P L D 1979 Karachi 286 (PLP)

3. The appellant in his statement at the Court of Enquiry denied the various allegations made against him. However, at the trial he admitted that he had been detained by the people of the Mohalla till he was banded over to the Police. He also admitted that the Police had secured blood‑stained shirt and 'Shalwar' from his person. He also added at the trial that his father bad attempted at his life a number of times before, and, as he put it, "in order to save myself I was living separately from him .

4. Dr. S. A. Farooq had conducted the post‑mortem examination on the dead body of Jamadad. He found the following injuries on his person; "(1) Incised wound 1" X 1/2" x cavity deep, right side back of chest 5' below the right interior angle of right scapula in the 8th and 9th space. (2) Incised wound left side back of chest near the outer angle of left scapula 1/2" X 1/2" x muscle deep. (3) Incised wound right side back of neck 1/2" x 1/4" X muscle deep." According to the Medical Officer, the injuries had been caused by a sharp edged weapon, like a long knife, and death had occurred as a result of shock and haemorrbage because of these injuries, out of which, Injury No. 1 was sufficient, in the ordinary course of nature, to cause death.

5. The eye‑witness account has been furnished by three witnesses, namely, Naw ab, Bashir Ahmad and Shabbir Ahmad. Nawab has testified that he was offering his "Maghrab" prayers in his 'Jhuggi', which was adjacent to that of the deceased, when he was informed by his wife that a fight was going on between her father and brother. There was also a request for his intervention. He had gone out of his 'Juggi', and found them grappling, when the appellant had dealt knife blows to his father. He also added that a number. of persons had collected there, and, when the appellant had tried to make good his escape, he was apprehended by them, and he had disarmed him. After keeping the knife in his hot. and leaving the appellant in the custody of the Mohalla people, he had gone to the Police Station. However, in his cross‑examination, he softened down, and, for the first time, conceded that, when he had come out of the house, he had seen Jamadad sitting over the appellant in the street, and was pressing his neck. However, he added that he could not say that this had caused a swelling on the neck of the appellant. The other two witnesses, namely, Bashir Ahmad and Shabbir Ahmad, who were close neighbours, only mention a grappling between them, during the course whereof, the appellant had inflicted three/four knife blows on the deceased, who had fallen down on the ground. They also depose about the apprehension of the appellant at the spot, and the securing of the knife by Nawab. The fact, however, remains that, in the First Information Report in its original form on the record of Sessions case, the names of these two persons have not been specifically mentioned by Nawab. On the other hand, the persons named by him in the First Information Report were Shah Zaman, Rahim Syed and Gul Muhammad. However, even in the First Information Report he added that there were some other Mohalla people, and he has added in the cross‑examination at the trial that their number was between 30 to

35. No question was put to the complainant that he knew these two witnesses by name, P. W. Bashir Ahmad had moved in this area only 3/4 months earlier. The statement of both these witnesses were recorded by the S. H. O. once he reached the "Wardat", and they were also made Masbirs. Therefore, the fact, that the names are not mentioned in the First Information Report, would not warrant tote rejection of their evidence. It is also to be seen that the complainant tried to make confusion worse confounded in the cross‑examination, when he conceded that he had seen Jamadad sitting over the chest of the appellant and trying to strangulate him. According to the Medical Officer, Jamadad was sixty‑five years of age, while the appellant would be very much a younger man. Otherwise, too, the version furnished by him at the trial in the course of the cross‑examination was diametrically opposed to what he has to say in the examination‑in‑chief, and is also missing in the First Information Report. It is an axiomatic principle of law that the contents of a First Information Report do not constitute substantive evidence, but the same can be looked into to show that a certain statement, which was made by the witness, was not true. This was the course adopted in the case of Adalat and another v. The Crown (P L 'D 1956 F C 171). The position, however, in the present case is that he did not come out with this statement even in his examination‑in‑chief. I am, therefore, of the opinion that it was because of the marriage tie, that Nawab took the somersault, and this part of his statement is not to be preferred, as against the statements of Basbir Ahmad and Shabbir Ahmad. There is also the evidence of the securing of blood‑stained clothes from the person of the appellant, and the production of the knife by Nawab, when the Police arrived at the "Wardat". Even the appellant in his statement at the trial added that he had been detained by the Mohalla people, and the fact, that he had been produced by them before the Police with the blood‑stained clothes on his person. The articles were sent to the Chemical Examiner, and were found to be blood‑stained by him. Even the motive for the dastradly crime has been furnished by Nawab, and there is no controversy about it. I, therefore, agree with the learned Additional Sessions Judge that a case under section 302, P. P. C. has been established against the appellant beyond and reasonable doubt.

6. I am, however, of the opinion that the sentence of death awarded t the appellant is not called for. My reasons for the same are two Firstly, it cannot be said that it was a case of premeditated murder. True enough that Nawab, in reply to a question in the cross‑examination, had stated that the appellant had left for Landhi two days earlier, but it would not mean that he had left for good. At any rate, there is nothing to show that he had parted with his 'Juggi'. Even if he had removed the material, or, disposed it of, he could still have come to visit his sister with whom he was on good terms. Otherwise too, having lived in this area for quite some time, he could still have friends and associations there. If he was bent upon killing his father, he could have done it at the time of separation from him two months earlier, or, any times before he is alleged to have gone to Landhi. However, the record clearly shows that there was no untoward incident during all this period, and Nawab does not speak even of any threat being extended by the appellant. On the other hand, Nawab and the other witnesses have spoken with one voice that the two of them were seen grappling with each other, which would have taken some time, as Nawab, who was the first to arrive, was offering his prayers, when Mst. Asia ran to him for intervention. It is nobody's case that, at the earlier stages, the appellant had a knife in his hand while grappling. If he had come with the avowed intention of killing his father, there was no occasion for this combat. What is more, the grappling is alleged to have taken place out in the open. Admittedly, the knife injuries came to be inflicted at the later stages. It will be too much to believe that his nerves had palsied, while he was in Shafiq Colony, but, once he went to Landhi, the passion for patricide had the better of him. The fact, that he was armed with a knife, would not be decisive. There is not a word in the deposition of the S. H. O. that it came within the mischief of the West Pakistan Arms Ordinance, 1965, or, that he had registered a separate case for such an offence. Looking to the circumstances, it could not be said that the killing of his father would be the only purpose for having the‑C same. It is also a trite proposition of law that, if two inferences are) available, the one in favour of the accused must be preferred. So, according to me, there will be no premeditation. Secondly, we are totally in the dark about the origin of the trouble. All that we know from the mouth of the witnesses is that the two of them were seen grappling. May be that Mst. Asia could throw some light as to how the trouble began, but she did not care to step into the witness‑box. We cannot, therefore simulate as to how the lurid happenings ended with fatal results to Jamadad. In some similar circumstances, in the case of Ayoob v. The State (P L D 1974 Kar.) a Division Bench, of which I was a Member, substituted a sentence of transportation for life for that of a death sentence. I am, therefore, of the opinion that the sentence of imprisonment for life would meet the ends of justice. As a result, the reference is not accepted. With this modification, the appeal stands dismissed. M. A. RASHID, J.‑I had the privilege of doing through the judgment proposed to be delivered by my learned brother Agha Ali Hyder, J., I am in very respectful agreement with the findings of my learned brother with respect to the guilt of the accused person on the charge of murder falling under section 302, P. P. C. I also agree with the promotion that no case is made out of aright of private defence. The evidence on record does not make out a case of the general exception falling under section 100, P. P. C., nor does it fall under Exception No. 2 to section 300 of that Code. I would go a little further and hold that the concession given by Nawab in cross‑examination regarding the deceased sitting over the accused and pressing his throat is not compatible with his own evidence in examination -in‑chief, nor with the Medical evidence. In examination‑in‑chief he has clearly stated on oath that he saw the two grappling with each other. Grappling is distinctly different from saying that the one was sitting over another and pressing later's throats. Secondly, the learned counsel warts us to believe that the knife injuries sustained by the deceased were inflicted by the accused while the deceased was sitting over the accused. The nature of the injuries as detailed in the judgment of my learned brother is such that they could not have been inflicted if the victim was Sitting over his assailant. However, in the circumstances of this case, I am of the opinion that the normal penalty of death sentence as prescribed by section 302, P. P. C. is called for and that no extenuating circumstances exist which could legitimately warrant the imposition of lesser penalty of life imprisonment. The deceased had asked the accused to remove himself from the former's Jhugi. Not only that, the deceased also wanted his daughter and son‑in -law to remove themselves from the Jhugi next to his own. This, according to the cross‑examination of Nawab, was resisted by the accused. The accused was therefore, not only smarting for all this time under the treatment he got from his father, but wanted to see that some treatment was not extended to his sister and brother‑in‑law. This factor by itself would operate against a plea of suddenness of the fight. An other important fact which has come on record in the cross‑examina tion of P. W. Nawab is that although originally accused Nawaz shifted to an other part of Shafiq Colony, he had moved away to Landhi two days prior to the incident on the day of incident, he had appeared in Shafiq Colony, duly armed with a knife. On arrival he meets his father and does not go to his sister. The accused had specifically come from Landbi on the day of incident to Shafiq Colony; he was duly armed with a knife; he inflicted three injuries on the vital parts of chest and neck of the deceased; and lastly, he tried to run away from the scene after the commission of the offence. All these facts clearly establish that the accused has committed the crime after due deliberation and premeditation and these facts detract against the hypotheses of a sudden fight, developing at the spur of moment. It is well settled that the extreme penalty of death is the normal sentence for murder and that while awarding this sentence the Judge doe not have to give reasons for doing so; it is only when the lesser penalty is proposed to be awarded that the Judge 'has to ask himself whether there are reasons for abstaining from' awarding the death sentence (1902) L B L

216. In cases of premeditated and deliberate murder it has been consistent held that no grounds exist to award the lesser penalty. Moll Ram v. Emperor (A I R 1941 Sind 117), Amir Singh v. Emperor (A I R 1932 Lab. 245) and Rustam Khan v. The State (1972 S C M A‑657) are the cases on the point. Their Lordships of the Supreme Court, in the ease of Hukmat Khan (1) have desisted from laying down a rigid rule of awarding the lesser penalty in all cases of absence of premeditation when they observed. "Obviously we cannot lay down the proposition that if a murder is committed without premeditation and in the course of a sudden fight, however cruel the killing and however undue the advantage that the murderer takes of his position, the sentence of death should not be passed." In the present case I have come to a finding that the accused person committed the crime after due deliberation. Even if it were a case of lack of premeditation it is evident that the accused had taken undue advantage of the old age of his father and went on inflicting knife blows on vital parts of his body. He would therefore, on the principle laid down in Hukmat Khan's case be liable to the normal penalty under the law. I would in these circumstances, confirm the death sentence awarded by the learned Additional Sessions Judge, Karachi and answer the reference accordingly. The appeal filed by the appellant would stand dismissed. Z. A. CHANNA, J.‑A difference of opinion having arisen between my learned brothers, Agha Ali Hyder, J. (now Acting Chief Justice), and M. A. Rashid, J., over the question whether the appellant, whose guilt for the offence of murdering his father had been established, should be awarded the capital sentence or imprisonment for life, the difference of opinion has been referred to me for decision by my Lord the Chief Justice. My learned brother, Agha Ali Hyder, I, was of the opinion that there were mitigating circumstances in the case, in that the fatal assault on the deceased was an unpremediated one and was proceeded by grappling for a considerable time, which showed that it was not at least the original intention of the appellant to kill his father, and accordingly he took the view that the appropriate sentence was imprisonment for life, following his earlier decision in the case of Ayub v. The State (1969 S C M R 75). On the other hand, my learned brother, M. A. Rashid J., took the view that apparently the murder was a premeditated one, that the appellant had come armed with the knife to kill his father and that the normal sentence, in the absence of mitigating circumstances, was death, which sentence should be confirmed. For this view he placed reliance on a number of decisions, particularly the observations made by their Lordships of the Supreme Court in Hukmat Khan v. Crown (1969 S C M R 575) and Rustam Khan v. State (1972 S C M R 657).

2. In order to determine the question whether there were at all any mitigating circumstances in the case and whether the fatal assault on the deceased was unpremeditated or was committed on the spur of the moment, it is necessary to briefly refer to some facts, which in my opinion have a bearing on this question. It was established that there was a dispute between the appellant and the deceased over division of their plot of land and in consequence thereof the appellant, some 2 months prior to the incident, had left the hut, which they were jointly occupying, and had shitted to another hut. It was also established that the deceased had objected to his daughter and her husband, first informant Nawab, sharing his but with them and bad driven them out, which fact was severely objected to by the appellant.

3. At the trial of the appellant, 3 eye‑witnesses were examined, namely, first informant Nawab, Bashir Ahmad and Shabbir. None of them has stated how the incident commenced, nor has any witness stated whether the appellant carried the knife, with which he subsequently caused the fatal injuries to the deceased, openly or had it concealed or m his pocket. Their evidence substantially is to the effect that there was grappling for some time between the appellant and the deceased, during the course of which the appellant stabbed the deceased, who died in consequence of the injuries sustained by him.

4. Mr. Z. U. Ahmed, the learned counsel for the appellant, has invited my attention to three circumstances in support of his submission that not only the fatal assault on the deceased was an unpremeditated one but was committed on the spur of the moment and in the heat of the passion, without perhaps realising the full consequences of the act. He submitted that no witness has stated how the incident actually commenced and whether the grappling was preceded by any exchange of hot words or abuses between the deceased and the appellant. He next relied upon the fact that there was no evidence to show that the appellant was carrying the knife openly when he came towards the house of the deceased and it may well be that it was his custom to carry the knife. His last ground was that the medical evidence shows that all the 3 injuries on the deceased were on the back parts of the deceased, thereby giving support to the testimony of first informant, Nawab, that the deceased was sitting over the chest of the appellant and pressing his neck when the appellant stabbed the deceased.

5. I have carefully examined the medical evidence which shows that all the 3 injuries on the deceased were on the back, shoulder and the back of the neck. Ordinarily, the appellant could not have caused these injuries to the deceased unless they were so grappling together in a hand to hand fight that use of the knife in the front portion of the body was not possible, or alternately the deceased was sitting over the appellant in such a position that the appellant could only strike the deceased in the back parts of his body.

6. The fact that the appellant and the deceased were grappling with each other for some minutes clearly suggests that the fatal assault oil the deceased was an unpremeditated one and was in the heat of the moment. Furthermore, there is no evidence to show that at the time when the appellant and the deceased were grappling with each other, the appellant had a knife in his band. On the contrary, the fact of their grappling for some length of time seems to exclude the probability of the appellant having the knife in his hand at that time. I am inclined to the view that it was in the course of the grappling and perhaps by reason of something said or done by the deceased that the appellant apparently lost control over himself, whipped out a knife and unfortunately killed his father.

7. While I am in respectful agreement with my learned brother, M. A. Rashid, J., that the normal sentence for murder is capital sentence, but if there are mitigating circumstances then the appropriate sentence would be the lesser sentence. Absence of premeditation and committing of a murder on the spur of the moment and in the heat of the moment, in my opinion, do ordinarily constitute mitigating circumstances for the award of a lesser sentence, except in cases where death has been caused in cruel or in an unusual manner. Even in Hukmat Khan's care it was observed by Muhammad Munir, C. J., that "it is undoubtedly true in this case that such premeditation as usually calls for a sentence of death was absent". In that case the death sentence was confirmed mainly on the ground that the High Court had considered such a sentence appropriate in the circumstances of the case and their Lordships of the Supreme Court agreed that Hukmat Khan had acted in a very cruel manner.

8. Mr. Z. U. Ahmed has placed reliance on decision in Muhammad Salirn v. The State (1972 S C M R 249). In that case, there was a background of bitterness between the parties over the transfer of a house by the Settlement Department. In consequence of this bitterness, there took place a brawl between the appellant and the deceased, and in the course of exchange of abuses and fist blows the appellant took out a knife from the fold of his loin‑cloth and gave 3 blows with it to the deceased who fell down and died instantaneously. It was held that "taking into consideration the exchanges of abuses and fists blows which preceded the stabbing of the deceased" that a lesser sentence would meet the ends of justice.

9. I would finally like to refer to the case of Karim Bux v. The State (P L D 1977 Kar. 108) to the decision wherein I was a party. In that case, the appellant had caused 5 knife injuries to the deceased. However, there was absence of premeditation to kill on the part of the accused and further it was found that the accused and the deceased had grappled with each other for half an hour before the appellant launches the fatal attack on the deceased. It was also found that the genesis of the quarrel was shrouded in mystery as to how and over what it started. In the circumstances, the death sentence awarded to the appellant was substituted by that of imprisonment for life.

10. The facts in the instant case bear an analogy to those in Karim Bux' case. Taking into consideration the absence of premeditation to kill on the part of the appellant, the grappling which preceded the stabbing of the deceased and the further fact that all the injuries on the deceased were caused on his back parts, I find myself in respectful agreement with m learned brother, Agha Ali Hyder, J., that in the circumstances of the ca the lesser penalty would be appropriate. I would accordingly direct that the death sentence awarded to the appellant be substituted by a sentence of imprisonment for life. S. Q. Order accordingly.