G. M. SHAH, J.-The appellant Mohammad Yamin (28) was sentenced to imprisonment for life under section 302, P. P. C. By the learned Additional Sessions Judge, Karachi on a charge of committing the murder of his uncle Abdul Aziz. The appellant has preferred the appeal against the judgment of conviction and sentence. The appellant was not awarded the capital sentence of death as it was random meeting between the appellant and the deceased, and also that the appellant had remained in custody, as an under trial prisoner for about 5 (five) years and further that the appellant had only desired that his sister should go back to her husband.
2. The prosecution case, briefly is that Mst. Sakina (P. W. 1) is the wife of deceased Abdul Aziz. Mst.
Zarina is the sister of the appellant, who is nephew of the deceased. Mst. Zarina was married to one Lalu, about two years prior to the date of occurrence. Due to a dispute between Mst. Zarina and her in-laws the appellant and his father, Abdul Ghani, had brought Zarina to the house of the deceased, after three days of her marriage. The appellant also stayed with the deceased for about six months. The in-laws of Mst. Zarina approached the deceased for taking her back, but she had refused. About eight days before the occurrence, the appellant asked the deceased to send Mst.
Zarina back to her husband's house, to which the deceased had no objection provided Mst. Zarina was willing to go. The appellant, however, continued pressing the deceased to send Mst. Zarina back to her husband but she was not agreeable. Over this, there was exchange of hot words between the appellant and the deceased.
3. On 4th July, 1970, at about 9 a.m., the deceased alongwith some others had attended the Court No. VII in New City Court building on the first floor in a gambling case against them. He and P. W.
Khaliluddin, first informer, were standing together in the verandah, which is in between the latrine and the Court No. VII. Many other persons were also standing there. The appellant came from the verandah side and stabbed the deceased with a 'churri' twice on the chest. Niaz Mohammad (P. W.
3) brought the taxi and the deceased was removed to the Civil Hospital by P. Ws. Khalil and others.
The public present in the verandah and Khalil-ud-Din raised cries. The appellant ran towards the roof, in front of the verandah, and wanted to scale over it, but 4e could not succeed due to the height of the wall. He turned back and jumped through the window, in-between the roof and the latrine, and entered the verandah, when he was caught by the shirt from behind by Khalil-ud-Din and the deceased himself, who soon thereafter, collapsed due to excessive bleeding. H. C. Wahid Hussain, who was standing in the verandah and had seen the attrack upon the deceased, rushed to the spot and caught hold of the appellant, when he was trying to enter the window and had thrown the churri. In the meantime, Police and public present in and around the verandah and the Courts, also reached there. Constable Mohammad Shafi (P. W. 10) and A. S. I. Police Shamim Ahmed (P. W. 8) who were present in Court No. XIII as well as H. C. Iqbal Hussain (P. W. 7), on hearing the cries also came out and reached there. P. C. Mohammad Shaffi had also seen the appellant running with the churri in his hand and trying to jump down from the window leading towards the latrine, and seen him throwing Shafi. The churri was bloodstained. There were blood marks on the wall, on the external side of the window. Blood was also found on the window and only 6 feet away from the place where the deceased was stabbed. A. S. I. P. Shamim Ahmed arrested the appellant and sent him to P. S. Risala. He also prepared the memo of the vardat, in plesence of the Mashirs/Ashraf Ali and Azhar Siddiqui (Exh. 11/A) and also secured the churri vide Memo. Exh. 11/B.
4. Since the deceased was removed to the Civil Hospital by Khalil accompanied by Constable Abdul Hassan, the S. H.
0. Risala Police Station, Sherbaz Khan, also reached there. The deceased had difficulty in breathing, therefore the statement of Khalil-ud-Din was taken down by Sherbaz Khan and was sent to the Police Station for registration of the case (Exh. I6/B) which reads as under :- 'The Korangi Police had arrested 13 persons from the quarter of one Asghar while gambling.
Azizuddin alias 8 Cheecho, rio Korangi and myself were also included in it and so we had come for hearing in this case today to Court No 31. It would be 9-00 a.m. I and Azizuddin were standing adjacent to Court No. 7 in the verandah in between the latrine and Court No.
7. Many other persons were also standing. A man, whose name was later known as Yamin, came towards us from the verandah of the Court. I was standing close the wall. A soon as Yamin arrived, stabbed with, Churri in the abdomen of Azizuddin and immediately thereafter he made a second attack with churri on him which hit him near the chest. The public who was present there and I raised cry whereupon Yamin, alongwith the 'churri' went towards the roof in front. The height of the roof was great and so he could not scale over it and again turned back and jumped through the window in wall between the roof and the latrine and went to the verandah of the latrine, I and Azizuddin caught hold of him by the shirt from the back. Azizuddin immediately fell down there, but I continued holding the shirt from back side and the police employees Subedar, Constable and Head Constable arrived in the verandah of the latrine and caught hold of Yamin and took churri from his hand. Niaz Mohammad, Nisar Ahmed and Maskeen r/o Korangi, who had come to the Court have also witnessed this incident. I. With the help of Ayoub r/o Nazimabad and others, took Azizullah to the Civil Hospital in a Taxi and got him admitted there. It is learnt that Yamin is nephew of Azizuddin and is a vagabond. He had attacked with churri with the intention of killing had we not raised cry. He would have killed him. My complaint, therefore, against Yamin is of (attacking)
Azizuddin with the intention of killing him."
5. The autopsy on the deceased was performed on 10th October, 1970 by Dr. Mohammad Umar, Police Surgeon, Karachi, who found the following external injuries on the dead body :
(1) Incised wound upper abdomen on right side i" x lateral to mid-sternal line.
(2) Incised wound left chest in 7th intercostal space. On the internal examination, the Doctor, found that the pleura was adherent at the left base. About 18 ozs. Of thick fluid with blood was found on left side of chest. Right side of chest contained 8 ozs. Of straw colour fluid.
6. The cause of death given by the Doctor was respiratory failure due to empyema and plural effusion, secondary to stab wounds caused by a sharp-edged weapon like a knife. External injuries Nos. 1 and 2 individually and collectively were sufficient to cause death in the ordinary course of human life.
7. The appellant had denied the prosecution allegations and stated that he had been falsely implicated in this case. To the question put to him in the committal Court, whether he had to state anything more, his reply was :- The marriage ceremony of my sister Mst. Zarina was made against her will and she did not want to go to her susral i.e. The house of her father-in-law. I then handed over Mst. Zarina to my uncle Abdul Aziz alias Jeejo and asked him to arrange for her marriage wherever he liked. Jumman and Ramzan and other two brothers of the wife of my uncle, Abdul Aziz wanted to marry off Mst. Zarina which I disliked and so my' uncle. He had prevented their entry in his house. They were therefore displeased and on the day of incident when he was in the Court he was stabbed by them. I had only come to see my uncle in the Court and listen. I do not know any thing more about this incident, but I have been falsely implicated in this case by Jumman and others who are my enemies."
Whereas at the trial also his statement was more or less the same in the following words :- "Mst. Zarina is my sister. She did not like to go to her husband. Therefore I left her at the house of the deceased. Ramzan, Jumman are the sons-in-laws of the deceased Abdul Aziz. Ramzan & Jumman wanted that my sister Zarina be married to their younger brother Shaukat. I and the deceased did not like that my sister Zarina should be married to Shaukat. My sister also did not like to marry Shaukat. For this reason I had strained relations with the brother-in-laws of my deceased uncle.
Since the deceased was my uncle therefore as a respect I could not smoke in his presence. I therefore, on the day of incident had gone near Court No. XVI, for smoking. When I came from Court No. XVI, I saw one Shahid and Ramzan' were detained by the persons present there. My uncle was lying injured. I wanted to go near my uncle in order to see him. I was arrested and falsely involved in this case. I was taken to the Police Station straight away from the City Court. I am innocent, the case against me is false."
The appellant had led no defence.
8. We have been taken through the evidence by Mr, Kabiruddin, the learned counsel for the appellant and also by Mr. Sabir Hussain Rehman appearing for the State. As a result of the appraisal of the evidence, we are satisfied that there is overwhelming evidence against the appellant to sustain his conviction. The pieces of evidence adduced by the prosecution against the appellant are the following : I. Motive : It was alleged that Mst. Zarina, sister of the appellant had come to stay with the deceased, due to the dispute with her husband and the in-laws. The in-laws of the deceased wanted her hand for the brother-in-law of the deceased, which has opposed by the appellant, who wanted her to go back to her husband and she was not willing. There was exchange of harsh words between the appellant and the deceased which finally resulted in the alleged occurrence. In support of this piece of evidence, the prosecution had examined Mst. Sakina (P. W. I) wife of the deceased, Juman brother of Mst. Sakina and brother-in-law of the deceased H. The -next piece of evidence is an eye-witness account deposed to by two sets of witnesses :
(a) Khalil-ud-Din (P. W. 4) first informer, Niaz Mohammad (P.W. 3) and Asghar Ali (P. W. 5). They were witnesses from the public. In the committal Court, they had supported the prosecution, but at the trial, they were declared hostile.
(b) The second set of witnesses was of the police officers. H. C. Wahid. Hussain, on the day of occurrence, was posted at P. S. Landhi as Court Muharrar and Head Constable. He used to attend Court No. VII in connection with cases of P. S. Landhi. He was standing in the verandah in front of Court No. VII. He had seen the appellant stabbing the deceased and then trying to escape. He and the public had apprehended the appellant who had thrown the churri, with which he had stabbed the deceased. The shirt of the appellant was bloodstained. The blood-stained churri was secured from the vardat and the appellant was taken to the police station Risala and was detained in custody. The evidence of Wahid Hussain was independent uninterested and trust worthy. He was admittedly from the police force but that factor alone cannot make his statement doubtful. His statement is further supported by the arrest of the appellant from the verandah recovery of the blood-stained churri and securing of blood-stained shirt from the person of the appellant. The next witness who supported the eye-witness account of H. C. Wahid Hussain is Mumtaz Muhammad, Additional City Magistrate of Court No. VII. On the day of occurrence at 4th July, 1970, he was working in the Court at 9 a. m. All of a sudden, there was noise and commotion outside the Court room. He left the Court room for his chamber, through the passage. While going towards the Chamber, he saw the appellant having a churri in his hand trying to get down from the first floor to, the ground floor in an attempt to escape. He was being chased by some persons and the appellant was showing them the knife and wanted them not to go near him. Since the appellant did not succeed in jumping down, he returned towards the window of the latrine and wanted to enter inside, where he was caught. The Magistrate was admittedly examined by the Police on 6th July, 1970 for the reason that after Court hours he could, not be contacted by the police as his residential address was not known and the following day was Sunday (5th July, 1970) which was a holiday in those days. His statement therefore was recorded on 6th July, 1970. The presence of the Magistrate in his Court cannot be disputed. He, had no interest or motive in falsely implicating the appellant. The other supporting;evidence is of P. C. Mohammad Shafi of P. S. Drigh Road. On the day of occurrence, he was present in Court No. XXXI in the same. New City Court building, in connection with the service of summons. He had heard the noise and voice shouting 'Pakro Pakro' coming from the side of the latrine on the first floor of the new city Court building. He reached there and saw the appellant running with a churri in his hand and was trying to jump dow through the window leading towards the latrine. He was followed by persons including those of the police. The appellant had thrown the churri, which was picked up by the witnesses. He also saw the deceased holding his stomach, In the meantime P. W. Wahid Hussain caught hold of the appellant with the help of the members of the public, Nothing substantial has been brought out in his cross-examination to discredit his version. The churri was handed over to H. C. Iqbal Hussain who secured it ride Memo. Exh. 11/B. P. W. Shamim Ahmad A. S. I. Was also present in Court No. XIII in the same New City Court building and on hearing of the commotion had reached the rardat. He found that the appellant had already been caught in front of Court No. VII, near the window of the latrine. He took the appellant in custody and sent him to P.S. Risala. He prepared the Memo. Of vardat (Exh. 11/A) from the cross-examination of this witness nothing has been brought out favourable to the appellant.
9. The witnessess who were with the deceased and belonged to the public had given a go-bye to the prosecution. They were declared hostile. Amongst them was the first informer, Khalil-ud-Din. In the trial Court, he took a somersault and displayed complete ignorance as to who had stabbed the deceased. Obviously he was tampered with and had given a false statement in the trial. His first information report is reproduced above. His statement in the Court of Sessions reads :- "The incident took place in front of Court No. VII. P. W. Asghar was sitting in front of Court No. VII. We heard cries. I went there running. I saw the deceased lying in t'he verandah and was bleeding.. He had an injury on the abdomen. I do not know who had stabbed the deceased. One old man had caught hold of a man by his shirt from his back side. The police came there and took away three four persons. I and P. W. Asghar took the deceased to the Civil Hospital in a Taxi."
He was confronted with his statement recorded in the committal Court and had admitted that it was correct, The statement reads as under :- "On 4th July, 1970, I had to appear before Court No. VII in connection with a gambling case, which was registered against 13 accused persons, including by own self, and Azizuddin the deceased. On that date I and Azizuddin were standing outside the Court No. VII, in the gali near the latrines, on the first floor of the new City Court's building. One man came there, whose name I learnt as Yamin, but I cannot identify him, as I simply saw him running. That man inflicted churri injury in the chest and side of abdomen of Azizuddin. The accused then tried to run away inside the latrine through a window where Azizuddin caught hold of his shirt. In the meanwhile one Subedar came there also with two or three constables and they caught hold of the accused. Azizuddin then fell down near the window. I then took the injured to the Civil Hospital, alongwith one Ayoob, Asghar Ali. Azizuddin was admitted in hospital. Police came at the Civil Hospital, and recorded my statement under section 154, Cr. P. C. I produce the same as Exh. 11/A. It bears my left thumb impression. Besides Ayoob and Asghar, Nisar Ahmed, Niaz Ahmed and others also witnessed the incident, Azizuddin and the accused Yamin were uncle and nephew."
This witness was confronted with the relevant portions of his statement recorded in the Committal Court which was brought on the record under section 288, Cr. P. C. As Exh. 9 and is the substantive piece of evidence against the appellant. On considerations of all the aspects and circumstances of the case, the Committal Court statement is a true account and there is no reason to disbelieve it, when it is corroborated in material particulars. There is sufficient case law on the point for accepting the statement recorded in the committal Court, as a substantive piece oflA evidence, when the witness had repudiated and had turned hostile at the) trial to the prosecution.
The statements of Niaz Mohammad and Asghar Ali do not alter the veracity of the evidence of the witnesses Wahid Hussain and others, on the points of stabbing, catching of the appellant at the spot with bloodstained shirt and recovery of blood-stained churri.
10. The evidence of recovery of the churri is supported by P. Ws. Wahid Hussain, Iqbal Hussain and Mohammad Shafi, whereas bloodstained open shirt checked design, was secured by A. S. I. Zakir Ali in presence of Mashirs Mohammad Umar and Karam Illahi from the person of the appellant. The blood-stained churri and the shirt were sent to the Chemical Exam;ner, Government of Sind, Karachi, who analysed the articles and certified that they were stained with human blood.
11. Since the deceased was found unconscious by the police in the Civil Hospital, the evidence at his dying declaration is kept out of consideration being unsupported by other independent evidence.
As a result of the above discussion, the charge against the appellant has been fully proved beyond any reasonable doubt. The appeal is accordingly dismissed.