1. ' MUHAMMAD HALEEM, C.J.-- This appeal, by special leave, arises from the judgment of the Lahore High Court, Lahore, dated 6th of June, 1978, by which Criminal Appeal was dismissed and the Murder Reference accepted.
2. Leave to appeal was granted to consider as to whether Mst. Nasim Akhtar witnessed the occurrence, and as to whether the Chhuri was, in fact, produced by the appellant as alleged so as to bring home the guilt to him consistent with the principles of safe dispensation of justice.
3. ' The deceased Dr. M.S.Khursand and his family lived in a portion of the building in the area of Tehzab Ahata Road, Lahore, and on the ground-floor he had his clinic for the last 30 years.
4. Inayatullah, the landlord, also resided with his family in a portion of the building on the upper floor.
5. He sued for ejectment of the deceased both from the residential portion as well as his clinic, and this litigation went on for ten years.
6. ' At about 8-00 a.m. On 21st of November, 1971, the appellant, who is said to be a student, armed with a knife, his father Inayatullah, his brother Fida Hussain and Muhammad Saeed, his maternal- uncle, who were unarmed, entered the clinic and from amongst them the appellant raised a Lalkara that as the deceased had got the case fixed in the High Court, he would himself settle the matter today. Thereupon all of them attacked the deceased and grappled with him, and while Inayatullah caught him by the waist, his son, shoukat Hussain, the appellant, gave a knife blow on his abdomen. Muhammad Saeed picked up the .12 bore licensed gun of the deceased which was kept in the clinic and caused a blow with its butt on his face, and as for Fida Hussain, he gave a blow with a bottle on his eye-brow. Dr. S.M. Khursand on receiving these injuries fell down. This incident was witnessed by Pirzada S.A. Baghdadi, Muhammad Azam, Muhammad Ashiq and Mst.
7. Nasim Akhtar widow of the deceased. The appellant and his accomplices thereupon left the place raising Lalkaras. Pirzada S.A. Baghdadi and Muhammad Azam took the deceased to the hospital, but before he could reach there h' expired. Information was conveyed on telephone to the Officer in CI. Age, Police Station, Misri Shah, from where the Investigating Officer came to the Mayo Hospital and there recorded the statement of Pirzada S.A. Baghdadi at 10-15 a.m. The same day, which was treated as an F.I.R. In the case.
8. ' From the spot two blood-stained tiles, a piece of torn shirt, a collar, a neck-tie and broken pieces of the bottle were recovered. On the same day a blood-stained knife was produced by shoukat Hussain, the appellant, which on examination was found to be stained with human-blood. Some of the articles mentioned above were also found stained with human-blood.
9. ' At the trial, only Mst. Nasim Akhtar supported the prosecution case while Pirzada S.A.Baghdadi turned hostiled. Ashiq Hussain was given up as having been won over while Muhammad Azam's statement was transferred to the file arid read as defence evidence at the request of the appellant.
10. The trial Court acquitted lnayatullah, Fida Hussain and Muhammad Saeed, but convicted shoukat Hussain on the charge of murder and sentenced him to death and to pay a fine of Rs, 10,000 or 'in default to suffer rigorous imprisonment for two years. The fine, if recovered was ordered to be paid to the heirs of the deceased.
11. ' On appeal and reference, the High Court upheld the judgment of the trial Court.
12. ' The acquitted accused Inayatullah on being examined under section 342, Cr.P.C. Admitted: "The deceased, his wife Mst. Nasim Akhtar P.W. Were living in the hall of the ground floor and inter floor rooms of the hall", and as for the deceased running his clinic in a shop on the ground-floor, he denied it and stated that he was an employee of C.M.A, Lahore. He also admitted that ejectment proceedings were pending in the High Court at the time of occurrence. In regard to his involvement in the crime, he stated: "On the day of occurrence I along with my all family members had gone to my in-laws' house inside Delhi Gate as it was Tarru Day after Eid. We were called by the police from there and were falsely involved in the case. The deceased had other enemies also. Security proceedings had been initiated against the deceased and Baghdadi P.W. By Misri Shah police on 18-12-1970 at the instance of Yaqub Butt. Certified copy of the report is produced which is Exh. D.1."
13. ' And finally he alleged his involvement due to previous enmity. As for the appellant, he denied having produced the crime-weapon and proclaimed his innocence stating that he was not in the house at the time of the occurrence. He, however, admitted enmity with the deceased.
14. ' The trial Court held that the relations between the parties were strained on account of the ejectment proceedings pending for the eviction of the deceased from the residential portion as well as his clinic. Next, the trial Court held Mst. Nasim Akhtar (P.W.8) to be a natural witness "as she resided in the inter-floor of the building" with her children and her husband, who was running a clinic in a shop on the ground-floor, and as there was no obstruction, she could have seen the occurrence from point "6" in the site-plan (Exh.P.A. And P.A/1) where she had asserted to be on hearing the commotion. However, to impugn her credibility several objections were taken, but the trial Court repelled them, and it was finally held: "In view of this analysis of the evidence pertaining to the testimony of the eye-witnesses, I am of the view that Mst. Nasim Akhtar P.W.8 was present in her house on the fateful day and time when her husband was being injured by the accused and she had witnessed the occurrence while present in the gallery."
15. ' Further in regard to the production of the knife by the appellant, the trial Court held that as the recovery witnesses had turned hostile, it did not mean that the recovery was not established. This, however, stood proved by the scribe, an Inspector, Muhammad Saeed (P.W.12) who had no enmity with the appellant. The securing from the spot of blood-stained collar, a torn piece of the shirt and the silken neck-tie also Went to establish that there was grappling with the deceased as a result of which they were pulled out or torn, and this circumstance corroborated the evidence of Mst. Nasim Akhtar as to the deceased having been belaboured by the appellant and the others. In regard to those acquitted, the trial Court held that as the injuries were not found consistent with the roles attributed to them they were entitled to the benefit of doubt and, accordingly, acquitted, but as to the guilt of the appellant, the trial Court, in the ultimate analysis, placed reliance on the evidence of Mst. Nasim Akhtar, the production of the crime-weapon, the seizure of the blood-stained articles of the deceased from the spot and the stab injury found by the Doctor as having been caused by a weapon such as a knife.
16. ' The High Court while assessing the evidence of Mst. Nasim Akhtar also held her to be a natural witness, and also accepted her claim to have witnessed the occurrence on hearing the alarm being raised particularly for the reason that it was consistent with the version given in the F.I.R. By the complainant, who later turned hostile. The High Court also rejected the submission that she was at Sargodha on that date and had come in the evening, and that her conduct was not unnatural as argued. As for the absence of her name in the inquest report and so also in the statement at the foot of the F.I.R. Namely, "Police Karwai", the High Court held that as she was not in the hospital where those documents were prepared, it was for that reason that her name was not mentioned, but what was consequential was that her name did transpire in the F.I.R. The High Court in its final analysis held: "In so far as the eye-witness account is concerned, prosecution is left with the solitary statement of Mst. Nasim Akhtar. We see no reason why her statement should not be relied upon. We find that she was a natural witness; she was present in the house on the day of occurrence with her husband.
17. Her statement is also corroborated by the medical evidence; she had no reason to substitute the appellant for the real culprit on the charge of murder. Therefore her statement alone is enough to prove the prosecution case against the appellant. There is, however, another corroborative evidence i,e, the recovery of blood-stained knife from the appellant. Thus, it is proved by the solitary statement of the Investigating Officer, before whom the appellant produced the knife. There is nothing in the evidence of this police officer to discredit his testimony. He has no motive against the accused to falsely implicate him nor are there circumstances to show that in his anxiety as an Investigating Officer to prove the recovery he has planted the knife."
18. ' Accordingly, the High Court upheld the conviction and sentence awarded by the trial Court.
19. ' The learned counsel for the appellant argued that Mst. Nasim Akhtar was not in the house at the time of the incident, but returned from Sargodha at 3-00 p.m., and it was, therefore, that her name does not find mention either in the inquest report or "Police Karwai". Now as to the requirements of the inquest report, section 174, Cr.P.C. Prescribes for holding inquests and for writing reports as to the apparent cause of death, the injuries found on the body and the manner and the weapon used in causing the injuries. The provision nowhere lays down that the names of the witnesses should also be incorporated and for that matter the form prescribed under the Police Rules also does not have any column for mentioning the names of the eye-witnesses. It may be due to abundant caution that the Police Officer may give the names, but that is also not a mandatory requirement of the rules.
20. ' Such report is not substantive evidence and the cause of death has to be established independently by evidence collected during the investigation. Here what we find is that the dead body had been removed to the hospital and it was only after the recording of the statement of Pirzada S.A. Baghdadi that the inquest report was prepared in the hospital mortuary. If the Polcie Officer had failed to mention the name of Mst. Nasim Akhtar, it does not follow that she had not witnessed the occurrence for her name transpired in the statement of Pirzada S.A. Baghdadi himself which formed the F.I.R. Therefore, nothing will turn on it.
21. ' It was next argued that the statement of Pirzada S.A. Baghdadi was not recorded at 10-15 a.m. In the hospital, but at 3-00 p.m. After the arrival of Mst. Nasim Akhtar from Sargodha. We have not been able to find anything from the record in support of this submission, but the learned counsel placed reliance on the statement of Abdul Salim, S.I. (P.W.7) and Pirzada S.A. Baghdadi (P.W.9) to substantiate it. Pirzada S.A. Baghdadi was won over and did not support the prosecution case. If the witness himself is so unreliable we do not see how and upon what criterion can we measure his credibility in regard to matters favourable to the defence uncorroborated by any reliable fact. We have no doubt that he was motivated subsequently to falsify for improper considerations. At the trial, this is what he stated: "I made statement at 3.p.m. In the P.S. I have not read it. The statement Exh. P.F. Was not dictated by me. The police had recorded the same before I reached in the P.S. I was called in the P.S. Misri Shah by the S.I. I signed Exh.P.F. Under compulsion at the instance of the police. The witness was read out the contents of his statement Exh. P.F., and has stated that they were not imparted by him to the police, and he had no knowledge of the said pertaining to occurrence and others, incorporated in Exh. P.F."
22. ' All that he stated at the committal stage was that it was the local police who had forced him to make the statement according to the version as given in the but even there he did not pinpoint any person. At the trial, it was suggested to Muhammad Masood, Inspector, that the prosecution version was concocted at the police station in the afternoon with the collusion of the brothers of Mst. Nasim Akhtar, and he was forced to sign the statement on the threat that he would be involved in the murder case. If he was not a witness then why should he be picked up to sign a recorded statement under compulsion and that too at the behest of vague persons whose influence with the police officer was not established.
23. ' In his cross-examination Pirzada S.A. Baghdadi has admitted that when he visited the clinic he found the deceased lying in the verandah in front of the shop, and a blood-stained Chhuri was also lying there. He along with others placed him on a cot and took him inside the clinic. He denied having seen Mst. Nasim Akhtar in the house at that time. All this obviously goes to show that the prevaricated and changed his earlier version as recorded in this statement. It was urged that we should accept this part of his statement, but on the face of it, it appears to be a cock and bull story as his presence is established beyond doubt at the hospital and also the fact that his statement was recorded by Abdul Salim, S.I. (P.W.7) in which not only he had shown himself as an eye-witness, but also given the name of Mst. Nasim Akhtar as having witnessed the occurrence. The mere fact that in the daily diary of 21st November, 1971, which was entered on receiving the information from the hospital, the name of Pirzaada S.A. Baghdadi was not mentioned, it cannot be urged with any force that as he was not here his name was not, accordingly, mentioned. The name of the person who had given the information although named in the report had not been examined to establish as to why he omitted to mention the name of Pirzada S.A. Baghdadi, but in or view this is neither here nor there as the entry only relates to the arrival of a person who had suffered homicidal death.
24. Nothing will also turn on the fact that Muhammad Azam's presence was not noted by Abdul Salim, S.I. (P.W.7) in the inquest report, nor of his absence from there, as his name was mentioned in the F.I.R. And ought it be said that his statement was recorded by Masood Ahmad, Inspector. Abdul Salim had categorically denied the suggestion that he had not recorded the statement of Pirzada S.A. Baghdadi at the hospital or that both he and Masood Ahmad had got a prepared statement signed by the witness at the Police Station. Equally if the presence of Pirzada S.A. Baghdadi, Muhammad Azam and Mst. Nasim Akhtar was not mentioned in the "Police Karwai" recorded at the foot of the statement, which formed the F.I.R., nothing will turn on it as their names found mention in the said statement. It cannot also be argued with any efficacy that to make them as eye-witnesses their presence at the hospital was also essential. No question was put to Mst. Nasim Akhtar that she had been to Sargodha and had come at 3 O'Clock on the day of occurrence nor a suggestion made to Muhammad Masood, Inspector, that he had not recorded her statement or seen her at the premises at about 1-00 or 2-00 p.m. Consequently it is futile to argue that the statement of Pirzada S.A. Baghdadi was not recorded at 10-15 a.m. As there is authentic evidence to establish that the deceased was taken by Pirzada S.A. Baghdadi and Muhammad Azam and that Pirzada S.A.
25. Baghdadi's statement was recorded at the hospital.
26. We have examined the evidence of Mst. Nasim Akhtar and we find it to be straightforward and natural. No attempt was made to show that she could not have witnessed the occurrence from point '6' and we have no hesitation in accepting her statement. As for the knife having been secured from the spot while it was lying there is also not believable as this version also appears from the statement of Pirzada S.A. Baghdadi, who, in or opinion, is a liar and has made this innovation to weaken the evidence of the production of the knife, but we have no hesitation in accepting the statement of Inspector Muhammad Masood before whom the crime-weapon was produced. Accordingly, we agree with the opinion of the Courts blow as to the assessment of the testimony of Mst. Nasim Akhtar and the securing of the knife produced by the appellant.
27. ' As for the sentence, we feel that if the intention had been to kill the deceased then the appellant could have straightaway caused the injury, but what we find is that there was grappling, in which not only the three acquitted accused took part but also the appellant, and in the heat of the moment, the appellant caused a single knife blow. It cannot also be denied that he was acting under the influence of his elders and in the resultant affray he caused the fatal blow. In the circumstances, we do not think that the extreme penalty should be awarded to the appellant.
28. ' Accordingly, while maintaining his conviction under section 302, P.P.C., we would substitute the sentence of transportation for life and give to him the benefit of section 382-B, Cr.P.C. The appeal in all other respects fails, and is hereby dismissed.