1981 P Cr (PLP)

The prosecution case was that on the day of the incident, viz. 22ndDecember, 1973, the appellant alongwith the deceased and other fellow workers, namely, P. W. Faqir Muhammad, P. W. Theta Babu, Yaqoob and Kassim were engaged to do painting work in Adam House, Soldier Bazar, Karachi under the supervision of Contractor Ali Muhammad. At about 10 or 11 a.m. there was exchange of hot words between the appellant and the deceased on work performance on which the appellant refused to work and left the premises after taking his charges from the Contractor Ali Muhammad. At about 1 p.m. the deceased Muhammad, Rashid alongwith P. W. Theta Babu, P. W. Faqir Muhammad, Qasim and Yaqoob went to New Hazara Hotel for taking their lunch. Appellant Amin was already present there. After some time appellant left the hotel and the deceased also came out of the hotel after making payment for the meals at the counter. Soon thereafter there was commotion outside the hotel which attracted P. Ws. Mahboobur Rehman,. Theta Babu, Faqir Muhammad, Abdul Qayum and Sain Muhammad who all came out of the hotel and, simultaneously, the two police constables in plain clothes, namely, P. Ws. Abdul Razak and Shaukat Ali who were on patrol duty also came thereon hearing the commotion, All the aforesaid persons then saw the appellant taking out a knife from the right hand side pocket of his pant and inflicting two knife blows on the chest of the deceased who as a result of the blows fell down and died on the spot. Constable P. W. Abdul Razak with the help of one Aslam Rickshawala caught hold of the appellant along with the blood-stained knife in his hand and after preparing the mashirnama took him to the Soldier Bazar Police Station where he lodged the F. I. R. of the incident. After recording the F. I. R. S. H. O. Chaudhry Mohammad Munir arrested the accused and secured the blood stained knife under mashirnama Exh.

8. He also secured blood-stained shirt from the person of the appellant in presence of mashirs under mashirnama Exh.

9. He then proceeded to the vardat where he secured the bloodstained earth, held inquest, sent the dead body to the Hospital and recorded the statements of the witnesses. After completing the investigation he then sent up the appellant for trial in the Court of learned Additional Sessions Judge. At the trial, the prosecution relied on the ocular testimony of 7 witnesses, namely, P. Ws. Mahboobur Rehman, Abdul Razak. Shaukat Ali, Theta Babu, Faqir Muhammad, Abdul Qayum and Sain Muhammad. The last named two witnesses being untraceable as per the evidence of the process server, their evidence was brought on the file oh the Sessions Court under section 33 of the Evidence Act. The prosecution further relied on the recovery of the blood-stained knife from the appellant --securing of blood-stained shirt from the person of the appellant and his apprehension on the spot. Reliance was also placed on the motive, which was that, the appellant earlier in the morning had exchange of hot words with the deceased and as such the murder was committed. The case of the appellant at the trial was one of denial and false implication at the instance of the Police. As to the recoveries he alleged that they had been planted on him. The trial Court after carefully appraising the entire evidence on record believed the ocular testimony as being unimpeachable and indepen dent. The learned trial Judge also accepted the evidence of recoveries which corroborated the ocular testimony. After having so found, the learned trial Judge held the appellant guilty of offence he was charged with, convicted him and sentenced him as stated above, Hence this appeal and the Reference. The question for consideration, therefore, is whether the appellant has been rightly convicted and sentenced by the learned Additional Sessions Judge. Mr. Ansar Hussain, learned counsel for the appellant stated at the very outset that in view of the evidence brought on record he did not challenge the conviction and pleaded for lesser sentence only for the reason that the incident took place as a result of sudden quarrel between the deceased and the accused on the spur of the moment and there was no premeditation on the part of the appellant. Mr. Shaukat, appearing for the State, agreeing with the learned counsel further added chat apart from above the motive assigned by the prosecution was also very weak, if not altogether absent, and therefore, this was a fit case for a lesser sentence. Although the learned counsel for the appellant has not challenged the conviction and pleaded for lesser sentence only, we propose to examine the evidence leading to the conviction of the appellant as the case is also before us on reference under section 374, Cr. P. C. The conviction of the appellant mainly rests on the ocular testimony of seven witnesses, out of whom P. W. I Mahboobur Rahman was working as a table boy at New Hazara Hotel outside which the incident had taken place. This witness stated in his evidence that at the time of incident he was serving in the Restaurant when he heard exchange of abuses between two persons outside the hotel on a footpath. He went outside and saw that the appellant Amin took out a knife from the right side pocket of his pant and stabbed the deceased twice, on the chest and on the left side on his ribs, as a result whereof the deceased fell down and died on the spot. He further stated that the two Police Officials namely, Abdul Razak and Shaukat Ali who were in plain clothes then caught hold of the appellant and recovered the knife from him and then, took him to the Police Station. He was cross-examined at some length but nothing worth mentioning was brought out to discredit his testimony. The next witness P. W. Abdul Qayum was a manager of the said New Hazara Hotel who was present in the hotel at the time of the incident. In his evidence be gave practically the same version as that given by P. W. Mahboour Rahman. Witness Sain Muhammad was also a table boy in the said hotel and he lived there. In his evidence he has also given the same version as that given by P. W. Mahboobur Rahman and Abdul Qayum. Admittedly, all the three aforesaid witnesses were employees working in the New Hazara Hotel outside which the incident took place. The incident having taken place at lunch time their presence in the hotel was natural and could not be doubted. That being so, the fact of their having witnessed the incident could also not be doubted, and nothing having been brought on record to show that they were either connected with the deceased or had any enmity with the appellant. Their evidence was therefore, indeed independent and unimpeachable and was rightly believed by the learned Additional Sessions Judge. Of the remaining witnesses, P. W Faqir Muhammad was a fellow painter with the deceased and the appellant. He stated in his evidence that on the day of incident he alongwith appellant Amin and deceased Muhammad Rashid, Yaqub, Qasim and others were doing paint work in the house of Proprietor of Adam Tea when at about 10 a.m. a fight took place between the appellant and the deceased but they were separated by other workers working on the ground floor. Appellant thereafter went upstairs and told Ali Muhammad contractor that ha did not wish to work and after taking away his money went away. He further stated that at about 1 p.m. he, Yaqoob, Kassim, deceased Rashid and Theta Babu went to New Hazara Hotel for taking lunch, There they found appellant Amin already present. Appellant Amin thereafter left the hotel and deceased Rashid also left the hotel after making payment for his lunch. Thereafter, while tic was making payment for his lunch at the counter he heard commotion from the outside and he alongwith his companions came out of the hotel and saw the appellant Amin inflicting knife injuries to the deceased on his chest and right side of the stomach. The deceased fell down and died on the spot after a minute or two. The two Police Constables who were present there then caught hold of the appellant alongwith the knife in his hand and took him to the Police Station. This witness was cross examined at some length but nothing worth mentioning was brought out in his cross-examination to discredit his testimony. The next witness in the line is P. W. Theta Babu. He was also a fellow painter working with the deceased and the accused in the Adam House on the day of incident. His version of the incident is also practically the same as that given by Faqir Muhammad, He was also cross examined at some length but his evidence could not be shaken on the main particulars of the incident resulting in the death of the deceased. The only discrepancy appearing in his evidence was that he gave the time of the incident as 5 p.m. instead of 1.15 p.m. given by the other eye witnesses. But this obviously appears to be either an obliging statement or statement made due to slip of memory, in that, the statement of this witness was recorded nearly 3 years after the incident. The aforesaid two witnesses were fellow workers with the appellant. Their evidence that they were working along with the appellant and the deceased in the Adam House the morning on the day of the incident is not denied The cross-examination of these two witnesses would on the contrary confirm their presence in the said house. Their having gone to the hotel for taking lunch is also natural and cannot be doubted. That being so, they could well have witnessed the incident, and there is nothing on the record to show that they had either any connection with the deceased or enmity with the appellant to falsely implicate him. The suggestion made in their cross-examination that they were giving statement on the coercion of the police is not believe-able in the circumstances. The third set of witnesses consists of Police Constables P. W. Abdul Razak and Shaukat Ali. P. W. Abdul Razak in his evidence stated that at the relevant time of the day of incident he and his companion Constable Shaukat Ali were on patrol duty when they found the appellant Amin and deceased Rashid exchanging abuses whereafter the appellant took out a knife from the right pocket of hip pant and caused two injuries on the chest of the deceased Rashid who fell down and died. He then arrested the appellant with the knife which was blood-stained and after preparing the mashirnama of the recovery of the knife and the vardat took the appellant to the Police Station and handed him over to the S. H. O. and lodged the F. I. R. The cross-examination of this witness would also show that nothing has been brought therein to discredit his testimony. On the other hand, his evidence stands fully corroborated by other witnesses who stated that this witness and Constable Shaukat Ali were present and saw the incident and apprehended the accused. Constable Shaukat Ali in his evidence has also given practically the same version of the incident as that given above by .P. W. Abdul Razak. He was also cross-examined at length, but nothing worth mentioning was brought out in his cross-examination to discredit his veracity. Having thus gone through the evidence of the witnesses, we fully agree with the learned Additional Sessions Judge in his finding that the evidence given by the witnesses was unimpeachable and there existed nothing on the record to show that they bad any reason to falsely implicate the appellant. That being so, the ocular evidence brought on record alone is sufficient to sustain the conviction of the appellant. However, there is further corroborative evidence in the form of recovery of blood-stained knife from the appellant, securing of blood-stained shirt from the person of the appellant and his apprehension on the spot. Both the recoveries were made by the S. H. O. under mashirnama Exhs. 8 and 9 in presence of the mashirs P. W. Abdul Razak and Muhammad Aslam. Mashir Abdul Razak fully supported the mashirnamas and we find nothing in his cross examination to disbelieve the mashir. Both the knife as well as the shirt were sent to the Chemical Analyser who gave a report that the blood on the knife had disintegrated while the shirt secured from the person of the appellant was stained with human blood which, on grouping, matched the blood on the clothes of the deceased. There being nothing on record to doubt the recoveries made from the appellant, the learned Additional Sessions Judge was also justified in placing reliance thereon as a corrobora ting evidence against the appellant. In view of above, we have no doubt in our mind that the prosecution had succeeded in bringing the guilt home to the appellant and that he had been rightly convicted for the offence he stood charged with. This leaves us now with the question of sentence passed on the appel lant. The learned counsel for the appellant pleaded for a lesser sentence on the ground that before the incident there were exchange of abuses bet ween the deceased and the appellant which showed that the incident was not entirely unprovoked. In this connection the learned counsel further submitted that according to the evidence the appellant was already sitting in the hotel and the deceased and other witnesses came into the hotel thereafter which showed that the incident had taken place on the spur of the moment and thus called for lesser sentence. We are inclined to agree with both the learned counsel. It is on the record that there were exchange of abuses between the deceased and the appellant before the fatal injuries were caused to the deceased. There were also some grappling between the two immediately before the incident. We also find the motive to be weak one. It is also not the case of the prosecu tion that there was any other enmity between the deceased and the appellant excepting the harsh words exchanged between them earlier in the day. That being so, and keeping in view the observations made in the cases Sikandar v. State (P L D 1966 S C 555) and Karim Bux v. State (P L D 1977 Kar. 108), 1977 P Cr. L J 851 (?) we feel that the ends of justice will be adequately met by awarding to the appellant lesser sentence of R. I. for life instead of sentence of death passed on him. Accordingly, while maintaining the conviction of the appellant under section 302, P. P. C. we reduce the sentence on the appel lant from that of death to R. I. for life. We also maintain the sentence of fine as awarded by the trial Court, with the above modification, this appeal and the reference stand dismissed. While computing the sentence of R. I. for life, the appellant shall be entitled to the benefit of provision of section 382 (b), Cr. P. C., Order accordingly.