MUHAMMAD HALEEM, J.--Sajjad Ali son of Hashmat Ali aged about 36 years, stands convicted under section 302, P. P. C. And sentenced to death for the murder of Dolat Ali son of Ali Khan aged 25 years. The appellant was tried, convicted and sentenced by the II Additional Sessions Judge, Karachi vide his judgment dated the 3rd of November 1969. The learned Additional Sessions Judge has also referred the case for the confirmation of his death sentence under section 374, Cr. P.' C.
This judgment will dispose of both the appeal as well as the reference.
2: The incident occurred at 17-15 hours on the 11th of September 1958 on the road near block No. 25, situate in Jutland Lines, Karachi, and the report of the incident was lodged at Police Station Brigade by Ghalib Ali Khan (P. W. 1) at 17-30 hours which was recorded by Muhammad Bashir Khan A. S. I. P.
(P. W. 2).
3. While Ghalib Ali along with Allah Bakhsh were pro--ceeding towards the Ration Shop in Jutland Lines at about 17-15 hours, he saw his brother Dolat lying in, a pool of blood on the road near Block No. 25 and his cycle was lying by his side. He asked Dolat as to what had happened upon which he told him that the uncle of Sajjad had caught hold of him and Sajjad inflicted knife blows on him and thereafter, they had run away. He then went and lodged the report implicat--i1tg the appellant and his uncle for causing injuries to Dolat with a knife, with the intention to kill him. According to Ghalib Ali, the appellant had harboured grievance because his other brother Ahmad Sher Khan had divorced the sister of the appel--lant about four years back and the appellant had therefore, avenged his grievance by inflicting knife blows on Dolat.
4. Before the above report was recorded, Mushtaq Ali Khan (P. W. 4), an Executive Engineer, who resided in the same locality in Quarter No. 25/2, heard a commotion and on his coming out of the house, he was told by some one, that a man had been injured and without making any enquiry, he went to his house and on telephone gave this information to the Duty Officer, P. W. Azizul Hussain.
This information was recorded in the roznamcha at serial No. 60 at 17-25 hours, and a copy of this report was sent to Syed Muhammad Shah A. S. I. P. (P. W. 12), who, immediately on its receipt repaired to the place of incident, and saw there a person lying seriously injured, but he was still in his senses. He then recorded his dying declaration (Exh. 11) in the presence of Ghulam Muham-- mad P. W. 5 and Wasal Dad Khan P. W.
6. He then sent the injured to the Hospital. Thereafter, he inspected the scene of offence and prepared a mashirnama (Exh. 12) in the presence of the Mashirs Ghulam Muhammad and Wasal Dad Khan. In the sequence of events it appears that Ghalib Ali had arrived earlier than Syed Muhammad Shah (P. W. 12) and had already left for lodging the report, which was recorded at the the stated above. Iqbal Hussain Rizvi, S. H. O. P. W. 7; then reached the place of incident and took over the investigation from Syed Muhammad Shah. He recorded the statements of Ghulam Muhammad, Wasal Dad Khan and Allah Bakhsh and then proceeded to the hospital where he learnt that Dolat Ali had expired at 8-45 p.m. The deceased was examined while he was alive by Dr: J. M. M. Mohiuddin but since he was not available for re- examination in Court his Medico-Legal Certi--ficate was proved by Dr. Noorul Rehman (P. W. 13) as he was acquainted with his signature and handwriting. According to the report the deceased had the following injuries on his person "(1) Incised wound 1" above left nippli --" x --" cor--responding cut in shirt and Bunyan.
(2) Incised wound left side chest upper part 2" x 1" x 2" tailing above downwards, with corresponding shirt and Bunyan.
(3) Incised wound below (I cannot read) 1" x --" x talling left side.
(4) Incised wound right axillary pit 3" x --" x tailing downwards with corresponding cut in shirt and Bunyan
(5) Incised wound medical side of right arm upper third with corresponding cut in shirt size 2 -- x -- " x skin deep tailing downwards.
(6) Incised wound back left fore-arm lower third 2" x --" x skin deep tailing downwards.
(7) Incised wound 1" below wound No: 6 size 1--" x --" x skin deep, tailing downwards.
(8) Incised wound abdomen middle 5" x 3" with protudion of intestines cut in shirt arid Bunyan."
5. The autopsy on the dead body of the deceased was later on performed by Dr. Major -A. Hasan (Exh. 29) and he noticed three -more injuries; one- on the upper part of right shoulder and the other to on, the back of right hand and in his opinion all the injuries were caused by a sharp-edged weapon like a knife and that injury No. 7 corresponding to injury No. 8 as observed by Dr. J. M. M.
Mohiuddiri was sufficient in the ordinary course of nature to cause death.
6. In the course of investigation other witnesses, were also examined namely, Masqood Ali Mufti (P.
W. 10), Ahmad Sher Khan (P., W. 8), another brother of the deceased and Mushtaq Ali Khan (P. W. 4), Azmat Ali was arrested, tried, convicted and sentenced to transportation for life but the appellant' absconded. He was arrested from Multan by Abdul Ghafoor Head Constable, of Police Station Saddar, Multan. This wit--ness received information that the appellant was employed as a labourer in. a textile mill under an assumed name of Hakim son of Abdul Majeed and that he was wanted in, a murder case. After verifying the correctness of the information from the Brigade Police Station, Karachi, be arrested the, appellant, on the 11th of July 1967, and sent him to Karachi for being tried for the murder of deceased Dolat Ali.
7. In defence, the appellant denied the prosecution case but admitted in the committal Court that his sister Mst. Anwari Begum was married to Ahmed Sher Khan, brother of the deceased. He also admitted that Ahmad Sher Khan had divorced his sister after eight months of her marriage with him as she suffered from T. B. In the trial Court, the appellant modified his earlier admission to the extent that Mst. Anwari Begum was his full cousin but not his real sister. He adhered to his earlier admission that she was married to Ahmad Sher Khan in 1950. "He explained his abscondence as under :- "I used to reside in Multan since long i.e. 24th Decem--ber 1959. I was serving there with other false name. This false name I had given to the factory authorities because had I told them the real name they would not have accepted me in service."
8. The conviction of the appellant rests on the ocular, testimony of Ghulam Muhammad P. W. 5, Wasal Dad Khan P. W. 6, dying declaration of the deceased and the abscondence of the appellant after committing the crime.
9. At the the of hearing the reference and the appeal we felt that the relationship of appellant Sajjad Ali with Azmat Ali, who has since been convicted was not brought out with clarity in the testimony of Ghalib Ali and we accordingly further examined Ghalib Ali on this aspect of the case.
The appellant then took up the stand in his statement, which we recorded in this Court, that he was not related to Azmat Ali and that he did not reside with him. He further stated that he lived in Landhi in a house adjacent to a Mosque near Nagaria Textile Mills while Azmat Ali resided in Jutland Lines, Karachi. He examined Mumtaz Hussain Khan and Laiq Khan in support of this stand. We have examined the evi--dence on record with the assistance of the learned counsel for the appellant and the counsel appearing on behalf of the State. It is not disputed that the deceased was murdered and that Azmat Ali was tried and convicted for the murder of deceased Dolat Ali. What has been challenged is that the present appellant is not the nephew of Azmat Ali. According to the learned counsel for the appellant since the father's name of the appellant Sajjad Ali has not been disclosed in the dying declaration by the deceased, his assailant could be any other person of that name. We have examined this contention in the light of the prosecution evidence, the statements of the appellant recorded in the Courts below and before us and the defence evidence led by him.
We would first take up the dying declaration. It reads :- "Today at about -5/15 hours in the evening I was going to my quarter on cycle after receiving Rupees from the shop--keepers. That Sajjad son of unknown and his uncle Azmat surrounded me here and Sajjad blown me, knife and Azmat had caught me. Intestines of my stomach have come out and have injured badly. The accused had run away after making me injured. The statement got read over is correct.
Signature/Dolat son of Ali Khan.
(Sd.) Dolat.
Before me.
(Sd.) Illegible.
11th September 1968.
A. S. I. P."
It is true that the appellant has been described as "Sajjad son of unknown" yet his identity was fixed by the deceased by uttering in the same breath "and his uncle Azmat. " It appears from what has been disclosed by the deceased that he wanted to identify Sajjad by reference to his being a nephew of Azmat. Azmat and the deceased were employed in the Department of Films and Publications as farash and peon respectively. This fact is established by Maqsood Ali Mufti (P. W.
10). He has stated that Azmat has been. Convicted and their relations had become strained a year before the incident and the dispute was over a girl related to Azmat but it is not clear from his evidence whether Azmat wanted to marry the girl or the deceased They were however, not on speaking terms. Ahmed Sher Khan. (P. W. 8) has stated that the deceased was his younger brother and the appellant was his brother---in-law. He was married to his sister Mst. Anwari Begum and since she suffered from T. B. He had. Divorced her about 8 months after the marriage. Their relations had become strained after this divorce and at that the the appellant resided with his sister at Jacob Lines. The appellant did not challenge his statement either with regard to his relationship with Mst. Anwari Begum or whether she was his real sister or full cousin. Ghalib Ali (P. W.
1) has also stated that the appellant is the brother of Mst. Anwari Begum who was married to his bro--other, Ahmad Sher Khan, and later on divorced by him. The defence also did not challenge his statement with regard to his relationship with Azmat though Ghalib Ali had stated: "On my inquiry he replied that Sajjad had given him a knife injury while Azmat the uncle of Sajjad had caught hold of him."
Ghalib Ali in his further statement before us stated: "I have heard that Azmat is the uncle of appellant Sajjad Ali, but I have no personal knowledge of the relation. Azmat is the same person who was tried and convicted for the murder of my deceased brother. I know the appellant from 1950. I know Azmat since 1953, when he came to Pakistan frown India. Azmat and the appellant lived together in the same house. I am not aware if there is any other nephew of Azmat by the name of Sajjad: There is no other person by name 'Sajjad' who is known to me."
In cross-examination he stated that he did not know the name of the father of the appellant.
Though this witness had no known as nephew ff Azmat their relationship yet plant was appears to get support from their conduct in living together. He was not aware of any another nephew of Azmat known by the name of Sajjad nor any one by the name of Sajjad. The appellant did not dispute his relationship, with Azmat in his statements recorded before the Courts below. He even admitted his relationship in the committal. Court with Mst. Anwari Begum and later on in the trial Court while admitting his relationship with her, he modified his admission by saying that she was his full cousin. The defence did not put any question to challenge his relationship with Azmat or with his sister Mst. Anwari Begum to any prosecution witnesses. It was for the first the when Ghalib Ali was examined in this Court that he took up the stand that he is not the same Sajjad, nephew of Azmat. Even when Ghalib Ali was examined in this Court he did not contest the relationship by putting any question to him in his cross-examination that he is not the same Sajjad, nephew of Azmat Mumtaz Hassan Khan (D. W. 1) has stated that one by used to visit Azmat whom he used to call "chacha" and that by is not the present appellant. There are other persons by the name of Sajjad living in the locality. His information was based on what Azmat had told him. It is, therefore, hearsay, and does not rule out the rela--tionship of the present appellant with Azmat. Moreover, he was not related to Azmat and could not therefore, have espe--cial knowledge about his other relations. Though this witness has stated in his cross-examination that he did not know the appellant still he has appeared to support his defence how he was discovered is another intriguing feature and under the circumstances his evidence has not impressed us. He had known the appellant but has attempted to show that he was not connected with him. The second defence witness is Laiq Khan. He claimed to have known the present appellant from his childhood and his father Hashmat. He has denied that Hashmat had any brother by the name of Azmat. He has also stated that he and the present appellant worked in Nagaria Mills and lived in Landhi. In his cross- examination he denied that the appellant had any sister. He only referred to his mother who lived with him. He also stated that the appellant left for Multan in 1957 and thereafter, he did not know what happened to his mother. Though the appellant himself had admitted that he has a sister yet this witness has denied this fact. And moreover, the appellant has stated in his statement before the trial Court that he left for Multan in 1959 but according to this witness in 1957. If this witness had known the appellant and his family it is intriguing how he did not know that the appellant has a sister and if the appellant did have a sister as admitted by him then she would normally reside with her mother; who was living with him, after her divorce. This feature in the evidence of this defence witness appears to us to be suspicious and we are inclined to feel that he is suppressing the truth.
This witness, hales from the same place namely, Rampur as the appellant and we are inclined to feel that he has volunteered himself as a defence witness merely to oblige the appellant. As observed earlier it was for the first the in.: this Court that the appellant denied his relationship with Azmat and set up a defence that he is not the same Sajjad nephew of Azmat, and under the circumstances we are inclined to view this defence as an afterthought. There is another piece of circum--stantial evidence to the effect that the appellant had absconded and worked as a labourer in a mill in Multan under an assumed name of Hakim son of Abdul Majid. This fact is admitted by him. If he was not the same Sajjad there was no reason for him to change his name from Sajjad to Hakim and this could only be with a view to conceal his identity. The expla--nation given by him is also absurd, for it is not the name which can make a difference but the language spoken by a man. The deceased could not have referred to any other Sajjad but to the present appellant whom he had known as the nephew of Azmat, in the context of the relationship of this appellant with his brother Ahmed Sher Khan. In our ultimate analysis after reviewing the evidence on record we 'are of the view that the present appellant is the same Sajjad whose name was disclosed 'in the dying declarations as nephew of Azmat. The contention of the learned counsel is, therefore, without any sub stance and we would repel it.
10. As to the occurrence, the prosecution has examined to witnesses namely, Ghulam Muhammad and Wasal Dad Khan. Both these witnesses are not related to the deceased and have no bias against the appellant. Ghulam Muhammad was then employed in the Army and, at that the lived in Jacob Lines with his mother. While he was coming from Saddar to his house he heard the cries "Mardia" "Mardia" and rushed towards the place from where the cries were coming and saw a man holding the deceased and the other stabbing him with the knife. He identified that man in Court as the present appellant. To the same effect is the evidence of Wasal Dad Khan (P. W. 5). At the relevant the he was coming from a mosque towards Jacob Lines when he saw a man holding the deceased and the other inflicting knife blows on him. He identified that person in Court as the present appellant. They have also confirmed the arrival of Ghalib Ali and Allah Bakhsh at the place of incident and also of the making of the oral declaration to them by the deceased. They have also stated that the dying -declaration (Exh. 11) was recorded in their presence and their signatures were taken on it. There is- also consistent evidence that the deceased at the the of making the declarations was in his senses. Dr. Noorul Rehman who was cross-examined on this aspect of the case and he has stated that "the injuries of such a nature are not sufficient in all cases to make the patient unconscious at once." According to him it is the the factor and other considerations which go to make a person unconscious. We have observed that after the incident and within about 15 minutes the deceased had given out the names of his assailants orally and thereafter his statement was recorded at the place of incident without any loss of the. Under the circumstances it is not possible to accept that he would have become unconscious in such a short the and accordingly we are satisfied that the deceased had made the oral dying declaration to the prosecution witnesses and also the one recorded in writing and brought on record as (Exh. 11).
11. The learned counsel for the appellant argued that Ghulam Muhammad and Wasal Dad Khan had not seen the incident as they did not reside in the same locality and their identification of the appellant in Court can also have no weight for the appellant was not put to any test and his identification in Court would accordingly carry no assurance that he was the same man whom they had seen causing knife blows to the deceased. The presence of these to witnesses is established beyond doubt by the testimony of Syed Muhammad Shah (P. W. 12) who had repaired to the place of incident soon after receiving a copy (Exh. 8) of the Station Diary. He had in their presence recorded the dying declaration (Exh. 11) and these witnesses have also signed it. Their statements were recorded thereafter by Iqbal Hussain Rizvi, S. H. O. (P. W. 7). Moreover, Wasal Dad Khan has explained his presence by saying that he was returning from the Mosque towards Jacob Lines when he saw the incident. No question has been put him to show that he could not have seen the incident while coming from that side. Similarly, Ghulam Muhammad has stated that he lived in Jacob Lines and was coming from Saddar. His statement has also not been challenged on the point that the place of incident could not be on the way,, towards Jacob Lines. They are disinterested witnesses and we see no reason why they should assert that they had witnessed the incident if they had not done so. It is therefore, not possible in the context of the above features, as contended by the learned counsel for the appellant, that these to witnesses had not seen the incident. However, since the appellant was arrested after about 9 years and be was not put to any identification test, it is not possible to accept that these to witnesses could have retained the features of this appellant with a view to enable them to identify him in Court. Even if we were doubtful about the identification of the appellant by these witnesses in Court, yet the significant feature of their evidence remains that they saw the to assailants belabouring the deceased and thereafter, the deceased disclosed to them the names of his assail--ants, and one of them is the present appellant while the other, Azmat has since been tried and convicted. After scrutinizing their evidence we have no doubt in our mind that they had seen the incident and it was because of lapse of the that they had forgotten the names of the present appellant and Azmat. It is also not expected of the witnesses, who were not connec--ted with the parties, to remember the names of the assailants for such a long the.
12. The dying declaration (Exh. 11) is a short statement of the deceased and under the circumstances he could not have uttered more than what he has stated. There was spontaneous disclosure of the names of the appellant and his uncle Azmat and in the context of the background he could not have refer--red to any other person except the present appellant and his uncle Azmat. The dying declaration stands duly corroborated by the evidence and circumstances in all respects and we are satisfied that it is a true account of what had happened. The defence has failed to establish on record that there also existed to other persons of the same names and relationship who could also fit in with the description of the present appellant and his uncle and under the circumstances we are unable to entertain any doubt as to the identity of the present appel--lant. We have noticed from the evidence of defence witness, Mumtaz Hassan Khan, that he has referred to other persons having the name of Sajjad but without stating whether any person of that name had any uncle by the name of Azmat and accordingly even though there could be many persons of that name yet it is not possible to accept that any one of them could be the possible assailant of the deceased in the absence of his relationship with Azmat. The oral dying declaration also finds place in, the F. I. R. As well as in the testimony of Ghalib Ali and Allah Bakhsh and the other to witnesses, namely, Ghulam Muhammad and Wasal Dad Khan. The to declarations are consistent as to the description of the present, appellant and the manner in which the deceased was attacked by the present appellant and his uncle Azmat. The learned counsel for the appellant has not attacked the declarations from any other angle and we would accordingly accept them. In the context of the evidence of the prosecution witnesses, there is another piece of circumstantial evidence against the appellant, namely, his abscondence for .a period of 9 years after committing the crime: It is in the evidence that he got employment as a labourer in Multan under the assumed name of Hakim with a view to conceal his identity. He admitted having left Karachi in 1959. Why should he do so and seek employment under an assumed name in Multan is an intrigu--ing feature which strongly weighs in favour of his guilt when read along with other pieces of evidence. This circumstance further corroborates his identity as one of the assailants of the deceased.
13. The motive has also been established on record and we are of the view that the appellant with a view to avenge him--self had committed the murder of the deceased over the divorce of his sister by his brother. The prosecution has there fore, established its case against the appellant beyond doubt and we would accordingly uphold his conviction. The attack on the deceased was with vengeance and we would not there--fore, reduce his sentence. If there was any delay in the trial that was because of the fact that the appellant himself brad absconded. We would accordingly confirm his death sentence, accept the reference and dismiss the appeal.