1990 PLP 1536 (MLD)

On internal examination the Medical Officer found some of the loops of small intestines punctured. The Medical Officer has further opined that this injury was ante‑mortem, which appeared to have been caused by some sharp cutting substance like knife and was individually sufficient to cause death in ordinary course of nature. The same medical Officer examined injured Abdul Aziz and found an incised wound 1" x 1/2" x 1/4" on the left thigh. According to Medical Officer this injury was simple in nature and was caused by some sharp cutting weapon like knife.

8. The case of the prosecution mainly rests upon the following pieces of evidence:‑‑ (i) Direct testimony consisting of Shaban (P.W‑2), Muhammad Saleh (P.W‑3), Abdul Aziz (P.W‑6), and Aftab Ahmed (P.W‑7). (ii) Recovery of knife at the instance of appellant, which on examination by the Chemical Examiner was found stained with human blood. (iii) Motive.

9. The incident took place near the counter of the hotel of Shaban (P.W‑2) situated in brothel area. Abdul Sattar (P.W‑4) who has acted as mashir of WARDAT has stated so in clear terms. The blood was also found there which was secured by the investigating Officer and sealed on the spot. Muhammad Chuttal Tapedar (P.W‑1) who has prepared the sketch of WARDAT has testified that the place where complainant Shaban was sitting is 20 feet away from the place where deceased Muhammad Haneef was stabbed. Thus the presence of complainant Shaban (P.W‑2) at the place of incident is natural. Shaban (P.W‑2) who is Soomro, by caste, had absolutely no connection with deceased Muhammad Haneef, who was Arain by caste and appellant Waheed alias Siraj who is Rajput by caste. He simply knew the appellant by face and was informed about his name by Aftab Ahmed (P.W‑7), who knew the appellant, Shaban (P.W‑2) figured as complainant in this case simply because the incident took place at his hotel. He has testified the circumstances leading to this incident and has identified the appellant in dock. Nothing has been brought out in the cross‑examination which would shake the veracity of this witness about the identity of the assailant.

10. Abdul Aziz (P.W‑6) worked in the hotel of complainant Shaban (P.W‑2). He was preparing tea at a place which was near the counter. He saw the appellant stabbing deceased Muhammad Haneef from his own eyes and tried to apprehend him when he was given knife injury, whereupon he abandoned the chase. Abdul Aziz, who is a Kumbhar by caste is completely a disinterested witness. The presence of injury on his person leaves no room for doubt that the incident did take place in the manner as described by him. Abdul Aziz (P.W‑6) has fully implicated the appellant. He was subjected to a searching cross‑examination, but beyond very minor contradictions, which are bound to occur due to lapse of time, nothing substantial came on record to show that he had any reason to depose falsely against the appellant.

11. Aftab Ahmed (P.W‑7) knew the parties previously. He is Nat by caste and was present in the hotel at the time of incident. He has testified almost the same facts culminating into this unfortunate murder of a 15 years old boy. His cross‑examination merely emphasised that he was son of a dancing girl and was under the influence of police. The incident took place in brothel area and, therefore, the incident could have been witnessed only by the persons doing business there or by the persons connected with dancing girls and prostitutes.

12. Muhammad Saleh (P.W‑3) is a cousin of complainant Shaban. The cattle pen where he resided was about 10 or 125 feet away from the place of occurrence. He had seen the actual incident and has fully implicated the appellant with whom he had no previous hostility and who was virtually a stranger to him. His evidence is criticised mainly on the ground that his name was not disclosed in F.I.R., which by itself is not sufficient to label him as a set‑up witness. It may be recalled that complainant Shaban (P.W‑2) had no interest in deceased Muhammad Haneef and he figured as first informant only because the incident took place in his hotel. The omission is, therefore, of no significance.

13. The alleged discrepancies in the evidence of the above witnesses mostly consist of matters of detail which appeared in their latter statements and are not present in the first disclosure. These are not in themselves proof of fabrication and do not in my view discredit their testimony as to the main point, viz. the assailant.

14. The appellant has alleged enmity with Iqbal Hussain S.H.O. (P.W‑9) who was transferred prior to this incident due to complaints made by him. It is also his case that the witnesses had deposed against him under the influence of Iqbal Hussain S.H.O. (P.W‑9), but it has not been brought out how he is inimical to him and how the witnesses are subservient to him and would be inclined to oblige him. The appellant could have produced documentary evidence, if he was really instrumental in getting Iqbal Hussain S.H.O. transferred.

15. Again there was no reason for all the four witnesses to have screened the real culprit by name Siraj and involve the appellant falsely, for no reason. None out of the four witnesses had any enmity with the appellant.

16. Mr. Muhammad Daud Balouch, learned counsel for appellant has placed reliance upon the case of Mamoon and another v. The State, reported in P L D 1962 Kar. 800, in an attempt to' show that the evidence of Muhammad Saleh (P.W.3) whose name finds no place in F.I.R. should be ruled out of consideration. This case is distinguishable and for the reasons recorded by me in para 12 above, this omission was not material Even if the evidence of this witness is ignored there remain three eye‑witnesses who have fully implicated the appellant.

17. There can be no cavil with the proposition enunciated in Zaab Din and another v. The Sate, reported in P L D 1986 Pesh. 188 to the effect that presence of injury on the person of a witness is not a sure guarantee that whatever he has deposed was truth. His evidence is to be examined like any other witness. Abdul Aziz (P.W‑6) is a natural and truthful witness and his evidence has not been accepted only because he is an injured person. The learned Additional Sessions Judge was apparently favourably inclined by the demeanour of this witness and other witnesses and I find it difficult to reject their evidence.

18. The evidence of recovery of crime weapon does not appear to be convincing. The evidence of Muhammad Saleh (P.W‑3) and Abdul Aziz (P.W‑6) makes it clear that the appellant was arrested on the same day, viz. 1‑3‑1974. The police officer has, however, shown his formal arrest on 3‑3‑1974. The alleged recovery has again been made on 9‑3‑1974 from the house jointly occupied by appellant and others. There was again no reason for the appellant to have kept the knife intact. If he could wash his clothes he could have washed the blade of knife also. One of the mashirs of alleged recovery, namely, Anwar Ali (P.W‑8) has also not supported the case of the prosecution.

19. Having regard to the above circumstances and keeping in view the ratio of cases reported as Dost Muhammad v. The State P L D 1982 Kar. 1000, Muhammad Afzal v. The State 1983 S C M R 1, and Naeemullah Hashmi v. The State 1987 M L D 1966, I find myself unable to accept the evidence of recovery.

20. The motive is shrouded with mystery. The prosecution has tried to establish it through Aftab Ahmed (P.W‑7) who speaks of an ordinary quarrel over the repair of radio. As to the adequacy of motive, the classical observations of Lord Chief Justice Campbell in his address to the Jury in Reg. v. Palmer, quoted in Wills' Circumstantial Evidence 6th Edition, may well be reproduced:‑‑ "With respect to the alleged motive, it is of great importance to see whether there was a motive for committing such a crime or whether there was not; or whether there is an improbability of its having been committed so strong as not to be overpowered by positive evidence; but if there be any motive which can be assigned, I am bound to tell you that the adequacy of motive is of little importance. We know from the experience of criminal Courts that atrocious crimes of‑this sort have been committed from very slight motives, not merely from impulse or revenge but to gain a small pecuniary advantage and to drive off for a time pressing difficulties."

21. The above discussion of evidence brings me to this conclusion that appellant and none else was the author of this crime. Mr. Muhammad Daud Balouch, learned counsel for appellant has made a feeble attempt to satisfy this Court that the offence, if any, will fall under section 326, P.P.C. as there was only one injury and that too at the less vital part of the body. Section 299 P.P.C. defines culpable homicide in the following words:‑‑ "

299. Culpable homicide.‑‑Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."

22. Section 299, P.P.C. speaks of doing an act which causes death, with one or two intentions, that is to say, with the intention of causing death or such bodily injury as is likely to cause death or with the knowledge that death is likely to be caused by such act. The medical evidence leaves no room for doubt in my mind that the appellant had reason to believe that death was likely to be caused by the blow which he gave to deceased Muhammad Haneef. The appellant was, therefore, rightly convicted. His conviction and sentence are, therefore, maintained. The appellant who is on bail shall serve out the sentence imposed upon him. The trial Court shall take necessary steps for his arrest. The benefit of section 382‑B, Cr.P.C. is, however, extended to him. N.H.Q./W‑51/K Appeal dismissed.