M. S. H. QURBSHI, J.-This is a reference under section 374, Cr. P. C. For confirmation of the death sentence awarded to Abdur Rashid under section 302, P. P. C. For the murder of Mukhtar Ali. As he has also appealed, we propose to dispose of the reference as well as the appeal by this judgment.
2. Appellant Abdur Rashid had lived for about 21years with Najabat Ali P. W. In the latter's quarter in the Mill Area of the Lyallpur Cotton Mills, Lyallpur. Some 5-6 months prior to the occurrence, Najabat Ali had asked him to make separate arrangement for his residence as he had to get married, and then Abdur '. Rashid had started living in a rented house. On 23rd July 1970, at about 7 p.m. The wife of Mukhtar Ali (deceased), elder brother of Najabat Ali, asked Nasir Baig, maternal uncle of the deceased, to fetch Mukhtar Ali as she had served dinner for him, which was getting cold. Nazir Baig accordingly went out and saw Mukhtar Ali talking to the appellant near the minor canal outside Gate No. 5 of the Mills. He called the deceased but the latter continued talking with the appellant.
Nazir Baig, therefore, waited for the deceased to accompany him. Suddenly he saw Abdur Rashid pick out a knife from the pocket of his pant, give a blow with it in the chest of the deceased, and run away towards WAPDA workshop. Nazir Baig gave a chase. He was joined by Saghir Hussain, who had also come up at that time and had seen the occurrence. The appellant, however, managed to escape. The deceased meanwhile staggered for some distance with his hand on his left chest from where he was bleeding. Najabat Ali and Muhammad Sali, who were going to Gate No. 4 saw him and held him. The deceased informed them that appellant Abdur Rashid had given him the injury with knife and had run away and that Nazir Baig and Saghir Husain had gone after him. The deceased, saying so, fell down unconscious and died. Najabat Ali leaving Muhammad Salim with the dead body, went to the Factory Area Police Station which was 2J furlongs away and. Lodged report at 7-30 p.m.
3. The motive for the crime, according to the witnesses, was that the appellant had been asking fair the' hand of Mst. Tahira, sister of the deceased, but the deceased not agreed to the proposal.
4. Malik Sardar Ali, A. S. I. Who recorded the F.I.R went to the spot, and recovered blood-stained brick piece from where the dead body was lying, and blood-stained earth from where the deceased had been injured. On 24th July 1970, Ch. Muhammad Nawaz, S.H.O., arrested the appellant and recovered the blood-- stained bushirt, which he was wearing at that time on his person. On 27th July 1970, the appellant led Malik Sardar Ali, A. S I, and witnesses to a maize field in the back of WAPDA workshop and from there produced blood-stained knife.
5. The post-mortem examination, which was conducted on the body of the deceased on 24th July 1970, at 7 a.m. Revealed the following injuries;
(1) A stab wound 1 --' x 1` on the left side of chest below the clavical.
(2) An abrasion --'' x --'' in the right knee.
The shirt and Bunyan sheri had a corresponding cut of injury No. 1. The left lung had been cut through and through. The pleura had also been cut under injury No. 1. Injury- No. 1, according to the doctor, had been caused by sharp-edged weapon while injury No: 2 by a blunt-weapon. Both the injuries were ante-mortem. In the opinion of the doctor death had been due to shock and haemorrhage, and injury No. 1 had been sufficient to cause death in the ordinary course of nature.
The blood-stained bushirt and the blood-stained knife recovered from the appellant had been found by the Serologist to be stained with human blood.
7. In the trial the prosecution had proved the occurrence through Nazir Baig and Saghir Hussain and the dying declaration of the deceased through Najabat Ali and Muhammad Salim P. Ws. The appellant who had pleaded not guilty, had disowned the bushirt and had denied the recovery of the knife at his instance. He had also stated that the sister of the deceased was of loose character and that the deceased and his brother Najabat Ali had suspected him of having relations with her.
He had also alleged false Implication due to enmity on account of elections. He had, how--ever, led no defence.
8. Before us it was urged by Mr. Zia Mahmood Mirza, learned counsel for the appellant, In the first instance, that the eye-witnesses could not be believed because Nazir Baig was a close relation of the deceased and Saghir Husain though not related was a chance witness. Nazir Baig, no doubt, is the maternal uncle of the deceased, but his evidence cannot be disregarded only on, account of that relationship because his quarter had been only seven quarters away from that of the deceased and because he had gone out to see the deceased at the asking of the deceased's wife.
On seeing the deceased he had asked him to come but as the deceased had continued talking with the appellant, he had waited for him for a while when the occurrence had taken place. He had been at a distance of 2-3 yards from where the appellant was standing. It, vas urged that the deceased's wife should have normally asked her own children to find out the deceased instead of herself having walked eight quarters away to ask Nazir Baig for the purpose. It was also urged that it was not natural fir Nazir Baig to have stood waiting after be had delivered the mes--sage to the deceased. These arguments are based on conjecture and not on the facts in evidence and therefore do not merit consi--deration. Nazir Baig was a close relative and as such there is no-- thing unusual in deceased's wife having asked him to find, out and fetch the deceased. Since she had told him that the food had beats served and was getting cold, Nazir Baig was naturally anxious to see that the deceased returned. There is, therefore, nothing unusual either, in his having waited for his return. The other witness Saghir Husain is an employee of the same Mills and was a resident of Katchi Abadi in the same area. Much was sought to be made of his statement that on the day of the occurrence he had gone out to defeated at 4-30 p.m. And then to the Cinema house where he had been looking at the posters and had then been returning when he saw the occurrence.
Whatever may be the explanation, the fact remains that the witness was a resident of the locality, and as such his presence need not be doubted. However, it will not be against the rule of caution to look for corroboration to the evidence of these two witnesses.
9. The corroboration comes in the first instance from the dying declaration made by the deceased before Najabat Ali and Muhammad Salim P.Ws. Both the witnesses had deposed that the deceased before collapsing had disclosed that he had beep given knife blow by the appellant who had run away and who was being pursued, by Nazir Baig ,and Saghir Husain. It w urged that both the witnesses are closely related to the decease Najabat Ali is of course the younger brother of the deceased, while Salim's younger brother is married to a sister of the deceased. Notwithstanding their relationships, they are natural witnesses as they are residents of the locality. It was also urged that in vie1a of the medical evidence that death had been immediate, it was highly improbable that the deceased, had, after the receipt of the injury, walked some distance and made a declaration before collapsing. This contention loses its force in view of the explanation offered by the doctor on a question put to him by the defence itself, that 'immediate does not mean instantaneous but may be after a few minutes that the death occurred. According to the Investigating Officer, the distance walked by the deceased after the receipt of the injury had been eighty feet though accord--ing to the site plan it is about 104 feet. The possibility of the deceased having covered this distance is not altogether excluded by the medical evidence.
10. But the main corroboration comes from the recoveries of the bushirt which the appellant had been wearing at the time of his arrest, aid the knife a few days later. The knife had been recovered at the instance of the appellant from a maize field in vicinity. Both these items had been found to be stained with human blood. There is nothing against the recovery witness Muhammad Usman to discredit his evidence. The recovery can therefore besafely believed.
11. The motive, too, had been proved by the evidence of Najabat Ali. The appellant's plea of enmity on account of elec--tions had been totally denied by Nazir Baig. It is apparent that the appellant had killed the deceased as the latter had persisted in his refusal to accept tire proposal of the marriage of his sister with the appellant.
12. In view of the evidence before us we are satisfied as to the guilt of the appellant.
13. It was, however, urged that in view of the fact that the injury had been caused during an altercation, that there had been a single blow and that there had been no premeditation, the provision of Exception 4 of' section 300, P. P. C. Was attracted. Sagbir Husain, one of the eye- witnesses, had stated "But it ap--peared that they (deceased and the appellant) were hot with each other". It can, therefore, be said that the injury had been inflict--ed during the exchange of hot words. But a mere altercation: is not a fight as envisaged in Exception 4. There is no evidence that the deceased and the appellant had actually been engaged in a fight or had been grappled with each other. In these circum--stances, the said Exception is not attracted. Even if there had been a fight, Exception 4 could not be invoked in view of the authority of Sikandar v. The State (PLD 1966 SC 555) where there bad been a sharp and angry quarrel between two groups which had been followed by grappling and a fight in which blows had been exchanged after which knife had been used by the accused ; circumstances which were held to provide mitigation only justifying the award of the lesser penalty under section 302 P. P. C. In the present case, too, we are satisfied that the factum of a single knife blow having been inflicted in the course of ex--change of hot words and without premeditation, coupled with the fact that the appellant had been less than 18 years of age at the time of the occurrence will justify the award of the lesser punishment under section 302, P. P. C.
14. In the result we maintain the conviction of the appellant under section 302, P. P. C. But alter the sentence of death to one of transportation for life. With this modification in the sentence the