1985 PLP 975 (SCMR)

ABDUL KADIR SHAIKH, J.‑‑This appeal by leave is directed against the judgment of Sind High Court dated 14‑5‑1979 by which appellant's conviction and the sentence to death under section 302, P.P.C. for having caused the murder of his room‑mate Abdul Hadi was confirmed and the appeal filed by him was dismissed. Facts of the case, according to prosecution, may be briefly narrated as under. Ahmad Khan appellant, Abdul Hadi deceased and two others, Sadullah and Abdullah Jan were students living in Room No. 19 in Southern Hostel, Madrasah Taleemul Islam Karachi. It is said that on 19‑6‑1976 a quarrel took place between Ahmad Khan and Abdul Hadi over the cleaning of the room. On the following morning, at about 6‑30 a.m. Ahmad Khan came in the room and attacked Abdul Hadi with a Chhuri resutling in his instantaneous death. At that time Sadullah was sleeping on the nearby cot and Abdullah Jan was absent having gone outside for a while. Sadullah woke up on the cries of the injured Abdul Hadi and ran to fetch Hasnul Maab, Naib‑Nazim of the Madrasah, who came and saw Abdul Hadi lying dead on the cot in a pool of blood and Ahmad Khan sitting in the room. In the meanwhile, two other students namely, Munir Ahmad Shah and Hazrat Gul, living in the adjacent Rooms Nos. 28 and 20, who were attracted by the cries also came there and saw Ahmad Khan holding a blood‑stained Chhuri in his hand and Abdul Hadi lying dead on the cot. Abdullah Jan also returned soon to his room and saw what had transpired there. After his arrival to Room No. 19 Hasnul Maab asked Sadullah to watch the culprit so that he may not run away, and himself went to lodge the report of the crime with Baldia Police Station, Karachi. S.H.O. Saleh Muhammad recorded the F.I.R. at 7‑15 a.m. and then came to the scene of the crime where he found the deceased lying dead on a cot and the culprit also sitting on the nearby cot. He secured the blood‑stained clothes from the person of the culprit and blood‑stained weapon of the crime, which was lying near the dead body. At the trial, prosecution sought to support their case by the statement of Sadullah under section 164, Cr .P.C. as a substantive evidence under the provisions of section 265‑J, Cr.P.C. and the corroborative evidence of Munir Ahmad Shah, Hazrat Gul, Abdullah Jan and Hasnul Maab who had visited the scene of offence soon after the commission of the crime. Reliance was also placed on the circumstantial evidence of the apprehension of the accused on the spot and the recoveries of the blood‑stained clothes from his person and also the blood‑stained weapon of the offence. The Sessions Judge, Karachi who tried the case believed the prosecution case and held the accused guilty under section 302, P.P.C. and sentenced him to death. The case then came up before the Sind High Court for the confirmation of the death sentence and also on appeal filed by the convict. Learned Judges of the Division Bench of the High Court on re‑appraisal of evidence upheld the view that prevailed with the learned trial Judge and dismissed the appeal and confirmed the death sentence imposed on the convict. Leave to appeal was granted by this Court in order to examine whether the statement of Sadullah under section 164, Cr.P.C. could be validly treated as substantive evidence under section 265‑J, Cr.P.C. and whether the exclusion of that statement would affect appellant's guilt for the charge leveled against him. After having gone through the record of the case in the light of the arguments addressed by the learned counsel for the parties we are clearly of the view that even if the statement of Sadullah recorded under section 164, Cr P.C. is totally ruled out of consideration, there is sufficient reliable evidence to support appellant's guilt of the crime committed in this case. P.Ws. Munir Ahmad Shah, Hazrat Gul, Abdullah Jan and Hasnul Maab who have been proved to be reliable and independent witnesses consistently deposed that when they reached the scene of the crime they saw appellant armed with a blood‑stained Chhuri and his room‑mate Abdul Hadi lying in a pool of blood on his cot. The report of the crime was lodged without loss of time, within 43 minutes, and the entire prosecution case is reflected therein, which also finds full support from the circumstantial evidence proved in the case. The question, however, for consideration is as to the sentence to be awarded to the appellant. In this behalf, learned counsel appearing for him submits that the motive put forward by the prosecution namely, the quarrel on the previous day over cleaning of the room is too trivial an incident to have prompted the accused to inflict such serious injuries on ,the deceased so as to cause his instantaneous death. According to learned counsel since the prosecution was not in a position to explain the origin of the fight and it is shrouded in mystery, appellant should not be visited with the extreme penalty of death. Learned Additional Advocate‑General appearing for the State also supports the plea raised by the learned counsel for the appellant. We are also of the view that the peculiar facts and circumstances of the case fully justify that the benefit of the lesser sentence under the law should be granted to the appellant. For these reasons, we reduce the death sentence imposed on the appellant under section 302, P.P.C. to life imprisonment and also grant him the benefit of the period undergone by him as an under‑trial prisoner under section 382‑B of the Code of Criminal Procedure. With this modification in the sentence, the appeal is otherwise dismissed. M. I. Death sentence reduced.