1977 P Cr (PLP)

G. M. SHAH, J.‑The appellant Liaquat Ali was tried alongwith Moula Bux, Allauddin and Salahuddin by the learned 1st Additional Sessions Judge, Hyderabad, who by the judgment dated May 14, 1976 acquitted the three co- accused, Moula Bux. Allauddin and Salahuddin and convicted the appellant under section 302, P. P. C. and sentenced him to death. He has preferred the appeal against the said judgment. There is also a reference before us for confirmation of death sentence, which would be disposed of together with the appeal.

2. The prosecution story, briefly, is that the complainant Abdul Hamid, who is a Richshaw Driver was residing with his family in Sarfaraz Colony. His younger brother, Maqsood was also living with him. On 4‑2‑1973 a quarrel had taken place between his sister's son by name Sardar and another boy of the Mohalla by name Ghaffar. Co‑accused Moula Bux (acquitted), who was also residing in the same locality and was working in the house of Ghaffar, had beaten Sardar. The complainant had, therefore, asked Moula Bux, why he had beaten Sardar. There was, over this, an exchange of hot words between the two, and the people in the Mohalla, had intervened and had settled the matter.

3. At about 5 p. m. on the same day, when the complainant was present in his hove alongwith his brother Maqsood, there was a call at the door by Moula Bux, and in response, the complainant and his brother went outside. They saw the appellant Liaquat, who is son of Moula Bux and the remaining three co‑accused namely, Moula Bux, Salahuddin and Alauddin Standing outside The appellant was armed with a dagger. Moula Bux was empty‑handed. Salahuddin and Allauddin had dandas in their hands. As soon as the complainant and his brother came out of their house, Moula Bux instigated and asked his son Liaquat and others, why they were still standing silent, that they should kill the complainant. The appellant, who was armed with a dagger asked others to keep away, as he was capable enough to do the job. He attacked the complainant; but the deceased Maqsood, intervened and saved him. The appellant struck the deceased with the dagger in his stomach. On receipt of the injury deceased Maqsood cried and fell down on the ground. He started bleeding profused. The incident was witnessed by Sajjad Hussain (P. W. 2) and Sabir Hussain (P. W. 3). There was a commotion created, and the appellant, alongwith the three co‑accused, escaped. The complainant took his brother direct to the Civil Hospital to get him immediately attended to, to save his life. After he was admitted, the complainant went to the Market Police Station, Hyderabad, and lodged his report (Exh 6) at 7‑30 p. m. At about same time, a telephone message was put in by H. C. Gohar Rehman from the hospital, who informed the A. S. I. P. incharge of the Police Station Market, Badruzzaman (P. W. 7) that the injured Maqsood had been referred to the Medical Officer in the hospital, after preparing the mashirnama of the injuries. The A. S. I. P. therefore proceeded directly first to the vardat, which was situated in Street No. 5 Sarfaraz Colony. There was blood on the ground. He examined witnesses Sajjad Hussain and Sabir Hussain at the vardat. Statements of witnesses Eid Mohammad and Abdul Majid were also recorded. On 5‑2‑73 Badruzzaman A. S. I. P. (P. W. 7) visited the hospital for recording the dying declaration of tire injured Maqsood; but he could not do so as Maqsood was not in a position to make a statement. The police again visited the vardat, and recorded the statements of witnesses from the neighbourhood. Co‑accused Moula Bux, Salahuddin and Alauddin were arrested from Sarfaraz Colony on the same day, but they have beers acquitted by the trial Court 'therefore, it would be unnecessary to deal with their case. However, on the same day at 1 p. m. the appellant Liaquat was arrested from the bus stand of the locality. His shirt was found blood‑stained, which was secured from his person, under the mashirnama (Exh. 18). On 6‑2‑73 Badruzzaman (P. W. 7) received an information from the hospital 'that the deceased Maqsood had expired. He therefore proceeded to the hospital for completion the formalities of preparing the necessary Mashirnamas. On the same day (6‑2‑73) the appellant volunteered to produce the dagger, used in the commission of the offence. He led the police party and the Mashir Ali Nawaz (P. W. 6) and Zardad Khan to a house having a thatched roof like a 'Manah', and voluntarily produced a dagger, which was dug out from the thatched roof, mixed with earth. There was `parnala' of tins. The dagger was secured and sealed under the mashirnama Exh.

15. After completing the investigation, the case was challaned in the Court, The bloodstained articles were sent to the Chemical Analyser whose report is Exh. 21, which speaks of human blood present on the shirt secured from the appellant, whereas no blood was detected on the dagger produced by the appellant. 4 The case of the appellant was of denial of the prosecution version. It was further stated that he was implicated due to enmity and that the witnesses were interested, as they were related to the deceased.

5. The death of the deceased Maqsood is not denied. He died an unnatural death on account of the dagger injuries sustained by him. There is occular, evidence of Abdul Hamid (P. W. 1), Sajjad Hussain (P. W. 2) and Sabir Hussain (P. W. 3) coupled with the medical evidence of Dr. Abdul Majid Ex‑26, who had conducted the post‑mortem examination on the dead body of deceased Maqsood. On external examination the doctor found the following injuries: ‑ (1) A Linear transverse stiched wound 5' long in the right umbilical region about 1" below the umbilical level. (2) A stitched incised wound 3/4" long in the left umbilical region 2" lateral to umbilicus". The injuries appeared to have been caused by a sharp‑cutting weapon such, as a dagger and were individually and collectively sufficient to cause death in the ordinary course of nature, which was due to shock and haemorrhage.

6. The prosecution case is based on the following pieces of evidence: ‑ (a) Occular evidence of Abdul Hamid (P. W. 1), Sajjad Hussain (P. W. 2) and Sabir Hussain (P. W. 3). (b) Recovery of blood‑stained shirt from tile possession of the appellant. (c) Motive. The eye‑witness account first is given by Abdul Hamid (P. W. 1), brother of the deceased, who had lodged the first information report. His presence at the spot was natural. He is elder brother of the deceased. Both, the deceased, as well as, himself, were residing together, in the same house. He also knew the appellant and the co‑accused, as they were also residing in the same Sarfaraz Colony. Moula Bux co‑accused (acquitted) worked as a mason. The appellant is his son. The complainant has d‑posed that at about 4‑30 p .m. on 4‑2‑1973, there was a commotion outside hid house. That was the fiat incident. When he came out, he saw Moula Bux, father of the appellant, beating a boy Sardar, who is son of his (complainant's) sister because Sardar bad a quarrel, with Ghaffar, a toy, in the neighbourhood, in whose house, Moula Bux was working as a mason. The complainant asked Moula Bux, as to why he had beaten Sardar over a perty matter of quarrel between the children, whereupon Moula Bux is stated to have abused him and there was exchange of harsh words, between the complainant and Moula Bux, but the quarrel vas averted. At about 5 p m. on the same day, the appellant, accompanied by his father Moula Bux, and the co‑accused, came to the house of the complainant and called him out. The deceased had, also come out with him. The appellant was found armed with a dagger. On seeing the complainant and deceased Maqsood, coming out of their house, accused Moula Bux instigated rest of the accused, including the appellant, to attack, and kill the complainant. Since the appellant was armed with a dagger, he led the attack. As soon as, he attempted to hit the complainant, the deceased Maqsood. his brother, intervened. The appellant stabbed Maqsood with the dagger in his stomach who fell down. On commotion. P. We. Sajjad Hussain and Sabir Hussain. among others had arrived, who had witnessed the occurrence. The narration of the facts given by all the three eye‑witnesses Abdul Hamid, Sajjad Hussain and Sabir Hussain is almost in the same arid of the identical manner. It is no need to reproduce their evidence individually, as it would be unnecessary repitition. Their testimony has stood the test of cross‑examination and there is no important material, worth consideration, brought on the record, to discredit their testimony. I find that the occular testimony of the three eye‑witnesses is consistent and to my mind, it is natural, convincing and reliable. Their presence at the vardat is established and cannot be doubted. The complainant and the deceased being brothers, were residing together. His presence at the spot therefore was natural. Whereas, Sajjad Hussain and Sabir Hussain were living in the neighbourhood, in the same street, as is shown by the Tapedar, Pir Tai Mohammad (P. W. 8) in the sketch Exh.

25. The two viz. Sajjad Hussain and Sabir Hussain are respectable persons of the locality. They had come on commotion and had witnessed the incident. Many other persons had also came there; but were not examined at the trial to avoid repitition. It is not the quantity of the evidence that counts; but it is the quality, which is most material in the case. The testimony of these three eye‑witnesses in fact, has gone almost unchallenged in material particulars, when there is no specific enmity brought on the record against them. They had no grudge to the extent to go out of their way to falsely implicate the appellant.

7. Next piece of evidence that has come on the record, is the recovery of blood‑stained white shirt from the person of the appellant, when he was arrested. It has been certified by the chemical analyser that the shirt was stained with human blood. As a precaution, I would discard the circumstances of the recovery of the dagger, as there was no blood detected by the Chemical Analyser. But the fact remains that such a dagger was produced by the appellant, which may have been washed.

8. Next piece of evidence is motive. Only about half an hour before this occurrence, there was a quarrel between the children and Sardar sofa of the sister of the complainant who was beaten by Moula Bux, father of the appellant, because Sardar had earlier had a quarrel with Ghaffar, in whose house Moula Bux was working as a Mason. Between the complainant and Moula Bux there were exchanges of hot words, which had resulted in ill‑feelings between the two. Later on, at 5 p.m. Moula Bux brought his son Liaquat, the appellant, and the co‑accused Salahuddin and Allahuddin, in order to take revenge from the complainant. They gave a call at the door, and the complainant in response, came out, accompanied by his brother deceased Maqsood. Moula Bux instigated the co‑accused to kill the complainant. Since the appellant was armed with a dagger he asked the other co‑accused to keep away. He tried to attack the complainant. 1n the meantime, to save the complainant, his younger brother Maqsood intervened. The appellant stabbed the deceased with the dagger, in his stomach, and he fell down. Therefore the motive for the commission of the offence was a previous quarrel between the complainant and the father of the appellant.

9. The occular evidence of eye‑witness account is corroborated by the recovery of the blood‑stained shirt, as well as, the motive. The testimony of the eye‑witnesses is also corroborated by the medical evidence, in respect of the injuries received by the deceased. From the nature of the injuries, the inference can conveniently be drawn that the intention of the appellant was to kill. Being armed with the dagger, the appellant was expected to ordinary realise the consequences of his act, which could result in the death of the deceased. Under these circumstances, I find that the case has been established against the appellant beyond all reasonable doubt, and I find that it required no interference with the appraisal of the evidence made by the trial Court in its judgment.

10. Mr. M.

1. Me‑non has mentioned about the contradictions and certain omissions, in the statements of the eye‑witnesses, which are not of the nature to render their testimony as doubtful. He has also expressed tae grievance of delay of three hours in lodging of the F. I. R. the complainant being brother of the deceased, wanted to save his life. He, therefore, had preferred to rush the deceased to the hospital for treatment, which resulted in the delay in lodging the report. Mr. Memon has also, argued that the witnesses were related and that they should not be relied upon without corroboration. I find that this argument has no force as there was no long standing enmity between the parties. The witnesses are residing there in the same lane and same locality. They are respectable and reliabl

0. Their testimony is therefore, worthy of reliance.

11. Since the appellant who is a young boy, appears to have been influenced by the instigation of his father, who was present there, I find that the reduction in the sentence would Moot the ends of justice. Our attention was also invited to Sher Hassan case (P L D 1959 S C (Pale.) 480) in which the sentence of death, enhanced by the High Court, was reduced to transportation for life, as was originally awarded by the Court of Session. In Sher Haasan's case the ground of lesser sentence was that there was possibility that be had acted under the immediate influence and direct order of his brother, who was 5 or 7 years older than himself.

12. In my view therefore, there are circumstances, as well as, adequate reasons for refraining from awarding extreme penalty of death in this case. I would, therefore, direct that the sentence for imprisonment for life would be g appropriate and I would decline to confirm the sentence of death. With this modification in the sentence, the appeal is dismissed. AGHA ALI HYDER, J.‑I agree. Order accordingly.