' AGHA ALI HYDER, J.-The appellant was convicted by the learned Additional Sessions Judge, Karachi, for offences under sections 302 and 307, P. P. C. On the first count, he was awarded death sentence, and, on the latter, R. I. For five years, and also a fine of Rs, 1,000.00, or, in default, to suffer R.
L for one year more. There is a reference by the learned Additional Sessions Judge, as required under section 374 of the Code of Criminal Procedure, and there is also an appeal preferred by the convict. The appeal and the reference will be disposed of by this common judgment.
2. Haroon the brother-in-law of the appellant lived on the second floor of the building known as "Kishonawaz Building", situated in Karachi, while P. W. Abdur Razzaq and his family members were tenants of a premises on the first floor. Mst. Zubaida had two daughters by the names of Mst.
Mahrunnissa and Mst. Maryam. The prosecution story is that, on or about the 9th of October 1970, there was an exchange of hot words between Mst. Mahrunnissa and Haroon, wherein some in civil words were used by the former. Haroon is stated to have remonstrated with Mst. Zubaida, the mother of Mst. Mahrunnisa about the impolite expressions, used against him by Mst. Mahrunnisa. P.
W. Abdul. Razzaq had also joined while all this talk was going on, and protested to Haroon about the abuses being hurled on Mst. Mahrunnisa. Later, the mother of the present appellant had also appeared on the scene, and threatened Abdul Razzaq for his interference. Developments, like this, followed in quick succession for two days, and, on one occasion, it is alleged that P. W. Abdur Razzaq had pushed the mother of the appellant, who had fallen to the ground. On the evening of the 10th of October, 1970, at about 4-30 p.m. Or so, Abdur Razzaq received a telephone call from his wife in the office that there was trouble abrewing at the house. Abdul Razzaq was brought to house by Abba Ali, since deceased, on his scooter. However, at about 5-00 p. m. When he was still in the land by the Picture House, which was not away from Thattai Compound, where he was living, he was caught hold of by one Abdul Ghani, with whom we have nothing to do here, while the appellant is said to have struck a knife blow on his belly. When Abba Ali tried to intervene, he also was dealt a knife blow by the present appellant, and Abba Ali was laid prostrate on the ground.
Abba All was still breathing, and the two injured persons were immediately rushed to the Civil Hospital. It appears that Abba Ali succumbed to his injuries, but not before he had been examined by a doctor, soon after his arrival at the house.
3. It appears that, when things had started taking an ugly turn, a telephonic message was received by A. S. I. Nazir Ahmad of the Resale Police Station, Karachi, at about 5-15 p.m. From one Abdul Majeed for police assistance, as some Goondas had collected in Picture House lane, near Standard Hotel, and trouble was apprehended. The said A. S. 1., after entering the Report in the Station Diary, left in that direction, accompanied by some members of the staff. When he had reached there, he learnt that an incident had taken place, and the two injured persons had been removed to the Hospital. He further learnt that the appellant had gone to Kishonawaz Building. He states to have proceeded there, and, on his knocking the door, the appellant is stated to have come out with bloodstained clothes on his person. The appellant was arrested after his personal search. At about 5-50 p.m., Malik Sher Baz, the S. H.
0. Of the Resale Police Station was passing by the Mission Road, and was informed of happenings at the Picture House lane. He immediately went there, and found A. S. I. Nazir Ahmad and some members of his staff already present there. Accompanied by A. S. I. Nazir Ahmad, he went to the Surgical Ward of the Civil Hospital, where the injured persons were stated to have been taken, and was informed there that Abba All had succumbed to his injuries, while Abdur Razzaq was lying unconscious. He stated to have recorded the statement of Abdul Majeed, as he calls it, under section 154 of the Criminal Procedure Code at the Hospital, and despatched the same to the Police Station for the registration of the case. Thereafter, he prepared an inquest report over the dead body of Abba Ali, and returned to the "wardat", and prepared the "mashirnama". A `Chappar was lying there, and same also to be secured. At about 8-15 p.m. Two policemen, namely, Sikandar and Muhammad Ayoob, had produced the appellant before the A. S. I., Nazir Ahmad and he was taken into custody. The. A. S. I. Secured the blood-stained bushirt and trousers from the appellant, for which, he prepared a "mashirnama". The same day, Abdul Majeed is stated to have produced the blood-stained clothes of Abdur Razzaq, which came to be sealed by S. H.
0. Malik Sher Baz Thereafter, he made enquiries from Abdul Majeed, Ramon, Mst. Zubaida, and some other persons, and also referred the appellant to the Police Surgeon for ascertaining his age.
The other accused, namely, Abdul Ghani, however, remained absconding, and the charge-sheet came to be submitted to the Court, showing him as an absconder.
4. The appellant in his statement at the Court of Enquiry as well as at the trial denied the various allegations made against him. According to him, the witnesses were deposing against him at the instance of the Police. He also examined Dr. Muhammad Umar, who had earlier been examined at the Court of Enquiry, and Dr. Aftab Ahmed in his defence on the point of his age.
5. Both Abba All and Abdur Razzaq had been examined at the Hospital soon after the incident by Dr. Aslam Farooqi who, during the proceedings, was not available in Pakistan, as he had taken an employment in Libya. Dr. Sakhi Sarwar, who was his colleague and was familiar with his signature, came to be examined in his place. However, the autopsy was held by Dr. Muhammad Umar, who found an incised wound on the left side of the lower chest and abdomen of Abba Ali obliquely vertical in direction at mid axillary line. According to him, Abba Ali had died as a result of shock and hemorrhage due to the stab wound, which was sufficient, in the ordinary course of nature, to cause death.
6. The injuries on Abdur Razzaq, as deposed to by Dr. Sakhi Sarwar, were an incised wound left side chest lateral in direction 2' x 1' x muscle deep, and an incised wound left iliac fossa transverse in direction 2' x 3/4" cavity deep with the loop of omentum coming outside. According to him, the first injury was simple in nature, while the Injury No, 2 was grievous. Both these injuries were fresh, and appeared to have been caused by a sharp-edged weapon.
7. Out of the two victims of the attack, only Abdur Razzaq had survived. The incident had taken place in broad day-light. It will, therefore, be in the fitness of things to advert to his testimony. He has referred to the wordy duel, which had started between Mst. Mahrunnisa and Haroon, in which the ladies from the house of Haroon had, later on, joined him. He mentioned that, on one of these occasions, he had put his hand on the mother of Haroon just to pacify her. However, the latter had fallen down on the ground, making matters worse still. Then, he refers to the distress call from his wife, while he was still at the office, and how he had proceeded there in the company of Abba AIL He states that, when he had reached the lane, the companion of the appellant had caught hold of him from behind, and the appellant had dealt two knife blows on his belly. Abba Ali tried to come to his rescue, when the appellant struck him with a knife. Soon thereafter his wife had removed him and Abba All to the Hospital, where the latter breathed his last fifteen minutes later. There was a suggestion in the cross-examination that he and Abba Ali had appeared on the scene, armed with knives, with the intention of fighting, but the same came to be denied. He admitted that a number of persons had collected at the spot at the time of the incident. Nothing worthwhile however could be elicited from him in the cross-examination.
8. Let us next refer to the evidence of Abdul Majeed, who is stated to have lodged the First Information Report. He resides in the Picture House lane and, at the material time, states to have been returning to his house, situated in the Picture House Lane, after offering `iisra' prayers He states that the mother of Abdul Razzaq had met him on the way, and requested him to intervene in the fight, which was going on in the lane. He had noticed a crowd, and seen one person catching hold of Abdul t. Azzaq from behind, while another man armed with a knife, was standing before him.
He had also seen Abba Ali catching hold of the person having the knife. Then, there was a cry raised that Abba Ali was bleeding from the abdomen injury, and he was so perturbed that he left for his house soon thereafter. He, however, admitted to have lodged the Report, but denied that he had mentioned the name of the appellant therein. He was cross examined by the learned A. P. P.
And confronted with certain passages of the so-called First Information Report, and also of his statement at the Court of Enquiry. At the Court of Enquiry, he had mentioned that he had seen the appellant in company of another person, fighting with Abdur Razzaq; that he had caught hold of the appellant and taken him away with Abba Ali, and that he was the same man, who was present in the Court. The First Information Report cannot be treated as such, because, before the same came to be recorded by Malik Sher Baz, A. S. I. Nazir Ahmed had not only reached the I wardat but also had gone to the house of Haroon, from where he had arrested the appellant with his blood- stained clothes. This naturally would have followed some enquiries at the spot. Even Malik Sher Baz, after reaching the "Wardar", had proceeded to the Civil Hospital along with Nazir Ahmed. The First Information Report came to be recorded round about 7-00 p.m , and therefore it cannot be said as borne out by the record that no investigation had taken place by that time. There was also a telephonic massage from Abdul Majeed, as stated by A. S. I. Nazir Ahmed, but it was not put to the witness that he had given the message on telephone. I might as well mention that, apart from the question, as to whether the telephonic message would constitute a First Information Report or not, the one in question cannot be treated as such. All that was stated therein was that some vagabonds had collected together near the Standard Hotel, and started quarrelling with the residents of the area. It is true that Police assistance was sought, but, in order to qualify the same as a First Information Report, it should be an information relating to the commission of a cognizable offence. Further it should be reduced to writing and read over to the informant, and its substance entered in a book kept by the Officer-in, Charge of a Police Station in the prescribed form. It would not be a First Information Report as, it, otherwise too, did not disclose the commission of an offence of a cognizable nature. There is scanty material in this piece, and it is not possible to refer to the other one also, as observed earlier, to use it to support the at gument, that a certain statement in the deposition of a witness in the examination-in-Chief v as not true, as was done in the case of Adalat and another v. The Crown (1). The learned Additional Sessions Judge, however, preferred his statement at the Court of Enquiry, which was brought on the record under section 288 of the Criminal Procedure Code, and, looking to the surrounding circumstances, and the fact, that he did not-deny his presence at the time of the incident, which was in broad day-light, no exception can be taken to the discretion exercised by the learned Additional Sessions Judge. It is true that he would be related to Abdur Razzaq, but I find it safe to rely on the same, as was done by the trial Court.
9. The other witnesses of the incident are Haji Abdus Salam, Paryal, Mst. Zohra, Mst. Zubaida and Azmat Ali. Haji Abdus Salam has stated that he had seen the appellant having a knife in front of his shop in the lane, but, thereafter, he had left for his house, as he was fasting. However, in his statement at the Court of Enquiry all that he said was that he had seen Saleem in the crowd, and he had not seen anything in his hand, or, doing anything. Paryal states that he was standing at the door of his house, and had seen a person bleeding. The boy, who had inflicted the injuries on the person, was the one present ire the Court. On his own showing, he had seen him from behind, and, what is more, he did not know the appellant before the incident, and there was no identification test. So, nothing will turn on his evidence. Mst. Zubaida was in her flat, and had heard of the murder there. According to her, the injuries had been inflicted on Abdur Razzaq by two persons, including the present appellant, and, when Abba Ali had tried to intervene, he was dealt a knife blow by the appellant. However, that was not her version in her statement to the police, as duly brought on the record. According to Mst. Zohra, the wife of Abdur Razzaq, Abba All had been struck before she saw the appellant grappling with her husband. That is not in accord with the version as furnished by Abdur Razzaq. However, Azmat Ali, whose evidence was brought on the record under section 33 of the Evidence Act, as his whereabouts could not be traced at the trial, as deposed to by the process server, had stated that, while coming out of the factory, he had seen Abba A'i holding the appellant with a blood-stained churri' in his hand, and the appellant trying to extricate himself from the grip of Abba All. He is silent about Abdur Razzaq. He has stated that he was coming from the mosque after offering his prayers, and this would show that he had turned up at the "wardat" a little after the blow had been dealt to Abdur Razzaq. He was the owner of a 'chappal' factory in the lane, and the process server has stated that the factory had closed, and therefore he could not know as to where he was. There is an endorsement to that effect after he had made some enquiries. He is a totally disinterested witness, and there is no circumstance made out to look askance at his evidence.
10. Then, there is the evidence of the securing of the blood-stained clothes from the person of the appellant. However, Nazir Ahmed has stated in express terms that he had not secured the blood- stained clothes from his person. Nor had S. H.
0. Malik Sher Baz. This was done as late as 8-00 p.m., the clothes being brought by two police constables. However, what is more though the articles have been found to be blood. Stained by the Chemical Examiner, yet the three parcels, containing the:..
(1) PLD 1956 FC 171 ' clothes of Abba Ali, Abdur Razzaq and the appellant, are of groups A, B and Crespectively. The clothes secured from the person of the appellant, therefore, do not fall in any of the two blood groups, either of Abba Ali, or Abdur Razzaq. I am, therefore, of the opinion that this piece of evidence will not constitute a confirmatory circumstance.
11. As for the motive, apart from what Abdur Razzaq has to say, there is also the evidence of Sana ur-Rehman, Mst. Zobra, Mst. Mahrunnisa Mst. Zubaida, and there can be no manner of doubt that it was because of this that things came to such a pass. The evidence, therefore, against the appellant in regard to his complicity in the crime is established beyond all reasonable doubts.
12. It is, however, to be seen that the appellant at the time of the commission of the offence was a very young man. He was referred to the Civil Surgeon by the Investigating Officer for the determination of his age, and was found to be seventeen years' age. There were two Revision Applications before the High Court and there was an appeal filed before A the Supreme Court for special leave, though that was not pursued, with the result that it was dismissed. He had also examined Dr. Aftab Ahmed in his defence who opined that the appellant was 15/16 years old at the time of the commission of the offence but his evidence has been very properly rejected, because the opinion of the said doctor was not based on the ossification bone test, as can be seen from the certificate issued by him. Otherwise too, there was a finality about the point. It is, however, to be seen that the trouble started over a very minor affair, and the appellant was smarting because of the abuses given to his brother-in-law, and, later on, his mother also was maltreated. I am, therefore, of the opinion that a sentence of life imprison C ment will meet the ends of juitice. I will, therefore, not accept the reference, and alter the conviction of death sentence to transportation for life. Th conviction and substantive sentence under section 307, P. P. C. Is also maintained. The sentences will, however, run concurrently. The fine of Rs, 1,000.00, in default whereof he was to undergo R. I. For one year more, however, is remitted. With this modification, the appeal stands dismissed.
ZAKAULLAH LODHI, J.-I agree.