1. ' In this appeal is called in question judgment dated 8-9-1987 of learned 1st Additional Sessions Judge, District South, Karachi. Whereby appellant is convicted under section 302, P.P.0 and is sentenced to life imprisonment and a fine of Hs. 5,000 or in default R.I. For three months. Appellant is also directed to pay compensation of Rs, 10,000 to the heirs of deceased or in default suffer R.I.
2. For one year.
3. ' Briefly stated prosecution case is that incident took place on 25-6-1984 at 5-15 p.m. In the street opposite cloth shop in house No,D/23 of deceased in Hijrat Colony within the jurisdiction of Police Station Civil Lines, Karachi. At the relevant time deceased Hakim Khan son of Shahzaman was sweeping in front of his shop, when appellant Zahir Khan objected that in front of his house deceased was dumping rubbish. Both appellant and deceased were neighbored On this account there was exchange of harsh words between them.
4. ' Appellant Zahi Khan went to his house, brought "Chhuri" and inflicted blows on Hakim Khan, who became injured and fell down. Appellant ran away from the spot along with his weapon. Incident was seen by complainant Abdul Qayoom and witnesses Azizur Rehman son of Hayatullah and Ataur Rehman son of Azizur Rehman, who had attempted to intervene but did not succeed. Injured Hakim Khan was taken to the hospital but on the way succumbed to his injuries. Sub-Inspector Nazeer Mohammad Khan of P.S. Civil Lines was informed on telephone by Civil Hospital about death of Hakim Khan and he came to the Civil Hospital and prepared Mashirnama of injuries and inquest report. He recorded statement of Abdul Qayoom under section 154, Cr.P.C. And sent it to the police station for incorporation in the register. S.I. Nazeer Mohammad Khan then visited scene of offence, secured blood-stained earth, sealed it and prepared Mashirnama. He recorded statements of witnesses and arrested appellant Zahir Khan and secured his blood-stained clothes, which were sealed. Appellant was sent for medical examination on his own request. Appellant, while in custody, led to the recovery of blood-stained 'Chhuri' from the roof of the kitchen of his house, which was put into a sealed parcel. A separate F.I.R. Was filed against appellant for offence under section 13-D of the Arms Ordinance. Post-mortem report was obtained. Sealed parcels were sent to the Chemical Examiner. After completing investigation, Challan was presented in the Court.
5. ' In the trial Court, prosecution has examined 12 witnesses in support of its case, out of whom 5 are eye-witnesses namely P.W.1 Complainant Abdul Qayoom, P.W. 2 Ataur Rehman, P.W.3 Azizur Rehman son of Mohammad Irfan, P.W.4, Mohammad Akram and P.W.5 Azizur Rehman son of Hayatullah. From the remaining witnesses P.W.6 Mohammad Maroof and P.W.7 Mohammad Hussain are Mashirs. P.W.8 Kazi Siraj Ahmed is City Surveyor, who has prepared sketch of Wardat.
6. P.W.9 Constable Allah Rakha is corpse-bearer and P.W.10 is A.S.I. Mohammad Saeed, who registered report of appellant Zahir Khan alias Zahir Shah and also incorporated in register report of complainant Abdul Qayoom under section 154 Cr.P.C. Sent by S.H.O. Nazeer Mohammad. P.W.11 is S.I.
7. Nazeer Mohammad Khan S.H.O Police Station Civil Lines, who has investigated the case. P.W.12 is Dr. Hamid Ali, who performed post-mortem examination on the dead body. In the trial Court in his statement under section 342, Cr.P.C. Appellant denied prosecution charge and claimed false implication due to influence of complainant Qayoom. Appellant also examined two witnesses in defence.
8. ' D.W.1 Dr. Iqbal Ahmed had examined appellant as injured and D.W.2 Mr. Faiz Mohammad A.D.C.
9. South had recorded statements under section 164, Cr.P.C. Of prosecution witnesses in the case.
10. Furthermore appellant examined himself on oath as defence witness as contemplated under section 340 (2), Cr.P.C. And stated that he adopted his statement under section 342 Cr.P.C. Already recorded and was cross-examined by APP on behalf of prosecution. It may be mentioned here that prosecution produced report of Chemical Examiner as Ex.36 and inspection note of trial Judge Ex.49.
11. ' In the trial Court in this case prosecution has produced ocular evidence of 5 witnesses. It is to be seen whether these eye-witnesses were present at the spot and saw the incident as claimed by them. P.W. 1 Abdul Qayoom is admittedly related to the deceased. Deceased was brother of his wife. This witness has not concealed this fact about relationship and stated in the first report that deceased Hakim Khan was his real brother-in-law. According to this witness on the day of incident at about 5.15 p.m. He was returning home from his shop and passed by the shop of deceased when he saw deceased and appellant quarrelling with each other after which incident took place. He has given his residential address as D/37 Hijrat Colony while deceased lived and had his shop in the house D/23 Hijrat Colony. It is, therefore, clear that he and deceased lived in the same neighbourhood. There is nothing adverse in the cross-examination of this witness to show that he did not live at the address mentioned by him or he did not see the incident. He took injured in his car to the hospital where injured was pronounced as dead. Doctor in hospital rangup Police Station Civil Lines and informed about this medico legal case and S.H.O. Nazir Mohammad Khan came to the hospital and recorded statement of the complainant which has been incorporated as F.I.R. In the register under section 154 Cr.P.C. At the Police Station. Complainant has named appellant specifically in F.I.R. As assailant and has slso named other eye-witnesses. In F.I.R. Complainant has given names of 2 eye-witnesses specifically as Azizur Rehman son of Hayatullah and Attaur Rehman but he has stated therein further that other Mohallah people had also come and were present at the time of incident. Complainant has stated that there was exchange of harsh words between appellant and deceased over sweeping by deceased and then appellant went home and brought Chhuri with which he inflicted blows to Hakim Khan who became injured and fell down. He and other witnesses attempted to intervene but did not succeed and appellant ran away with his weapon from the spot.
12. ' P.W.2 Attaur Rehman is another eye-witness whose name is mentioned in F.I.R. According to him at the time of incident he was going to make purchases for Aftari as it was month of Ramazan and the time was about 4-30 or 4-45 p.m. When he reached the shop of Hakim Khan he found appellant and deceased quarrelling over sweeping by deceased and throwing rubbish in the house of appellant. Appellant went home and brought Chhuri and inflicted injuries on Hakim Khan who fell down. He has named all 5 witnesses and other people of Mohallah who saw the incident.
13. He is resident of Hijrat Colony. There is nothing adverse in the cross-examination of this witness to suggest that he had not seen the incident and was not present at the spot. Since he lived in the same neighborhood he knew both appellant and deceased. In the absence of any relationship suggestion was made to this witness in cross-examination and he admitted that he came from Mansahra and P.Ws. Abdul Qayoom and Azizur Rehman s/o Hayatullah also came from Manshra.
14. ' Another eye-witness named in F.I.R. Specifically is P.W.5 Azizur Rehman s/o Hayatullah. At the time of incident he was in his Ice shop about 100 or 150 yards away from Wardat. He heard commotion and went along with Attaur Rehman to the spot. Their attention was drawn on account of exchange of harsh words between appellant and deceased. This witness admits presence of other eye- witnesses at the spot when they all saw attack on deceased by appellant with Chhuri. He knew both appellant and deceased as they were all neighbors. He claims to have gone to the hospital to enquire about the condition of Hakim Khan and his statement was recorded by Police in the hospital. There is nothing adverse in the evidence of this witness to suggest that he had not seen the incident.
15. ' Next eye-witness is P.W. 3 Azizur Rehman s/o Mohammad Irfan. On the day of incident at about 5.00 p.m. He was passing through the main road and came near the shop of deceased when he saw appellant and deceased quarrelling among themselves and exchanging harsh words. He admits presence of all other eye-witnesses at the spot at the time of incident. This witness is not related to the deceased and there is nothing in his cross-examination to suggest that he had not seen the incident.
16. ' Another eye-witness of the incident is P.W 4 Mohammad Akram. On the day of incident at the relevant time he was in his shop which was about 30 paces away from Vardat. His attention was drawn on the commotion on account of exchange of harsh words between appellant and deceased. He went to the spot and saw the incident. He admits presence of other eye-witnesses at the spot at the time of incident. He is Chairman of the area and knows both the parties and other eye-witnesses. He is not related to the deceased. He denied suggestion in cross-examination that he and other witnesses wanted appellant to vacate the house and go away somewhere else. In the cross-examination suggestion was made to him that he killed deceaded Hakim Khan and involved appellant falsely. Strangely enough this suggestion was not put to the remaining eye-witnesses.
17. Evidence of all these eye-witnesses mentioned above is very much consistent on all material particulars of the incident. They have deposed about quarrel between appellant and deceased on account of sweeping by the deceased and dumping of rubbish in the house of appellant and the fact that appellant, went to his house, brought Chhuri and inflicted blows with it to the deceased. All these eyewitnesses have stated that appellant went away along with weapon after the incident. All these eye-witnesses have denied that deceased hit appellant on the head with Danda and appellant became injured and started bleeding from that injury. It may be mentioned here that if the defence plea about infliction of Danda blow by deceased to the appellant was correct then the Danda should have been found lying at the Vardat after the incident was over. It was not so found and there is no mention of Danda in the Mashirnama of Wardat Ex.19. These eye-witnesses have no enmity and have no reason what so ever to implicate appellant falsely. Even enmity as such is not suggested to the complainant in his cross-examination. Objection has been raised that 2 eye- witnesses namely Azizur Rehman s/o Mohammad Irfan and Mohammad Akram s/o Kala Khan are not named in F.I.R. As such their evidence should not be believed. There is no substance in this objection for the reason that although complainant Abdul Qayoom has not named above- mentioned 2 eye-witnesses specifically in F.I.R. But he had left it open in the F.I.R. That at the time of incident other Mohallah people had also come there. In the deposition before the trial Court complainant had named these two witnesses to be present at the time of incident and other eye- witnesses have also confirmed the presence of these two eye-witnesses, who have in return confirmed presence of the remaining eye-witnesses. Evidence of both these eye-witnesses is consistent with evidence of the remaining eyewitnesses and there exists no justification to rule out of consideration their evidence just because complainant had not named them specifically in F.I.R.
18. Particularly when he stated that other Mohallah people als saw the incident. Furthermore, F.I.R. Is lodged promptly and th contents are written in such a manner which excludes possibility o any manipulation.
19. ' Evidence of the eye-witnesses is supported by medical evidence to the extent that deceased sustained injuries with sharp cutting weapon as is claimed by the eye-witnesses that attack was made o the deceased with Chhuri. Post-mortem report shows that as many all injuries which were incised in nature were found on the body o the deceased. According to the Doctor the cause of death was shot and hemorrhage resulting from multiple injuries leading to cardi respiratory failure.
20. ' P.W.10 A .S.I. Mohammad Saeed has deposed that on 25-6-1984 at about 5-35 p.m. Zahir Khan son of Peer Badshah came to the police station and lodged report which was entered in the daily diary as report No,14, copy of which is on the record as Ex.33. According to this report appellant complained at the police station that at about 5-30 p.m. He was cleaning his Motor Cycle in front of his house when Adam Khan who had a cloth shop next to his house had exchange of harsh words with him on account of throwing of rubbish in front of his house. Mohallah people intervened and the matter was settled. Later Adam Khan came with a Danda and gave a Danda blow on his head which had started bleeding. According to the A .S.I. He recorded the statement for offence under section 323/504 P.P.C. And sent Zahir Khan to the hospital with a letter for examination and treatment of injury on his head. It is possible that due to mistake name of Hakim Khan has been mentioned in the daily diary as Adam Khan.
21. ' Appellant produced D.W.1 Dr. Iqbal Ahmed who deposed that on the day of incident and at 5.55 p.m. He examined Zahir Khan at Jinnah Hospital and found one lacerated wound of 11" x 1/6" scalp deep in direction of left parietal region. Injury was simple and the weapon used would be hard and blunt.Heproduced such medical report Ex.46.
22. From this plea of defence it appears that appellant admits factum of incident which took place on the date, time and place as mentioned by the prosecution but only version given by the appellant in his plea is entirely different from the version of the prosecution. According to the prosecution appellant gave Chhuri blows to deceased who died. According to the appellant deceased had altercation with appellant over throwing of rubbish but Mohallah people intervened and settled the matter and thereafter deceased came armed with Danda and gave Danda blow to the appellant on his head, whereby he became injured and rushed to the police station on his Motor-cycle where he promptly lodged report within five minutes. Since factum of incident is admitted, it is for the Court now to say which of the two conflicting versions is correct. Version of the prosecution stands am .l proved by evidence of five eye-witnesses and medical evidence and also recovery of blood- stained clothes from the person of the appellant. Version of the appellant is not turstworthy. From lacerated wound of 11," x 1/6" so much blood could not come out to make wet clothes which were worn by the appellant. Clothes of appellant could be stained with so much blood in the process of appellant's inflicting as many as 11 injuries to the deceased with Chhuri.
23. ' Appellant did not bring to the Police Station Danda nor mentioned any thing about it in his report.
24. On the other hand Hakim Khan was inflicted 11 injuries caused by Chhuri and he fell down injured and died before reaching the hospital. In such circumstances Danda should have been lying at the Vardat but the same was not seen by anybody nor is mentioned in Mashirnama of Wardat.
25. Recovery of blood-stained clothes is testified by P.W.6 Mohammad Maroof Mashir. According to this witness appellant was arrested near the gate of Jinnah Hospital and his blood-stained clothes were secured. Appellant was wearing bandage on his head. It was argued on behalf of the defence that recovery of blood-stained clothes should not be believed for the reason that the other Mashir who attested Mashirnama Ex.23 is Ajab Khan who is brother of deceased. This fact that Ajab Khan is brother of deceased is admitted by the Mashir Mohammad Maroof. When I.O. Nazeer Mohammad Khan was in the box no clarification was sought from him on this point whether he joined in the investigation Ajab Khan brother of deceased knowingly or inadvertently. If such question had been asked, I.O. Would have clarified the position. In any case Ajab Khan is not examined. So far recovery of Chhuri is concerned, report of Chemical Exminer is that while clothes of appellant and deceased and earth were found to be stained with blood, blood could not be detected on Chhuri. This Chhuri was not recovered at the spot or from appellant immediately after the incident but was recovered on the next date from the kitchen. In any case blood is not detected on his weapon it is excluded from consideration.
26. ' In the trial Court in his statement under section 342, Cr.P.0 appellant denied recovery of blood stained clothes from his person. He has not claimed in that statement that his clothes became wet with blood which came out frcrr injury of the head. In that statement another question was put to him with regard to his own report entered in daily diary at the police station that he had scuffle with deceased Hakim Khan who gave him a Danda blow and appellant admitted that it was correct but still he denied that his clothes had become stained with his own blood. Appellant examined Doctor Iqbal Ahmed as D.W.1 who produced medical certificate of injury of appellant. It is not understandable why appellant examined D.W.2 Mr. Faiz Mohammad ACM, South who recorded 164, Cr.P.C. Statements of prosecution witnesses. This witness should have been examined by the prosecution.
27. Appellant availed opportunity and examined himself on oath in his own defence under section 340 (2), Cr.P.C. In his statement on oath he adopted his statement under section 342, Cr.P.C. Appellant was cross-examined and he stated in that cross-examination that he lodged report against Hakim Khan and not any other person as is wrongly mentioned in Ex.33. He further denied that he sustained head injury on account of falling on the ground while driving Motorcycle. This clearly shows that appellant in his statement on oath has admitted incident concerning deceased Hakim Khan but has given false statement by concealing the true facts including the one that appellant killed Hakim Khan with Chhuri blows. Position becomes entirely different when accused examines himself on oath as witness in his own defense. It could be expected that accused would speak truth and would not make a false statement. In the statement under oath appellant has not taken plea of private defence in the manner as is accepted in the normal course. He has alleged that deceased gave him a Danda blow on his head but concealed the fact that he also inflicted as many as 11 injuries on deceased with Chhuri in the result whereof deceased died before reaching the hospital. This clearly] shows that appellant did not have faith in his own defence ple which was palpably false. In such circumstances I feel that prosecution case stands overwhelmingly proved.
28. ' It was argued on behalf of defence that in the sketch of Vardat which was prepared by P .W.8 Qazi Siraj Ahmed, City Surveyor, places are not mentioned from where eye-witnesses saw the incident.
29. Qazi Siraj Ahmed has not stated in his deposition that he prepared the sketch at the potation of the complainant or any other eye-witness. He has admitted that the same was prepared on the potation of S.H.O. And in cross-examination further admitted that at the time of preparation neither complainant nor any other eye-witness was present. In any case this defect is cured because the learned trial Judge himself went to the scene of offence and prepared inspection memo, on 1-7- 1987. This memo Ex.49 is signed by the learned Judge as well as App, Advocate for the accused and Advocate for the complainant.
30. There was no previous enmity between appellant and deceased and both parties were neighbors and there was altercation between them on account of sweeping by the deceased which fact is admitted by all the eye-witnesses and in such circumstances appellant lost his temper, went home and brought Chhuri with which he inflicted blows on the deceased which resulted in his death. All the eye-witnesses have stated categorically that there was exchange of very harsh words on account of which appellant entered his house and brought Chhuri and attacked deceased. This is the reason that trial Court has not awarded capital punishment as there was sudden quarrel between the parties. Mr. Khawaja Naveed Ahmed, counsel for the complainant had filed in the High Court Criminal Revision No,100 of 1987 with prayer for enhancement of sentence from life imprisonment to capital punishment but the said revision application was dismissed vide order passed on it by Division Bench on 24-11-1987.
31. ' In these circumstances and for the facts and reasons mentioned I G above I uphold the impugned Judgment and dismiss the appeal.