1970 P Cr (PLP)

The immediate motive of the assault was that on the day of the incident in the morning the deceased went to the appellant and demanded the share of money of his father, but the appellant refused to do so, whereupon there was an altercation between the two and the deceased abused the appellant.

3. The prosecution case is that on the 10th of July 1964, at 4‑00 p. m., the appellant followed the deceased who was proceeding towards the Main Gate of ‑the factory and attacked him there with a knife and inflicted a number of injuries on him. The shout of the appellant attracted Mahmood Ali Qadri, Zahid Hussain, Muhammad Hayat P. Ws. and Muhammad Ibrahim, Watchman (not produced) to the spot who witnessed the occurrence. These witnesses rushed towards the scene of murder and the appellant ran away. Shahid Ali succumbed to the injuries at the spot. Leaving the other witnesses at the spot, Mahmood Ali Qadri P. W., proceeded to Police Station Rawalpindi Cantt., where he lodged the report Exh. P. A., which was recorded by Mohabat, Hussain, A. S. I. (P. W. 9), at 4‑45 p. m. The A. S. I., proceed to the spot and found the dead body of Shahid Ali lying at e main gate of the factory. He prepared the injury statement d the inquest report and despatched the dead body for post- mortem examination. He searched for the appellant but he was not traceable. Proceedings under sections 87 and 8 of the Code of Criminal Procedure were initiated against him. As the appellant was absconding and there was no immediate prospect of arresting him, the investigating agency put in the challan against him and the evidence was recorded under section 512, Cr. P. C.

4. On the 1st of December 1967, on secret information Amir Akhtar Head Constable (P. W. 6), arrested the appellant in Bazar Bassanwala, Rawalpindi. Ghulam Raza Sub‑Inspector (P. W. 7) filed a supplementary challan against the, appellant after he was arrested.

5. The post‑mortem examination on the dead body of Shahid Ali was conducted at 9‑00 a.m. on the 11th of July 1964. This revealed that the deceased had six stab wounds and one abrasion. These stab wounds were on the chest going deep into the chest cavity, on the upper area of the stomach, below the lower angle left scapula, below the mid point of left axilla, on the left elbow. The injuries were caused with a sharp‑edged weapon and were ante‑mortem. The duration between the injures and the death were 1/2 to 3/4 hour. In the opinion of the doctor the cause of death was due to shock and haemorrhage resulting from injuries to the left lung, stomach and liver.

6. The appellant denied having committed the offence and stated that the witnesses had deposed against him, because they were closely related to the deceased. He stated that he did not abscond and that he left the service of the factory in July 1963, and went to Karachi to earn his livelihood and that when he learnt that he was wanted in a criminal case he voluntarily surrendered himself before the police. No evidence was called in defence.

7. Mahmood Ali Qadri P. W., is the father of the deceased. Zahid Hussain P. W. is the sister's husband of Mahmood Ali Qadri. Mst. Kishwar, the third wife of Mahmood Ali Qadri P. W., is the daughter of Muhammad Hayat P. W. Obviously, these witnesses are the close relations of the deceased. Mahmood Ali Qadri P. W. says that at about 4‑00 p.m., on the day of the incident he was taking tea in his house within' the precincts of the factory when he heard a shout of the appellant and saw the appellant attacking the deceased with a knife at the main gate of the factory. He immediately rushed towards that side. By the time, Zahid Hussain and Muhammad Hayat P. Ws. who were residing in the same precincts and were sitting outside the house of Muhammad Hayat P. W. also turned up and saw the appellant attacking the deceased. The victim fell down and the appellant made good his escape. To the similar effect is the evidence of Zahid Hussain and Muhammad Hayat P. Ws. '

8. The learned Additional Sessions Judge examined the evidence of the prosecution witnesses who had deposed as to the incident and found that they were reliable and took the v w that they were present at the scene of the crime.

9. We have examined the eye‑witness account carefully and so as the main story of the occurrence goes, the evidence of these three eye‑witnesses is consistent and of uniform nature. There, is nothing in their cross‑examination to show as to why their evidence should be discarded, nor any particular reason has been shown on the record as to why these witnesses should give false evidence against the appellant. It was a day time occurrence and the eye‑witnesses knew the appellant before. It is highly improbable that these eye‑witnesses should omit to name the actual assailant and instead give the name of the appellant as the assailant, particularly when the crime was committed in a broad daylight. Another reason why the evidence of these witnesses should be believed is that they were residing in the precincts of the factory and were the natural witnesses of the occurrence. We are of the view that on the merits of the case, the evidence of these eye‑witnesses is not open to doubt. They say that they were attracted to the scene of the crime and saw the blows being struck. As there are six stab wounds, it is possible to believe that there was enough time for the eye‑witnesses to be attracted by the shout and get to the scene of occurrence as it would have taken some time for the assailant to strike the blows. The ocular account is affirmed by the medical evidence. Apart from this, the abscondence of the appellant for a period of about 3 J years weighs heavily against him. In the circumstances, we confirm the conviction of the appellant under section 302, P. P. C.

10. Learned counsel for the appellant, in fact, did not seriously challenge the conviction but stoutly urged for the reduction of the sentence. He argued that it is in evidence that the deceased abused the appellant in the morning on the day of the incident and as Muhammad Ibrahim Watchman, who was the natural witness of the occurrence, has not been produced, it was not possible to spell out from the evidence how the incident originated. It was urged that the appellant who was 211 years of age at the time of the incident was abused by the deceased in the morning and was smarting under that insult and provoked by it, he out of sheer sense of vindication of self‑respect killed the deceased. He cited Kaicha Sarkar alias A Kanchoo and another v. The State (P L D 1966_Dacca 508). While going through the judgment an identical case cited therein is Seraj All v. The Crown ( 7 D L R 119), where the learned Judges observed :‑ "It is true that the mortal blow was dealt not as soon as he was insulted but several hours afterwards, but the fact remains that the interval between the hour of insult and that of the occurrence was short. Although this interval is not short enough and the provocation is not grave enough to take the case out of section 302 of the Pakistan Penal Code and reduce the offence of the accused Seraj Ali from one of murder to that of culpable homicide not amounting to murder, the fact remains that there was serious grievance under which he was smarting and it cannot be said that it was altogether unnatural for him, who had nothing against his character before them, to lose self‑control as he did."

11. In this view of the matter and in the circumstances of the present case, we are of the view that the sentence of transportation for life would meet the ends of justice and we order accordingly. The reference is rejected and the appeal is allowed in part to the extent that the conviction of the appellant under section 302, P. P. C., is upheld and the sentence is altered to transportation for life. The sentence of death is not confirmed. Appeal partly accepted. Sentence modified.