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Criminal Appeal No.,141 and Confirmation Case No.15 of 1985, decided on 21st August, 1986.

---S.302--Evidence, appreciation of--F. I. R. lodged promptly, giving therein names of accused and witnesses, immediate cause, weapon carried by accused and the part played by him in occurrence-Ocular evidence corroborated by reliable recovery evidence of crime Churra as well as blood-stained clothes secured from person of accused- Occurrence a day time affair and identification of accused presenting no difficulty since parties and prosecution witnesses residents of same place--Conviction maintained in circumstances.

---S.302--Sentence--Mitigating circumstance--Accused 21 years of age at time of incident--Possibility that deceased said or done something before he was fatally injured not excluded- -Extreme penalty provided under S.302, P.P.C., held, was not called for, in circumstances- Sentence of death reduced to imprisonment for life.--[Sentence].

1971 P Cr. L J 530; 1983 S C M R 266; 1983 S C M R 336 and 1983 S C M R 211 ref.

Muhammad Hayat Junejo for Appellant.

Muzaffar Hassan for the State.

Date of hearing: 21st April, 1986.

-The Criminal Appeal No.141 of 1985 and the connected Confirmation Reference No.15 of 1985 arise from the judgment dated 31-10-1985 of Sessions Judge, Sanghar, whereby he convicted Zaheer Ahmad appellant under Section 302 PPC for causing death of Musawar and sentenced him to death and a fine of Rs.5,000 in default thereof six months' R.I. He was further directed to pay Rs.10,000 as compensation under Section 544-A Cr.P.C. to the heirs of the deceased in default thereof six months' R.I. more.

The occurrence took place on 2-8-1982 at about 6 a.m. The prosecution case is that "the deceased Musawar had given examination of first year and since one month he is working as a photographer with Muhammad Hashim. Yesterday, on 1-8-1982 Zaheer Ahmed appear who has a book-seller (shop) in Saeed Market, Sanghar, had gone to purchase flags for 14th August but on the price of flags, there had been altercation between Zaheer Ahmed and Musawar, they had abused each other. Musawar had informed the complainant about this fact. Today on the day of incident at about 5.30 p.m. complainant, Talib, Muhammad Parwaiz and Tufail Arain were standing in Saeed Market, by the way, Muhammad Mus.awar s/o Bashir Ahmed Arain, crossed from there after covering 2/3 paces, Zaheer Ahmed s/o Hafiz Muhammad Akbar Mughal was standing there, who fell Muhammad Musawar down by pushing from bicycle and Muhammad Musawar fell down. Suddenly, Zaheer Ahmed took out the hidden Chhuri (knife) from inside his shirt and inflicted blows to Muhammad Musawar which hit him on his left side of abdomen. At once Muhammad Musawar fell down on receiving the injuries and Zaheer Ahmed leaving the Chhuri, ran away. We followed him but accused escaped away and we saw Muhammad Musawar who was bleeding. He was unconscious. We thereafter, I, Talib and Muhammad Parvez took Muhammad Musawar to Civil Hospital fox treatment. But we saw there that Muhammad Musawar was expired."

The Complainant Abdul Ghafoor, leaving P.W. Talib and Muhammad Parvez at the hospital to look after the dead body of the deceased, went to police -station, Sanghar and lodged F.I. R.

After recording the F.I.R. (Ext.6) on the same day at 6.00 p.m., the S.H.O. Ghaus Bakhsh Memon proceeded to Civil Hospital, Sanghar. He noticed injuries on the dead body in the presence of mashir Abdul Ghafoor and Allahdino Mari (Ext.18), and he also prepared inquest report of the dead body in presence of the same set of mashirs (Ext.19). He thereafter sent the dead body through police constable Allah Wadhayo for post-mortem in the same Civil Hospital. He also recorded statements of P. Ws Muhammad Talib and Muhammad Parvez who were present in the Civil Hospital. He thereafter went to the place of wardat in company of the complainant which was pointed out by the complainant. The Wardat was situated in Saeed Market in front of Khushi Muhammad shop. He noticed there was a floor of pucca bricks and blood was present at the wardat, one Chhuri blood stained was lying at the wardat, one bicycle bearing No.43766 was also present at the wardat. He secured blood and blood-stained chhuri from the wardat and sealed the same in presence of the same mashirs. There was one pair of old chappal present at the wardat. He prepared mashirnama of wardat (Ext.20). He examined P.W. Hashim at the wardat. He also examined Khushi Muhammad, and Shabir Hussain Shah (who was working at the shop of Khushi Muhammad). There was one Muhammad Hashim Chandio present at the wardat who told him that deceased Musawar had taken the bicycle from him. On the same day he arrested appellant Zaheer from in front of his house after his interrogation. He secured blood-stained shirt and shalwar from the person of the appellant in presence of the same set of mashirs. He prepared mashirnama (Ext 21). He arrested the accused under Mashirnama (Ext.21). He also examined P.Ws: Jalaluddin, Habib Khan, Khan Muhammad, Jamil who were neighbouring shopkeepers. P.W. Ghulam Hussain was also examined on 8-8-1982. The chemical report (Ext.26) produced by S.H.O. is positive. After completion of the due investigation, the S.H.O. placed the appellant on trial.

The post-mortem examination of the deceased Musawar was performed by Dr. Khan Muhammad (P.W.6), Medical Officer at Civil Hospital, Sanghar. As is disclosed in his evidence, he discovered following injuries on the dead body:-

(1) Incised wound of 5 cm x 4 cm into heart deep at 5th inter costal space on left of the chest.

(2) Incised wound of 10 cm x 4 cm x muscle deep on 4th lumber spine on back side.

(3) Incised wound of 12 cm x 5 cm x muscles deep on posterior third of gluteel region.

On internal examination of the dead body the doctor found as under:-

(1) Fracture of fifth rib, cut seen on 5th inter-costal space on left side.

(2) Incised cut seen to pleural cavity on left side. Pleurae contained blood on left side. Larynx and tracheae congested. Right lung congested and oedamatous.

(3) Incised wound extending from the left verticle of heart to right atrium. Right side was full of blood and left side of verticle was empty.

(4) Lips and tongue were cyanesed. Pharynx congested. Oesophagus congested.

In the doctor's opinion the death of the deceased was the result of external injuries. Injury No.1 was sufficient in ordinary course of nature to bring about the death. The injuries were ante mortem and were caused by a sharp weapon like knife. The tine between injuries and death was 45 minutes and between death an,a post-mortem 2 hours and 15 minutes. The medical evidence, as aforesaid, leaves no doubt that the deceased Musawar died as the result of injuries found on his person.

To prove its case the prosecution examined ten witnesses in all, P.W.1 Abdul Ghafoor, P.W. Talib Hussain, P.W.3 Muhammad Parvez, P. W.4 Khushi Muhammad and P. W.5 Shabbir Hussain have given the ocular account of the occurrence. They have supported the prosecution case as detailed above. They claimed to have seen that deceased Musawar fell down from his bicycle as he was given a push by the appellant Zaheer Ahmed. At that moment deceased fell down on the ground and the appellant took out a Chhura from fold of shalwar and he gave three blows on the left side of the chest and abdomen of the deceased. The complainant P.W.1 Abdul Ghafoor alongwith P. W. Talib Hussain and Muhammad Parvez gave lalkara and rushed to the place of incident. The appellant threw the Chhura at the place of wardat and then ran away. They followed the appellant but he ran away. Then they came back at the place of wardat and saw the deceased lying in a pool of blood. In the meanwhile other persons including P.W. Khushi Muhammad and Shabbir Hussain also collected there at the scene of offence. P. W.1 also supported the alleged motive of crime.. P.W.7 Abdul Ghafoor and P.W. 10 Ghous Bukhsh S. H.O. have proved recovery of blood-stained Chhura, blood-stained clothes. Dr. Khan Muhammad has proved post-mortem report of deceased. P. W.9 Khaliq Dino tapedar prepared sketch of wardat and has proved sketch o wardat as Ext: 24. The rest of the evidence is of formal nature.

When examined under section 342 Cr.P.C. the appellant denied all the circumstantial evidence. He stated that his father belongs to Sunni sect whereas some of the P.Ws. belong to Shia sect. They had grudge against his father. He also stated that "the Molvi of shia sect of Sanghar town is on inimical terms with my father and some of the witnesses who are Shias were under the influences of their Molvi. These witnesses are neighbours of the deceased Musawar. The complainant had dispute with my father over money transaction prior to the incident and therefore on so many occasions my father was disgraced by the complainant and he was also called at police station by the complainant with the help of police. I produce two receipts executed by Tassaduq Hussain brother of deceased as Ext.29 and Ext.30. I have been falsely implicated".

The trial Court was convinced that P.W.1 Abdul Ghafoor, P.W.2 Talib Hussain and P.W.3 Muhammad Parvez saw the occurrence. They are related to the deceased, as such the ocular account required an independent corroboration. The corroboration is furnished by P. W. Khushi Muhammad and Shabbir Hussain, they both witnessed the incident. P.W.Khushi Muhammad is a cloth merchant and his shop is situated in Saeed Market. In front of whose shop the appellant killed deceased Musawar by means of causing Chhura blows. P. W.Shabbir Hussain is a tailor master, who was working on the shop of Khushi Muhammad. He also witnessed the incident. The trial Court believed the recovery of Chhura from the place of wardat. Trial Court also held that the motive was proved. The trial Court recorded his conviction .

Mr. Muhammad Hayat Junejo, the learned counsel for the appellant has contended that the eye-witnesses are not reliable and that the occurrence did not take, place in the manner as alleged by the prosecution. Mr.Hayat Junejo the learned counsel has argued that something must have occurred on spur of moment and the murder was not pre-planned. He has also argued that the appellant was twenty-one years old at the time of incident and the appellant may not be subjected to capital punishment. In support of his contention, the learned counsel has placed reliance on the cases reported in 1971 PCr.LJ 530 at 537, 1983 S C M R 266 at 268, 1983 S C M R 336 and 1983 S C M R 211.

Mr. Muzaffar Hassan, the learned counsel for the State has supported the judgment of the trial court and the conviction and sentence awarded to the appellant.

We have considered the arguments advanced by the learned counsel for the parties with care. We find that it was a case of prompt F.I. R. The name of the appellant Zaheer Ahmed, the names of the witnesses, the immediate cause of push from the bicycle, the weapon carried by the appellant and the part played by the appellant in the occurrence are given therein. The learned counsel has not challenged the genuineness of this valuable document before us. The eye-witnesses P.W.1 Abdul Ghafoor, P.W.2 Talib Hussain, P.W.3 Muhammad Parvez claim to have seen the occurrence. P.W.4 Khushi Muhammad and P.W.5 Syed Shabbir Hussain have corroborated the prosecution witnesses. P.W.4 is an owner of cloth shop in front of whose shop incident took place. P.W.5 is a tailor on the shop of P.W.4 Khushi Muhammad. Their presence on the spot was very much natural. The occurrence took place at 5.30 p.m. i.e. at day time. The parties being residents of the same place, the appellant was previously known to the eye-witnesses, so there was no difficulty in the identification of the offender. We are, therefore, convinced that the five eye-witnesses had not only seen the occurrence but were in a position to identify the culprit. We find that P.Ws. 1, 2 and 3 are related to the deceased. The further question arises as to whether they could have been relied upon without corroboration. The shopkeeper P.W.4 Khushi Muhammad and P.W.5 Syed Shabbir Hussain tailor have fully corroborated their evidence. The trial Court after having attended to the evidence of the P. Ws . 1, 2 and 3 has rightly observed that the ocular evidence was duly corroborated by P.Ws: 4 and 5. The learned counsel has failed to point out any inherent infirmity in the statements of eye-witnesses which may warrant total rejection of their testimony. We also find additional direct evidence which corroborates their testimony. We find that the corroboration of the ocular evidence is also available in the shape of reliable recovery of appellant's Chhura and blood-stained clothes which were secured from his person. The recovery witnesses have no enmity with the appellant. P. W.7 Abdul Ghaffar has successfully stood test of cross-examination. He is quite reliable. The recovery of chhura and blood stained clothes of the appellant proved by dependable witnesses has fully satisfied us that the eye-witnesses while naming appellant as culprit have spoken truth. For all these reasons, we are of the view that the trial Court has rightly convicted Zaheer Ahmed appellant under Section 302 PPC for the death of Musawar.

This brings us to the question of sentence awarded to appellant by the trial Court. We have given due consideration to the question of sentence which requires utmost care on the part of the Court's dealing with the life of an accused. We find that there are mitigating/ extenuating circumstances in favour of appellant for lesser penalty inasmuch as appellant was 21 years of age at the time of incident. It appears that the deceased must have said or done something before he was fatefully murdered. Looking at the case from this angle and he was 21 years of age at the time of incident, we consider that the extreme penalty provided by law under section 302 PPC was not called for in this case. We set aside the sentence of death imposed on the appellant and substitute it to imprisonment for life. The fine imposed by the learned trial Court, sentence in default thereof and the direction of its payment to the legal heirs of the deceased are maintained. The appellant is entitled to the benefit of Section 382-B Cr.P.C. The death sentence is not confirmed. The above are the reasons for the short order dated 21-4-1986.

S. G. D. /Z-19/K Order accordingly.

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