' Appellants Abdul Razzak alias Appla and Muhammad Khan alias Sheeda have been convicted under section 302/34. P.P.C. And seci7r7307/34, P.P.C. By Vth Additional Sessions Judge, Karachi vide judgment dated 12th February, 1983 and each of them have been sentenced under section 302/34 to imprisonment for life and to pay fine of Rs,5,000 each or in default to suffer 6 months' R.I. More.
Half of the fine if realised have been ordered to be paid as compensation to heirs of the deceased.
They have further been sentenced under section 307/34 to suffer R.I. For 3 years and fine of Rs,1,000 each or in default to undergo R.I. For 3 months more. Fine if realised half of it has been ordered to be paid to the injured as compensation. Both the sentences to run concurrently. Being aggrieved with their conviction the appellants have filed this appeal.
2. The facts of the prosecution case are that on 23-5-1974 at about 2-00 a.m. One Faiz Muhammad came to the house of Umer and told him that Muhammad Khan alias Sheeda, Razzak and others are beating Hussain and Jumman. Umer got up and went towards that place where he found that Sheeda had caught hold of Jumman and was giving knife blows on his chest when Razzak had given three blows to Hussain. Jumman told him that Sheeda and others had beaten them.
Accused ran away. Hussain died on the spot. Faiz Muhammad, Allah Warayo and other people of the Mohallah witnessed the incident. Umer went and lodged the report at Police Station Chakiwara under section 302/307/34 on the same night at 3-00 a.m. The motive as disclosed in the F.I.R. Is that Sheeda has misbehaved with wife of Jumman on which Hussain and Jumman had reprimanded Sheeda and warned him that as resident of the same Mohallah he should not have misbehave the way he had done. On this Sheeda got annoyed.
3. Sub-Inspector Ghulam Sarwar Memon, after registering the case took up the investigation. He proceeded to Wardat which was on Aslam Road where the dead body of Hussain was lying. He prepared memo. Of Wardat and inquest report. He recorded the statement of witnesses Faiz Muhammad, Ghulab, Hashim, Allah Warayo and Nabi Bux on the same day. He arrested both the appellants and secured Chhuri on the pointation of appellant Abdul Razzak. The blood-stained clothes of the accused have also been secured, and were sent to Chemical Examiner. After investigation he submitted the challan in the Court.
4. During the trial prosecution examined 12 witnesses. P.W. Muhammad Anwar, complainant, P.W.2, Nanji, P.W.3, Muhammad Jumman, P.W.4, Haji Dost Muhammad, P.W.5, Dr. Abdul Had Khan, P.W.6, Syed Masoomali Shah, P.W.7, Muhammad Rafique P.C. P.W.8, Allah Warayo, P.W.9, Nasim Ahmed Additional City Magistrate, P.W.10, Dr. Muhammad lqbal, P.W.11, Memraz Khan and P.W.12, Ghulam Sarwar S.I.P.
5. Appellants in their statements under section 342, Cr.P.C. Have denied the allegations. They have also denied the injuries sustained by them. In their defence they examined themselves as provided under section 340 (2), Cr.P.C. They have also examined in their defence D.W.1, Ashique Ali, D.W.2, Gulab.
6. I have heard Mr. Ab.Dul Wahab Khan Advocate for the appellants, and Mr. Jalaluddin Baloch Advocate for the State. Mr. Abdul Wahab Khan has argued that important witnesses Faiz Muhammad, Gulab and Mashooq Ali have not been examined by the prosecution. On the contrary Ashique Ali and Gulab have been examined by the appellants in their defence. The name of P.W.
Allah Warayo does not appear in the F.I.R. The recoveries having been disbelieved by the learned trial Court therefore prosecution has failed to prove its case and appellants are entitled to acquittal.
' Mr. Jalaluddin Baloch, Advocate appearing for the State has stated that fight was sudden and convictions under section 302/34, P.P.C. And 307/34, P.P.C. Are not maintainable. He is of the view that at the most appellants could be held responsible for the offence under section 304, P.P.0
7. In this case evidence against the appellants consists of following particulars:--
(1) Ocular testimony
(2) Recoveries
(3) Motive
(4) Injuries on the person of the appellants.
' Muhammad Umer complainant has stated that on the night between 22nd/23rd he was sleeping in his house when Faiz nephew of Jumman came and woke him up and informed him that Appla and Sheeda accused were fighting with Jumman and his nephew Hussain. He rushed to the Vardat and saw that Appla was giving knife blows to Jumman on his stomach while Sheeda was causing injuries with Chhuri to Hussain and this Hussain died. He took Jumman in jeep to hospital and then went and lodged report at the Police Station, which he has produced as Exh.3/A. On the point of motive he states that Jumman informed him before incident that when he was out from his house and was on his work Sheeda accused had thrown stone to Mst. Nazeeran wife of Jumman to which Mst. Nazeeran had complained to Jumman on his return from his work whereupon Jumman went to Sheeda and told him of his behave like neighbours with ladies on which he issued threats and warned him of the dire consequences. In his cross-examination he has stated that he has given the names of P.W. Allah Warayo in the F.I.R. He stated that he found two bicycles belonging to deceased Hussain and injuried Jumman at the Vardat.
8. P.W. Muhammad Jumman Exh.5, has stated that on the night of incident i,e, 23rd May, 19714 at about 2-00 a.m. He was going on work towards his launch alongwith his maternal-nephew Hussain when they reached Usman Brohi road they saw appellants Sheeda, and Razzak armed with knife (Chhuris). They challenged them and approached towards them on which Jumman started retracalling back just to save his life. They had Lathis in their hands and in order to save themselves from the attack of the accused they started blowing Lathis in the air and Muhammad Khan alias Sheeda sustained Lathis blow on his head and his Lathi broken into 273 pieces. However, Muhammad Khan alias Sheeda caught hold of his neck and fell down on the ground and IR- Tstabbed with knife on his abdomen due to which his intestine came out of his stomach. He further states that appellant Razzak alias Appla caught hold of deceased Hussain and gave him knife blows on chest due to which he died on the spot. On cries Gulab- who was sleeping on footpath near the house came there and tried to save but he was threatened by the appellants. P.W. Faiz Muhammad and Usman had also reached at Vardat at that time and accused went away after giving injuries. He further deposed that oh same day at about 10-00 a.m. When he came back from work he was informed by his wife Mst. Nazeeran that accused Muhammad Khan alias Sheeda had put his hand in her cheek with bad intention whereupon he went to the accused Muhammad Khan and advised him not to do such mischief with ladies of Mohalla but accused threatened him. He stated that he was removed from Vardat and taken to the hospital where he was operated. He remained in hospital as indoor patient for about 10 days. He has identified accused and stated that they are residing near his house. In his cross-examination he has admitted that Ashique Ali also came at the place of occurrence. Medical Officer Abdul Hadi Khan Exh.16, has stated that on 23-5- 19714, he conducted post-mortem on the body of Hussain. He found following injuries in his person:- -
(1) InLised wound 11-11 x I" vertical in direction 2" from the midline of right side front of chest at the level of 3rd right rib. On dissection of the soft tissue underneath there is a small area of ecchymosis 1" x 1". The wound is only muscle deep.
(2) Incised wound on left side front lower part of chest 23" from the midline oblique in direction measuring 13" x 3" x cavity deep with portion of omentum coming out. The wound is 4" below the left nipple.
(3) Incised wound on left side front upper part of abdomen 23" below the Ext. Injury No,2, 2" from the midline vertical in direction measuring 13" x 3" muscle deep.
(4) Three lacerated wounds on the bridge nose in an area of 1" x 3" with fracture of the underlying nosal bones.
' According to him injuries Nos. 1, 2, 3 were caused by sharp-edged weapon such as knife and injury No,4, by blunt substance such as Lathi, Danda or stone. The death was caused due to shock and haemorrhage in consequence upon the injuries mentioned above caused by knife or dagger. The doctor was not cross-examined.
9. P.W. Nanji is a Mashir. He has stated that he was called to act as Mashir when appellant Razzak was with the police. He took out Chhuri from Guttar. He produced Mashirnama as Exh.4/A. He has not stated that at the instance of appellant Abdul Razzak the Chhuri was taken out. Another Mashir Haji Dost Muhammad Exh.7, has not supported about the pointation of Chhuri at the instance of appellant Abdul Razzak. He has stated that Mashirnama was not read over to him and contents are partly correct to the extent of his signature. P.W. Farooq Shah is a Police constable. He stated that he received summons for service on P.Ws. Faiz Muhammad, Gulab, Ashiq Ali, Muhammad Hashim.
He went to the given address of the above. P.Ws and came to know that P.Ws. Faiz Muhammad, Gulab and Muhammad Hashim have left for Dubai and their whereabouts were not known. He recorded the statement of Mohallah people Gul Muhammad, Barad Ali, Qalandar Khan, Ali Asghar, Muhammad and others. He returned the summons.
10. Syed Mahmood Ali Shah Inspector Police Exh.18, has submitted the challan P.W. Muhammad Rafiq is Police constable. He accompanied the S.H.O. Ghulam Sarwar Khan to the place of incident where dead body of Hussain was given to him. He took the dead body to hospital and after post- mortem the dead body was handed over to the parents of the deceased. P.W.8, Allah Warayo Exh.20, has been examined as a Court witness. He has stated that he know nothing about the incident. He was made Mashir of the Vardat by Police. His evidence is that at the place of incident dead body of Hussain, four milk dubbas and pieces of sticks and two cycles were lying. He has produced Mashirnamas Exhs.21 and 22. P.W. Naseer Muhammad Exh.23, was Additional City Magistrate Court No,XVI and on 28-5-1974, he recorded the statements of P.W. Gulab, Ashiq Ali under section 164, Cr.P.C. He produced the same as Exhs. 24 and 25. These statements were not recorded in presence of the accused. Muhammad Muzammil Exh.26, has been examined as a Court witness and he has stated that he has received process for service on P.Ws Nabi Bux and Saleh Muhammad from the Court and he went to the address given in the summons but such persons were not available and whereabouts were not known. He recorded the statements of Gul Muhammad and Aurangzaib. He produced summons and state ents as Exhs. 25/A, 26/B, 26/C and 26/E, P.W.10, Syed lqbal Ahmec. Exh.27 was medical officer posted in Civil Hospital and he examined injured Jumman on 23-5-1974, and found following injuries:-
(1) Incised wound 2" x 3" cavity deep. Right side hypogastren Orncentim and loop of intestine coming out.
' He produced his certificates as Exhs.28 and 29. On the same day he examined appellant Razzak and Khan Muhammad. He found injuries on person of appellant Razzak caused by sharp weapon whereas injuries on Muhammad Khan were simple by hard and substance blunt. P.W.11, Mumraiz Khan Exh. 32, is a Mashir of recovery of blood-stained clothes from the accused. He has not supported the prosecution and stated that police obtained his signature on several papers and in his presence nothing was secured from the accused. P.W.12, Ghulam Sarwar is Sub-Inspector Police. He states that he recorded the F.I.R. Of Muhammad Jumman and investigated the entire case as stated above. He has produced chemical examiner report which is Exh.37.
11. D.W.1, Ashique Ali Exh.44, has stated that he knows the accused as they are his Mohallah man and also deceased Muhammad Hussain. He states that police has recorded his statement as an eye-witness of the incident but he has not seen the incident. He was confronted with 164. Cr.P.C.
Statement recorded by the Magistrate. He admits that police had brought him to give 1614, Cr.P.C.
Statement before Magistrate and who had recorded his statement which is Exh.25, and bears his signature. In his cross-examination he stated that this statement was made at the instigation of the police but he did not make any complaint to the higher authority against police. D.W.2, Gulab Exh.45, has stated that he was called at the police station in the morning time after the incident and he stated that he had not seen the incident. He has denied to have given any statement before the committal Court. His statement has been produced Exh.46. He has also stated that his 164, Cr.P.C. Was recorded by the Magistrate. He has before the committing Court stated that he saw both the appellants had Chhuri in their hands and deceased Hussain was waiving the Lathi and hit on the shoulder of accused Abdul Razzak. Then Sheeda caught hold of Hussain by the throat knocked down and caused Chhuri injuries. He has deposed that he knows Hussain (deceased) and P.W. Jumman. He stated that at about 2-30 a.m. He was sleeping on a cot at the back of his house on the road side. All of a sudden he heard noise and he woke up and saw that deceased Hussain and Jumman were having Lathis and both the accused had Chhuris in their hands. Jurnman was beating accused Sheeda alias Muhammad Khan with Lathi on his shoulder.
The Lathi fell down from the hand of Jumman. Accused Sheeda alias Muhammad Khan grappled with Jumman then Sheeda inflicted a Chhuri injury on his stomach.
12. Appellant Abdul Razzak examined himself as D.W.3. Exh.49. He has stated that allegations against him are false and at the time of incident he was in his house. He states that it is correct that at the time of his arrest he had injuries on his person. He states that he sustained injuries with cement block which he took a day earlier.
13. Appellant Muhammad Khan examined himself as D.W.4. Exh.50. He has denied the allegations and stated that he had never teased Mst. Naziran wife of P.W. Jumman. At the time of incident i,e, 23rd May, 1974 at 2-00 a.m. He was in the house. About injuries the appellant stated that few days before the incident he was on his job when he got injuries by falling from the building block alongwith cement material. He has been involved due to old enmity.
15. Complainant Muhammad Umer and Gullo have fully implicated the accused and given the facts of the incident in their statements before the trial Court. Medical evidence corroborates the ocular testimony about injuries on deceased Hussain as well as injured Jumman. The name of prosecution witnesses Allah Warayo appears in the F.I.R. But he has not supported the prosecution case. Complainant has admitted that Ashiq Ali, Gulab came up in the place of incident. These witnesses are not examined by the prosecution, but appellants have examined them in their defence. During the investigation their statements under section 164, Cr.P.C. Were got recorded and Gulab was examined in commital Court and his Lower Court's statement Exh.46, has been produced wheyein he has named both the appellants as accused persons and he also stated that they were armed with Chhuris. Both these defence witnesses had also fully supported in their 164, Cr.P.C. Statements recorded by the Magistrate but during trial Court they have stated that they had not seen the incident. It is clear that they resiled from their earlier statements. Their 164, Cr.P.C.
Statements were not been recorded in the presence of the accused therefore could not be considered as evidence. As regards Gulab his statement before the committal Court in which he has implicated the accused can be considered as a substantive piece of evidence as provided under section 288, Cr.P.C. It is relevant to mention here that this case proceeded before the law reforms therefore this statement has rightly been brought on record by the A.P.P.
16. Prosecution has been able to prove the case. There is no reason to disbelieve injured Jumman and P.W. Complainant Umer. Nothing has come on record about any previous enmity between the parties. Appellants immediately after recording the F.I.R. Were examined by the doctor who found that Muhammad Khan had three injuries of blunt weapon when prosecution case is that deceased gave Lathi blow to him in his defence. Pieces of Lathi were found from Vardat. As regards the injuries on appellant Abdul Razzak his explanation is false. Prosecution is also silent and there is no explanation about this injury. Possibility this injury which is simple one and on left side of forehead of Razzak could have sustained during fight while he was giving injuries to his victim who was struggling.
17. Under these circumstances the presence of both the appellants at the place of the incident cannot be doubted. Defence not put any question to the doctor Muhammad lqbal Exh.27, about age of injuries on appellants. Therefore contention of the appellants that they received these injuries prior to this incident cannot be accepted. Appellant Razzak was examined by the doctor on 23rd May, 1974 at 4-30 a.m. And at the same time appellant Muhammad Khan was examined. The incident took place at about 2-00 a.m. And injuries according to medical reports which are Exhs.30 and 31 are opined to be fresh.
18. In view of the above discussion in my opinion appellants have been rightly convicted. The case has been proved against them. The appeal is dismissed.