1986 PLP 1169 (SCMR)

MIAN BURHANUDDIN KHAN, J.‑‑The accused /appellant was tried by a learned Single Judge of the Baluchistan High Court, on the original side, under section 302, P.P.C. for the murder of Sarfaraz Ali by stabbing him on the junction of Masjid Road and Prince Road, Quetta on 30‑4‑1974 at 9‑30 a.m., and was convicted and sentenced to life imprisonment per judgment, dated 22‑10‑1978.

2. The prosecution version is that on the fateful day at 9‑30 a.m. the reported Mushtaq Ahmad was standing in the Verandah of his hotel when he saw the accused /appellant giving knife blows to the deceased Sarfaraz Ali; that he alongwith Abdul Aziz P.W. 3 (hostile) reached the spot; caught hold of the accused /appellant; relieved him of the knife. The deceased, who was then in an injured condition, was put in a Rikshawand sent to the Civil Hospital, whereas the accused/ appellant was taken to the police station by Mushtaq Ahmad who lodged the report and handed over the weapon of offence which was taken into possession by the Investigating Officer Firdos Khan S.I. who took it into possession in the presence of witnesses.

3. Sarfaraz Ali died in the hospital and Dr. Mian Ajmal Latif performed the post‑mortem examination on the dead body on 3‑5‑1978 and he found the following injuries, caused by sharp‑cutting weapon: (i) Operation wound 6" in length in left para umblical region. (ii) Stab wound in left lumber region 3" in length. (iii) Wound outerside of left shoulder 1/2" in length. (iv) Incised wound on the back of right eye 3" in length. On the internal examination of the abdomen the doctor found that the descending colon was gangrenous. In the opinion of the doctor the cause of death of the deceased was mesenteric vascular thrombosis leading to gengrine of colon and the injuries were found to be sufficient to cause death, in the ordinary course of nature.

4. Mushtaq Ahmad complainant appeared as P.W. 1 and gave the ocular account of the occurrence as stated earlier. He was cross‑examined at length but nothing came out to show animosity with the accused/ appellant, though his personal character was assailed by the defence stating that he was running a 'Charas' den, and was challaned by the police on numerous occasions. Be that as it may, the witness's presence on the spot cannot be questioned as his hotel is located just opposite to the place of occurrence and his presence is established by the fact also that he apprehended the accused/ appellant and took him to the police station alongwith the weapon of offence. Therefore, we hold that whatever may be the attributes of this witness, the intrinsic value of his statement is to be tested. We find his statement to be unassailable.

5. Abdul Aziz Shah appeared as P.W. 3 but his conduct showed that he was won over by the defence and, therefore, his statement is kept out of consideration.

6. Firdos Khan S.I. P.W. 4 recorded the F.I.R. lodged by Mushtaq Ahmad and took into possession the weapon of offence and prepared its memo Exh. P.B. and drew also a sketch on the back of this memo. The knife Exh. P/2 was sent to the Chemical Examiner. Blood‑stained clothes of the accused were also sent to the Chemical Examiner.

7. Accused/appellant, when examined, denied the charge and stated that prior to the day of occurrence he had gone to the shop of Mushtaq Ahmad P.W. 1 to collect money for the work done by him as a painter for Mushtaq Ahmad. He turned him out of his shop and told him that by demanding the money from him in the presence of some persons he li:jd gravely insulted him and that he would teach him a lesson by involving him in some case; that 4/5 months after that, he was sitting on the day of occurrence, on the Thara of a shop in front of Cafe Zam Zam belonging to Mushtaq; that a quarrel took place and the actual assailant made good his escape and Mushtaq got him involved in this case.

8. We have heard the learned counsel for the appellant. He has attacked the statement of Mushtaq stating that he had been involved in many cases, and was stock witness of the police; that his personal character is such that his statement cannot be relied upon safely. As already observed, this would not militate against the statement of Mushtaq and as such we think that the charge has been fully brought home to the accused/ appellant. We find no merit in this appeal. However, benefit of section 382‑B, Cr.P.C. is extended to the accused/ appellant. With this modification, the appeal is dismissed. M. I. Appeal dismissed.