1968 P Cr (PLP)

NAZIR AHMAD MAHMOOD, J.-Muhammad Azram accused was tried under section 302, P. P. C. by Additional Sessions Judge, Karachi for the murder of Ashfaq Ali deceased on 9th of December 1964 at about 5-30 p. m., in Chamkani Hotel, Sher Shah, Karachi. The learned Sessions Judge convicted the appellant under section 302, P. P. C. and sentenced him to death. Muhammad Azram accused has now come up in appeal to this Court against the above-mentioned order dated 16-5-1967. The learned Additional Sessions Judge has also referred the case to us under section 374, Cr. P. C. for the confirmation of death sentence. This judgment will dispose of the criminal appeal as well as the murder reference.

2. The prosecution case briefly is that the appellant resided m Miskeen Hotel in Sher Shah while Ashfaq Ali deceased ran a restaurant called Chamkani Hotel. On 9-12-64 the appellant came to Chamkani Hotel at 12 noon and had some talk with Ashfaq Ali deceased. Half an hour later Ashfaq Ali left the hotel. The appellant again came to the Hotel at about 5-O0 p. m. and enquired from Khawaj Muhammad (P. W. 7), the baker of the restaurant as to where Ashfaq was. Khawaja Muhammad told him that Ashfaq would be coming back soon. Thereupon, the appellant left the restaurant and again returned thither at about 5-30 p. m., when Ashfaq was present at the Hotel and was attending to a gas lamp. On his arrival the appellant remonstrated with Ashfaq Ali for his having described him as a catamite. His angry remonstrance resulted in exchange of foul language between the two persons. While this abusive alterca tion was going on, the appellant brought out a chhuri from the fold of his Shalwar and started attacking Ashfaq deceased with it. He struck Ashfaq twice on the chin and gave him the third blow on his neck. Ashfaq fell down unconscious and before Khawaj Muhammad (P. W. 7) could rise from his seat where he was baking chapatis in the oven and come forward to the rescue of the deceased the appellant left the restaurant and disappeared into the street. Before leaving the restaurant, however, he threw the knife with which he had caused injuries to the deceased in the nullah through a window of the restaurant. This occurrence was witnessed by Khawaj Muhammad (P. W. 7), the baker of the restaurant, Farman Ali (P. W. 8), the cook of the restaurant, Alifullah (P. W. 12), the bearer thereof who had at the time of the occurrence just returned to the Hotel after supplying; tea at the shop of a cobbler nearby, Muhammad Jan (P. W. 11), who was ~ present at the Chamkani Hotel in connection with the dough that he had brought to the Hotel for being baked into chapatis, and Hamid (P. W. 17), a vegetable seller who has his shop at a distance of about 15 to 20 yards from the place of the occurrence. Khawaj Muhammad P. W., ran in pursuit of the appellant but not having succeeded in capturing the appellant Khawaja Muhammad went to the hotel of Rahimutlah (P. W. 13) alias Taur Baba, at a distance of 2 or 3 furlongs from the place of the occurrence and not finding this elderly tradesman of the locality there informed his nephew Muhammad Gulam (P. W. 14) that Azram alias Billa had seriously injured Ashfaq with a knife and run away. Muhammad Ghulam in turn informed Taur Baba who was at his house on account of being unwell and on hearing of the incident Rahimullah alias Taur Baba (P. W. 13) reached the spot. By that time Maqsood Ali Khan (P. W. 15) the father of the deceased had also reached the spot on information by Farman Ali (P. W. 8). He took his injured son in a rickshaw towards the hospital but he died on the way. Khawaja Muhammad P. W. accompanied by Farman Ali and Baba P. Ws. went to Police Station Site, a place about 3 miles from the place of the occurrence and lodged the F. I. R. thereat about 6-35 p.m. which was recorded by Muhammad Munir, Sub-Inspector of Police (P. W. 2). After recording the report the Sub-Inspector proceeded to the spot where he reached within 30 to 45 minutes. The Sub-Inspector prepared the Mashirnama of the Vardat and collected bloodstained earth from the spot vide Mashirnama Exh. 8, which was attested by Jan Muhammad (P. W. 3). The investigation was later taken over by Muhammad Yaqub, Inspector Police (P. W. 13) whose statement was transferred to the Sessions Court's record under section 33, Evidence Act on account of his death after he had made a statement before the committing Magistrate. Muhammad Yaqub, Inspector of Police got the appellant arrested by Noor Hussain (P. W. 6) since the clothes of the appellant shirt, Shalwar and chaddar were in blood-stained condition, Muhammad Yaqub took them into his possession vide Mashirnama Exh. 9/A and sent them to the Chemical Examiner for report. The appellant led the Inspector of Police to the nullah near the place of the occurrence and going into it took out from there chhuri Exh. P. 1 and produced it before the Inspector of Police. The Inspector got photographs 13-A to 13-D, showing the appellant going into the nullah and produc ing the chhuri before the Police. The chhuri Exh. P. 1 was also sent up by the Inspector Police to the Chemical Examiner for report. Abdul Rashid (P. W. 4) attested the Mashirnama Exh. 11 regarding the production of the chhuri as a witness and Anwer Khan (P. W. 5) attested the Mashirnama Exh. 13 as a witness regarding recovery of chaddar, article B, shalwar, article C and shirt, article D, recovered from the appellant. The Chemical Examiner latter reported that the blood-stains on the chhuri were in disintegrated condition and therefore their origin could not be determined but all other articles which included the blood-stained earth collected from the spot, sent up to him, were stained with human blood.

3. Dr. Major A. Hassan (P. W. 20) performed the post- mortem examination on the dead body of Ashfaq Ali deceased on 10-12-1964 at 2-00 p. m: and found the following injuries on the dead body-- (1) Two vertical incised wounds 1" x " long, 1/8" wide and bone deep close to each other on middle of left side lower jaw. (2) Linear and curved incised abrasion 1 " long on left temple. (3) Vertical incised wound 1" x " x bone deep left side on front of the neck (4) Incised wound 1" long healing with medicine and dressing applied situated in front of an upper part of right thigh. The doctor expressed the opinion that the injuries Nos. 1-3 had been caused just before death and injury No. 4 was of about 3 days duration. On internal examination the doctor found that under injury No. 3, muscles, left jugular vein and carotid artery were cut as also the front part of the body of fourth cervical vertebra, oesophagus and right sub-clavain veins. 7 he knife had gone obliquely downwards to the left about 4' in depth. The doctor further expressed the opinion that injury ho. 3 with its corresponding internal injuries was sufficient to result in death in the ordinary course of nature. The doctor also opined that knife article A, could not cause the injuries in its present bent condition and although to begin with, in his examination in- chief he did state that if the chhuri were straight and in its normal condition it could cause injuries mentioned by him in the report. in his cross-examination, he stated that even if at the time of the wound its blade was straight it would cause a very thin wound because the thickness of the blade did not correspond with the wideness of the wound which was " and the knife had got thickness of about 1/10'. This statement of the doctor amounted to a concession and that the injuries found on the dead body could not have been caused by knife article A. It may be mentioned here that the appellant was also medically examined by Dr. Fazal Ahmad Alvi on 10-12-1964 at 10-15 a. m. and he found an incised wound " x " skin deep on his right little finger palmer side.

4. The appellant pleaded not guilty and denied all the allega tions of the prosecution before both the Courts dealing with the case. When asked to explain the injury that he had on his little finger, the appellant stated in the Court of the Committing Magis trate that since he worked in the mill, such scratches he received every day. When asked in that Court whether he had on 11-12-1964 led the police and witnesses to a nullah near the restaurant of the deceased and from there he had taken out chhuri, Article P/1 and his photographs 13-A to 13-D, were taken, he explained that he was forced to pose for the photographs and that in fact it was a sweeper who had taken out the chhuri. He denied that the chhuri P/1 belonged to him. He adhered to absolute denial of his presence at the spot at the alleged time of the occurrence and of his participation in toe occurrence m his statement at the trial. At the trial when asked if he had led the Police to the nullah and got the knife Article A, recovered he made the following answer, ''I did not lead the police but in fact the police led me to the nullah where 3/4 sweepers were asked to search for the knife. They brought out the knife and I was forced to stand in the nullah and be photographed. The Police again threw the knife into the water and the H. C. Iqbal Chaudhry asked me to bring it out. I refused but I was beaten up by the Police in the presence of about 200 people. I went into the water and brought out the knife. "When asked at the trial why the P. Ws had deposed against him he made the following reply: "Khawaja Muhammad and I had quarrels and he used to bake the bread previously at the hotel where I resided. The other P. Ws. are the servants of Ashfaq": The appellant wound up his statement with the following words: "I reside in Miskeen Hotel and used to pay for my meal after 15 days I came back from the city at 7-15 p. m. and in the hotel its owner Miskeen and many customers were present. Miskeen told mg that the Police had visited 3/4 times and was inquiring about me. I asked him what the matter was. He said he had no information about it. I reached the Police Station in a rickshaw to enquire about the matter. I found all the servants of Ashfaq who deposed against me there. I also was detained by the Police. Tor Baba and other got their own me (sic) from the Police but I was detained. I was taken to the Civil Hospital and the injury on my hand was dressed. Miskeen had told me at the Police Station that a boy Alifullah had come to enquire about me at the hotel. My statement was recorded under section 164 on 17th. I have nothing to add."

5. As is evident from the above summary of the case, the prosecution has produced Khawaja Muhammad (P. W. 7), Farman Ali (P. W. 8), Muhammad Jan (P. W. 11), Alif Ullah (P. W. 12) and Hamid (P. W. 1.7) as eye-witnesses of the occurrence. Apart from the above-mentioned eye-witnesses Ziauddin (P. W. 9) was produced by the prosecution as the person in whose presence the appellant at about 6-00 p. m. coming to the house of one Azhar Hussain, where Azhar and Shahid were also present had told these persons that he had a quarrel with Ashfaq. These persons found the clothes of the appellant in blood-stained condition and Azhar, the owner of the house advised the appellant to go to the Police Station. Ziauddin P. W. learnt about an hour after the appellant had given them the aforesaid information that Ashfaq had died. Akbar (P. W. 19) who claimed to have been an employee in the Peshawari Hotel, deposed to the effect that on the alleged day of the occurrence at about 6.00 p. m. he had found the appellant running away with his clothes in blood-stained condition, followed by Khawaja Tandoorwala.

6. The case against the appellant on the evidence of the above mentioned witnesses as also on the evidence regarding the recovery of blood-stained clothes of the appellant and. that of the knife, Article A, as also the medical evidence. We have no manner of doubt that Khawaja Muhammad, Farman Ali and Alifullah P. Ws. were present at the time of the occurrence and their account of the occurrence is true. Khawaja Muhammad P. W. is a baker at Chamkani Hotel, Farman Ali is the cook and Alifullah is the bearer of the restaurant. Their presence at the spot is quite natural and most probable at the alleged hour of the occurrence. Besides, the F. I. R. was lodged by Khawaja Muhammad P. W. very goon after the occurrence, that is to say, within an hour of the occur rence and in the F. I. R. not only he had described himself as eye-witness of the occurrence but also Farman Ali and Alifullah P. Ws. Jan Muhammad P. W. was not named by Khawaja Muhammad P. W. in the F.I.R. but he answers to the description given of him in the F. I. R. Jan Muhammad (P. W. 11) has stated that he was present at the Hotel at the time of the occurrence in connection with the baking of his chapatis. In the F. I. R. Khawaja Muhammad described the fourth person at the time of the occurrence as a customer who had come to get breads baked. At the trial Khawaj Muhammad described the persons who had come to the Hotel as a Pathan and Jan Muhammad had described himself as the son of Jafar Khan. It appears to us therefore, that although Jan Muhammad was not named by Khawaj Muhammad in the F. I. R. Jan Muhammad indeed was the person who had been referred to by Khawaj Muhammad in the F. I. R. as also in his statement at trial. Curiously enough, Khawaj Muhammad while making his statement in Court did not refer to Alifullah P. W. as being present at the time of the occurrence but Alifullah claims to have witnessed the occurrence and in the F. I. R. which has been attested by Khawaj Muhammad as having been correctly made by him. the name of Alifullah does appear as an eye-witness of the occurrence. But even if Alifullah P. W.'s statement is ruled out of consideration for the reason that he was not mentioned as being present by Khawaj Muhammad when he made his statement in Court, we are still left with three eye-witnesses namely Khawaj Muhammad,. Farman Ali and Jan Muhammad with regard to the genuineness of whole claim as eye witnesses of the occurrence, we do not see any good ground for having the slightest doubt. There is nothing on the record to show that they had any previous enmity with the appellant. Although apparently there is nothing improbable about Hamid (P. W. 17) having witnessed the occurrence. but since his name was not mentioned by Khawaj Muhammad P. W. in the F. I. R. and not even in his statement at the trial, we do not consider it safe to accept him as eye-witness of the occurrence. It is significant that although at the trial, the appellant stated that Khawaj Muhammad and he had quarrels (presumably before the occurrence) and the other P. Ws. were servants of Ashfaq, no suggestion regarding the enmity between the appellant and the above-mentioned witnesses was made to Khawaj Muhammad, Farman Ali and Jan Muhammad P. Ws. Jan Muhammad P. W. actually is not a servant of Ashfaq deceased and even in the statement of the appellant at trial no allegation of enmity with Jan Muhammad has been made by him. In his statement before the Magistrate the appellant made no allegation of enmity with any of the P. Ws. He merely contended himself with declaring his innocence. What is more the presence of Khawaj Muhammad P. W. at the spot at the time of the occurrence, was implicitly admitted by the appellant. It was suggested ;o Khawaj Muhammad P. W. that it was he who had caused the injuries to the deceased while attempting to attack the appellant. The suggestion incidentally concedes the presence of the appellant also at the time of the occurrence. The oral evidence of the above-mentioned witnesses is corroborated by the evidence of recovery of blood-stained clothes from the appellant which clothes were subsequently found to be stained with human blood by the Serologist. No question suggesting the want of independence or interestedness of Anwar Khan P. W. the Mashir regarding the recovery of these articles was made to Anwar Khan P. W. in his cross-examination. Ziauddin and Akbar P. Ws. have also deposed to the effect that when they saw the appellant after the occurrence, his clothes were in blood-stained condition. It is clear therefore it was the blood-stained clothes of the appellant, which were recovered by Muhammad Yaqub, Inspector of Police from the person of the appellant after his arrest. And the circumstance that they were found by the Serologist to be stained with human blood is also corroborative of the version given by the eyewitnes ses Khawaj Muhammad, Farman Ali and Jan Muhammad. The medical evidence also supports the eye-witness account of the occurrence mentioned above. Furthermore, the injury on the little finger of the appellant which was examined by Dr. Fazal Ahmad Alvi and found to be fresh also affords corroboration to the version of the eye-witnesses of the occurrence. That injury apparently was sustained by him when he had whipped out his knife or when he was making a repeated assault with it on the deceased. The appellant's version that he had sustained this injury while working at the mill like other injuries, does not carry conviction because the doctor found no such other injuries on his hand and had found the solitary injury at the time of his examination, which took place only a few hours after the occur rence, as freshly caused.

7. Learned counsel for the appellant urged before us that the evidence regarding the recovery of knife Article A, was not trustworthy. We agree with him. Dr. Major A. Hassan (P. W. 20) when cross-examined, stated that the injuries that were found on the dead body could not have been caused with tie blade of the knife Article A, as the blade was in bent condition. Although initially he stated that if the blade were straight and in its normal condition it could cause the injuries mentioned by him in the post-mortem report yet in the course of his cross-examina tion as already mentioned, he did make a statement to the effect that the injuries could not have been caused with the blade of this knife even if it were not in bent condition because the width of the wound did not correspond with the thickness of the blade which, was quite thin. It appears to us that although the eye-witnesses are not wrong when they state that they saw the appellant throwing out the knife after the attack on the de ceased, into the nullah, through the window of the restaurant, the knife that was actually recovered was not the one which was the weapon of offence. The very circumstance that the Inspector of Police Muhammad. Yaqub had felt the necessity of having photo graphs of the appellant, as regards his going into the water and bringing out the knife and producing it before the Police, to our mini is indicative of his want of confidence in the genuineness of the recovery. The version of the appellant as regards the recov ery of the knife Article A, therefore, may have some truth about it; but as already indicated that does not mean that the appellant had not struck the deceased with a knife as stated by the above mentioned eye-witnesses, and had not thrown out the knife as described by those witnesses. The identity of knife Article A, as the weapon of offence may be in doubt but that the appellant had thrown the knife into the nullah as described by the eyewit nesses, does not strike us as unworthy of credence.

8. In view of the above we are fully satisfied that the appel lant made an assault with a knife on the deceased as described by the above-mentioned eye-witnesses and was responsible for bringing about the death of the deceased. Dr. Major A. Hassan has described the injury on the neck of the deceased as being sufficient in the ordinary course of nature to cause death. The appellant, therefore, has to be saddled with the liability for killing the deceased. Learned counsel for the appellant urged that even if the statement of the eye-witnesses be accepted as correct, the assault by the appellant on the deceased was under grave and sudden provocation as he had been abused, according to the eye witnesses by the deceased. The evidence of the above-mentioned eye-witnesses shows that the appellant had paid the 3rd visit on the same day to the Hotel in anger and armed with a knife which he had hid in the naifa of his shalwar and had brought it out of the naifa when an abusive altercation had started between him and the deceased Nothing has been brought on the record to suggest that the deceased had, in the course of their verbal wrangle made any attempt to take up any weapon or had made any aggressive physical gesture against the appellant. Surely, the exchange of abusive language between the appellant and the deceased could not constitute grave and sudden provocation for the appellant. Nor can it be said, as was attempted to be urged by the learned counsel for the defence, that the appellant had made the attack in the exercise of right of private defence. For one thing, the appellant has himself not taken up the plea of right of defence in his statement under section 342, Cr. P.C. nor has he even, in the cross-examination of any of the eye-witnesses, suggested that plea. Even the injury that was found by Dr. Fazal Ahmad Alvi on the little finger of the appellant was not ascribed by him to the deceased. We are aware that it is not necessary that the plea of self-defence be specifically raised by the appellant and it can always be taken into considera tion on his behalf if from the material on the record, a case for right of private defence is made out but in the present case there is utter want of any such material on the record.

9. We are, therefore, satisfied that the appellant has been rightly convicted under section 302, P. P. C. but we do think that in the circumstances of the case ends of justice would be adequately met if his sentence is reduced to transportation for life. The appellant is a young man who, according to the material on the record, had remonstrated with the deceased for his having described the appellant as a catamite. None of the witnesses has stated that the deceased expressed any regrets for having described the appellant as a catamite pr that he had denied that he had so described him of had replied that it had been wrongly reported to the appellant that the deceased had described him as a catamite. Rather than express any denial or regret, the statements of the eye-witnesses show, the deceased had started abusing the appellant. The indulgence in abuse of the deceased, in the circumstances mentioned above, did constitute some sort of provocation although it did no constitute a provocation which was grave and sudden. In view of the above while upholding the conviction of the appellant under section 302, P. P. C. we set aside his sentence o death and reduced his sentence to transportation for life. Hill death sentence is not confirmed. Appeal partly accepted.