwith the pistol. The injured Altaf Hussain was removed to the hospital where he died in the following morning.
4. ' The S. H. O. Hashmatullah Khan of P. S. Korangi who had arrested the accused brought him and the property to the Police Station and incorporated the statement of Malang Shah in 154, Cr. P. C. Book as F.
1. R. He also registered a separate case against the accused under section 13-A, Arms Ordinance for keeping unlicensed pistol. Thereafter, he returned to the place of occurrence where he recorded the statements of Masood, Malang, Aslam, Rehrnan and other witnesses. Then he proceeded to Jinnah Hospital to record the statement of the deceased who was still alive but he was not in a position to give any statement. On the next day on learning about the death of the deceased the S. H. O. Went to the hospital once again and prepared memo. (Exh. 34) and Inquest Report (Exh. 35) of the dead body in presence of Muhammad Rahman and Muhammad Rafiq. He then despatched the dead body to the police surgeon for the post-mortem examination. He also got statements recorded under section 164, Cr. P. C of Malang, Masood, Imam Din, Abdul Majid, Aslam, Khadim Hussain, Babu Khan and Muhammad Rehman Jaffery. After completing the remaining investigation he challaned the accused in Court.
5. ' After hearing the arguments of the learned counsel for the parties, the above two appeals and the criminal reference were disposed of by short order, dated 7-8-1985. As per the said order the conviction of the accused in Appeal No, 53/84 was altered from under section 302 to under section 304 Part 1, P. P. C. And consequently death sentence was substituted by R. I. For 10 years. The accused was further directed under section 544-A, Cr. P. C. To pay compensation of Rs, 10,000 to the heirs of the deceased and in default in payment thereof suffer R. I. For six months. Subject to the modification in the conviction and sentence as aforesaid, the said appeal was dismissed. The Appeal No, 55/84 was also dismissed. It was also directed that the accused will be given the benefit of section 382-B, Cr. P. C. In computation of the sentence of imprisonment awarded to him.
6. In consequence of the alterations made in the conviction and sentence of the accused in Appeal No, 53/84, the criminal reference for confirmation of death sentence was rejected. Following are the reasons in support of the short order stated abode.
7. ' The autopsy of the dead body of Altaf Hussain (vide Exh. 23) disclosed that his death occurred on account of irreversible shock and haemorrhage caused by fire-arm injuries discovered on his abdomen. Dr. Qaiser Rasool, Police Surgeon, Karachi (P. W. 9) proved the post-mortem notes prepared by Dr. Anwar Ali who had conducted the post-mortem examination of the deceased, as Dr. Anwar Ali had expired and was not available for evidence.
8. ' Dr. Ali Jan (P. W. 11) who had examined the deceased while he was still alive had found in all five fire-arm injuries on his person, from which four were entry-wounds and one was exit-wound.
9. According to him all the injuries had charring of gunshot. Showing that they were caused by firearm. The medical evidence stated above leaves no doubt that the deceased Altaf Hussain died of the fire-arm injuries found on his person. The cause of his death is not disputed even by the accused. Dr. All Jan has also produced medical certificate (Exh. 29) issued by Dr. A. Qayoom Malik who has since left service and is now said to be serving in Russia. The certificate is with regard to the injuries found by Dr. A. Qayoom on the person of the accused. As disclosed in the certificate the accused had two injuries on parietooccipital region caused with hard and blunt substance.
10. ' The crucial point for determination is whether the accused/appellant had caused the fatal injuries to the deceased. On this point the most important evidence is eye-evidence of complainant Malang Shah (P. W. 1), Syed Masood Ahmed (P. W. 2), Muhammad Rehman Jaffery (P. W. 3), Babu Khan (P. W. 4), Imam Din (P. W. 5) and Khadim Hussain (P. W. 7). They claim to have witnessed the occurrence. Excepting Muhammad Rehman laffery, the other eye-witnesses saw the accused firing a pistol shot at the deceased who was then in the security room. Even Muhammad Rahman heard the pistol shot and saw the accused having pistol in his hands at that time. He further saw that the deceased who was coming out from the Security room was injured on his stomach. Thus, it is proved from their evidence that the pistol shot which ultimately became the cause of the deceased's death was fired by the accused.
11. Apart from above ocular evidence, the prosecution case finds furthe support from the evidence relaying to arrest of the accused and the recovery of pistol from his possession. This evidence is furnished by Mashir Abdul Majeed (P. W. 5) and Hashmatullah, I. a (P. W. 12). The evidence of Abdul Majeed shows that on the day of occurrence he was in his hotel which situates just near the Vardat when at about 9-30 p.m. The accused entered the hotel and sat in the chair. According to him he was hardly there of two minutes when police arrived, and arrested the accused and at his pointation secured pistol lying on the chair in his hotel. Hashmatullah, S. I. P. Has confirmed in his evidence the it he arrested the accused from the hotel and at his pointation secured the pistol lying on the chair. The arrest of the accused and recovery of tae pistol at his pointation, from near the Vardat almost immediately after the occurrence lends fairly strong corroboration to the eye- evidence discussed above.
12. Coming to the statement of the accused under section 342, Cr. P. C. It is found that he has frankly admitted his presence at the spot at the time of occurrence. He has also made no secret of his entanglement with the deceased. His participation in the fight with the deceased is also clear from the injuries be had on his person. However, he has given different version of the incident placing the entire blame on the deceased. According to his version the deceased belonged to a rival group of K. T. C.'s employees who used to taunt him as `Chamcha' of the officials. His statement shows that even on the day of occurrence the deceased by force of his habit had called him `Chamcha' while passing by him. On this, he further goes to say, he C also retorted by calling names to the deceased. Thus, they got engaged in fighting and went up to the security room where the deceased took out a pistol and hit tne accused on his head with its butt whereupon he started bleeding and his clothes got soaked with blood. The accused has further stated that when the deceased aimed second blow at him, he tried to snatch the pistol from his hands but in course of the struggle the pistol went o' and the deceased was hit in his stomach. The accused's statement further shows that police came under the influence of Malang Shah and other witnesses available at the Vardat and made investigation as desired by them We have given out best thought to the accused's version hereinabove but we are not persuaded to accept it. It is incredible that the pistol would fire in the manner stated by the accused. If the deceased really had pistol with him and he struck the accused with its butt, in that case it cannot be believed that at the same time its trigger would be kept on so that it would shoot off as soon as the accused tried to snatch it from the deceased's hands. Moreover, the accused's version cannot be believed in the face of overwhelming eye-evidence supported by evidence of recovery of pistol from accused. We see no reason why so many witnesses should join hands and turn against the accused. None of them is shown to bear any grudge or ill-will against him. It is merely an allegation on the part of the accused that all the above witnesses belonged to a rival group who used to treat him as `Chamcha' of the officials. All the witnesses have denied this allegation.
13. ' It would appear that the fight between the accused and the deceased consisted of two phases. In the first phase the above witnesses saw them fighting with each other, with `Dandas' in their hands.
14. But they have pleaded ignorance as to how the fight originated between them. According to them although on their intervention they were separated and the deceased was put into the nearby security room whereas the accused stood outside the room in their midst, they kept arousing each other. The second phase started when the accused managed to slip from amongst the witnesses, encirclement and rushed towards the security room. The witnesses saw him taking out a pistol and firing a shot on the deceased. It has also came in evidence that in course of the first phase of the fight the accused sustained two Danda injuries on his head at the hands of the deceased.
15. Obviously the second phase of the fight was the direct result of the first phase. In other words the accused fired pistol at the deceased as the latter had caused him `Danda' injuries on his head.
16. On the basis of above evidence, the learned counsel for the accused realized that it would be difficult for the accused to escape the liability of having fired pistol at the deceased. Therefore, he did not deny the accused's participation in the tight but made an abortive argument that the pistol shot was fired by the accused in his self-defence. We were not impressed by this argument. In the first place the plea of self-defence was not raised by the accused at any stage of the case.
17. Secondly after he was separated from' the deceased and the latter was put in the security room by the witnesses, the threat, if any, to his life came to an end and he had no longer right of private defence available to him, Therefore, the pistol shot fired by him while the deceased was locked up in the security room cannot be held to have been fired by the accused in his self-defence.
18. Accordingly the learned counsel for the appellant did not press the plea of right of private defence.
19. However, his next argument was that having been hit on his head with Danda by the deceased, the accused resorted to firing of pistol only under sudden and grave provocation. The learned counsel, therefore, urged that the accused would be liable to punishment under section 3C4, Part I, P. P. C.
20. And consequently the sentence awarded to him would have to be reduced.
21. ' In reply to above argument it was submitted by the learned counsel for the complainant that as there was no continuity between the two phases of the fight, it could not be argued that the pistol firing by the accused in the second phase was under the provocation caused to him by the .Injuries he had sustained in the first phase. His argument was that after the accused was separated from the deceased and the latter was pushed into the security room away from the sight of the former, the first phase of the fight was over and whatever provocation was caused to the accused had disappeared. In any case, the learned counsel submitted, even if the accused was still in the agitated state of mind, such provocation was not so grave as to entitle him to shoot at the deceased. In our opinion the argument was far from convincing. There was hardly any time-log between the two phases of the fight. After the deceased was put into the security room the accused stood just outside it, encircled by the witnesses. Nevertheless both the accused and the deceased kept abusing each other vide statement of complainant Malang Shah. It took the accused seconds to get himself freed from encirclement of the witnesses and dash towards the room where the deceased was kept and shoot a pistol at him. Therefore, the second phase of the fight was in continuity of the first one. The passions of the accused roused F in the first phase had not subsided when he took to firing of the pistol at the deceased. We have, therefore, no doubt that the accused was still under provocation, the suddenness of which was not denied even by the learned counsel for the complainant, when he hot pistol at the deceased. However, the said learned counsel took one day's adjournment to produce case-law to show that even though the accused fired pistol under provocation which was sudden but it was not so grave as to entitle him to avail the' benefit of exception Ito section 300, P. P C. He was however, unable to produce any authority in support of his contention.
22. As provided in Explanation under the aforesaid Exception, whether theta provocation was grave and sudden enough to prevent the offence from' amounting to murder is a question of fact. In the instant case as pointed out above the learned counsel for the complainant frankly admitted that the firing was made under provocation which was also sudden. However, he disputed only the gravity of the provocation. In our opinion gravity of the provocation could be judged from its seriousness. That is to say that the provocation caused to the accused was so serious that he would go to an extent and would not hesitate to cause any harm or damage to his adversary. The accused had admittedly sustained two Danda injuries on his head which could have resulted even in his death. Therefore, we are of the view that provocation caused to the accused was not only sudden but was also so serious and grave that he was perfectly justified in firing pistol in retaliation.
23. Having come to the above conclusion the accused would be liable under section 304, Part I, P. P. C.
24. Accordingly we altered the conviction of the accused and modified the sentence awarded to him in Appeal No, 53/84. In view of these alterations the criminal reference for confirmation of death sentence was rejected. As for Appeal No, 55/84, since the recovery of" unlicensed pistol from accused's possession was established, the said appeal was also dismissed.