' SHABBIR AHMED, J.---On 17-6-1998 after hearing the learned counsel for the parties, by short order, the appeal was dismissed with modification in sentence, the following are the reasons for the same.
2. Appellant Deedar alias Eidan had been tried by the learned Sessions Judge, Skikarpur for the murder of Lal Muhammad and having been found guilty of the charge vide judgment, dated 25-11- 1992 and upon his conviction under section 302, P.P.C., appellant Deedar Ahmed alias Eidan was sentenced with death and fine of Rs,10,000 and one year in default of fine.
3. The murder reference No,11 of 1992, seeks confirmation of the said sentence of death while Deedar alias Eidan convict through this Criminal Appeal No,86 of 1992 calls in question of the above noted conviction and sentence recorded against him.
4. Both these matters are being disposed of together through this single judgment.
5. Briefly, stated, the facts are that on 17-1-1987, Ali Nawaz (P.W.1) a Tanga driver, and brother of deceased Lal Muhammad lodged a report (Exh.6) at Police Station, New Foujdari, Shikarpur recorded by A.S.I., Tahir Hussain (not examined), stating therein that at about 1 p.m. On the day of report, when he reached by Tanga at Punj Guli Chowk, he met his brother Lal Muhammad at that time from the side of Bungalow of Haji Kauro Khan Bhayo, appellant Deedar appeared and challenged Lal Muhammad by pulling out the knife from the folds of his trouser and started stabbing him (Lal Muhammad), both raised cries, which attracted Abdul Rasool and Abdul Hafeez Dayo both brothers and police constables Farzand Ali and Taufeeque Shah, who were in the way and witnessed the incident. As a result of injuries Lal Muhammad fell down and died. They apprehended the appellant with blood-stained knife and blood-stained clothes and brought him to Police Station for report, leaving Abdul Rasool at the dead body.
6. Motive for attack stated in the report, was the demand of compensation for the marriage of Mst.
Arbab Khatoon with deceased Lal Muhammad by appellant.
7. A.S.I. Tahir Hussain of Police Station New Foujdari after recording the report arrested the appellant and also secured and sealed the blood-stained knife and shirt of the appellant under memo. Of arrest and recovery (Exh.21) in presence of witnesses Abdul Wahab and Muhammad Saleh, then he proceeded to Wardat, where he prepared the inquest report as per (Exh.22) in respect of the dead body of deceased Lal Muhammad in presence of witnesses Abdul Wahab and Ali Gohar and also inspected the Wardat as per (Exh.23) in presence of the same witnesses..
8. He dispatched the dead body to the Civil Hospital (RBUT), Shikarpur for autopsy through P.W.
Abdul Kadir, who brought the dead body and handed over to the Medical Officer, along with letter of request, for autopsy.
9. P.W. Abdul Sattar, the then Medical. Officer Civil Hospital (RBUT) Shikarpur conducted the autopsy on the dead body of deceased Lal Muhammad son of Ghulam Rasool by caste Dayo.
10. On external examination, Medical Officer found the following injuries on the non-surface.
(1) One incised wound measuring 3 c.m. x 3 c.m. x muscle deep present over surface of left fore- arm in its upper 1/3rd.
(2) One incised wound measuring 2 c.m. x 5 c.m. x muscle deep present over medical surface of left fore-arm in its middle 1/3rd.
(3) 5 incised wounds measuring 2 c.m. x 3 c.m. x abdominal cavity deep present over middle part of abdomen enteriorly in an area of 15 c.m. x 9 cm.
(4) 8 incised wounds measuring 2 c.m. x 3 c.m. x abdominal cavity deep present over left side of abdomen anteriorly in an area of 15 c.m. x 8 cm.
(5) One incised wound measuring 2 c.m. x 3 c.m. x abdominal cavity deep present over right side of abdomen anteriorly.
11. On internal examination, he found the following damages:--- (1)Abdominal walls were perforated anteriorly.
(2)Peritoneum was perforated. The stomach was empty. Pancreas was injured and congested.
Small and large intestine were perforated and congested. All the other organs were healthy and congested.
12. The Medical Officer was of the opinion that the death was due to shock and haemorrhage i,e, intra-abdominal and extra-abdominal haemorrhage as a result of injuries to the abdomen caused by sharp-cutting weapon. The injuries were antemortem in nature. Time elapsed between injuries and death was about 15 minutes and the time between death and autopsy was about 3/4 hours as per autopsy report (Exh.12).
13. He also despatched the blood-stained clothes of the deceased to Police Station, duly sealed for the purpose of chemical analysis.
14. A.S.I. Tahir Hussain examined the witnesses namely Abdul Rasool, Abdul Hafeez, Farzand Ali, Taufeeque Shah, Abdul Wahab and Ali Gohar. On 30-11-1987, he produced the witnesses before P.W.
Muhammad Ameen, Additional City Magistrate, Shikarpur, who recorded the statements of the witnesses under the provisions of section 164, Cr.P.C. The blood-stained shirt, knife secured from the appellant and blood-stained clothes of the deceased were despatched for chemical analysis, the report in respect of the same was in positive as per Exhs.29 and 39. Thus, concluded the investigation and the appellant was sent up to face his trial.
15. At the trial, the appellant claimed his trial by denying the charge.
16. The prosecution in support of its case produced the evidence, which was collected during the investigation in the shape of (i) ocular- testimony, (ii) medical evidence, (iii) motive, (iv) arrest " at the Wardat, (v) recovery of blood-stained knife and the shirt and (vi) sketch of Wardat, by examining the following witnesses:
17. Complainant Ali Nawaz P.W.1 as Exh.5, Abdul Rasool P.W.2 as Exh.7, Abdul Hafeez P.W.3 as Exh.9, Abdul Sattar P.W.4 as Exh.11, Muhammad Amin P.W.5 as Exh.13. Sahib Dino P.W.6 as Exh.15, Abdul Kadir P.W.7 as Exh.17, Farzand Ali P.W.8 as Exh.19, Abdul Wahab P.W.9 as Exh.20, Toufeeque Ahmed Shah P.W.10 as Exh.24 and Jehangir P.W.11 as Exh.27.
18. The Investigating Officer A.S.I., Tahir Hussain could not be examined as after his retirement he left for Punjab as per evidence of P.W. Jehangir and his signatures on the memos. Were proved through him as he served under him at Police Station, New Foujdari.
19. The stand taken by the appellant Deedar alias- Eidan in his statement under section 342, Cr.P.C., was complete denial of the prosecution case and maintained that he has been implicated due to enmity as the witnesses are interested and related interse. He has further stated that on 27-1-1987 at 5-30 p.m. He was available in house when police called him and asked about his cousin Muneer, who was not available. Then he was taken by police to Police Station, New Foujdari. He was kept by the police there and was promised to be let off if he discloses the whereabouts of Muneer but he was not able to give his whereabouts. He was arrested and the case was foisted against him. He hag further stated that Muneer is son of Mst. Arbab wife of deceased and he never demanded any thing from the deceased for Mst. Arbab. He has not examined himself under the provisions of section 340(2), Cr.P.C., but examined Basar, Head constable as defence witness, who produced the daily situation report, dated 27-1-1987.
20. Upon the perusal and appreciation of the evidence on record the learned Sessions Judge, Shikarpur came to the conclusion that the appellant Deedar has committed the intentional murder of Lal Muhammad and, thus, convicted and sentenced him as stated above.
21. We have heard the learned counsel for the appellant and learned Additional Advocate-General, Sindh on behalf of State and with their assistance, we have perused the evidence recorded during the trial.
22. Mr. Yasin Khan Baber counsel, for the appellant, raised the following contentions; in support of the appeal:
(1) That the charge was defective as the fact of appellant's arrest on the spot has not been mentioned in the charge.
(2) That the learned Sessions Judge has erred in believing the interested witnesses.
(3) That the learned Sessions Judge has not considered the discrepancies between the prosecution witnesses particularly regarding arrival of the appellant, the conveyance used for taking him to police station from Wardat.
(4) The sketch of Wardat was prepared in presence of Ali Nawaz, the first informant an eye-witness, but the place of apprehension of appellant has not been shown in the same, which makes the apprehension of the appellant at the Wardat doubtful.
(5) The incident occurred in a thickly populated area and independent witnesses were present at the Wardat but were not examined.
(6) The learned Sessions Judge has erred in accepting the Chemical' Report, which was belated one.
(7) Alleged eye-witnesses are chance witnesses and they are not to be believed unless their presence is established beyond any doubtful.
(8) Lastly contended that the prosecution has failed to prove the guilt against the appellant beyond reasonable doubt and the appellant is entitled for the acquittal.
23. Conversely Mr. Zawar Hussain Jafferi learned Additional Advocate-General Sindh appearing on behalf of the State has maintained that it is a day time incident witnessed by 5 eye-witnesses amongst them Farzand and Tofeeque Shah are independent witnesses, whereas Ali Nawaz, Abdul Rasool, Abdul Hafeez though they are related to the deceased but they have no enmity with the appellant. The appellant was apprehended on the spot and was brought along with bloodstained knife (crime weapon) and bloodstained shirt to Police Station. The prosecution was able to prove these facts. Thus, the guilt of the appellant was proved beyond any shadow of doubt. He has supported the judgment of conviction recorded by the learned Sessions Judge.
24. We at the very outset, repelled the contention of Mr. Yasin Khan Baber that charge being defective due to non-mentioning of the fact of the arrest of appellant in the charge. It has no force as the requirement of subsection (5) of section 221 of Cr.P.C. Is that the facts which constitute an offence are to be mentioned in the charge. The arrest of the accused is not an offence itself but it is circumstance, which is relevant to the fact in issue (charge) against the appellant.
25. The prosecution case was that deceased. Lal Muhammad and P.W. Ali Nawaz brother of deceased were present, when the appellant appeared at the Wardat and after challenge he pulled out knife from the folds of his Trouser and attacked the deceased Lal Muhammad, on cries P.Ws.
Abdul Rasool and Abdul Hafeez, who were going to Kath Mandi were attracted, as well as, P.Ws.
Farzand Ali and Taufeeque Shah constables. They not only witnessed the incident but also apprehended the appellant.
26. The motive for the murder was stated by P.W. Ali Nawaz, only, who is brother of the deceased Lal Muhammad that appellant was demanding compensation of the marriage of Mst. Arbab Khatoon, his maternal aunt, with Lal Muhammad, which took place about 16 years prior to the incident.
27. During the trial, the same, fact has been deposed by P.W. Ali Nawaz, the brother of the deceased, who is a Tanga Driver that when he went from Lakhi Gate to Kath Mandi between 12-00 to 1-00 p.m. On the fateful day, he found Deedar appellant giving knife blow to his brother Lal Muhammad. He raised cries which attracted Abdul Rasool, Abdul Hafeez, Farzand Ali, Taufeeque Shah they also witnessed the appellant causing knife injuries to his brother. The appellant was apprehended by them and was brought to the Police Station.
28. That same fact has been stated by witnesses Abdul Rasool and Abdul Hafeez that when they were in the way of Kath Mandi from their residence to produce wood, they attracted on the cries and found appellant causing knife blows to Lal Muhammad. They further deposed that P.Ws.
Taufeeque Shah and Farzand Ali also came on the motorcycle, the appellant was apprehended by them who had hardly covered 30 paces.
29. P.Ws. Farzand Ali and Taufeeque Shah, Police Constables also deposed the same fact of witnessing the incident of causing knife blows by appellant to Lal Muhammad deceased and apprehension of the appellant and his production at Police Station with incriminating articles.
30. The ocular testimony of the eyewitnesses Ali Nawaz, Abdul Rasool, Abdul Hafeez, Farzand Ali and Taufeeque Shah that the appellant killed the deceased Lal Muhammad by causing knife injuries is supported by medical evidence in the shape of evidence of M.O. Abdul Sattar, who has conducted the autopsy on the dead body of Lal Muhammad and found the incised injuries. They were put to lengthy cross-examination but nothing favourable to the defence was extracted from their cross- examination except minor contradictions regarding time of arrival of appellant at the Wardat and transport on which the appellant was brought to Police Station after his apprehension at Wardat.
31. So far the discrepancies as pointed out by the learned Advocate for the appellant, are concerned, the incident took, place in the month of January, 1987, whereas, the witnesses were examined in the year, 1990, in such circumstances, some discrepancies are inevitably bound to occur on account of lapse of memory owing to the intervening period which was about three years.
Such discrepancies/contradictions in the statement of witnesses were to be ignored in view of the observations of the Hon'ble Supreme Court in the case of Abdul Rasheed v. Umed Ali (PLD 1975 SC 227), in the following: "Some discrepancies are inevitably bound occur on account of lapse of memory owing to intervening period which was more than 16 months in the instant case. Of course, there have been cases where thoroughly drilled and well-tutored witnesses after going through several rehearsals made statements as well as those of each other at the trial and the Courts have been rightly sceptical about such parrot-like reproductions, probabilities that militate against the credibility of witnesses justifying the rejection of their testimony."
32. In the above case certain variance in the statements at the trial was noticed by the learned Judges of the Lahore High Court with the original version disclosed in the F.I.R., which were termed by Honourable Judges of the Lahore High Court to be extremely discrepant and an infirmity in the testimony of the witnesses casting doubt of their veracity, but Honourable Supreme Court has not endorsed the view and observed that minor discrepancies and contradiction, which have not materially affected the credibility of the prosecution witnesses have to be ignored.
33. The trend of the cross-examination was an attempt to show that deceased had enmity with others as well but the defence failed. No doubt P.W. Ali Nawaz is brother of the deceased Lal Muhammad and P.Ws. Abdul Rasool and Abdul Hafeez are cousins but neither motive against them to implicate the appellant nor the enmity was suggested. P.Ws. Farzand Ali and Taufeeque Shah, constables, have no relation with either party, have no animus to implicate the appellant for murder charge, their evidence furnishes the corroboration to the statements of 14.
34. The eye-witnesses have been branded, be the learned counsel for the appellant, as chance witnesses by maintaining that their evidence cannot be accepted unless their presence is proved at the Wardat. The presence of the witnesses has been explained, Ali Nawaz, is a Tanga driver, who ply Tanga in the town, he was with his Tanga it is not unusual for his presence at Wardat as the incident was on the road in town. The presence of the witnesses P.W.
Abdul Rasool and Abdul Hafeez has been explained by them that they were going to purchase wood from Kath Mandi. The Wardat is in the way. Thus, in such circumstances they are also natural witnesses.
35. It is well-established principle that if an occurrence took place the passers by are natural witnesses provided they have been able to explain their presence at the spot. So is, the position of P.Ws. Farzand Ali and Taufeeque Shah, they are the police constables even they were not known to either side. They have not only witnessed the incident but they also apprehended the appellant and produced him at the police station along with crime weapon and bloodstained clothes. Thus, their presence at the Wardat cannot be doubted.
36. It has also been contended by the counsel for the appellant that the incident took place in a thickly populated area but none was examined during the investigation nor produced at the trial.
Reason for non-availability of other witnesses at the Wardat was stated by the witnesses being Hurtal and closure of shops on this account on the day of incident i,e, on 17-1-1987. This fact was corroborated by the defence witness Bassar, who was examined on behalf of the appellant, a constable in C.I.D. Police. According to him there was Hartal, as per daily situation report, dated 27- 1-1987, to the extent of 3/4 of the town, but the facts remain that there was Hartal and witnesses, who were present at the Wardat have given the position at Wardat that all the shops were closed.
Recovery of blood-stained knife and bloodstained shirt has been proved by witness of recovery, namely, Abdul Wahab. The knife and shirt were despatched for Chemical Analyser's Report, which has been produced under the provisions of section 510, Cr.P.C., during the trial. So for the contention of the learned counsel for the appellant, that it was despatched belatedly, is concerned, the delay in despatching the crime weapon to the expert is by itself not sufficient to rule out the report of the expert as observed in the case of Mohbat v. The State (1990 PCr.LJ 73).
37. The contention of Mr. Yasin Khan Baber, learned counsel for the appellant that in the plan the place of arrest of the appellant has not been shown, thus, the arrest becomes doubtful. In our view this plea has no legs as well. The omission to indicate the place of the arrest of the appellant may not lead to inference that appellant was not arrested from the spot when the incident took place in broad day light and the witnesses, after apprehending the appellant produced him at the police station and deposed the same fact at trial. Thus, presumption cannot be drawn that the appellant was not apprehended at Wardat. Our view gets support from the view expressed by Honourable Supreme Court in case of Ali Sher v. State (PLD 1980 SC 317) wherein such like contention was brushed aside that the witnesses' presence has not been shown in the sketch of Wardat as such the presumption that they were not present at the time of occurrence.
38. In such circumstances we do not find any divergence and conflict in the evidence adduced by the prosecution which leaves no room of suspicion about the act of killing on the part of appellant with knife, who, undoubtedly, was apprehended at the spot with crime weapons (knife).
39. On the last leg, the counsel for the appellant Mr. Yasin Khan Baber maintained that the prosecution had suggested the motive that the appellant was demanding compensation for the marriage of Mst. Arbab with deceased. This has not been proved. Thus, the motive behind the crime shrouded in mystery, this leads to a mitigating circumstance for lesser sentence to the appellant.
40. The motive, as discussed above, has been stated by Ali Nawaz and has not been supported by any material and it was also too old. Thus, conclusion can safely be drawn that motive has not been established by the prosecution.
41. We are well aware that triviality of motive does assuage quantum of punishment specially when it is in the shape of capital punishment, this privilege can be extended to the appellant when he is found to have committed the offence without prernediation, deliberation or preparation. Even an extreme penalty is riot called for when immediate cause of attack is not known or the motive, though, alleged by prosecution but failed to prove it. The superior Courts after taking into consideration the facts of the case concerned have reduced the sentence of death into life imprisonment.
42. Applying the above principle in the present case the motive was suggested by the prosecution but failed to prove it, which is a mitigating circumstance for reduction in sentence of the appellant.
43. The upshot of the above discussion is that the prosecution has successfully discharge its onus by proving the guilt of the appellant Deedar alias Eidan beyond, any reasonable doubt, which is proved on ocular account furnished by witnesses Ali Navvaz, Abdul Hafeez, Abdul Rasool, Farzand Ali and Taufeeque Shah, evidence of recovery of crime weapon (knife) blood-stained shirt of the appellant, his arrest at the spot, supported by medical evidence.
44. The learned Sessions Judge in our view, was, therefore, right in convicting the appellant under section 302, P.P.C. The conviction is upheld and maintained.
45. In these circumstances, we are of the view that extreme penalty of death may not be consistent with the principle of safe administration of justice. Therefore, while maintaining the conviction of the appellant under section 302, P.P.C., we convert the I sentence to imprisonment for life in addition we further order that the appellant shall pay fine in the sum of Rs,20,000 out of which half will go to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C., if recovered. In case of default in payment of fine appellant shall undergo R.I., for, one year more. The benefit of provisions of section 382(b), Cr.P.C., is also extended to the appellant.
46. As a result, we dismiss the appeal with modification of sentence to the extent stated above and the reference is answered in negative.