' Muhammad Ali has submitted this appeal through Superintendent Central Jail, Faisalabad against the order of his conviction passed by the Additional Sessions Judge, Faisalabad on 17th January, 1977 whereby he was convicted under section 302, P. P. C. And was sentenced to imprisonment for life and a fine of Rs, 2,000 half of which, on realisation, was to be paid to the heirs of Shamimul Hassan, deceased and in default of payment of fine the appellant had to undergo further R. I. For two years. The appellant was tried alongwith Ghulam Hassan alias Hassan, Muhammad Younus and Tayyab for committing the murder of Shamim-ul-Hassan but the appellant alone was found guilty and was convicted as mentioned above.
2. Briefly stated the facts of the prosecution case were that on 3rd February, 1974 in the morning Sajjad Hussain son of Shaukat Hussain resident of Quarter No, 202-J, Railway Colony, Faisalabad was returning to his house after purchasing some articles from the bazar when the appellant molested him about which he complained to his brothers Shamim-ulHassan and Naeem-ul- Hassan on reaching his house. Shamim-ul-Hassan and Naeem-ul-Hassan went to the place where the appellant was standing and admonished him. They also slapped him. The appellant went away threatening them that he would take the revenge. At about 10-30 a. m. When Shamim- ul-Hassan was going to the bazar, he was challenged by the appellant who was accompanied by Tayyab, Hassan and Younus. The appellant was armed with a knife while Tayyab was armed with a khanjar. Younus and Hassan were empty-handed. They tried to catch hold of Shamim-ul-Hassan but he raised alarm and after getting himself released from them ran towards his house. On hearing his alarm his father Shaukat Hussain and his brothers Naeem-ul-Hassan and Sajjad Hussain came out of the house but before they could intervene Younus and Hasan had overpowered him and Tayyab had attacked him with his khanjar. Shamim-ul-Hassan, however, was not hurt with the khanjar. Meanwhile the appellant stabbed him with the knife in the chest on the left side. After receiving the injury he fell down and the assailants ran away. He was removed to the hospital where he was medically examined by the doctor. His father, Shaukat Hussain, after obtaining copy of the medico-legal report, proceeded to the Police Station, Peoples Colony to make a report but, on his way, he met Abdul Ghafoor, A. S. I. Near Jhal Khanuana who recorded his statement Exh. P. C. And sent it to the police station for registration of case. Formal F. I R. Exh. P. C/1 was recorded by Ata Muhammad, A. S. I, at 12-30 p. m. And a case under section, 307/34; P. P. C.
Was registered against the appellant and his co-accused.
3. The case was investigated by Abdul Ghafoor A. S. I. And Iqbal Hussain Shah, A. S. I. Abdul Ghafoor A. S. I. After reaching the hospital recorded the statement 'of Shamim-ul-Hassan and took into possession his blood-stained shirt P-4 and Bunian P-5 vide memo Exh. P. H. After visiting the place of occurrence, he secured blood-stained earth vide memo. Exh. P J and prepared its sealed parcel.
On the same day he arrested the appellant and took into possession vide memo. Exh. P E blood- stained knife P. 1 which was dug out from a place near the outer wall of the house of the appellant on the information supplied by him. A sealed parcel of the knife was also prepared. On 12th February, 1974 he received information about the death of Shamim-ul-Hassan. He reached the hospital and prepared the inquest report Exh. P. N. And despatched the dead body of Shamim-ul- Hassan for post-mortem under the escort of Munshi Khan, F. C. On 17th February, 1974 he got site- plan Exh. P. D. Prepared by the draftsman Aurangzeb. Later on, the investigation of the case was taken over by Iqbal Hussain Shah A. S. I., who arrested Ghulam Hassan accused on 25th February, 1974 and on his pointing out recovered blood-stained shirt and shalwar from his house and took the same into possession vide memo. Exh. P. F. He arrested Younus accused on 26th February, 1974 and on his pointing out recovered blood-stained kurta P-3 from his house which he took into possession vide memo. Exh. P. G. Tayyab accused was arrested by Qurban Ali S. I. Police Post Tariq Abad on 13th December, 1974 and after the completion of the investigation the appellant and his co-accused were challaned and were sent up to stand trial under section 302/34, P. P. C.
4. At the trial the appellant and his co-accused did not admit the charge. Eleven witnesses were examined by the prosecution in support of its case; Chemical Examiner's reports Exh. P. W and Exh.
P. M/1 were also tendered in evidence. P W 2 Munshi Khan FC No, 986, P. W. 3 Bashir Ahmad F. C. No, 143, P. W. 4 Yousuf Ali, Head Constable No, 717, P. W. 5 Ata Muhammad A. S. I. And P. W. 6 Aurangzeb, draftsman were formal witnesses. Doctor Bashir Hussain Kahlon P. W. 1 had examined Sham imul- Hassan on 3rd February, 1974 when he was brought in the hospital in injured condition. He had found an incised wound i" x f" (depth was not probed) on the front of left chest which had been caused with a sharp-edged weapon. Medico-Legal report Exh. P. A. Was issued by him after the medical examination. On 12th February, 1974 he had conducted the post-mortem examination on the dead body of Shamim-ul-Hassan which was brought to the mortuary by Munshi Khan F. C. No, 986 and was identified by Shaukat Hussain and Naseem-ul-Hassan. He had found the following injuries on the dead body :
(1) A stitched wound long front of left chest.
(2) Laprotomy wound stitched 8" on the right side of abdomen.
' Internal examination of the dead body showed that in the chest the wall and pleura were torn. Left lung was torn at its lower part. Partitoreum and diaphram were cut. Stomach was cut at its lower part. According to the doctor cause of death was peritonits as a result of injury No, I which was sufficient to cause death in ordinary course of nature. Probable time between injury and death was within about 10 days and between death and post-mortem was about five hours. Dr. Bashir Hussain Kahlon also proved the carbon copies of his post-mortem examination report Exh. P. B. And of the sketch of injuries Exh. P B/1.
5. Zafar Ahmad P. W. 7 was examined to prove the recovery of knife P. I at the instance of the appellant which was taken into possession vide memo Exh. PE. He also deposed that the appellant had confessed before him on the day of occurrence that he had given a knife blow to Shamimul- Hassan in a quarrel with him. Lqbal Hussain P. W. 8 and Abdul Ghafoor P. W. 11 deposed with regard to the investigation of the case while Shaukat Hussain P. W. 9 and Sajjad Hussain P. W. 10 were examined by the prosecution to give ocular account of the occurrence.
6. After the close of the prosecution case the appellants and his co-accused were examined under section 342, Cr. P. C. They controverted the prosecution story and pleaded that they had been falsely implicated in the case due to suspicion.
7. The learned Additional Sessions Judge after considering the prosecution evidence came to the conclusion that the prosecution had not been able to prove its case against Younus, Ghulam Hassan and Tayyab and accordingly acquitted them. The learned Additional Sessions Judge, however, found that the charge of murder was proved against the appellant for which he convicted and sentenced him as noticed earlier.
8. After going through the record of the case with the assistance of the learned counsel for the State it was noticed that the learned Additional Sessions Judge did not believe the prosecution story with regard to the earlier incident when Sajjad Hussain P W 10 was allegedly molested by the appellant because of contradictory statements made by Sajjad Hussain P. W. 10 and his father Shaukat Hussain P. W.
9. Shaukat, P. W. 9 had stated that Sajjad Hussain had gone to the bazar to purchase sugar and tea. He, however, could not bring sugar and tea to his house as the same were spoiled when the appellant teased him and tried to catch him. Sajjad Hussain P. W. 10, on the other hand, had stated that he had gone to the bazar to purchase dal and that he had brought the same to his house.
There was no doubt that the aforementioned statements made by the two witnesses were contradictory but the contradiction noticed above was not on a material point so as to justify total rejection of their evidence with regard to the earlier incident. The learned Additional Sessions Judge also found it improbable that the appellant had remained standing at the place where he had teased Sajjad Hussain P. W. It was difficult to appreciate on what basis the presence of the appellant at the place where he had teased Sajjad Hussain was considered doubtful by the learned Additional Sessions Judge. According to the prosecution case Sajjad Hussain had run from that place towards his house and immediately thereafter his brothers, Naeem-ul-Hassan and Shameem-ul-Hassan deceased had come out of the house on hearing his complaint. How could it be improbable if they had found the appellant standing at the place where he had teased Sajjad Hussain. Since the two brothers were not armed with any weapon nor they had come out of their house after making any preparation to attack the appellant, the latter might not have considered it necessary to leave the place even on seeing them coming towards him. The absence of any previous enmity between the parties clearly showed that some incident must have taken place on the day of occurrence as a result of which Shamim-ul-Hassan was attacked and injured. The prosecution story that the appellant had first teased Sajjad Hussain and thereafter his brothers had abused him and had given him beating is therefore not improbable. It appears that even in the case of the appellant the learned Additional Sessions Judge was carried away by the view he had formed in respect of Ghulam Hassan, Muhammad Younus and Tayyab that they had no motive to join the appellant to assault and cause injuries to the deceased and for arriving at any conclusion he disbelieved the earlier part of the prosecution story but without giving any cogent reason because the contradiction pointed out by him in the statements of Shaukat Hussain and Sajjad Hussain was not sufficient in that behalf. The appellant, therefore, had a motive to assault Shamim-ul-Hassan deceased as stated by the prosecution.
9. The main point for consideration in the present case is whether the appellant's conviction is sustainable on the testimony of the brother and father of Shamim-ul-Hassan deceased as they are the only eye-witnesses who have been produced by the prosecution in support of its case.
Although the appellant in his statement recorded under section 342, Cr. P. C. Had pleaded that he had been implicated due to enmity, yet nothing had been brought out by him on the record in support of his above contention. The mere fact that the two eye-witnesses examined in the case happened to be the close relatives of Shamim-ul-Hassan deceased was not enough A to discard their testimony particularly when no enmity existed between the appellant and the family of Shamim-ul-Hassan deceased. Their presence at the place of occurrence was quite natural as the occurrence had taken place near their house. Moreover, there was nothing on the record to show that the occurrence was witnessed by other persons also besides the father and brothers of the deceased. The occurrence, no doubt, had taken place in broad daylight at a place surrounded by residential quarters and as such the persons residing in the said quarters ordinarily could have come to the place of occurrence on hearing the alarm raised by Shamim-ulHassan deceased but there was nothing in the statements of the two eyewitnesses examined in the case to show that any such person had come to the place of occurrence. In fact no question was put to them on behalf of the appellant in that behalf. Under the circumstances the failure of the prosecution to examine any independent and disinterested person could not be considered fatal to its case.
10. The recovery of the blood-stained knife P-1 at the instance of the appellant was not witnessed by any person from the locality from where the recovery was effected. Zafar Ahmad, a Qaumi Razakar was examined to prove the above recovery. There was no doubt that the Investigating Officer had not strictly complied with the provisions of section 103, Cr.P.C. As he had not called any respectable of the locality to witness the recovery of the blood-stained knife at the instance of the appellant, but the evidence of recovery could not be thrown out merely because of the above irregularity committed by the Investigating Officer. Abdul Ghafoor A.S.I. Who had taken the blood- stained knife P-1 into possession when it was dug out from near the outer wall of the house of the appellant at the instance of the appellant was supported by Zafar Ahmad P. W. 7, who was not shown to be inimical towards the appellant. The mere fact that he was a Qaumi Razakar and he had been assisting the police in the investigation of cases could not make him a stock witness of the police.
11. Besides the ocular evidence, the recovery of blood-stained knife at the instance of the appellant and the medical evidence corroborating the ocular evidence, the appellant's extra judicial confession made by him before Zafar Ahmad P. W. 7, who as noticed above had no cause to depose falsely against him was another piece of evidence which proved the charge against him.
Zafar Ahmad was cross-examined with regard to the alleged confessional statement made by the appellant but nothing could be elicited from him to show that he had falsely deposed against the appellant.
12. The statement of Shamim-ul-Hassan recorded by Abdul Ghafoor A.S.I. On 3rd February, 1974 in the hospital, a copy of which was tendered in evidence and was marked as Exh. PK was another piece of evidence which proved the charge against the appellant. Although the above statement was recorded under section 161, Cr. P.C. By the Investigating Officer, yet it was admissible in evidence under section 32(1) of the Evidence Act after the death of Shamim-ul-Hassan. Reference in this connection may be made to Karam Din v. The State (1).
13. In view of what has been discussed above, the order of conviction passed against the appellant is not open to question. Learned Additional B Sessions Judge has rightly convicted and sentenced the appellant under section 302, P.P.C. This appeal is accordingly dismissed.
14. The appellant may be informed through the jail authorities. . (1) 1969 P Cr. L J 482