MUHAMMAD HALEEM, J.-Appellant Mohammad Younas stands convicted under section 302, P. P. C.
For the murder of Gulzar Khan and sentenced to transportation for life by the Ex-Officio Additional Sessions Judge, Karachi, vide judgment dated 26th November 1971. He has appealed to impugn his conviction and sentence while this Court has issued a suo moto notice for showing cause as to why his sentence should not be enhanced to death. This judgment will dispose of both these matters.
2. According to the prosecution case, the incident occurred at 8.45 p.m. On 8th January 1970 near Sabri Restaurant in Block No. 2 of the P. E. C. H. Society, Karachi. Muhammad Yousuf, Sahib Gul and Shakir went together to a place near Model School which is also close by in connection with some work and after finishing it they went to Sabri Restaurant for taking tea, and as they came out from there they saw the appellant, who is a grave-digger and whom they knew from before, and the deceased, whose name they came to know afterwards, quarrelling with each other and the latter demanding from the former the return of his loan of Rs.
50. The appellant replied that he had been insulted at many places because of it and that, therefore, he would take his revenge. Saying so he took out a knife from his pocket and stabbed the deceased who put his hand on his chest and cried out that he was dying and ran for a few paces and fell down. The appellant finding that he would be caught ran towards the mosque followed by Yousuf and other but he managed to escape. The deceased expired at the spot. Muhammad Yousuf proceeded to Police Station Ferozeabad, where he lodged the F. I. R. At 11 p.m.
3. Upon receiving copy of the report Altaf A.I. Khan S. H. O. Repaired to the wardat. He inspected it in the presence of Muhammad Yousuf and the mashirs. The dead body was lying near Sabri Restaurant but there was no blood on the ground at both the places. He sent the dead body for post-mortem examination. On the next day in the morning he arrested the appellant from an underground room in P. E. C. H. S. Graveyard and seized from his person blood-stained shirt vide mashirnama, Exh. 6, The appellant had an injury on his head; he was, therefore, sent for exami--nation and treatment to the Civil Hospital. He then examined Shakir, Shakil and Sahib Gul. He sent the clothes of the deceased which he received froth the hospital and the blood-stained shirt of the appellant for chemical analysts. Trough these articles were reported to be stained with human blood but it was of different groups, namely `B' and 'A'.
4. Dr. Muhammad Umar Khan performed autopsy on the body of the deceased who noticed the following injuries:- "(1) Incised wound left sixth intercostal space 3' lateral to mid eternal line, oblique transverse indirection --x -- x cavity deep obliquely upward and medially.
(2) Incised wound anterior fold of left axella upper part transverse in direction 1/3' x -- x cavity deep with surgical emphyesa.
(3) Linear incised wound left axella at Middle 1' x. 1/10' superficial.
(4) Two small abrasions on right knee patella -- ' x -- ' inch.
(5) One linear superficial incised wound on the left index finger on dorsal side -- ' long.'
Injuries 1, 2, 3 and 5, in his opinion', were caused by a sharp-edged and pointed weapon, such as knife while injury No. 4 could be "due to a fall" and that further injury No. 1 was individually sufficient to cause instantaneous death in the ordinary course of nature.
5. The appellant was examined by Dr. Iftikhar Ahmed who noticed the following injury on his persons:- "Haematoma right side of top of skull 1' x -- ', which was simple in nature and caused by a hard and blunt weapon.
6. The appellant when examined denied his involvement in the crime but admitted that he was arrested from his but in the graveyard. He, however, denied that lie was hiding there and also the recovery of the blood--stained shirt. He admitted that he had an injury on his bead but explained it saying that lie was beaten by a constable after he was arrested at the police station. Lastly he stated that he was a friend of the deceased and that- the prosecution witnesses are also their common friends, who are now falsely deposing against him.
7. The prosecution examined Muhammad Yousuf and Sahib Gul at the trial while the depositions of Shakil and Shakir were transferred to the Sessions file under section 23 of the Evidence Act, as the whereabouts of the former were not known while the litter had died. Their testimony furnished direct evidence in the case. Muhammad Yousuf lived in Bahadurabad on an un-constructed plot belonging to Tibet Snow Company. He was employed to look after ft. It was about a mile away from the place of incident. Sahib Gul lived two furlongs away from the un-constructed plot while the shop of Shakir, who was a plumber, was about 100 pace away from this plot. It is in the evidence of Muhammad Yousuf that there was some dispute between Shakir and Hasan who is described as his teacher and to settle that dispute Shakir had some to him while Sahib Gul came on his own to meet him and all of them proceeded together to visit Hasan's house which was near Model School, and from there they came to Sabri Restaurant where they took tea arid soon after they witnessed the occurrence. The appellant was known to them from before but the deceased was stranger, whose name transpired after the incident. We 'have scrutinised the evidence of Muhammad.
Yousuf, Sahib Girl and Shakir which is on the same footing. Each of them has implicated the appellant as having stabbed the deceased consequent upon a quarrel between the two over the return of Rs.
5. Their presence at the wardat cannot be in doubt, for if they were not present there then it is unbelievable that Muhammad Yousuf, who had no interest in the deceased, would figure as a complainant in the case, nor the other two as eye-witnesses. No bias is suggested to these witnesses. On the other hand, the appellant has admitted that they were the common friends of both the deceased and himself. In spite of this it was suggested to Shakir that he, Yousuf and Sahib Gul had killed the deceased in Yousuf room and then lodged a false complaint against the appellant, which was denied. Again, it was suggested to him that the dead body of the deceased was brought from there and thrown near Sabri Restaurant while no such incident happened near it which was also denied: To the same effect a suggestion was put to Sahib Gin, which he denied. In the context of these suggestions reliance was placed on the absence of blood from the place where the deceased was stabbed and where his dead body lay and it was urged that the deceased was not killed hear Sabri Restaurant. On the face of it, it is absurd to assume that at that time of the night his dead body would be brought and, thrown at a place where it could be noticed by others. Again, if the body had to be disposed of, it could have been thrown at a lonely spot rather than place which is visited by so many passers-by. How his body was brought, is again not clear from this criticism. 1n the circumstances, it is not possible to doubt that the deceased was killed at that spot. The absence of blood on the ground, however, stands explained from the fact that being winter season the deceased was wearing a jacket besides a banyan and a shirt and it was therefore that the blood, which flowed out, had soiled these articles instead of sporting out and falling on the ground. This reason can also be consistent with what the doctor has said that sufficient blood can pass out. This does not, however, mean that the blood would have fallen on the ground in site of the articles of clothing worn by the deceased. It was also urged that the deceased could trot have been in a position to run for a few paces after sustaining injury No. 1. This criticism is unsustainable for the doctor has even said that a man can walk a few steps after sustaining injury No. 1. Instances have been noticed where in spite of fatal injuries the victims have run for a few paces, and the present is an instance of that kind. His body could not have been found at that place if he had not traversed a few paces. There are certain inconsequential discrepancies in the testimony of these three witnesses, but none of them reflects on the main issue that it was the appellant who had stabbed the deceased over a quarrel. It was urged that Shakir---s statement was wrongly transferred as he is still alive and is being kept of back. The process server was examined and he stated test Shakir had died. Muhammad Yousuf was also questioned to elicit inform--ation about his death and he has stated so. 1a the absence of any concrete material on record to lead to an inference that he was alive, it is not possible to disregard his evidence on a mere surmise that he is still alive. Accordingly we see no reason to disbelieve them.
8. The last eye-witness is Shakil. His statement was also transferred as it was testified by the process-server that his whereabouts were not known. Shakil gave his occupation as an electrician and stated that h: resided near Taiyaba Masjid and that Model School was also near it. At about 9 p.m. While he was haling tea in a hotel near the graveyard he heard a commotion and on coming out he saw two persons fighting, of whom one was the appellant and the other the deceased, whose name he learnt afterwards. The deceased gave a push to the appellant who took out a knife from his pant pocket and stabbed the deceased on his abdomen. The deceased while keeping his hand on his chest cried out that he was 'killed'. Thereafter 4 or 5 persons ran after the appellant to catch him but he managed to escape. In cross-examination be stated that he had gone to the police station at 10-30 p.m. The same night and narrated the incident and saw no one, amongst those who had chased the appellant, at police station. On this premise it was urged that that statement can alone be regarded as the first in--formation report which is not forthcoming and in its absence an adverse inference should be drawn. There is, however, nothing to establish that this witness had visited the police station at that time. A suggestion was put to Altaf A.I Khan S. H. O. As to whether Shakil had visited the police station at 10-30 p.m. Giving out his name and address and also the facts of the case, which he denied. Again corpse bearer, Abdul Rashid, was cross- examined to elicit some favourable reply and all that he stated is that "some person" had come to lode the report without giving out his name but he could not say at what time he had come as he was not on duty and that further that report was not entered by Sarwar A. S. I. From this reply the presence of Shakil is not established at the police station, nor is it conceivable that if the facts of the incident were reported they would not have been taken down by the A. S. I. In a case of murder; therefore, it not having been established that Shakil had reported the incident at all nothing can turn on his admission which we think was made to favour the appellant.. Since he resided in the same locality and had witnessed the occurrence, his name must have transpired during the investigation and it was, therefore, that he was examined the next day. It also appears to us to be without reason as to why his examination would be suppressed if at all he had volunteered to give his statement. The appellant was known to him and no question was put to suggest any bias against the appellant. There is, therefore, no reason for us to disregard his evidence on the main issue.
9. The blood group on the shirt of the appellant is different from that of the deceased. Accordingly the blood found on the shirt of the appellant can have no incriminating value. Nonetheless he had an injury on his head, which he stated to have been caused by the constable at the police station.
It is, not believable that a visible mark of injury can be caused in this fashion by a policeman. At the same time, no one has said that the deceased was armed with any blunt weapon. It cannot, therefore, be said that it could have been caused by the deceased. A fist' blow cannot also cause an injury of this nature. It is in the evidence of Sahib Gul that the appellant ran for some distance on the main road and then jumped into a bungalow and escaped". It. Is, therefore, likely that while running away he must have struck against some hand object which had caused that injury, otherwise there is no explanation for it. Again, the deceased had four incised injuries though about one the witnesses have spoken. It is likely that the others may not have been noticed in the confusion of the struggle between them. This feature by itself is otherwise insufficient to doubt their veracity. The prosecution has accordingly established its case against the appellant beyond reasonable doubt. As for the sentence, we do not see any justification to enhance it as it is in evidence that the two had quarrelled over the return of loan and abused each other and in the heat of the moment the appellant had taken e out a knife from his pocket and stabbed the deceased. There is thus no element of premeditation and therefore it is not a case where death penalty should be imposed. Even otherwise, if death sentence had been imposed by the trial Court he would have earned the benefit of commutation of that sentence pursuant to an order of the President. While, therefore, maintain--ing his conviction and sentence we dismiss the appeal and vacate the notice.