1. Z. C. VALIANI, J.-Appellant above-named, being aggrieved by judgment dated 2nd September, 1982 of the learned VIII Additional Sessions Judge, Karachi, in Sessions Case No, 7864/76, by which appellant has been convicted under section 302, P. P. C. And sentenced to suffer Life Imprisonment and to pay fine of Rs, 5,000 or in default to suffer further R. I. For one year, has preferred the above appeal, on the following facts and grounds whereas appellant Subedar (Rtd.) Ashiq Hussain, father of deceased Pervez Akhtar, has filed Cr. Revision Application No, 143/82 for enhancement of the sentences awarded to the appellant Tassaduq Hussain, on the facts and grounds mentioned in the memo. Of said Revision Application.
2. Since both the above matters arise out of same 'judgment, we have decided to dispose of both these matters, by this common judgment.
3. Briefly stated the prosecution case is that deceased Parvez Akhtar used to reside with his brother Khidmat Hussain and was working as Barman. Deceased Parvez Akhtar was married with his paternal cousin Mst. Mahfooz Akhtar. To whom he had sent "Talaq" by registered post. On receipt of "Talaqnama" appellant Tassaduq Hussain brother-in-law of deceased Pervez Akhtar, was annoyed and he came to Karachi, and on 11th July, 1976 at about 6-00 p. m. He went to quarter of the complainant Khidmat Hussain and told that it was not fair on the part of Pervez Akhtar to divorce his wife and that he had come to admonish Parvez Akhtar to revoke "Talaq". As Pervez Akhtar was not present in quarter, and the complainant Khidmat Hussain had to go on his duty, appellant Tassaduq Hussain went away after few minutes, saying that he would again come to meet Pervez Akhtar. On 12th July, 1976 the complainant Khidmat Hussain, Pervez Akhtar, Farooq Ahmad and Nazar Masih were sleeping in quarter. When at about 5.30 a. m. Appellant Tassaduq Hussain came.
4. They took tea and admonished both Tassaduq Hussain and Pervez Akhtar, and settled the dispute that Pervez Akhtar would revoke the "Talaq". At about 11-00 or 11-30 a. m. Complainant Khidmat Hussain, Pervez Akhtar and Tassaduq Hussain reached at Sadar Post Office, where from complainant Khidmat Hussain sent a telegram to Fazal Illahi father of Tassaduq Hussain to return back "Talaq". Thereafter walking in town they came back at quarter, and after taking meals, went to asleep. At about 3-15 p. m. Appellant Tassaduq Hussain asked the complainant Khidmat Hussain to bring him water. Complainant Khidmat Hussain went in bath room to fetch water and when came back having water, he saw appellant Tassaduq Hussain standing near cot of Pervez Akhtar and was giving knife blows to Pervez Akhtar, who had raised his hands and was trying to rescue the blows. Seeing the complainant Khidmat Hussain, appellant Tassaduq Hussain having blood- stained open knife in his hands ran outside the quarter. Complainant Khidmat Husain shouted and he alongwith Nazar Masih, Muhammad Yousif, Rafiq Ahmed and Muhammad Shabir followed Tassaduq Hussain to catch hold of him. Appellant Tasaduq Hussain ran from P. I. A. Booking office towards hotel Metro-pole, where police constable, standing captured him. Complainant Khidmat Hussain and Nazar Masih rushed to quarter and took Pervez Akhtar to Civil Hospital, where Pervez Akhtar succumbed to his injuries at 6.55 p. m.
5. Receiving information on 12th July, 1976 at about 3-45 p. m. From some unknown person, that a person after causing injury was running with an open knife and that he was being followed by some persons, Majid Hussain Sub-Inspector duty Officer Civil Lines Police Station made such entry in Station Diary. He accompanied, with a Head Constable went towards Gymkhana Club. When he reached near old Commissioner's House, he saw constable Gulzar, alongwith two other constables coming with appellant Tassaduq Hussain in their custody. Gulzar constable informed him, that he had secured blood-stained knife from the appellant. Gulzar constable handed over blood-stained knife to Majid Hussain Sub-Inspector, who recovered and sealed the blood-stained knife in presence of mashirs and prepared mashirnama of recovery of blood-stained knike Exh. 4/A, and sketch of knife Exh. 4/B. He directed constables to take the appellant Tassaduq Hussain to P. S. And lodge him in cell, and to deposit the knife at police station. He then, repaired to place of occurrence, where he knew, that injured Pervez Akhtar was taken to Civil Hospital. He went to Civil Hospital, where he met with the complainant Khidmat Hussain and recorded his statement under section 154, Cr. P. C., which he sent through Head Constable to Police Station for incorporating the same in 154, Cr. P. C. Book. He made enquiry in writing from the doctor if injured Pervez Akhtar was able to make statement. He again alongwith the complainant Khidmat Hussain went to place of incident and prepared mashirnama of place of occurrence Exh. 3/A. He prepared sketch of vardat Exh. 11/B. He secured blood-stained sun newspaper vide mashirnama Exh. 4/C. He then went to Civil Hospital, where he came to know, that Pervez Akhtar had expired. He prepared mashirnama of dead body Exh. 5/A. He prepared inquest report Exh. 5/B. He obtained cause of death opinion from Dr. Ishfaq Exh. 10/B. He recorded statements of procecution witnesses. He then returned back to police station and converted the offence from under section 307, P. P. C. To under section 302, P. P.
6. C. He sent knife and clothes to chemical examiner, who on examination issued his report Exh. 11/A, that the same were stained with human blood He prepared mashirnama with regards to stay of appellant Tasaduq Hussain in Salim Serai Exh. 11/C. He secured Register of Hotel, showing stay of appellant Tasaduq Hussain in Serai Exh. 11/D. He also got statement of hidmat Hussain recorded under section 164, Cr. P. C. After completing the investigation he sent up the appellant for trial.
7. Charge under section 302, P. P. C. (Exh. 1) was framed against the appllant. He did not plead guilty.
8. Prosecution examined P. W. 1 Complainant Khidmat Hussain Exh. 2 who produced his 154, Cr. P. C.
9. Statement Exh. 2/A, P. W. 2 Nazar Masih Exh. 3, who produced mashirnama of vardat Exh. 3/A P. W. 3 Shabir Ahmad Exh.
4. Who produced mashirnama of recovery of knife Exh. 4/A, sketch of knife Exh.
10. 4/B mashirnama of recovery,of blood-stained Newspaper sun Exh. 4/C, P. W. 4 Muhammad Yousaf Exh. 5 who produced mashirnama of dead body of deceased Pervez Akhtar Exh. 5/A and inquest report Exh. 5/B, P. W. 5 Abdul Hafeez Police Constable Exh. 7, P. W. 6 Gulzar Police Constable Exh. 8, P.
11. W. 7 Dr. Muhammad Khalid Siddiqi Exh. 10 who produced medical certificate Exh. 10/A and cause of death report Exh. 10/B, P. W. 8 Majid Hussain Sub-Inspector Investigation Officer Exh. 11, who produced report of Chemical Examinor Exh. 11/A, Sketch of vardat Exh. 11/B, mashirnama of recovery of leaf of register of hotel showing stay of appellant Tassaduq Hussain in hotel Exh. 11/C, leaf of register Exh. 11/D, letter to casualty medical officer enquiring if Pervez Akhtar was able to give statement Exh. 11/E vide statement Exh. 6 A. P. P. Gave up P. W. Sultan. Vide statement Exh. 9 A. P. P.
12. Gave up P. W. Rafique. Vide statement Exh. 12 A. P. P. Closed the prosecution side.
13. In his statement under section 342, Cr. P. C. Exh. 13 appellant denied all the allegations of the prosecution. He stated that after sending telegram he went to Ratan Talao, and was arrested from house of Mohammed Khan.
14. The learned trial court taking into consideration the evidence adduced before it, convicted and sentenced the appellant above-named as herein-before mentioned and consequently appellant has filed the above appeal, on the grounds mentioned in the Memo. Of Appeal, where father of the deceased has filed above criminal Revision Petition, for enhancement of sentences awarded to appellant, on the facts and grounds mentioned In the Memo. Of above Revision Application.
15. Prosecution case rests on the statement of only eye-witness P. W. I Khidmat Hussain and on corroborative statements of P. Ws. Nazir Masih, Shabir Ahmad and Muhammad Yousuf, who were attracted on cries of complainant and had seen appellant running away from vardat, with open blood-stained knife in his hand. In addition to this prosecution case rests upon the statements of two police constables P. W. Abdul Hafeez and P. W. Gulzar, who apprehended appellant, while running with open blood-stained knife and secured the said knife and handed over appellant and the said knife to P. W. Majid Hussain S. I. Who was coming to vardat, as receiving telephonic message. We have carefully gone through the statements of all these P. Ws. Appellant in his statement under section 342, Cr. P. C. Had denied prosecution allegations, that he gave knife injuries to deceased, though he admitted, that he came down from his native place to prevail upon deceased to withdraw the divorce given by deceased to his sister, P. W. 1 Khidmat Hussain is relation of both deceased and appellant and incident took place in his quarter, situated in Karachi Gymkhana. Motive for which appellant came to Karachi is proved by P. W. 1 Khidmat Hussain as well as by appellant, according to him deceased having agreed to withdraw the divorce, he had no cause or motive to murder him. Appellant further stated, that at the relevant time he was at Ratan Talao and was arrested from there and not near old Commissioner's House, as alleged by P. Ws. In support of his statement of alibi, appellant examined D. W. 1 Muhammad Nawaz and D. W. 2 Momin Khan, who in their statements stated, that appellant was with them upto 1-30/2-30 p.m. On the day of incident.
16. The learned adovcate for appellant in support of the above appeal submitted, that there were material contradictions in the statements of P. Ws, about alleged arrest of the appellant as well as manner in which knife was secured etc. At the alleged time of appellant's arrest. The learned counsel further submitted, that according to P. W. 1 Khidmat Hussain deceased was given blows on bed, but neither blood-stained bed sheet nor blood-stained clothes of the appellant were secured by police and as such presence of P. W. 1 at the time of the incident is doubtful. The learned counsel for appellant further submitted, that P. W. Nazir Masih, the alleged mashir of recovery of knife was not there at the time of his alleged arrest, according to his own statement. The learned counsel further stated P. W. Gulzar Police constable, who apprehended the appellant as alleged, does not corroborate statement of P. W. Majid Hussain I.O. On material points, about the arrest and recovery of knife etc., from appellant. P. W. Gulzar denied that knife was sealed in his presence, as alleged by P. W. Majid Hussain I. O. In view of this and the statements of two P. Ws. Appellant has succeeded in creating doubt in prosecuting case against him. In support of his contentions the learned counsel relied upon cases reported in PLD 1978 SC 114 and 1982 P. Cr. L J 325/888. In view of this he further submitted, that question of enhancing sentences awarded to appellant does not arise at all.
17. The learned Advocate appearing for the State on the other hand submitted, that prosecution by statements of P. Ws. Has fully established it case beyond reasonable doubt against the appellant, as well as has proved the motive for murder in question. The learned counsel further submitted, that appellant came all prepared from his native place to murder the deceased and he having got the opportunity, on account of P. W. 1 Khidmat Hussain, having gone to fetch water for him, gave him knife blows, with, intention to kill him, on account of the fact, that deceased had divorced appellant's sister. D. Ws produced by appellant failed to establish alleged alibi of the appellant upto the time of murder of deceased, and as such learned trial court rightly did not believe their statements in this connection. In view of this the learned State counsel submitted that appellant is guilty of pre-planned murder and as such ought to have been awarded death sentence as prayed in Cr. Rev. Application filed, by the father of the deceased.
18. The learned counsel appearing for appellant in Cr Rev. Aping. Adopted the arguments of the learned State counsel and further submitted, that appellant came ready from his native place to murder the deceased, which he did on getting rid of P. W. 1 Khidmat Hussain on pretext of water and in spite of the fact, that deceased had agreed to withdraw divorce given by him to appellant's sister and consequently appellant should be awarded death sentence.
19. We have carefully gone through the statements of P. W. 1 Khidmat Hussain as well as P. Ws. Nazir Masih, Shabir Ahmed, Muhammed Yousuf, Gulzar, Abdul Hafiz and S. I. Majid Hussain. We find that statement of P. W. 1 Khidmat Hussain is straightforward and convincing and find his statement regarding running away of appellant after committing murder with open blood-stained knife, is fully corroborated by P. Ws. Nazir Masih, Shabir Ahmad, Muhammad Yousuf, Gulzar and Abdul Hafiz as well as by S.-I. Majid Hussain. No doubtt here are minor contradictions in the statements of P. Ws.
20. Inter se in respect of actual place of arrest of the appellant and the manner in which knife was secured from him. But these contradictions in no way affect the veracity of their statements of having followed the appellant from Karachi Gymkhana premises to place near old Commissioner's House, with open blood-stained knife in his hand. We further find two D. Ws. Have failed to establish alleged alibi of the appellant upto the time of the incident in question. D. W. 1 Muhammad Nawaz in his cross stated, that appellant was with them upto 2 or 2.30 p. m. Only D. W. 2 Momin Khan has said nothing about alleged alibi plea. Alibi must be proved to hilt, which in our opinion D. W. I was failed to do so, as the incident according to P. Ws. Occurred at about 3.15 p. m. Or so, as mentioned in F. I.
21. R. Exh. 1-A. Even if recovery of knife is discarded on account of descripancy in the statement of P. W.
22. Gulzar and P. W. Majid Hussain about its sealing, still we find prosecution case stands established beyond reasonable doubt by statements of P. Ws. Khidmat Hussain, Nazir Masih, Shabir Ahmad and Muhammad Yousuf, as non-recovery of alleged blood-stained clothes of the appellant from his person and/or bed sheet etc , does not in any way affect veracity of their statements. If such evidence was available it would have further corroborated prosecution cases. Case cited by learned Advocate for appellant are based on different facts, as such not applicable to present case at all.
23. Therefore, in view of our above appraisal of prosecution evidence on record, we find no merits in the above appeal filed by appellant which is consequently dismissed.
24. As far as Cr. Rev. Application for enhancement of sentence filed by father of the deceased, we have given careful consideration to the submissions made by learned State counsel as well as Advocate for the applicant. We find no evidence on record, that appellant came with motive to murder deceased. On the contrary, there is statement of P. W. 1 Kbidmat Hussain, that appellant wanted to prevail upon deceased to withdraw divorce. In addition to this, we find that age of appellant on the day of incident was about 22 years, which fact is not disputed by learned counsel for the State before us and as such we see no reason to interfere with the sentences awarded to appellant by learned trial Court, in view of his tender age at the time of the incident, as in our opinion Life Imprisonment and fine imposed on the appellant would meet the ends of justice. Therefore, we find no merits, in Cr. Rev. Application No, 143/82, which is consequently also, dismissed.