' ZAKAULLAH LODHI, J.-The appellant was tried on murder charge and sentenced to death by the learned Additional Sessions Judge, Karachi, vide his order dated 31st July 1974. The appellant had preferred appeal against his conviction and sentence whereas the learned trial Court has referred the case for the confirmation of death sentence. This judgment will dispose of the appeal as well as reference.
2. According to the prosecution case appellant Mohammad Atiq alias Manna committed the murder of Abdul Mannan on 24th July 1971, at about 11-45 p.m. At the corner of Gall leading to House No, 37-2/2, Block No, 5-D, Landhi, Karachi. On a telephonic message received from Dr. Wall Mohammad of Jinnah Hospital, the Investigating Officer Cho wdhry Mohammad Ashraf reached the hospital and recorded the first information report at the instance of P. W. Abdul Hameed, the brother of deceased. According to the F. I. R. The deceased and the appellant were on strained terms for sometime. On the night of incident the deceased went to the house of the appellant for a rapprochement with the intervention of P. Ws. Shamsuddin and Abdul Samad who were with him.
Thereafter an altercation took place between the appellant and the deceased. However, the father of the appellant reprimanded the appellant and pushed him inside the house. P. We. Shamsuddin and Abdul Samad left the place. They had hardly reached at a distance of 10 quarters that they heard the cries of the deceased. They reached the vardat and found that the deceased was in injured condition and the appellant was standing near him with an open knife in his hand.
3. After recording the statement of the complainant P. W. Chowdhry ry Mohammad Ashraf, the Investigating Officer went to the Mortuary and prepared a mashirnama of the dead body and also the inquest report. He then proceeded to the vardat where he prepared a sketch and a mashirnama of the vardat. He secured Chappal of the appellant and blood-stained dust from the vardat under a mashirrmma. Subsequently he recorded the statements of the witnesses. The appellant was arrested from Hyderabad on 30th July 1971, and on his pointation a "Churi" was recovered from his house. A mashirnama of the same was prepared. The blood.Stained clothes of the appellant were also recovered from his house which were sealed in a parcel and a maihirnama was prepared for the same. The blood-stained clothes and "Churl" were sent to the Chemical Analyser for his examination.
4. Autopsy on the dead body was carried on by Dr. Mohammad Umer Khan who found the following injuries on the person of the deceased t- "(1) Incised wound on opigeatre region of abdomen transverse in direction above the umbilicus 2r x re cavity deep.
(2)Incised wound left upper arm laterally at above upper half oblique in direction rxix muscle deep (r deep).
(3) Incised wound left buttock laterally 1' x to muscle deep (1') deep.
(4) Incised wound left side back of chest below inferiorangle of left scapula r xrx skin deep."
In his opinion the cause of death was shock and haemorrhage duo to stab wound in the abodmen.
Injury No, 1, was itself sufficient to cause death in the ordinary course of nature. The weapon used was sharp-ed ged like "Churl".
5. The appellant has pleaded innocence and has squarely denied having committed the offence.
6. The prosecution has furnished testimony of P. Ws. Abdul Hamid (complainant), Abdul Samad, Shamsuddin, Noor Hasan, Asif, Mohammad Nabi and Mustafa. The last mentioned witness (id not support the prosecution and was declared hostile. P. W. Abdul Samad has stated in his statement that the deceased had gone to P. W. Shamsuddin, a hotel-keeper, a link before the incident and complained to him that the appellant had misbehaved with him. At that time the deceased was intoxicated. Upon this both the P. Ws. Shamsuddin and Abdul Samad accompanied the deceased and reached the house of the appellant. Some altercation took place between the appellant and the deceased but the appellant's father reprimanded the appellant and pushed bin inside the house whereafter the deceased asked P. Ws. Abdul Samad and Shamsuddin to leave the place.
They accordingly left and had hardly covered a distance of about 10 quarters from the vardat that they heard commotion upon which they returned to the vandal. Both of them claimed to have reached the vardat first. They did not see the appellant there. However, they found that the deceased had a knife in one hand and with the other hand he was holding his stomach. He told these witnesses that "bhai the Mat ko mar gays". P. W. Abdul Hameed. The complainant also claims to have reached the vardat first. But he does not speak about the presence of P. Ws. Abdul Samad and Shamsuddin. He gives a different version of the dying declaration and says that when he reached the vardat he found the deceased holding his stomach while the appellant was standing near him with an open knife in his hand. According to him, the deceased told him that Manna Le.
The appellant had stabbed him P. W. No,r Hann who is a relative of the deceased also claims to have reached the verdat: first and similarly P. Ws. Mohammad Nabi and Asif claim to have reached vardat first. However, except P. Ws. Abdul Smad and shamauddin no other witness has said that the deceased was holding an open "Churl" in Ws hand. P. Ws. Shamsuddin and Abdul Samad are more natural witnesses and Implicit reliance can be placed on their testimony because they had gone to the appellant's house along with the deceased and had left the vardat a few minutes before the incident. On hearing the cries of the deceased they rushed back to the vardat. They did not see the appellant at the site and in their presence the deceased bad uttered the above said words and gone unconscious. By these words which amount to dying declaration the deceased did not implicate the appellant by name. All what the deceased bad said was that a brother had killed the other brother. The distance between the vardat and the place up to where P. Ws. Abdul Samad and Shamsuddin had reached by the time of incident was also not much. They would have hardly taken a minute or two to reach the vardat whereas other witnesses were in their respective houses which are situated at some distance from the vardat and therefore they would have naturally taken some time to reach the vardat. However, if we were to believe these witnesses, then the testimony of P. Ws Noor Hasan, Asif, Mohammad Nabi and Abdul Hameed (complainant) shall have to be looked at with suspicions and ultimately kept aside from consideration. The last- mentioned witnesses have not only asserted that they were the first to reach the vardat but they have also stated that they had heard the deceased saying that the appellant had stabbed the deceased. The words of dying declaration given out by these witnesses and those stated by P. Ws.
Abdul Samad and Shamsuddin are absolutely different from each other. P. Ws. Shamsuddin and Abdul Samad have stated that they were the fint to roach the venial and in their presence the deceseed attend the words "bhat the bhat ko mar gaya". Except these words no other word was uttered by the deceased as ho went unconscious immediately after that. Further, according to these witnesses the appellant was not present at the site when they reached there. Keeping in view the cardinal principle of interpretation that the reasonable construction more favourable to the appellant shall have to be adopted. While doing so we are inclined to believe the statements of P.
Ws. Abdul Samad and Shamsuddin for the reasons already discussed. According to these witnesses the deceased was holding a knife in his hand. The details as to what happened at the vardat before these witnesses reached there are shrouded in mystery. The deceased was admittedly a history-shooter, physically stronger than the appellant and was intoxicated at that time. The appellant might have apprehended that he would attack him and so he stabbed him with knife in order to save his own life. The evidence is fully suggestive of such circumstances and if such an inference was to be drawn from the evidence, the appellant was perfectly within his limits of exercise of right of self-defence. The other interpretation which is possible is that the witnesses who are extremely inconsistent and belie each other about the fact of their reaching the vardat may not be present at all and might have fabricated the story subsequently to favour the complainant's side. This latter interpretation is also possible as in their statements each of them has tried to establish that he was the only person who saw the appellant soon. After the commission of the offence and hoard the dying declaration.
7. The statements of the above-mentioned witnesses receive corroboration from the production of blood-stained knife and clothes. According to the evidence of the Chemical Analyser all the articles sent to him were blood-stained. However, the blood-grouping was different. Some of the articles contained blood belonging to group 'B' while the others contained blood of '0' category.
These articles cannnot therefore be said to be stained with deceased's blood. This evidence is not therefore worthy of being relied upon.
8. For the foregoing reasons, we are of the opinion that the prosecution has not been able to bring home the guilt to the appellant. We accordingly allow the appeal. The reference is not accepted.
The appellant shall b set at liberty forthwith unless required in connection with so ne other case.
MINA An HYDER, J,--I agree.