ABDUL HAYEE KURSSHI, J.-The appellant Shahidul Haq was tried on a charge under section 302, P.
P. C. By an Additional Sessions Judge, Karachi, and convicted of the said offence. He was sentenced to death subject to confirmation by this Court. The appellant has filed an appeal through Mr. Mohammad Hayat Junejo who has appeared for him and the State was represented before us by Mr. Usman Ghani Rashid, Assistant Advocate----General.
The appellant has also been convicted under section 13-D, Arms Act and sentenced to nine months' R. I.
2. The prosecution story briefly is that appellant Shahidul Haq and the deceased Constable Ghulam Haider were friends. On the evening of 15-12-1969, both of them were sitting in Jehangir Park at Karachi. Muhammad Sadiq, a boy aged about 16 or 17 years at the time of incident was also friendly with both the deceased as well as the appellant. The said Mohammad Sadiq also went and sat with the deceased and appellant in Jahangir Park. After sometime all the three hired a victoria carriage and went to Bahadur Shah Market to find a person who is stated to tie a friend of both the appellant and the deceased. Not being able to find their friend, ail the three namely the appellant, the deceased and boy Mohammad Sadiq went to the Police Lines of Preedy Police Station. The evidence discloses that Constable Ghulam Haider lived in a Quarter in these Police Lines.
3. The prosecution story then is that Constable Ghulam Haider changed his clothes and appellant also removed his shirt. Both the deceased as well as the appellant then sat near the boy Mohammad Sadiq and started making overtures to boy Mohammad Sadiq. Deceased Ghulam Haider wanted to commit sodomy on the boy but on being requested by Mohammad Sadiq to refrain from committing sodomy, better senses prevailed on the deceased. Thereafter appellant Shahidul Haq pulled Mohammad Sadiq nearer to him with a view to commit sodomy. Mohammad Sadiq resisted and rescued himself by concealing himself in the bathroom and closing the door from inside. At this stage it may be stated that all the three persons namely the appellant, the deceased and Mohammad Sadiq were first sitting in the room, but the bathroom wherein Mohammad Sadiq concealed himself was in the verandah adjacent to the same room. Appellant Shahidul Haq followed Mohammad Sadiq to the bathroom and started pushing the door. In the meantime deceased Ghulam Haider came up and prevented the appellant from forcibly opening the door. On this grappling ensued between the deceased and the appellant and both of them reached the door of the room and in the meantime Mohammad Sadiq also came out of the bath-- room only to find that both the deceased and the appellant had fallen on the cat. Mohammad Sadiq started shouting for help but in the meantime the appellant took out a knife (which is said to be a dagger-like knife) and stabbed the deceased with it. In the meantime Allah Dad (P. W. 3), Mohammad Sadiq (P. W. 11) and Rab Nawaz (P. W. 13), all Constables residing in the Police Lines came up. The appellant continued causing injuries to the deceased on the cot, and thereafter the deceased managed to come near the chair, at which place also he was given injuries and ultimately the deceased came and fell down in the verandah. The three Police Const--ables who had come on cries caught hold of the appellant and secured the knife that he had in his hand. The appellant at that time was wearing a pant which bore stains of blood and the knife too was stained with blood.
4. Police Constable Allah Dad thereafter went alongwith the blood--stained knife to the Police Station, which was in the same compound at a distance of 300 yards, and lodged a report at 10-39 p.m. Viz. Within nine minutes of the occurrence. This report which is Exh. 11 was recorded by S. H. O.
Ashiq Nawaz Sabri. The knife secured from the appellant was also produced by Constable Allah Dad and the same was seized by the Police Officer under a mashirnama (Exh. 18) in presence of Hakim Allah Rakha (P. W. 7). The Police Officer thereafter came to the scene of occurrence and prepared a mashirnama of the same. The blood stained clothes of the appellant were also secured by the same Police Officer. Whereas the mashirnama of the scene of occurrence has been produced as Exh. 31, the mashirnama of the seizure of blood-stained clothes of the appellant is Exh.
28. Constable Rab Nawaz (P. W. 13) acted as a mashir and he has given evidence. The pant and the knife (dagger) secured from the possession of the appellant were sent to the Chemical Analyser and have been certified vide report Exh. 33 to be stained with human blood. The dead body of Ghulam Haider was sent for post-mortem examination which was carried out by Dr. Mohammad Umar Khan, whose evidence has been brought on the record of the Sessions Court as Exh.
4. On the next morning the appellant was also sent to Dr. Mohammad Mujib Alam for examination of injuries on his person. The evidence of Dr. Mohammad Mujib Alam has been brought on the Sessions Court's record as Exh.
7. After com--pletion of investigation, the appellant was sent up to stand his trial which has resulted in his conviction and sentence as aforesaid.
5. At the trial the prosecution examined Muhammad Sadiq, the boy who was in the Quarter alongwith the deceased and the appellant at the time of commission of this offence. Besides, the three Constables Allah Dad, Muhammad Sadiq and Rab Nawaz have been examined as eye- witnesses. The other evidence in this case consists of the Investigating Officer, S. H. O. Ashiq Nawaz Sabri, who registered the case, arrested the appellant, seized the blood-stained knife and clothes and conducted the other investigation. The mashirs in respect of the recoveries of blood-stained knife and clothes have also been examined. The evidence of two Medical Officers named above was also brought on the record under section 509, Cr. P. C.
6. The appellant in his statement under section 342, Cr. P. C. Has denied the prosecution case. He stated that the deceased and P. W. Sadiq were his friends. He however denied that he had gone to the Quarter of deceased Ghulam Haider or was apprehended there. He stated that he had no injuries on his person and that the pant produced in Court did not belong to him. However, in the Committal Court he stated that it was deceased Ghulam Haider who wanted to commit sodomy on boy Muhammad Sadiq. He had further stated that the pant and the knife belonged to Muhammad Sadiq. On a reading of his statement it appears that in the Court of the Committing Magistrate the appellant in his statement had admitted having gone to the Quarter of deceased Ghulam Haider, but he further stated that he had been sent to purchase 'Nan' and 'Kebabs' from a nearby shop and when he came back he found Constable Allah Dad in the Quarter of the deceased, and talking to boy Muhammad Sadiq. He went on to say that thereafter other Constables also came there and they were friendly with boy Muhammad Sadiq. He further stated that these Constables took him and boy Muhammad Sadiq to the Police Station and locked them up, but separately, and subsequently while Muhammad Sadiq was allowed to go away, he was involved in this case. It seems on a reading of the statement of the appellant that the defence of the appellant was that the murder had been committed by boy Muhammad Sadiq, and he had been falsely im--plicated. The appellant also pleaded enmity with the police because he had made an application to the Deputy Inspector-General of Police, Karachi, complaining against a Constable Ghulam Mustafa of Preedy Police Station in regard to the latter extorting money from the fruit hawkers of Empress Market. The appellant is said to be a fruit hawker. The appellant further stated that both arms of his were deformed and, therefore, he could neither hold a dagger nor hit anyone. In short he also pleaded incapacity to commit the crime.
7. The appellant also examined four witnesses in his defence. Muhammad Tahirul Haq (D. W. 1) is his real brother. This witness has stated that the police was hostile to the appellant on account of the appellant complaining against Constable Ghulam Mustafa.. He also stated that the appellant was unable to lift anything nor could hold anything in the grip of his hands. He further stated that finding the appellant absent from the house he came to look for him near the Empress Market, and then ulti--mately came to the Preedy Police Station where he found boy Muhammad Sadiq and the appellant in the lock-up. This defence witness has further gone on to say that on the night following the incident, S. H. O. Ashiq Nawaz Sabri had gone out of the Police Station alongwith boy Muhammad Sadiq and his father and brother in a Taxi and thereafter Muhammad Sadiq was allowed to go away, whereas his brother, the appellant, was detained. The next defence witness is Sami Paul (D. W. 2), who is a taxi driver and he has deposed with regard to S. H. O. Sabri going alongwith some persons to a locality known as the P. E. C. H. S. And thereafter the boy was left at home and the Police Officer returned. This defence witness Sami Paul has spoken about the presence of D. W. Tahirul Haq at the Police Station. The third defence witness is Constable Maqsood Hussain. His evidence is in regard to hostility of Constable Ghulam Mustafa against the appellant.
This defence witness has also stated that the appellant had earlier to this incident told him that both of his arms were disabled. The last and fourth defence witness Wahid Rana has stated that at about 10-30 p.m. Viz. The time of the commission of this offence he found the appellant at a Kabab Wala's shop in Saddar. He further stated that the appellant purchased Kababs and went away. This defence witness is a neighbour of the appellant and had been called to the house of defence witness Tahirul Haq on the next day and was informed that the appellant had been involved in this murder case.
8. There can be no doubt whatsoever with regard to the death of deceased Ghulam Haider. All the eye-witnesses have stated that deceased Ghulam Haider died on account of knife injuries. The Police Officer also held an inquest on the dead body of the deceased and found knife injuries on his person. Dr. Muhammad Umar Khan performed post-mortem examination on the dead body of the deceased and found the following injuries:---
(i) Incised wound on 6th intercostal space on left side chest 2--' lateral to mid sternal line transverse in direction --' x --' cavity deep.
(ii) Incised wound left side epigestric region just above umbilicus 1--' lateral to mid line 1" x --" cavity deep with 6 inches of oementum coming out.
(iii) Incised wound on left side back at 7 intercostal space one behind posterior axiliary line 1" x --" x muscle deep.
(iv) Incised wound on left side back at the level of 12th thorasic spinous process 2' lateral to mid line 1" x --" x muscle deep.
(v) Incised wound right side back of shoulder 2" lateral to mid line 1" x ----- x muscle deep.
(vi) Linear incised wound (superficial-akin) cut on a-
(a) Dorsum of left oblique from web to 1st joint 1----- long.
(b) Two small transverse superficial cuts one at root of index finger and another 1" below it.
(vii) Two small scratches just above medial third of left side clavicle ----- x 1/10" each --" apart.
(viii) Two tiny scratches on the left shoulder 1" apart on top.
(ix) One linear scratch on right deltoid 2" long.
I have reproduced above injuries in this judgment because I will be referring to them in the following portion of this judgment. Suffice to say at this stage that the two injuries have been caused on the front of the body of the deceased, the next three on his back and the remaining injuries being on the hands indicate that the same may have been received by the deceased in an attempt to ward off the attack and the last three either in the struggle, or grappling, or by fall.
9. The main evidence against the appellant is of Muhammad Sadiq, the boy, who was with the appellant and the deceased in the Quarter of the deceased at the time of murder. He has clearly deposed with regard to all the circumstances of this transaction. It appears from his evidence that this murder has taken place because the appellant wanted to commit sodomy on him, but against his will. He has stated that with a view to avoid subjection to sodomy he concealed himself in the bathroom but the appellant wanted to open the bathroom forcibly and was prevented by the deceased. It appears that it was on account of the deceased preventing the appellant from forcibly dragging out Muhammad Sadiq from the bathroom that the grappling and stabbing by the appellant started. With regard to the injuries, Muhammad Sadiq has clearly stated that the injuries were given to the deceased by the appellant inside the Quarter, and ultimately the deceased fell down on the chair and collapsed in the verandah. This witness has also stated about the Constables entering the Quarter of the deceased on account of the cries that he had raised. In cross-examination an attempt has been made to show that this witness was habitual passive agent, which of course has been denied by him. It was also suggested by the defence in cross- examination that the deceased was stabbed by this witness and not by the appellant. This witness, however, had stated in the Court of the Committing Magistrate that he had been detained by the police throughout the night and was allowed to go home only at 11 a.m. On the next morning.
10. With regard to this witness, the learned advocate for the appellant has stated that he was a suspect witness in the sense that he was himself suspected of the commission of this crime. On that premises the learned Advocate has argued that his evidence had been tailored to suit his desires to save himself. It has also been argued that this witness was initially suspected of the murder and that was why he had been detained at the Police Station. I am of the view that this criticism is ill-founded and un-justified. The circumstances of the case clearly indicate that the murder was committed by the appellant and not by this wittiness. The evidence of Police Constable Allah Dad who is the first informant and the other two Constables Muhammad Sadiq and Rab Nawaz clearly shows that when they came up to the Quarter of deceased they found the appellant stabbing the deceased. They have also stated that the clothes of the appellant bore stains of blood and they did not see any blood stains on the clothes of this witness. In fact it was suggested in cross-examination of these witnesses that the appellant at that time was shouting that P. W. Sadiq had stabbed the deceased, but such a suggestion was repelled by the witness. Inth fact the F. I. R. And the evidence of Muhammad Sadiq and Rab Nawaz clearly shows that P. W. Sadiq was raising shouts in the Quarter. Moreover, the F. I. R. Which was lodged within nine minutes of the occurrence clearly shows that it was the appellant who was causing injuries to the deceased. All the three Constables namely Allah Dad. Muhammad Sadiq and Rab Nawaz have unanimously stated that they saw the appellant stabbing the deceased and clothes of the appellant being stained with blood. Besides, each one of the three witnesses states that weapon of offence viz. The knife (dagger) was seized from the hand of the appellant. When S. H. O. Ashiq Nawaz Sabri came to the Quarter where this murder had taken place, he found the appellant wearing blood--stained clothes and having been caught by the Police Constables. The circumstances of the case clearly indicate that the injuries were given to the deceased by the appellant.
11. With regard to the detention of P. W. M. Sadiq at the Police Station during the night, I must say that the evidence is not very clear. While S. H. O. Ashiq Nawaz Sabri has denied that he had detained this witness, this witness has stated in the Committal Court that he had been so detained till 11 a.m. Next morning. Be that as it may, the circumstance falls far short of establishing that even if P. W. Sadiq had been detained, he had been detained because he was suspected to have committed this murder. If it was the case of the appellant that this witness had been locked-up at the Police Station, they could have summoned the Station Diary or the Lock-up Register from the Police Station, but this was not done. It appears that P. W. M. Sadiq may have been detained overnight for the purpose of assisting the police in investigation. His statement had also to be recorded and moreover this witness was expected to make disclosures in relation to this crime.
However, regard being had to the circumstances of this case, I find that even if this witness had been detained at the Police Station it was not because he was suspected in regard to the commission of this offence. There may have been other reasons which are not necessary to determine for the purposes of this case.
12. The evidence of P. W. Sadiq is fully supported by the evidence of the three Constables who came on the cries. Each one of these three constables is residing in the Police Quarters. The evidence of Muhammad Sadiq and of these Constables clearly shows that they heard some shouts from the Quarter of the deceased and went there. On their reaching the Quarter, they found the appellant stabbing the deceased. They also found the appellant having knife and wearing blood-stained clothes. In fact all that is stated against these Constables is that since the appellant had made an application against Constable Ghulam Mustafa, the S. H. O. Of the Police Station namely Ahmed Nawaz Sabri was prejudiced against the appellant. It is, therefore, suggested by implication that Ahmad Nawaz Sabri had procured the evidence of these three Constables. I must say that the suggestion is far-fetched. The witnesses are natural witnesses and they have no animus against the appellant. Their evidence is very clear and convincing. Allah Dad had lodged the report promptly and Rab Nawaz had attested the mashirnamas prepared immediately after the incident.
I have no doubt whatsoever with regard to the presence of these witnesses.
13. The ocular evidence in this case is sufficiently corroborated. The appellant was apprehended on the spot with the knife and blood-stained clothes. The appellant has admitted in his statement that he was apprehended on the spot. It appears to be highly improbable that the three Constables should let-off the real murderer and catch hold of the appellant and in any case the appellant has given no explanation with regard to the blood-stained clothes that had been found on his person.
These clothes have been certified by the Chemical Examiner to be stained with human blood. It has also transpired in the evidence of Constable Rab Nawaz that the appellant had a leather case for keeping the knife and the same was secured from him. This fact is also mentioned in the mashirnama. It would, therefore, appear that even this knife belonged to the appellant. I, therefore, believe the evidence that comes from the circumstance of recovery and hold that this evidence amply corroborates the ocular evidence in this case.
14. The learned Advocate for the appellant has invited our attention to a discrepancy in regard to the recovery of blood-stained pant from the person of the appellant. He has referred to the evidence of Police Constable Allah Dad, who is the first informant in the case, and who has stated that the appellant was wearing shalwar. I am of the view that this witness has so stated perhaps on account of a misunderstanding or forgetfulness. All the other witnesses have stated that the appellant was wearing a pant. Not only that but they have stated that the pant was blood-stained.
Ahmed Nawaz Sabri has deposed as to recovery of pant and not trousers. The mashirnama also mentions recovery of a pant. Moreover, it was a pant and not a trousers that had been sent to the Chemical Examiner. The evidence clearly and conclusively shows that the appellant was wearing a pant.
15. I would now proceed to consider the evidence of defence witnesses. Admittedly none of the defence witnesses were present at the scene of offence. All that the defence evidence attempts to show is that the witness Muhammad Sadiq had been detained at the Police Station and had been locked-up. I have already dealt with this aspect of the case and I am clearly of the view that even if it is believed that this witness had been detained, it could not be said that the witness had been detained because he was suspected of the commission of this offence. Defence witness Wahid Rana has stated that he bad seen the appellant at a Kabab shop in Saddar at about 10-30 p.m.
This defence witness is a neighbour of the brother of appellant. It appears to be highly doubtful that at 10-30 p.m. In the middle of December he would come all the way from Dastagir Colony to Regal Cinema, at a distance of 7 or 8 miles, to purchase Kababs. Moreover, there is no evidence that Kababs were purchased by the appellant. If the appellant had brought Kababs to the Quarter where this murder had taken place, the same should have been found there. Not only that but there is no evidence in regard to any Kababs being available in the Quarter with the appellant, but it has not even been suggested to any witness besides Muhammad Sadiq in cross-examination.
Even Muhammad Sadiq has denied this suggestion. To my mind the evidence of Wahid Rana is not true.
16. In the evidence of defence witnesses and the statement of the appellant, the defence has attempted to set up a case that the arms of the appellant were deformed and, therefore, he was physically incapable of committing this crime. The learned Advocate for the appellant did not stress on this aspect of the case. However, the evidence discloses that the appellant used to sell fruit on a hand-cart near the Empress Market. Such a vocation would necessarily involve pushing of the hand-cart laden with fruit. Moreover, Dr. Muhammad Umar Khan had examined the appellant in regard to his arms and he found that although there was slight deformity, but the grip of the hand was satisfactory. That being so this defence of the appellant is not proved.
17. The learned Advocate for the appellant has also argued before us that the case would be covered by the relevant provisions relating to exercise of right of private defence. He has attempted to build-up the case on the premises that boy Muhammad Sadiq who was the only available person in the Quarter at the time of initiation of the quarrel was admittedly in the bathroom and, therefore, could not see how the quarrel had started. He has also invited our attention to the fact of the appellant having two injuries on his person. The injuries are only two abrasions: one on the right elbow measuring ----- x ----- and the other on the upper part of chest measuring 1" x -----. He has argued that the quarrel may have been started by the deceased himself. In the alternative the learned Advocate's argument is that the case of the appellant would be covered by Exception IV to Section 300, P. P. C. Because the quarrel was sudden and there was no premeditation. In my view the appellant is not entitled to the benefit of Exceptions II or IV to section 300, P. P. C. It must not be forgotten that the deceased was un-armed nor can the fact be overlooked that the appellant was trying to forcibly pull out boy Muhammad Sadiq who had rescued himself by concealing in the bathroom. Under these circumstances, the deceased was perfectly justified in trying to push the appellant who was attempting to forcibly open the door of the bathroom where Muhammad Sadiq had concealed himself. The evidence thereafter discloses that both the appellant and deceased grappled and fell on the cot and it was then that is to say after the deceased had fallen that the appellant drew out the knife. The appellant gave injuries to the deceased firstly on the cot and thereafter the deceased extricated himself and fell on the chair.
The deceased was given more blows which ultimately resulted in his falling down dead in the verandah. The evidence of mashir Rab Nawaz and S. H. O. Ashiq Nawaz Sabri indicates that blood was found on the cot, and also on the chair. Moreover, the injuries on the person of the deceased indicates that he received knife blows both on the front part of his body as well as on his back. This circumstance clearly indicates that the deceased had turned away from the appellant and in spite of that he was given more blows on the back. The injuries on the hands of the deceased indicate that he had tried to ward off the blows. In order to attract the protection of Exception II to section 300, P. P. C. It has to be shown that harm was caused in the exercise of the right of private defence and further that the harm was caused not only in good faith but was not excessive. In this case the number of injuries on the person of the deceased clearly show callousness and cruelty on the part of the appellant. He is, therefore, not entitled to the benefit of Exception II to section 300, P. P. C.
Similarly Exception IV to section 300, P. P. C. Will not be applicable to this case, because the facts and medical evidence clearly shows that undue advantage had been taken besides the appellant having acted in a cruel and unusual manner.
18. The learned Advocate for the appellant has however relied on the case of Safdar A.I (PLD 1953 FC 93). I am unable to see how this case can help him in the present state of facts. For all these reasons I am clearly of the view that the appellant is not entitled to the benefit of any of the Exceptions to sec--petition 300, P. P. C.
19. Summing up, I find that besides the ocular testimony of P. W. Muhammad Sadiq, there is clear and convincing evidence of the three Constables who came on the cries and saw the appellant stabbing the deceased. The ocular evidence is further supported by apprehension of the appellant on the spot and the recovery of blood-stained clothes and knife. The evidence is sufficient for holding the appellant guilty.
20. In the result the appeal of the appellant is dismissed. The question however is whether the sentence of death imposed on him is justified in the circumstances of this case. The facts disclose that there was a sharp and angry quarrel which was followed by grappling and a fight. The appellant also received two abrasions and it appears that knife was used by the appellant after receiving these abrasions. This was a sudden quarrel and it was followed by a sudden fight. Their Lordships of the Supreme Court in the case of Sikandar v. The State (PLD 1966 SC 555), while dealing with the case in circumstances similar to the circumstances of the present case observed as follows:- "When the quarrel is followed by a direct class, the Courts cannot fail to take notice of the fact that thereby a great heat is imported into the affair. A crime committed in hot blood, for the reason of which the victim is equally responsible with the offender, is not to be visited with same punishment that the law reserves for deliberate offences of the same kind, committed in cold blood, that is with malice aforethought."
21. The appeal of the appellant is dismissed, but the sentence of death is not confirmed and he shall instead suffer transportation for life. The conviction and sentence under section 13-D, Arms Ordinance is also upheld. Sentences will, however, run concurrently.