' WALI MUHAMMAD KHAN, J.--Through the instant Criminal Appeal, Mehboob convict-appellant has called in question the order dated 1-10-1989 passed by Mr. Muhammad Irshad, Additional Sessions Judge-II, Haripur, whereby he was convicted under section 302, P.P.C. And sentenced to death subject to confirmation thereof by this Court, plus a fine of Rs,5,000 or in default to undergo imprisonment for a period of one year, which, on realizaion, was to go to the legal heirs of the deceased under section 544-A, Cr.P.C. For causing the death of Mirza Khan deceased by stabbing him, on 11-9-1986 at Chashka Vela in the limits of village Hilli, Police Station Khanpur. The trial Judge has also made a murder reference to this Court for the confirmation of the death sentence which is registered as Murder Reference No,4 of 1989 and this judgment will dispose of both the Criminal Appeal and the Murder Reference.
2. The background of the case culminating in the instant tragedy briefly stated is that on the day of occurrence at Chashka Vela, the deceased Mirza Khan alongwith his wife Mst. Chandni complainant (P.W.10) and his daughter-in-law Mst. Zuria (P.W.11) started for their fields for cutting grass and when, en route, they reached near the house of Gulzar(P W 9), they saw Mehboob convict-appellant armed with shotgun and Mst. Safdar Jan his wife (acquitted accused) emerged from behind a 'Banna' and Mehboob convict-appellant aimed his gun at the deceased and directed him to recite Qalima and be ready for the consequences whereupon the deceased pounced upon the convict-appellant and in catching hold of the gun from him in the scuffle the gun fell down on the ground. Thereafter, Mst. Safdar Jan, acquitted accused, caught hold of the deceased and Mehboob convict-appellant drew out a dagger from his trouser string and delivered blows with it to the deceased hitting and injuring him. Mst. Zuria (P.W.11) tried to separate them but Mst. Safdar Jan acquitted accused delivered her blow with a stone on her forehead and injured her.
Gulzar (P.W.9) was attracted to the spot on the noise and seeing him the convict-appellant and his wife Mst. Safdar Jan ran away, leaving behind the gun on the spot. Gulzar (P.W.9) picked up the gun and handed it over to Mirza Khan (P.W.4) who later on produced it to the Investigating Officer. The motive for the offence is a civil suit pending between the parties over the landed property.
3. Mst. Chandni complainant (P.W.10) went to the Police Station alongwith Mst. Zuria (P.W.11) in injured condition and reported the matter which was recorded by Mehrban Shan ASI (P.W.12) vide FIR Ex.PA. He thereafter prepared the injury sheet Ex.PW12/1 of Mst. Zuria (P.W.11) and sent her to the Hospital for medical treatment. Since the dead body of the decesased was on the spot he proceeded to the spot and prepared injury sheet Ex.PW8/2 and inquest report EX.PW8/3 of the deceased and sent the dead body to the mortuary for post-mortem examination under the escort of Sardar Muhammad FC(P.W.1) where Dr.Umar Khitab (P.W.8) conducted the autopsy on the dead body of the deceased Mirza Khan on the identification of Muhammad Zaman (P.W.2). The Investigating Officer inspected the spot and prepared site plan Ex.PW 12/2 with all foot-notes correctly. He took into possession blood-stained earth and grass and sealed them into parcel vide memo Ex.PW3/1 in the presence of Malik Muhammad Yaqub (P.W.3) and Mirza Khan (P.W.4). He also recovered in the presence of the same witnesses, 2 live cartridges of 12 bore EX.P-3 from the spot and took them into possession vide memo Ex.PW3/2. Mirza Khan (P.W.4) produced shotgun EX.P-4 allegedly left behind by the convict-appellant on the spot to the I.O. Which he took into possession vide memo. Ex.PW3/3 in the presence of Muhammad Yaqub (P.W.3). Sardar Muhammad FC (P.W.1) brought from the hospital shirt Ex.P-1 and Banyan Ex.P-2 blood-stained, having cut marks belonging to Mirza Khan deceased which were entrusted to him by the doctor after the post- mortem examination and produced them before the I.O. Who took them into possession vide memo. Ex.PW1/1. The convict-appellant was arrested on 17-9-1986 and the same day he led the I.O.
In the presence of Muzaffar Khan (P.W.6) and Muhammad Younis (not produced) to his house which was locked and by breaking the locks open, brought out the dagger Ex.P-5 blood-stained being the weapon of offence and produced the same before the I.O. Who took the same into possession and sealed it into parcel vide memo. Ex. PW6/1. The I.O. Prepared the site plan of the house EX.PW12/3 wherefrom the recovery of the dagger Ex.P-5 had been effected. The blood- stained earth, grass, clothes and blood stained dagger were sent to the Chemical Examiner whose report in positive is Ex. PW12/5. On the completion of investigation Mian Raza Hussain SHO (P.W.13) submitted challan to the Court of Illaqe Magistrate who in his turn sent up Mehboob convict- appellant and Mst. Safdar Jan acquitted accused for trial to the Court of Session.
4. After complying with the procedural formalities, charge under section 302/323/34, P.P.C. Was framed against the convict-appellant Mehboob and acquitted accused Mst. Safdar Jan, to which they pleaded not guilty and claimed trial. The prosecution in support of its case, examined Sardar Muhammad FC (P.W.1), Muhammad Zaman (P.W.2), Malik Muhammad Yaqub (P.W.3), Mirza Khan (P.W.4), Muhammad Anwar Khan ASI (P.W.5), Muzaffar Khan (P.W.6), Muhammad Aslam FC (P.W.7), Dr.Umar Khitab (P.W.8), Gulzar (P.W.9), Mst. Chandni Jan (P.W.10), Mst.Zuria (P.W.11), Mehrban Shah ASI (P.W.12) and Mian Raza Hussain SHO (P.W.13) and abandoned the remaining P.Ws. Being unnecessary. Of them Mst. Chandni complainant (P.W.10), Mst. Zuria (P.W.11) and Gulzar (P.W.9) have supplied ocular account of the occurrence while the others are, more or less of formal nature whose depositions have already been referred to above.
5. Dr.Umar Khitab (P.W.8) had conducted the autopsy on the dead body of the deceased Mirza Khan son of Kala Khan on 12-9-1986 at 7.30 A.M. And found the following:-- EXTERNAL EXAMINATION:
(1) Stab wound 1" x 1/4" oblique on the left side of epigestrium just below costal margin.
(2) Incised wound 3/4" x 1/2" on the top of the left shoulder.
(3) Incised wound 1/2" x 6" x skin deep right side of front of chest 1-1/2" below and outer to level of right nipple.
(4) (4) Incised wound 3/4" x 1/8" x skin deep over right anterior superior iliac crest, right side of abdomen alterly.
INTERNAL EXAMINATION.
Left Lung: Left cavity contained blood. Pericardium and heart: Pericardial sac full of blood, right aurical injured. Blood vessels: Injured at the site of injury. Walls: Injured at the site of injury No,1.
Peritoneum: Injured at the site of injury No, 1 contained slight amount of blood. Diaphragm: Injured at the site of injury No,1.
Stomach and its contents: Intact, healthy contained semi-digested about 06 ouns food. Muscles: Muscles of the abdomen walls injured at the site of injury No,1.
' In his opinion the deceased died due to haemorrhage and shock from the injury to heart. All the injuries were caused by sharp-edged weapon. Injury No,1 was dangerous to life and sufficient to cause death in the ordinary course of nature. Injuries Nos. 1 and 2 were simple and so was injury No,4. Probable time between injury and death was instantaneous and between death and P.M. Was about 22/23 hours. He testified to the correctness of his P.M. Report Ex. P.W.8/1 alongwith pictorial prepared by him and remarks on the injury sheet Ex. P.W. 8/2 and inquest report Ex. P.W.8/3.
6. Accused were examined under section 342, Cr.P.C. And both of them denied the allegations brought out against them and put to them in the form of questions and answers. They submitted that they have been charged falsely on account of land dispute. The convict-appellant also denied the recovery of the blood-stained dagger Ex.P-5 at his instance from his house and also denied the ownership of the shotgun produced by Mirza Khan (P.W. 4) to the I.O. As having been left on the spot by the convict-appellant. They did not like to be examined under section 340 (2), Cr.P.C. Nor liked to produce defence evidence. On the appraisal of the evidence so produced the learned trial Judge vide his order dated 1-10-1989 convicted and sentenced the convict-appellant Mehboob as detailed in the introductory part of this judgment but found the case against Mst. Safdar Jan accused not free from doubt and acquitted her.
7. We have heard Mr. Abdullah Jan Mirza, Advocate for the convict-appellant, Mr. Muhammad Aslam Khan, Assistant Advocate-General for the State assisted by Mr. Khalid Rehman Khan, Advocate Counsel for the complainant party and have minutely gone through the record of the case with their assistance.
8. The learned counsel for the convict-appellant argued that the prosecution has utterly failed to establish the guilt of the convict-appellant and in this respect highlighted improbabilities of the prosecution version as enumerated below:--
(i) The convict-appellant could not be expected to take Mst. Safdar Jan his wife, acquitted accused, alongwith him if his intention was to waylay and do away with the deceased Mirza Khan;
(ii) Civil dispute between the parties had lingered on for three years during which period nothing untoward had happened and there was no immediate cause for the accused party to ambush the deceased for homicidal attack. The alleged motive of civil suit is not sufficient to prove premeditated and pre-planned attack on the deceased:
(iii) The role attributed to Mst. Safdar Jan, acquitted accused, for causing injury to Mst. Zuria (P.W.11) has been disbelieved by the learned trial Judge which has resultantly cast grave doubt on the veracity of the eyewitnesses regarding the other part of their deposition.
(iv) No evidence whatsoever on the record to show as to whether the gun was loaded or not and whether the empties recovered from the spot by the I.O. Were belonging to the convict-appellant.
The appellant was not challaned under section 13, Arms Ordinance for the possession of unlicensed shotgun from which it can safely be deduced that the story of the prosecution regarding the possession of the shotgun by the accused-appellant was not accepted by the prosecution itself.
(v) Gulzar (P.W.9), according to FIR, arrived at the spot when the tragedy was over and he only saw the accused decamping from the spot whereas according to his deposition he posed himself as an eye-witness of the entire show and also added that the convict-appellant after commission of offence returned to the spot again duly armed and threatened him with the dire consequence if he dared to appear as a witness against him and this attitude of his brings him within the category of interested witness.
' The learned counsel for the convict-appellant, in the alternative, vehemently argued that the occurrence appeared to have taken place spontaneously when the parties abruptly met each other and at the spur of the moment without pre-planning and premeditation in the heat of passion, there ensued a quarrel between them resulting in a solitary dagger blow to the deceased causing his death and that the offence falls within the ambit of section 304, Part-I, P.P.C. In support of his these submissions he cited the following authorities:--
(1) 1987 P Cr. L J 2211.
(2) 1985 P Cr. L J 2619.
(3) PLD 1988 Lah. 545
(4) PLD 1987 Pesh. 112
(5) 1984 SCMR 990.
(6) 1971 SCMR 476.
9. The learned counsel for the State assisted by the learned counsel for the complainant, on the other hand, controverted the aforementioned submissions of the learned counsel for the convict- appellant and submitted that the occurrence took place in a broad daylight, that there was no motive for the complainant party to level a false charge against the accused for an offence carrying capital sentence in substitution of real culprit; that the prosecution had proved the guilt of the accused beyond any shadow of doubt through the deposition of Gulzar (P.W.9), Mst. Chandni (P.W.10) and Mst. Zuria (P.W.11) whose presence on the spot is natural, Mirza Khan (P.W.4) who produced the shotgun to the Investigating Officer and the recovery of blood-stained dagger at the pointation of the convict-appellant in the presence of disinterested witnesses immediately on his arrest. As regards the alternative argument advanced by the learned counsel for the convict- appellant, they submitted that this plea was never taken up by the convict-appellant either through any suggestion put to any of the witnesses or in his statement under section 342, Cr.P.C.
And this is a belated thought which does not deserve any consideration.
10. We have minutely pondered over the learned arguments of the learned counsel for the parties.
As stated earlier the instant tragedy was witnessed by Mst.Chandni (P.W.10), Mst. Zuria (P.W.11) and Gulzar (P.W.9). Of them Mst. Chandni and Mst. Zuria are undoubtedly the family members of the deceased but their mere relationship cannot per se bring them within the category of interested withesses. Mst. Zuria (P.W.11) had the stamp of injury on her person which she received during the course of the present occurrence and as such her presence at the spot at the relevant time cannot be doubted. Mst. Chandni's presence on the spot is also natural inasmuch as she, taking Mst. Zuria PW in injured condition, rushed to the Police Station and made the report. Gulzar (P.W.9) is totally a disinterested person because he is neither related to the complainant party nor the defence has been able to allege muchless prove that he has any animosity or enemy towards the convict- appellant to implicate him falsely for the murder charge of the deceased and thereby incur the wrath of the accused-party. As such the depositions on oath of the aforementioned prosecution witnesses carry great weight. Mst. Chandni (P.W.10) and Mst. Zuria (P.W.11) have reiterated the prosecution version as contained in the F.I.R. And in spite of lenghty cross-examination nothing material could be elicited from them in support of the defence. Gulzar (P.W.9) admittedly resided close to the scene of occurrence and was supposed to be present in his house at the time of occurrence being morning time viz. Chashka Vela (8-45 or 9 A.M.). According to the prosecution theory altercation and grappling took place before the actual stabbing and in the natural course of events there must have been noise which attracted this P.W. From his house. He has corroborated the version given by Mst. Chandni and Mst. Zuria P.Ws. In its entirety. He had picked up the shotgun dropped from the hand of the convict-appellant and took the same into his house lest it may be used by either party to harm the opponent and later on handed it over to Mirza Khan (P.W.4),a councillor of the area, who in his turn produced the same to the Investigating Officer which was taken into possession vide memo Ex. P.W.3/3.
11. Besides the ocular account of the occurrence as narrated above the prosecution story also gets support from the circumstantial evidence in the case as well. The convict-appellant was arrested on 17-9-1986 and on the same day he led the police to his house which was locked at that time and by breaking open the lock picked up the dagger Ex.P-5 from the Almirah in the presence of disinterested witnesses, one of whom namely Muzaffar Khan was produced as P.W.6 and he fully supported the recovery of the weapon of offence at the pointation of the convict-appellant. He being a totally disinterested person has to be believed in this respect. The weapon of offence was blood-stained and was sent to the Chemical Examiner alongwith the blood-stained clothes of the deceased, blood-stained earth and grass and according to his opinion all the articles were stained with human blood of the same group. The picking up of .12 bore shotgun Ex.P-4 by Gulzar PW during the course of scuffle between the parties and the recovery of the two cartridges Ex-P3 from the spot by the Investigating Officer further strengthened the prosecution theory.
12.. The medical evidence is in accord with the depositions by the eyewitnesses. Dr.Umar Khitab (P.W.8) found one stab wound and three incised wounds on the person of the deceased, all caused by sharp-edged weapon and the stab wound was opined to be dangerous to life and sufficient to cause death in the ordinary course of nature. The site plan prepared by the Investigating Officer at the instance of the PWs is in line with the prosecution stand.
13. No doubt motive is a double-edged weapon and cuts both ways but in the instant case the motive attributed to the convict-appellant for causing the death of the deceased is quite convincing whereas it is not appealing to common sense that for a land dispute the widow of the deceased would charge the convict-appellant for the murder of her husband falsely and would allow the real culprit to go scot-free.
14. As regards the submissions made by the learned counsel for the convict-appellant and enumerated above, suffice it to say that they are mainly based on supposition and presumption which carry little weight in view of the direct evidence of the eye-witnesses. The learned trial Judge acquitted Mst. Safdar Jan accused for the injuries attributed to her by Mst. Zuria (P.W.11) but that by itself would not mean that Mst. Zuria was not present at the spot at all. The omission on the part of the Investigating Officer to mention whether the gun was loaded or not, when it was produced to him and non-prosecution of the convict-appellant for the offence of unlicensed gun, cannot in any way adversely affect the veracity of the prosecution witnesses. The deceased was done to death by the convict-appellant after the gun had fallen from his hands, by using dagger and delivering four blows with it to the deceased. We are, therefore, convinced that there is enough material on the record to connect the convict-appellant with the charge of causing the death of the deceased.
15. Dealing with the question whether the crime is a cold blooded murder or falls within any of the exceptions of section 300, P.P.C., the arguments of the learned counsel for the convict-appellant, that section 304, Part-I, P.P.C. Is attracted to the case in hand and that in the alternative the conviction of the convict-appellant may be converted from section 302, P.P.C. To section 304, Part- I, P.P.C., apparently seemed attractive but considering the evidence produced in the case and comparing it with the facts and circumstances of the cited cases, we have come to the conclusion that the conviction under section 302, P.P.C. Was rightly passed by the learned trial Judge. We have minutely gone through the cited authorities and feel that they are distinguishable. In case `Muhammad Yasin v. The State' 1987 P Cr. L J 2211, the occurrence was unpremeditated and preceded by exchange of hot words and grappling. The witnesses produced in the said case were found to be interested and the motive trivial. In case `Zafar Iqbal v. The State'1985 P Cr. L J 2619, the occurrence was the result of sudden fight, both the accused and the deceased making posture of assault and a single knife blow inflicted by the accused who did not take undue advantage nor acted in cruel unusual manner. Similarly in case, 'Muhammad Abbas etc. v. The State' PLD 1987 Lah 545, the occurrence happened all of a sudden due to a prior incident and the accused-appellant in that case was charged with a solitary fatal blow to the deceased without undue advantage of situation. The dictum of the Supreme Court in case, `Masoom Beg v. Muhammad Munir and another' 1971 SCMR 476, in which the judgment of the High Court, altering the sentence from section 302, P.P.C. To section 304, Part-I, P.P.C., was maintained is more or less, covering similar circumstances of a sudden quarrel in the heat of passion without premeditation.
16. As per the resume of discussion of the prosecution evidence the instant tragedy cannot be covered under Exception IV of section 300, P.P.C. By any stretch of imagination. The alternative submission of the learned counsel for the convict-appellant is accordingly without any force and is repelled. This brings us to the consideration of the quantum of sentence imposed upon the convict-appellant. It is admitted by all the prosecution witnesses that the shotgun in the possession of the convict-appellant had fallen on the ground in the course of scuffle between the deceased and the convict-appellant aided by their respective companions and that in the course of grappling the convict-appellant drew out the dagger and caused injuries to the deceased out of which only one injury proved fatal. The possibility, that the convict-appellant in order to rescue himself from the clutches of the deceased and the P.Ws., may have delivered blow to the deceased, cannot be excluded. In this view of the matter and keeping in view the other surrounding circumstances of the case we are of the opinion that lesser penalty provided under the law will amply meet the ends of justice. We, therefore, while maintaining the conviction of the convict- appellant under section 302, P.P.C. Modify the sentence of death to one of imprisonment for life and maintain the other sentence as passed by the learned trial Judge. The convict-appellant shall enjoy the benefit of section 382-B, Cr.P.C. In consequence the Criminal Appeal is partly accepted and in the murder reference the death sentence is not confirmed.