1995 PLP 1126 (MLD)

Muhammad Nawaz Khan Barakzai for Petitioner (in Criminal Revision No. 74 of 1994). M.S. Rakhshani and Ch. Ejaz Yousaf, Addl. A. G. for Respondents (in Criminal Revision No. 74 of 1994). Date of hearing: 21st November, 1994. JAVED IQBAL, J.‑‑‑This is a Criminal Appeal preferred on behalf of Munir Ahmed who was tried by learned Additional Sessions Judge‑II, Quetta, under sections 302/307 and 34, P.P.C. for the alleged murder of one Abdul Kareem and convicted under section 302, P.P.C. to undergo life imprisonment and a fine of Rs. 15,000 and in default whereof to further undergo imprisonment for six months.

2. Briefly stated the facts of the case are that on 4‑12‑1988 at about 12‑05 p.m. Abdul Qadeer Khan, who is complainant in this case got lodged a report at Police Station Sariab, Quetta, pointing therein that his son Abdul Khaliq visited the shop of Ashraf Halwai, from where they used to purchase milk and a dispute occurred, however, Abdul Khaliq came back to his house and informed about the alleged dispute. On hearing that Abdul Qadeer alongwith his son Abdul Kareem when passing in front of the shop of Ashraf 2/3 persons were standing there, while Ashraf himself was not available, the complainant Abdul Qadeer asked Munir Ahmed, presuming that he was Ashraf and complained that why he had fought with his son Abdul Khaliq. Abdul Kareem, the other son of complainant also asked Munir Ahmed regarding the alleged occurrence, who replied that the same milk against which complaint was made, also sold to many other customers, but no complaint whatsoever was received. Munir Ahmed, however, told his companion that the complainant party doing `BADMASHI and; therefore, they should not be spared. On seeing that Munir Ahmed and his companions were ready to fight, the complainant told his son Abdul Kareem that there should be no fighting and they went away, but covered hardly a distance of 4/5 paces when Munir Ahmad inflicted a knife blow on the back of Abdul Kareem, who resultantly fell down on the ground and the complainant caught hold of Munir Ahmed in order to stop him from inflicting further blows of knife to Abdul Kareem and at the same time one companion of Munir Ahmed took out pistol from the holster of Abdul Kareem and made a fire with it and also extended threats to the complainant, but on seeing a few persons coming there. Munir Ahmed and his companions managed their escape from the spot and also took away the pistol. Abdul Kareem, who received back injury was got admitted in Hospital and subsequently removed to Karachi, where he succumbed to the injury and in consequence whereof a case under section 302/307/34, P.P.C. was registered and after completion of investigation the challan was submitted, trial concluded and conviction awarded as mentioned above, hence this appeal.

3. Charge was framed on 28‑4‑1991 by the learned Additional Sessions Judge‑II, Quetta, under section 302/307/34, P.P.C., to which the accused pleaded not guilty. It is to be noted that co‑accused Hussain Bakhsh was acquitted of the charge.

4. Prosecution in support of accusation produced Azizullah (P. W.1), who is an eye‑witness, but did not support the case and resultantly a request was made by the learned District Attorney to get him declared as hostile, which was turned down. Zahir Khan Kasi (P. W.2) the then Extra Assistant Commissioner‑I1 Magistrate First Class Quetta, conducted the identification parade of accused Hussain Bakhsh vide memo Exh. P/2‑A Abdul Khaliq (P. W.3) was injured in incident and is an eye‑witness of the alleged occurrence. Anwar Ali (P. W.4) is Police Constable and produced to establish the recovery of blood‑stained Banian Art. P/2. Shirt Art. P/3, Jacket' Art. P/4, Muffler Art. P/5, holster Art. P/6 and ten live cartridges Art. P/7, an empty cartridge .30 bore Art. P/9, taken into possession vide recovery memos. Exh. E/4‑A, Exh. P/4‑B Exh. P/4‑C and Exh. P/4‑D. Syed Amir (P. W.5) is Police Constable and witness of recovery memo Exh. P/5‑A pertaining to knife allegedly used in commission of offence and recovered at the pointation pf accused Munir Ahmed. Sher Dil (P. W.6) EA.C.II/M.F.C. Quetta, produced confessional statement got recorded by accused Munir Ahmed (Exh. P/6r‑B) and certificate appended with judicial confession which is Exh. P/6‑C. Dr. Muhammad Akbar (P. W.7) examined injured Abdul Khaliq (P. W.3) and Abdul Kareem (who subsequently succumbed to the injuries at Jinnah Hospital Karachi on 8‑1‑1991 as indicated in death certificate Exh. P/8‑A) and issued Medical Certificate Exh. P/7‑A regarding Abdul Khaliq (P. W.3) and Exh. P/7 B in respect of deceased Abdul Kareem, Dr. Muhammad Amin Mengal (P. W.8) Police Surgeon Civil Hospital Quetta, appeared in the witness‑b x and gave his opinion about the injury report (Exh. P/7‑A and Exh. P/7B) issued by Dr. Muhammad Akbar (P. W.7). Dr. Shahid Ahmed (P. W.) issued death certificate (Exh. P/8‑A) of deceased Abdul Kareem, who had examined the deceased at Jinnah Hospital, Karachi. Abdul Qadeer (P. W.1)) Sub‑Inspector Police, by whom the investigation was conducted and subsequently handed-over to Behram Khan S. I. (P. W.11) and final investigation in the case was conducted by Muhammad Jamil (P. W.12).

5. The statement of accused Munir Ahmed was also recorded under sections 342 and 340 (2), Cr.P.C. wherein plea of false implication at the behest of Sher Nawaz Sub‑Inspector Police in a concocted case w s advanced and defence witnesses were produced to substantiate the said plea

6. We have carefully examined the said main defence lea, that as Sher Nawaz S. I. was got evicted by following the legal process from his house, therefore, he nourished grudge and malice which resulted registration of a false case against him. In support of said plea accused Munir Ahmed produced Exh. D/1, which is an order of EA.C. III/M.F.C. whereby S.H.O. of Police Station Sariab was directed to handover possession of House No.? A.‑12 Sariab Colony Mills Quetta to the father of accused Munir Ahmed, but it is worthy to note that nowhere the name of Sher Nawaz S. I. has beech mentioned therein. Similarly Exh. D/2 has been examined, which is a judgment passed learned Additional Session Judge‑II, Quetta, whereby the accused was acquitted in a case registered under section 324/353, P.P.C., but same is silent regarding the role if any played by Sher Nawaz S.I.P. We have also//perused Exh. DP which is also a judgment whereby accused Munir Ahmed was acquitted from a case registered under section 13‑E of Arms Ordinance; 1965, which is also silent regarding the fact, whether as to any role was played by Sher Nawaz or the case was registered at his instance as such the abovementioned documentary evidence does no render any assistance to his case. The remaining evidence has been thrashed out by the learned trial Court and the conclusion arrived at, does not call for interference being free from any infirmity.

7. It is mainly contended by Mr. M.S. Rakhshani, Advocate, who appeared on bel~alf of accused Munir Ahmed that prosecution could not prove its case beyond the shadow of doubt as independent evidence was lacking to connect the accused with the commission of alleged murder. It is next contended that deposition of Abdul Khaliq being an interested witness and real brother of Abdul Kareem, cannot be taken into consideration and on the basis of remaining prosecution evidence, conviction cannot be sustained. It is further contended that the confessional statement being retracted, should have been ignored by the trial Court, as prosecution failed to adduce any evidence to collaborate it. He was also critical of the delay, which occurred in getting the confessional statement recorded. He also argued with vehemence that the allege inflicted injury was simple in nature as indicated in Medical Certificates.' I support of the said contention he further argued that the deceased left ivil Hospital Quetta, and no one knew what had happened during the intervening period of his leaving Civil Hospital Quetta and that of his death at Jinnah Hospital Karachi. He also took the plea of self‑defence by arguing that pistol was aimed at accused Munir Ahmed, who in order to save his life inflicted single knife blow, which caused a simple injury.

8. Chaudhry Ejaz Yousaf learned Additional Advocate‑General has supported the? impugned judgment and contended that prosecution has proved its case beyond the shadow of doubt. He also urged emphatically that retracted confession has rightly been taken into consideration, as conviction can be awarded once a confession is found true and voluntary. He also highlighted the motive due to which the alleged incident occurred. In his view ocular evidence duly supported by Medical evidence; confessional statement, recovery of crime weapon and motive were sufficient to prove the prosecution case.

9. We have carefully examined the respective contentions as adduced on behalf of the con t/appellant and for State in the light of relevant provisions of law, evidence which has come on record and the defence version. We have also minutely perused the depositions of all prosecuting witnesses as mentioned above in brief. We have carefully gone through the deposition of Abdul Khaliq (P. W.3) who is star witness in the case and deposed that on 4‑12‑1588 his younger sister went to bring milk from the shop of Ashraf, but the same was split aft making tea arid it was also happened on previous 2/3 occasions. He further deposed that he visited the shop of Ashraf and told him about the bad quality of milk, who replied that the same was being sold to other customers, and further said that ?shut up? and altercation started and at the same time hiss brother Abdul Kareem, who was taking bath in Hamam as he was to proceed to Karachi, came there on seeing it but people intervened and they went to their houses. He further deposed that he, thereafter, went to hotel of Hazoor Bakhsh, for having a cup of tea and when he came out from the hotel, he saw that his brother and father were standing at the shop of Ashraf Halwai, who was not present there, but three youngsters were standing at his shop and one of them went inside the shop and handed-over a knife to convict/appellant Munir Ahmed. He further deposed that his brother having a pistol attempted to take out the same but his father did not allow him and two persons, who were standing at the shop told his father to take Abdul Kareem and that there should be no fighting, in response whereof, his father and Abdul Kareem left the shop, but when they were proceeding back and covered a distance of 6/7 paces accused Munir Ahmed attacked his brother Abdul Kareem and inflicted knife blow on his back. He further deposed that his father caught hold of Munir Ahmed to stop him from further attack, and meanwhile one of the companions Munir Ahmed took out licensed pistol of his brother, who had fallen down on the ground, and also made a fire in the air. He further deposed that 7/8 people gathered there and accused Munir alongwith his companions made their escape good and also took the pistol. He further deposed that he took his brother to Hospital where he remained under treatment for 19 days, but Doctors of Civil Hospital declared him incurable and thereafter his brother was taken to Jinnah Hospital, Karachi, where he died after 15 days. He also mentioned death of his father, who expired after 8 months of the alleged occurrence. He was subjected to a lengthy cross‑examination, but nothing advantageous from defence point of view could be elicited.' While answering one of the question, he admitted that he had quarrelled with Ashraf about 9‑30 or 10‑00 a.m. He denied the suggestion in categorical term that his brother and father went there for fighting, but pointed out that they went there for having a compromise. He also denied the suggestion that his father and brother gave beating to Ashraf, as he was not present there. He identified accused Munir Ahmed, but could not identify two of his companions and said that they could be identified from their faces, but their names were not known to him. He candidly admitted that there was no previous enmity in between them. He also admitted that he had not heard any complaint regarding accused Munir Ahmed in Mohalla. He denied the suggestion that his brother tried to fire upon accused Munir, who ran away. He also mentioned that his brother had no dispute with anybody else. He also denied the suggestion that his brother did not succumb to the knife injury. He, however, could not mention certain details regarding their departure from Quetta and exact time of arrival at Karachi. A close scrutiny would reveal that his testimony could not be shattered and he stood firm to the test of cross ?examination. No confrontations worth the name, with that of his statement recorded under section 161, Cr P. C. were made. There is neither any dishonest exaggeration nor any deliberate improvement or omission. There is no previous enmity in between the parties and there is no reason for the substitution of the real culprits with that of the accused in absence of any ill‑will or previous enmity. The deposition of Abdul Khaliq (P.W.3) being confidence inspiring can be relied upon safely. We cannot agree with the main contention as adduced on behalf of accused by Mr. M.S. Rakhsham, Advocate, that being an `interested witness' his deposition should have been discarded. Let we make it clear that `interested witness' is one who has a motive to falsely implicate an accused or there is some previous enmity to rope m a person mala fidely. There is nothing of this sort in this case and being worthy of credence, the statement of Abdul Khaliq (P. W.3) cannot be discarded. We may point out that there is no rule of law that the statement of an interested witness cannot be taken into consideration without corroboration and uncorroborated version can be relied in context with other circumstances of a particular case. In this regard we are fortified by the following authorities:‑‑‑ (1) PLD 1962 SC 269. (2) PLD 1969 SC 488. (3) PLD 1960 SC 387. (4) PLD 1974 SC 37. (5) PLD 1975 SC 277 (6) 1985 SCMR 203.

10. We may make it further clear that corroboration may be afforded by anything in circumstances of .the case; which tend to satisfy the mind of the Court (1973 SCMR 83). Whatever may be the position, the fact still remains that the acid test of his veracity is inherent merit of his own statement and not the fact that he was related or not related to the deceased or inimical or not inimical to the accused as such facts alone would not be sufficient to discard his version. Even otherwise sufficient corroboratory material is available to support his version. The confessional statement (Exh. P/6‑B) of accused Munir Ahmed can be referred in this regard wherein he has confessed the guilt. No doubt that it is a retracted confession, but it can be relied upon being true and voluntary. The deposition of Sher Dil Magistrate First Class (P. W.6) deserves consideration being an independent and impartial witness having no concern with any of the parties. It seems a fallacious contention that retracted confession should always be discarded. Let we make it clear that the rule of presence usually observed with reference to retracted confession does not require that each and every circumstances mentioned in confession with regard to participation of accused in the alleged offence, must be separately and independently corroborated. In our view general corroboration is sufficient for the reasons that if the rule required that each and every circumstance mentioned in the confessional statement must be separately and independently corroborated then the rule would be meaningless inasmuch as independent evidence itself would be sufficient to award conviction and it would be unnecessary to call the confession in aid. Even otherwise the retraction of the confession is wholly immaterial once found that it was voluntary as well as, true, that being the case, there is no reason why this retracted confession should not be taken into consideration. In this regard reliance can be placed on the following authorities:‑‑‑ 1980 SCMR 937. 1969 SCMR

442. PLD 1951 Lah. 352 (D.B.).

11. The existence of motive for the accused to commit offence has been held to be a material corroboration of his retracted confession (Karam Ellahi v. Emperor 47, Cr. L J 712, 48 PLR 382). The motive is quite apparent which was dispute over the quality of milk occurred on the morning of fateful day. In so far as delay in recording the confession is concerned that cannot be considered fatal, when Court is satisfied that the confession is voluntary (1985 P Cr. L J 2375).

12. We have also focused our attention to the plea of self‑defence agitated for the first time while arguing this appeal before us. In our view, self‑defence to be an effective defence must be expressly pleaded and then supported by cogent evidence. We may mention here that it is to be shown distinctly that the alleged offence was committed while exercising right of self‑defence. It has come on record that when due to intervention of people the dispute was over, and deceased Abdul Kareem alongwith his father proceeded back and in that, process covered a distance of 6‑7 paces, when accused Munir Ahmed inflicted a knife blow at the back of deceased Abdul Kareem, meaning thereby that he was not at that time under threat of any instant danger, hence the plea of self-?defence agitated at this belated stage which otherwise seems to be devoid of f merits, cannot be considered. In this regard it is to be noted that the statement of Anwar Ali (P. W.4), went unchallenged regarding the recovery of various articles and Exh. P/4‑A is indicative of the fact that the blood‑stained Banian was having one cut on its back which makes it abundant clear that the blow of knife was inflicted at the back of the deceased while he was proceeding back.

13. We have also examined the main contention that the alleged injury was of a simple nature, hence conviction cannot be awarded under section 302, P.P.C. We cannot consider the said view because Dr. Shahid Ahmed (P. W.9) has removed all doubts in Medical Certificate, which is Exh. P/8‑A and wherein probable cause of death has been mentioned as "Cardialic failure, stab wound at back". He has further clarified the position during cross‑examination by denying the suggestion without any ambiguity that deceased was not suffering from some cardiac disease. We may point out that injury on the spinal card is always fatal irrespective of its nature, whether it is simple or grave because it is to be assessed on the basis of its after effects and condition of injured person. It is to be noted that paralysis is the immediate after effect of an injury caused at the spinal card, hence the benefit of nature of injury being simple at spinal card cannot be given to the convict/appellant.

14. We have thoroughly examined the contention that recovery of knife at belated stage does not render any help to the prosecution case. It transpires from the scrutiny of record that on the one hand recovery was effected after a considerable delay and on the other it was not sent to serologist, therefore, it cannot be said with certainty that said knife had been used in the incident. Even if the recovery is excluded, there is ample material on record to warrant the conviction, such as direct ocular evidence, supported by medical evidence, confessional statement, motive and factum of abscondence to avoid his arrest. There is nothing on record to show that deceased having attacked first, apparently appellant was responsible for precipitating the situation and giving the deceased a fatal blow, which as discussed above has been duly established. The possibility of deceased having used strong and objectionable language, however, could not be ruled out to which the accused might have acted violently and this would justify lessor penalty of life imprisonment. We, therefore, do not see any reasonable cause for enhancing the life imprisonment to that of death as prayed for by Mr. Muhammad Nawaz Barakzai, Advocate, on behalf of complainant. The conviction as awarded by the learned trial Court meets the ends of justice. The Revision Petition is accordingly dismissed.

15. In the light of what has been stated above, we do not find any merits in the appeal filed by convict/appellant, same is consequently dismissed. N.H.Q./525/Q ??????????????????????? ??????????????????????? ??????????? Appeal and revision dismissed.