I. MAHMOOD, J.---The appellant Feroze Mushki son of Shamboo aged 33 years was tried on a charge under section 302, P. P. C. For the murder of Jan Muhammad. By his judgment dated 15-4- 1971 the Additional Sessions Judge, Karachi convicted the appellant and sentenced him to death.
The appellant has filed this appeal against the conviction and sentence. The case has also been referred for confirmation of the death sentence. The present judgment will dispose of the both cases.
2. The complainant is Taj Muhammad who is cousin of deceased Jan Muhammad and both of them lived in the same Gali. On the date of the incident the appellant was living with his mother-in- law Mst. Ghori who also was neighbour of deceased Jan Muhammad. The incident occurred on 8- 4-1971 at 11-00 p.m. On Sheedi village road near Baghdadi, about one mile away from Police Station Kalakot, Karachi, The prosecution case is that about four days before the incident there was some quarrel between Mst. Ghori and the daughter of deceased Jan Muhammad over filling water from a public water tap. Deceased Jan Muhammad intervened and there was exchange of hot words between him and Mst. Ghori. Two days later on 6-4-1971 in the evening the appellant came in front of house of deceased and abused him, but a quarrel was averted as the neighbours took him away. On .The date of incident viz. On 8-4-1971, complainant Taj Muhammad and deceased Jan Muhammad after taking tea in the Hotel Sadiq were returning to their houses. As they reached the corner of Sheedi Village Road they were accosted by the appellant Feroze Mushki and one absconding accused Hasan A.I alias Captain. The appellant abused the deceased but complain-- ant took the appellant Feroze on one side to avoid quarrel, After he and the deceased had gone a little distance further, absconding accused Hassan A.I caught hold of, complainant from his back side and appellant Feroze taking out a dagger from the folds of his trousers and followed the deceased who tried to run away towards Kalakot side to save himself. The appellant them overtook the deceased and gave him dagger blows on the back of the left thigh and on the left hand. The deceased fell down injured while the appellant and. Absconding accused ran away. Complainant Taj Muhammad followed the accused but they escaped. In the meanwhile, Mst. Idan who lives in the neighbourhood, came out on hearing cries and removed the deceased in a taxi to Civil Hospital, where the deceased died. The C. M. O., Civil Hospital informed the S. H. O., Kalakot Police Station, Anis ur Rahman of the arrival of the dead body of deceased Jan Muhammad. Com-- plainant went to the hospital where he found the deceased dead. He then lodged his F. I. R. At about 2-00 a.m. At Kalakot P. S. Which was recorded by A. S. I. P. Sultan Malik. Further investigation was carried out by Anisur Rehman S. H. O., Kalakot Police Station. On receiving copy of F. I. R. He proceeded to the wardat and prepared mashirnama of scene of offence in the presence of mashies. He noticed fresh marks of blood at several places in front of Diamond Tailoring House near Sadiq Hotel, secured blood-stained earth. He examined witnesses and at 7-30 a.m. On the same day he searched the house of the appellant in presence of mashies Muhammad Umar (P. W.
11) and Maula Bux (D. W. 2) and prepared mashirnama (Exh. 19). The appellant was not present as he was absconding. A dagger, shalwar and one shirt, all blood-stained, lying wrapped in soiled clothes in the room of the appellant were secured. These articles were sealed separately. They were sent to the Chemical Examiner few days later who reported that they were stained with human blood. He arrested the appellant from Shah Baig Lane, Machi Para a week after the incident viz. On 15-4-1971. He then challaned the appellant. The other co-accused Hassan alias Captain is still absconding.
3. The medical evidence is that of Dr. Umer Khan who performed the autopsy on the dead body of the deceased. On external examination he found the following two injuries:-
(1) Incised wound on left thigh posterially 3' above the knee joint vertical in direction 1-- x. -- ' x 3 deep in 'the muscles cutting the vessels nerves and muscles at this region.
(2) Incised wound left little finger on ulna side at the tip -- ' x -- ' x skin deep.
4. The defence set up by the appellant was denial of prosecution case and false implication due to enmity. The alleged enmity was stated to be that one Mst. Kulsoom aunt of deceased Jan Muhammad used to live as tenant in his house. She was divorced by her husband and therefore she was asked to vacate and hence enmity on the part of some of the P. Ws who are related inter se. The appellant examined two witnesses in defence, Ismail (D. W. 1) and Moula Bux (D. W. 2).
6. The ocular evidence is that of Taj Muhammad (P. W. 1). Abdul Ghani (P. W. 2). Hassan (P. W. 3) and Kamaluddin (P. W. 4). Of these four witnesses. Tai Muhammad is cousin of deceased while Hassan is his grand-uncle, the other two P. Ws. Are not related. The presence of the appellant and his attack on the deceased has been established beyond doubt by the ocular witnesses. The complainant Taj Muhammad (P. W. 1) his stated that when he and deceased Jan Muhammad were returning to their houses after taking tea in Sadiq Hotel at about 10-30 p.m. The appellant and absconding accused Hassan A.I confronted them and the appellant abused the deceased. That he caught hold of appellant to one side which enabled the deceased to run away. After covering a little distance he was held by absconding accused Hassan A.I from his back and be saw appellant ruining after the deceived and overtaking him and giving him dagger blows at the back of the left thigh. The incident was also witnessed by Abdul Ghani (P. W. 2) who stated that he was taking tea at Hotel Sadiq and on hearing cries he came out and saw the deceased lying bleeding and injured on the ground while the appellant Feroze was standing over him with a dagger. He also saw absconding accused Hassan A.I had caught held of anther person. This witness is a donkey-cart driver by occupation and is not relate to the complainant party. His evidence has not been shaken and there is no reason therefore to disbelieve it.
7. Hassan (P. W. 3) gives substantially the same version. He stated that he was standing in front of his shop when he saw appellant and abscond--ing accused Hassan A.I come there and stood in front of them and abused them. A fight was avoided in front of the hotel because the complainant Taj Muhammad took the appellant on one side. Then they followed the deceased and the complainant when he saw the appellant attacking the deceased after absconding accused Hassan A.I had caught hold of the com--plainant on the back.
8. Kamaluddin (P. W. 4) stated that he was sitting on the roof of his house at the time of the incident when he heard cries. The incident took place two or three paces near electric pole which had tube lights and therefore he could see the incident. He saw absconding accused Hassan A.I catching hold of the complainant and appellant giving dagger blows to the deceased.
9. The testimony of these P. Ws. Establishes beyond doubt that the deceased Jan Muhammad was pursued and stabbed by the appellant on the back of his thigh while trying to run away. This is also consistent with the medical evidence which discloses two injuries; the first on the back of the left thigh, which appears to has been caused while the deceased had his back to the appellant which was prepared him. The other injury on the little finger of the deceased appears to indicate that the deceased tried to snatch the dagger from the appellant.
10. The ocular evidence is amply supported by the circumstantial evidence of recoveries of the dagger and blood-stained clothes of the appellant from his house. The mashirs Muhammad Umar (P. W. 11) was examined to prove the recoveries: In fact the other mashie was Moula Bux who was examined as deface witness (D. W. 2). He also confirmed that the incriminating articles were recovered by the police from the house of the appellant and that he had signed a mashirnama which was prepared there. Therefore, there is nothing to doubt the recoveries of the articles. The other defence witness Ismail (D. W. 1) tried to show that the dagger in the possession of the police was purchased by him from the Bazar and the shirt and Pajama were also supplied by him and that they were not blood--stained and that these articles were given to the police in presence of mashirs Umer and Moula Bux. This version is falsified by Umer and Moula Bux themselves and this witness therefore cannot be believed.
11. While upholding the guilt of the appellant we would convert the conviction from one of murder under section 302, P. R. C. To one under section 326, P. P. C., The circumstances of this case show that there has been exchange of abuses and the absence of premeditation to kill the deceased.
The attack was rot repeated on the deceased nor on the complainant Taj Muhammad. The injury appears to have been inflicted by the appellant on the spur of the moment, and the fact that it was directed on the thigh, which is not considered as one of the vulnerable part of the human body, would rather show that the appellant had no intention of causing such bodily injury as was likely to cause death. In this connection, our attention was invited to the decision reported in Additional Advocate-General, Karachi v. Muhammad Siddiq (PLD 1969 Kar. 162.) which we think clearly applies.
12. In the circumstances, we would convert the conviction under section 302, P. P. C. To one under section 326, P. P. C. And substitute a sentence of 7 years' R.
1. Subject to this, the appeal-is dismissed. Sentence of death is not confirmed. The reference for confirmation of death sentence is rejected.