L D 1979 Peshawar 111 (PLP)

SARDAR FAKHRE ALAM, J.-Waheed Khan aged about 23 years, son of Rakhman Khan, resident of Bezadi Chakar Kot, Tehsil and District Kohat, stood his trial in the Court of Sessions Judge, Kohat under section 302, P. P. C. on the allegation that on 24-5-77 at 'Sham Weld' by means of a knife he committed the murder of Abdul Waheed .deceased and at the close of trial the learned Sessions Judge by his order dated 27-6-78 convicted him thereunder and sentenced him to death. Further he was ordered to pay a sum of Its 5,000 (five thousand) as compensation to the heirs of the deceased or in default thereof to undergo six months' R. I. Aggrieved from the finding Waheed Khan convict has come up in appeal. Alongwith it, is a murder reference for the confirmation of death sentence of the accused-appellant. The order will dispose of both the matters.

2. The factual resume of the alleged incident, as narrated in the F. I. R. cum-Dying Declaration, lodged by Abdul Waheed deceased aged 17/18 years, while injured, in Police Post Bannu-Gate, on the day of incident at 8-15 p.m., rendered into, English is as under:- "Yesterday on 23-5-77 I and Waheed Khan son of Rakhman resident of Bezadi Chakar Kot bad exchanged hot words. Today at evening time when I was proceeding to my house on a path which passes by the National Bank Waheed mentioned above appeared from the front and gave me numerous blows with a knife with which I was injured on the abdomen and on different parts of the body and fell to the ground. The occurrence is witnessed by a guard of National Bank 7 Bezadi Chakar Kot and Usman Khan son of Ajab Khan resident of Bezadi Chakar Kot. The motive was yesterday's altercation. I charge Waheed Khan son of Rakhman Khan resident of Bezadi Chakar Kot for my injuries." A case under section 307, P. P. C. was registered in P. S. Cantt, Kohat on the basis of this report at 8-40 p.m. on 24-5-1977, the day of occurrence. On the expiry of the deceased at 2-00 p.m. on 1-6-77 the charge was altered to one under section 302, P. P. C.

3. In all, eight witnesses were produced and examined by the prose cution in support of its case. The accused when questioned denied the charge, and stated that he was involved in the case at the instance of Umar Farooq (P. W.), a friend of the deceased, and the deceased himself had not made any report at all. Ali Marjan (D. W. 1) was examined in defence by the accused.

4. Dr. Zafar Latif (P. W. 5) examined Abdul Waheed deceased, while injured, on 24-5-77 at 8-30 p.m. and observed the following injuries:- (1) A stab wound on epigastrium, size 1" x " x deep cavity, Margin clean cut. (2) A stab wound on right side groin, size 2" x x 1". Margin clean cut. (3) A stab wound on the left side chest on 8th rib, size 1/3" x " x deep. The injuries were caused by sharp-edged weapon within the duration of about an hour. The patient was admitted in the hospital for medical treatment. The injured expired in the hospital at 2-00 p.m. on 1-6-77 and on the same day at 3-00 p.m. he conducted the post-mortem examination on the dead body of Abdul Wahid deceased and on external examination affirmed the injuries referred to above, while on dissection left Thorax walls, left side Pleurae, abdominal wall and peritoneum were found injured. Liver was also injured at two places. Peritonitis had developed. Death was opined to be due to shock and haemorrhage on account of injuries to liver, right iliac vein superadded by Peritonitis. The time between injuries and death was about 8 days and that between death and post-mortem examination about an hour. The injuries were found to be sufficient in the ordinary course of nature to cause death. In cross-examination the witness stated that he did not know that when on 24-5-77 at 8-30 p.m. the deceased was admitted in the hospital he was later operated upon or not because the chart of the patient was not before him, and that had he been operated upon he would have survived or not.

5. Hafizullah (P. W. 1) F. C. bad accompanied Abdul Wahid injured from Police Post Bannu. Gate to Liaqat Memorial Hospital, Kohat and after his medical examination the doctor handed him over blood-stained shirt, 'shalwar' and 'banyan' of the injured which he produced before the I. O. on his return.

6. Said Qaraish .(P W. 2) S. I. submitted complete cballan against the accused in the Court of Illaqa Magistrate.

7. Khalilur Rehman (P. W. 3) stated that he is employed as guard at National Bank Bezadi Chakar Kot Branch, Kohat for the last three years. On the day of occurrence at 'Shamwela' he was on duty at the bank and was preparing himself for ablution for offering 'Makham' prayer when in the meantime he heard some noise in the outside lane. He opened the door of the bank on hearing the noise and saw an injured man running towards the road-side and another person running in the opposite direction. He then shut the door of the bank. The witness was not cross-examined.

8. Abdul Wahab (P. W. 4) stated that the deceased was his brother who was a first year student of Government College, Kohat, and was residing with his uncle in Bezadi Chakar Kot during the days of occurrence. He too was residing with his uncle and was working during those days as an operator in the Air-Conditioning Plant of "Janana De Malucho Textile Mills, Kobat". On the day of occurrence after saying 'Makham' prayer he was going to his house when he noticed Abdul Wahid deceased present near a bakery situated on the road side. The bakery would be lying at a distance of 15/20 paces from the National Bank Bezadi Chakar Kot Branch Kohat. At that time he also saw Usman Khan (P. W.) standing on the 'Katcha' side of the road. When he reached near the main gate of the colony where the house of his uncle is situated he heard some noise from the direction of the National Bank Branch. He then saw Waheed Khan accused giving stab blows to Abdul Wahid his brother. At that time he was at a distance of about 40/50 feet from the spot. The witness further stated that they are from Karak Tebsil, while the accused is a resident of Bezadi Chakar Kot. They had no enmity with the accused prior to the occurrence. A day before the occurrence the deceased was going on a 'tanga' when the accused hooted him, at which the deceased abused him. The accused was a deserter from the Army during the days of occurrence. He had also identified the dead body of the deceased at mortuary who had died after seven days of the occurrence. In cross-examination the witness stated that he got employment in 'Janana De Malucho Textile Mills, Kohat' 8/9 months prior to the occurrence. The name of his uncle is Muhammad Rauf with whom he and his deceased brother were living during the days of occurrence. His uncle was employed as a Lecturer at Government College, Kohat during the days of occurrence, and is still holding the post. Waheed Khan accused was known to him for about six months prior to the occurrence. The accused lived in another Mohallah of Bezadi Chakar Kot and used to sit in a shop in Bezadi Chakar Kot, which he and his brother (deceased) used to visit, as such they were acquainted to each other. He had offered his evening prayer in a mosque alongwith the congregation of about twenty persons. The mosque is situated at a distance of 60/70 paces from the place where the occurrence had taken place. Usman Khan (P. W.) was working as a driver with a P. A. F. Officer. He also used to Sit in the shoo anti such was known to them. Ali Marjan 'tongs' driver hails from Karak and therefore, he knew him. When the report of Abdul Wahid deceased was being recorded in the police post he at that time was standing outside on the road in front of the police post. It was not recorded in his presence. Umar Farooq (P. W.) was inside the police post at that time. His statement was recorded by the I. O. on the following day of the occurrence. In front of the lane where the occurrence had taken place there is a bazar. Nobody from the bazar had accompanied them in the 'tonga' to police post, except Umar Farooq. During those days evening prayer used to be said at 7-20 p.m. He did not talk with his brother in the 'tonga' on the way to the police post.

9. Malik Mobin Khan (P. W. 6) deposed that he is a 'Lumbardar' of village Chakar Kot. In his presence the I. O. took into possession vide recovery memo Exh. P. B. blood-stained shirt Exh. P. 1, 'shalwar' Exh. P. 2 and a 'banyan' Exh. P. 3 of the deceased which were brought by a Constable from the Hospital and it correctly bears his signature.

10. Mir Imam Gul (P. W. 7) A. S. I. stated that during the days of occurrence he was A. S. I. Incharge of Police Post Bannu Gate, Kohat. On the day of occurrence at 8-15 p.m. he was present in the police post when Abdul Wahid deceased arrived there in an injured condition. He recorded his report Exh. P. A./1, the same was read over to Abdul Wahid and then he signed it. Abdul Waheed was in senses and was talking coherently. He then prepared his injury sheet Exh. P. G. and sent him for medical treatment to Liaqat Memorial Hospital, Kohat. The 'Murasila' Exh. P. A./1 was sent to Police Station Kohat for registration of a case against the accuse3 which was registered under section 307, P. P. C. vide F. I. R. Exh. P. A. On the death of Abdul Wahid deceased the section of law was altered to section 302, P. P. C. He inspected the spot and prepared the site plan Exh. P. G./1. Point No. 1 therein indicates the place where Abdul Wahid deceased was injured by the accused. Some drops of blood not capable of recovery were found there. Points Nos. 2, 3 and 4 relate to the presence of Khalil, Abdul Wahab and Usman (P. Ws.) respectively. Points Nos. 5, 17 feet from Point No. 1, indicates the pole of the street light in the lane. Vide memo Exh. P. B. he took into possession a shirt Exh. P. 1, a 'shalwar' Exh. P. 2 and a 'banyan' Exh. P. 3 of the deceased sent by the doctor. On the death of Abdul Waheed deceased he prepared his inquest report Exh. P. G./3. He sent the blood-stained clothes of the deceased of the Chemical Examiner for analysis. As the accused was not available for arrest he initiated proceedings under section 204, Cr. P. C. and under sections 87/88 Cr. P. C. He arrested the accused at Quetta on 12-7-77. The accused was discharged from the Army on the day of his arrest after he had undergone the sentence in the Quarter Guard at Quetta. The discharge certificate of the accused is Exh. P. G./5. In cross-examination the witness stated that P. P. Bannu-Gate is at a distance of about one furlong from the spot. The spot is in a lane. The brother of the deceased and Umor Farooq (P. W.) had accompanied the injured to the P. P. The brother of the deceased was standing outside the P. P. The deceased was brought in a 'tongs' driven by Ali Marjan. Umar Farooq was present in the P. P. at the time of recording of the report. It was incorrect to suggest that he had kept the brother of the deceased outside the P. P. at the relevant time. When he went to the spot at 8-30 p.m. he summoned the brother of the deceased and recorded his statement under section 161, Cr. P. C. the same night. He had recorded the statements of Ali Marjan and Umar Farooq on 25-5-77. It was wrong to suggest that he recorded the statement of Abdul Wahab (P. W.) on 25-5-77. He had obtained the search warrant under section 201, Cr. P. C. against the accused on 30-5-77. The proclamation under section 87, Cr. P. C. was obtained by him on 6-6-77. He started for Quetta on 6-7-77 in order to arrest the accused and reached there on 8-7-77. On 9-7-77 he contacted the Commanding Officer of the accused who told him that the accused was put in Quarter Guard. On the 12th of July,, 1977 the accused was discharged from Quarter Guard and he arrested him. The Commanding Officer told him that he could arrest the accused on the expiry of his Quarter Guard sentence. Inside the lane there are houses and shops at some distance. The shop of Shamsher Khan Lambardar of Bezadi Chakarkot is in the lane and lies at a distance of 100 paces from the spot. P. A. F. gate would be at a distance of about 60 paces from the spot but he had not given this distance in the site plan. It was wrong to suggest that the occurrence had taken place during the night hours.

11. Sardaraz (P. W. 8) F. C. stated that he was entrusted with the search warrant under section 204, Cr. P. C. issued against Waheed Khan, accused. He searched for him in Bezadi Chakarkot and the adjoining areas, but could not trace him. He returned the warrant Exh. P. K. unnerved. He was also entrusted with the proclamation Exh. P. K./1 which he returned after compliance. In cross-examination, he stated that he enquired about the accused from Malik Mobin Khan (P. W.) but had not recorded his statement though his signature is on the search warrant Exh. P. K.

12. Ali Marjan (D. W.) stated that he knew Umar Farooq (P. W.) who sells fodder to the 'tonga' drivers and owns a fodder Machine. Previously he was working as a servant with Umar Farooq (P. W.) at his machine. Now-a-days he was plying his own 'tongs'. He was tortured by the police in order to appear as a false prosecution witness. On the day of occurrence after evening prayer he took passengers from the bazar and dropped them in front of the shop 'Baray Mian' in Bezadi Chikar Kot. At that time it had become dark and the evening prayers had already been offered. In the meanwhile Abdul Wahid deceased came to him in an injured condition. He enquired from him as to who had stabbed him but the deceased kept quiet and did not charge anyone. The deceased told him that he had not been able to identify the culprit who had run away in the street after stabbing him. The deceased then told him to take him to the shop of Umar Farooq (P. W.). He took the deceased to the shop of Umar Farooq in his 'tonga'. He then carried the deceased to Police Post Bannu Gate, Abdul Waheed deceased and Umar Farooq went inside the police post while he remained outside. Later they came out of the police post after lodging the report and he took them to the hospital. The deceased had also not disclosed to Umar Farooq (P. W.) about the identity of the culprit on the latter's enquiry on the way. In cross-examination the witness stated that in his presence Umar Farooq (P. W.) had not told the deceased to charge the accused for the injuries. The deceased had come to his 'tonga' walking himself. He could talk at that time. He had come to Kohat two years back from his village. He had served with Umar Farooq for about 1 years. During the days of occurrence he was plying his own 'tonga' but when the police teased him he sold it and started driving the 'tonga' owned by different people. He knew the deceased because of his friendship with Umar Farooq. He did not know the accused during the days of occurrence but came to know him afterwards. He lives in Bezadi Chakar Kot. He knows Rakhman Khan father of the accused who is a 'tonga' driver and owned two 'tongas'. His statement under section 164, Cr. P. C. was recorded by a Magistrate on 15-6-77. This statement he gave due to torture of the police. He did not know at the time of occurrence that the accused *was a deserter from the Army. He knows Abdul Wahab (P. W.) the brother of the deceased and Abdur Rauf uncle of the deceased. The deceased, his uncle, and Abdul Wahab (P. W.) were living in Bezadi Chakar Kot in his Mohallah for about six months prior to the occurrence. It was incorrectly recorded in his statement under section 164, Cr. P. C. that when the deceased came to him in an injured condition he on his enquiry told him that he was stabbed by Waheed Khan accused. He was also examined by the police under section 161, Cr. P. C. but that statement was obtained through torture and coercion. He bad not made any complaint to the higher authorities about the torture of the police. He had come for evidence with the father of the accused and was not summoned by the Court. The witness denied the suggestion that as he was living in Bezadi Chakar Kot and the deceased was from Karak Tehsil therefore due to fear of the accused he was giving false evidence to favour him.

13. After taking us through the evidence on record the learned counsel for the appellant contended. Firstly, it was obligatory on the prosecution to have examined Usman Khan son of Ajab Khan mentioned in the F. I. R.-cum-Dying Declaration and this lapse on its part reflects on the veracity of the Dying Declaration. Secondly, the accused-appellant has been falsely involved in the case at the instance of Umar Farooq, his sworn enemy who was present when the Dying Declaration was being recorded, and Lastly, neither there was any sufficient motive for the offence nor was it alleged that the deceased was waylaid or chased by the accused-appellant, as such he is not to be exacted the extreme penalty of death. These objec tions are being dealt with hereafter.

14. The learned counsel for the appellant has not challenged the genuineness of the Dying Declaration but doubts its veracity. According to the statement of Mir Imam Gul (P. W. 7) who recorded the dying declaration at Police Post Bannu Gate about a furlong from the spot the deceased was in perfect senses and could talk coherently. Even Ali Marjan (D. W.) had affirmed it. It is also not contested that the dying declaration was recorded immediately after the occurrence and the deceased could talk and was in perfect senses. As mentioned in the Dying Declaration the deceased was assaulted at 'Sham wela' when the accused had approached him from the front and gave him knife blows on the abdomen and other parts of the body. The accused who a day earlier had also exchanged ho words with the deceased was not a stranger. Such being the case, it is not comprehensible as to why the deceased would not have been able identify his assailant. The contrary statement of Ali Marjan (D. W.) to the effect that the deceased told him that he had not been able to identify the culprit is nothing but a tissue of lies motivated by the fact that the father of the accused also a 'tonga' driver belongs to his class. Moreover the deceased belonged to Karak Tehsil and was temporarily residing at Bezadi Chakar Kot in connection with his studies, while the accused is a resident of Bezadi Chakar Kot, the place of occurrence. The injuries found on the person of the deceased, particularly Injury No. 1, confines the dying declaration, inasmuch as that the accused assaulted him from the front, thereby excluding the possibility of any doubt about the identity of the a assailant. The place of occurrence, its timing and that only one assailant was involved stand further established by the statement of Khalilur Rehman (P. W. 3) a guard posted at National Bank Bezadi Chakar Kot Branch whose presence has teen mentioned in the dying declaration. The complainant side had in writing submitted an application Exh. P. Y. contending therein that Usman Khan (P. W.) mentioned in the dying declaration has been won over by the accused and consequently the Public Prosecutor abandoned him. It is well settled by now that the prosecution cannot be bound down to produce all the witnesses and the choice is their's in this regard. However, it is to be noted that Ali Marjan (D. W.) also abandoned for having been won over by the defence was examined as defence witness. Similarly Usman Khan could have been examined by the defence if it wished to do so. There was no background of previous enmity between the deceased and the accused except that they had altercated a day earlier. Such being the case it is not conceivable that the deceased a student of first-year would have falsely charged the accused for the injuries when he had all the time and opportunity to observe the assailant. In the, circumstances of the case the dying declaration which falls under section 32 of the Evidence Act, which legal position has not been challenged, would have been solely sufficient to base conviction thereupon. Moreover, in the instant case it stands corroborated by the evidence of Khalilur Rehman (P. W. 3) and the abscondence of the accused from 24-5-77 to 12-7-77. According to the dying declaration the occurrence has taken place at 'Sham vela' and this stands corroborated by the unimpeachable evidence of Khalilur Rehman (P. W. 3) the guard of the National Bank Bezadi Chakar Kot Branch, who had stated that he was preparing himself for ablution for offering 'Makham' prayer when in the meanwhile he heard noise in the outside lane and saw a man in injured condition running towards the road side and another running in the opposite direction. This negates the contention of the learned counsel that the incident took place during the noctural hours when the identification of the assailant could not have been possible. The deceased who was repeatedly assaulted with a knife, affirmed by the medical evidence, was as such in a position to identify the accused appellant with whom he was acquainted. After most careful scrutiny of all the physical circumstances as appear from the evidence there is no doubt left in our mind that the dying declaration is truthful and worthy of belief.

15. The trial Judge has disbelieved and rightly too Abdul Wahab (P. W. 4) the brother of the deceased inasmuch as that he was present when the crime was being perpetrated. Had he been present the deceased would have definitely mentioned his name in the F. I. R.-cum-dying declaration. However, that will not discard his evidence in toto particularly with regard to the motive and the other attending circumstances. His evidence also affirms the fact that a day earlier when the accused had hooted the deceased, the latter in turn abused him. Further that during the days of occurrence the accused was a deserter from the Army. The evidence as brought out in the earlier paragraphs of this judgment would show that the accused appellant had absconded after the occurrence. Mir Imam Gul (P. W. 7) A. S. I. stated that he went to Quetta and arrested the accused-appellant on 12-7-77 after he had undergone the quarter-guard sentence. The abscondence of the accused-appellant is another corroborative piece of evidence against him in the case.

16. Nothing has been brought on the record to indicate as to what was the enmity between Umar Farooq and the accused-appellant, even Ali Madan (D. W.) has not been questioned about it. To a question put by the Court as to why the deceased had charged him in the dying statement Exh. P. A./ 1, the reply of the accused was:- "The deceased was a friend of P. W. Umar Farooq. I had enmity with Umar Farooq. At the instance of P. W. Umar Farooq, the deceased had falsely charged me. In fact, the report was lodged at the instance of Umar Farooq. The deceased himself had not made any report at all." It would show that the F. I. R. was lodged by Umar Farooq and not by the deceased. However, no question or even a suggestion was put to Mir Imam Gul (P. W. 7) A. S. I. the scribe of the report, that he recorded the same at the instance of Umar Farooq (abandoned P. W.). On the E other band there was an application Exh. P. Y. by the complainant side praying that Umar Farooq be abandoned as he had been won over by the accused side. It is beyond comprehension as to why the deceased had falsely charged the accused-appellant at the instance of Umar Farooq, a friend as alleged by the defence, and allowed the real culprit to go scotfree.

17. It is not a case in which there is a total absence of motive. Even in the dying-declaration and the evidence, it has been stated that a day earlier to the day of occurrence the appellant and the deceased had altercated. However, about the sufficiency or otherwise of a motive no uniform standards can be laid down. It may vary with the temperament of each individual. It would not be relevant to discover the real motive of an accused person when, as in this case, his guilt for the offence is proved by the direct and acceptable evidence. The absence or insufficiency of a motive does not invest a murder with any virtue to merit lesser punishment. The deceased, a young man and student of first year, was given three stab blows on the vital parts of his body. The accused-appellant was persistent in the attack and his intention to kill is apparent. In these circumstances the submission of the learned counsel that the deceased was neither waylaid nor chased, would not be relevant for awarding him the lesser penalty. On the view of the matter that we take, finding no substance in this appeal, the same is dismissed. The murder reference is answered in the affirmative and the death sentence is confirmed. S. A. H. Appeal dismissed.