1974 P Cr (PLP)

3. The medical evidence is that of Dr. Umer Khan who performed the autopsy on the dead body of the deceased. On external examination he found the following two injuries:‑ (1) Incised wound on left thigh posterially 3' above the knee joint vertical in direction 1 x. ' x 3 deep in 'the muscles cutting the vessels nerves and muscles at this region. (2) Incised wound left little finger on ulna side at the tip ' x ' x skin deep. In his opinion the injuries were caused by sharp‑edged weapon like knife or churl and that the cause of death was profuse bleeding and shock due to stab wound on back of thigh.

4. The defence set up by the appellant was denial of prosecution case and false implication due to enmity. The alleged enmity was stated to be that one Mst. Kulsoom aunt of deceased Jan Muhammad used to live as tenant in his house. She was divorced by her husband and therefore she was asked to vacate and hence enmity on the part of some of the P. Ws who are related inter se. The appellant examined two witnesses in defence, Ismail (D. W. 1) and Moula Bux (D. W. 2).

6. The ocular evidence is that of Taj Muhammad (P. W. 1). Abdul Ghani (P. W. 2). Hassan (P. W. 3) and Kamaluddin (P. W. 4). Of these four witnesses. Tai Muhammad is cousin of deceased while Hassan is his grand‑uncle, the other two P. Ws. are not related. The presence of the appellant and his attack on the deceased has been established beyond doubt by the ocular witnesses. The complainant Taj Muhammad (P. W. 1) his stated that when he and deceased Jan Muhammad were returning to their houses after taking tea in Sadiq Hotel at about 10‑30 p.m. the appellant and absconding accused Hassan Ali confronted them and the appellant abused the deceased. That he caught hold of appellant to one side which enabled the deceased to run away. After covering a little distance he was held by absconding accused Hassan Ali from his back and be saw appellant ruining after the deceived and overtaking him and giving him dagger blows at the back of the left thigh. The incident was also witnessed by Abdul Ghani (P. W. 2) who stated that he was taking tea at Hotel Sadiq and on hearing cries he came out and saw the deceased lying bleeding and injured on the ground while the appellant Feroze was standing over him with a dagger. He also saw absconding accused Hassan Ali had caught held of anther person. This witness is a donkey‑cart driver by occupation and is not relate to the complainant party. His evidence has not been shaken and there is no reason therefore to disbelieve it.

7. Hassan (P. W. 3) gives substantially the same version. He stated that he was standing in front of his shop when he saw appellant and abscond ing accused Hassan Ali come there and stood in front of them and abused them. A fight was avoided in front of the hotel because the complainant Taj Muhammad took the appellant on one side. Then they followed the deceased and the complainant when he saw the appellant attacking the deceased after absconding accused Hassan Ali had caught hold of the com plainant on the back.

8. Kamaluddin (P. W. 4) stated that he was sitting on the roof of his house at the time of the incident when he heard cries. The incident took place two or three paces near electric pole which had tube lights and therefore he could see the incident. He saw absconding accused Hassan Ali catching hold of the complainant and appellant giving dagger blows to the deceased.

9. The testimony of these P. Ws. establishes beyond doubt that the deceased Jan Muhammad was pursued and stabbed by the appellant on the back of his thigh while trying to run away. This is also consistent with the medical evidence which discloses two injuries; the first on the back of the left thigh, which appears to has been caused while the deceased had his back to the appellant which was prepared him. The other injury on the little finger of the deceased appears to indicate that the deceased tried to snatch the dagger from the appellant.

10. The ocular evidence is amply supported by the circumstantial evidence of recoveries of the dagger and blood‑stained clothes of the appellant from his house. The mashirs Muhammad Umar (P. W. 11) was examined to prove the recoveries: In fact the other mashie was Moula Bux who was examined as deface witness (D. W. 2). He also confirmed that the incriminating articles were recovered by the police from the house of the appellant and that he had signed a mashirnama which was prepared there. Therefore, there is nothing to doubt the recoveries of the articles. The other defence witness Ismail (D. W. 1) tried to show that the dagger in the possession of the police was purchased by him from the Bazar and the shirt and Pajama were also supplied by him and that they were not blood stained and that these articles were given to the police in presence of mashirs Umer and Moula Bux. This version is falsified by Umer and Moula Bux themselves and this witness therefore cannot be believed.

11. While upholding the guilt of the appellant we would convert the conviction from one of murder under section 302, P. R. C. to one under section 326, P. P. C., The circumstances of this case show that there has been exchange of abuses and the absence of premeditation to kill the deceased. The attack was rot repeated on the deceased nor on the complainant Taj Muhammad. The injury appears to have been inflicted by the appellant on the spur of the moment, and the fact that it was directed on the thigh, which is not considered as one of the vulnerable part of the human body, would rather show that the appellant had no intention of causing such bodily injury as was likely to cause death. In this connection, our attention was invited to the decision reported in Additional Advocate‑General, Karachi v. Muhammad Siddiq (P L D 1969 Kar. 162.) which we think clearly applies.

12. In the circumstances, we would convert the conviction under section 302, P. P. C. to one under section 326, P. P. C. and substitute a sentence of 7 years' R.

1. Subject to this, the appeal‑is dismissed. Sentence of death is not confirmed. The reference for confirmation of death sentence is rejected. Order accordingly.