This appeal under section 410, Cr.P.C. Has been filed by Altaf Hussain against the judgment, dated 10th January, 1985 of Second Additional Sessions Judge, Karachi, whereby he convicted the appellant under section 302, P.P.C. And sentenced him to suffer life imprisonment and to pay fine of Rs.10,000 in default to suffer R.I. For two years more and also to pay compensation of Rs.10,000 to legal heirs of the deceased as required under section 544-A, Cr.P.C.
Briefly stated the facts of the prosecution case are, that on 13-12-1976, Police Surgeon, Karachi, Dr. Abdul Majid informed Police Station, Nazimabad, that he received injured Khalil Ahmed having knife injuries. This information was noted in Roznamcha as entry No. 13 at 11-45 a.m. S.H.O. Siraj Hussain, after getting copy of entry through Police Constable Muhammad Ashraf proceeded to Abbasi Shaheed Hospital, where he found dead body of Khalil Ahmed in mortuary and prepared Mashirnama. In the meanwhile, Mahfooz Ali reached there and S.H.O. Recorded his statement, who stated that he works at Petrol Pump, deceased, Khalil Ahmed and appellant, Altaf, are from his Bradari. Few days back, Altaf had given fist blow to Mst. Salma Begum, the brother's were of Khalil Ahmed, but the matter was settled, but deceased Khalil Ahmed, asked appellant, that he would not allow this kind of goondaism to be continued so that you may disrespect the women. On this, there had some exchange of harsh words between deceased and appellant. Mahfooz Ali further stated in his statement, that today 3-12-1976 at about 11-00 a.m. While he was passing through the land, he saw appellant, Altaf caused Chhuri injury on the left rib of Khalil Ahmed, who fell down and again appellant inflicted another injury to Khalil Ahmed on his chin. He threw Chhuri there and ran away. In the meanwhile, Liaquat appeared there, Mahfooz Ali told him to look after Khalil and he went after Altaf and chased him upto some distance but appellant disappeared in Moosa Colony, and Mahfooz Ali came to the house of Khalil where his mother told him, that Liaquat had taken Khalil Ahmed to Abbasi Shaheed Hospital. Mahfooz Ali came to the hospital and gave statement to S. H .0. His statement was sent through P.C. Fateh Khan to Police Station. The case under section 302, P.P.C. Was registered against the appellant and after investigation he was challaned.
3. The charge, Exh. 1, for the offence under section 302, P.P.C. Was framed against appellant to which he pleaded not guilty. The case proceeded and prosecution in support of the case examined 12 witnesses. P.W. 1, Shakil Ahmed, Exh. 2, Mst. Salma Exh. 5, Mst. Rabia Bibi, Exh. 6, P.W.4 complainant, Mahfooz Hussain, Exh. 7, P.W. 5 Liaqut Ali Exh. 10, P.W.6, Abdul Kalam, P.W.7 Azam Ali, Exh. 14, P.W.8 Faryad Ali Exh. 17, P.W.9 Bahadur Ali Exh. 18, P.W.10 Siraj Hussain S.H.O. Exh. 19, P.W 11, Allahynr A.S.I. Exh.
25, P.W.12 Dr. Abdul Majid Exh. 29.
4. Appellant in his statement under section 342, Cr.P.C. Exh. 22 denied the allegations and stated, that he is innocent and prosecution witnesses are related inter se, therefore, they have deposed against him. He did not examine any witness in his defence.
4-A. The evidence of prosecution consists of the following circumstances: -
(i) Ocular evidence.
(ii) Medical evidence.
(i.e) Dying declaration.
(iv) Blood-stained clothes.
(v) Motive.
5. Mahfooz Ali and Bahadur Ali have been examined, as eye-witness. Complainant, Mahfooz Ali Exh.
7 has fully supported his complaint and stated, that on 3-12-1976 at about 11 a.m. When he was in Gali Wahid Colony in front of his house, he heard cries and saw that appellant was giving Chhuri injuries to Khalil Ahmed who raised cries due to which me and women came to the place of the incident. He also saw Liaquat and Shakil and many others. He informed Liaquat, that Altaf gave Chhuri blows to Khalil Ahmed. He has also stated, that appellant concealed Chhuri in dirt and ran towards Moosa Colony and he chased him to the distance of half mile but could not catch him and came to the house of Khalil, where his mother informed him, that Khalil was taken by Liaquat to the hospital where he came to know that Khalil had died. Thereafter, police came and recorded his statement which he produced as Exh.
8. He has deposed, that he pointed out place of occurrence from where blood-stained earth and Chhuri were received. He identified the Chhuri. In his cross- examination it is suggested that his were was made witness but in her place he came to give evidence. This suggestion has been denied by complainant. The enmity has neither been proved nor suggested by appellant with this witness.
6. P.W. 9, Bahadur Ali, Exh. 18, has stated, that on the day of incident at about 11 a.m. He was sitting with his friend in Wahid Colony, where he saw appellant Altaf, who stabbed Khalil, near the public water tap. Thereafter, he and Liaquat took deceased in Taxi to hospital but on the way he got down in order to inform police when he reached at the Police Station he came to know, that police was already informed. He came with police at the Wardat. Police prepared Mashirnam, Exh. 11, which he signed. He states, that he acted as Mashir of securing of Chhuri near water tape and colour of handle of Chhuri, Article "A", was yellow. He has denied, that he is uncle of deceased, Khalil, and came at the place of Wardat two hours after the incident and had not seen the incident. The enmity has not been suggested to him. He deposed, that he did not state in his police statement, that he heard that accused Khalil had stabbed the deceased. This witness has not been believed by the trial Judge on the ground, that his evidence does not get support from Liaquat about his presence at the Wardat. It has been held, that his presence at the place of incident appears to be doubtful.
7. P.W. 5, Liaquat, Exh. 10, has stated, that he is resident of Wahid Colony, North Nazimabad, deceased Khalil Ahmed and appellant used to reside in the same colony. On the day of incident he was in the house of his sister when he heard cries and shouts from the lane outside the house of his sister. He came out and saw, that Mahfooz was giving assistance to Khalil Ahmed, who was bleeding. Mahfooz told him to take care of Khalil and he would follow accused Altaf Hussair, who stabbed Khalil. He took Khalil to his house who told his mother in his presence that Altaf caused him injuries on right side on ribs and it was difficult to breath. Thereafter, he took Khalil in rickshaw to Abbasi Shaheed Hospital, 'Karachi where he died and doctor informed the police, In the meantime, Shaukat All came and police prepared Mashirnama of the dead body, Exh. 4, which he signed. He has stated, that Mahfooz Ali came to the hospital when post-mortem was being conducted. The police recorded the statement of Mahfooz. He alongwith Mahfooz and P.W. Bahadur Ali went to place of occurrence with police. The police secured blood-stained Chhuri, Article "A", and visited Wardat. Such Mashirnama, Exh. 11, was prepared and he acted as Mashir. On the same day at about 4-30 police arrested appellant from hotel No. 420 at Kasimabad in his presence. The accused had injury on finger and he was wearing blood-stained Kurta and Shalwar. Such memo.
Exh. 12 was prepared which he signed. In his cross-examination he has stated that police met him in the hospital at 1.30 p.m. On the same day, P.W. Mahfooz also arrived there.
8. Dr. Abdul Majid Khan Exh. 27 who performed post mortem has stated that on 3-12-1976, he started the post-mortem at 1-30 p.m. And found the following injuries on the dead body of Khalil Ahmad:- (1)Incised wound 2 --" x skin muscle deep on the front of the chin in a semi-circular fashion.
(2)Incised wound about 1 --" x -- " x chest deep on the left ninth intercostal space on the middle axilary lying 2 --" above the left subcostal margion in L shape manner.
On internal examination he found the following injuries:- (1)Ninth and 10th ribs of left side partially cut posterally.
(2)Left lung at the base of the lower lobe pears through and through.
(3)Diaphigm pears at the left side of the chest of the cavity which was full of blood.
(4)Spleen was cut at the superior surphase inflashion of slic.
(5)Mosentries were peared.
(6)Stomach was pierced at the greater curvature of left side. The abdomen was full of blood.
All the internal injuries are the result of external injury No. 2. All the injuries were anti-mortem and the duration of injuries was about 2 --hours at the time of post-mortem while the duration of death was about 2 hours."
9. On the point of recovery of blood-stained clothes, the prosecution examined Abdul Kalam Exh. 13.
He stated, that appellant was arrested in his presence and at that time he was wearing Shalwar and Kameez, Articles "B" and "C", having marks of blood. He has admitted the contents of memo.
Exh. 12 to be correct and stated that appellant was arrested at the pointation of P.W. Liaquat. He states that co-Mashir was Meharban. P.W. 7 Azim Ali Exh. 14 has stated, that appellant Altaf was brought by police to Wahid Colony and his clothes were blood-stained. The police secured the clothes and prepared Mashirnama, Exh. 15, which he signed. He identified the clothes in the Court.
No enmity, whatsoever with appellant, has been suggested to the witnesses. The co-Mashir of recovery of clothes P.W. 8 Faryad Ali has fully supported the recovery of blood-stained clothes, from appellant but stated, that clothes, Articles "B" and "C" are not the same which accused was wearing. The clothes have been cut hence he could not identify.
10. Lastly, on the point of motive prosecution examined three witnesses. P.W.1 Shakil, Exh. 2, stated that 20 days prior to incident there had been quarrel between accused Altaf Hussain and Salma, Bhabhi of deceased Khalil Ahmed on money matters. On the day of incident, when he arrived in his house at 11-00 a.m. He came to know, that Altaf Hussain had stabbed Khalil Ahmed. He went to Abbasi Shaheed Hospital where Liaquat Ali met him and told him that Khalil has expired and body is lying in mortuary. He has also stated, that police came and prepared memo. Of dead body Exh.
3; which he attested. He was examined by the police in the hospital.
11. P.W. 2 Mst. Salma has stated, that about 15/20 days prior to incident appellant Altaf Hussain borrowed Rs.50 from her husband Muhammad Sharif. She sent her nephew, Muhammad Akmal, to get money from Altaf Hussain but he gave him beating who came back weeping. She came at the door of her house and found Altaf Hussain standing and she enquired as to why he assaulted Akmal on which he came in her house and gave her beating and thereafter went away, and she informed her husband Muhammad Rafique, the elder brother of Altaf Hussain apologised. On the day of incident deceased Khalil Ahmed told appellant not to raise hands over women due to that he caused injuries to Khalil Ahmed.
12. P.W. 3 Mst. Rabia Bibi, is mother of deceased, Khalil Ahmed, and used to reside with him. She corroborated the version of Mst. Salma on the point of motive about dispute. She has further stated, that on the day of incident. P.W. Liaquat, brought Khalil Ahmed in injured condition. On enquiry, Khalil Ahmed told her that Altaf Hussain caused injury to him because he told him not to raise hands over women. Then Liaquat took Khalil Ahmed to hospital and after sometime she came to know that Khalil Ahmed expired.
13. P.W. 10 Siraj Ahmed, was S.H.O. Nazimabad. He got a copy of entry No. 13 at 12-00 while he was at Hyderi. He took up investigation and proceeded to Abbasi Shaheed Hospital and prepared memo.
Of dead body of Khalil Ahmed and Inquest Report in presence of Liaquat Ali and Shakil. He recorded statements of complainant, Mahfooz and produced statement as Exh. 19-A. Thereafter, the contents of statement were incorporated in 154, Cr.P.C. Book by A.S.-I. Allahyar. He arrested the accused and secured blood-stained Shirt and Shalwar. He has stated, that accused had injury on finger. He recorded statements of witnesses and challaned the case. He has produced Chemical Examiner's report Exh. 19-B. P.W. Allahyar has stated, that on 3-1-1976 he was posted as A.S.-I. At North Nazimabad Police Station, Karachi when at 1-20 p.m. P.C. Fateh Khan brought statement of Mahfooz Ali, recorded by S.H.O. Siraj Hussain. He incorporated the same in 154, Cr.P.C. Book and registered the case. He produced F.I.R. And statement of Mahfooz as Exh. 8 and sent to S.H.O. For further investigation.
14. Mr. Ahmad Saeed Qureshi, learned counsel appearing for the appellant, argued, that investigation of the case is defective and statement of eye-witness Mahfooz Ali was recorded later on and it is unsafe to rely on his evidence as his presence at the Wardat is doubtful. He contended, that motive has not been proved as main witness Muhammad Shafi has not been examined by the prosecution. He submitted, that appellant had injury on finger at the time of arrest, therefore, blood on Shalwar could be from that injury. His contention is, that no one from the locality was examined and Mashirs are also interested, therefore, the evidence is not free from doubt. He has referred to the case reported in 1978 PCr.L J 370, 1983 SCMR 1292 PLD 1984 Lah. 132 and PLD 1982 Lah. 494 and 1979 P Cr. L J 460.
15. Mr. Abdul Ghafoor Mangi, learned. Assistant Advocate-General submitted, that prosecution has proved the case as witnesses have fully supported. He argued, that learned trial Court has erred in not believing the dying declaration. He has cited 1969 SCMR 76; PLD 1976 SC 44 and argued, that conviction could be based on the solitary evidence of one witness. He cited PLD 1969 Pesh. 1 and submitted, that due to minor discrepancies entire evidence could not be discarded. On the point of dying declaration he cited 1976 P Cr. L J 106.
16. The place of incident is not disputed. The evidence given by All is corroborated by medical evidence as two injuries by sharp-cutting weapon like knife, were found on the dead body of Khalil Ahmed. The blood-stained Chhuri was stated to have been used in the offence and was thrown by appellant at the place of Wardat was recovered as soon as police arrived at the place of occurrence. On this both Mashirs Liaquat Ali and Bahadur Ali supported the recovery of Chhuri. The appellant neither proved nor suggested any enmity with eye-witness, Mahfooz Ali, therefore, he had no reason to implicate appellant falsely. Moreover, his statement was recorded at hospital. He is very straightforward witness as he stated in his evidence that Liaquat came later on. He could had easily stated that Liaquat also saw the incident if he had any motive to implicate appellant falsely. The learned Advocate for appellant submitted during the course of arguments that incident had not taken place at the time as given by the prosecution. I do not agree with him on the ground, that according to post-mortem report Exh. 28 the dead body of Khalil Ahmed was received in the hospital through P.C. Sultan Ahmed at 11-40 a.m. When Doctor started post-mortem at 1-30. p.m.
And time of duration of death was about two hours and injuries were about 21 hours old. The case of prosecution is that incident took place at 11-00 a.m. As such on this point also evidence of complainant Mahfooz Ali who is eye-witness has been corroborated. S.H.O. Recorded his statement Exh. 8 in hospital and time given in the statement is 12-50 hours. Entry, Exh. 13, clearly shows, that from hospital information about death of Khalil Ahmed was conveyed at 11-45 a.m.
17. The evidence of Liaquat All, who brought Khalil Ahmed to hospital, has been corroborated by Mahfooz Ali, Mst. Rabia Bibi. The post-mortem report shows, that dead body of Khalil Ahmed was identified by Liaquat Ali and Shakil in hospital. Both the above witnesses also acted as Mashirs.
Liaquat Ali is first person who reached at Wardat and took Khalil in injured condition to his house, thereafter, removed him to hospital. Liaquat Ali has fully supported. His presence is proved.
18. According to report of Chemical Examiner Exh. 1918, the Chhuri recovered from Wardat and Shalwar of appellant, was found to be blood-stained
19. The motive has been fully proved. Mat. Salma, Exh. 5, stated, that she was beaten by appellant and deceased asked him not to misbehave with women. That evidence is corroborated by Mat.
Rabia Bibi and Shakil. It was not necessary to examine Sharif husband of Salma Bibi as he was not the eye-witness of the incident in which Mat. Salma was beaten by appellant. On the other hand, appellant has failed to show any motive on the part of these witnesses to implicate him falsely.
20. The trial Judge has rightly disbelieved the evidence of Bahadur Ali as his name does not appear in F. I. R. And he in his police statement stated, that he was not eye-witness.
21. As regard dying declaration the trial Court has disbelieved the evidence on the basis of opinion of Doctor who stated, that one could go unconscious instantaneously after sustaining injury No. 2.
Mst. Rabia in her evidence stated, that deceased Khalil Ahmed informed her, that appellant caused him injuries and evidence has been supported by Liaquat Ali. The S.H.O. Siraj Hussain has not been confronted on this part of statements of Liaquat Ali and Mst. Salma. He has only been asked, that Mst. Salma stated in her police statement, that she was informed by the children, that accused Altaf on that day had caused injuries to Khalil. The other portion about bringing Khalil Ahmed to her house by Liaquat and his talk with witnesses was not put to her or Liaquat. The evidence of Doctor is only opinion of expert whereas evidence of two witnesses could be preferred and trial Court could have taken that aspect into consideration. In this case a single person has been named as accused and it is well-known, that in these circumstances, the substitution is a matter of rare occurrence and I refer a case of Muhammad Afzal v. The State 1982 SCMR 223. The testimony of eye-witnesses could not be shaken in thorough cross-examination and motive is proved and there is sufficient corroboration to the ocular testimony of complainant Mahfooz Ali. On this, I refer the cases, reported in 1982 SCMR 122, 1984 PCrLJ 1478, 1983 SCMR 806 and case of Muhammad Amin v. The State 1983 SCMR 1194, where the conviction on the evidence inspiring confidence were maintained. In a case of Rahmat Ali v. The State 1984 SCMR 109, it has been held that when there is no enmity between accused and witnesses and if there is corroboration it is sufficient to maintain conviction.
22. Before parting with this judgment, I like to mention that while arresting the appellant the S.H.O.
Mr. Siraj Ahmed found injury on his finger but as medical certificate is not on record nor defence took any plea. Moreover, no such question was also put to him while recording his statement under section 342, Cr.P.C. The trial Judge has also not made any observation, in his judgment, therefore, I have not touched this aspect into consideration.
23. There is sufficient evidence against the appellant and prosecution has proved the case beyond reasonable doubt and appellant has rightly' been convicted. Consequently this appeal is dismissed.