ABDUL HAYEE KURESHI, J.---This is an appeal against the judgment of Mr. Rasool Bakhsh Laghari, Additional Sessions Judge, Karachi, dated 29th August 1970, whereby he convicted the appellant under section 302, P. P. C. And sentenced him to death. The case is also before us on a reference made by the trial Judge for confirmation of the sentence of death.
2. By a short order dated 18th May 1972 we had dismissed the appeal, but rejected the reference for confirmation of the sentence for death and reduced the sentence from death to trans--portation for life. This judgment gives the reasons for the same.
3. Briefly stated the facts are that appellant Ahmad and deceased Abdul were known to each other and on the day of incident viz. 24 August 1967 at about 7 p.m. They were seen by witnesses Shamsuddin, Mahboob Ali, Akbar Ali and Zulfiqar Ali standing near Khoja Jamat Khana in Kharadhar. The witnesses named above except for Shamsuddin were packing their cricket kit in the ground that is adjacent to the Khoja Jamat Khana. The deceased Abdul told the appellant that latter had sex relations with witness Mahboob Ali. What was meant was that the deceased had accused the appellant of committing sodomy with Mahboob Ali. Mahboob Ali was also called by the deceased and both the appellant and Mahboob Ali refuted the allegation. The evidence recorded disclosed that thereafter the deceased and the appellant exchanged abuses and started fighting with each other and they grappled with each other. In this process of fighting the appellant took out a knife from the fold of his pyjama and stabbed the deceased on the left side of his chest.
The deceased after receiving injuries ran from there being followed by the appellant and similarly P. W. Shamsuddin also followed both of them with a view to stop the appellant. The appellant thereafter ran away but the deceased managed to reach up to a building known as Haroon Manzilth where he fell down and died. The main incident of stabbing was witnessed by the four eye- witnesses who were examined in the Sessions Court.
4. One Sher Ali who was the relative of the deceased was informed by a young boy about the death of deceased Abdul as having been murdered by the appellant Ahmad and further that the dead body was lying at Mithadar. Sher Ali conveyed this information to Anwar Ali, the brother of the deceased who met him on the way. Anwar Ali came up to the place where the dead body was said to be lying but in the meantime the dead body had been carried to the Civil Hospital, and Anwar Ali, therefore went to the Civil Hospital. In the meantime Dr. Qureshi, Casualty Medical officer. Civil Hospital, Karachi informed Kharadhar Police Station about the receipt of the dead body and the said information was recorded in the Station Diary maintained at that police station and a. Copy thereof was sent to Methadar Police Station as the crime had been committed within the jurisdiction of that Police Station. S. H. O. Shujaat Hassan Rizvi and S. I. P. Sultan Malik together with the Police party reached the Civil Hospital where complainant Anwar Ali, the brother of the deceased was present and his statement was recorded by the said S.H.O. Which has been produced on record as Exh. 18 and was subsequently transcribed in section 154, Cr. P. C. Register at P. S. Methadar and the same has been produced as Exh, 19, This information was recorded at the Civil Hospital at 9-30 p.m. And transcribed in section 154, Cr. P. C. Book at 9-45 p.m. Investigations were thereafter carried on under the supervision of D. S. P. Abdul Jabbar who had also come at the Civil Hospital in the meantime. Inquest report was prepared, post-mortem held and the clothes of the deceased were secured and the Police also inspected the place where the deceased had fallen down and succumbed to death near Haroon Manzil. Eye--witnesses Shamsuddin and Zulfiqar Ali were examined that very day by D. S. P. Abdul Jabbar, but it is not clear on the record as to when were Mahboob Ali and Akbar Ali examined. However, witnesses Mahboob Ali, Zulfiqar Ali and Shamsuddin were also examined by the Magistrate under section 164, Cr. P. C. After four days of the date of incident. The appellant had in the meantime absconded and he could not be arrested until 22nd March 1968, on which date A. S. I. Abid Hassan arrested him from Sultan Hotel at Hyderabad. At the trial the prosecution examined Shamsuddin (P. W. 4), Mahboob Ali (P. W. 5), Akbar Ali (P. W. 6) and Zulfiqar Ali (P. W. 7) as eye--witnesses of the incident. In addition the prosecution examined Anwar Ali (P. W. 11), the brother of the deceased who had lodged the F.
1. R.
Besides, A. S. I. Abid Hussain (P. W. 16) was examined on the point of arrest of the appellant. The committal Court's depositions of Sher All, Ghulam Rasool and Haji Yousuf were brought on the record of the Sessions Court under section 33 of the Evidence Act as these witnesses had become untraceable. The non-availability of these witnesses was proved by the evidence of process-server H. C. Mohammad Aslam (P. W. 12). . The rest of the evidence was of Police Officers who were associated with the investigation, Tapedar Sabbir Hussain, Mashirs of inquest and warden and thus evidence is of formal nature. The appellant led no defence, but in his statement he denied the entire prosecution case and also denied his arrest at Hyderabad on 22nd March 1968. He, however, admitted that he was aware of the friendship of deceased Abdul and P. W. Mahboob Ali. With regard to the witnesses, he stated that they had been set-up by the police at the instance of P. W.
Shamsuddin who is a habitual police witness and sell, 'charas' under police protection. He, however, admitted that a few days before the date of occurrence, he bad worked as a Table Boy in Cafe Hamsheeri where a quarrel had taken plat between him and P. Ws. Shamsuddin and Mahboob Ali on the other side.
5. The prosecution evidence connecting the appellant with the cringe consists of the evidence of four eye-witnesses named above which is sought to be supported by the evidence of P. W. Ghulam Rasool whose evidence was brought on record under section 33, Evidence Act as Exh. 46 and the evidence was to the fact of dying declaration. Ghulam Rasool in his evidence before the committal Court bad stated that he had seen the deceased lying on the ground in front of Haroon Manzil and had asked him as to who had stabbed him, on which the deceased informed him that he had been stabbed by appellant Ahmad. The other piece of evidence- against the appellant was his abscondence from Karachi immediately after the commission of aw offence and his arrest after seven months of the incident at Hyderabad. With regard to the evidence of Ghulam Rasool a the point of dying declaration, we have found that his deposition in the committal Court does not indicate as to whether a chance to cross-examine this witness was given by the committing Magistrate. That deposition does not indicate or show anything to prove that the appellant had declined to cross-examine the witnesses. The statement of Ghulam Rasool is therefore inadmissible and cannot be treated as evidence and for the purpose of this judgment we shall keep, it out of consideration.
6. The main piece of evidence against the appellant is of the four eye-witnesses whose names have already been given above. Each one of these eye-witnesses has given the same version about the incident. The evidence indicates and P. W. Mahboob Ali categorically admits that the deceased was a known bad character (Dadagir) of the locality and used to commit sodomy on him by force. It seems that the deceased had a suspicion that even the appellant was committing sodomy on Mahboob Ali (who was aged about 15 years at the time of the incident) and the deceased, therefore, had come up at the place where Mahboob Ali along with Zulfiqar Ali and Akbar Ali were packing the cricket kit presumably after finishing the game. P. W. Shamsuddin had at that time come out of the Khoja Jamat Khana and id the presence of all the witnesses the deceased accused the appellant of committing sodomy on Mahboob Ali. The appellant and Mahoob Ali both denied this accusation, but it appears that the deceased was not satisfied with his denial and, therefore, a quarrel ensued. In the quarrel, the appellant and the deceased abused each other and grappled with each other. While this grappling was going on, the appellant all of a sudden took out a knife which he had concealed in the fold of his pyjama and gave a blow to the deceased on the chest which resulted in his death. 1n regard to this version of the incident there is no contradiction in the evidence of the four eye-witnesses examined. The time of the incident was 7 p.m. And although the evidence discloses that the road lights had been lit, it is safe to presume that there was sufficient light for identification because it was at that time that the witnesses were packing up the cricket kit and this game cannot be played in darkness. Moreover, the witnesses knew the appellant and the deceased and, therefore there was nip question of mistaken identity.
An attempt was made in the cross-examination by way of suggestion that the murder had been committed by Shamsuddin, but besides the suggestion there is nothing on the record to show that this is a case of substitution of an innocent person for the real culprit. The name of the appellant transpires in the F. I. R. Wherein Anwar Ali, the brother of the deceased has stated that he had been informed by Sher Ali about the murder having been committed by appellant Ahmad on account of rivalry over Mahboob Ali. Sher Ali's evidence has also been brought on record under section 33, Evidence Act as Exh. 47 and he had stated that he was informed that the deceased had beer murdered by appellant Ahmed. Moreover, the evidence of the eye-witnesses is reliable because they have no grudge against the appellant. These witnesses, we must say, are completely independent and the cross-examination has been very scanty. These witnesses were examined by the Police at a very early stage of the investigation and there is nothing on the record to indicate that the witnesses were set-up by the Police either on their own or at the instance of Shamsuddin as is alleged by the appellant.
7. Mr. Zahoorul Haq, the learned Advocate for the appellant has however argued that the witnesses should not be relied on as their names have not been mentioned in the F. I. R. And further that their evidence should be doubted because the copies of the statement under section 164, Cr. P. C. Being not available with the prosecution were not supplied to the appellant and therefore a valuable right of cross---examination had been denied to the appellant. We see no force in these contentions. Undoubtedly the F. I. R. Does not contain the names of the witnesses, but the fact cannot be lost sight of that the F. I. R. Was not lodged by a person who had seen the occurrence or was present at the scene of offence. In this case it was lodged by Anwar Ali, the brother of the deceased, who had in turn been informed by Sher Ali, a relative and this Sher Ali had again been, informed by a small boy aged about 9 years. It appears that Anwar Ali had not even tried to find out the names of the witnesses before lodging the report. He being brother of the deceased would be more anxious to save-the life of his brother rather than embark upon a private inquiry to find the names of the witnesses who might have beers present on the scene of offence. We, there fore, cannot draw an inference against the prosecution in the circumstances of this case for the mere reason of absence of names of witnesses in the F. I. R. The absence of names of witnesses would further go to show that neither the police nor the complainant was interested in concocting false evidence against the appellant However, it must be remembered that D.S.P. Abdul Jabbar had examined Shamsuddin and Zulfiqar on the very first day.
8. With regard to the non-supply of copies of 164, Cr. P. C. Statement to the evidence discloses that the fact he witness, having been examined under section 164, Cr. P.C. Ought on the cord by the Assistant Public Prosecutor and simultaneously the Assistant Public Prosecutor had made a statement that the same were not available. There is nothing on the record to indicate as to what happened to these section 164, Cr. P. C. Statements. But on the other hand there is nothing to suggest that the prosecution had a motive to keep back this evidence because in that case the Assistant Public Prosecutor should not have felt the necessity of bringing any evidence on record to the effect that such a statement had been recorded. However, neither during the trial nor in this Court was it said that any prejudice has been caused to the appellant. In fact even an allegation is not made that these statements have been withheld by the prosecution with dishonest motive. We had asked the learned Advocate for the appellant to point out any prejudice that may have been caused to his client, but he frankly conceded that he could not build up a case of prejudice on the basis of want of these statements.
9. The next point urged by Mr. Zahoorul Haq, the learned Advocate for the appellant was that the scene of offence as shown in the evidence is manipulated. He has sought to build up the argument on the basis that the Police did not prepare any Mashirnama of the place where the actual stabbing had taken place and that the Medical Officer had in his evidence stated that the death was instantaneous. The import of the argument was that the incident must have taken place in front of Haroon Manzil and if that is so, the witnesses should not be believed. We have examined this argument very carefully. The medical evidence shows that the deceased had one injury and that was "an incised wound about 1-- x chest deep on the front of left chest in the fifth left inter- costal space, 2-- ' below and lateral to the left nipple." Moreover, the locality where the stabbing is said to have taken place and where Haroon Manzil is situate is the same. No attempt was made by the defence in cross-examination to bring out the distance between Haroon Manzil and the place where the stabbing took place. The evidence of the doctor that the death was instantaneous is not conclusive on the point as to whether a person having received such injury could or could not walk a little distance. If as is suggested by the Advocate for the appellant the stabbing had taken place in front of Maroon Building, it should have been seen by people of that locality. We have it in the evidence of Tapedar Sabbir Hussain that the locality where Haroon Building is situate is very busy locality and there are shops and houses. But in this case we have no witnesses from the inhabitants or shopkeepers in or near Haroon Building. This is strong circumstance to show that the evidence of witnesses is true more so for the reasons that the injury suffered by the deceased being a single injury would not have completely disabled him from moving or running for his rescue, There is no substance in this argument.
10. With regard to the evidence of abscondence of the appellant, the evidence is very clear. The incident had taken place on 24th August 1967 and D. S. P. Abdul Jabber sent information through the Central police to an the police Station West Pakistan on the next day. The appellant himself admits that he used to work as a Table Boy in Cafe Hamsheeri before the occurrence. In fact he states that P. W. Shamsuddin and Mahboob Ali had a quarrel with him at that Cafe. With regard to the arrest at Hyderabad on 22nd March 1968, the evidence of A. S. I. Abid Hussain is very clear. A. S. I.
Abid Hussain has stated that he was aware that the appellant was absconding and while he was staying at Hyderabad on 22nd March 1968 he got information that appellant was present and was serving in Sultan Hotel and he, therefore, arrested him and brought him to Karachi. A. S. I. Abid Hussain also made an entry to that effect in the Station Diary showing the arrest of the appellant from Hyderabad. This witness was not cross-examined at all and we, therefore, see no reason to ignore this piece of evidence against the appellant in view of his own admission and the evidence of P. W. Mahboob Ali who also had stated that appellant was working at Cafe Hamsheeri before the day of the incident.
11. The fact of stabbing has been established, by evidence available on record and we, therefore, hold that the death of deceased Abdul was caused by the appellant.
12. The other point raised by the learned Advocate for the appellant was that he was entitled to benefit of Exceptions I and IV to section 300, P. P. C. He stated and the prosecution case is that it was the deceased who bad gone to the appellant and accused him of committing sodomy on Mahboob Ali. This according to the learned counsel was provocation and of a nature as would entitle him to the benefit of Exception I to section 300, P. P. C. He relied on a judgment in the case of Bahawal Khan. v. The Crown (PLD 1953 Bal, 7). The Judicial Commissioner of Baluchistan as a Sind Judge had held that when a young tribesman was taunt6d as a catamite, it would not be surprising if the person so taunted would be deprived of his power of self-control and cause death.
To say the least, the conditions in that part of Pakistan may, be different -from the conditions prevailing here and moreover mere use of words of an insulting nature would not normally bring the case within Exception I to section 300, P. P. C. However, the facts of that case were different and the difference lies in this that while in the case referred to by the learned Advocate the deceased was shot immediately after the words were spoken by him; in this case the appellant and the deceased started grappling and abusing each other. In fact this gap in time and events were in the mind of learned Single Judge who decided the case relied on by the learned Advocate for the appel--lant and the learned Single Judge had observed as follows:--- "Again there is nothing on record to show that the act of shooting did not immediately follow the utterance of this serious aspersion on the moral character and dignity of the appellant's manhood."
13. With regard to the submission of the learned counsel as to the applicability or Exception IV to section 300, P. P. C., we leave no difficulty to repel the same. The facts in the case indicate that the appellant had concealed a knife in, the fold of his pyjama. The deceased was unarmed. Both the appellant and the deceased entered into mutual abuse and grappling. One of the most important ingredient for attraction of Exception IV is whether a person has or has not taken undue advantage and acted in a cruel manner. In a Federal Court case reported in PLD 1954 FC 304 (308), it was observed by Mr. Justice Muhammad Munir, the then Chief Justice, as follows:-- "The words under advantage' and 'cruel manner' which used in the fourth exception to section 300 not in any special signification but in their ordinary meaning, are not capable of any precise definition and no such definition has ever been attempted, obviously because whether a person can be said to have taken undue advantage or acted in a cruel manner depends upon the circumstances of each particular case, and no general formula can be evolved which may be applicable to all cases that may arise. The principle, however, is clear that where a man being dangerously armed fights under an unfair advantage, the killing is murder and not merely manslaughter, even though mutual blows pass; and decisions, both here and in England, have uniformly laid down that if in the course of a sudden fight one party resorts to a dangerous weapon, like a knife, a dagger, a hatchet or a firearm, the other party being wholly unarmed, and causes mortal injuries to his adversary, the offence committed is nothing but murder."
In that case, the appellant had used his knife after dis-arming the deceased and it was held that he had taken undue advantage and had acted in a cruel manner. In another case Sikander v. The State (PLD 1966 SC 555), Cornelius, C. J., observed that a conclusion on the point of undue advantage is usually based upon a consideration of the weapon available on the two sides and the manner of their use by the accused party. Even in the case of Ghulam Kadir (PLD 1956 Lah, 41), Mr. Justice Yaqoob Ali, now a Judge of the Supreme Court while disagreeing with an earlier decision of the Lahore High Court reported in PLD 1950 Lah. 171, observed as follows:-- "But if it was intended to lay down, as contended by the learned counsel, as a proposition of law that it did not amount to taking undue advantage or acting in a cruel manner if an accused person suddenly assaulted the deceased with a knife and killed him on the spot, because, the latter had in the course of an altercation abused and given one or two slaps to the former, then we respectfully beg to differ with this view because it will be contrary to the plain grammatical meaning of the words used by the Legislature."
Still in another case reported in PLD 1959 Lah. 1009 Mr. Justice Sajjad Ahmad, now a Judge of the Supreme Court observed as follows:--- "One important factor which must exist for the application of Exception IV to section 300, P. P. C. Is that the accused persons should not act in a cruel or unusual manner and not take any undue advantage over his adversary. The occasion must not only be sudden and unpremeditated, but the party assaulted must be on an equal footing in point of defence, particularly so when the attack is made with a deadly or a dangerous weapon."
Several more cases are available where the proposition of law laid down is that while it is a question of fact whether the accused has acted in a cruel manner or taken undue advantage, the weapons used are a safe criteria for drawing inference. Applying this test, we are of the view that after mutual abuse and grappling, the appellant drawing out the concealed knife from the fold of his pyjama and using it for the fatal assault deprive him of the benefit of Exception IV to section 300, A P. P. C. And we are, therefore, clearly of the view that the appellant is not entitled to this benefit.
14. This brings us to the question of sentence. The fact disclosed that it was the deceased who made an accusation against the appellant of sodomy and the deceased was of known bad character and 'Dadagir'. It is probable that he wanted to over-awe the appellant whom he suspected of committing sodomy on P. W. Mahboob Ali. In any case, the proved case is that there was mutual abuse and grappling. While we do not think that this would entitle the appellant to the benefit of any Exception to section 300, P. P. C. We are of the view that this is a circumstance that is sufficient to mitigate the sentence.
We, therefore, do not confirm the sentence of death passed on the appellant and while upholding his conviction under section 302, P. P. C. We reduce his sentence to transportation for life. The reference for confirmation is rejected and the appeal is allowed to the extent indicated above. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.