' ABDUL HAFEEZ MEMON, J.-Appellant Mazhar Ali alias Majoo son of Bhiro aged 22 years has been convicted by Mr. Saiyid Iqbal Hasan, II Additional Sessions Judge, Hyderabad under section 302, P. P.
C. And sentenced to death for the murder of deceased Iqbal son of Sattar. He has appealed against his conviction and sentence while the learned Additional Sessions Judge has referred this case to us under section 374, Cr. P. C. For confirmation of the sentence of death. We shall dispose of both the appeal as well as the reference by this judgment.
2. The prosecution case in brief was that on 31-1-1972 at about 7-30 p.m. Complainant Aziz and his cousin P. W. Chutto were sitting in the hotel of P. W. Mitho taking tea while appellant Mazhar alias Majoo was sitting outside the door of the hotel on a bench. There, complainant Abdul Aziz saw his nephew Iqbal coming towards the hotel and reaching the door of the hotel when appellant Majoo gave him a call to come over but the deceased Iqbal ignored the call and came inside the hotel and ordered for tea. Appellant Majoo then gave another call which also the deceased ignored. This annoyed the appellant who started abusing and took out a knife and gave 3 blows to the deceased on the left side of the chest, arm and lower abdomen as a result whereof the deceased fell down, bleeding profusely. The incident was witnessed by complainant Abdul Aziz and P. Ws.
Mitho, Chutto and Hameed, all of whom saw the appellant causing the injuries to the deceased.
The aforesaid witnesses tried to catch held of the appellant but he made good his escape alongwith the knife. Complainant Abdul Aziz thereafter put the deceased in a Rickshaw and brought him to the Police Station where he lodged the F. I. R. At 8 p.m. Which was recorded by S. I. P.
Araz Muhammad. S. I. P. Araz Muhammad after preparing the mashirnama of the injuries, observed by him on the person of the deceased, sent him to the Hospital and proceeded to the vardat where he secured the blood-stained earth under a mashirnama and tried to arrest the accused Majoo but could not succeed. He then handed over the investigation to I.
0. Araz Muhammad Bhutto who examined the witnesses, secured the blood-stained earth from the vardat and sent it to the Serologist alongwith the blood-stained cloth of the deceased for clinical examination and sent the injured to the Hospital where he succumbed to his injuries soon after. On conducting the post-mortem on the dead body Dr. Hasnain Yar Khan found the following injuries:-
(i) An oblique incised wound 1' x 1/4" Y deep to the chest cavity on the front of chest 2-1/2 medial and parallel to left nipple, cutting the 4th rib of left side and inter costal muscles of the fifth space.
(ii) An oblique incised wound deep to thoroco abdominal cavity on the left side of chest lower part at the 8th inter costal space 5' below and lateral to the left nipple.
(iii) An oblique incised wound X r muscle deep on the left arm upper part lateral.
' Efforts were thereafter made to arrest the accused but he could not be found in Hyderabad.
Finally, proceedings under section 512, Cr. P. C. Were taken against the appellant and he was declared absconder. He was ultimately arrested on 21-1-1973 from the house situated in Mohajirabad in Karachi by S. I. P. Khwaja Nisar Ahmed of Preedy Police Station. After the investigation was completed, appellant was challaned and committed to the Court of Sessions to stand his trial.
3. At the trial, the prosecution relied on the occular testimony of P. Ws. Mitho, Chutto, and Hameed Khan. Complainant Abdul Aziz, however, died before the case could be challaned.
4. The defence of the appellant at the trial was one of denial and false implication. The enmity pleaded by him in his statement under section 342, Cr. P. C. Was that P. W. Mitho hotelwala had to pay to him Rs, 140 and, therefore, on the day of the incident, he had gone to P. W. Mitho and demanded Rs, 140 from him which he promised to give on the next day but on the next morning again he promised to pay in the evening and in this way avoided payment which led to exchange of abuses between him and the appellant whereafter Mitho gave him a slap and it was on this account that P. W. Mitho who was also a police informer had deposed against him. With regard to the other P. Ws. He alleged, that they were related inter se. He further stated he knew Iqbal deceased who was his neighbourer and a quarrelsome man against whom criminal cases were pending and he might have been hit by someone else.
5. The trial Court after carefully assessing the evidence of the witnesses believed it and convicted the accused as stated above.
6. The question for consideration is whether the appellant has been rightly convicted . Mr. Muhammad Ibrahim Memon, learned counsel for the appellant at the very outset stated that with regard to the conviction of the appellant under section 302, P. P. C., he had little to say and would rather press this appeal for reduction of sentence on the grounds that the death of the deceased was not intentional but occurred on the spur of the moment preceded by an altercation between the deceased and the appellant and that no motive whatsoever had been assigned for the murder even by the prosecution itself. Mr. Usman Ghani, learned Assistant Advocate General, agreed with the learned counsel for the appellant and stated that he had no objection if the sentence was reduced to transportation for life. However, the case being before us on reference under section 374, Cr. P. C. We thought it only appropriate to go through the entire evidence to see whether the appellant has been rightly convicted.
7. Prosecution case against the appellant rests mainly on the ocular testimony of P. Ws. Mitho, Chutto and Hameed Khan. P. W. Mitho is the owner of the hotel where the incident took place. He has stated in his deposition that at the time of the incident he was sitting at the counter of his hotel situated near the tonga stand of Tando Haider, Par Fuleli, Hyderabad while complainant Abdul Aziz and P. W. Chutto alongwith others were sitting inside the hotel and appellant Mazhar alias Majoo was sitting on one of the benches lying outside the door of the hotel. He saw deceased Iqbal, who was his neighourer, coming to him at the counter and ordering tea to be sent to the shop of barbar situated in front of the hotel. Appellant Majoo, who was sitting on one of the benches outside the door, called Iqbal but the latter did not pay any heed to it. Appellant Majoo thereafter gave another call which also the deceased ignored and started to leave the hotel. Appellant Majoo then left his place and caught hold of Iqbal by his hand. Iqbal pushed the accused back. Majoo resisted the push and took out a knife and gave 3 blows to Iqbal in spite of the cries raised by him and other witnesses. After receiving the injuries on the left side of abdomen, chest and arm, Iqbal fell down on the ground and appellant Majoo made good his escape with knife in his hand before he and other witnesses including Chutto and Hameed, who also had seen the incident, could reach the deceased. He was cross-examined at length but barring a minor omission, of no significance whatsoever, about his not specifically mentioning in his statement to the police about the deceased ordering tea and a baseless suggestion that his hotel was a gambling den and a source of quarrel and that he was inimical to the father of the appellant Majoo, which suggestions were denied by the witness, nothing was brought out to discredit his testimony as to the details of the incident, in the slightest degree. It is an admitted position that the incident took place in the hotel of this witness. That being so, his presence in the hotel at that time of evening was only natural. Also the appellant was his neighbourer and was known to him since childhood which fact has not been challenged in the cross-examination. There is no reason why he should falsely implicate the appellant more so when it has not even been alleged that he was in any way connected with or interested in deceased. An attempt was made by the appellant in his statement to show that this witness owed Rs, 140 to the appellant as against his statement before the Court of inquiry that he owed him Rs, 100 which were repeatedly demanded by the appellant but this witness refused to give and it was on this account that he has deposed against the appellant. This plea was not even put to the witness in his cross-examination and was, in any ease, duly considered by the trial Court and rightly rejected so farfetched and contradictory to his statement before the lower Court. The evidence of this witness was fully relied upon by the trial Court and Mr. Muhammad Ibrahim Memon, learned counsel for the appellant, has not been able to advance any reason as to why he should take a contrary view. Indeed, learned counsel at the very outset stated that he had little to say as to the ocular evidence relied upon by the trial Court in convicting the appellant.
8. The next witness is P. W. Chutto. His version is practically the same as given by P. W. Mitho. It is not disputed that he lives in the locality and, therefore, his presence in the hotel at the time of the incident, is not unnatural. His presence is also shown in the F. I. R. As well as by the other witnesses namely P. W. Mitho and Hameed Khan. He was cross-examined at length but barring a minor omission of not stating before the police about the deceased not responding to the second call by the appellant and his not remembering to have stated in his statement before the lower Court about the deceased receiving fourth injury on his right shoulder, and a suggestion that he and P. W.
Mitho were inimical to the father of the appellant, which suggestions were denied by the witness, nothing was brought out to discredit the testimony of this witness on the details of the actual incident. He has been fully relied upon by the trial Court and Mr. Ibrahim Memon, learned counsel for the appellant has not been able to advance any reason as to why we should take a contrary view. Indeed, just as in case of P. W. Mitho, he frankly admitted that he had little to say on this point except that this witness was a relation of the deceased and therefore, should not be believed. But whether mere relationship can be a ground for discarding evidence of a witness, if otherwise his evidence is found to be worthy of credit, learned counsel very fairly replied in negative.
9. The next witness is Hameed Khan. He looks after the tandoor (oven) situated out side the door of the hotel. His evidence is also to the same effect as that of P. Ws. Mitho and Chutto. Being employed as Tandoorwalla, his presence at the scene of offence is very natural and has indeed not been disputed. He was cross-examined at length but nothing has been brought out to show that he was either inimical to the deceased or partial to the complainant side. On the contrary, perusal of his evidence would show that he is an independent person and has no reason whatsoever to falsely implicate the appellant. His evidence has therefore been very rightly accepted by the trial Court.
10. Although the aforesaid occular testimony itself would be sufficient for founding the conviction of the appellant, there is yet another piece of circumstantial evidence against the appellant, namely, his abscondence. After the incident, appellant was absconding for nearly one year. In the meanwhile efforts were made by the Police to arrest him but they could not succeed. P. Ws. S. H.
0. Aziz Ahmed, S. I. P. Araz Muhammad, S. I. P. Shadad Khan A. S. I. Baig Khan have all unanimously stated that inspite of their best efforts, they could not succeed in arresting the appellant. They were cross-examined but nothing has been brought out therein to discredit their testimony. Even otherwise, there seems no reason why they should depose falsely against the appellant. The appellant has, however, denied his abscondence and tried to show that he was arrested at Hyderabad from his house but his plea has been rejected by the trial Court for the reasons stated and we fully agree with the trial Court.
11. For the aforesaid reasons, we hold that the appellant has been rightly convicted.
12. The question of sentence, however, needs consideration. Admittedly, the incident had taken place at the spur of the moment. No premeditation has been alleged even by the prosecution. The evidence of the prosecution witnesses would itself show that there was some altercation between the accused and the deceased. It is also not disputed that no motive lay behind the incident. In these circumstances, we consider that the lesser sentence of transportation for life would meet the ends of justice in this case. Indeed, Mr. Usman Ghani, learned Assistant Advocate-General had very fairly conceded and rightly so, at the very outset that this was a case for reduction of sentence.
Agreeing with him, therefore, we reduce the sentence of the appellant from death to that of transportation for life.
13. With the modification of sentence, the appeal stands dismissed. The reference for confirmation of death sentence is rejected. Appeal dismissed.