AGHA ALI HYDER, J.-The appellant and one Abdul Ghani were tried by the learned Additional Sessions Judge, Karachi; for offences under sections 302 and 324/34, P. P. C. Abdul Ghani was acquitted but the appellant was convicted and sentenced to death on the former count, while under section 324/34, P. P. C. He was to undergo R. I. For one year. Aggrieved by the judgment of conviction and sentence he has come in appeal. A reference has also been made by the learned Additional Sessions Judge as required under section 374 of the Code of Criminal Procedure. Both, the reference and the appeal will be disposed of by a common judgment.
2. The prosecution story, succinctly stated, is that P. W. Mst. Maryam had transferred her affection from the appellant to Ghulam Sabir, since deceased. As a result thereof, the appellant had started nursing a grudge against him. It is alleged that oft the 12th of August 1969, at about 11 p.m. Ghulam Sabir, with a. Child in his lap, accompanied by P. W. Nasiruddin, passed by the side of Banjaran Hotel situated in Gandhi Nagar, Karachi. The appellant and one Makrani were sitting on the way.
Seeing Ghulam Sabir, the appellant lost his temper and shouted that he would not go alive.
Sensing danger, Ghulam Sabir handed over the child to P. W. Nasiruddin. Thereafter the appellant is stated to have given a knife blow on the thigh of Ghulam Sabir, Ghulam Sabir fell down and was given some fist blows thereafter. The appellant also darted a knife blow to the child, which however, struck Nasiruddin on the arm. The assailants are stated to have then rim away. Some people collected round, including P. W. Mehdi Hassan, a Police Constable who was on patrol duty. The said Mehdi Hassan arranged a rickshaw and sent Ghulam Sabir to the Civil Hospital for treatment with Nasiruddin, and himself proceeded to the Kalakot Police Station where he gave the information of the happenings, which came to be recorded in the Station Diary. Ghulam Sabir however, died on the way before reaching the hospital. S. I. P. Sultan Malik-, having received a copy of the Station Diary, proceeded to the Civil Hospital and learnt about the death of Ghulam Sabir. He then examined Nasiruddin and prepared the Inquest Report over the dead body. In the meantime, the S. H. O. Muhammad Nishan reached the Civil Hospital, and proceeded to the vardat where he secured some blood-stained articles and examined some witnesses. Within couple of hours, the appellant came to be arrested. There was blood on his clothes which were secured by the S. H. O. Under a Mashirnama. The appellant then produced a knife, which, according to the S. H. O. Was blood- stained. The knife was duly sealed at the spot and a separate Mashirnama was prepared. Abdul Ghani came to be apprehended on the 14th of August and the case, after due investigation, came toy be challaned in the Court of a Magistrate for enquiry.
3. The appellant in his statement at the Court of inquiry as well at the trial denied the various allegations made against him and also examined three witnesses in his defence.
4. The death of Ghulam Sabir as a result of the injury is not disputed. The autopsy was performed by Dr. Muhammad Umar Khan, the Police Surgeon, who found the following external injuries on the person of the, deceased: -
(1) Incised wound left upper and outer thigh 3' x 1--' x 4' deep medially and taperingdown. The wound was vertical. Fermoral vein and femord artery were cut into two.
(2) Contusion left sub costal region 1' x 1/2'.
The Medical Officer was of the opinion that the injuries which were ante-mortem in nature had been caused by a sharp-edged weapon like a knife and the death had occurred as a result of profuse haemorrhage and shock due to the cutting of the fermoral artery and vein. The injury No. 1, according to him, was sufficient in the ordinary course of nature to cause death.
Nasiruddin was examined by Dr. Muhammad Mujib Alam, who found the following injury on his person: -
(1) Incised wound. Left arm in direction 3/4' x 1/4' x muscle deep with corresponding cut on the shirt.
The injury was simple in nature and had been caused according to the Medical Officer, by a sharp- edged weapon like a knife.
5. The evidence against the appellant consisted of eye--witness account given by P. Ws.
Nasiruddin and Muhammad Ibrahim. The other pieces of evidence against him were the recovery of blood-stained clothes from his person, the production of blood-stained knife and lastly motive:
6. P. W. Nasiruddin has stated that Ghulam Sabir was known to him. On the night in question he had gone to Banjaran Hotel with some medicine for his friend by the name of Mawali. While returning, he had seen Ghulam Sabir going with a child in his lap, and the two of them had started going together when they had seen the appellant and one other person, sitting in front of the Ice Factory.
The appellant had asked Ghulam Sabir to stop and opening a knife ran towards him and gave a knife blow hitting Ghulam Sabir on the thigh. Thereafter another blow was aimed at the child, which fell upon the arm of the witness himself. He has clearly stated that the appellant was known to him since 15 years, but not the co-accused, since acquitted. He has also stated that there was light in the vicinity. A policeman had turned up in the wake of the incident and sent Ghulam Sabir along with him, to the Civil Hospital. This finds corroboration from P. W. Mehdi Hasan. In view of the injury on his person, there is no room to doubt his presence. It is true that he was known to Ghulam Sabir as they were neighbours for some time, but there is nothing on the record to show that he had any motive to falsely implicate the appellant.
7. The evidence' of P. W. Muhammad Ibrahim, the other eye-witness, has been rejected by the trial Court and for good reasons. It is not necessary to deal with the same, as Mr. Manzoor Hussain, learned counsel for the State, had also nothing to say in that context.
8. Mr. H. A. Rizvi, learned counsel for the appellant, however, argued that since the testimony of Nasiruddin had been rejected by the trial Court in regard to Abdul Ghani, it should also have been rejected as against the appellant. In support of his contention, he relied upon The State v. Basirullah (1). It is however wrong to say that his version was disbelieved. The case of Abdul Ghani is very much distinguishable because he was not known to Nasiruddin and he had not furnished any details about the physical features at any stage. Even the identification test had been held after a delay of about 6 days. There was no other evidence against him at all. The benefit of doubt given to Abdul Ghani in the circumstances was not open to any exception. There is however no reason to look askance at the testimony of Nasiruddin in regard to the appellant as they were known to each for a long time and who had been properly identified. It is also to be noted that he came to be apprehended within .Two hours of the incident and his clothes were found to be blood-- smeared.
Soon thereafter a knife was secured from inside a godown on the pointation of the appellant, and was duly sealed. According to the Chemical Examiner, it was stained with human blood.
9. Muhammad Aslam, the Mashir in connection with the production of the knife was not subjected to any cross-examina--tion at all. There is nothing to show that he was a henchman of the police.
Nothing smacks of bias in Jang Bahadur, the Mashir of the securing of the blood-stained clothes.
10. There is also the evidence of motive against the appel--lant. Khawaja Bux, the brother of the deceased Ghulam Sabir, has stated that Ghulam Sabir came to be murdered by the appellant because of their rivalry over Mst. Hira now known as Mst. Maryam. Mst. Maryam was also examined.
She had been converted to Islam before the Partition of this sub-continent and was living in a building owned by her. She has stated that after the Partition she had married one Gul Sakhi, who had disappeared after about 2 years of their marriage. Thereafter she had been living all alone. The appellant was her tenant and was known to her since five years. She also admitted that Ghulam Sabir used to visit her. She however, did not say any thing further and was not cross-examined by the learned A. P. P. Notwithstand--ing what she had to say earlier in her statement recorded under section 164, Cr. P. C. The learned Additional Sessions Judge did not rely on the motive. It is a trite proposition of law, that the absence of motive will hardly make a difference, if the case against an accused is satisfactorily established, but to my mind, even if Mst. Maryam was in the evening of her life, and without any physical attraction as observed by the learned Additional Sessions Judge, still she was a woman apparently with some
(i) PLD 1964 Dacca 710 substance, and known both to Ghulam Sabir and the appellant. She was all by herself, as the record indicates. The fact that there was- some bad blood between them on her account, cannot therefore be totally ruled out.
11. The appellant in his own statement at the trial mentioned that the deceased was a friend of his, and he had been called at the police station, after the murder. He had protested his innocence, but all the same was roped in the case. Apparently they were no strangers to each other and how the events took a turn in this professed friendship is any body's guess.
12. The three defence witnesses examined, hardly deserve any consideration. Vilayat Ali has deposed that on the night of the incident he had taken two people on his rickshaw from the Banjaran Hotel to the Civil Hospital. One of the passengers was injured. They were talking to each other. The companion of the injured was saying that he should not be implicated in the case and he would meet all the expenses of the treatment. There was no further talk between them and they had got down at the gate of the Hospital. On his own showing he had not been examined by the police. The appellant was not even known to him and still he appears as his witness. D. W. Ghulam Rabbani does not state to have seen the fight, being 70/80 paces away. D. W. Alauddin who deposes to have been in the company of Ghulam Rabbani at that time, neither saw any fight, nor any policeman. All that speaks for it self.
13. Giving due consideration, I am of the opinion that the case against the appellant has been established beyond all reason--able doubt. The attack was wanton and without any excuse for incurring the risk of causing death or bodily injury. His con--viction therefore for the offence under section 302 is proper. However, I think that in view of the fact that the appellant struck only one blow, though Ghulam Sabir was completely at their mercy, and that too on the thigh, he should be spared the maximum penalty under the law. The sentence is therefore altered from death to transportation for life. The sentence for the offence under section 324, P. P. C: is maintained. The sentences will run concurrently.
14. With this modification, the appeal stands dismissed.