1988 PLP 535 (MLD)

This appeal under section 410, Cr.P.C. is directed against the Judgment dated 20th July, 1987, of learned Sessions Judge, Karachi, whereby he convicted the appellant, Mohammad Anwar under Section 302, P.P.C. and sentenced him to suffer imprisonment of life and to pay fine of Rs. 10,000 in default to suffer R.I for six months. An amount of Rs. 5,000 has been ordered to be paid as compensation to the heirs of the deceased. Brief facts of the prosecution, case according to F.I.R. are that on 25‑2-1986, Mohammad Ikhlas s/o Mohammad Ilyas ‑ stated before the police that he alongwith Mohammed Anwar s/o Ramzan Khokhar was standing on the footpath in front of Qamar Autos at the corner of Gidwani Street when a boy namely Anwar, nephew of Ritanioo came there and demanded cigarette from Mohammed Anwar s/o Ramzan who refused. On this, the boy Anwar took out a big dagger out of the fold of his Shalwar, pushed Anwar s/o Ramzan who fell down on the foot path and caused him dagger blow on his left thigh. He has stated that Ishaque and others who were present also witnessed this incident. The boy ran away from the spot. He took the injured to Civil Hospital but died on the way. He stated that quarrel took place between both of them yesterday too at 9.30 p.m. S.I. Ghulam Hussain recorded the statement and sent through constable Mohammad, Haroon for registering the case. During the investigation, appellant, Mohammed Anwar s/o Abdul Rehman was arrested and was sent up for trial. " Prosecution in support of the case examined 12 witnesses. They are Complainant, Mohammed Ikhlas PWs. Mirza Abdul Rauf, Mohammad Ishaque, Wahab, John Francis, Dr. I4amid Ali, Nauroz Badshah. Sub‑Inspector Ghulam Hussain, P.I. Mohammad Islam, S.I. Fida Hussain, Qazi Siraj and Choudhry Mohammad Ashraf. Appellant in his statement under section 342, Cr.P.C. denied the allegation and pleaded that he is innocent and murder was committed by someone else. He did not make any statement on oath under section 340(2), Cr.P,C. though he was specifically asked to do so. He has not led any evidence in his defence. Khawaja Naveed Ahmed appearing for the appellant has submitted that this is a case of no evidence as complainant Mohammad Aktar and other witnesses have not supported the case, therefore, the prosecution has miserably failed to prove the case against the appellant. It is argued that recovery has not been proved and conviction has been based on the evidence of Mohammad Ishaque only whose evidence is not convincing and reliable. Mr. Zaheer Qureshi for the State submitted that prosecution has proved the case and evidence of Mohammad Ishaque has not been shaken in the cross?examination and incident was reported immediately without any loss of time. It is argued that enmity with the prosecution witness Mohammad Ishaque has not been proved by the appellant. The evidence against the appellant consists of ocular testimony, recovery and motive. Prosecution examined Mohammad Ishaque (Ex. 5), Mirza Abdul Rauf (Ex. 10), complainant, Mohammad Ikhlas (Ex. 11), Wahab (Ex. 13) and John Francis (Ex. 14), as eye‑witnesses. Complainant, Mohammad Ikhlas and Mirza Abdul Rauf Baig, Wahab and John Francis did not support the case and: were declared hostile by the prosecution. They were cross‑examined by the Assistant Public Prosecutor before the trial Court. PW. 1, Mohammed Ishaque has supported the case. He has stated that deceased Anwar was known to him since last 20 years as he had worked in his Hotel. The incident took place at 5.00 p.m. when he was standing near his Hotel which is on the footpath near Rivoli Cinema. He saw the deceased Anwar standing in Gidwani Street, Morston Road, Karachi, which was at the distance of 20 paces from him. He saw appellant, Anwar and deceased Anwar fighting with each other when appellant took out a Chhurri from the fold of his Shalwar and gave one below to deceased Anwar on right thigh just near the private organ. Deceased fell down and accused ran away from the spot. The incident was witnessed by Ishaque and others. Thereafter Ikhlas removed the injured Anwar to Hospital who on return told him that Anwar had died. The incident was reported by PW Ikhlas. He has stated that Police came at the Wardat and prepared Mashirma which he produced as Ex.

6. Blood?stained earth was secured from the place of Wardat. The Mashirnama of dead body was prepared which he produced as Ex.

8. He has stated that after about a week of the incident, Police brought the appellant in custody at his shop. Thereafter, accused led the Police Party to Choona Bhatti and pointed out an old damaged Car and himself took out the Chhurri which was lying concealed, under the old Car. It was blood‑stained and Police sealed it in his presence and prepared Mashirnama which he produced as Ex.

9. The accused present in the Court is the same who was previously known to him as he has a Welding Shop in that area. In cross‑examination, he admitted that deceased Anwar used to deal in Heroin as he was addicted to it. He has denied the suggestion that Mohallah people were annoyed with the deceased due to bad habit. He stated that all the Mashirnamas were prepared by the Police on the spot. The evidence of this witness has gone unchallenged and his presence has been proved. The appellant has not suggested or proved any enmity with this witness: Mirza Abdul Rauf Baig has stated that he saw crowd on the footpath and saw Mohammad Anwar lying injured on the footpath. He was bleeding from the injuries. He did not see the accused on the spot. In cross‑examination, he admitted that he made the enquiries from the people standing around and one of them told that Anwar had given Chhurri blows to the deceased. Complainant, Muhammad Ikhlas in his evidence before the trial Court stated that on the day of incident at 5 p.m. he had gone to fetch his son from the Hotel. near Rivoli Cinema. While he was at the Hotel, he heard commotion from the side of the Gidwani Street. He pushed to the place of incident and saw deceased Anwar lying injured on he footpath who called him for help. There were 20 to 25 persons at the spot but he did not see the accused who was known to him prior to the incident. He stated that deceased on his enquiry could not give the name of the assailant as he got unconscious. This witness was cross‑examined by the prosecution and he admitted that "it is correct that I had removed the injured to the Hospital where he died. It is also correct that he went to the Garden Police Station and lodged the F.I.R. of the incident which was read over to me and he signed which he produced as Ex.

12. It is same and bears his signatures". Police inspected the Wardat and prepared Memo (Ex. 6). He also acted as Mashir of dead body and attested the Mashirnamas (Ex. 7) and (Ex. 8). It is correct that contents of Ex. 12 were read over to him and he signed to be correct. The contents of F.I.R. which have been read over to him by the Assistant Public Prosecutor just now are correct and correctly written in the F.I.R. (Ex. 12) that accused Anwar had taken out the dagger from the fold of the Nepha of his Shalwar and stabbed the deceased Anwar. Voluntarily states that he mentioned this fact in the F.I.R. because the persons collected there told him that injured Anwar was given blow by accused Anwar. P.W. 4, Wahab did not support the prosecution and stated that he heard commotion and came out on the road where he saw crowd and saw Mulla Kachoriwala lying injured and bleeding. The persons collected there told him that AAwar stabbed him. P.W. 5, John Francis has stated that incident took place about 6 or 7 months ago but he does not know anything about the incident nor had seen anybody inflicting injury to any person. He was declared hostile. P.W. 6, Dr. Hamid Ali (Ex. 16) in his evidence stated that on 25‑2‑1986, ‑he was working as Medical‑Legal Officer, Civil Hospital, Karachi, where he received the dead body of Anwar s/o unknown through S.I.P. Ghulam Hussain for post‑mortem. He started. post‑mortem at 9.00 p.m, and completed at 10.00 p.m. On external as well as internal examination of the dead body he found the injuries as under:‑‑ "(1)????? Through and through incised wound on left thigh with incised wound 6 Fm x 3 c.m. x muscles deep on left thigh on posterio‑lateral aspect with incised wound 5 cm x 2 cm x muscles deep on anterio‑media aspect of left thigh in the middle of left thigh. (2)??????? On the thigh both femoral artery and femoral vein were cut completely. This injury was ante‑mortem in nature. Rest of the organs of the body were found normal and healthy. The cause of death in my opinion was shock and excessive haemorrhage leading to cardio‑respiratory failure due to the cutting of femoral vessels. The injury was ante‑mortem and likely to cause death in the ordinary course of nature. (3)??????? The weapon used was sharp‑edged. I prepared my post‑mortem notes which I produce in Court as Ex.

17. It is same correct and bears my signature." He produced the post‑mortem notes as Ex.

17. This witness was not cross?-examined. P.W. 7, Nauroz Badshah has stated that on 3‑3‑1986, he was posted in C.I.A. Centre, Saddar, Karachi, where appellant was in custody of Chaudhry Mohammad Ashraf. The maternal‑uncle of appellant produced clothes of the accused before Chaudhry Mohammad Ashraf and such Mashirnama (Ex. 19) was prepared which he signed. The clothes were Shalwar and kameez with blood spots on them. The clothes were sealed. P.W. 8, Ghulam Hussain has stated that on 25‑2‑1986, 'he was posted as S.I.P. Garden Police Station where he received telephone message from the Civil Hospital that injured Anwar was brought in the hospital in serious condition. He made entry in the Roznamcha and rushed to the Hospital where Doctor told him that injured has expired. Cane person namely Mohammad Ikhlas who brought the injured was present. He recorded his statement under section 154, Cr.P.C. in the Hospital and such statement (Ex. 12) is the same, correct and bears his signature. He sent the statement (Ex. 12) to the Police Station through P.C. Haroon for registering the case. Thereafter, he prepared the Inquest Report of the dead body in presence of Mohammed Ikhlas and Mohammed Ishaque (Ex. 8) and also Mashirnama of injuries as Ex.

7. He handed over the papers to S.H.O., Mohammad Islam for investigation. P.W. 9, Mohammad Islam has stated that on 25‑2‑1986 he was S.H.O. Garden Police Station where he received the copy of the F.I.R. and proceeded to the place of occurrence and prepared the Mashirnama of Wardat on the pointation of complainant Ikhlas. He secured blood‑stained. earth and sealed, thereafter, he sent papers to the C.IA. for further investigation as there were directives from the higher authorities that all the cases of robbery, dacoity and murder to be investigated by C.I.A. P.W. 10, Fida Hussain stated that on 27‑2‑1986, he was A.S.I. at Police Baghdadi and was investigating a case Crime No. 82/86. At about 7.00 p.m. he alongwith the subordinates was present near the Bus Station, Mauripur where he received spy information that appellant involved in a murder case of Garden Police, was available at the spot. The accused was known to him since 31/2 years. He went there and arrested the appellant and prepared such Mashirnama which he produced as Ex.

24. Thereafter, accused was handed over to the C.I.A. Police. P.W. 11, Qazi Siraj, City Surveyor, prepared the Wardat on 12‑3‑1986, and produced the sketch as Ex.

29. He stated that Wardat is situated at Marston Road, of Jamila Street, behind N.J.V. School, Karachi. P.W. 12, Chaudhary Mohammed Ashraf has stated that on 25‑2‑1986, he was posted as S.I., C.I.A., Karachi and in those days the murder cases were to be investigated by C.I.A. The F.I.R. of this case was registered at Garden Police Station which he produced as Ex.

29. On receipt of the F.I.R., he started investigation on 27‑2‑1986. He came to know that appellant Mohammed Anwer was arrested by Baghdadi Police. He went there and took the accused in his custody. On 3‑3‑1986, the maternal‑uncle of the accused who is also known as Mohammad Anwer produced the blood‑stained Shirt and Shalwar of the accused. He prepared the Mashirnama (Ex. 19) and sealed the articles. During the investigation, the appellant volunteered to point out the place where crime weapon was concealed. He led him and the Mashirs to the back of the N.J.V. High School from where he produced Chhurri which was lying concealed under the old body of the Car. It was blood‑stained. He sealed it on the spot and prepared Mashirnama (Ex. 9). He recorded the statements of witnesses. Abdul Rauf, Pervaiz Qamar, Wahab, John and others. He sent blood‑stained clothes of the appellant and crime weapon including blood‑staned eart to the Chemical Examiner and produced the report as Ex.

30. He got site sketch prepared and upon completion of the investigation submitted the challan in the Court. The articles including clothes present are the same. The death of Anwar is not disputed. The place of Wardat has been proved from the evidence of the witnesses which has not been challenged by the defence. It is. an admitted position that Anwar sustained injuries on the footpath at the corner of Gidwani Street. The injured was taken to the Hospital by the complainant Mohammed Ikhlas and his statement was recorded by S.I.P. Ghulam Husain. In the statement (Ex. 12) Mohammed Ikhlas has claimed to be the eye?witness of the incident and saw appellant causing injuries to the deceased Anwar. He has stated that prosecution witness Ishaque and others were present there and saw the incident. In his evidence, he resiled from this statement and stated that he had not seen the appellant causing injuries to deceased and not even seen him running away but admitted the Wardat. In his cross‑examination he has admitted the contents of the F.I.R. to be correct as the entire portion of his cross has been reproduced in para. of the judgment. P.W. Wahab though not supported but stated that persons who collected there told him that Anwar had stabbed him. The presence of prosecution Mohammad Ishaque has been proved. He is Mashie of Wardat, Inquest Report and Recoveries. His evidence has gone unshaken and also gets the corroboration from the medical evidence. The name of only Mohammed Ishaquc appears in the F‑I.R. (Ex. 12). The names of other witnesses who have gone hostile do not bear in the F.I.R. Mohammad Ikhlas though changed but clearly admitted the contents of the statement Ex. 12 (F.I.R.) to be correct. To some extent this also corroborates the version of Mohammad Ishaque. His statement was immediately recorded by S.I.P. Ghulam Hussain which he admitted. This witness has changed and has tried to favour the appellant but in spite of that he has stated that this statement bears his signatures. He has tried to explain that this version was given by him because people present told him. The Chemical Examiner's Report is in positive with regard to the clothes of appellant. The knife secured from him has been found to be blood‑stained. According to Doctor, the injury which resulted in death of Anwar was caused by sharp‑edged weapon. It is settled law that number of witnesses are not necessary and substitution of accused is rare. The evidence of Mohammed Ishaque which is corroborated by the other pieces of evidence is convincing one and cannot be discarded as no bias has been proved. The appellant in his statement (Ex. 31) has simply denied the allegations and stated that witnesses are liars and set up by the Police. It can hardly be believed that immediately after the incident, Police can set up false witnesses against the appellant without any cogent reason. In my view, the prosecution has proved the case and the learned Sessions Judge has rightly based the conviction on the evidence. Consequently, the appeal is dismissed. M.Y.H./M‑546/K ?????? Appeal dismissed.