' HAIDER ALI PIRZADA, J.--- The appellants who have been sentenced by the IInd Additional Sessions Judge, South, Karachi to death for the murder of one Noorur Rehman and have been further ordered to pay fine of Rs,5,000 each in default to undergo R.I. For one year each, have come up in appeal against their conviction and the fine imposed upon them. We have also a reference from the learned lInd Additional Sessions Judge for confirmation of the death sentence awarded by him to the appellants. This judgment will dispose of both, the appeal preferred by the appellants and the reference made by the Ilnd Additional Sessions Judge for confirmation of death sentence.
2. The prosecution case, shortly stated, is that, Aliur Rehman complainant lodged FIR. At Police Station, Defence Housing Society, Karachi, stating therein that he is originally resident of District Hazara, Tehsil Haripur and is living at New Kalapul along with his brother and father. On 18-9-1984 at 9-00 a.m., there took place a quarrel between Iqbal (appellant No,2) and his brother Noorur Rehman over some money transaction but the people intervened and averted the quarrel and so Iqbal went away. At about 9-30 a.m. He was standing at the shop of Anwar the green-grocer while his brother Noorur Rehman was sitting under the bridge when lqbal (appellant No,2) came there along with his brother Salcem (appellant No,1) and, just after coming, they attacked his brother. He ran to rescue his brother when Iqbal caught hold of his brother and asked Saleem to kill him whereupon Saleem gave Chhuri blow to his brother on the left side of his chest, as a result of which his brother fell in front of the shop of Anwar the greengrocer at a distance of few paces. He and Haroon son of Gulab, All Muhammad son of Sher Muhammad, Khan Gul son of Sher Zaman, Mustafa Ali son of lqbal Ilahi and other people present there caught hold of appellants Muhammad lqbal and Muhammad Saleem alongwith the blood-stained Chhuri. The appellants also received injuries during the scuffle. The poeple present there took injured Noorur Rehman to Jinnah Hospital in a Suzuki Van but he died on the way. The complainant brought appellants Muhammad lqbal and Muhammad Saleem to the police station alongwith blood-stained Chhuri with the help of eye- witnesses and lodged the report.
3. S.H.O. Muhammad Usman, after recording F.I.R., arrested appellants who were both brought by the complainant. He prepared Mashirnama of arrest. P.W.1 Aliur Rehman produced blood-stained Chhuri which was secured and sealed. The S.H.O also secured clothes of both the appellants vide memo. Exh.18 in the presence of Mashirs Haroon and Ali Muhammad. The appellants were having injuries on their person and hence they were sent by him to Hospital for treatment, examination and certificate. He thereafter went to Jinnah Hospital, Karachi, and at the potation of the complainant he prepared the Inquest Report (Exh.11) of the deceased in the presence of Khan Gul and Ali Muhammad. He prepared the memo. Of inspection of dead body (Eadi.10) in the presence of same Mashirs. He obtained the certificate regarding the cause of death from M.L.O. And then handed over the body to the complainant. He also obtained certificates from O.P.D. Regarding injuries of the appellants which are produced as Exhs.30 and 31. He then proceeded to the scene of offence and prepared memo. Of scene of offence (Exh.12) in the presence of Khan Gul and Ali Muhammad. He recorded statements of prosecution witnesses and collected blood-stained earth from the scene of offence which was sent to Chemical Examiner. The report of the Chemical examiner was produced as Exh.33. He produced Haroon, Ali Muhammad, Khan Gul and Mustafa before the A.C.M. South for their statements under section 164, Cr.P.C. He also produced the appellants before A.C.M. South for confession. After completing the necessary investigation challan was presented in the Court.
4. Dr. Zulfiqar Ali Rajput of Jinnah Post-Graduate Medical Centre, Karachi, performed the autopsy on the deceased. On an external examination he found the following injuries on the deceased:--
(1) Abrasion 1" x 1" right forehead.
(2) Abrasion 2" x 1" outer corner of right eye.
(3) Abrasion 1/2" x 1/2" right side of nose.
(4) Abrasion 1/2" x 1/2" right side of mouth.
(5) I/W 1" x 1/4" cavity deep 1" below left nipple oblique in direction.
(6) Abrasion 1/2" x 1/2" back of left hand.
5. From the external and internal examination of dead body, the doctor was of the opinion that death occurred due to hemorrhage and shock leading to Cardio-respiratory failure resulting from injury to chest from sharp cutting substance which could he knife or dagger (the injuries were ante-mortem). The doctor estimated the time between the death and the post-mortem examination as between 5 to 8 hours.
7. Dr. Lqbal Ahmed M.L.O. Jinnah Hospital Karachi, examined the appellants on 18-9-1984-at 11-15 a.m. And found the following injuries on their person:-- Injuries on the person appellant No,1 Muhammad Saleem
(1) Swelling in tenderness full of nose.
(2) Swelling 1" x 1/2" below right eye.
(3) Swelling 1" x 1/2" below left eye.
' Injuries on the person of appellant No,2, Muhammad Iqbal.
(1) Swelling 1" in diameter on middle of oxiptal region.
(2) Swelling in tenderness on full nose.
(3) Swelling 2" x 1" on left mandibular region.
(4) Swelling 1" x 1" on right mandibular region.
(5) Abrasion 3" x 4" x 1/4" into left ear.
(6) Contusion 2" x 1/2" above left scapular region (shoulder)
8. The defence of the appellants was that on the day of incident they were going to their shop when the deceased and his companions met them below the Kalapul, Karachi. They were cobblers by profession. They had prepared a pair of shoes for the deceased and they demanded the price of shoes whereupon the deceased was annoyed and started beating them. One Bilia, the servant of the deceased, attempted to cause Chhuri injury to the appellants but instead injured the deceased who suddenly came in front of the Chhuri. Billa escaped from place of occurrence whereas the appellants were overpowered by the complainant and the P.Ws. And falsely involved in this murder case when, in fact, they did not commit any offence. They went to Jinnah Hospital with Haroon as deposed by Dr. Iqbal Ahmed. The appellants further alleged that the complainant and P.Ws. Were related inter se and they had deposed falsely against them.
9. The prosecution case is based upon the ocular testimony, recovery of Chhuri, report of Chemical Examiner, medical evidence and retracted judicial confession.
10. Relying on the evidence of the eye-witnesses, motive, the recovery of Chhuri from the appellants and medical evidence, the trial Court found the prosecution case satisfactorily proved against the appellants.
11. Miss Naheed Iqbal, learned counsel appearing on behalf of the appellants submitted that the motive set up by prosecution is false, the eyewitnesses are interested, the evidence pertaining to the recovery of Chhuri from appellant Muhammad Saleem does not inspire confidence and investigation of this case has not been conducted honestly.
12. Mr. K.M. Nadeem, learned Assistant Advocate-General Sindh submitted that it is a fool-proof case against the appellants as the F.1.R. Was lodged promptly, the presence of eye-witnesses at the place of occurrence at the relevant time is natural, their testimony inspires confidence and the same cannot be discarded merely because of their friendship/relationship with the deceased.
Lastly,--it was submitted that appellant No,1 Muhammad Saleem inflicted one injury on the chest of Noorur Rehman which clearly establishes that appellant No,1 had no intention to kill him and therefore, his sentence of death be altered to one under section 304-11. He did not support the conviction of appellant No,2 Muhammad Iqbal.
13. Learned counsel for the complainant, Mr. Muhammad Rauf, supported the judgment of the trial Court. His submission is that the conviction and the sentence are just and proper in the circumstances of the case.
14. We have carefully considered the arguments of both the sides in the light of material on record.
15. There is no dispute as to the time and place of occurrence. The appellants stated in their statements under section 342, Cr.P.C. That they were going to their shop, the deceased and his companions met them below the Kalapul, Karachi, that they were cobblers by profession and had prepared a pair of shoes for the deceased, that they demanded money from the deceased on which he and his companions attacked them with hockey and Saryas as a result of which they received multiple injuries on their person and appellant Muhammad Saleem became unconscious.
According to the appellants one Billa, servant of deceased Noorur Rehm an, attempted to cause them Chhuri injuries but unfortunately the Chhuri did not hit appellants but the deceased came in front of the Chhuri and he received Chhuri injury at his chest at the hands of his own servant Billa who thereafter escaped from place of occurrence. The appellants were overpowered by the complainant and P.Ws. And falsely involved in this murder, case. Following the guiding principle laid down in Safdar Ali v. Crown PLD 1953 FC 93, we would first scrutinize the prosecution evidence as to its truthfulness or falsity and if we come to the conclusion that the prosecution evidence is unreliable then we shall accept the statements of the appellants in toto but if we find that the prosecution evidence is believable then we shall review the entire evidence by putting both the versions in juxtaposition and see if there exists reasonable possibility of the defence story being true. If the answer is in the affirmative then the appellants get the benefit not as a matter of grace but as a right and if the answer is in negative then accepting the prosecution case we shall proceed to determine as to what offence has been committed.
16. Ali Rehman (P.W.1) Khan Gul (P.W.2) Ali Muhammad (P.W.3) and Mustafa Ali (P.W.4) are the eye- witnesses of the occurrence, who largely supported the prosecution story given in the F.I.R., the substance of which is that at 9-00 a.m. On 18-9-1984 there was a quarrel between deceased and Muhammad Iqbal over money transaction but due to intervention of the people they were separated. Then at 9-30 a.m. Aliur Rehman's (Complainant's) brother (the deceased) was sitting at a cot. At that time P.W.3 Ali Muhammad, P.W. Haroon (not examined) and others were present under the Kalapul bridge. P.W.1 was standing 25 paces away at vegetable shop of Anwar. At that time Muhammad Salccm and Muhammad Iqbal came. Appellant Iqbal caught hold of deceased, Noorur Rehman and Muhammad Saleem gave him Chhuri blow on the left side of his chest.
17. The appellants have themselves not denied the occurrence but have set up a counter-version stating that while they were going to their shop, the deceased and his companion met them below the Kalapul. They were by profession cobblers and had prepared a pair of shoes for the deceased for which they demanded money from him on which he and his companions attacked them with hockey sticks and Saryas as a result of which they received multiple injuries. The prosecution case from the initial stage of the F.I.R. Was that at 9-00 a.m., there was a quarrel between Noorur Rehman and Muhammad Iqbal over money matter but due to the intervention of the people they were separated. Then again at 9-30 a.m. Muhammad Saleem and Muhammad Iqbal came below Kalapul bridge. The plea set up by the appellants finds corroboration from prosecution evidence itself. In all probability there were not two incidents as stated by the prosecution but there was only one single incident/occurrence resulting from a quarrel between the appellants and the deceased over money matter.
18. We now proceed to examine the two versions by placing them side by side to find out if there is a reasonable possibility of the defence version being D true. We may say at the outset that the defence version is neither reasonable nor probable. Even if the deceased refused to give the money demanded by the appellants, we do not think that the demand could have provoked the deceased-and his companions to pick up quarrel with the appellants in the manlier alleged by them. We confess our inability to see eye to eye with this explanation of the appellants which is too absurd to call for any comments. We, therefore, feel no hesitation in agreeing with the learned trial Judge who discarded the defence story and accepted the prosecution case. By reading the relevant portions of the statements of the eye-witnesses and the F.I.R. Jointly we find that their over-all effect is that the appellants demanded the charges for preparing a pair of shoes for the deceased Noorur Rehman and upon his refusal to pay the charges, appellant Muhammad Saleem attacked the deceased with Chhuri on the left side of the chest. The medical evidence supported the prosecution case inasmuch as an incised wound 1" x 1", 2" x 1", 1/2" x 1/2" cavity deep 1" below left nipple, E oblique in direction, and the other four abrasion wounds on forehead, outer corner of right eye, right side of nose, right side of mouth back left hand were caused by hard blunt weapon.
19. Next comes the question as to what offence appellant No,1 Muhammad Saleem has committed in view of the facts proved on record. Admittedly, no previous enmity existed between the appellants and the deceased, rather the deceased was a friend as well as a customer of appellants and never before there occurred a quarrel between them. It appears that the matter had flared up all of a sudden and appellant No,1 in the heat of passion took out Chhuri from the fold, of his Shalwar and gave injury with it on the left side of the chest of the deceased. In our opinion, in the circumstances of the case, appellant No,1 Muhammad Saleem had no motive to commit a premeditated murder. It seems that appellant Muhammad Saleem at the spur of moment inflicted the above injury on the deceased. In view of the circumstances that the blow was given without any premeditation and in the heal of moment, it is not possible to hold that appellant Muhammad Saleem had the requisite intention to commit murder but could only be saddled with the knowledge that the injury which he was causing was likely to result in death. We would alter the conviction from section 302, P.P.C. To section 304, Part II, P.P.C. And substitute the death sentence with R.I. For seven years, but would maintain the sentence of fine of Rs,5,000 or further R.I. For six months in default of payment thereof. Appellant Muhammad Saleem will be entitled to the benefit of section 382-B, Cr.P.C. While computing the sentence.
20. Appellant Muhammad Iqbal, although present along with appellant Muhammad Saleem at the time of occurrence, cannot be said to share common intention to commit murder along with Muhammad Saleem and cannot be saddled with the knowledge that the injury which Muhammad Saleem was causing was likely to result in death. We, therefore, by way of abundant caution, give him benefit of doubt as regards having common intention to murder Noorur Rehman and acquit him of the charge. He shall be released forthwith unless required in some other case. The reference for confirmation of death sentence stands rejected.