1. ' NAZIM HUSSAIN SIDDIQUI, J.--- This appeal is directed against the judgment, dated 14-7-1997 of the then learned VIth Additional Sessions Judge, Karachi, East whereby the appellant was convicted under section 302, P.P.C. And was sentenced to death. He was also ordered to pay fine of Rs,30,000, which if recovered, was to be paid to the legal heirs of the deceased under section 544, Cr.P.C. By same judgment co-accused Nasirun Nisa and Abdul Samad were acquitted. Learned trial Judge has also made a reference, under section 374, Cr.P.C. For confirmation of said death penalty.
2. ' On 31-10-1990 in the night at about 12-45 a.m. The report of Haji Abdul Ghaffar was recorded by S.- I. Khalid Dad Khan at Abbasi Shaheed Hospital. It was incorporated in 154, Cr.P.C. Book, under sections 302, 147 and 148, P.P.C.
3. ' The case of the prosecution, in brief, is that deceased Muhammad Shafi, aged about 30 years, was the eldest son of complainant Haji Abdul Ghaffar and was serving as an Assistant in Muslim Commercial Bank Nanakwara Branch, Karachi. Appellant Muhammad Yaseen, and his family members used to quarrel with the complainant party. The complainant party had tied a rope with electric pole, which was on the wall of appellant's house for drying their wet clothes. It is alleged that the appellant, his brother, and their mother Mst. Nasirun Nisa had objected and asked the complainant party to remove it immediately. Getting no response deceased Muhammad Shafi started untying said rope. The appellant and his three brothers, whose names are not given in the report, came there, caught hold the deceased by his arm, and the appellant repeatedly gave him Chhuri blows. He sustained serious injuries on left side of his stomach and bled profusely. The incident was witnessed by the complainant, by his sons Amin and Muhammad Siraj and also by neighbored Muhammad Shafi was taken in an ambulance and on the way to the Abbasi Shaheed Hospital, he expired.
4. ' The investigation of this case was conducted by S.-I. Khalid Dad Khan, who on the relevant date, was duty officer posted at Police Station Gulshan-elqbal. On 30-10-1990 appellant Yaseen and his mother Nasirun Nisa at about 11-15 p.m. In injured condition came at said police station for lodging the F.I.R. He made such entry in the Roznamcha and gave a letter to them for Abbasi Shaheed Hospital for their examination and certificate. He received an anonymous telephone call that one person was lying injured in the Abbasi Shaheed Hospital. He reached there and recorded the statement of Haji Abdul Ghaffar, which was incorporated in 154, Cr.P.C. Book. He visited the scene of offence in presence of witnesses Muhammad Siraj and Muhammad Asif and also secured blood- stained earth from there. He examined P.Ws. Muhammad Amin, Muhammad Asif and Muhammad Siraj. He brought Yaseen and Mst. Nasirun Nisa at the police station and arrested them. According to him, during interrogation appellant Yasin had informed him that crime weapon i,e, Chhuri was available in his house. He went there and secured it. It was blood-stained and was lying over a drum. On 2-11-1990, he had arrested accused Abdul Samad. On completion of investigation, he submitted charge-sheet against the appellant, his mother Mst. Nasirun Nisa, and his brother Abdul Samad before the concerned Court, showing therein Muhammad Wajid and Muhammad Afzal as absconders.
5. ' In cross, he stated that Doctor of Abbasi Shaheed Hospital had issued the medical certificates in respect of appellant and acquitted accused Mst. Nasirun Nisa. He admitted that in the charge- sheet he had not mentioned anything about the injuries sustained by the appellant and his mother. He also admitted that neither the complainant nor any of the P.Ws. In their 161, Cr.P.C.
6. Statements, stated that the appellant and his mother had also sustained injuries. The report lodged by the appellant was registered under sections 323 and 504, P.P.C. He also admitted that though the appellant and his mother had serious injuries on their persons and were bleeding profusely, yet, he did not secure their blood-stained clothes. He stated that since he had not received final medical report in respect of appellant and his mother, he did not apply section 307, P.P.C. He admitted that his explanation was called by D.I.-G. Police, on the complaint made on behalf of the appellant and his mother that their report was not correctly recorded. He stated that incident took place inside the Gali, which was in front of the houses of both the parties. He admitted that none of the prosecution witness, in 164, Cr.P.C. Statements, stated that appellant had abused the women folk of complainant party or that there was dispute between the parties over flow of drinking water.
7. ' Necessary charge against the appellant and acquitted accused Mst. Nasirun Nisa and Abdul Samad was framed under sections 148 and 149/302, P. P.0 .
8. ' At trial, the prosecution examined complainant Haji Abdul Ghaffar, P.W. Muhammad Amin, Muhammad Siraj, Constable Sher Muhammad, S.-I. Khalid Dad, Doctor Mriza, Muhammad Aslam and'P.C. Allah Ditta.
9. ' The appellant in his statement recorded under section 342, Cr.P.C. Has denied the prosecution's allegations and claimed to be innocent. He examined himself on oath, but did not examine any witness in defence.'
10. ' On assessm ent of the evidence brought on record; learned trial Judge convicted the appellant and sentenced him as mentioned earlier.
11. ' Doctor Mirza Muhammad Aslam found the following injuries on the person of deceased Muhammad Shafi:--
(1) Stabbed wound 1-1/2" x 1" x cavity deep near epigestrium about 2" left to mid line.
(2) Stabbed wound 3" x 1" x cavity deep on left side of left hypocondrim.
(3) Stabbed wound 2" x 1" x cavity deep on back of the left hypocondrim. On internal examination, he found the following damages:-- "Inside abdominal cavity about 1500 cc of blood was present. There was a sharp cutting wound on the spleen and the lower part of medial lobe of liver was ruptured."
12. ' According to him, the cause of death was Cardio respiratory failure due to acute haemorrhage and shock of above injuries.
13. ' He had also examined injured Mst. Nasirun Nisa and found the following injury:- "Lacerated wound about 2-1/2" x 1/2 c.m. Right parital surface of the sculp. The injury was caused with hard and blunt. It was reserved for Radiological examination. Blood was profusely oozing from said injury."
14. ' He has also examined appellant Yasin and found the following injuries on his person:-- "Lacerated wound about 1-1/4" x 1-1/4" on left side of the forehead.
15. ' Lacerated wound 2-1/4" x 1-1/4" on partial region of the sculp. Lacerated wound about 3-1/4 x 1-1/4 Vertex of the sculp.
16. ' Above injuries were caused by hard and blunt substance and the nature of the injuries was reserved for radiological examination.
17. ' Mr. Gul Zaman Khan, learned counsel for the appellant contended that learned Trial Court has failed to appreciate principal facts and as a result of said lapse reached wrong conclusion. He also argued that main cause of dispute was lying a rope with an electric pole installed at the house of the appellant and that it was the complainant party which, in fact, unnecessarily picked up the dispute. It was also urged that the complainant and the eye-witnesses deliberately suppressed the material facts including of causing injuries to the appellant and his mother. Learned counsel submitted that even the Investigating Officer openly favored the complainant party and suppressed the factum of affray resulting into injuries to appellant and his mother. A plea has also been taken that the appellant had exercised the right of defense, when his house was attacked by the deceased and his brothers. In support of above contentions, learned counsel cited (1) Safdar Ali v. The Crown PLD 1953 FC 93, (2) Bashir Ahmed Khan v. The State PLD 1959 (Pesh.) 1 and (3) Ali Muhammad v. Ali Muhammad and another PLD 1966 SC 274.
18. ' In the case of Safdar Ali, it was held that even if accused failed to prove "special pleadings" but succeeded in creating a reasonable doubt, is entitled to acquittal. In case of Bashir Ahmed Khan, it was observed if there was an apprehension of danger to body and though actual harm was not caused, yet, it gave a right of self-defense. In case of Ali Muhammad, Honorable Supreme Court observed that the cases covered by exception to section 300, P.P.C. (old) read with section 304, P.P.C. (old) were intended to be dealt with under section 302(c), P . P . C .
19. ' This offence was committed on 30th October, 1990. Criminal Law (Second Amendment)
20. Ordinance, 1990 was published in Gazette of Pakistan Extraordinary part I on 5th September, 1990. It came in force on the twelfth day of Rabi-Awal 1411 Hijri, which corresponded to 2nd October, 1990.
21. Thus, sections 300 and 302, P.P.C., as amended, would apply to this case.
22. ' Coming back to the facts of the instant case, it is noted that admittedly electric pole was on the house of the appellant and rope was tied with it by the complainant party. The appellant and his family members had protested against it for the reason that, due to vibration caused by said rope and the clothes, often the electric supply to the house of the appellant was discontinued. It was a valid reason for the appellant and his family members to ventilate their grievance. It appears that even Mohallah people did not approve the act of the complainant party and asked the latter to remove said rope. The complainant has admitted that, on the day of incident at about 4-00 p.m.
23. Brother of appellant namely, Muhammad Husain, had removed it. It is evident that at least six hours before the incident the rope was removed and it was the deceased who, in a mood of retaliation, had gone to the house of the appellant and it was not vice versa.
24. ' In this case both the parties had deliberately suppressed the facts. Although it was well within the knowledge of the complainant that the appellant and his mother, had also sustained injuries, yet, in cross-examination, he denied this fact. He also denied the fact that it was appellant and his mother, who first reached the police station for registration of the case. He and P.Ws. Muhammad Amin and Siraj, in their respective depositions, attempted to establish that these were the appellant and his family members, who had come to their house just before the incident, which factually was incorrect. As is evident from testimony of Investigating Officer nand Dad Khan, the incident took place in a street, which was near the house of the parties. Both parties caused injuries to their rivals. Correct account of the incident has not been furnished by either of them and they astoundingly projected the only facts, which suited them. It appears to be a case of free fight and each person would be responsible for his individual A act. The appellant, his brother and their mother had no intention to cause death of any person of the complainant party. Had the appellant and his brother any such intention, they would have taken steps first to keep away their mother from scene of offence. It also appears from the circumstances that, within the view of the appellant, his mother was caused injuries by the complainant party. The case of the appellant is squarely covered by section 302(c).
25. ' Under the circumstances, we alter the conviction of the appellant from sections 302(a) to 302(c), P.P.C. And sentence him to suffer R.I. For seven years. He would also be entitled to the benefit of section 382-B, Cr.P.C. The reference for confirmation of death sentence is rejected.
26. ' On 13-3-1998, after hearing the arguments, we had dismissed the appeal in above terms and these are the reasons for short order announced on above date.
27. Sentence reduced.