' This appeal is directed against the judgment dated 27-7-1973 passed by the first Additional Sessions Judge, Karachi, whereby he convicted the appellant Riazuddin under sections 302/34, and 307/34, P. P. C. And sentenced him to imprisonment for life under the first count and to 7 years Rigorous imprisonment under the second count and acquitted co-accused Zaffar. The charge against the appellant was that he and Zaffar had killed Irshad All and injured Munshi Ali at mid- night on 29-5-1967.
2. According to the prosecution story at 3 a.m. F. I. R. Exh. 13, was lodged by Mst. Akhtari Begum wherein she stated that Munshi Ali was her husband whereas Zaffar and Riaz were her neighbours.
Zaffar had come from Hyderabad quite recently to live with Riaz. In the evening preceding the night of the incident her husband had asked Zaffar to take out water from the gutter which was full, and on account of which the family was facing difficulty. On this, Zaffar's wife abused Munshi Ali, who asked Zaffar to stop his wife from abusing him which led to a fight between Munshi Ali and Zaffar and ended on the intervention of some neighbours. At about 12-30 hours in the night Munshi All and deceased Irshad came to the quarter from the wood-stall. Munshi Ali entered the quarter and the cries of Irshad were heard from outside upon which she, and her husband Munshi Ali came out and found that appellant and Zaffar were giving "Clued" blows to Irshad and had knocked him down on the ground. Munshi Ali tried to rescure Irshad, but, both the appellant, and Zaffar also started stabbing him. He rushed inside the house to save himself but they dragged him out and continued to assault him with their weapons. As a result of the cries of the injured and commotion, many people gathered at the spot. Appellant and Zaffar fled away from the scene of occurrence while the people of Mohalla took the injured, Munshi Ali to the Hospital. In the meantime Mst. Akhtari lodged the report at P. S. Korangi at 3 p.m. The S. H.
0. Went to the wardat on receiving a telephonic message from the police station, after the lodging of the F. I. R., a copy of which was handed over to him. The S. H.
0. Inspected the wardat in the presence of mashirs Muhamad Ayub and Nazir Ahmed and secured blood-stained earth and a chappal from there. He noticed some blood on the door and took some of it after scrapping it. Thereafter he sent the dead body of Irshad for post mortem examination, and recorded the statements of Zahid Hussain alias Master Nanna, Muhammad Shafiq, Abdul Ghafoor, Mahmood Ali, Hakimuddin, Mussadah Ali, Nazir Ahmed. At the Jinnah Hospital where Munshi Ali was admitted for treatment, he recorded his statement. Both the accused were arrested by him on the same day and on the pointation of Zaffar he recovered a 'chard wide Mashirnama Exh. 20 from their quarter which was lying in a hole in the room covered with a piece of cloth.
However it had no marks of blood. This recovery was effected in the presence of mashirs, Muhammad Ayub and Nazir Ahmed. On 4-6-1967, on the pointation of the appellant he recovered another `Churri' in the presence of mashirs Baboo Khan and Mohammad Rafiq vide Mashirnama Exh.
17. Tr e S. H.
0. Also recovered a loin cloth from his person which was stained with blood vide mashirnama Exh.
24 in the presence of mashirs Muhammad Ayub and Nazir Ahmad. Blood-stained articles and clothes of the deceased and that of the appellant were sent to the Chemical Examiner. The statements of the witnesses named above were also got recorded under section 164, Cr. P. C. By a First Class Magistrate.
3. On 29-5-1967 Dr. Abdul Majid Khan performed autopsy on the dead body of Irshad and discovered following injuries on his person:-
(l) Third left costal cartillage was partially cut.
(2) Fourth left costal cartillage was completely cut.
(3) Chest cavity was full of blood.
(4) Heart was pierced internally on the verticular surface at the middle. All the injuries were ante- mortem and appeared to have been caused by some sharp edged weapon such as knife. Of the ' ' 'injuries, injury No. 1 was sufficient to cause death in the ordinary course of nature. The cause of death was shock and haemorrhage as a result of the injuries suffered by the deceased.
4. Munshi Ali was examined by Dr. S. Raseeq Ahmed and the following injuries were found on his person :- (1)Incised wound on left side of the upper lip/oblique lip. It was through and through with the corresponding cut on the left margin of the tongue.
(2) Oblique incised wound on front of right side of the chest, measuring x x i" near the middle line four lingers below the right nipple.
(3) Oblique incised wound on front of left side of chest measuring 1' x x r four fingers below the left nipple.
(4) Oblique incised wound on front of left side of chest 1" xiXr four fingers below the injury No. 3.
(5) Incised wound transverse in line at upper part of right side of abdomen li" x 1/4" x 1/4".
(6) Incised wound on back of left forearm vertical in line 3/4"x x 1/4'.
(7) Incised wound on back of the ring finger of the left hand r x x fi.
' According to the doctor, the injuries were grievous in nature and dangerous to life, and that they were caused by some sharp-edged weapon such as knife. The Medico-Legal Certificate Exh. 12/A was proved by Dr. Waris Nasim as Dr. Raseeq Ahmad was not available at the stage of trial.
5. In defence, the appellant denied having caused injuries to the deceased Munshi Ali but has given no other explanation about the incident whatsoever or as to why he was implicated in the crime.
He denied having lived with the acquitted accused Zaffar and stated that he resided in Hyderabad and had come fifteen days earlier.
6. The prosecution has examined Munshi Ali as P. W. 1, Shafiq as P. W. 2, Shakoor as P. W. 3, Zahid Hussain as P. W. 4 and Akhtari Begum as P. W. 5 as occular witnesses in the case. Akhtari Begum has confirmed the story narrated by her in the F. I. R. She has stated that in the evening there was a fight between Zaffar Ali and Munshi Ali which was averted due to the intervention of the Mohalla people but at 12-30 hours when her husband and Irshad were coming from the Wood-stall, Irshad was attacked by the appellant and the acquitted accused, and they knocked him down on the ground and inflicted injuries with their Churris, to which he succumbed. They also caused several blows with Churris to Munshi Ali and when he entered the house to seek refuge they forcibly dragged him out of the house and assaulted him with their weapons. However on the intervention of the Mohalla people, Munshi Ali was rescued. The appellant and the acquitted accused Zaffar then ran away from the scene of occurrence. Munshi Ali appearing as P. W. 1 has fully supported the version of the earlier witness. He sustained as many as 7 injuries allegedly caused by the appellant and the acquitted accused Zaffar. He has implicated the appellant and Zaffar in causing injuries to him and the deceased and that as a result of one of the injuries caused to him by the appellant in the abdomen his intestines came out. Munshi Ali was taken to hospital while his wife Akhtari Begum lodged the F. I. R. From his statement it appears that there was no previous enmity between the parties except that in the evening a fight has taken place between them to which the appellant and Zaffar seem to have taken exception and as such they retaliated by attacking Munshi Ali and the deceased when they were returning home. As against the version of Mst. Akhtari Begum and her husband Munshi Ali P. Ws. 2, 3 and 4, namely Shafiq, Abdul Shakoor and Zahid Hussain have not implicated Zaffar at all, so far as the causing of injuries is concerned. P. W. 2 has stated that on hearing the commotion he came out of his house and saw the appellant stabbing the deceased.
He also saw another man with him but he did not recognise him. He has further stated that it was the appellant who struck Munshi Ali in the abdomen. P. W. 3 Abdul Shakoor had also supported the earlier witness i.e. P. W. 2 by saying that the appellant struck the deceased with Churri in his chest and neck. He also saw Munshi Ali coming out of the house and bleeding at that time. P. W.
4. Zahid Hussain alias Nanney Mian has said that at about 12 hours in the night he heard commotion and came out of the house. He found some people grappling in front of the quarter of Munshi Ali and amongst them he saw the appellant who had something shining in his hand which he could not distinctly recognise in the darkness. He also could not make out as to who had sustained injuries and at whose hands. He, however, saw Irshad lying underneath Riaz on the ground and Riaz's hand "coming down and going upward" while the acquitted accused was standing. The evidence of P. Ws. 2, 3 and 4 does not implicate Zaffar and therefore the learned Sessions Judge gave the benefit of doubt to Zaffar and acquitted him.
7. The conviction of Riazuddin rests on the occular testimony of Mst. Akhtari Begum. Munshi Ali, Muhammad Shafi and Abdul Shakoor and Zahid Hussain though Zahid Hussain has not been able to see the incident with clarity but so far the participation of the appellant is concerned he has named him. Muhammad Shafiq, Abdul Shakoor and Zahid Hussain are disinterested witnesses and there is no reason for them to falsely implicate the appellant. They also corroborate the occular testimony of Munshi Ali and his wife Akhtari Begum. Again his participation is confirmed by the seizure of loin-cloth from his person which was found to be stained with human blood. He has offered no explanation as to why he was being implicated in the crime and also for the presence of human blood on his loincloth. The prosecution has, therefore, established beyond reasonable doubt its case against him. He was therefore rightly convicted under section 302,1 P. P. C.
8. As for the sentence, he was awarded life imprisonment which could not legally be imposed as the offence was committed prior to the promulgation of Law Reforms Ordinance, 1972. We would.
Therefore, substitute a sentence of transportation for life instead of imprisonment for life. Subject to this modification the appeal stands dismissed.