1. ' ABDUR RASOOL AGHA, J.--The appellant Ashiq Hussain son of Rahim Bux Rajput Jat resident of Deh 30-Jamrau, Taluka Sinjhoro was charged for offence under section 302, P.P.C.For committing murder of deceased Abdul Latif by means of causing 'Khanjar' injuries to him and tried by the Additional Sessions Judge, Sanghar who convicted him to the penalty of death and also sentenced to pay a fine of Rs,10,000 (Rupees ten thousand only) in default of payment whereof to suffer further R.I. For the years vide judgment in Sessions Case No, 106 of 1985 dated 10-10-1987 which judgment is impugned in this appeal and the Sessions Judge has also made a Reference for confirmation of death sentence by this Court.
2. ' The prosecution case, in nut-shell, is that Ali Nawaz A.S.I.P. Who was posted at Sanghar Police Station received a telephonic message while at the police station on 31-7-1985 at about 8-15 a.m.
3. To the effect that there was a fight in front of Civil Hospital, Sanghar on the main road and that accused Ashiq Hussain after giving 'Khanjar' blows to Abdul Latif was running towards Naka Road along with the Khanjar. A.S.I.P. Ali Nawaz took down the information on the Daily Diary and he alongwith his subordinates N.C. Mohammad Nawaz and Constable Ali Haider rushed towards the place of occurrence. The information received by the A.S.I.P. Ali Nawaz was noted down in the daily diary (Roznamcha) that has been produced and placed on the record as Ex.22. The police party when reached near the Traffic Chowk on Sanghar-Nawabshah, Sanghar Jhol Road, a man was found running towards their side followed by a traffic constable and some other persons of the town. The man running was accosted and apprehended and from the mob an inquiry was made whether any body knew the apprehended man. A person from the mob by name Riaz Hussain disclosed the name of the apprehended man to be Ashiq Hussain, the present appellant who was wearing clothes stained with blood and he produced bloodstained dagger from the fold of his 'shaiwar' as a crime weapon. The A.S.I.P. Secured the blood-stained shirt, shalwar and dagger in presence of two Mashirs namely Riaz Hussain and Ahmed Nawaz under a memo. Prepared by him as Ex.18. After causing arrest of the appellant he sent him alongwith the bloodstained articles to the police station through Head Constable Mohammad Nawaz and Constable Ali Haider and he himself went to the hospital where he came to know that the complainant had gone to the police station. A.S.LP.Returned to the Police Station where complainant in this case Akhtar Ali was available and his F.I.R was recorded who has produced the same as Ex.5. After recording the F.I.R.
4. Investigating Officer Ali Nawaz A.S.I.P. Started investigation and first he visited the hospital and saw the dead body of the deceased Abdul Latif lying in the Dead House. He prepared the memo. Ex.14 in presence of Mashirs Mohammad Sadiq and Mchrab. He also prepared inquest report of the dead body in presence of the same Mashirs which is Ex.15. Then the I.O. Gave a letter to Constable All Haider addressed to the Civil Surgeon for conducting the postmortem over the dead body and he himself proceeded to the place of occurrence alongwith the complainant and the Mashirs which was situated on the main Sanghar-Nawabshah Road in front of the outer gate of the Civil Hospital where blood-stained earth was secured and the Wardat was examined at the pointation of the complainant. Such memo. Was prepared which is Ex.16 on the record. Prosecution witnesses Shafqat Hussain, Nasir and Talib Hussain were examined and the District Education Officer was informed in writing with regard to the arrest of the present appellant as he was serving in the Education Department as a teacher. Thereafter the 1.0. Came back to the police station and registered another F.I.R. Under section 13-D Arms Act and examined witnesses in that case. On 5-8- 1985 statements under section 164, Cr.P.C. Of P.Ws Shafqat Hussain, Khalid Hussain and Mohammad Ashraf were got recorded before the City Magistrate, Sanghar in presence of the accused. On 10-8-1985 he examined P.Ws Sarwer and Samiullah and then the papers were handed over to S.H.O. For further action. The blood-stained articles secured from the accused were sent to the Chemical Examiner for examination and report which was received from the Chemical Examiner and placed on record as Ex.21. The appellant was sent up Or trial and formal charge was framed against him on 204-1986 which was read oR L r to the appellant who did not plead guilty and claimed to be tried. Consequently the prosecution tendered the evidence before the Court and in support of its case examined following witnesses:-
(1) Akhtar Ali Ex.4, who is the complainant in the case and has produced the F.I.R. Ex.5 lodged by him.
(2) Shafqat Hussain Ex.6, the eye-witness who had produced his statement under section 164 Cr.P.C. As Ex.7.
5. (3)
6. (4)
7. (5)
8. Mohammad Ashraf Ex.8, who has also produced his statement under section 164 Cr.P.C. As Ex.9.
9. Dr. Nisar All Ex.11, who conducted the post-mortem on the dead body of the deceased Abdul Latif and produced the same as Ex.12.
10. Mchrab Ex.13, the Mashir of deadbody, Inquest Report and inspection of Wardat and produced the same as Exs.14, 15 and 16 respectively.
(6) Riaz Hussain Ex.17 the Mashir of arrest of appellant and recovery of blood-stained 'khanjar' and clothes which he has produced as Ex.18.
(7) All Haider Ex.19, who had kept guard over the dead body of deceased Abdul Latif and handed it over to his relatives and deposited the bloodstained clothes at the police station.
(8) (6)
11. Ali Nawaz Ex.20, who had recorded the F.I.R. And investigated the case and also made recoveries.
12. He produced the report of the Chemical Examiner as Ex.21, the entry in Roznamcha dated 31-7-1985 as Ex.22.
13. Jan Mohammad Ex.23, who is Tapcdar and has visited the site and inspected the same in presence of complainant Akhtar Ali and P.C. Mohammad Nawaz and prepared the sketch which he produced as Ex.24.
14. ' The Assistant Public Prosecutor, In charge of the prosecution case vide statement Ex.10 dated 13- 10-1986 has given up the P.W. Khalid Hussain and vide statement Ex.25 closed the prosecution side on 2-8-1987.
15. ' The statement of appellant Ashiq Hussain was recorded under section 342 Cr.P.C. On 13-8-1987 which is on record as Ex.26 and the appellant denied the prosecution allegations and submitted that on the day of the incident he had come from his village in a bus which was following the suzuki in which deceased Abdul Latif and P.Ws. Nasir Ali and Talib were sitting and according to him when the bus stopped at the place where suzuki had stopped he found a mob of people on the road where P.Ws. Nasir and Talib informed him that someone had injured deceased Abdul Latif who was found lying injured and bleeding. He also stated that a blood-stained dagger was lying besides the deceased. He, PWs Nasir and Talib and 2/3 other persons lifted the injured/deceased Abdul Latif to the hospital where he left the deceased and while he came out from the hospital: at the gate police met him and apprehended him. He also gave explanation about the blood-stained clothes, shirt and shalwsar that since he had lifted the deceased to the hospital, his clothes got stained with blood. Appellant also offered himself to be examined on oath for disproving the prosecution allegations and expressed to examine Nasir son of Noor Ahmed Rajput and Talib Hussain son of Hidayat Ali Rajput as his defence witnesses.
16. ' The learned trial Judge while assessing the evidence on record relying upon the ocular evidence, motive and recovery of incriminating articles (clothes and dagger) from the appellant, convicted him as aforesaid. The present appeal is directed against the said judgment.
17. ' We have heard Mr.Muhammad Hayat Junejo, the learned Advocate appearing for the appellant, Mr. Azizullah K. Shaikh, for the complainant and Mr. Murtaza Hussain representing the State. We have been taken through the evidence on record by the learned counsel appearing for- the appellant kvho has contended that the evidence on record is not sufficient to sustain the judgment as according to him the ocular evidence was interested, unnatural and not reliable. He has further contended that P.W. Mohammad Asbraf is not named in the F.I.R. And he was examined on the next date of the incident, hence his evidence cannot be relied upon. He also argued that P.Ws. Appear to be chance witnesses and it appears unnatural that none of the P.Ws. Made any attempt to rescue the deceased and apprehend the appellant. Since so many persons had collected yet none has either been cited as witness or examined by the prosecution and finally the learned counsel emphatically argued that the prosecution has failed to substantiate/to prove the motive alleged against the appellant and in these circumstances and the facts of the case capital punishment was not called for.
18. ' Mr. Azizullah Shaikh, learned counsel for the complainant contended that the complainant and the P.Ws have no direct enmity with the appellant nor such enmity is suggested to the prosecution witnesses. The defence theory put forth is not convincing. F.I.R. Was lodged promptly and specific part was assigned to the appellant for the occurrence which had taken place during day time and appellant was arrested immediately after the occurrence from the close vicinity.
19. ' Mr. Murtaza Hussain, appearing for the State has contended that the prosecution witnesses have given plausible explanation for their presence at the place of occurrence, they arc natural witnesses and in absence of any enmity between them and the appellant, it cannot be said that they would substitute the appellant in place of the actual culprit.
20. The fact that deceased Abdul Latif died of injuries received by him on the day of incident i,e, 31-7- 1985 is not denied by the defence. There is ocular evidence of complainant Akhtar Ali, P.Ws. Shafqat Hussain and Mohammad Ashraf apart from the evidence of Mashir Mchrab Khan in whose presence the Inquest Report was prepared and Dr. Nisar Ali, Medical Officer who held the autopsy on the dead body of the deceased Abdul Latif.
21. ' Dr. Nisar Ali has deposed before the Court that on 31-7-1985 he was Medical Officer, Civil Hospital Sanghar. On that day injured Abdul Latif son of Allah Bux was brought by his relatives in injured condition. He examined the injured who was in the state of shock and gasping. According to him the injured immediately died although necessary immediate aid was given and after the death P.W. Ali Haider took the custody of dead body and after necessary formalities body was handed over to doctor who conducted the post-mortem. According to him, on external examination he found following injuries on the person of the deceased:-
(I) Stab wound 3 cm x 1 cm chest cavity deep, clean cut margins, narrow angles, on lower part of front of right side of chest, at anterio posteriarly.
(2) Stab wound 3 cm x 1 cm abdomen and chest deep, clean cut margins, narrow angles on epigastria regions, below upwards to the left.
(3) Stab wound 3 cm x 1 cm chest deep, clean cut margins, narrow angles, lacto-medially on the left on left post axillary line of chest.
(4) Incised wound 3 cm x 1 cm skin deep on front of elbow-joint.
(5) Incised wound 2 cm x 1 cm skin deep on front of left forearm.
(6) Contusion 4 cm x 3 cm on left side of forehead.
(7) Incised wound 4 cm x 1 cm skin deep on medial side of right hand.
(8) Incised wound 3 cm x 1 cm skin deep on front of index finger of right hand.
(9) Incised wound 4 cm x 1 cm muscle deep on medial side of left thigh above knee joint.
(10) Incised wound 2 cm x 1 cm muscle deep on lateral side of right knee joint.
(11) Incised wound 2 x 1 cm skin deep on front of left thigh.
22. ' From the external and internal examination of deceased Abdul Latif, the opinion of the doctor was that the cause of death was cardio respiratory failure, haemorrhage and shock. Injuries Nos.], 2 and 3, according to doctor, were individually sufficient to cause death in ordinary course of nature. All the injuries except injury No,6 appeared to have been caused by knife having both margins of the blade sharp cutting and he also opined that all the injuries were anti-mortem in nature and the death of the deceased may have occurred within 40 to 55 minutes and according to him the probable time between the death and postmortem was about two hours for which he issued a post-mortem report which he produced as Ex.12.
23. ' Akhtar Ali is the complainant in this case for whose presence at the Wardat there is no room for doubt and the details given by him in the F.I.R. Ex.5 lodged by him at 9.15 a.m. On 31-7-1985 are fully supported by other witnesses as well as the circumstances. Before the trial Court he deposed that deceased Abdul Latif was his cousin and both appellant and the deceased were known to him. He had come to Sanghar alongwith deceased, P.Ws. Shafqat Hussain, Nasir Ali, Mohammad Ashraf, Talib Hussain, Khalid and appellant Ashiq in a suzuki and after getting down from the suzuki while they were going towards bazar and had hardly covered a distance of 20/25 paces, they heard commotion and they rushed towards that side and saw the appellant Ashiq Hussain causing khanjar blows to Abdul Latif who was raising cries and fell down but the accused continued causing injuries to him. They challenged the accused not to kill the deceased but appellant Ashiq asked them not to go near else he would kill them. The complainant in his statement in Court as well as in the F.I.R. Has named the witnesses. He is cross-examined in detail but his evidence is not shaken by the defence. There is no enmity suggested to this witness. As a matter of fact, the complainant has stated in his deposition that accused is his 'Bhaneja' being son of the daughter of complianant's puphi' which fact has not been disproved by the accused. His evidence gets corroboration from the evidence of doctor, other P.Ws and the I.O. Doctor in the post-mortem has shown that the injured/deceased Abdul Latif was identified by Akhtar Ali as such we feel his presence at the place of occurrence at the time of incident cannot be doubted. He has denied the suggestion in the cross-examination that there was matrimonial dispute between him and the accused. He has also denied a suggestion that one Ch. Asim wanted the accused to sell his lands or that he was not present at the Vardat and was called for the purpose of the lodging the report from his village.
24. ' Shafqat Hussain, another eye-witness, has fully supported the case of the complainant. Having gone through his deposition, we find, the defence has failed to shake his evidence in the cross- examination and his evidence is similar to the evidence of the complainant, therefore, we feel it unnecessary to deal in detail with what he has deposed. He was put pertinent questions to explain his presence at Sanghar on the day of the incident which was a working day and he was government servant which was explained by this witness that usually on the last date of month they submit the monthly working report to their Head office at C Sanghar which he had brought to submit, therefore, he had come to Sanghar and according to him he actually submitted the report on 31st, the day of the incident. The Head Office was within the premises of Civil Hospital, Sanghar and according to this witness while deceased Abdul Latif was taken to operation theatre he had gone and submitted the report within minutes. We find his evidence to be natural and in absence of any enmity also trustworthy. He was examined under section 164, Cr.P.C. Which statement is also produced by him.
25. ' The third witness is Mohammad Ashraf. Although his evidence is also similar and he has supported the complainant in material facts, but the learned counsel for the appellant has contended that the presence of this witness at the Vardat is doubtful for the reason that his name does not transpire in F.I.R. And police recorded his statement on the next day. There is no doubt that the complainant did not mention the name of Mohammad Ashraf in his F.I.R. And the statement of this witness was also recorded on the next day of the incident as deposed to by A.S.I. Ali Nawaz. The learned counsel has also referred to the observations made by the trial Judge in his judgment keeping his evidence out of consideration. We also feel inclined to rule out of consideration his evidence, but still the evidence of complainant Akhtar Ali and Shafqat Hussain coupled with the circumstantial evidence produced by the prosecution is available on record. Having gone through the entire evidence on its appraisal, we see no reason to disagree with the conclusion reached by the learned Additional Sessions Judge, Sanghar and nothing has been brought on record to discredit the ocular testimony of the eye-witnesses to the incident and we find no force in the arguments of the learned counsel for the appellant to discredit the testimony of the P.Ws. Only on the ground of relationship. In the circumstances and the facts of the case, the presence of the complainant and thc witnesses at the time of the incident cannot be doubted, as they had accompanied the injured person to the hospital.
26. ' The next piece of evidence against the appellant is the arrest from the nearby place of incident within a short while and the recovery of incriminating articles including the crime weapon from the appellant fully supported by the witnesses in whose presence recovery was made and the admission of the appellant with regard to the- incident having occurred and presence of the witnesses.
27. ' In the alternative, the learned counsel for the appellant has forcefully argued that sentence of death in the instant case is not called for, in that it is argued by the learned counsel for appellant that motive as given by the complainant in his report and in the testimony in the trial Court was that one and a half months prior to date of occurrence there was fight between one Sarwar and Abdul Latif and Saleem and both the imirties had lodged reports and cases were in Court.
28. Appellant Ashiq Hussain was supporting Sarwar's party and the grievance was reported to Nekmard of the village against appellant Ashiq due to which he was annoyed but nothing has been brought on the record in this context by the prosecution. It is argued that something serious had happened giving provocation but prosecution witnesses are suppressing it and that even judgment is silent on this point. Mr. Mohammad Hayat Junejo has forcefully argued that in the circumstances and facts of the instant case, lesser punishment is warranted. He placed reliance on the case of Abdul Ghani v. State 1977 P Cr. L J 377- and other reported cases. On the other hand, it is argued by the complainant's Advocate and State counsel that in support of defence plea nothing has been brought on record nor it has been suggested to the eye-witnesses in the cross- examination so as to elicit even a denial. Keeping prosecution case in juxtaposition with defence plea, we feel convinced that presence of witnesses does not seem unnatural. Appellant in his 342 Cr.P.C. Statement and statement recorded under section 340(2), Cr.P.C. Has not denied the factum of incident and his own arrest. On the minute appraisal of the evidence, we have no hesitation to conclude that it was appellant who caused injuries to the deceased with dagger which was secured from him after arrest. There is ocular evidence supported by circumstantial evidence and, medical evidence to show that Abdul Latif died as result of injuries given to him by means of dagger by appellant on the day of incident. The explanation put-forward by appellant is neither plausible nor convincing. It is admitted by appellant that he was arrested by police on date of occurrence from place as alleged by prosecution. We have given our anxious thought to the contentions raised by the learned Advocate for the appellant and we are satisfied that the learned trial Judge has rightly appraised the ocular testimony of the P.Ws after examining the whole evidence on record and the appellant's statement of facts as to his plea of false involvement in the case. However, we find some substance in the arguments of the learned counsel for the appellant regarding sentence as prosecution has failed to substantiate motive. Upshot of the above is that since prosecution has not succeeded to prove motive against appellant for committing the murder of Abdul Latif, consequently we think, the penalty of death was uncalled for. Therefore, maintaining the conviction of appellant under section 302, P.P.0 the sentence of death is substituted in place of death to life imprisonment. With the above modification the Appeal No, 174 of 1987 is dismissed. As the result of substitution of the sentence, the reference made by the Additional Sessions Judge, Sanghar is rejected. The appellant shall be given benefit of section 382- B, Cr.P.C. While computing the sentence. We had decided the above appeal on 9-2-1988 by a short order and these are the reasons for the same.