' KHALIL-UR-REHMAN KHAN, J.- Sheeda and Aziz have been convicted under section 302/34, P.P.C. By the learned Sessions Judge, Multan on 16-12-1981. Sheeda has been awarded capital punishment whereas Aziz, was directed to suffer imprisonment for life. Both of them have been fined Rs,2,000 each or in default thereof to undergo R.I. For a period of one year each. The amount of fine, if recovered, has been directed to be paid by way of compensation to the heirs of Taja deceased under section 544-A of the Cr.P.C. The learned Sessions Judge, Multan has referred this case to us for the confirmation of the death sentence as envisaged under section 374 of the Cr.P.C. Sheeda and Aziz have also lodged an appeal and both the reference and the appeal are being decided by means of this judgment.
2. The facts of this case as gleaned from the F.I.R. In substance are that Gulzar complainant, Aziz and Taja deceased were present in the hotel of Sufi Noor Muhammad at Railway Road, Multan to have tea at about 2-00 p.m., on 21-10-1980. Taj Muhammad alias Taja asked Aziz to shed his habit of gambling. He took it ill and there was grappling between the two. The situation was pacified by the complainant and otheRs, Aziz left that place threatening that he would deal with Taja. After a short while he came there in the company of his brother Sheeda and Bhola. Aziz and Bhola felled Taja on the ground and Sheeda is stated to have given a knife blow on the chest of Taja. All the accused then ran away. Taja was taken to the hospital in an unconscious state where he died.
Gulzar, the son of the cousin of the deceased went to the police station who lodged the F.I.R.
3. Dr. Captain Muhammad Hussain Baloch, Medical Officer, Nishter Hospital. Multan, P.W.5, has medically examined Taja when he was alive. He had found the following injury on his person:- ' A stab wound 2 cm x 1 cm on antero lateral side of left chest 7 cm interior and lateral to left nipple.
' The same injury was detected after his autopsy which was conducted by Dr. Imtiaz Ahmad Khan on 22-10-1980 at 3-30 p.m. This injury was opined to be sufficient to cause death in tie ordinary course of nature. On 22-10-1980, the accused were arrested. The blood-stained clothes were got removed from the persons of Sheeda and Aziz and on the same day, Sheeda led to the recovery of knife Exh. P.5 from his residential room. After the investigation of this case the challan of the accused was submitted. As a sequel to the impugned trial, Sheeda and Aziz were awarded the aforementioned punishment whereas Bhola was acquitted .
4. The learned Sessions Judge, Multan has based the conviction of the appellants on the evidence of motive, ocular testimony and medical evidence. He has disbelieved the factum of the recovery of the blood-stained clothes and knife. About the recovery, he has rightly remarked that the accused were not expected to remain attired in blood-stained clothes after this occurrence because it is the psychology of the culprit to cause the disappearance of evidence against him as soon as possible. The Investigating Officer also stated that the clothes of Aziz had been washed.
Similarly,, the knife was recovered from the joint residence of Sheeda and it was not believed.
5. The ocular testimony is that of Gulzar, P.W.8 and Abdul Wahid, P.W.9. Gulzar has narrated the incident as stated in the F.I.R. He has clarified that Taja deceased had given a blow on the nose of Sheeda by his head. It is not unusual that a person like Gulzar had gone to have tea at the hotel where this incident took place. Abdul Wahid is a natural witness of this occurrence. He has stated that after an altercation and exchange of abuses between Taja and Aziz, the latter brought Sheeda and Bhola. He has added that at their sight,Taja wanted to drift away, but was overtaken by the accused and Aziz and Bhola overpowered him and dropped him on the ground whereas Sheeda gave a knife blow on the front side of the chest of Taja. He is an independent witness.
6.' The medical evidence shows that Taja did not receive even a scratch on his back or backside of the head when he was felled on the ground. Bhola and Aziz both were empty handed and in this manner, it can safely be said that Taja received a stab wound from Sheeda while in a standing position. Although Aziz is stated to have received abrasions near his elbow, yet Dr. Riazuddin. P.W.4 has definitely opined that these injuries could be suffered by a friendly hand. The recovery of incriminating blood-stained clothes of Aziz has been disbelieved. It appears that Aziz has been roped in this case unnecessarily like Bhola who deserves to be given the benefit of doubt.
7. The motive for the commission of this offence is stated to be the advice of Taja to Aziz to leave gambling. Exhs. D.A., D.A/1 and D.B., are indicative of the fact that Taja was a scoundrel and a history-sheeter who had been convicted for the offence of gambling a number of times. He was also convicted under the Arms Ordinance and the Excise Act. A gambler is expected to augment his companions and is not expected to make an advice like a pious elder to leave gambling. Nor can a normal man get incensed if he is asked to desist from the habit of gambling. The motive for the commission of this crime appears to be false. The real motive for this murder has been shrouded in mystery.
8. The defence putforth by Sheeda is that Taja wanted to establish carnal connections with him and in his bid to do so, Taja held a knife and when Sheeda gave him a violent push, Taja struck against a wall and the knife pierced into his chest. This story is not credible that by violent push, Taja could receive the injury which he had sustained. The defence version is not ture.
9. Learned counsel for the appellants has contended that it is a case of sudden fight on a sudden quarrel and the appellants can take benefit of Exception 4 to section 300 of the P.P.C. We feel ourselve unable to agree with this contention because Sheeda had come to the spot while armed with a knife and the element of premeditation I there. Exception 4 to section 300, P.P.C. Envisages that the sudden fight in the heat of passions on a sudden quarrel should ensue withou premeditation. In this manner, the benefit of Exception 4 to section 300, P.P.C. Is not available to the appellants.
10. The motive in this case has not been substantiated. We are conscious of the fact that in Akhtar All Syed v. The State 1968 P Cr. L J 1339, it was held that even if the motive is inadequate or non- existent, inference cannot be drawn that the accused had no intention to kill and the death sentence was maintained. It may be noted that in the said precedent, the appellant had given three Chhuri blows on the left thigh, left groin and the right hip of his victim whereai it is case of single blow with a knife. Sheeda appellant has explained the Taja deceased had hit his head on his nose. Gulzar, the complainant, P.W.8 has corroborated that the deceased had injured. Sheeda as he struck his head against the nose of Sheeda appellant. Avowedly, the nose injury by Sheeda was sustained before he gave a fatal blow t Taja. In this manner, mitigating circumstances exist in this case. We, therefore, accept the appeal of Aziz and quash the conviction and sentence ordered against him. He is acquitted and shall be set at liberty forthwith if not required to be detained in any other case. The death sentence of Sheeda under section 302 of the P.P.C. Is commuted to imprisonment for life. The death sentence is not confirmed. The reference and the appeal are decided accordingly.