1989 PLP 3736 (MLD)

6. On the basis of evidence produced by the prosecution the learned trial Judge feeling satisfied convicted the appellants and passed the above judgment which has been challenged in these appeals.

7. Mr. Muhammad Hayat Junejo, the learned counsel has appeared on behalf of the appellants and Mr. Hayat Qureshi for the State. I have gone through the evidence very minutely with the assistance of the learned counsel for the parties and perused the record. Learned counsel for the appellant while pressing the appeal has argued that appellant Muhammad Rashid alone has been assigned the active role of causing the fatal blow to the deceased. He has further contended that the prosecution witnesses are interested who have been set up by the complainant and according to him there is no independent witness of the locality to corroborate the evidence of eye-witnesses as such witnesses cannot be believed. Mr. Hayat Qureshi appearing for the State, while supporting the impugned judgment has contended that the eye-witnesses account given by the four witnesses who appear to be natural witnesses have fully supported the prosecution case and their evidence is sufficient to hold the appellants guilty of the offence with which they arc charged. He further contended that the recovery of blood-stained dagger from the appellant Muhammad Rashid lends support to the evidence of eye-witnesses and the appellants Abdul Karim and Shah Hussain have been assigned specific part of catching hold of deceased whereby facilitating Muhammad for causing blow to the deceased.

8. I have carefully considered the evidence on record and gone through the statements of the witnesses recorded in the trial. From the evaluation/assessment of the evidence I have reached the following conclusions.

9. For the eye-witnesses account of the incident the prosecution has examined following witnesses. P.W. Muhammad Israr who has deposed before the Court that appellant Muhammad Rashid, Abdul Karim alias Billah and Shah Hussain alias Pappu were known to him. According to him he did not know name of appellant Abdul Karim at the time of incident but he knew him by face as he resided in his Mohallah. According to him, on 12-7-1985, at about 11.00 or 11.30 night he was with P.W. Muhammad Abid Zaidi and his brother Hashim, P.W. Arshad and P.W. Shaukat were purchasing Pan from a Thela of Pan Bidi when appellant Rashid came there with his two companions and gave a call to his brother and took him at some distance and asked his companions to catch hold of the deceased and that he should not be left alive. Appellant Rashid attacked the deceased with the knife which hit him on the left side of the chest under the place of heart while his two companions caught hold of the deceased. On receiving injuries deceased Hashim fell down and the appellants left the place together. According to him he took up .his brother and removed him in a taxi to Abbasi Shaheed Hospital in company of Arshad and got him admitted in the hospital whereafter short while a police officer came and made enquiries from him to whom he narrated the incident which was reduced into writing and he put, his signature. The statement made by him has been produced as Ex.P/1 which was incorporated subsequently as FIR. In his deposition he disclosed that 2-3 days prior to the incident the deceased had informed him that there was exchange of hot words with appellant Rashid at Liaquatabad hence this incident occurred which fact was also disclosed by him in his statement. He confirmed with regard to the showing of place of incident shown to the police officer who had prepared the memo. At about 5.00 his brother expired in the hospital and police prepared Mashirnamas of injuries on the dead body, inquest report etc. in his presence and after the post-mortem he received the dead body under a receipt produced by him as Ex.P/3. He also admitted that on the receipt of information police took him on 13-7-1985 to the house of one Rafiuddin at Gujar Nullah and arrested the three appellants from there in presence of P.Ws. Arshad and Akhtar. He further testified that on personal search from the possession of appellant Rashid one double-edged dagger which was blood stained was recovered from his possession from the fold of his shalwar and from the person of Abdul Karim one knife was recovered from the fold of shalwar. According to him 6/7 days after the arrest an identification test was held in the City Courts before the Magistrate through him, Abid, Shaukat and Arshad. In his cross-examination he stated that the tea cabin, ice shop and other shops near the place of occurrence were closed at that time. He also confirmed that the police was called by a doctor. He -denied the suggestion that P.W. Abid and Arshad were his friends who according to him were his neighbours. He has frankly stated that he did not lodge report regarding exchange of hot words between Muhammad Arshad and the deceased nor he -took any action as he had taken it lightly. He denied the suggestion that he had not seen the incident or that he was giving evidence due to enmity. He did not deny his friendship with Shaukat and Abid. However, he denied the suggestion that they have been set up by him. He also admitted that he did not disclose the names of Abdul Karim and Shah Hussain in the FIR as at that time he did not know their names. P.W. Arshad in his statement stated that at the time of incident he did not know the accused persons. He stated that he and Shaukat had come from Zainab Square to Liaquatabad where he met the maternal-cousin of P.W. Shaukat and while going back near Imam Bargah deceased met them and offered them Pan. Deceased Hashim while he was purchasing Pan the present appellant came there and appellant Rashid gave call to the deceased who, went towards him. He took him to the distance of 8 paces and told his two friends who were with him to catch hold of the deceased and should not be spared, upon which Abdul Karim alias Billa and Shah Hussain alias Pappu caught hold of the deceased while appellant Rashid caused blow on the left side of the chest to the deceased. After stabbing deceased all three accused ran away. Deceased fell down. In the meanwhile P.W. Muhammad Israr and P.W. Muhammad Abid Zaidi who were standing nearby arrived. He and Israr hired a taxi and removed the deceased to the Abbasi Shaheed Hospital and got him admitted after a shortwhile police came there. He did not remember whether a statement was recorded or not. In the morning when he visited hospital where he came to know that Hashim had succumbed to the injuries and after post-mortem his body was delivered. According to him on 13-7-1.985 S. I. Noor Elahi recorded their statement and took them with himself to arrest the accused person. They went to the house of accused Rashid. All the three appellants were present in the house of Rafiuddin. They were arrested, from the personal search of Rashid a blood?stained dagger was recovered from the fold of his shalwar and from Abdul Karim a knife. was recovered. The dagger was sealed, a mashirnama, Ex.P/24, was prepared which was also signed by him. In his cross-examination he admitted that from the place of incident Zeenat Square was about 3 furlongs where he was living. He admitted his friendship with the deceased and the complainant. According to him, complainant Muhammad Israr, was at a distance of 20-30 paces from the place of occurrence and he was available at 7 or 8 paces. He has also given admission that Panwala who had. also seen the occurrence was an old man and had expired. According to him, the shops around were closed at that time. He denied the suggestion that 60-70 persons had collected at the time of incident. He denied the suggestion that he was not present at the place of incident or that he did not see anything being recovered from the accused persons. He also denied giving evidence because of friendship with the complainant. He was examined under section 164 Cr.P.C. and has produced the same. In the cross?examination his identity was challenged and it was suggested to him that he had two identity cards which suggestion was denied by him and he stated that he does not have even passport. It appears when he was examined the knife secured from Abdul Karim was not produced in Court.

10. P. W. Muhammad Abid Zaidi has named all the three appellants in his statement on oath before the Court and stated that he knew them. According to him, on 12-7-1985 at about 11.00 or 11.15 p.m. he was standing with Israr near a shop in front of Imam Bargah and while they were talking deceased Hashim, Shoukat were purchasing pan at the shop of Panwala with Abdul Karim alias Billa, Shah Hussar alias Pappu and Rashid came. Rashid called deceased, took him at 7-8 paces and asked his companions that they should catch hold of the deceased upon which they caught hold of the deceased while Rashid accused stabbed the deceased which hit on the chest under the heart area as a result of which he fell down. Accused then went away. Israr and Arshad removed the deceased in a taxi to Abbasi Shaheed Hospital and Hashim injured expired. on 13?7-1985 and they were called at the police station in the evening and their statements were separately recorded. According to him, all shops and hotels were closed except pan bidiwala thela. He denied the suggestion that 30-40 persons had collected. He also denied the suggestion that he was friendly terms with the deceased. According to him, like accused, deceased was his neighbour. He admitted that the incident was witnessed by Muhammad Ahmad Panwala. He denied the suggestion that he was deposing at the instance of complainant Israr. According to him, the alleged incident happened within one or one and a half minutes and they did not chase the accused persons or raised any cry. He did not go to the police station. He denied the suggestion that accused persons were not know0n to him previously or that he has implicated them at the instance of complainant Israr, no enmity is alleged with the witness by defence.

11. Shaukat, P.W.4, has stated before the trial Court that he knew appellant Rashid since prior to the incident but he did not know the remaining accused Abdul Karim alias Billa and Shah Hussain alias Pappu. As regards the actual occurrence he has given the same version as deposed to by complainant Israr, P.W. Arshad and Muhammad Abid Zaidi admitting their presence at vardat. About death of Hashim it was stated he came to know on the following day and in the evening his statement was recorded by the police. Also his statement under section 164 Cr.P.C. was recorded which he produced as Ex.P/7. According to this witness 10-15 days after the incident identification test was held in the City Court premises through him, P.W Arshad, Israr and Abid. He denied the suggestion that he was on friendly terms with the complainant Muhammad - Israr but he admitted that elder brother of Israr was his friend whereas deceased was not his friend. He also denied the suggestion that the owner of the cassette shop by name Iqbal was present but according to him shop was closed at that time. He also denied that they were called to the police station for recording their statements the accused were present in the room of the SHO. So also he denied the suggestion that he did not see incident. According to this witness also the incident occurred within minutes and he admitted that his house was four furlongs from the place of occurrence. He was examined under section 164 Cr.P.C. on 27-7-1985 and he gave admission that on the same day identification test was held.

12. It is the case of all the P.Ws examined as eye-witnesses, namely, complainant Muhammad Israr, Arshad, Muhammad Abid Zaidi and Shaukat Ali that while they were standing at the pan bidi thela the appellants ,appeared there. Appellant Rashid gave call to the deceased and asked the co-appellants to catch hold of the deceased while appellants Abdul Karim and Shah Hussain had caught hold of the deceased who should not be left alive and Rashid immediately inflicted dagger blow on the chest of the deceased while appellant Abdul Karim and Shah Hussain had caught hold of him at the instance of Rashid appellant. No enmity with any of the P.Ws. is alleged nor suggested. On the careful consideration and assessment of their statements I feel satisfied that the evidence of eye-witnesses appears to me natural. Their evidence is unambiguous and reliable. Before the trial Court the defence has not succeeded to point out on record any enmity nor even suggested which could be the reason for P.Ws to falsely implicate the appellants. Mr. Muhammad Hayat Junejo, learned counsel for the appellants, has argued that there can be mistaken identity as there was no proper arrangement of light at the place of occurrence. He also suggested that the learned trial Judge has not relied upon the evidence of identification, hence it is argued that implicate reliance on the witnesses cannot be placed and they should not be believed. I do not find much force in the argument and in the peculiar facts and circumstances of the case I do not find justification in this criticism particularly when all the eye-witnesses have justified and given proper reason for their presence at the place of occurrence. The eye-witnesses have justified their presence to be present at the place of occurrence and from the evidence on record their presence at the vardat has not been seriously challenged by the defence. The only suggestion made in the cross-examination of the witnesses is in respect of distance from where P.Ws saw the occurrence. Some of the discrepancies exiling in the evidence appear to be natural due to the lapse of time between the incident and examination of the witnesses in the trial Court.

13. On the factum of death apart from the ocular evidence prosecution has examined Dr. Munawar Abbas, P.W.5, who in his capacity as Medico-legal Officer produced certificate and has deposed that on 12-7-1985 he was MLO at Abbasi Shaheed Hospital when on that day at about 11.13 the injured Mohammad Hashim son of Muhammad Ishaq was brought and he examined him and referred for admission to the RMO Surgical Ward. He also confirmed that he had given the information to the Gulbahar Police Station. According to Dr. Munawar Abbas on the person of injured he had found the following injury: "An incised wound 1-1/2" x 1/2" deep to chest cavity at the left male aspect of the main chest." According to Doctor injured expired on 13-7-1985 at 5.10 a.m. About the death he had verified the case sheet and death certificate attached thereto given by RMO Surgical Unit. He further stated that on the same day i.e. 13-7-1985 ASI Gulbahar Police Station made enquiry through a letter asking for the cause of death which he had given that cause of death was due to stab wound on the chest and on the lung caused by sharp-edged weapon such as chhuri, knife or dagger. The certificate produced by him as Ex.P/8 is on record. An endorsement made by him on the letter of ASI giving out the- cause of death is produced as Ex.P/9.

14. It has been urged by the learned counsel that only one blow was caused and there was no intention to cause death and according to the learned counsel 'for the appellant the incident was a sudden affair as such he contended that offence would not fall under section 302, P.P.C. and it is an offence which would fall under section 304, Part I1 and the learned counsel pleaded for the reduction of sentence. In support of his contention the learned counsel cited following decisions. Firstly, case of Mahiwal v. The State reported in 1975 P.Cr.L.J. 1121 and the case of Hingle alias Ali Nawaz v. The State reported in 1980 P.Cr.L.J. 1275. 1 have gone through the above-', referred two decisions in the light of the submissions of the learned counsel for the appellant but I do not feel myself in agreement with the submissions made by the learned counsel as the facts in both the cases are on different footing. In the case of Mahiwal the injury caused was a result of sudden altercation which ensued before the actual occurrence and the blow inflicted on head. In the case of Hingle there had been some argument between the deceased and the accused persons before the actual blow was struck and the accused had abused the deceased who had remonstrated the accused not to abuse him. There is no such element/evidence to even suggest that there was altercation in the present case which resulted in the occurrence. No specific plea in this regard was pleaded before the trial Court nor any enmity has been suggested. The three appellants had come together on the place of occurrence. I am unable to pursuade myself on evaluation of evidence and the material available on record to accept the plea now raised. The intention in such cases as the one in hand, can be gathered. from the circumstances and in view of the specific part attributed to the two appellants Abdul Karim and Shah Hussain of catching hold of deceased was with object to facilitate Muhammad Rashid to achieve the object of. causing death is to my mind available on record. The intention is not generally susceptible of direct proof and in the facts and circumstances of the case, I feel myself convinced that the two appellants. have been rightly saddled under section 34, P.P.C. The argument of the learned counsel for the appellants that there is no sufficient motive nor it has been believed by the trial Court is devoid of any force. In the present case the eye?witness account given by the above named eye-witnesses is sufficient and the absence of motive is not so material for which adverse view can be taken. This plea was not suggested to the witnesses in the trial Court. As a matter of fact it is not the case of any of the appellants in their 342 or 340(2) Cr.P.C. statements that the occurrence was result of previous incident of exchange of hot words. Even if the evidence on recovery is disbelieved as has been pointed out from the impugned judgment and the identification test in my view it does not improve the case of the appellants in any manner. There is sufficient ocular evidence about the actual occurrence which is convincing and sufficient to prove the case and according to me the prosecution on its part has proved its case beyond reasonable doubt on the point of causing death by way of blow by a dagger and appellant Muhammad Rashid was rendered assistance by the two co-appellants. There is no material contradiction or noticeable infirmity in the evidence hence I do not find f any reason to disturb the findings of the trial Court or to interfere with it. It will not be out of plate to mention that the evidence of Dr. Munawar Abbas, P.W.5, E and Rahmatullah, P.W.9, has gone unchallenged as these witnesses were not cross-examined. While assessing the evidence I had given due consideration to the arguments of the learned counsel for the appellants that independent witness has been examined and he forcefully argued that owner of pan bidi cabin, namely, Muhammad Ahmad who was admittedly an eye=witness of incident has not been examined and, therefore, it was argued that he being a natural witness has been kept away by the prosecution and tried to convince me to draw adverse inference against evidence of remaining witnesses. For this reason I took minute examination of the record and from the record I find that P.W.2 Arshad stated in his cross-examination that Pan Bidiwala, Muhammad Ahmed, had expired and to substantiate this fact the evidence of Court witness Aftab Ali is on record who was a process-server and was given a process for service upon Muhammad Ahmed. According to him, he had gone to the given address and it was given out that he had died on 25-12-1985 which fact has not been controverted by the defence and also death certificate in respect of Muhammad Ahmed issued by the KMC is placed on record and produced by Court witness as Ex.40. Consequently, the contention of the learned counsel to this effect is without force.

15. In view of the above discussion, I do not find any merit in the two appeals and both appeals are accordingly dismissed. The impugned judgment dated 4-8-1988 of 1st Additional Sessions Judge (Central) , Karachi , is maintained. M.Y.H./M-830/K Appeal dismissed.