' MUHAMMAD EJAZ SWATI, J.---Through the instant Criminal Appeal No, 229 of 2016, the appellant has challenged the validity of the judgment dated 28th May 2016 (hereinafter the "impugned judgment") passed by the learned Additional Sessions Judge-I, Quetta (hereinafter the "trial Court"), whereby the appellant Eid Muhammad son of Abdul Hussain alias Abdul Khaliq had been convicted under section 302(b), P.P.C. And sentenced to death. Murder Reference No, 05 of 2016 had been sent by the trial Court for confirmation of death sentence or otherwise.
2. Facts of the prosecution case are that on the complaint of Qurban Ali (father of deceased Zakir Hussain) through Fard-e-Bayan dated 29th June 2014, an FIR No, 134 of 2014 dated 29th June 2014 was registered with Police Station Brewery, Quetta under section 302 Qisas and Diyat Ordinance (P.P.C.), wherein it was alleged that on the same night at 8:15 p.m. Someone knocked the door of the complainant's house and took his son namely Zakir Hussain (deceased) with him. After some time, one boy came to him and told that someone stabbed his son with dagger and injured him, while the injured was taken to Bolan Medical Complex Hospital, Quetta, but he succumbed to the injuries on the way to hospital. The complainant rushed to the Hospital and found the dead body of his son in a pool of blood.
3. At the trial, the prosecution examined eight-(8) witnesses. The trial Court examined the appellant on the incriminating aspect in the prosecution evidence under section 342, Cr.P.C. The appellant denied the offence. The appellant neither recorded his statement under section 340(2), Cr.P.C. Nor produced any witness in his defence.
4. The trial Court vide impugned judgment convicted and sentenced the appellant as mentioned hereinabove.
5. The learned counsel for the appellant contended that the complainant was not an eye-witness nor he disclosed the source of information; that the name of the eye-witnesses were not mentioned in the FIR nor any motive was disclosed; that PW-2 and PW-3 were chance witnesses and failed to justify their presence at the place of occurrence; that the incident occurred suddenly; that the deceased received one knife blow on his left leg and no intention under section 300, P.P.C.
Was available; that the injuries on the person of dead body had not been supplemented through MLC; that the postmortem report indicates cause of death "excessive bleedings" and it was contributory negligence, therefore, the case of the appellant falls under section 302(c), P.P.C; that mandatory provisions of subsection (2) of section 364, Cr.P.C. Were not complied with inasmuch as certificate was not given under own hand of the learned trial Judge and only typed written statement was signed by him, therefore, the matter is to be remanded to cure the mandate of law.
' The learned State Counsel assisted by the learned counsel for the complainant contended that the ocular account furnished by PW-2 and PW-3 had been corroborated by the postmortem report and disclosure of the appellant; that under Article 17 of the Qanun-e-Shahadat Order, 1984 (hereinafter the "Order 1984") one witness is sufficient; that the appellant had taken the plea of exception, but failed to substantiate through evidence as required under Article 21 of the Order, 1984; that the incident was a preplanned, as the appellant came to the house of the appellant and had taken him to the place of incident; that in the first episode of altercation, the appellant and the deceased were relieved, but the appellant went to his shop and brought a dagger and stabbed to the deceased; that it was a case of prompt FIR, wherein the appellant was specifically named with specific role, which stands corroborated by the medical evidence and the evidence of the disclosure; that normal sentence under section 302, P.P.C. Is death and in absence of any mitigating circumstance, the same is based on sound reasoning; that the statement of the appellant under section 342, Cr.P.C. Was drawn and signed by the learned trial Judge, therefore, no illegality in this respect has been committed by the trial Judge.
6. We have heard the learned counsel for the parties and perused the record. The learned counsel for the appellant besides contending that the convict/appellant was not afforded opportunity of appearing as his own witness in terms of section 340. Cr.P.C., also through Miscellaneous Application No, 394 of 2016 submitted that in the certified copy of section 342, Cr.P.C. Of the appellant in Question No,11, when asked "Do you want to be examined on oath under section 340(2), Cr.P.C.", the reply was written as "It is incorrect". We have considered this aspect of the matter and perused the original record. The question No,11 and answer thereof reads as under: ' Q.No,11- Do you want to be examined on oath under section 340(2), Cr.P.C.
' Ans; No,
7. The original record of the case and paper book reveals the answer of Question No,11 that the appellant was afforded opportunity of appearing as his own witness in terms of section 340(2), Cr.P.C. But he had not opted the same, therefore, the contention of the learned counsel for the appellant is contrary to record. The Miscellaneous Application No, 394 of 2016 is dismissed accordingly.
8.The learned counsel for the appellant through Criminal Miscellaneous Application No, 901 of 2016 and Criminal Miscellaneous Application No, 401 of 2016 in Criminal Appeal No, 229 of 2016 linked with Murder Reference No, 05 of 2016 submitted that certificate of statement under section 342, Cr.P.C. Was not given under own hand of learned trial Judge and only typed written statement was signed by him and thus, provisions of subsection (2) of section 364, Cr.P.C. Were not complied with, which vitiates the .Trial. We have considered this aspect of the matter. Examination of accused under section 342, Cr.P.C. Was intended to afford him final opportunity to explain incriminating circumstances appearing in evidence against him and in this respect, provisions contained in section 342, Cr.P.C. Are mandatory.
9.In the instant case, at the end of statement of the appellant, certificate signed by the trial Judge showing that statement was recorded in presence and hearing of the Court, therefore, the provisions of subsection (2) of section 364, Cr.P.C. Have been complied with. The mere fact that such certificate typed and signed by the trial Judge would not vitiate the trial, as it would neither prejudice the appellant nor affect the case on merit. Reference is placed on the judgment reported in PLD 2005 Karachi 177, therefore, the Criminal Miscellaneous Applications are dismissed accordingly.
10. Adverting to the merit of the case, the fact that deceased Zakir Hussain met with homicide death is beyond dispute. It was a case of prompt FIR, lodged within half an hour of the occurrence.
The appellant was specifically named therein, definite role of stabbing knife blow on the left leg of the deceased was attributed to the appellant. The promptitude with which the matter reported would rule out the possibility of false implication and even otherwise it is repellent to common sense that the complainant Qurban Ali, who is the father of the deceased Zakir Hussain would leave the real culprit and involve someone else. During trial, the complainant Qurban Ali PW-1 supported the contents of Farde-Bayan Ex.P/1-A and FIR Ex.P/8-A. PW-2 Ali Raza in his testimony deposed that on 29th June 2014 at about 8:15 p.m. He attracted the crowd near Imam Bargah, where there was exchange of hot words between the appellant and deceased Zakir Hussain, who were relieved. The appellant in rage went to his shop and brought a knife and hit on the left thigh of the deceased, as a result of grievous injury, the deceased fell down and became unconscious. He with the help of inhabitants of the area had taken the deceased to BMC Hospital, but he succumbed to the injuries in the way. PW-3 Altaf Hussain being an eye-witness further supported the version of PW-2. This witness besides narrating the facts of the incident also stated that after the incident, the father of the deceased came at the spot. The ocular account furnished by above two prosecution witnesses had been challenged by the learned counsel for the appellant that they were chance witnesses and failed to justify their presence at the spot. The incident had taken place near Hussain Abad Imam Bargah Abutalib Road, Quetta, therefore, the attraction of inhabitants of the area cannot be termed by chance. Admittedly, murders are not committed with previous notice to the witnesses soliciting their presence. If a murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street/public place, passersby will be witnesses, their presence cannot be discarded or viewed with suspicion on the ground that they are mere "chance" witnesses, therefore, the evidence of PW-2 and PW-3 cannot be rejected on the ground that they are partisan witnesses, however, their evidence has to be carefully scrutinized. The evidence of chance witnesses could not be discarded, if they justified their presence at the place of occurrence. During trial, PW-1 and PW-2 remained consistent on all material particulars of the prosecution case, insofar as the role attributed to the appellant is concerned, their testimony is corroborated by the postmortem report Ex.P/5-A to Ex.P/5-E, which is consistent with the ocular account insofar as the weapon, locale of injury and the time, which lapsed between the injury and postmortem examination is concerned. The veracity and credibility of PW-2 and PW-3 had been tested through lengthy cross-examination, but nothing came on record to discredit their evidence or discredit their testimony in any manner, as the incident occurred at a public place and their credibility had been tested through cross-examination.
Reference is invited to the case of Muhammad Ashraf and another v. The State, PLD 1977 SC 538.
11. In the instant case, the evidence of PW-2 and PW-3 had also been challenged on the ground that their names had not been mentioned in the FIR. The statements of PW-1 and PW-2 under section 161, Cr.P.C. Were recorded soon after the incident. No motive or enmity for false implication of the appellant had been attributed to the said witnesses, therefore, we are of the opinion that they being natural witnesses had brought the true facts of the incident and their testimony cannot be discarded on mere objection of the learned counsel for the appellant. Besides the incident had taken place in a public place and at the time of arrival of the father of the deceased i,e, complainant Qurban Ali, there was crowed/gathering of the people, therefore, non-mentioning the name of PW-2 and PW-3 in the FIR by the complainant was an omission would not discredit the testimony of PW-2 and PW-3. Reference is placed to the case of Muhammad Mushtaq v. The State PLD 2001 SC 107, wherein the Hon'ble Supreme Court of Pakistan observed as under:-- "We are not inclined to agree with him because as per record of the case this witness was examined on the same day when FIR. Was lodged. As far as non-mentioning his name in the FIR. Is concerned it was not necessary because such-like matters where heinous crimes are committed the complainant can omit the name of any witness particularly where there is large gathering available either before or after commission of the offence. However, no enmity or ulterior motive to involve the appellant in the commission of the offence has been attributed to the witness, therefore, we are of the opinion that he being a natural witness has brought on record true facts and his deposition cannot be disbelieved because of the objection of the learned counsel. It is also to be noted that if the prosecution wanted to fabricate the evidence against the accused there was no hurdle for it to mention his name in the FIR from the very beginning. Since investigation of the case has been conducted in an honest way, therefore, whosoever was important witness notwithstanding the fact whether his name appeared in the FIR, his statement was recorded and he stood to the test of cross-examination during Court statement "
12. Adverting to the next contention of the learned counsel for the appellant that the incident had taken place at the spur of moment and exchange of hot words between the appellant and deceased and in absence of preplanned and premeditation, the appellant had no intention to commit Qatl-i-Amd of the deceased, as the deceased received only one knife blow injury on his left thigh and according to the postmortem report, the deceased died due to excessive bleeding.
Learned counsel mentioned that as per statements of PW-2 and PW-3, there was two private hospitals near the place of occurrence, but the deceased was not taken to the said hospitals, therefore, it was a contributory negligence and at the best case of the appellant falls within the ambit of section 302(c), P.P.C. Is not tenable, because the postmortem report Ex.P/5-A to Ex.P/5-E reveals that the deceasea Zakir Hussain received single stab incised wound of size about 8.1 cm on left thigh. The wound was deep and femoral artery was found cut in two halves. The relevant is reproduced herein below:- "After complete postmortem examination of the deceased Zakir Hussain, I am of the opinion that he died due to severe bleeding and damage of vital blood vessels on leg caused by sharp weapon and HOMICIDAL in Manner.
' Probable time that elapsed--- Immediate.
(a) between injury and Death
13. From the above, it reveals that the death of deceased Zakir Hussain was homicidal in nature and was caused by means of sharp weapon, which damaged vital blood vessels and probable time that elapsed between injury and death was "immediate".
' The blow inflicted by the appellant by means of knife/dagger on the left thigh/leg of the deceased Zakir Hussain was so imminently dangerous, which caused his death immediately and the act of the appellant falls under section 300, P.P.C. Reliance is placed to the case of Malu and another v. All Bakhsh and others 2013 SCM R 771, wherein the Hon'ble Supreme Court of Pakistan observed as under:-- "The learned High Court while converting the death sentence of the appellant to the life imprisonment has held that the appellant did not have the intent to commit qatl-e-and of the deceased who received only one injury at his left thigh and as per medico legal report the deceased died because of excessive bleeding and, therefore, the case of the appellant falls under section 315, P.P.C. Punishable under section 316, P.P.C. We are not persuaded to accept this view of the learned High Court, as section 300, P.P.C. Is clear on this issue, which is reproduced for sake of convenience:-
300. Qatl-e-and. Whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death or with the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is-said to commit qatl-i-and The above section categorizes offence of qatl-i-and in three forms i,e, intention of causing death or intention of causing bodily injury by doing an act which in the ordinary course may cause death and or the knowledge that his act is so imminently dangerous that it must in all probability cause death. In the case in hand, the act of the appellant falls in the 3rd category of section 300, P.P.C. Where the appellant had the knowledge that by causing firearm injury of Kalashnikov on the deceased, in all probabilities, his act would cause his death. The learned High Court while recording findings in the impugned judgment has held that since the appellant had hit the deceased on his left thigh and the deceased died due to profuse bleeding, therefore, the appellant was not guilty of Qatl-i-amd but was guilty of Qatl shibh-i-amd, defined under section 315, P.P.C., and while commuting his sentence from death to life imprisonment convicted him under section 316, P.P.C. This finding is not only {{ Incomplete Citation }}