P L D 1994 Karachi 421 (PLP)

SYED DEEDAR HUSSAIN SHAH, J‑‑Appellant Akhtar Ali was convicted by learned Sessions Judge, Khairpur for the offence under section 302, P.P.C. vide his judgment dated 9‑6‑1992 and sentenced to death and to pay a fine of Rs.20,000 or in default to suffer R.I. for six months more. It was ordered that if the amount of fine was recovered, half of it be paid to the heirs of deceased as compensation under section 544‑A, Cr.P.C. The appellant has challenged his conviction ,and sentence ‑through above appeals. There is also a criminal reference by learned Sessions Judge for confirmation of the death sentence in terms of section 374,Cr.P.C. Both the appeals and the confirmation case are being disposed of by this single judgment.

2. The prosecution story as narrated by complainant Agedino in the F.I.R. Exh.7 lodged on 30‑6‑1988 at Police Station Gambat is that on the day of incident he and his son Barkat Ali were standing near the mosque of Gulab Shah in Pir Mohalla bazar when the appellant came there from southern side and challenged Barkat that since he had fought with his brother Moosa earlier, he would not be spared. He then took out a knife from the fold and stabbed Barkat Ali on right side of his chest and wrist of his left arm. As A, result of injuries Barkat Ali fell down. Complainant raised cries which attracted his brother P.W. Muhammad Azim and son‑in‑law Rab Nawaz. These witnesses also saw the appellant inflicting injuries to deceased Barkat Ali and fleeing from the scene of occurrence. Barkat Ali succumbed to his injuries on the spot. Leaving the witnesses over the dead body complainant went to Police Station Gambat where he lodged his F.I.R. Exh.7.

3. As regards motive for the commission of crime it was alleged that the appellant retaliated the fight of deceased with his brother Moosa and committed the offence of murder. '

4. After recording of F.I.R., A.S.I. P. Ghulam Shabir of Police Station Gambat inspected the Wardat in the company of complainant, situated in the street near Gulab Shah Mosque Pir Mohalla Gambat. He found blood‑stained earth at the Wardat which was secured and sealed. Mashirnama of Wardat was prepared in presence of Mashirs Akhtar Ali and Ali Gul as Exh.ll. The ASIP then went to Taluka Hospital, Gambat and prepared inquest report Exh.12 and memo. of inspection of dead body Exh.13 in presence of same Mashirs. The dead body was handed over to Medical Officer for autopsy. A.S.I.P. thereafter recorded statements of P.Ws. Muhammad Azim and Rab Nawaz in the hospital. Thereafter, he handed over case papers to Inspector S.H.O. Haji Muhammad who verified the investigation conducted by A.S.I.P. Ghulam Shabbir and recorded the statements of P.Ws. Ali Bux and Arbab.

5. On 2‑7‑19138 he received spy information that the appellant was available in his house. He, therefore, went to the house of appellant and arrested him in presence of Mashirs Akhtar Ali and Ali Gul vide Mashirnama Exh.19. Thereafter, the appellant voluntarily led them to a Khabar tree near graveyard of Pir Hafiz Shah and produced the crime weapon i.e. a blood stained knife after digging out earth from Khabar bushes lying under dry leaves. Knife was secured and sealed by S.H.O. Haji Muhammad in presence of same set of Mashirs and' Mashirnama Exh.20 was prepared. He also prepared sketch of knife on back of mashirnama and took measurement of blade of the knife which was found to be 6 inches. As the appellant had no licence in respect of the knife. the S.H.O. lodged F.I.R. under section 13(e) Arms Ordinance on behalf of State as well against the appellant. The S.H.O. examined P.Ws. Ghulam Shabir, H.C. Niaz and P.C. Guhlam Hyder. On the next day, he produced P.Ws. Rab Nawaz and Muhammad Azeem before Mukhtiarkar and F.C.M., Gambat for recording their 164, Cr.P.C. statements. On completion of the investigation he challaned the appellant and sent blood?stained knife and earth to the Chemical Examiner for his report which he has produced as Exh.18/A.

6. At the trial the prosecution adduced evidence of P.W.1 complainant Agedino Exh.6, P.W.2 Muhammad Azim Exh.8, P.W.3 Ghulam Shabir Exh.10, P.W.4 Niaz Hussain Exh.16, P.W.5 Haji Muhammad S.H.O. Exh.18, P.W.6 Dr. Muhammad Yousif Exh.22. P.W.7 Akhtar Ali Exh.24 and P.W.8 Ali Gul Exh.26. Remaining witnesses were given up by the D.P.P.

7. Appellant when examined under section 342, Cr.P.C., he denied the allegations of the prosecution and proclaimed his innocence and that deceased Barkat Ali was a quarrelsome person who had enmity with so many persons. He had caused injuries to Imam Bux Soomro two months prior to incident. He claimed that it was rumour in the town that some Goonda elements had caused injuries to deceased at Haji Shah and that after receiving injuries he was going to his house when on his way he fell down at the place of incident. He alleged that his name had been given due to dispute over common wall of the houses of complainant and 'appellant and due to that reason and suspicion he was implicated in this case. The appellant, however, declined to examine himself on oath. No defence witness was examined on his behalf.

8. On conclusion of trial learned trial Court formulated the following points for determination: (1)??????? Whether Barkat Ali was killed? (2)??????? Whether accused intentionally and knowingly committed murder of Barkat Ali?

9. Finding both the points in affirmative, the trial Court convicted the appellant and sentenced him as stated above.

10. So far point No.l is concerned besides ocular evidence of complainant Agedino and P.W. Muhammad Azim. there is expert medico‑legal evidence of Dr.Muhammad Yousif who has testified that during the course of post‑mortem examination he found the following external injuries on the dead body: (1)??????? One stab wound on the front of the right chest near sternum, 3‑3/4 cm x 1-1/2 cm x cavity deep. (2)??????? One incised wound on left lower fore‑arm on the dorsal aspect near the wrist‑joint, measuring 7‑1/2 cm x 1‑1/4 cm x skin deep.

11. On internal examination Medical Officer had noticed that right pleural cavity, right lung and right pulmonary blood vessels were ruptured. The stomach and small intestines contained semi‑digested food material. Large intestine contained gases and small faecal material.

12. From external as well as internal examination of the dead body the doctor was of the opinion that the death of the deceased was due to internal haemorrhage as a result of external injury No.l which was sufficient to cause death in the ordinary course of nature. According to him both the injuries were ante‑mortem and appeared to have been caused by a sharp‑cutting weapon such as dagger. Probable time between injuries and death was a few minutes while the time between death and post‑mortem examination was half an hour. He has produced post‑mortem report as Exh.23.

13. Learned defence counsel has not challenged the evidence of medical expert, therefore, it is conclusively proved that the deceased met an unnatural death.

14. So far point No.2 is concerned, the prosecution case rests on three pieces of evidence (i) ocular testimony, (ii) circumstantial evidence, (iii) motive.

15. In this case ocular testimony has been furnished by complainant Agedino and P.W. Muhammad Azim. Agedino Exh.6 has deposed that on the day of incident he was present in the bazar with his son deceased Barkat Ali when at about 10‑00 a.m. appellant Akhtar appeared there and challenged the deceased that he would not be spared because he had abused Mooso, brother of appellant. Immediately appellant took out a dagger and stabbed him at chest, nipple and left arm. On receiving the injuries, deceased Barkat Ali fell down. In response to the cries of complainant there came P.Ws. Muhammad Azim and Rab Nawaz who also witnessed the incident. The shopkeepers immediately closed their shops and ran away. He removed his son in injured condition who breathed his last on way to hospital.

16. In his cross‑examination complainant Agedino has admitted that there were hotels and shops round about the Wardat and that several persons had witnessed the incident. He has also admitted that in front of Wardat there was a shop of Abdul Rehman who also was present but he ran away after closing his shop. He also admitted that P.W. Rab Nawaz had a house in Ranipur and that he was living with him as his wife had given birth to a child about 2/3 days prior to this incident. He repelled the suggestion that he had dispute with accused over the house. He emphatically denied that he had not witnessed the incident or that P.Ws. Rab Nawaz and Azim were not present at the Wardat. The complainant also refuted the suggestion that deceased and some Goondas had fought with each other at Haji Shah.

17. Next eye‑witness examined by the prosecution is P.W. Muhammad Azim Exh8ue has deposed that complainant is his brother. On the fateful day he alongwith P.W. Rab Nawaz had gone to bazar to purchase some articles at 11‑00 a.m. When they reached near shop of Kadir he heard cries. Both of them rushed towards the Wardat and saw the appellant causing two dagger injuries to Barkat Ali. One injury was sustained by the deceased on chest near right nipple and second on arm. After the departure of appellant, they found Barkat Ali lying on the ground and bleeding. The deceased died on the Wardat which was situated near Gulab Shah Mosque.

18. In his cross examination P.W. Muhammad Azim stated that he was living at the back side of house of complainant. He also stated that he used to cut Bidi leaves in his house up to 11‑00 or 12‑00 noon whereafter he went to the shop of Kadir at a distance of 80 or 85 feet from the Wardat. He denied the suggestion that he had not seen the accused causing injuries to the deceased. He also denied that two months prior to the incident deceased had caused injuries to Imam Bux or that the deceased received injuries at the hands of Imam Bux and others. The third eye‑witness Rab Nawaz was given up by learned D.P.P. as he was not inclined to support the case of the prosecution.

19. Mr. Muhammad Nawaz Sheikh learned counsel for the appellant has submitted that no independent witness of the locality has been cited by the prosecution while both the witnesses i.e. complainant Agedino and P.W. Muhammad Azim are interested 'witnesses, therefore, their testimony cannot be relied upon. A close scrutiny of evidence of both the witnesses reveals that incident had taken place in the broad daylight at 11‑0 a.m. whereas the F.I.R. was lodged at i1‑15 a.m. Names of the witnesses were mentioned in the F.I.R. in which specific role of stabbing the deceased was clearly attributed to the appellant. Evidence of both the eye‑witnesses is confidence inspiring as they, have given a very clear cut account of the incident. They have fairly admitted that there were shops in the bazar and people had collected there but immediately after incident they closed their shops and left the place. This is a natural phenomena and there is a general tendency that normally people do not take the risk of giving evidence in heinous crimes being strangers and do not come forward to depose for or against a criminal. Both the witnesses have stood the test of the cross‑examination and nothing has been brought out in their statements so as to discredit their evidence. In fact their credibility has not been impeached and no adverse circumstance has been brought on record.

20. It has been observed by the Supreme Court in 1978 SCMR 136 that witnesses related to deceased would not normally allow real murderer to escape and instead implicate innocent person. However, the evidence of such witnesses is required to be scrutinized carefully but not to be rejected on that score. Now in the instant case testimony of both the witnesses does not suffer from any inherent infirmity of defect, therefore, implicit reliance can be safely placed on their testimony. In view of this situation the contention of learned counsel that none else from the locality has been examined as a witness, is devoid of any force. We are fortified in our view by the observations made by the Hon'ble Supreme Court in PLD 1976 SC 291 relevant para. at page 295 as under: "It is of interest to mention here that having regard to the facts and circumstances of the case there is no doubt about the fact that the .incident which took place at, e day time in a bus filled with passengers? 'could not have gone unnoticed and the assailant unrecognized. The.? deceased and the appellant as well as the prosecution witnesses all came from Umar Miana and the recognition of the appellant was,? therefore, very likely and natural. This view finds support from the fact that upon the firing of the fatal hot the passengers immediately. cried out that Iqbal had shot at/killed the deceased. Nevertheless none of the passengers came forward to say that he actually saw the appellant fire at the deceased. This is unfortunate and can only be understood in the context of the conditions obtaining in that part of the country where the occurrence took place, namely, the reluctance of witnesses lack of courage on their part to depose against the assailant for fear ?????? of reprisal. This discloses a lamentable lack of civic sense and responsibility on the part of citizen to tell the truth and to act for the ?? benefit of the society and in aid of the authorities charged with the duty of maintaining law and order '?

21. In the present case it is established that the incident took place during broad daylight in early hours. The complainant and P.W. Muhammad Azim are natural witnesses of occurrence and there is no reason to suspect their testimony.

22. In addition to above direct and ocular evidence there is corroborative evidence with regard to production of crime weapon by the appellant soon after his arrest. Apart from the fact that S.H.O. Haji Muhammad had arrested the appellant on 2‑7‑1988 and secured blood‑stained crime weapon in presence of Mashirs Akhtar Ali and Ali Gul, there is positive report by the Chemical Examiner who detected human blood on it. Voluntary production of crime weapon by the appellant has been materially supported by P.W. Ali Gul while P.W.; Akhtar Ali was declared, hostile as he was inclined to favour the appellant being won over. ,

23. In support of his contention that ocular evidence does not inspire confidence for lack of strong corroboration learned defence counsel has relied upon the following judgments:, (1)??????? 1992 PCr.LJ 564, (2)??????? 1992 PCr.LJ 518, (3)??????? 1993 SCMR 1628 (4)?????? 1993 SCMR 417, (5)????? 1992 PCr.LJ 1310.

24. In 1992 PCr.LJ 564 eye‑witnesses were closely related inter se; they were chance witnesses as admittedly they did not live in the vicinity of occurrence; post‑mortem report was directly in conflict with ocular account and the prosecution witnesses who had admitted their relationship with deceased had gone home leaving him unatteneded. In these circumstances it was held .by a Single Judge that the conduct of the, witnesses was extremely unnatural and unbelievable.

25. In 1992 PCr.LJ 518 prosecution had not succeeded in proving motive of occurrence; apart from the fact that eye‑witnesses were nearest relatives, their testimony was not only inconsistent but contradictory to each other on many aspects and the whole case was found to be full of doubts and improbabilities. It was in these circumstances that a learned Single Judge in the Lahore High Court concluded that it was highly unsafe to maintain conviction on a capital charge.

26. In 1993 SCMR 1628 their Lordships of the Supreme Court observed that the acquittal of accused by trial Court being neither perverse nor based on misreading of evidence, High Court was not justified in interfering with the acquittal judgment simply because it had taken another view of the evidence in the case.

27. In 1993 SCMR 417 a Full Bench of the Supreme Court held that the ocular version was not consistent with medical evidence; eye‑witnesses were not reliable and their presence at the spot was doubtful; recovery of gun from accused after 13 days of his arrest and matching of pieces of butt recovered from the spot with the said gun was highly doubtful; evidence of motive was not satisfactory and the defence plea even if not proved was sufficient to cast doubt on the credibility of the prosecution case which even otherwise was doubtful.

28. In 1992 PCr.LJ 1310 a Single Judge of the Lahore High Court concluded that the police‑was found to have fabricated the evidence of the extra‑judicial confession against the accused to prove the unwitnessed crime and that belated recovery of the Sarya (weapon of offence) at the instance of accused witnessed by an interested and chance witness could not be relied upon.

29. It would appear that all the above cases are very clearly distinguishable on facts and of no avail to the appellant.

30. So far the appreciation of evidence is concerned we may observe that every criminal case has its own peculiar facts and circumstances. Learned counsel has urged that in the F.I.R. the weapon used is mentioned as knife whereas in the evidence of the two prosecution witnesses it is described as dagger which is a material contradiction. We have given our, considered thought to this discrepancy and come .to the conclusion that there is no material difference between a knife and a dagger. In the evidence, size 'of the blade of the weapon has been given as six inches while injuries had been caused by sharp‑cutting weapon like a dagger as opined by the Madico‑legal Officer. Slight variation between the description of a knife and dagger in our view is of no consequence and not at all fatal to case. By use of word knife in the F.I.R. dagger in the evidence prosecution has neither changed the nature of evidence nor criminal liability of the appellant.

31. Mr. Sheikh Muhammad Nawaz learned counsel for appellant has referred us to a Single Bench Judgment 1992 PCr.LJ 1310 (Lahore) in which it has been held that in the natural course of events blood normally disintegrates after a month or so. In this case the blood‑stained earth and crime weapon were despatched to Chemical Examiner vide letter dated 22‑8‑1988 through P.C. Ghulam Mustafa which were duly received in the office of Chemical Examiner on 20‑10‑1988. It is not denied that the Chemical Examiner in his report has opined that both the articles were stained with human blood. In his evidence the Investigating Officer has claimed that he had sent these articles for chemical examination to S.P., Khairpur for onward transmission to Chemical Examiner. He has produced Chemical Examiner's report in evidence but no exception was taken to his testimony or the report which is admissible in evidence without the examination of Author under section 510, Cr.P.C. Ordinarily the said report is presumed to be correct unless challenged. Obviously no request was made to the trial Court to summon the Chemical. Examiner. There is thus no substance in the contention raised by the defence counsel at this stage. Moreover, we are not inclined to agree with the general view taken by the learned Single Judge in Lahore case which is even otherwise clearly distinguishable on facts.

32. Besides there is sufficient evidence on record to connect the appellant with the commission of crime in the form of motive for the crime. On this point the evidence of complainant Agedino is that in order to take revenge of abuses given by deceased to Mooso brother of the appellant he had committed the instant crime. This very fact had been stated by the complainant at the earliest stage in the F.I.R. also. Mr. Muhammad Nawaz Sheikh learned defence counsel has argued that prosecution has failed to establish the motive, therefore, the case is not free from reasonable doubt. We are unable to understand as to how in the face of aforesaid statement of complainant the motive has not been proved. Reliance has been placed on 1971 SCMR

432. There is no cavil with the proposition of law enunciated in the above case but it is of no avail to the appellant in view of satisfactory evidence ‑on record in corroboration of the strong and unimpeachable ocular evidence.

33. The appellant in his statement under section 342, Cr.P.C. stated that deceased Barkat Ali was a quarrelsome person and he had enmity with so many persons including Imam Bux son of Pir Bux Soomro. He also alleged that deceased had caused injuries to Imam Bux about two months prior to incident and it was possible that some Goondas had caused injuries to the deceased. This statement on tire face of it does not inspire much confidence as it has been advanced by way of afterthought defence theory. No evidence with regard to enmity with deceased with Imam Bux has been brought on the record. Furthermore, there is no evidence at all regarding quarrelsome character of deceased except the bare word of the appellant. Even otherwise enmity is considered to be a double‑edged weapon which cuts bout ways. On the one hand it may be a motive for commission of crime and on the other hand a ground for false implication. We are, therefore, not impressed by the plea taken by the appellant which is without any merit.

34. As discussed earlier the incident took place in the morning hours and name of the appellant was mentioned in the promptly recorded F.I.R. with specific part that he had caused fatal injuries on the person of the deceased one in the chest near nipple and the other at the right arm.

35. The cumulative effect of the aforesaid discussion is that the testimony of complainant Agedino and PW Muhammad Azim has been found to be truthful, natural and confidence‑inspiring. Their testimony has been materially corroborated by medical evidence of Dr. Muhammad Yousif who had found two incised wounds on the person of the deceased. Besides their evidence stands strongly supported by recovery of crime weapon i.e. blood‑stained C dagger at the pointation of the appellant which was found to be stained with human blood by the Chemical Examiner. We have, therefore, come to the conclusion that the prosecution has established the guilt of the appellant beyond any shadow of doubt. We would, therefore, dismiss the appeal and uphold the judgment of the trial Court. Criminal reference for confirmation of death sentence by the trial Court is accepted. We also find no justification to upset the finding of the trial Court regarding impositibn of fine of Rs.20,

000. N.H.Q./A‑1479/K ????????????????????????????????????????????????????????? Appeal dismissed.