' Z. A. CHANNA , J.-Appellant Karim Bux, aged 36 years, was tried by the learned Sessions Judge, Karachi, in respect of an offence under section 302, P. P. C. For the murder of Abdul Aziz, and the learned Sessions Judge, by his judgment delivered on 20-1-1975, convicted the appellant for the said offence and sentenced him to death subject to confirmation by the High Court. The appellant has appealed from jail against his conviction and also there is a reference from the learned Sessions Judge for the confirmation of the sentence awarded to the appellant. This judgment will dispose of both the Jail appeal as well as the reference.
2. The incident, which is the subject-matter of this case, is said to have occurred on 24-11-1973, at about 8-45 p. m. In front of Mujahid Petrol Pump in Nazimabad No, 1, Karachi, at a distance of about one mile from Golimar Police Station. At the time of the incident, first informant Abdul Rashid was going from his house, which is situated near Mujahid Petrol Pump, to his shop which is at a short distance from his house, when he is said to have seen the appellant and the deceased quarreling in front of the Mujahid Petrol Pump. It is further alleged that the appellant attacked the deceased with a knife and caused him a number of injuries as a result whereof the deceased fell down near the cabin of the Petrol Pump. Besides first informant Abdul Rashid, the incident is said to have been witnessed by Muhammad Akbar, Abdul Aziz, Muhammad Umer and Muhammad Akram, who all reside in the neighbourhood. Seeing the knife attack on the deceased, Abdul Rashid and some others raised cries, whereupon the appellant is said to have run away, taking the knife with himself.
He was chased from some distance but managed to escape. The deceased was removed in a rickshaw by Muhammad Umer to the Civil Hospital but he died on the way and hence Muhammad Umer went to the Golimar Police Station, where first informant Abdul Rashid had already turned up and informed him of the death of Abdul Aziz. Abdul Rashid thereupon lodged his first information report which was recorded by S. I. P. Rao Muhammad Amin at 10-00 p. m.
3. After recording the F. I. R. The S. I. P. Proceeded to the scene of offence where he found blood lying at two different spots. He prepared mashirnama of the scene of offence and secured the blood- staind earth. He then proceeded to the Civil Hospital where he prepared an Inquest Report and requested the Medical Officer to perform a post-mortem examination on the dead body.
Thereafter, he recorded the statements of Muhammad Akram, Muhammad Akbar and Muhammad Umer. On the same night, at about 4-00 a. m., the S. I. P. Arrested the appellant from the bushes of a K. M. C. Garden in Aurangabad. 'the appellant was found wearing a shirt and a shalwar both of which were stained with blood. The S. I. P. Searched the person of the appellant in the presence of mashirs, Muhammad Akram and Muhammad Umer, and found a knife in the ight side pocket of the shirt of the appellant. The knife was blood-stained. The S. I. P. Secured the knife as well as the blood-stained clothes of the appellant. At the time of his arrest the appellant was found to have some injuries on his person and accordingly was sent to the hospital for examination.
4. The post-mortem examination on the deceased was performed by Dr. M. S. A. Farooqi on 25-11- 1973, and he found the following external injuries on the person of the deceased, all of which, in his opinion, had been caused with a long knife or dagger:- "(1) Incised wound vertical in direction left side front of chest 3" x 1" x cavity deep.
(2) Incised wound verticle front of left shoulder 3" x 1" x muscle deep.
(3) Incised wound left side neck li x x skin deep.
(4) Incised wound left side neck 1i" below the injury No, 3, measuring 1" x i" x muscle deep, carotid blood vessels cut.
(5) Incised wound left side upper part shoulder near the root of left side neck, 1" x 1" x muscle deep."
5. The doctor has opined that the above injuries were anti-mortem, that the death of the deceased was due to heamorrhage and shock and as a result of homicidal injuries on his body and that injury No, 4 individually and that all the injuries collectively were sufficient to cause death in the ordinary course of nature. S. The appellant was also examined on 25-11-1973 by Dr. Ghulam asool, who found the following two injuries on his person, which according to him were simple injuries, caused with a, weapon and appeared to have been caused with a sharp-edged weapons- "(1) Incised wound 4" x x skin deep left elbow-joint oblique margin harp and clean, corresponding cut present on the shirt.
(2) Incised wound x 3/4 x muscle deep right lower leg front margin sharp and clean, no cut present on the shalwar."
7. The defence of the appellant is one of total denial. He even has ven no explanation of how he came to sustain the injuries which were found n his person at the time or his arrest, though this question was specifically ut to him. However, he contended that one Rickshawala, by name Noor uhammad, was the actual culprit but he was let off by the police and the names have wrongly involved him.
8. We have carefully examined the evidence led in the case and are of the opinion that it overwhelmingly inculpates the appellant. The direct evidence in the case is furnished by as many as five eye-witnesses. They are, first informant Abdul Rashid, Muhammad Akbar, Abdul Aziz, Muhammad Umer and Muhammad Akram. All of them have deposed to having seen the appellant inflicting knife injuries on the deceased and then running away. P. Ws. Muhammad Umar and Muhammad Akram have further deposed to having chased the appellant, who, however, disappeared in a sub-lane. All these five witnesses reside in the immediate neighbourhood of Mujahid Petrol Pump, in front of which the incident occurred. First informant Abdul Rashid has deposed that he was going from his house to his barber's shop both of which are situated near Mujahid Petrol Pump when he saw the incident. P. W. Muhammad Akbar is residing at a distance of 120 feet from the scene of offence and has deposed that he was passing by the Petrol Pump when he saw the appellant inflicting knife injuries on the deceased. P. W. Muhammad Umer, like first informant Abdul Rashid, has his barber's shop as well as his house near the scene of offence.
According to him he was returning to his house after closing his shop when he saw the incident. He has further deposed that he had taken the deceased in a rickshaw to the Civil Hospital, but as the deceased was found dead when he reached the Hospital, he went to the police station. P. W.
Muhammad Akram resides in the same lane as first informant Abdul Rashid and P. W. Muhammad Umer and has testified that he was going from his house to the market when he saw the incident. P.
W. Abdul Aziz is a rickshaw driver, who resides near Mujahid Petrol Pump. According to him he was cleaning his rickshaw at the Petrol Pump when the incident occurred. This is the witness who appears to have witnessed the incident practically from the beginning. According to him the appellant and the deceased were grappling with and dragging each other for about half an hour and thereafter the appellant inflicted the knife injuries on the deceased.
9. Out of the five eye-witnesses, apart from first informant Abdul Rashid, the F. I. R. Mentions the names of only Muhammad Umer and Abdul Aziz. The first informant was a cousin of the deceased and Muhammad Umer and Abdul Aziz also, according to the first informant, were related to the deceased, though the exact relationship has not been disclosed. The fact of the relationship of these witnesses with the deceased and the absence from the F. I. R. Of the names of the two witnesses, namely Muhammad Akbar and Muhammad Akram, however, does not cast any shadow on the veracity of these witnesses. In the first place, as already pointed, out, all these witnesses are of the locality and there is no reason to doubt their word that they must have seen the incident.
Furthermore, there appears to be no reason whatsoever why these witnesses should falsely implicate the appellant. It may be pointed out that the appellant has not even alleged any enmity or with any of the witnesses, and to the specific question put to him in the committal Court as to why the witnesses were deposing against him be replied that he did not know.
10. The ocular testimony finds strong corroboration from the medical evidence, the fact of the appellant being found hiding himself and the recovery of incriminating articles from him. The medical evidence, to which we have already referred, indicates that five knife injuries were found on the pen( n of the deceased and thus corroborates the eye-witnesses in regard to the knife attack on the deceased. Then there is evidence of S. I. P. Rao Muhammad Amin, who has deposed that he had gone in search of the appellant and found him on the very night of the incident, at 4 a. m., hiding in bushes in a garden at Aurangabad. The S. I. P. Is corroborated on this point by P. Ws.
Muhammad Akram and Muhammad Umer who were made mashirs of the arrest and search of the person of the appellant. The S. I. P. And the two mashirs have further deposed that at the time of his arrest, the appellant was found wearing a Shalwar and a shirt, which were stained with blood and that a search of the person of the appellant yielded a blood-stained knife, which was recovered from the right side pocket of his shirt. These three items were sent to the Chemical Examiner who has reported that human blood was found on all of them. The appellant has not explained how his knife and clothes came to be stained with human blood.
11. The above pieces of evidence, in our opinion, indubitably establish the fact that the death of the deceased was encompassed by the appellant with the knife which was secured from his possession at the time of his arrest. There is, however, an important piece of evidence, which merits close scrutiny. S.
1. P. Rao Muhammad Amin has deposed that at the time of his arrest, the appellant was found to be injured. We have also referred to the evidence of Dr. Ghulam Rasool, who has deposed to having found two incised injuries on the person of the appellant, one on his left elbow and the other on his right lower leg. There is, however, no evidence to show, who, when and where he sustained these injuries. According to the eye-witnesses the deceased was unarmed. Hence, he could not have caused these injuries to the appellant. Furthermore, if the deceased had a knife, he would, in our view, have been able to inflict far more serious injuries on the appellant than were found on his person. It may also be mentioned that the appellant himself has not alleged that the deceased was armed with a knife or had caused any injuries to him. The nature and location of the injuries on the appellant are such that they could well have been self-sustained. In any case, however, he sustained these injuries there is not a particle of evidence to lead to an inference that the deceased caused these injuries or that he was at the time of the incident armed with a knife. No question or possibility thus arises of the appellant having caused the injuries to the deceased in self-defence. The act of the appellant in causing the fatal injuries to the deceased thus clearly amounts to murder.
12. There remains the question of sentence, to which we have given anxious consideration. No doubt the deceased was unarmed, but oak he other hand there is evidence of P. W. Abdul Aria that the deceased and the appellant were grappling and dragging each other for nearly half an hour before the appellant inflicted the knife injuries on the deceased. This clearly indicates that the murder was committed without any premeditation and on the spur of the moment. Precisely what impelled the appellant to whip out a knife and cause the fatal injuries to the deceased is not known. Possibly he found himself getting the worse of the fight or weakening or the deceased may have said or done something which so excited the appellant as to whip out a knife and attack the deceased with the same. However, all this is in the nature of speculation. What is known is that it was after half an hour of grappling and dragging between the appellant and the deceased that the former inflicted the fatal injuries on the deceased. Moreover, the genesis of the quarrel is shrouded in mystery for it is not known how, over what or when exactly it started. It may also be mentioned that no adequate motive for the murder has been established. The only person who nas spoken about the motive is first informant Abdul Rashid and all that he has stated is that two or three days prior to the incident the appellant had quarreled with the deceased.
' There is no evidence over what the quarrel was or what was the degree of its severity. In the case reported as Ayoub v. State (1) to the decision wherein one of us was a party, it was held that in view of the fact that there was a random meet bet the accused and the deceased, without any element of premeditation, and the possibility of exchange of some incivilities and abuses between them immediately before the incident could not be ruled out, the lesser sentence under the law would meet the ends of justice. The case of the present appellant appears to be somewhat analogous to the case of the accused in the reported case.
13. Taking all the circumstances of the instant case into consideration, namely the absence of any premeditation to kill on the part of the appellant, the want of evidence as to how and over what the quarrel or dispute started, the absence of any adequate motive for committing the murder and the fact that the appellant and the deceased were grappling with each other for half an hour before the appellant launched the fatal attack on the deceased, we are of the view that sufficient case for awarding of the lesser penalty has been made out. We accordingly, while maintaining the conviction of the appellant, substitute for the sentence of death awarded to him by the learned Sessions Judge, a sentence of imprisonment for life. With this modification, the appeal of the appellant is dismissed, and the reference for the confirmation of death sentence is not accepted.
(I) PLD 1974 Kar. 1 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.