(a) This is an appeal filed by the present appellant, who stands convicted under section 302, P. P.
C., for murdering one Mushtaq Ahmed and has been sentenced to life imprisonment and fine of Rs, 5,000 and in case of default in payment of fine to suffer further R. I. For six months by the learned IIIrd Additional Sessions Judge, Sukkur in Sessions Case No, 128/ 1978. It has also been ordered by the learned Additional Sessions Judge that if the above amount of fine is realized, Rs, 3,000 be paid to the heirs of the deceased under section 544-A, Cr. P. C.
The prosecution case as disclosed in the F. I. R. (which was lodged on 23rd April, 1978 at 15-50 hours at the Police Station B, Section, Sukkur which was situated about a furlong from the place of incident) is that the complainant Shah Muhammad son of Wali Muhammad along-with his son Mushtaq Ahmed and his other family members came to Sukkur from Hyderabad, where they were ordinarily residing at the relevant time to attend the marriage ceremony of his nephew Mukhtiar Ahmed. The complainant originally belonged to village Faresh situated in the outskirts of Sukkur.
The present appellant is the son of complainant's maternal-uncle and also belonged to the same village, but at the time of the incident was residing in Bashirabad, Sukkur. It was allend in the F. I. R.
That about 7-8 sears back Abdul Waheed appellant who wis then residing in Hyderabad suspected the complainant's son Mushtaq Ahmed of having illicit terms with his wife Mst. Sharja Khatoon. It was further alleged that the complainant left Hyderabad with his wife and settled down in Sukkur in Bashirabad. It was also averred that the above dispute was referred to brotheri and there was a brotheri faisla. But the complainant's party continued to have grudge secretly. It was also stated that Fazal Ahmed son of Abdul Rehim Shaikh resident of Hyderabad and Muhammad Sadik son of Sahibdino Pirzada were going with the complainant's son Mushtaq Ahmed to their village Farash. It was further stated that at about 15-25 hours Muhammad Sadik came and told the complainant that they all the three were going from Mukhtiar's house towards village Farash and when they reached near Hafeez Cinema, accused Abdul Waheed son of Abdul Karim came from back side and inflicted knife injuries on the neck, left arm and the nipple of the right side of chest. It was also stated that they intervened and rescued him but Abdul Waheed ran away alongwith the knife after causing injuries. It was further averred that the complainant after hearing this rushed towards the vardat, where he saw his son who was lying bleeding due to knife injuries on his right nipple of the chest. It was further stated that the complainant's son had been taken away by the above witnesses to the hospital and he had come to lodge the F. I. R. It was also averred that the accused had inflicted the knife injuries to the complainant's son Mushtaq Ahmed with intention to commit murder as he suspected that his son was on illicit terms with his wife.
(b) The prosecution in support of the case examined the complainant, father of the deceased, P. W.
3 Shah Muhammad Exh. 8, who produced F. I. R. Exh. 9, two eye-witnesses, namely P. W. 6 Fazal Ahmed Exh. 15 and P. W. 7 Muhammad Sadik Exh. 17, two constables P. W. 2 Muhammad Alim and P.
W. 10 Qurban Ali, who were on duty for patrolling near the place of vardat at the relevant time on the relevant date and allegedly apprehended the appellant aftep chasing him with blood-stained knife and the blood-stained clothes and produced him before A. S. I. P. W. 11 Muhammad Sharif, who arrested him two mashirs P. W. 8 Abdul Haleem Exh. 19, P. W. 9 Muhammad Bux Exh. 26, who produced mashir name of securing complainant's blood-stained shirt Exh, 20 mashirnama of arrest of the accused and of securing the blood-stained clothes of the accused Exh. 21 mashirnama of recovery of knife Exh. 22, mashirnama of injuries on the person of the deceased Exh.
23, mashirnama of the place of vardat Exh. 24 and the inquest report Exh. 25, two investigating officers P. W. 11 Muhammad Sharif, who recorded the F. I. R. And also arrested the accused on the production of the same by P. Ws. Constables Muhammad Alim and Qurban Ali and prepared the mashirnama referred to hereinabove. P. W. 12 Nazir Ahmed, who produced the two eye-witnesses before the Special Magistrate for recording their statements under section 164, Cr.P.C., P. W. 13 Ahmed Ali an Advocate, who was the Reader of the Special Magistrate at the time of recording the above 164 Statements, (he was produced as the Special Magistrate had expired) in order to prove that in fact the above statements were recorded by the Magistrate himself and not by the Reader, P. W. 5 Dr. Abdul Karim, who produced post-mortem notes Exh. 13, cropse-bearer police constable P. W. 1 Muhammad Mumtaz Exh. 6.
(c) P. W. 11 Muhammad Sharif A. S.-I. After recording F. I. R. Lodged by P. W. Shah Muhammad secured the blood-stained shirt, which the complainant was wearing, in the presence of mash irs P.
Ws. Abdul Halim and Muhammad Bux Exh.
20. He also arrested the accused in the presence of the above mashirs produced by Police Constables P. Ws. Muhammad Alim and Qurban Ali alongwith the knife after recording their statements and secured the blood-stained clothes and blood- stained knife Exhs. 21 and 22. After that he proceeded to the hospital and prepared mashirnama of injuries on the person of the injured, who was unconscious in presence of the same mashirs, Exh. 23.
He also recorded the statements of P. Ws. Sadik and Fazal in the hospital. From there, he went to the vardat alongwith P. W. Fazal and prepared mashirnama of the place of vardat and secured blood- stained earth from there in the presence of the same mashirs under Exh.
24. Thereafter, he again proceeded to the hospital in order to record the statement of the injured but on reaching there he found that the injured had already expired, which information be conveyed to S. H.O. Nazir Ahmed. After that P. W. 12 S. H.O. Nazir Ahmed took over the investigation.
The above witness P. W. 11 has identified various mashirnamas and the articles secured by him before the learned Additional Sessions Judge. P. W. 12 Nazir Ahmed produced the two eye- witnesses before the Special Magistrate Sukkur, on the following day of the incident for the purpose of recording 164, Cr. P. C. Statements and submitted the challan.
(d) P. W. 5 Dr. Abdul Karim who carried out post-mortem on the very day at 6-00 p.m. Found following external injuries on the person of the deceased :-
(1) Incised wound 14" x x muscle deep on the outer side of left elbow.
(2) Incised wound 14" x I" x skin deep on the right lateral side of neck.
(3) Incised wound 1" x i" x muscle deep on the right lateral side of chest.
(4) Incised wound 2" x 1" x muscle deep on the right scapular region back of chest.
(5) Incised wound 1" X 4" x deep in chest cavity on the left scapular region.
(6) Incised wound f" x I" x muscle deep on the inner side of injury No, 5.
(7) Incised wound li" x x deep on abdominal cavity on the right anterior side of upper abdomen.
On internal examination, he found the following injuries "Cranium and spinal cord v. Ere healthy, left side of chest cavity full of blood. Pleaurae c it at upper part of left pleaurae. Left lung cut in upper lobe of left lung. Rest organs were healthy. Abdomen : Abdominal cav.Ty full of blood. Peritoneum cut in right upper part. Diaphragm cut in right part. Liver cut in right lobe of liver about 1" x 1/3", rest organs were healthy."
He opined that the cause of death was the external injuries Nos. 5 and 7 (which had also caused internal damage) and which were sufficient to cause death in ordinary course of nature. He also opined that the injuries were ante-mortem and appeared to heve been caused by sharp cutting weapon. He further opined that the tapes between injury and death was half an hour and between death and post-mortem, the lapse was about 1 to 2 hours.
In the cross-examination he stated that when the deceased was brought to the hospital he was alive but he might not be in senses.
2. (a) It may be advantageous to refer to the other relevant ocular evidence. P. W. Shah Muhammad, the complainant, has reiterated before the learned Sessions Judge in his deposition what he had stated in the F. I. R. Except that he made improvement and stated that when he reached the place of vardat his son was in senses and disclosed to him that accused Abdul Waheed had inflicted knife blows to him, which fact he did not mention in F. I. R.
(b) P. W. 6 Fazal Ahmed has deposed before the learned Additional Sessions Judge that the accused Waheed was known to him and so also deceased Mushtaq. He has further deposed that about 24 years back, it was maajhand time when he, deceased Mush taq and P. W. Sadik, who had come to attend the marriage were going to their village Farash, but when they reached near clock tower deceased Mushtaq told them that he was going to fetch cigarettes. He and Sadik went ahead but when they saw towards back side, they found accused Waheed was inflicting knife blows to Mushtaq, who tried to run away to save his life but accused followed him. He has also deposed that one constable, who was present also followed the accused Waheed. He has further stated that Mushtaq fell down though he was in his senses, but was unable to speak. He has also stated that Sadik went to inform the father of the deceased complainant Shah Muhammad who went directly to Thana for report and that he and Sadik took the deceased to the hospital where the complainant also reached.
In his cross-examination to the defence counsel he has stated that the complainant party was known to him for last 5-7 years and that he was residing in Jamal Shah Para, whereas the complainant was residing in the cattle colony and the distance between the two was about 11 furlongs. He -has further stated that Mukhtiar was his friend, who was originally residing in his Mohallah before shifting to the American Quarters, whose marriage he had come to attend at Sukkur. He has also stated that he had come for the first time to attend Mukhtiarkar's marriage, but he had also visited Sukkur once before when the brother of deceased Mushtaq was missing. He has admitted that he was on visiting terms with deceased Mushtaq and Imdad. He has also stated that accuse was known to them as he also resided in Hyderabad with the complainant party. He has further stated that accused Waheed did not attend the marriage of Mukhtar. He goes on to state that he was at a distance of about 20 paces when he saw accused inflicting knife blows to the deceased and that there were about 10-15 persons in between them and the deceased. He has also stated that he also accompanied the police party in order to apprehend the accused but the police party was ahead of him, when accused was apprehended by the police. He has further stated that he was at a call's distance when the police took the accused at Thana and he came to the deceased. He has admitted that he had not stated in his 164 statement that he was also with- the police when the police apprehended the accused. He has also stated that his statement under section 164 was recorded on the next day of the incident. He denied the suggestion that he was deposing at the behest of the complainant party.
(c) P. W. 7 Muhammad Sadix the other eye-witness before the Additional Sessions Judge has deposed that he knew the accused and also the deceased. He has further deposed that about 2i years back at about 3-00 p.m. He was going to village alongwith deceased and Fazal but when they reached at the clock tower, he went to fetch cigarettes and when he returned, he found a crowd and deceased Mushtaq lying injured and unconscious. Thereupon, he went to inform the father of the deceased and informed him that somebody had killed his son. He has further deposed that the father of the deceased came alongwith him to the place of vardat. Thereafter, he (the father of the deceased, went to the Police Station, whereas he went to the hospital He has further deposed that the police recorded his statement and that 164 statement was not recorded by any Magistrate. The above witness was declared hostile by the prosecution and was cross- examined with the permission of the Court. In the cross-examination he was confronted with the relevant portions of his statement made by him under section 164, Cr. P. C. Particularly, the fact that in his 164 statement he had stated that the accused Waheed inflicted knife blows on the persons of deceased from the back side, that deceased Mushtaq ran away in order to save his life but Abdul Waheed followed him and inflicted other blows that the accused was arrested by the police near the Fire Brigade at the place of vardat. However, in his cross-examination he admitted that he had stated in his 164 statement that he went to inform the father of deceased leaving P. W. Fazal at the vardat. In the cross-examination, on the suggestion of the defence counsel, he admitted that P. W.
Fazal accompanied them upto Wallace Road and from there he left for Hyderabad, thereafter P. W.
Fazal did not come to Sukkur.
(d) The gist of the testimony of two constables P. W. Muhammad Alim and Qurban Ali is that under entry No, 20 made in the Police diary at the Police Station 'B' section, Stikkur on 23rd April, 1978 at about 3-00 p.m. They proceeded on partroiling duty and when they reached the tower, they saw the accused running with the bloodstained knife and blood-stained clothes. They chased him and P. W. Muhammad Alim caught him and also snatched away the blood-stained knife. After that they produced the accused with the blood-stained clothes and knife before P. W. 11 Muhammad Sharif A.
S. I., at the Police Station 'IV Section Sukkur, who after recording their statements arrested the accused and prepared the mashirnama of arrest and recoveries etc. There is a discrepancy between the testimony of Muhammad Alim and Qurban Ali inasmuch as Muhammad Alim has not stated that he saw the accused inflicting injuries to the deceased. His version is that then they reached at the place of vardat, they found crowd and saw the injured lying on the ground and also saw that the accused was running away with the blood-stained knife and they chased him and caught him, whereas P. W. Qurban Ali stated that when they reached near the tower he saw accused inflicting knife injuries to the deceased.
(e) The two mashirs produced by the prosecution P. Ws. Abdul Haleem and Muhammad Bux did not support the prosecution case, and therefore, were declared hostile. According to them, no recovery was made in their presence.
3. Mr..Shaikh Ayaz, learned counsel for the appellant has urged that the learned Additional Sessions Judge erred in treating P. W. Muhammad Sadik's statement under section 164, Cr, F. C. As substantive piece of evidence under section 265-J, Cr. P. C. Though the appellant was, not provided opportunity to cross-examine the above witness and, therefore, the above statement is to be ignored.
(ii) That there is not sufficient evidence on the record to prove the guilt of the appellant beyond reasonable doubts.
4. In support of the first contention Mr. Shaikh Ayaz has invited my attention to the fact that the incident had taken place on 23rd April, 1978 and the statements of two eye-witnesses under section 164, Cr. P. C. Were recorded by the Special Magistrate, Sukkur on 24th April, 1978 when the appellant even had no opportunity to engage a counsel, who could have cross-examined. To fortify his above submission, he has referred to the case of Abdul Hakeem and another v. The State , wherein the present learned Acting Chief Justice of this Court sitting with me, discussed the scope of section 265-J, Cr. P. C. And held that in order to treat a statement made under section 164 as a substantive piece of evidence, it is incumbent on the prosecution to provide an opportunity to the accused to cross-examine the witness and non-compliance of the above requirement would expose such a statement to serious criticism. In the instant case from the copy of 164 statement of P. W. Sadik on the record it seems that he (the appellant) was given an opportunity to cross- examine, which he did not avail of. But since the appellant did not have sufficient time to engage an Advocate, the contention of Mr. Shaikh Ayaz that there has not been compliance of section 265- J, Cr. P. C. Is not devoid of force. I am, therefore, inclined to agree with Mr. Shaikh Ayaz that the learned Additional Sessions Judge could not have treated P. W. Muhammad Sadik's statement under section 164, Cr. P. C. As a substantive piece of evidence in the absence of providing a reasonable opportunity to the appellant to cross-examine the above witness. However, this does not mean that P. W. Muhammad Sadik's statement made before the learned Additional Sessions Judge or even his entire statement under section 164, Cr. P. C. Is liable to be ignored. The prosecution after declaring P. W. Sadik as hostile witness confronted him with the relevant portions of his statement made by him under section 164, Cr. P. C. This was permissible under section 145 of the Evidence Act. In my view, the Court can look into the statement made by P. W. Muhammad Sadik before the learned Additional Sessions Judge and also to those portions of his statement, which were put to him in the cross-examination. Furthermore, even in the above 1982 Karachi case cited by Mr. Shaikh Ayaz, learned counsel for the appellant, what was observed by the learned Acting Chief Justice was that treating a statement under section 164, Cr. P. C. As substantive piece of evidence without strictly complying the provisions of section 265-J, Cr. P. C. Would expose such statement to serious criticism. But it has not been held that it cannot be used under section 145, Evidence Act, for contradicting the witness.
5. As regards the above second submission of Mr. Shaikh Ayaz, it may be observed that he has vehemently urged that if we will analyse each piece of evidence on record, and will apply process of elimination, we will be left with no evidence worth to sustain conviction on a capital charge. In furtherance of his above submission, he has pointed out that the evidence of the two mashirs P. W.
Abdul Haleem and Muhammad Bux is liable to be ignored as admittedly they have not supported the prosecution case, with the result that the alleged recoveries of the blood-stained clothes and blood-stained knife and so also the Chemical Examiner's report Exh. 29 (which is positive), are to be ignored. His further contention was that there are two alleged eye-witnesses, out of them one P. W.
Muhammad Sadik has not supported the prosecution case and, therefore, his testimony is to be eliminated, with the result that we are left only with the testimony of P. W. 6 Fazal Ahmad. According to him the testimony of P. W. Fazal Ahmed requires independent corroboration, for the reasons, firstly he is admittedly on friendly terms with the complainant party, and secondly there are1 material contradictions in his testimony and the testimony of other witnesses, namely in his cross- examination he has stated that he also went after the accused for catching him, though the police was ahead of him with statement is belied by the testimony of the two constables P. W.
Muhammad Alim and Qurban Ali, he has also stated that there was one police constable in conflict with the prosecution case that there were two police constables, he has also deposed that the complainant Shah Muhammad went directly to Thana for lodging report without visiting the vardat.
Whereas according.To the complainant as well as P. W. Sadik, the complainant first came to the place of vardat. It was vehamently urged by Mr. Shaikh Ayaz that the prosecution has failed to produce any independent corroborative piece of evidence, which can corroborate the testimony of the eye-witness P. W. Fazal Ahmed. According to him even the testimony of the two police constables Muhammad Alim and Qurban Ali can not be relied upon as there are material contradictions between the testimony of Muhammad Alim and Qurban Ali, nemely, according to Muhammad Alim when they reached at the place of vardat they saw the injured lying on the ground and the accused was running away, whereas according to P. W. Qurban Ali he saw him inflicting injuries. Furthermore, according to P. W. Muhammad Alim the F. I. R. Was lodged after 11 hours of his reaching Thana, whereas according to Qurban Ali the F. I. R. Was already recorded. He has also invited my attention to some other contradictions in the testimony of the above witnesses.
6 I have serious thoughts to the submissions made by Mr. Shaikh Ayaz, but I am unable to agree with his submission that there is not sufficient evidence to warrant the conviction of the present appellant under section 302, P. P. C. It is a case in which murder was committed in a broad daylight.
The F. I. R. Was lodged within half an hour. The accused is related to the complainant being the son of 'his maternal-uncle. The defence was unable to bring on record any plausible motive on the part of the complainant to implicate the appellant falsely in substitution of the real culprit. The motive, if any, was on the part of the appellant to kill the deceased as he had suspected him of having illicit connections with his wife while he was residing in Hyderabad and because of that he left Hyderabad and settled down in Sukkur. The prosecution's version that the appellant was residing in Hyderabad with the complainant party and left Hyderabad 5-7 years back and had settled in Sukkur was not challenged by the defence. Nor the defence has been able to challenge the fact that the complainant, his son deceased Mushtaq Ahmed and his other members of the family and so also P. W. 6 Fazal Ahmed had come from Hyderabad to Sukkur for attending the marriage of Mukhtiar Ahmed. In my view P. W. Fazal Ahmed has also no motive to falsely implicate the appellant in a murder case. The fact that he was on friendly terms with the complainant party-in my view itself is not sufficient to render him an interested witness to the extent of falsely implicating an innocent person in the commission of an offence, which entails the capital punishment. Neither the complainant party nor this witness has any motive to falsely implicate the appellant in substitution of the real culprit. Nor the fact that the accused was apprehended by the Police constables P.Ws. Muhammad Alim and Qurban All while running away from the place of vardat has been shaken in the cross-examination. Even it has not been suggested that the accused was arrested from his house or from some where else. Though the hostile witness, namely, Muhammad Sadik attempted not to involve the appellant in the commission of the offence but even his statement corroborates the testimony of other prosecution witnesses on some material points. He has corroborated P.W. Fazal's statement that at about 3.00 p.m. He P.W. Sadik and the deceased were going to village Farash and when they reached at the clock tower, the deceased was attacked. According to him he left for purchasing cigarettes and when be came back he found the complainant's son was killed. This is a significant deviation from his 164 statement, where he fully corroborated the testimony of P.W. Fazal Ahmed on all material particulars. This deviation was pointed out to him in the cross-examination by the prosecution counsel after declaring him hostile.
Be that as it may, he has also corroborated testimony of the complainant on the point that he was informed by him (P.W. Sadik) about the attack on his son and thereafter he came to the place of varda t. In my view, the the testimony of P.Ws. Fazal Ahmed, the two police constables P. Ws.
Muhammad Alim and Qurban Ali and of P. W. Muhammad Sharif A. S. I. Is sufficient to sustain conviction against the appellant. It may be observed that even otherwise, there is no rule of jurisprudence that the testimony of an eye-witness is not sufficient. It is the quality of the testimony.
Which determines the fate of a case and not the quantity or the number of witnesses. P. W. Fazal Ahmed has proved the factum that in fact the appellant had caused the knife's injuries on the person of the deceased. The evidence of P. Ws. Muhammad Alim and Qurban Ali has established the factum that the appellant while running away was arrested near the place of vardat from the place of vardat with blood-stained clothes and a knife. The above evidence is corroborated by the evidence of A. S. I. P. P. W. Muhammad Sharif, who has deposed that the appellant was produced by the above two constables before him with the blood-stained knife and blood-stained clothes. He is also witness to the mashirnama of arrest and recoveries. Even if the recoveries are to be ignored on the ground that the masrhis had turned hostile, the factum of arrest near the place of vardat while running away stands proved by sufficient ocular evidence. The appellant has inflicted as many as 7 injuries on the vital part of body of the deceased with full vengeance. The learned Additional Sessions Judge has taken lenient view in the matter in awarding imprisonment for life instead of capital punishment of death and imposing of fine of Rs, 5,000.
7. For the aforesaid reasons, I do not see any merit in the above appeal and, therefore, it is dismissed and the conviction and sentence and fine are confirmed. Rs, 3,000 may be paid to the legal heirs of the deceased as ordered by the learned Additional Sessions Judge, in case the appellant pays the above fine of Rs, 5,000. However, the appellant shall be entitled to the benefit of section 382-B, Cr. P. C. Namely while computing his life imprisonment under-trial detention period shall be adjusted.
These are reasons in pursuance of short order of even date. PLD 1982 Kar. 1975