SARDAR MUHAMMAD, J----Appellant Sikandar (27) was convicted by the learned Additional Sessions- Judge, Faisalabad vide orders dated 12-10-1979 for the murder of Muhammad Aslam (deceased) and sentenced to death and a fine of Rs. 5,000, in default whereof to suffer R. I. For 2 years. The fine, if recovered, was ordered to be paid to the heirs of the deceased. Manzur Ahmad co-accused of the appellant was acquitted vide same order. Murder Reference No. 293 of 1979 and Criminal Appeal No. 1149 of 1979 are being disposed of by the same order.
2. The occurrence took place at 4 p. m. On 18-2-1977 in the premises of Nadir Cinema, Gulberg, Faisalabad.
3. Muhammad Aslam Sub-Inspector P. W. 12 received information of the occurrence, he reached the spot and recorded statement Exh. P. E. Of Muhammad Aslam deceased at 4 p m. In, the premises of Nadir Cinema: Formal F. I. R. Exh. P. E. 1 was recorded by Muhammad Aslam, Moharrir Head Constable P. W. 7 at 4-30 p. m. At Police Station Gulberg, Faisalabad. Muhammad Aslam (deceased) who was, still alive, was sent for medical treat--ment to the Districts Headquarters Hospital, Faisalabad. Dr. Abdul Haleem Sahoota P. W. 4 issued medico-legal certificate Exh. P. B. 1, on the race of application Exh. P: B, submitted to him by Muhammad Aslam, Sub-Inspector P. W. 12.
He recorded four stab wounds on Exh. P. B.
1. The same day Muhammad Aslam, S. I. On receipt of information that Muhammad Aslar3 has died, reached the hospital. He prepared the inquest report Exh. P. K. And entrusted the dead body to Muhammad Ashraf F. C. And Muhammad Hanif F. C. P. W.
6 for post-mortem examination. The post-mortem examination was conducted by Dr. Major Yusaf Ali P. W. 5. (Medical Evidence).
4. The appellant was arrested by Muhammad Aslam. S. I. P. W. 12 on 20-2-1977. He was wearing blood-stained shirt P. 7 and Chaddar P.
8. The Sub-Inspector after removing the same from his person, took them into possession vide memo. Exh. P. H. On the same day the appellant while in custody of Muhammad Aslam, S. I. Led to the recovery of blood-stained knife P. 6 from a room of his residential house in Civil Quarters Ghulam Muhammad Abad which the S. I. Took into possession vide memo. Exh. P. G. The recovery memos. Were attested by Muhammad Amin P. W. 10 and Abdul Majid P. W.
11. The co-accused Manzur Ahmad was also arrested on 21-2-1977. His shirt P. 9 and Shalwar P. 10 were also taken into possession vide memo. Exh. P. J. After the completion of necessary investigation the challan was put in-Court.
5. The prosecution case briefly, as per statement Exh. P. E. Of the deceased is that the deceased bad gone to Nadir Cinema in company of Muhammad Amin P. W. 10 and Abdul Majid P. W. 11 to witness the matinee show. Abdul Majid and Muhammad Amin P. Ws. Took position in the queue to purchase tickets while the deceased stood nearby. Suddenly the appellant and the acquitted accused Manzur appeared there. Manzur accused caught the deceased from the arm while the appellant gave injuries with the knife on the chest, left thigh and stomach of the deceased who fell down. Whereafter the appellant caused 2 more injuries on the back of the deceased. On the hue and cry raised by the deceased, Abdul Majid and Muhammad Amin P. Ws, came forward to rescue him and attempted to catch the accused, but both of them ran away.
6. According to the statement (Exh. P. E.) the motive for the occurrence was that about 2-3 months before this occurrence a dispute had taken place between the deceased and the appellant in Babar Cinema where the deceased had given beating to the appellant. It is stated that the appellant in order to avenge launched the murderous assault with knife on the deceased.
7. At the trial, the prosecution examined in all twelve witnesses. Dr. Abdul Haleem Sahoota P. W. 4 has been examined to prove the medico--legal certificate P. B. 1 issued by him with regard to the injuries of the deceased. Dr. Major Yusaf Ali P. W. 5 conducted the post-mortem examina--tion. The injuries and the opinion have already been recorded in the preced--ing paragraphs.
8. Mushtaq Ahmad P. W. 9 has been examined as a witness for the motive. He has stated that about 2J months before the occurrence he was present on the shop outside Babar Cinema. He saw Sikandar appellant and Muhammad Aslam deceased fighting with each other. Muhammad Aslant deceased bad given beating to the appellant. He has denied the suggestion that he is a stock witness. He has stated that he was summoned by the Police through an F. C. To make a statement in this case.
9. Muhammad Amin P. W. 10 and Abdul Majid P. W. 11 have been examined to furnish the eye- witness account of the occurrence. Statement Exh. P. E. Of Muhammad Aslam deceased has also been tendered as dying declaration, which also furnishes the eye-witness account. P. W. 10 and 11 are also attesting witnesses of taking into possession of blood-stained clothes from the person of the appellant, and the recovery of knife P. 6 at the instance of the appellant. Muhammad Aslam A.
S. I. Has investigated the case. The remaining witnesses are more or less of a formal nature.
Muhammad Amin P. W. 10 and Abdul Majid P. W. 11 who are real brothers and maternal uncles of the deceased (being brothers of the mother of the deceased) have inter alia stated that on the day of occurrence they had gone to witness the matinee show in Nadir Cinema. They took up position in a queue for buying tickets. Muhammad Aslam deceased was standing nearby. Sikandar appellant and Manzur co-accused came there. Manzur acquitted accused held Muhammad Aslam in clasp while Sikandar appellant gave knife blows on the chest and groin of the appellant. He fell down.
Whereafter the appellant gave two more injuries to Muhammad Aslam deceased. On the hue and cry, they came forward to save the deceased. The appellant and the co-accused ran away. Both of them have stated that the Police appeared on the spot soon after and Muhammad Aslam deceased made statement to the Thanedar in their presence and he thumb-marked the same.
Muhammad Amin P. W. I has also stated that immediately after the occurrence the deceased had told them that Sikandar appellant had quarrelled with him in Babar Cinema 2-3 months ago and that he had given him beating. Abdul Majid P. W. 11 has stated in cross-examination that in the first instance Muhammad Amin alone had lined up in the queue for buying tickets but when they came to know that the Booking Clerk was not selling more than two tickets to one person, he also stood behind Muhammad Amin P. W. Muhammad Amin P. W. 10 has denied the suggestion that Muhammad Aslam deceased was not in senses when he made statement. Both of them have also denied the suggestion that Aslam deceased was a pickpocket and when he attempted to pick the pocket of someone, the crowd caught him and gave him injuries. Abdul Majid P. W. 11 has expressed ignorance that the deceased was ever challaned in any theft case. Both these witnesses have also made statements regarding taking into possession of the blood-stained clothes from the person of the appellant at the time of arrest and the recovery of knife (blood-stained) P. 6 at his pointation.
The appellant has denied the charges and in/answer to the question, "why this case against you", has stated. Due to suspicion and relationship of the P. Ws. With the deceased. He pleaded innocence but did not produce any defence.
10. Learned counsel for the appellant has contended that both the prosecution witnesses are close relatives of the deceased and so no reliance can be placed on their statements. He has argued that the occurrence had taken place in a Cinema and admittedly many other persons were also present there but none of them has been produced as a witness. It is con--tended that no reliance can be placed on statement Exh. P. E. As the same was recorded without prior opinion of the doctor whether the deceased was fit to make a statement or not? He has argued that since the clothes P.
7, P. 8 said to have been taken into possession after removing from the person of the appellant were not sent to the office of the Chemical Examiner for a report whether they bore stains of human blood, no importance can be given to this piece of evidence. With regard to the recovery of blood-stained knife he has referred to the discrepancy in the statements of P. Ws. 10 & 11; according to the statement of Muhammad Amin P.W. 10, Sikandar appellant was present in the Police Station at 10-11 a. m. Where the clothes were also removed and taken into possession and it was thereafter that he had led to the recovery of blood-stained knife P. 6 after leading the Police to his house in Civil Quarters, Ghulam Muhammad Abad while P. W. 11 Abdul Majid has stated that appellant Sikandar was arrested at about mid-day at 12.30 p. m. From bus-stand Chuhar Majra in Ghulam Muhammad Abad Colony in his presence and in the presence of P. W. 10 Muhammad Amin. He has stated that blood-stained clothes of the appellant were removed there and it was therefrom that the appellant had led to the recovery of blood-stained knife P.
6. Lastly, he has contended that the first information report was not recorded at the time stated in Exh. P. E. He has referred to the statement of Abdul Sattar P. W. 8 Booking Clerk of Nadir Cinema who has stated in cross- examination that the Police had come to Nadir Cinema on the day of occurrence at 5.30 p. m.
11. Learned counsel for the State has controverted the arguments of the learned counsel for the appellant. He has defended the judgment of the learned lower Court and has stated that the eye- witness account furnished by the deceased himself vide statement Exh. P. E. Stands fully corroborated by the statements of Muhammad Amin P. W: 10 and Abdul Majid P. W. 11, which further finds corroboration from the evidence of motive, evidence of recovery of blood-stained knife P. 6 and the medical evidence.
12. We have considered the arguments of the learned counsel for the appellant. The deceased after making the statement was removed to the Hospital. Dr. Abdul Haleem Sahoota P. W. 4 who medically examined him, has not made any note that the deceased was not in conscience. The sugges--tion made to Muhammad Aslam S. I. P. W. 12 that Muhammad Aslam deceased was not in conscience when statement Exh. P. E. Was recorded by him, has been denied by him. There is nothing in evidence to conclude that the deceased was not in conscience when he made statement Exh. P. E.
13. The earlier incident of motive is denied by the appellant. But no further suggestion has been made if any other enmity existed between the deceased and the appellant. Similarly, no suggestion has been put to P. Ws. 10 and 11 that they were in any way inimical to the appellant.
There is no reason to discard their evidence. The fact of their being relate itself is not sufficient to hold that they made any biased statement. In Muhammad Ashraf v. The State (1982 SCMR 113) the appellant's appeal was dismissed and the evidence of two real sisters and a 7-year old by nephew of the deceased was believed as there was no evidence that they had any hostility against the appellant. As such, we do not find any substance in the argument of the learned counsel for the appellant that no reliance should be placed on the statement of the P. Ws. 10 and 11, particularly when their statements find corroboration from the statement (Exh. P. E.) made by the deceased immediately after the occurrence. There is weight in the argument of the learned counsel for the appellant that the evidence of taking into possession of clothes of the appellant is of no consequence as no report of the Chemical Examiner was produced in evidence whether they were found to be stained with human-blood or not. The learned trial Court has rightly not taken this evidence into consideration and we do not differ with that. The contention of the learned counsel for the appellant that the First Information. Report was not prepared at the time mentioned in Exh.
P. E. Also does not hold any ground. His reference to the statement of P. W. 8 Abdul Sattar about the arrival of the Police at 5-30 p. m. Stands contradicted by not only Exh. P. E. But also by another document Exh. P. B., the injury statement of the deceased, which was prepared by Muhammad Adam S. I. P. W. 12 at 4-40 p. m., which shows that the Police had arrived at the spot before 5 p m.
His medical examination was conducted on the injury statement Exh. P. B.
1. Unfortunately, a portion of Exh. P. B. 1 is torn out but the date, "18-2-1977 at 4" is legible. The figure showing the minutes after `4' is torn out but the fact of recording of `4' shows that the medico-legal examination was certainly conducted before 5 p. m. In the D. H. Q. Hospital, which is enough to conclude that the Police had arrived in Nadir Cinema quite some time before the time, the deceased was medically examined in the District Headquarters Hospital. Moreover, the statement made by a formal witness in the cross- examination, is at the best a concession and cannot be relied upon to rebut reliable prosecution evidence furnished by the eye-witnesses and the Investigating Officer, against whom no bias has been alleged or shown.
14. The motive story which finds mention in Exh. P. E. Finds support from the statements of Muhammad Amin P. W. 10 and Abdul Majid P. W. 11, who have stated that the deceased had told them the previous incident, immediately after the occurrence. In addition to their statements Mushtaq Ahmad P. W. 9 has fully supported the motive story narrated by the deceased in his statement Exh. P. E. No malice has been alleged against this witness. The only suggestion that he is a stock-witness, has been denied by him in the circumstances, even if because of the discrepancy pointed out by the learned counsel for the appellant in the statements of P. W. 10 Muhammad Amin and P. W. 11 Abdul Majid regarding the place and time of arrest of the appellant and the recovery of the knife P. 6, is riot believed as a matter of abundant caution, the remaining prosecution evidence consisting of dying declaration, corroborated by the eye-witnesses further corroborated by th7 evidence of motive and finding support from the medical evidence, is sufficient to conclude that the prosecution has been able to prove the case against the appellant beyond any reasonable doubt.
15. For the foregoing reasons, we do not see any force in this appeal. The same is rejected and the sentence of death is confirmed.