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Criminal Appeal No. 173, Criminal Revisions Nos. 104 of 1986 and 25 of 1987, decided on 24th June, 1987.
‑‑S. 302‑‑Motive‑‑Solitary word of complainant that accused Y was paid employee of co‑accused N and being annoyed with deceased who reprimanded N on number of occasions for committing sodomy on children, Y stabbed deceased at the behest of N‑‑Evidence showed that accused Y did not attack deceased immediately but the attack was first preceded by abuse, exchange of hot words and grappling‑‑Held: Circumstances did not show any motive for accused to kill deceased.
‑‑Ss. 300(4), 302 &304, Part I‑‑Word grappling' is fight' within meaning of S.300(4), P.P.C.‑‑[Words and phrases].
Mohammad Shafiq v. The State P L D 1960 (W.P.) Lah. 339 ref.
‑‑S. 439‑‑Penal Code (XLV of 1860), S. 302‑‑Revision against acquittal‑‑Only order that can be passed in revision would be of re‑trial and not of enhancement of sentence passed by Court below‑‑Re‑trial can be ordered only when there is some technical or other legal ground and not otherwise.
Mrs. Ann Colemn v. Arif A. Lukmani and another P L D 1964 Kar. 81 ref.
‑‑‑Ss. 302 & 304, Part 11‑‑No direct enmity alleged between accused and deceased‑‑Attack on deceased preceded by exchange of hot words and grappling between accused and deceased‑‑Case, held, one of sudden fight' and conviction and sentence of life imprisonment under S.302, P.P.C. altered to rigorous imprisonment of seven years under S. 304, Part II, P.P.C.
1986 P Cr. L J 583; 1984 P Cr. L J 1982; Emmanuel Bahadur Joseph v. Paul Jakson and another 1981 S C M R 663 and Ahmed and 3 others v. The State P L D 1971 SC 720 ref.
1986SCMR 1056; 1983PCr.LJ509;PLD 1974SC260andPLD 1975 SC 227 distinguished.
‑‑‑S. 302‑‑Criminal Procedure Code (V of 1898), S. 439‑‑Revision against acquittal of co‑ accused‑‑Only evidence in F.I.R. against N was that he was reprimanded on several occasions by deceased to give up sodomy and it was, therefore, at his instance that accused Y, his employee, committed murder and therefore, his acquittal was not proper‑‑Revision petition in circumstance would have no merit‑‑Petition dismissed.
Mohammad Hayat Junejo for Appellant (in Criminal Appeal No. 173 of 1987).
M. Majeed Pirzada and M.N. Junejo and M.J. Memon for Petitioner (in Criminal Revision No. 104 of 1986).
Zaheer Qureshi for the State.
Dates of hearing: 25th and 26th March, 1987.
‑This judgment will govern Criminal Appeal No. 173 of 1986, Criminal Revision Application No. 104 of 1986, and Criminal Revision Application No. 25 of 1987.
The appellant was tried under sections 302, 109, R/w section 34, P.P.C., alongwith one Nizamuddin alias Munna, for committing murder of one Abdul Razzak, before the learned IInd Additional Sessions Judge, Karachi, East, who convicted the appellant under section 302, P.P.C. and sentenced him to suffer life imprisonment, and to pay fine of Rs.J0,000 or in default of payment of fine to suffer R.I. for further six months. Out of fine if realised half the amount was to be paid as compensation under section 544‑A to the heirs of the deceased, while co‑accused was acquitted. The present appeal is directed against the said conviction.
The brief facts of the prosecution case are that on 30‑ 8‑ 1981 one Mohammad Yousuf son of Mohammad Ibrahim lodged a report at police station Korangi inter alia alleging therein that he runs provision shop in his house, his brother Abdul Razzak used to do the work of packing. On 29‑8‑ 1981 at 10‑00 p.m. his brother Abdul Razzak had gone to Mumtaz Pan' shop at bus stop No. 3 to purchase Pan and cigarettes, when his younger brother came and informed him that Mohammad Yasin s/o Mohammad Ibrahim had inflicted dagger blow to his brother Abdul Razzak. The complainant rushed to the bus stop and found that his brother was lying on the ground, while Mohammad Yasin was giving him dagger blows continuously. The complainant ran to catch hold of Mohammad Yasin, who tried to give him dagger blow, but the complainant moved back and saved himself. Then accused Mohammad Yasin ran away alongwith his dagger. It was further alleged that Mohammad Yasin is employed with Munna, the scrap dealer, who used to commit sodomy on small children, whereupon, his brother Abdul Razzak had demonstrated him several times, as a result of which Munna had turned hostile to his brother. At the instance of Munna, Mohammad Yasin gave dagger blows to his brother which hit on his neck, chest, below the left armpit, left wrist, and on the right hand. The eye‑witnesses namely, Nazir Ahmad s/o Bhoray Khan, Khaliq Shah s/o Allah Rakha, Mushtaq s/o Mohammad Ishaq, Mohammad Ishaq s/o Ali Mohammad and several other shopkeepers had witnessed the incident. That S.H.O. Abdul Hafeez Qadri received information through entry No. 67 in station diary, whereupon he proceeded to Jinnah Hospital and recorded the statement of complainant Mohammad Yousuf under section 154, Cr.P.C. which he sent to police station through constable for registration as F.I.R. The F.I.R. was registered by A.S.I. Amirul Hasan on the basis of the above statement. He prepared Mashirnama of dead body and inquest report. Thereafter, he proceeded to scene of offence and prepared Mashirnama of Wardat in presence of Mashirs. He recorded the statement of P.Ws. Rehmat Ali, Mohammad Salim, Shamsur Rehman, Shabrati, Mushtaq, and Nazir Ahmed at the place of incident. He secured Vespa Scooter from the place of incident, which was said to be that of accused Mohammad Yasin. He had also recovered driving licence of accused Nizamuddin from the scooter. He arrested accused Yasin and secured blood‑stained clothes. He had also received blood‑stained shirt, Shalwar and Banyan of deceased Abdur Razzak which has been produced as article B'. He had sent clothes of deceased and accused Yasin to chemical analyser for examination and report. The report has been produced as Ex.32. On 9‑9‑1981, the investigation was transferred to Crime Branch, and therefore, he handed over the case file to Inspector Shamshad of Crime Branch. The remaining investigation was carried on by late Inspector Mohammad Aslam Kiyani, and that when the case papers were handed over to Shamshad, the investigation in the matter was almost complete, and after completing the necessary formalities Inspector Shamshad submitted challan before the Magistrate.
A formal charge was framed against the accused to which they pleaded not guilty.
At the trial, the prosecution examined P.W.1 Mohammad Yousuf, who has produced his statement which was recorded as F.1.R. as ExA, the Mashirnama of Wardat was also signed by him alongwith Mashirs and he has produced the same as Ex.5 P.W.2, Jawaid, an eye‑witness, P.W.3 Khaliq Shah, an eye‑witness and Mashir of Wardat and Mashir of securing of blood‑stained clothes from accused Mohammad Yasin. The Mashirnama has been produced as Ex.8‑A. P.W.4 Mohammad Ishaq, an eye‑witness, P.W.5 Mushtaq Ahmed an eve‑witness, P.W.6 Dr. Nisar Ahmed Mangi who carried on post‑mortem on the dead body. He has produced post‑mortem report as Ex.] l P.W. 7 Mohammad Salim an eve‑witness, P.W.8 Shabrati an eye‑witness, P.W.9 Mohammad Nizamuddin an eye‑witness, P.W.10 Mohammad Siraj an eye‑witness, P.W.11 Mohammad Mumtaz an eye witness, P.W.12, Rehmat he had identified the dead body in the hospital, and Mashirnama of dead body of deceased and inquest report were prepared in his presence and he has produced the same as Exs. 24 and 25 P.W.13, Shahabuddin, an eye‑witness, P.W.14 Abdul Hafeez Qadri S.H.O. who had carried on the investigation of the present case; he has produced F.I.R. recorded in 154, Cr.P.C. Book as Ex.29, Mashirnama of arrest of accused Mohammad Yasin as Ex.31 and chemical report as Ex.32. P.W.15 Nafis Ahmed a Junior Clerk working in record room of the Court has produced 164, Cr.P.C. statements of P.Ws. Mohammad Ishaq, Mohammad Nizamuddin, Nazir Ahmed, Khaliq Shah, Mushtaq Ahmed and Mohammad Siraj as Exs.35 to 40, and Shamshad Khan Inspector who had challaned the case.
P.W. Mohammad Yousuf complainant who is younger brother of deceased Abdul Razzak has fully supported the F.I.R. and has deposed in his evidence that about 2‑1/2 years back at about 10‑00 p.m. he was walking in front of his house and shop, when his younger brother Javed came to him and informed him that accused Yasin had inflicted dagger injury on his brother at bus stop No. 3 Korangi, near Kafe Awan. He went towards Kafe Awan, and saw that deceased Abdul Razak was lying on the ground in front of Kafe Awan and accused Yasin was giving him dagger blows. He intervened on which Yasin also attacked him with dagger but he retreated and escaped from being injured. Yasin had given two/three injuries to Abdul Razak in his presence. Many persons had already collected there amongst them were Wazir, Nazir Ahmed, Ishaq, Mushtaq, Khaliq Shah and many others. Accused Yasin ran away with dagger. Abdul Razak was bleeding. He requested those persons, present there, to bring some vehicle for taking the deceased to hospital. Shaukat brought his Toyota Car in which he alongwith Nathu took injured Abdul Razak to Jinnah Hospital, Shaukat was driving the car. Abdul Razak was unconscious after receiving the injuries. When they reached Jinnah Hospital the doctor declared Abdul Razak dead. In the meantime police also reached the hospital after they reached there. A police officer recorded his statement and the same has been produced as Ex.4 According to him, Nizam alias Munna was in the habit of committing sodomy on boys on which his brother Abdul Razak used to admonish him and as such he was annoyed with Abdul Razak. Accused Yasin was an employee of Nizamuddin and he used to act according to the direction of Nizamuddin. Nizamuddin is a Kabari. Accused Yasin committed murder of his brother at the instance of accused Nizamuddin. Police accompanied him to the Wardat which was shown by him to them. The police secured blood stained earth and the same was sealed in the tin, such Mashirnama was prepared and his signatures were obtained. Khaliq and Mohammad Salimy also signed the Mashirnama, he has produced the same as Ex.5. In cross -examination he has stated that the incident took place in the market and all the shops were open at the time of incident. About 150/200 persons had collected at the Wardat. It was incorrect to suggest that Wardat was about 700/800 paces away from his house. His house is in the second lane at the distance of about 100 paces. On the day of incident deceased Abdul Razak was with him prior to the incident and they had taken meals together at about 9‑30 p.m. The police officer reached the hospital at about 12‑00 mid‑night. His statement was recorded after sometime after 12‑00 mid‑.night. He has further stated that he does not remember the names of the shop keepers whose shops were open. The investigation was entrusted to crime branch as they were not satisfied with the investigation of Korangi police. The crime branch had come to Wardat after 10/12 days and recorded his statement. The crime branch police had also recorded statements of P.Ws. Siraj, Javed, Nizamuddin, Pir Saleh, Mushtaq, Ishaq and others. According to him, Korangi police did not record the evidence of any prosecution witness in his presence. He had informed the police that his brother had received 4/5 injuries as he was told by the doctor. It was incorrect to suggest that actually he had not inflicted the injuries to the deceased. It was incorrect to suggest that deceased used to commit sodomy on the boys. It was incorrect to suggest that some unknown person had killed Abdul Razak and that we named the accused after consultations and deliberations after two hours, of incident. It was incorrect to suggest that j deceased wanted to have illicit relations with accused Yasin and as such he named Yasin to have killed him. It was incorrect to suggest that deceased received injury in the dark‑lane, but we changed the Wardat. He has further stated that he was satisfied with Ilaqa Police and that his statement Ex.4, was recorded correctly. Because there was quarrel between accused Nizamuddin and deceased Abdul Razak and because two days prior to the incident Yasin slapped his younger brother laved, he made up his mind that Yasin slapped his brother at the instigation of Nizamuddin. It was incorrect to suggest that he has not mentioned the name of Nizamuddin as accused in his statement ExA 1t is correct that Ilaqa police was not challaning the accused Nizamuddin and as such he made complaint in Kutchery before Martial Law Authority in procession. He does not know as to what was told by Yasin or by deceased to Yasin during the course of giving injuries.
P.W.2 Javed is brother of deceased Abdul Razak. He has deposed that on 29‑8‑1981 at about 10‑00 p.m. he had gone to purchase Pan from a shop situated at Korangi No. 3, and that when he reached near Kafe Awan, he saw that Yasin was on motor cycle of Munna alias Nizamuddin. Deceased Abdul Razak was with him. Accused Yasin stopped the motor cycle at Korangi Pan Centre. Yasin started abusing his brother Abdul Razak. People intervened and pacified them. However, accused Yasin went towards the motor cycle and took out a dagger from its diggi and came running towards Abdul Razak. Due to fear of dagger, the people came on sides. Accused Yasin reached Abdul Razak and started giving him dagger blows. He ran away from there due to fear, and went and informed his brother Yousuf. The complainant rushed to the place of Wardat and he also followed him, they saw that accused Yasin was inflicting injuries on Abdul Razak by dagger. Yousuf tried to catch hold of Yasin but Yasin threatened him with dagger on which Yousuf retreated, and Yasin ran away with dagger in his hand. Abdul Razak was bleeding from injuries. He got up, went to Korangi Pan shop and fell down. His brother Yousuf and Nathu took the injured to hospital in the Suzuki of Liaquat. After about one hour they came to know that Abdul Razak died in the hospital. According to him, he did not remember as to why the fight started between Abdul Razak and Yasin. Police had recorded his statement 15 days after the incident. He was sitting in the Park, when accused Yasin threw flash light on him and on his objection slapped him, saying to go and inform pimp Abdul Razak. And he informed about the incident of pimp to his brother Abdul Razak. According to him, he had not seen accused Nizamuddin at the place of incident. In cross‑examination he has stated that he disclosed the facts of the incident to the police but he does not know if those police officials were of Korangi Police Station. His statement was recorded by the police after about fifteen days of the incident. It was incorrect to suggest that he has falsely implicated accused Yasin because he slapped him two days prior to the incident. 10)/150 persons were collected at the place of incident.
P. W. 3 Khaliq Shah has deposed that about 4‑1/2 years back, at about 10‑15 p. m., he alongwith his friend Nazir Ahmed were standing at Korangi Pan Shop, at Korangi Bus Stop No. 3. The owner of the Pan Shop and he were taking cold drinks. He saw that at few paces away from them, accused Mohammad Yasin and deceased Abdul Razak were exchanging harsh words with each other. Thereafter, accused Yasin and deceased Abdul Razak grappled with each other. Thereafter, accused Yasin went running towards Mohammad Ishaq Kababwala, again Yasin went back to the same place. Accused Nizamuddin alias Munna was also standing on the corner of the street, and told accused while be was running here and there, that be should go towards his scooter and bring the dagger from there. Accused Mohammad Yasin thereafter took out the Khanjar from the diggi of the scooter, came there, and gave Khanjar blows to Abdul Razak. Many persons had collected there on receipt of injuries of Khanjar deceased fell down on the ground and was bleeding. Thereafter, accused Yasin and Nizamuddin ran away. Younger brother of deceased Abdul Razak brought car and went towards the hospital, afterwards they came to know that deceased Abdul Razak died due to Khanjar injuries. Police examined him. Police had prepared Mashirnama of Wardat in his presence and collected blood from the Wardat. Mashirnama Exh. 5, bears his signature. He was also called at police station. Police told him at police station that they had secured the clothes, shirt and Shalwar from accused Yasin and prepared such Mashirnama. He has produced the same as Exh. 8‑A. In cross -examination he has stated that police called him at P. S. after two days of incident. On the next day again he was called for identification of Khanjar. The police regularly called him at P. S. for about ten days. At one time police took his signatures on plain paper and thereafter took his signature at P. S. He has admitted that at bus stop police obtained his signature on white paper. He had seen the clothes in the hands of police. On the next day, he had seen these clothes. It was not a fact that he was deposing falsely as complainant and deceased were his friends. Crime Branch police had also examined him. Aslam Kiani of Crime Branch examined him ten days after this incident. He has further stated that it is not a fact that before Korangi police, he had not given the name of accused Nizamuddin. It was also not a fact that he had stated before Korangi police that he had heard that accused Yasin had murdered deceased Abdul Razak at the instigation of Munna Kabari. But the evidence of investigating officer shows that he had not stated before him that Nizamuddin was present at the Wardat.
P. W. 4 Mohammad Ishaq has deposed that about 4‑1/2 years back at 10‑15 p. m. he was filling the gas lamp and his son was sitting on the shop. His son Mushtaq called and told him that he should remove the lamp from there as some quarrel was taking place. Thereafter, he put the gas lamp inside the shop and saw that deceased. Abdul Razak and Yasin. were quarreling. Accused Yasin was running after. Thereafter, accused Yasin went towards his scoter which was standing near his shop and took out Khanjar from the same. Thereafter, accused Yasin gave 4/5 Khanjar blows to deceased Abdul Razak. Many persons gathered there and some persons closed their shops. Thereafter, injured put his hand at the abdomen but he fell down near the Pan shop. Thereafter, his brother came there. Yousuf brother of deceased arranged the car of Liaquat in which he took the injured. He did not go with them. He did not see accused Nizamuddin there. Thereafter, he came to know that Abdul Razak died in the Hospital. In cross‑examination he has stated that all the persons went away after closing the shops, no one was present there. He has got five sons namely, Mushtaq, Zaheer, Rizvi, Ishaq and Nasir. He has admitted that accused Yasin and Zaheer had fought with each other about ten years ago. It was a fact that he had gone to lodge report against accused Yasin at P.S. It is a fact that police took away Yasin to P.S. It is not a fact that due to that reason he was deposing falsely against the accused.
P.W.5 Mushtaq has deposed that about 4‑1/2 years back at about 10‑ 15 p.m. he was sitting at his shop. His father Mohammad Ishaq was also present. He saw accused Yasin and Nizam running here and there. Thereafter, Yasin took out Khanjar from his Vespa Scooter, and gave many Khanjar blows to deceased Abdul Razak. Injured Abdul Razak fell down on the ground, many persons gathered there. Yousuf brother of deceased came there and he took the deceased to hospital in the car. Thereafter, accused ran away. He then learnt that deceased died in the hospital. In cross‑examination, he has stated that he had seen Yousuf at the time when he was putting deceased Abdul Razak in the car. Deceased received injuries 10 paces away from his shop. According to him, he was examined on the same day by the police, about 50/60 persons had collected there at the time of incident. He could not say whether his brother Zaheer and Rizvi had fought with Yasin, and such report was lodged. After incident accused ran away on foot. It was not a fact that other shopkeepers were running away. At that time, none had closed their shops. He was not examined by crime branch after 14/15 days of the incident. It was not a fact that he had not given the name of accused Nizamuddin in his police statement. It was not a fact that he was related to deceased Abdul Razak and due to this he was deposing falsely.
P.Ws. Mohammad Saleem has deposed that deceased Abdul Razak was his maternal‑uncle. He knew the accused present in Court. They also belonged to his caste. About five years back at about ten or 10‑30 he was standing at the bus stop No. 3, Korangi. He heard commotion and saw that many persons had collected. He saw deceased Abdul Razak standing near Kafe Awan. Accused Yasin came there having a dagger in his hand. He caused many injuries to deceased Abdul Razak who fell down. Accused Yasin thereafter ran away alongwith dagger. Abdul Razak was removed to hospital by P.W. Yousuf and Nathu. Later on he came. to know that Abdul Razak died in the hospital. He does not know why accused killed the deceased. In cross‑examination he has stated that he was examined by crime branch after 10/14 days of the incident. Prior to this he was not examined by any other agency of the police department. Police had came at Wardat at 2‑00 p.m. police did not make inquiry about the incident nor he narrated the incident to the police. He has further stated that he knows P.W. Khaliq Shah who came to the place of incident after him. It was correct that at the time of incident P.W. Khaliq Shah was with him.
P.W. Shabrati has deposed that on the day of incident he had gone to barber shop at the Bus Stop No. 3 Korangi at 10‑00 p.m. while he was sitting in the shop he heard commotion. He came out of the shop and saw a crowd at a distance of 15 feet from the barber shop. On inquiry it transpired that deceased Abdul Razak and accused Yasin were quarrelling. In the meantime accused Yasin went towards the Vespa Scooter. He brought a dagger and inflicted a blow to Abdul Razak who was standing in front of him. Yasin caused injury on the neck of deceased. On seeing blood he became giddy. Deceased Abdul Razak fell down. He does not know what transpired thereafter. In cross‑examination, he has stated that his statement under section 161, Cr.P.C. was recorded by crime branch police after sixteen days of the incident. He had informed the police that on the day of incident he had gone to barber shop for shaving. His address might have been told by the brother of deceased Abdul Razak to the police, or someone else. He had not given the statement to Korangi police. His statement by police of Korangi P.S. might be false. The father of deceased Abdul Razak was his first cousin.
P.W.9 Mohammad Nizamuddin, P.W.JO Siraj, P.W.11 Mohammad Mumtaz and P.W.13 Shahabuddin did not support the prosecution, and therefore, they were declared hostile and cross‑examined by A.P.P.
Inspector Aslam Kiyani of Crime Branch who had further investigated the case died before he could be examined in the Court, while P.W. Nazir Ahmed son of Bhoray Khan left for Saudi Arabia and, therefore, he also could not be examined. A.S.I. Adalat Khan was examined by Court as Court witness, as he was given summons to serve upon Aslam Kiyani and Nazir Ahmed, he produced the summons and his report as Exs.17 to 20, and statement of one Abdul Qadir as Ex.21.
P.W. Dr. Nisar Ahmed Mangi, carried the post‑mortem on the dead body of deceased Abdul Razak. According to him, he had found the following injuries on the person of deceased:‑
(1) Incised wound 1" x 1/2" on the right side of neck. It is transverse 2" below right ear by the side of Mandible about 2"deep.
(2) Incised wound 1" x I/2" on the left side of the chest at posterior exillary fold oblique and slightly transverse at the distance of 4" of exhila.
(3) Incised wound 1/2" x 1/4"above and medial to injury No.2.
(4) Incised wound 1" x I/2" on the middle and dorsom of the left fore arm. It is oblique transverse.
(5) incised wound on the left side chest below and lateral to the left ripple at a distance of 4". It is oblique and transverse.
(6) Incised wound 1/2" x 1/8" lateral to injury No. 5 at a distance of 1".
(7) Incised wound 1‑1/2" x 1‑1/2" on the middle of interphall egal erea between thumb and index finger. It is muscle deep.
(8) Incised wound 1‑1/2" x 1" on the right buttock at a distance of 1" from the upper margin of net left. It is large medial.
In his opinion, the deceased died due to internal haemorrhage, bleeding, shock, coma. The injuries appeared to have been caused by sharp‑edged weapon such as Chhuri. He has produced the post‑mortem report as Ex.11‑A. In cross‑examination he has stated that it is correct to suggest that stomach was empty and it contained no food.
P.W.12 Rehmat has deposed that he resides in Korangi since last 24 years, and he knew deceased Abdul Razak. Dead body of Abdul Razak was inspected by police in his presence in Jinnah Hospital, Karachi, and such memo. was prepared in his presence. Police had prepared inquest report of dead body in his presence. He has produced memo. and inquest report as Exs. 24 and 25.
P.W.13 Abdul Hafeez, Investigating Officer, has deposed that on 29‑ 8‑ 1981 he was posted as S.H.O. Korangi. While he was busy in investigation of Crime No. 302/1981, he received copy of station diary No. 671. He proceeded to Jinnah Hospital and recorded statement of complainant Mohammad Yousuf under section 154, Cr.P.C. Ex. 4 was in his handwriting which he had sent to P.S. through a constable for registration as F.I.R. The case was registered by A.S.I. Amirul Hassan. He was conversant with the signature of A.S.I. Amirul Hasan. He has produced the same as Ex.29. He then started investigation. He prepared memo. of dead body and inquest report. Thereafter, proceeded to Wardat, inspected the same, and prepared such Mashirnama at Wardat. He recorded statements of P.W. Rehmat Ali, Mohammad Salim, Shamsur Rehman, Shabrati, Mushtaq and Nazir Ahmed under section 161, Cr.P.C. He. seized Vespa Scooter belonging to accused Yasin as disclosed to him by accused Yasin. He had secured driving licence of accused Nizamuddin from the Vespa Scooter and has produced the Mashirnama of recovery as Ex.30. He arrested accused Yasin and secured blood‑stained white clothes. He produced the same as article A'. He has also produced blood‑stained shirt Shalwar, and Banyan of deceased Abdul Razak as article B'. He has produced Mashirnama of arrest of accused Yasin as Ex.31. He had sent cloths of deceased and accused Yasin to chemical analyser for examination, and he has produced the report as Ex.32. On 9‑9‑1981 the investigation was transferred to Crime Branch and he had handed over the case file to Inspector Shamshad of Crime Branch. However, further investigation was conducted by him. Accused Nizamuddin was arrested by Crime Branch police. In his cross‑examination, he has deposed that P.W. Nizamuddin and Siraj Panwala did not appear before him during investigation. He had not examined P.W. Shahabuddin, Mumtaz, Liaquat during investigation. In 154, Cr.P.C. statement of the complainant, it is not mentioned that accused Nizamuddin was also present at the Wardat. From the time of commission of crime he investigated this case for about eleven days, and during this period he did not get direct evidence to connect accused Nizamuddin with the alleged offence. He has further stated that P.W. Khaliq Shah has not stated in his statement before police that accused Nizamuddin was standing on the corner of the street at the time of incident. According to him, he examined Khaliq Shah on 30‑8‑1981 while P.W. Javed was examined on 31‑8‑1981 it was incorrect to suggest that P.W. Khaliq Shah was called at police station by him after two days of the incident and dagger was shown to him for identification. It was also incorrect that for ten days he continued to call P.W. Khaliq Shah at P.S. Korangi for identification. It is incorrect to suggest that he had obtained signatures of Khaliq Shah on blank papers. It was incorrect to suggest that clothes produced in Court were not the clothes of accused Yasin.
It has been contended by Mr. Mohammad Hayat Junejo, learned counsel for the appellant that the motive is false, the occular evidence is interested, contradictory and unreliable. The 4 of the P.Ws. namely Mohammad Nizamuddin, Mohammad Siraj, Mohammad Mumtaz and Shahabuddin were declared hostile, and cross‑examined by A.P.P., the remaining P.Ws. were examined by police after long delay, and therefore, even on this score their evidence has to be ruled out of consideration. He has further contended that the evidence of recovery was absurd, unnatural and unreliable. In the alternative it was contended that there was no intention to kill deceased Abdul Razak, the alleged motive is false. That the medical evidence does not show that any of the injury was individually or all collectively sufficient to cause death. Since the blows were preceded by abuses, exchange of hot words, and grappling, the case will fall under section 326, P.P.C. In support of his contention the learned counsel has relied upon 1986 P Cr. L J 583 and 1984 P Cr. L J 1982.
With regard to the Criminal Revision Application No. 104 of 1986 it was contended by Mr. Mohammad Hayat Junejo that looking to the circumstances of the case, as mentioned above, it is a case which will fall under section 326, P.P.C. and therefore, the revision application for enhancement of sentence has no merit.
With regard to Criminal Revision Application No. 25 of 1987 it was contended by Mr. Mohammad Hayat Junejo that the F.I.R., the evidence of complainant Yousuf and evidence of Javed who are real brothers of the deceased does not show that respondent/accused Nizamuddin alias Munna was present at the Wardat. Even P.W. Khaliq Shah had not stated in his 161, Cr.P.C. statement that respondent/accused Nizamuddin was present at the Wardat and his allegation of instigation is not supported by any other witness and, therefore, no reliance can be placed on his evidence in Court. He has further contended that in revision against acquittal the only order which can be passed by this Court will be retrial, and the retrial can be ordered only when there is some technical or legal ground and not otherwise.
Mr. Abdul Majeeb Pirzada, learned counsel appearing for the complainant in Criminal Revision Application No. 104 of 1986 has contended that the ocular evidence was independent and reliable. There was motive and recovery of blood‑stained clothes from appellant. It was case of brutal broad daylight murder, and in such circumstances, the appellant did not deserve any leniency, and normal sentence of death had to be awarded. In support of his contention, he has relied upon 1986 SCMR 1056, 1983 P Cr. L J 509, P L D 1974 SC 260 and P L D 1975 SC 227.
Mr. M.I. Memon, learned counsel appearing on behalf of the complainant in Criminal Revision Application No. 25 of 1987 has contended that there was ocular evidence against respondent/accused Nizamuddin, and he had a motive to get deceased Abdul Razak killed, but he had no reply to give regarding the legal position in such revisions against acquittal.
Mr. Zaheer Qureshi, learned counsel appearing for the State, supported the conviction of the appellant and has contended that P.Ws. were independent; they had no enmity with the appellant. That five of P.Ws. were examined on the same day and there was recovery. He has also supported criminal revision application filed for enhancement of sentence.
We have considered the contentions of the learned counsel appearing for the parties, and have also gone through the evidence.
So far the motive is concerned, there is a solitary word of complainant Mohammad Yousuf, that respondent/co‑accused Nizamuddin used to commit sodomy on small boys, on which deceased Abdul Razak used to reprimand the accused, therefore, he was annoyed with the deceased. That appellant Mohammad Yasin was paid servant of accused Nizamuddin and he killed the deceased at his instance. On this point complainant is not supported by any witness including his own brother Javed who has deposed, that, I do not remember as to why Yasin had killed my brother Abdul Razak'. Moreoever, the allegation was of serious nature and if it would have been so, then at least P.Ws. Ishaq and Mushtaq who had shops in the same area would have known it. The fact that appellant did not attack deceased immediately on seeing him and the attack was preceded by abuses, exchange of hot words, and grappling goes a long way to show that there was no motive, no premeditation, but it was the result of sudden flare up. Under the circumstances, we are of the considered view that there was no motive on the part of the appellant Yasin to kill deceased Abdul Razak.
So far the question of committing murder of deceased Abdul Razak by appellant Yasin is concerned, there is occular evidence of complainant Mohammad Yousuf, P.W. Javed, P.W. Khaliq Shah, P.W. Mohammad Ishaq, P.W. Mushtaq Ahmed, P.W. Shabrati and P.W. Mohammad Saleem. It is corroborated by recovery of blood‑stained clothes from the appellant, and the report of the chemical examiner is in positive. The evidence of these witnesses clearly show that it was appellant Yasin who caused injuries to deceased Abdul Razak due to which he‑died. There is no serious enmity alleged against the complainant and P.Ws. except that according to P.W. Javed he was slapped by appellant two days prior to the incident while he was sitting in the Park, the appellant threw flash light on him and when he objected he was slapped. The evidence of these witnesses has not been shaken in cross‑examination. Moreover, complainant Mohammad Yousuf and Javed are real brothers of the deceased, there was no reason for them to leave actual culprit and implicate an innocent man. From the above evidence it is proved beyond any doubt that it was appellant Yasin who caused dagger injuries to deceased Abdul Razak as a result of which he died.
So far the question of offence committed by the appellant is concerned, admittedly no direct enmity is alleged between the appellant and the deceased Abdul Razak. According to P.W. Khaliq Shah there was exchange of hot words between the appellant and the deceased, thereafter, both of them had grappled with each other, and it was thereafter that appellant Mohammad Yasin is said to have rushed to a place where his scooter was standing, brought dagger from the same and attacked deceased Abdul Razak. There is no other evidence from any witness to show as to how the fight started except the word of P.W. Javed who also does not state as to how and why appellant Mohammad Yasin started abusing his brother Abdul Razak. Under these circumstances, we are of the considered view that the attack on deceased was unpremeditated and was preceded by exchange of hot words and grappling. In Mohammad Shafiq v. The State PLD 1960 (W.P.) Lah. 339; it was held that grappling is a fight within the meaning of subsection (4) of section 300, P.P.C.'
In Mohammad Yousuf v. The State 1984 P Cr. L J 1982; it was held by a Division Bench of this Court that:‑
"the incident preceded by altercation between the deceased and accused in the morning in which deceased rebuked the accused inflicting injuries without premeditation and at spur of moment and the medical officer who carried out the post‑mortem did not state that the injuries caused to the deceased could have caused death in ordinary course of nature, it was held accused had no requisite intention to commit murder, conviction under section 302, P.P.C. was altered to one under section 304, Part II under the circumstances:"
In Emmanuel Bahadur Joseph v. Paul Jakson and another 1981 SCMR 663 it was held that:
"Section 302, P.P.C. will apply only if it is established beyond any doubt that accused struck blow with intent to kill the deceased. If in the circumstances it is more proper to impute to accused knowledge rather than intention, the offence would fall under section 304 Part II and not under section 302, P.P.C. or 304, P.P.C.
In this case, the case of Ahmed and three others v. The State P L D 1971 SC 720 was relied upon.
Mr. A. Majeeb Pirzada appearing for the complainant in Criminal Revision Application No. 104 of 1986 (which is for enhancement of sentence) has contended that this is a case of murder and normal penalty of death should have been awarded. We have considered the contentions of the learned counsel. We have also considered the cases:‑
(1) Abdul Sattar v. Mohammad Anwar P L D 1974 SC 266.
(2) Abdul Rashid v. Umed Ali and 2 others P L D 1975 SC 227.
(3) Jetharam v. Weram and others 1986 S C M R 1056.
(4) Karim Bux v. The State 1983 P Cr. L J 509.
relied upon by Mr. Abdul Majeeb Pirzada, learned counsel for the complainant. There is no cavil with the proposition as held by their Lordships in the above decisions. It is settled principle of Law that when there are no extenuating circumstances nor the case is covered by any of the exception to section 300, P.P.C. the normal penalty in case of murder is death. In cases Abdul Sattar v. Mohammad Anwar and Abdul Rashid v. Umed Ali and 2 others, appeals against acquittal were filed in the Supreme Court, and the Hon'ble Supreme Court was pleased to set aside acquittal of the accused, and they were awarded death sentence as there were no mitigating or extenuating circumstances. While in case Jetharam v. Weram and others, the accused were awarded lesser penalty of imprisonment for life by the trial Court and the complainant filed appeal in which it was held by their Lordships of the Supreme Court that:‑
"There were no mitigating circumstances to uphold lesser penalties, the sentence of life imprisonment was altered into sentence of death:"
In case Karim Bux v. The State, the appellant Karim Bux was awarded life imprisonment by the trial Court. He filed appeal against his conviction, while the complainant filed revision application for enhancement of sentence. The appeal was dismissed, revision was allowed and sentence was enhanced, as there were no mitigating or extenuating circumstances in the case. The above decisions are distinguishable, and with utmost respect are not applicable to the facts of the present case.
In the present case, there are number of circumstances which have been already mentioned while considering the question of nature of offence due to which the above decisions are not applicable to the facts of the present case, and therefore, the Revision Application No. 104 of 1986 (for enhancement of sentence) has no merit and is accordingly dismissed.
As regard Criminal Revision Application No. 25 of 1987 (which is against acquittal of accused Nizamuddin) was concerned, the F.I.R. does not show that accused Nizamuddin alias Munna was present at the Wardat. In the F.I.R. the only allegation against him is that accused Yasin is employed with Munna, the scrap dealer, who commits sodomy on small children. Whereupon, deceased Abdul Razak had remonstrated him several times as a result of which Munna had become inimical to Abdul Razak. Today, at the instance of Munna, Mohammad Yasin gave five dagger blows to Abdul Razzak. Even in the Court, the complainant does not say that accused Nizamuddin alias Munna was present at the Wardat at the time of incident.
P.W. 2 Javed who is real brother of deceased Abdul Razak has deposed in the Court that Nizamuddin is also present in Court. I had not seen him at the place of incident'.
P.W.4 Mohammad Ishaq who is also an eye‑witness has stated that I had not seen accused Nizamuddin there'.
P.W. 7 Mohammad Saleem and P.W. 8 Shabrati, who are also eye witnesses, have not implicated him in their evidence. The other four witnesses namely Mohammad Nizamuddin, Mohammad Siraj, Mumtaz and Shahabuddin, who were declared hostile, have also not implicated him.
The only witnesses who have implicated accused Nizamuddin are Khaliq Shah and Mushtaq Ahmed. According to Khaliq Shah accused Nizamuddin alias Munna was standing on the corner of the street and told accused Mohammad Yasin while he was running here and there, that he should go towards his scooter and bring Khan jar. But this was not his case in 161, Cr.P.C. statement and, therefore, he was confronted with his police statement and the contradiction has been proved through Investigating Officer, Abdul Hafeez. The evidence of P.W. Mushtaq Ahmed is that he saw accused Yasin and Nizamuddin running away at his shop here and there'. He does not say that he instigated accused Mohammad Yasin, nor he says that he was standing at the corner of the street.
In view of the definite evidence of complainant, Yousuf, P.W. Javed, Mohammad Ishaq, Mohammad Saleem and four other witnesses, the evidence of P.W. Khaliq Shah (which was an improvement) and Mushtaq Ahmed, which is contradictory to the evidence of Khaliq Shah cannot be relied upon. Moreover, this is a revision against acquittal in which even if this Court agrees with the contentions of the learned counsel for the applicant, then too, the order which this Court can pass will be retrial, which can only be passed if there is some technical or legal ground, which is not there.
In Mrs. Ann Colemn v. Arif A. Lukmani and another P L D 1964 Kar. 81; it was held by this Court that:‑
"In a revision against acquittal, if the acquittal has to be set aside the result will be a retrial. The view of the Court consistently has been that the order of retrial on revision against acquittal should not invariably be made unless it is made on technical ground, as otherwise such an order would tantamount to a direction to the lower Court to convict the accused:"
In view of the above discussion we are of the considered view that the Revision Application No. 25 of 1987 does not have any merit, and the same is accordingly dismissed.
In the present case it was chance meeting between the parties and the appellant could not anticipate that the deceased will be available at the Pan Shop, there was no motive to kill the deceased, there was no preplanning as there was no reason for the accused to attack deceased, but it was preceded by exchange of hot words and grappling and none of the witness have given the true facts as to how the incident started. Under the circumstances, it appears to be a case of sudden fight, and therefore, we are of the considered view that the appellant was liable under section 304, Part II, P.P.C. and therefore, his conviction is altered from section 302, P.P.C. to section 304 Part II, P.P.C. and substitute the sentence from life imprisonment to R.I. for seven years. The sentence of fine of Rs.10,000 (Rupees ten thousand) only is maintained, and in default of payment of fine the appellant to suffer R.I. for six months. If the fine is realised, half of it shall be paid as compensation under section 544‑A, Cr.P.C. to the heirs of the deceased. The appellant is allowed benefit of section 382‑B, Cr.P.C. also.
The Criminal Revision Application Nos. 104 of 1986 and 25 of 1987 are hereby dismissed.
K.B.A/M‑210/K Order accordingly.
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