' AJMAL MIAN, J.--This is an appeal filed by the two appellants, namely, Akbar son of Lal Khan and Sharif son of Piyray, against the judgment, dated 28-8-1983, passed by the learned Ilnd' Additional Sessions Judge, ,Karachi, in Criminal Case No,620 of 1977, whereby he convicted the former under section 302, P.P.C. And sentenced him to death and to the latter under section 325, P.P.C. Read with section 109, P.P.C. And sentenced him to undergo R.I. For 7< years. The learned Lind Additional Sessions Judge, has also, made reference for confirmation of the above death sentence. We, intend to dispose of the above appeal and the reference by this common judgment.
2. The prosecution case is that on 13-6-1977 at about 9-30 p.m. Deceased Munshi son of Shadi a resident of Cattle Colony, professional Donkey Cart Driver came to the hotel of P,W. Habib alongwith P.Ws. Chand Khan and Gada Hussain and ordered for cups of tea. It is said that while they were waiting for the tea, appellant Akbar alongwith appellant Sharif came there on a bicycle and stopped outside the hotel. After that the appellant Akbar called deceased. Munshi outside the hotel and asked him as to why he opposed his betrothal resulting in disengagement. It is also said that the deceased denied of having opposed appellant Akbar's engagement, but appellant Sharif caught hold of deceased Munshi, whereas appellant Akbar took out a Churri and inflicted blows on the forehead, chest and abdomen. It is further stated that the hotel keeper Habib also saw the coming of the appellants and their escaping from the scene of offence after leaving behind the bicycle. The complainant P.W. Chand Khan after hiring a taxi with the help of P.W. Gada Hussain and others brought deceased Munshi to the Police Out Post, the Cattle Colony, where complaint was recorded on a plain paper (Exh. 6/A) by A.S.I. P.W.6 Shahamat Ali, the then Incharge of the Police Post at about 10 p.m. Which was transmitted to the police station Quaidabad for recording the same under section 154, Cr.P.C., P.W.6 Shahamat Ali before recording the complaint sent the injured to Jinnah Hospital for treatment, examination, and report. After that he alongwith the complainant proceeded to the place of Vardat and inspected the same in presence of P.Ws. Habib and Bashir and prepared Mashirnama Exh.7/A. He secured the blood-stained earth from there and sealed the same in presence of the same Mashir under the aforesaid Mashirnama. He also prepared a sketch of the place of Vardat Exh.14/A. While he was at the place of Vardat he received information that injured Munshi had expired in the hospital. He then proceeded to the hospital and examined the dead body in presence of P.Ws. Anwar and Gada Hussain and prepared a memo of the inspection of the dead body Exh.9/A. He also prepared an inquest report Exh.14/B in presence of the same Mashirs. On 14-6-1977, he arrested appellant Akbar at 1-05 p.m. From the Lee Market under Mashirnama Exh. 11/A in presence of P.Ws. Hakim AU and Muhammad Ali. Earlier he arrested appellant Sharif at about 10 a.m. From the Pipri Bus Stop under Mashirnama Exh.11/B in presence of the above Mashirs. On search nothing was found from either of the appellants at the time of their arrest. It is said that appellant Akbar after his arrest voluntarily led the police party and the above Mashirs to Nai Abadi near the under construction house of All Shan and from the back side of the same, he pointed out the place where he had thrown the knife after washing it, which was secured and sealed under Exh.11/C in presence of the same Mashirs. He also sent the dead body for post- mortem to the Civil Hospital through the Police Constable Bashir Ahmed, Buckle No,4645, which was received by P.W.5, Dr. Muhammad Rafique at 5-00 a.m. On 14-6-1977. He started post-mortem examination at 8-20 a.m. And finished the same at 9-20 a.m. He found the following external injuries on the person of the deceased:- "(1) Incised' wound right lower chest 3" from midline and 4" below the right nipple vertical in direction measuring 1" x 1" x cavity deep.
(2) Incised wound in the abdomen middle 11" above the umblicus oblique in direction measuring 1" x 1" x cavity deep.
(3) Incised wound right cheek 1" from the right angle of lips measuring 1" x 1" x Muscle deep."
' On internal examination, he found that the abdominal cavity contain about one pound of blood.
Stomach showed incised wound anterior well lower part measuring 1" x i" x cavity deep and contained undigested food expelled out through the wound into peritional cavity. Mesentery showed out about 1" x x mucasa pale. Small intestine contained undigested food mucasa normal and pale. Large intestine contained faces mucasa normal and pale. Liver shows incised wound front of right lobe measuring 1" x 4" x tissue deep rest normal and pale. There was also incised wound in eight internal space 1" x 4" cavity deep. All other organs were normal.
' He opined that injuries Nos.1 and 2 were individually and collectively sufficient in the ordinary course of nature to cause death of the deceased. He also opined that all the injuries were ante- mortem. He further opined that the death of the deceased was due to haemorrhage and irreversable shock as a result of homocidal incised wound on the body sustained with sharp- edged weapon such as Churri, knife, dagger or any other similar weapon of assault. He also opined that the time between the injuries and death was instantaneous and the time between the death and post-mortem was about 14 hours. He prepared the post-mortem as report Exh.13-A.
3. The prosecution in support of the case has produced the two alleged eye-witnesses namely, P.W.1 Chand Khan, the complainant and P.W.3 Gada Hussain, the corroborative testimony of P.W.2 Habib, in front of whose hotel the murder had taken place and who had allegedly witnessed the coming of the appellants on a bicycle and calling the deceased out of the hotel by appellant Akbar and escaping of the appellants from the scene of offence after inflicting injuries by appellant Akbar. In addition to that, the prosecution also examined P.W.4 Hakim AU one of the Mashirs to the Mashirnama of arrests Exh.11-A and Exh.11-B and the Mashirnama of recovery Exh.11-C. P.W.5 Dr. Muhammad Rafique, who carried out the post-mortem and prepared the post-mortem report Exh.13-A. P.W.6 Shahamat Ali A.S.I. Who recorded the complaint at the Police Out Post, the Cattle Colony and investigated the case and submitted the challan and prepared Mashirnama of Vardat Exh.14-A, inquest report Exh.14-B. The prosecution apart from producing the above Mashirnamas also produced the Chemical Analyser's reports Exh.16, which is positive irrespect of the Churri, allegedly recovered.
4. The appellants in their 342, Cr.P.C. Statements have denied the factum of having committed the murder and have stated that the witnesses had deposed against them on account of enmity.
5. It may be pertinent here to refer the ocular testimony of the above witnesses in brief. P.W.1 Chand Khan who was related to the deceased as a cousin reiterated the contents of the F.I.R. With certain variations/additions namely, in the F.I.R. It was stated that he, P.W.3 Gada Hussain and the deceased were taking tea when the appellants came there on a bicycle, whereas in his deposition before the learned Additional Sessions Judge he has stated that they were waiting for the tea when they saw the appellants present in Court in front of the hotel on a bicycle. Secondly, in the F.I.R. It was stated that appellant Akbar inflicted on the abdomen, whereas in his deposition he has deposed that the appellant Akbar gave Churn' blows on forehead, chest and abdomen. P.Ws. 3 Gada Hussain has more or less repeated, who was stated by P.W. Chand Khan with certain variations, namely, he has deposed that appellant Sharif called the deceased outside the hotel and that appellant Sharif asked the deceased as to why he got his betrothal (Mangni) broken, whereas, P.W. Chand Khan has stated that appellant Akbar had called the deceased outside the hotel and le had uttered the above words and thereafter attacked; the deceased. Secondly., he has stated that from the Police Out Post he and the complainant Chand Khan took the injured to Jinnah Hospital whereas complainant Chand Khan has deposed that he had stayed back with the police and P.W., Gada Hussain had taken the injured to the hospital. P.W.2 Habib has corroborated the above two witnesses on the point that they alongwith the deceased came to his hotel and had ordered for tea. He has also corroborated that appellants Akbar and Sharif came on a bicycle. They stayed outside the hotel and appellant Akbar called the deceased outside. He has also deposed that the deceased declined to go out, but he (Habib) went into an adjoining cabin for bringing tea where he was informed by a small boy that fight had taken place. Thereupon, he came out and saw deceased Munshi holding his stomach with injuries, who was trying to go after both the appellants, who were escaping away. He has further deposed that at time the deceased was calling for help to catch hold the appellants Akbar and Sherif but within his sight both the appellants managed their escape leaving behind the bicycle. P.W.4 Hakim Ali has proved the above Mashirnamas, to which he was a witness, namely, Exhs.11-A, 11-B, and 11-C. P.W.5 Dr. Muhammad Rafique has stated what has been referred hereinabove in para. 2 P.W. 6 Shahamat Ali A.S.I., who recorded the complaint at the Police Out Post, the Cattle Colony had taken actions referred to hereinabove in para 2.
6.Mr. Khawaja Adeel, the learned counsel for the appellants, has urged as follows:-
(i) That the ocular evi (i)That the ocular evidence is liable to be ignored because, firstly, being of interested dente is liable to be ignored because, firstly, witnesses and secondly,- there-iare rneteri#1 contradictions.
(ii) That the recoveries are liable to be ignored.
(iii) That the prosecution has failed to prove motive, which adversely reflects on the credibility of the ocular evidence.
' On the other hand, it was urged by Mr. Rashid Tariq, the learned counsel for the state and Mr. Sarfraz Tanoli, the learned counsel for the complainant party, that the prosecution has been able to prove the case beyond reasonable doubt and that the recoveries cannot be excluded. It was further contended by them that non-proving of motive is of no consequence.
7. It is true that P.W. Chand Khan was a cousin of the decease but the other two witnesses P.Ws.
Gada Hussain and Habib were not in any way related to the deceased. It may be observed that by now it is a well settled principle of law that simplicities relationship between witness and a victim of the offence will not make him an intereste witness unless he has some motive to falsely implicate the accused person. Furthermore, even the testimony of an interested witness I not liable to be excluded but the Courts as a measure of abundant caution look for some independent corroborative piece of evidence td fortify the testimony of an interested witness. In the present case nothing has been brought on record by the defence to indicate that P.W. Chand Khan had any personal motive like enmity etc. To falsely implicate the appellants. The only thing which has been brought on the record is that he was a cousin of the deceased. Furthermore, the other two witnesses P.W. Gada Hussain and Habib were not related to the deceased nor they belonged to the caste to which the decease belonged. P.W.Habib has been shown as Pathan in his deposition, whereas P.W. Gada Hussain has been described as Baloch. We are, therefore, unable to agree with the learned counsel for the appellants that the above witnesses can be termed as interested witnesses.
8. As regards the discrepancies in ocular evidence it may be observed that it is true that there are some discrepancies, namely, in the F.I.R. It has been stated that the complainant and the witnesses were taking tea, whereas in the deposition it has been stated by P.W.1 Chand Khan that the witnesses were waiting for the tea after placing order with P.W. Habib at the time of the incident.
Secondly, P.W. Chand Khan the complainant has neither stated in the F.I.R. Nor in his deposition that the deceased had also brought his son with him aged about 4 years, to the hotel for tea, whereas P.Ws. Gada Hussain as well as Habib have stated that the deceased had brought his son. Thirdly, P.W. Chand Khan has deposed that appellant Akbar had called the deceased outside the hotel and asked him as to why he got his engagement broken. Whereas P.W. Gada Hussain has stated that appellant Sharif had called the deceased outside hotel and asked him as to why he got his engagement broken.
It may be observed that there cannot be denied to the fact that there are above discrepancies in the testimony and some othe discrepancies. It may, however, further be observed that there are n discrepancies on the material facts, namely, (1) that both the appellants came at the place of Vardat on a bicycle, (2) that the deceased was called outside the hotel and was stabbed by appellant Akbar. In our view, the above discrepancies and the other minor discrepancies cannot render the testimony of the above witnesses as totally unreliable, but may need some independent corroborative piece of evidence, which is the instant case is inter alia in the form of the recovery of the blood stained Churri at the pointation of the appellant Akbar.
9. It was then contended by Mr. Adeel that according to the F.I.R. Only injuries were inflicted on the abdomen as there is no reference to any other injury. He has further submitted that even the learned Additional Sessions Judge while putting question to the appellant Akbar under section 342, Cr.P.C. Has referred to the abdomen injuries and not to any other injury. He has also pointed out that in the inspection memo. Of dead body Exh 9-A and the inquest report Exh.14-B four injuries on the person of the deceased have been mentioned, whereas P.W.5 Dr. Muhammad Rafique in his deposition and also in the post-mortem report Exh.13-A has referred to three injuries. It is true that in the F.I.R., it has been stated that appellant Akbar inflicted injuries on the abdomen of the deceased but in the deposition the reference has also been made' to the injuries on the chest as well as on the forehead. It is also true that the learned Additional Sessions Judge while putting question to appellant Akbar has referred to inflicting of injuries at the abdomen. Even if we were to ignore the other injuries which have not been reflieted in the F.I.R. It will not affect the case as according to the medical evidence the injury on the abdomen was individually sufficient to cause death. However, it may be stated that factually there is no discrepancy as to the number of injuries given in the inspection memo. Of the dead body Exh.9-A and the inquest report Exh.14-B on the one hand and the deposition of P.W.5 Dr. Muhammad Rafique and post-mortem report Exh.13-A. In the above inspection memo. Of the dead body reference has been made to a bruise under the netk.
This had been translated in English as injury No,4. Furthermore, non mentioning of the chest injury by the learned Additional Sessions Judge to appellant Akbar in 342's, Cr.P.C. Statement is merely an irregularity of the nature, which does not vitiate the trial but is curable under section 537, Cr.P.C.
10. It was then contended, by Mr, Khawaja Adeel, the learned counse for the appellants, that the memo. Of inspection of the dead-body, the inquest report and the post-mortem report indicate that the injuries had bandage which fact adversely reflect on the testimony of the witnesses as according to P.Ws. Chand Khan and Gada Hussain th deceased had expired after reaching Jinnah Hospital and as per P.W.5 Dr. Rafique death was instantaneous, and, therefore, there was n.
Occasion for putting bandage.
' On the other hand, Messrs Rashid Tariq and Sarfraz Tanoli have referred to the police papers which inter alia, contain a treatment sheet to indicate that factually the deceased was attended by a doctor in Jinnah Hospital before he had expired but the said doctor was not examined by the prosecution. Since the above doctor has not been examined by the prosecution, reference cannot be made to the above document contained in the police papers. However, it will suffice t. Observe that even in the F.I.R. It has been stated that the complainant had put bandage at the injuries of the deceased. It may also be observe that no question was put to any of the witnesses by the defence in order to solicit the information on the above point. In the absence of any question by the defence on the above aspect, no significance ca be attached to the presence of bandages. In this regard reference ma be made to the case of Akhtar Hussain v. The State, reported in PL 1958 SC 251, in which it was held by the Honourable Supreme Cour' that omission in the F.I.R. If not pointed out to the witness concerned, is not of much significance.
11. (a) Adverting to the recoveries, it may be observed that Mr. Adeel has referred to Exhs. 9-A and
16. The former is the memo. Of the inspection of the dead body, which indicates that the deceased had Shalwar of yellow colour, whereas the latter is a Chemical Analyser's report, which indicate that light green shirt and light green Shalwar were sent for chemical examination.
(b) Even if we were to discard the- above clothes on account of the above discrepancy, the recovery of the blood-stained Churri used in the commission of the crime remains intact. However, it was urged by Mr. Khawaja Adeel the learned counsel for the appellants, that the above recovery is also liable to be discarded for the reasons, firstly' that Mashir to the recovery P.W. Hakim Ali was a close relation of the deceased, secondly, that according to the above witness, the appellant Akbar led to the police party straight away to the place of recovery of the blood-stained Churri after his arrest, whereas P.W.6 Shahamat Ali the I.O. Has stated that the recovery was made at 7 p.m. And thirdly, there was delay of about two months in despatching the Churri to the Chemical Analyser, which delay P.W.6 'Shahamat Ali A.S.I. Tried to conceal by stating that the Churri was sent, on 18-6- 1977 instead of saying 18-8-1977.
12. (a) No doubt it is desirable to have an independent Mashir available at the place where the recovery is to be made but at the same time even a close relation of the deceased can be a Mashir to the recovery if he is a resident of the locality where the recovery is to be made provided he has no personal motive to falsely implicate the accused person. In the instant case P.W.4 Hakim All one of the Mashirs to the recovery of the blood-stained Chuang was related to the deceased, wh was his maternal uncle. The defence has not been able to bring anything on the record to indicate that the above Mashir had any motive t falsely implicate the present appellants.
Admittedly he was a resident of the locality very close to the place, where recovery was made. A relation of a deceased person if otherwise is not disqualified for an personal reason, can be an eye witness in a murder case, it must follow that a relationship of the deceased can also be a Mashir to recovery provided he has no enmity or other reason to falsely implicat an accused person. In our view, the testimony of the above Mashir I reliable. Even otherwise it is also corroborated by the testimony o P.W.6 Shahamat Ali the Investigating Officer.
(b) Reverting to the discrepancy as to the time of the recovery, it may be observed that it is true that according to P.W. 4 Hakim Ali, appellant Akbar took the police party to the place from where the Churri was secured straight away from the place from where he was arrested, whereas according to P.W.6 Shahamat Ali the Investigating Officer the recovery was made at about 7-30 p.m. i.e. After about six, hours from the time of the arrest. However, the above discrepancy cannot negate the other evidence if otherwise reliable on the factum of recovery. It, cannot be overlooked that P.W.4 was examined after nearly four years from the day of the recovery and, therefore, such discrepancy could occur.
13. It was then contended by Mr. Khawaja Adeel Ahmed, the learned counsel for the appellants, that even the bicycle on which the appellants had allegedly come to the hotel was not found at the place of Vardat, and, therefore, a link which could connect the appellants in the commission of the offence was missing. It is true that according to the eye-witnesses the appellants left behind the bicycle which was not found at the time of preparation of the Mashirnama of the place of Vardat by the Investigating Officer P.W.2 Habib has stated that the bicycle was removed by Saghir Hussain who lived not very far from the place of the Vardat. Saghir Hussain was shown as a witness in the list of witnesses reflected in the challan but was not examined. In our view, the above omission on the part of the prosecution is an irregularity, which would not vitiate the trial or would negate the other evidence on record.
14. Mr. Khawaja Adeel has also urged that as according to the medical evidence the death of the deceased was instantaneous, there could not have been any dying declaration made by the deceased attributed by P.W.2 Habib. It is true that P.W. 5 Dr. Muhammad Rafique has opined that the death was instantaneous but there is other evidence on the record to indicate that the death was not instantaneous, namely, the F.I.R. Was lodged under section 307, P.P.C. And not under section 302, P.P.C. Secondly, ocular evidence particularly of P.W.3 Gada Hussain and of the Investigating Officer P.W.6 Shahamat All indicate that the deceased expired after reaching Jinnah Hospital. Even if we were to ignore the alleged dying declaration, the other evidence on the record is sufficient to hold that the appellants have committed the offence.
15. It was lastly contended by Mr. Khawaja Adeel Ahmed, the learned counsel for the appellants, that appellant Sharif might have caught hold the deceased in order to avert the fight between the appellant Akbar and the deceased Munshi and as he had no enmity with the deceased he should have been given benefit of doubt. The reliance has been placed on the case of Asad Azhar v. The State reported in 1984 P Cr. L J 990, in which a learned Single Judge of this Court extended the benefit of doubt to the accused as the eye-witnesses were closely related to the deceased and were on inimical terms with the accused and no blood was found from the place of Wardat. In our view, the above case has no application to the present case. It is true that appellant Sharif cannot be attributed the common intention of causing death and, therefore, the learned trial Court has convicted him under section 326, P.P.C. Read with section 109, P.P.C. And has awarded a sentence of seven years. In our view, since appellant Sharif has not caused any injury nor he was armed with any weapon it would be appropriate to substitute the sentence by four years in place of seven years R.I.
16. As regards appellant Akbar, it was vehemently urged by th learned counsel for the appellants that the instant case was not a case of premeditated murder but it was a chance meeting and that the offence had taken place in the heat of the moment. From the evidence on the record, it appears that before appellant Akbar attacked the deceased he had conversation with the deceased for about two minutes as per P.W.1 Chand Khan which fact negates a case of premeditate murder. Furthermore, there is nothing on the record to indicate what was the immediate cause for the above attack as the engagement wa allegedly broken 11 month prior to the incident but according to P.W.3 Gada Hussain that was of appellant Sharif. Mr. Khawaja Adeel Ahmed, learned counsel for the appellants has referred to the following _cases:- . (i) Khalil Ahmad and 3 others v. The State PLD 1983 Kar. 545, in which,- a learned Single Judge of this Court has converted the conviction from sections 302, P.P.C. To 304(1), P.P.C. On the ground that appellant Niaz Ahmed had a chance meeting and awarded 8 years R.I. In place of life imprisonment.
(ii) HO and another v. The State 1984 P Cr. L J 1080, in which a learned Single Judge of the Lahore High Court altered the conviction from section 302/34, P.P.C. To 304 (1), P.P.C. On the ground that the incident took place suddenly without pre-meditation and awarded five years R.I.
(iii) Muhammad Idris v. The State, 1984 P Cr. L- J 738, in which a Division Bench of the Lahore High Court altered the death sentence into life imprisonment as the motive of the murder remained shrouded in mystery.
17. We have given our serious thoughts to the question whether w should maintain the conviction under section 302, P.P.C. Of appellant F Akbar or should we alter the same into 304 (1), P.P.C. As observed hereinabove that the evidence on record negates the case of premeditate murder, in our view, it would be just and proper to alter the conviction from section 302, P.P.C. Into section 304 (1), P.P.C. We accordingl alter the conviction from sections 302, P.P.C. To 304 (1), P.P.C. And award sentence of "eight years R.I. To appellant Akbar and impose fine of Rs,10,000 in default of payment further R.I. For two years. I the above fine amount is realised, Rs,6,000 may be paid to the lega heirs of the deceased under section 544-A, Cr.P.C.
18. The appeal, therefore, is allowed to extent mentioned hereinabove. However, reference is rejected. Both the appellants shall also be entitled to the benefit under section 382-B, Cr.P.C. For the detention period during the trial while computing the above sentences.
' Appellant Sherif is on bail, his bail is hereby cancelled. He shall be remanded to the judicial custody if present in Court. If not available in Court the office will issue an order to the learned IInd Additional Sessions Judge, Karachi to cause his arrest, so that he may serve out the remaining sentence.