P L D 1976 Karachi 1007 (PLP)

AGHA ALI HYDER, J.-The appellant was convicted by the learned Additional Sessions Judge. Karachi, for an offence under section 302, P. P. C. and sentenced to suffer life imprisonment with a fine of Rs. 10,000 or, in default, to undergo further R. I. for three years. He has come in appeal.

2. The prosecution story, in brief, is that Riazul Hassan alias Kallu, and Zafar, the appellant, were residents of the same locality, namely. Goharabad, Karachi. It is alleged that Zafar used to bring women of easy virtue to the area, and the deceased used to object to the same. This was not to the liking of Zafar. The matters came to a headway on the night of 4th September 197 3, when, at about 9-30 p. m , the appellant hacked him to death. The incident, which took place rear about Ramzan Hotel at a distance of about 100 feet. from the house of Mst. Zahida, the sister of the deceased, was witnessed among others by her and her husband Sakbawat. Riazut Hassan was immediately taken to the Police Station Goharabad, where Sakhawat lodged the First Information Report at about 10-45 p. m., and Riazul Hassan was rushed to the hospital He, however died on the way. The S. H. O., Zafar lqbal, after recording the First Information Report, had proceeded to the `Wardat'. He secured the blood stained earth, and some other articles, for which a 'Mashirnama' was prepared. Thereafter, he made enquiries from a number of witnesses and searched for the accused. It is stated that he came to be arrested at about 5-00 a. m. in front of Fazal Textile Mills. The accused had a blood-stained knife and his clothes were also smeared with blood The S. H. O. secured the same and prepared a `Mashirnama'. Thereafter, the S. H. O. had proceeded to the hospital, and found the dead body of Riazul Hassan lying in the mortuary. The inquest report was prepared. The case, in due course, came to be challaned.

3. The appellant in his statement at the Court of Enquiry as well as at the trial denied the various allegations made against him. His version was that he had been run down in the case by the Police. He, however, maintained that he bad no enmity with any of the prosecution witnesses.

4. Apart from the oral testimony in the case, there is also the evidence of Dr. M. S. A. Farooqi. who had held the autopsy, finding the following injuries on the person of the deceased: (1) Incised wound oblique in direction left side front of chest 1' below left nipple measuring 1" x " x cavity deep. (2) Incised wound right side chest 2" from the medinal line 1" x " x cavity deep. (3) Incised wound below injury No. 2, " x " skin deep. (4) Incised wound " above injury No. 2 measuring " x ' skin deep. (5) Incised wound left side chest in the posterior axillary line " x " x muscle deep. (6) Incised wound inner side left upper arm middle part 1" x " x muscle deep. (7) Incised wound outer side middle upper arm 1" x " x muscle deep. (8) Incised wound back of left elbow 2' x 1" muscle deep. (9) Incised wound transverse 3' x " skin deep lower back part of left side chest below scapular angle left. (10) Incised wound 1' x " x skin deep above and middle of right collar bone. According to the Medical Officer, the injuries, which were ante-mortem in nature, had been caused by a sharp-edged weapon, like a knife, and death had occurred due to haemorrhage and shock as a result of the injuries referred to above.

5. The evidence against the appellant consists of ocular testimony as furni shed by Sakhawat, Shafiq Ahmad, Mst. Zahida. Nawab Din and 1lyas, which has been corroborated by Mahmood-ul-Hassan, the father of the deceased. Mst. Zahida has also furnished tire motive which led to the murder. Then, there is the evidence of the recovery of a knife and the seizure of the blood stained clothes of the appellant at the time of his arrest, which were sent to the Chemical Examiner and had been found by the latter to be stained with human blood. Sakhawat is the brother-in-law of the deceased. He had stated that, on the night of the incident, he was at his house, when he had heard a commotion. His wife, Mst. Zahida, had gone out of the house, when the commotion was raised. She had raised cries, and he had followed her. When he reached in front of Lal Hotel (which is also known as Ramzan Hotel), be had found the appellant giving knife blows to Riazul Hassan. However, when he reached near, the appellant took to his heels, and Riazul Hassan collapsed on the ground, profusely bleeding. He had given a chase to the appellant along with P. W. Ilyas, bit in vain. He mentions that, at the time of the incident, he had seen Nawab Din, Shafiq Abmad, Ilyas and one Agha Gul Hassan also standing there. According to him, the hotel, where the incident had taken place, was 70, or, 80 paces from his house. Nothing worthwhile could be elicited from him in the cross-examination. He had, however, stated that, when he bad taken Riazul Hassan to the Police station, his First Information Report had not been recorded, but he had been asked by the S. H. O. to take Riazul Hassan to the hospital: That is not the version of the S H. O. It is quite possible that the S. H. O. might have thought that any delay in medical aid, would hasten the end of Riazul Hassan, and he would not be wrong, as the record clearly shows that Riazul Hassan died even before he reached the hospital. Anyway, it is nobody's case that any step had been taken by the Police Officer to enter upon the investigation. This being the position, even the First Information Report would not be shut out.

6. The evidence of Mst. Zabida is wholly consistent with the version of Sakhawat. According to her, the incident had taken place at a distance of 20 to 30 paces from the house. Looking to the nature of injuries, and the statement of Ilyas, according to whops, the altercation had continued on for about JO to 15 minutes, the going out of Mst. Zahida from the house to see as to what was happening would not be unnatural. Certain suggestions were made to her in regard to her statement to the Police. That came to be denied by her, and no such questions were put to the Investigating Officer. P. W. Shafiq Ahmad is a neighbour, and states to have been shopping, when the outcries had been raised. He states to have run in that direction and seen Riazul Hassan lying. He stated that Nawab Din, Mst. Zahida, Sakhawat, Ilyas and some other people were present there, but he did not see the appellant. The hotel, before which the incident bad taken place, according to him. belongs to his bother, Ramzan. He was cross-examined by the learned A. P. P. and confronted with certain passages of his statement at the Court of Enquiry, wherein he had stated that he had seen the appellant dealing knife blows to Riazul Hassan who had, later, made good his escape. These passages were transferred on the record under section 288 of, the Code of Criminal Procedure, though it has not been specifically so mentioned by the learned Additional Sessions Judge. Nawab Din lives at a distance of 20 to 30 paces from the 'wardat'. He states to have gone out of his house on the cries of Mst. Zabida to the effect that the appellant bad murdered her brother Riazul Hassan. He, however, stopped short by saying that he bad seen the appellant running away, but he had not seen anything in his hand. He also mentions the presence of Ilyas among those who were sitting by the side of Riazul Hassan. He had followed the appellant along with Sakhawat, but the pursuit was given up, as they had lost sight of him. He was also cross-examined by the learned A. P. P. and confronted with a portion of the statement before the Court of Enquiry, wherein he had stated that he had seen the appellant running away with a knife in his hand. All that could be bad from him in cross-examination was that the night was dark, and that he had seen the appellant running at a distance of about 150 paces from him. Ilyas lives in the neighbourhood. and knew the parties. He had seen the appellant grappling with Riazul Hassan, and, when Riazul Hassan had fallen down on the ground, the appellant had caused him a number of injuries with a knife. He did not say anything in regard to the motive, and he was put a question by way of cross-examination by the A. P. P., but the attempt was not called for. Be that as it may, there is nothing to show that there are any strains or any discrepancy in his statement. Even the appellant in his statement at the trial admitted that there was no unpleasantness between him and any of the witnesses. The evidence of Sakhawat, Mist. Zahida arid Ilyas, who are natural witnesses, being so close to the 'wardat' is not open, to any exception. Nawab Din also admitted to have seen the appellant running away, and Mst. Zabida was heard crying that her brother had been murdered by the appellant. Both he and Shafiq Ahmad make out the presence of Mst. Zahida. Shakhawat and Ilyas at the time of the incident. It is true that they have spoken with two voices in regard to the blows given by the appellant, and therefore this part of their evidence has to be examined with care and caution, but it appears that the appellant used to take his meals at the hotc1 of Shafiq's brother, and he did his best to introduce confusion. Nawab Din's somersault was not total, as would have been seen earlier. The trial Court preferred their earlier versions, and in the light of the attending circumstances, very properly, but, even otherwise too, what they had chosen to say lends full support to the version of Sakhawat, Mst. Zahida and Ilyas, the latter being a totally disinterested witness. The incident had taken place at about 9-30 p. m. in front of a hotel and in a populated area. The record shows that there is also an electric pole at a distance of 54 feet from the 'wardat' ; and the question of any mistaken identity would not arise. The report was lodged promptly, naming the appellant as the assailant. The names of the witnesses were mentioned. It is also the case of the appellant that none of the prosecution witnesses was nursing any grudge against him. As observed in Niaz v. The State (PLD1960SC387), "substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitution has to lay the foundation for it. There is nothing descernable that way. I am, therefore, of the opinion that it is safe to rely on the testimony of prosecution witnesses that Riazul Hassan met his death as a result of a dastardly attack by the appellant.

7. The motive, as referred to above, was mentioned in the First Information Report, which was lodged by Sakhawat but he did not mention in his deposition, and the learned A. P. P. was caught napping. It is a trite proposition of law that the contents of the First Information Report do not constitute substantive evidence. However, the same had been ,mentioned by Mst. Zahida, and she was not challenged on that score. I am, therefore, of the opinion that the appellant struck Riazul Hassan dead, because he did not approve of the remonstrances being made by the latter.

8. Lastly, we have got the circumstantial evidence in regard to the recovery of the blood-stained knife from the appellant, and the seizure of his blood-stained clothes. The two mashirs, namely, Shafiq Ahmad and Nawab Din, have given a clear go by to the prosecution case, and they have stated that neither the appellant was arrested in their presence nor they were aware of the recovery of these incriminating articles. As referred to earlier, there was some occasion for Shafiq Ahmad to soften down. However, be had admitted that the 'mashirnama' had been correctly prepared and bore his signature. He also admitted that the said 'mashirnama' had been signed by Sakhawat.' Nawab Din further admitted that the Police had secured the blood-stained clothes of the appellant in his presence, and also the fact that the 'mashirnama' was correctly recorded and bore his signature. They are supported by the contents of the 'mastdrnama', and they had struck to it, when they were examined at the Court of Enquiry. They had, however, resiled later on, when they were examined at the trial. There is also the testimony of S. H. O. Zafar Iqbal, and also Sakhawat, who had also signed the 'mashirnama', and has supported the same here. I am, therefore, of the opinion that it is safe to rely on their earlier version. According to the Chemical Examiner, these articles were rained with human blood. It has been held in the case of Muhammad Khan v. Dost Muhammad and others (PLD1975SC607), the relevant portion bring page 621, that even the statement of the Sub -Inspector read with the recovery memoranda would satisfy the requirements .of section 103 of the Code of Criminal Procedure.

9. I am, therefore, of the opinion that the case against the appellant has been satisfactorily established. He has been awarded the lesser sentence under the law. However, the fine of Rs. 10,000 with such a sentence is not called for. The fine, therefore, is reduced to Rs. 1,0 0, In case of default, he will undergo further R. I. for three months. With this modification, the appeal is dismissed. S. Q. Appeal dismissed.