1985 P Cr (PLP)

SAJJAD ALI SHAH, J ‑‑ This Criminal Jail Appeal is filed by appellant Ali Badshah against the impugned judgment, dated 31‑7‑1982 of learned VIIth Additional Sessions Judge, Karachi, whereby he has been convicted for offence under section 302, P.P.C. and has been sentenced to life imprisonment and a fine of Rs.5,000 or in default to R.I. for six months. It is directed by the trial Court that out of fine, if realised, a sum of Rs.4,000 be paid as compensation under section 544, Cr.P.C. to the heirss of deceased, or in default to suffer further R. I. for six months. In fact before the trial Court apart from the appellant named above five other persons were sent up 'for trial for the same offence under sections 302/147 and 149, P.P.C. but the impugned judgment excepting the appellant who was convicted and sentenced as stated above, the other co‑accused namely Aftab Alam, Zahid Husain, Muhammad Afzal, Muhammad Aziz and Muhammad Zamir were acquitted. Before us there is also connected revision application, which was originally filed by the complainant for enhancement of sentence of the appellant and was also against the acquittal of five other co‑accused named above but by order passed by the Division Bench of this Court on 11‑5‑1983 revision against the acquittal was dismissed but revision against the enhancement of sentence of appellant was admitted with order for issuance of notice to the appellant to show cause why his sentence should not be enhanced from life imprisonment to death. We propose to dispose of both the appeal and revision application by this single judgment.

2. At the very outset it would be pertinent to point out that in the impugned judgment in the last paragraph there appears to be an inadvertant mistake. The learned trial Judge in addition to sentencing the appellant to life imprisonment has further imposed a sentence upon him of fine of Rs.5,000 and in default he is further sentenced to R.I. for six months. It is further directed in the impugned judgment that Rs.4,000 be paid as compensation to the heirs of the deceased and if there is a default then appellant is to suffer further R.I. for six months. Compensation is to be paid from the amount of fine if recovered. If fine is not recovered then appellant is already sentenced to R.I. for six months in default of payment of fine. If fine is recovered, then it is for the authorities to see that the order of the trial Court is complied with and out of amount of fine, Rs.4,000 are paid as compensation to the heirs of the deceased in case of failure to do so appellant cannot be further sentenced to R.I. for six months. He can be sentenced once only on account of failure to pay the fine and not twice. This appears to be inadvertent error. Furthermore, in the paper book it appears that the trial Court has directed for payment of compensation under section 544, Cr.P.C., which is not correct provision because section 544, Cr.P.C. relates to the expenses of complainant and witnesses. Perusal of original judgment in the record shows that the section is correctly quoted as 544‑A, Cr.P.C. which provides for compensation to the heirs of the deceased but in the paper book it has been quoted mistakenly.

3. Briefly stated the relevant facts giving rise to this appeal and revision application are that according to the prosecution case there was political rivalry between appellant Ali Badshah and deceased Anwar Parvez at the level of local bodies elections. Both parties resided at the relevant time in Korangi 11, Karachi. Incident took place on 14‑9‑1979 at 9.00 pm in front of the house of deceased. About an hour before the incident there was a quarrel between appellant and deceased near the hotel of Shahabuddin in the same neighbourhood, which was brought under control in time and both parties were turned away. At 9‑00 p.m. complainant Allah Rakha was sitting with his borther Anwar Parvez on the chairs in front of their house. It is alleged that appellant Ali Badshah came there armed with a "Chhuri" and attacked Anwar Parvez and inflicted injury on the left side of his chest, in consequence of which he fell down after walking a few steps. Complainant Allah Rakha and witnesses Zakir and Shabir took injured Anwar Pervez to Jinnah Hospital but he died on the way. It is stated in F.I.R. that appellant Ali Badshah had come alongwith ten or twelve companions and they immediately after incident had pelted stones at the car and the house o& the deceased and had also broken the chairs. Sadiq Ali and Sartaj Begum have been mentioned in the F.I.R. as eye‑witnesses. F.I.R. was registered at Police Station Korangi, two miles away from the spot on 14‑9‑1979 at 11‑00 p.m. P. W.10 Zafar Iqbal, S. H. O. has deposed before the trial Court that on 14‑9‑1979 he received written statement of Allah Rakha, which was sent by S.I.P. Ali Asghar for incorporation in 154, Cr.P.C. Register. He entered that report in the Registrar as F.I.R. He inspected the scene of offence which was pointed out by the complainant and prepared inspection memo. He collected blood‑stained earth from the spot and noticed that there were broken chairs and damaged car. He found pieces of broken glass at the spot and noticed that electric bulb of the house of deceased was also broken. He arrested appellant Ali Badshah on 16‑9‑1979 and on the same day while in custody appellant produced blood‑stained dagger/Chhuri which was put into a sealed parcel. He recorded statements of witnesses. He got the post mortem examination performed on the dead body. He had arrested co‑accused and after completing the investigation presented the challan in the Court.

4. Prosecution examined in the trial Court eleven witnesses in support of its case. P.W.1 Shahabuddin is on motive as before the incident quarrel took place between appellant and deceased in front of his Hotel. This witness did not support the prosecution case and was declared hostile. His statement under section 164, Cr.P.C. was not produced in the trial Court. Prosecution then examined six eye‑witnesses. P.W. 2 Allah Rakha complainant has deposed as eye‑witness. He is brother of deceased. He has produced initial F.I.R. Exh.7 which was recorded by S.I. Ali Asghar. P.W.3 Sadiq Ali is eye‑witness as well as Mashir. He has produced Mashirnama of Wardat Exh.9 and Mashirnama of recovery of Chhuri Exh.10. P.W.4 is Syed Zakir Ali, who is son of Sadiq Ali. He has been examined as eye‑witness and during the course of his examination‑in‑chief permission was sought by A.P.P. and granted by the trial Court to cross‑examine this witness because according to A.P.P. this witness was not telling the truth. This witness was allowed to be cross‑examined by A.P.P. and his statement previously recorded under section 164, Cr.P.C. was brought on the record as Exh.14. This statement under section 164, Cr.P.C. is not signed by the Magistrate. Prosecution then examined P.W.5 Ameer Ahmad, P.W.6 Sartaj and P.W.8 Shakir Ali, who did not support the prosecution case and were declared hostile and cross‑examined. P.W.5 Ameer Ahmad is brother of wife of deceased and claimed that at the relevant time he lived in the house of deceased. He has deposed about the quarrel before the incident as well as about the incident. At the request of A.P.P. this witness was declared hostile. In the cross‑examination to A.P.P. this witness had admitted that he had only attested the Niashirnama of dean body at the hospital and had not seen the incident. P.W.6 Sartaj was declared hostile and examined and his statement under section 164, Cr,P.C. previously recorded has been brought on the record as Exh.19. In this statement this witness has not said anything about the incident and it is stated therein that he remained silent. P.W.8 Shakir Ali was declared hostile and cross‑examined. His 164, Cr.P.C. statement is not on the record and I.O. has admitted that the same was not recorded. P.W.9 Sartaj Begum widow of deceased has supported the prosecution case.

5. P.W.7 Ali Asghar S.I. deposed that on 14‑9‑1979 he was posted at Korangi Thana, Karachi and on that day at 10‑30 p.m. he was on petrol duty when he was informed that dead body of Anwer Pervez was brought in Jinnah Hospital. This information was conveyed by the Doctor Muhammad Anwar. He went to Jinnah Hospital and saw the dead body in mortuary. He prepared Mashirnama of dead body and inquest report. He recorded statement of Allah Rakha brother of deceased Anwer Pervez who was present in the hospital. He sent the report to Police Station, Korangi for incorporation in 164, Cr.P.C. Register. P.W.10 is Zafar Iqbal, S.H.O. who has investigated the case.

6. Prosecution has examined Dr. Muhammad Akram Kureshi as P.W.11. He has deposed that on 15‑9‑1979 he performed post‑mortem examination on the dead body of Anwer Pervez in Civil Hospital, Karachi. On external examination he found one incised wound on the left side of the front of chest 2" medial to the left nipple and lateral to the mis‑sternal line and about 4" below the supra‑sternal notch, sized 2" x x cavity deep. According to the Doctor cause of death was due to haemorrhage and irreversible shock as a result of stab wound on left side of chest caused by a sharp‑edged weapon. The injury was sufficient in the ordinary course of nature to cause death.

7. Trial Court has also examined three witnesses as Court witnesses. C.W.1 is Abdul Qayum, who is process server. He has stated that he returned the process of two witnesses namely Dr. M. Ansar of Jinnah Hospital, Doctor Muhammad Khan of Civil Hospital, Karachi, for the reason that whereabouts of both were not known. C.W.2 is Dr. Qaiser Rasool, who identified the handwriting and signature of Doctor Ansar in Exh.30. This is a certificate of examination of injury of deceased Anwer Pervez on 14‑9‑1979.

8. C.W.3 is Nisar Ahmad, S.I.P. He has deposed that on 14‑9‑1979 at 9‑30 P.m. appellant Ali Badshah appeared at Police Station, Korangi and filed report as complainant for offence under section 324, P.P.C. against Anwer Pervez. He produced original F. I. R. as Exh.40. He further stated that investigation could not be carried further for the reason that accused named in that F.I.R. was murdered. Prosecution closed its case. Statement of appellant Ali Badshah was recorded under section 342, Cr.P.C. in which he has denied allegations of prosecution. He has denied having filed any counter F.I.R. as complainant He stated that he was living in Korangi and was selling Charas. Allah Rakha complainant used to smoke Charas and buy from him. Allah Rakha told him that he had illicit relations with the wife of deceased. He apprehended a quarrel with deceased. Next day he (appellant) was arrested. Appellant further claimed that he was innocent of political rivalry in the elections. Appellant declined to produce any evidence. Likewise statements of acquitted co‑accused were also recorded. They denied prosecution allegations and did not produce any witness in defence.

9. We have heard at length Mr. Murtaza Hussain. Advocate for the appellant, Mr. Agha lmdad Ali for A.‑G. for State and Mr. Amir Ahmad Khan, Advocate for the applicant in Criminal revision application, At the very outset Mr. Agha lmdad Ali pointed out that criminal appeal filed from jail was time‑barred for the reason that judgment was announced by the trial Court on 31‑7‑1982 and memorandum of appeal was signed by the appellant in Jail on 2‑6‑1983 and was attested by the Superintendent of Jail on 5‑6‑1983. On this premise it was stated that appeal was filed belatedly by about eight months. Mr. Murtaza Hussain has pointed out that explanation is furnished by the appellant in the memorandum of appeal filed from the jail in the grounds as stated on page No. 174 of the paper book. The explanation is that copy of the judgment was supplied to the appellant who handed over the same to a friend to take it to some Advocate so that appeal be drafted and counsel be engaged to represent the appellant before the High Court but unfortunately appellant was let down by that friend, who did not show up again and in consequence copy of judgment was lost. Appellant requested for duplicate copy of judgment which was issued to him in the month of April,1983 hence the memorandum of appeal was got drafted in Jail and sent to the High Court on the date mentioned above. This explanation appears to be reasonable. Furthermore, it appears that appellant could not afford to engage a counsel as such request was made by him to the High Court for appointment of, counsel on Government expenses as he was pauper and consequently s counsel has been so appointed. In the circumstances we find that reasons stated above are sufficient and we, therefore condone the delay. On this point reliance is placed on the case of Muhammad Shareef v. The State 1978 P Cr. L J

546. Additionally it can be stated with advantage,: that we are at the same time seized of revision application arising from the same impugned judgment in which notice has been issued to thel appellant to show cause why his sentence should not be enhanced. This revision also gives complete cover to condone the delay in appeal.

10. It was argued on behalf of the appellant that evidence produced by the prosecution in this case is not fit to be relied upon for the reason that on the basis of the same evidence five other co‑accused were acquitted. It is not necessary to dilate on this aspect of the case for the reason that firstly no acquittal appeal has been filed and revision against acquittal has been dismissed and secondly that acquitted co‑accused were not named in F.I.R. and no recoveries were made from them. Evidence was, therefore properly assessed and A.P.P. in the trial Court did not press the case against acquitted co‑accused.

11. So far the evidence produced by the prosecution is concerned there is no dispute about the fact that several witnesses have not supported the prosecution case and they were declared hostile, who are mentioned in earlier part of the judgment. After excluding the evidence of such witnesses from consideration, the trial Court has relied upon complainant Allah Rakha, Mst. Sartaj Begum, Syed Zakir Ali and Sadiq Ali. For the purpose of corroboration reliance is placed by the trial Court upon medical evidence, motive and recovery of blood stained dagger at the pointation of appellant.

12. Incident took place in front of the house of deceased at about 9‑00 p.m., so the natural witnesses can be the inmates of the house and other persons, if any, for whom sufficient explanation is given to show their presence. Complainant Allah Rakha is real brother of deceased and Mst. Sartaj Begum is the wife of deceased as such both these witnesses being inmates of the house can be very natural witnesses. It is the case of the prosecution that at the time of incident deceased and complainant were sitting outside their house on the chairs when appellant came there with his accomplices. Appellant was armed with a Chhuri with which he inflicted injury on the chest of the deceased, who became unconscious. After the inflication of injuries companions of appellant broke the bulb and the furniture and pelted stones in consequence of which wind screen of the car was damaged. Other witnesses also came to the spot, saw the incident and helped injured Anwer Pervez to hospital but he died on the way. It is understandable that complainant Allah Rakha who was present at the spot was anxious to rush his injured brother, who was unconscious, to the hospital to get medical attention promptly in an attempt to have the life of his brother saved but unfortunately Anwer Pervez died before any medical help could reach him. In these circumstances Doctor at Jinnah Hospital found that Anwer Pervez had already died on the way. He informed Police Station, Korangi, which informed P.W.7 Sub‑Inspector Ali Asghar, who went to Jinnah Hospital where complainant Allah Rakha was already present and his report was taken down in writing which was subsequently incorporated in 154, Cr.P.C. Register at the Police Station. This report which is Exh.7 on the record is very brief in which present appellant Ali Badshah is clearly mentioned as the main assailant who caused injury to Anwer Parvez on his chest with Chhuri. Apart from complainant P.Ws. Sadiq and Mst. Sartaj Begum are specifically named as eye‑witnesses in addition to other persons who have not been named. Motive is also mentioned in this report that before the incident a quarrel took place between appellant and Anwar Pervez near Hotel of Shahabuddin. Before the trial Court four eye‑witnesses did not support the prosecution case. They are P.W.4 Syed Zakir Ali, P.W.5 Amir Ahmad, P.W.6 Sartaj (not Mst. Sartaj Bugum) and P.W.8 Shakir Ali. P.W.4 Syed Zakir Ali and P.W.8 Shakir Ali are mentioned in F.I.R. but part attributed to them is that after the incident they helped injured Anwer Pervez being carried to the hospital. About them it is not stated specifically in F.I.R. that they were eye‑witnesses. The other two eye‑witnesses namely Ameer Ahmad and Sartaj are not named in F.I.R. as eye‑witnesses. These four witnesses did not support the prosecution case and were declared hostile. 164, Cr.P.C. statement of Syed Zakir Ali is brought on the record but the same is not signed by the Magistrate. P.W. 5 Amir Ahmad was also declared hostile and cross‑examined, wherein he admitted that he had attested only Mashirnama of dead body at the hospital and did not see the incident. P.W.6 Sartaj was also declared hostile before the trial Court and cross‑examined. He was confronted with his 164, Cr.P.C. statement which shows that even in that statement he did not make an assertion that he was an eye‑witness. On the contrary it is stated in his 164, Cr.P.C. statement that this witness remained silent and did not speak. Evidence of these witnesses is rightly discarded by the trial Court.

13. In our assessment of evidence we propose to rely upon P.W.2 complainant Allah Rakha and P.W.5 Mst. Sartaj Begum, who is widow of the deceased. Both these witnesses have named appellant as person who caused injury to the‑ deceased with Chhuri. It is the case of the prosecution that appellant was known to these witnesses as he is neighbour and he and deceased were both in local politics. Complainant Allah Rakha was sitting with the deceased outside the house and there was a bulb which was alight at the time of incident. Bulb was broken by the companions of appellant after the infliction of injury, so there could be dispute with regard to the identify of the assailants. Name of the appellant is specifically mentioned in F.I.R. which was lodged promptly in the manner and circumstances which have been stated above. We do not find anything adverse in the cross‑examination of complainant Allah Rakha to doubt that appellant was not the assailant or he was 'not properly identified.

14. P. W. 9 Mst. Sartaj Begum widow of deceased has deposed before the trial Court as eye‑witness. Her name as such appears in F.I.R. She was present in the house at the time of incident. She first heard commotion and then saw appellant giving injury with Chhuri to her husband. She identified him in the. light of bulb. She has further stated that she knew Ali Badshah by name as he used to visit her husband before the incident. She has been cross‑examined at length in the trial Court. Learned counsel for the appellant pointed out some discrepancies in the evidence of this witness and her admission that at the time when her Police statement was being recorded she was not in proper frame of mind. Contradictions so pointed out are with regard to other details. Her evidence that she saw and identified appellant living injury to her husband with Chhuri on the chest is unassailable. At one place she stated in her six cross‑examination that she did not state before the Police that Ali Badshah was known to her because he used to visit her husband in connection with election work. It appears from her evidence that her Police statement was recorded on the same sight when her husband died. Assertion made by this witness that she knew appellant Ali Badshah before the incident, was clarified in the evidence before the trial Court that she knew appeallant because he used to come to her house to meet her husband in connection with election work. In the Police statement no such clarification was sought from her as to how she knew the appellant. Police statement is normally very short and to the point particularly coming from a person who is o closely related to the deceased. Non‑mention of this fact in Police statement does not falsify Mst. Sartaj Begum as eye‑witness. Other contradictions are not relevant to the case against the present appellant.

15. There is evidence of P.W.3 Sadiq Ali who has deposed before the trial Court as eye‑witness as well as Mashir for the recovery of chhuri from the appellant. There are discrepancies in his evidence. He was confronted with his 164, Cr.P.C. statement in which he had not stated that he saw the incident with his own eyes. On the point of recovery also his evidence is inconsistent and contradictory. He made concessions in favour of the appellant but no attempt was made to get him declared hostile. He stated before the trial Court that he and Mst.Sartaj Begum wife of deceased went together to Police Station and informed about the incident but report was not taken. The evidence of this witness does not inspire confidence as such we do not propose to rely upon him.

16. New we have evidence of two eye‑witnesses namely Allah Rakha and Mst. Sartaj Begum. Their evidence is corroborated by medical evidence which clearly shows that deceased sustained injury caused by a sharp‑edged weapon on the left side of chest which proved fatal. On the motive evidence of complainant Allah Rakha can be relied upon in spite of fact that P.W.1 Shahabuddin in front of whose hotel quarrel took place before the incident refused to support the prosecution case and was declared hostile. So far the recovery of weapon is concerned, Mashirs Sadiq Ali and Sartaj have not supported the case of prosecution and were declared hostile. In their absence P.W.10 S.H.O. Zafar Iqbal, who has investigated the case and made the recovery of Chhuri from appellant can be relied upon. Weapon of offence was produced by the appellant from him. No suggestion was made to the I.O. that the weapon was not recovered from exclusive possession of the appellant. The weapon was stained with blood and was put into a sealed parcel. The report of Chemical Examiner is positive. This evidence, therefore, can be safely relied upon.

17. The next confirmatory circumstances is that appellant himself filed F.I.R. in counter‑case immediately after the incident on the same day. This F.I.R. is Exh.36 on the record. It was filed on the same day of incident i.e. 14‑9‑1979 at 9‑30,which in fact is earlier in point of time than F.I.R. in the main case. Offence mentioned in this counter F.I.R. is under section 324, P.P.C. and accused named therein is Anwer Pervez. Allegation in the F.I.R. is that Anwer Pervez attacked complainant Ali Badshah with Chhuri but Ali Badshah escaped unhurt with the exception of a scratch on the hip. Place of incident is shown near hotel of Shahabuddin. This F.I.R. was lodged at Police Station Korangi. C.W.3 Nisar Ahmad Sub‑Inspector was examined as Court witness who produced counter‑F.I.R. filed by appellant Ali Badshsh. He further identified Ali Badshah present in the Court to be the same person who had filed counter‑F.I.R. He gave letter to Ali Badshah for medical examination but Ali Badshah did not go for medical examination. Witness Nisar Ahmad, Sub‑Inspector further deposed that the case which was being investigated by him was ultimately disposed of for the reason that Anwar Pervez named therein as accused was murdered. During the deposition of this witness in the trial Court at one stage appellant denied his signature on the counter‑F.I.R. and the trial Court ordered production of daily diary, which was subsequently produced showing entry at page No. 51 in which it was stated that Ali Badshah came on 14‑9‑1979 at 21‑30 hours at Police Station, Korangi and filed report which was reproduced therein. Before the trial Court this question about filing of counter‑F.I.R. was put to the appellant in his statement under section 342, Cr.P.C. and he denied his signature thereupon. Denial of signature does not help the appellant for the reason that there is no explanation as to why this piece of evidence is fabricated against the appellant. Sub‑Inspector Nisar Ahmad who recorded counter F.I.R. is not motivated against appellant nor any such allegation is made against him. He has produced documentary evidence and we find no reason to discard it. We have compared the signature of appellant Ali Badshah on counter report Exh. 36 (original is available in the record) with his signatures in his statement recorded under section 342, Cr.P.C. Vakalatnama of defence counsel Exh.4/A in the record of trial Court and application for condonation of delay and memorandum of appeal sent from jail by the appellant and we find that signatures of appellant in all these documents are same. This shows that appellant by filing counter‑report has admitted that some incident took place in which he and deceased Anwer Pervez were involved. This provides strong corroboration to the prosecution case. We are, therefore, of the view that prosecution case stands proved against the appellant beyond doubt and we dismiss the appeal. On the question of enhancement of sentence we declined to interfere for the reason firstly that one Chhuri blow was given and secondly according to counter‑report and statement of C.W.3 Nisar Ahmad Sub‑Inspector appellant when filed counter‑F.I.R. was found having injury on the buttock for which letter for medical examination and treatment was issued but did not go there. In the result appeal is dismissed and also the revision application M. Z. M. Order accordingly