Z. A. CHANNA, J.----Appellant Hussain- anal ho father Muhammad were tried by the learned Additional Sessions Judge, Karachi under section 3(12/34, P. P. C. For committing the murder of Ibrahim. The appellant was convicted under section 302, P. P. C. And sentenced to trans--portation for life, while his father Muhammad was convicted under section 323, P. P. C. And was sentenced to pay 4 fine of Its. 500 or in default to suffer R. I. For six months. Only appellant Hussain has appealed again his conviction and sentence while his father Muhammad is apparently content with his conviction and paid up the fine imposed on him.
2. The prosecution case is that appellant Hussain his father Muhammad and deceased Ibrahim were living in neighbouring houses in Lane No. 6 in Daryabad area of Karachi. There was a dispute between the two parties over water, which was referred to Qassim, President of their Jamait and according to his decision the water tap which was fixed near the wall of the houses jointly occupied by the appellant and his father was shifted to the other side of the lane near the house of one Khamiso. Despite this intervention by Qassim, the relations between the two parties were not very cordial and on the day of the incident, in the morning, there was a quarrel between the family members of the appellant's and the complainant's parties, while the male members were away for work. It is alleged that on the same day, at about 4-15 p.m. While complainant Muhammad and his son Ibrahim were returning from their work to their houses, appellant Hussain and his father Muhammad attacked them a short distance away from the house of the complainant, as a result of the quarrel earlier in the day, and while appellant Hussain inflicted 2/3 knife injuries on deceased Ibrahim, appellant's father Muhammad gave a laths blow to the complainant on the head, as a result of which he fell down. On the cries of the complainant and deceased Ibrahim, Khamiso, Abdul Sattar and Habib came up, and on seeing them appellant and his father ran away, taking their weapons with themselves. Khamiso took complainant Muhammad and injured Ibrahim, who was in a serious condition, to the Khafda Police Station, where Muhammad lodged his F. I. R. The investiga--petition of the case was entrusted to S. H. O. Shujaat Hussain of Baghdadi Police Station, He proceeded, at 5 p.m., to the scene of offence, which he inspected in the presence of mashies, Ibrahim son of Omer arid Usman sots of Haji. He found blood stains on the raised platform, in front of the house of one Juma. He collected the blood by means of soaked cotton. On learning of the death of Ibrahim, be proceeded to the Civil Hospital, where A. S. I. Zar Muhammad handed over to him the Inquest Report and the memo of injuries on the dead body, which he had prepared. On the same clay, the S. H. O. Recorded the statements of Khamiso, Abdul Sattar, Habib Noor Muhammad, A.I Muhammad and others. The same day, at about 7-30 p.m. The S. H. O. Arrested the appellant and his father Muhammad from their houses, and seized one shirt, one pant and a bunyan from the person of appellant Hussain and one shirt, a shalwar and a bunyan from the person of appellant's father, Muhammad, and prepared Mashirnama Exh.
23. In the presence of mashies Abdur Rashid and Ghulam Jan, as all the aforesaid clothes were blood-stained. The S. H. O. Next secured a blood--stained cane stick from the house of the appellant's father Muhammad at the latter's pointation, and at the pointation of the appellant, in the presence of mashies. Ibrahim son of Sanger and Zakir Khan son of Muhammad secured a blood-stained knife from the pocket of the coat hanging against the wall of the first floor of the appellant's house. Both appellant Hussain and his father Muhammad were found to be having marks of injuries on their persons and were accordingly sent to the Civil Hospital for treatment and certificate. The blood secured from the scene of offence, the clothes seized front the Persons of rte appellant and his father Muhammad and the knife and cane stick produced by the appellant and his father respectively were sent to the Chemical Examiner to the Government, who has reported vide Exh. 34, that they are all stained with human blood.
3. The autopsy on the deceased was performed by Dr. Muhammad Umer Khan. Police Surgical, who has deposed that he found the following injuries on the person of the deceased:-
(1) Incised Bound vertical at 6th inter-costal space 2 -- ' lateral to mid clavicular lane on the left side elicit --x -- ' x cavity chest taillingdownwards.
(2) Incised wound superficial on the left abdomen 2" below the last rib 1 x 1/8' x 1/8'.
(3) incised wound left side back behind the last floating rib --' x --" x skin deep transverse in direction and another wound medial to it --x 1/10 x superficial skin.
(4) Abrasion 2' lateral to nipple 1/8' x 1/8' towards the axilla'.
4. In the committal Court, the appellant danied all knowledge with the incident and even denied that there were any injuries on lily person ,it the time of his arrest by the police. In reply to the question as to why the witnesses were deposing against him. Its replied that he did not know any thing about it. In the Sessions Court, however, he set up a plea of self-defence and stated that he and his father were in their houses when both the complainant as well as the deceased (Ibrahim) attacked them and tin was given a knife blow by the deceased on his head and hand and while resisting this attack and during the struggle both aides received injuries. He admitted that prior to the incident there was a quarrel between him and the complainant's party over the water tap, which was subsequently removed from the side of his house but explained that a compromise was arrived by the Nekmard of the community. He also admitted that his clothes were blood stained, and the same were seized by the police but explained that the blood on his clothes was his own.
He, however, denied having produced a knife before the police. He has alleged that P. Ws. Khamiso, Habib and Abdul Sattar are closely related to the complainant and they are falsely deposing against hint. In respect of other witnesses, he has alleged that they are police partisan. In reply to the question whether he hay any thing further to state, he has stated as follows:-- ''I am innocent. I was attacked while t was at my house and I did all this to defend my life. If I bad not resisted I would have been killed by the complainant's party who are aggressors."
5. The direct evidence in this consists of the testimony of complainant Muhammad and P. Ws.
Khamiso, Abdul Sattar and Habib. The latter three witnesses have deposed that they saw appellant Hussain and his father Muhammad coming out of their houses and attacking complainant.
Muhammad and deceased Ibrahim, who were returning from their work, and while appellant gave knife blows to deceased Ibrahim, the appellant's father Muhammad, gave lathi, blows to complainant Muhammad on the head. In his evidence in the Sessions Court complainant Muhammad supported the prosecution case only to the extent that while he arid his son Ibrahim were returning from their work to their houses, the appellant, who was armed with a knife, anti his father Muhammad, who was armed with a lathi, came out of their houses, and he was given a lathi blow on the head. According to him he lost consciousness as a result of that blow and regained his sense in the Civil Hospital. He not only did not depose to having seen any knife injuries being given to his son Ibrahim, but even denied that he had lodged any report with the police. As his evidence in the Sessions Court was not only at variance with his F. I. R. But also with his statement in the Session Court, he was declared hostile and his statement in the committal Court was brought on record of the Sessions Court under the provisions of section 288, Cr. P. C. In that statement he has fully supported the version given by him in the F I. R. And the other three eye-witnesses and has depos--ed that he had seen the -appellant causing knife injuries to his son Ibrahim, while the appellant's father Muhammad gave him a lathi blow, and that lie was taken to the police station where he lodged his F. I. R. In his cross---examination to the A. P. P. In the Sessions Court, the complainant admitted that what he had stated in the committal Court was correct and that his statement in the Sessions Court that he had not seen knife injuries being caused to Ibrahim or that he bad root lodged in the F. I. R. Is not correct. The explanation given by hind for making different statements in the two Courts was that because of the death of his only son he was not in his proper senses and was very much disturbed in mind. It was suggested to him that there had been a compromise between him and the appellant's party fond as a result of that he was making obliging statements, but he denied the accusation. Whatever may have been the reasons for the com--plainant to have given a different statement in the Sessions Court from his statement in the committal Court or what he had stated in the F. I. R. It appears to us that his statement in the Sessions Court that he had not seen the fatal assault on his son or that he had not lodged the F. I.
R., are not correct. It may be pointed out that the F. I. R. Bears his signature, which could not have been possible unless he had lodged it.
6. P. W. Abdul Sattar is the son-in-law of the complainant and, there--fore, he may be considered an interested witness. So far as P. W. Habib is concerned, though he is admittedly related to the complainant, as the phuphi (mother's sister) of wife of the witness is married to the complainant he as more closely related to the appellant, whose wife is the sister of his wife. It was suggested to the witness that at the time of the incident he was living in Islamabad area, away from the scene of offence, but he denied the suggestion and stated that he was living in a rented house of the complainant which was separate from the house in which the complainant was putting: up. Since the witness is more closely related to the appellant than the complainant, it is highly improbable that he would give false testimony against the appellant and in favour of the complainant's party.
So fir as P. W. Khamiso is concerned, he is clearly a disinterested witness, who is not related to either party. According to this witness he had not only witnessed the entire incident but he had tried to separate the parties and had taken the complainant and the injured tea the police station. The name of this witness as well as P. Ws. Sattar sand Habib transit a in the F. I. R. Wherein it is further indicated that the complainant was brought to the police station by P. W. Khamiso, However, according to this witness, not only was the F. I. R. Not recorded when he first took the complainant and the injured (Ibrahim) to the police station but subsequently after he had returned from; the police station to Civil Hospital but further that the F. I. R. Was lodged by him and not by complainant Muhammad. Both these statements, however, appear to be incorrect. If he had bean the first informant; the F. I. R. Would have borne his thumb impression err signature, but can other hand it bears the signature of complainant Mohammad. It is possible that P. W. Khamiso ray have assisted the complainant in lodging the F. I. R. Since the complainant was injured, but this does not mean that he had lodged the F. I. R. Which as already indicated bears the signature of complainant Muhammad.
7. The second assertion of P. W. Khamiso that the F. I. R. Was lodged after he had returned to the police station from the Civil Hospital, where he had waited for half an hour to three quarters of an hour appears to be to---rally unfounded. According to A. S. I. Zar Muhammad, the F. I. R. Was recorded immediately on complainant Muhammad and his son Ibrahim being brought to the police station. The A. S. I. Has explained that he hart recorded the F. I. R. Of the complainant in the compound of the police station while the complainant was seated in a rickshaw. This was possibly done in order to save time as the condition of the deceased (Ibrahim) was critical. The fact that the F. I. R. Was recorded at 4-25 p.m., as indicated ire the F. I. R. Itself and as deposed to by A. S. I. Zar Muhammad, finds support from other circumstances. According to. S. H. O. Shujaat Hussain, he received a copy of the F. I. R. At 5 p.m. At his house. This could not, have been possible unless the F. I.
R. Was recorded before that. It may also be pointed out that the F. I. R. Has been lodged under section 307/34, P. P. C. Which suggests that at the time that it was lodged, the deceased was till alive. Furthermore, it transpires from the evidence of Head Constable Cyril that on the day of the incident, at 4-40 p.m., he had received a telephonic message from A. S. I. Zar Muhammad from the Civil Hospital, which he had noted down in the Station Diary. This entry, which was produced as Exh.
36, clearly indicates that prior to the receipt of the message the case bad been registered, as not only the number of the case has been stated in the said entry but it is further mentioned therein that in view of the fact that injured Ibrahim had died, the section of the offence was being changed from section 307; 34, P. P. C. To section 302/34, P. P. C.
8. The direct evidence finds support from the circumstantial evidence Which consists of three distinct pieces of evidence, these are: (i) the presence of injuries on the appellant z (ii) the fact that his clothes were stained with human blood, and (iii) the production by him of knife which was found to be stained with human blood. Unfortunately, Dr. Javed Saeed, who had examined the appellants was away in U. K. At the time of the trial of the case and could not be examined and only the certificate issued by him was produced through Dr. Basharat According to the certificate issued by Dr. Javed Saeed, the appellant had the following injuries:-
(i) I. W. 1' x -- ' at the base of right index finger on the dorsal aspect of right band, the wound is oblique.
(2) I. W. -- ' x 1/6 palmer aspect of right index finger.
(3) I. W. -- 'x1/6 on the parietal region of skull left side.
9. The version of the appellant that the deceased was armed with, a knife and that while trying to defend himself he sustained the injuries cannot be accepted and appears to us to be entirely without any substance. Two of the injuries on the appellant were on the base of the right index finger of his right hand and rather superficial. The deceased was a young man of 25 years, and if he had been armed with a, knife and had come prepared to attack tire appellant, he certainly would have succeeded in inflicting much more serious injuries on the appellant, even if ultimately he had been over-powered. These two injuries on the appellant appear to suppose that he was the wielder of the knife, and the knife apparently slipped to his hand and cut his finger, while he was inflicting blows with it to the deceased. The third injury on the appellant, which was on the head, may possibly have been caused by the appellant's head striking against the head of the deceased or some other hard part of his body during the scuffle. As this injury according to the medical certificate, was caused with a blunt substance, it does not support the version of the appellant that the deceased had attacked him with a knife and caused injuries with it to him. Another circumstance which militates against the version of the appellant which as already indicated was alleged for the first time in the Sessions Court, that the complainant's party had come to their house to attack him and his father, in the fact that blood was found two houses away to the south of the appel--lant's house. If the complainant and the deceased had come to attack the appellant, the blood should have been in front of or near the house of the appellant or at any rate in between the house of the appellant and the house of the deceased, which according to the sketch was practically opposite the house of the appellant. The fact that blood was found on the way from the complainant's house to his place of work lends support to his version that he and his son Ibrahim were attacked while they were returning to their houses after work.
10. The fact that the clothes worn by the appellant at the time of his arrest, consisting of a shirt, pant and bunyan, were seized, has been established through the testimony of S. H. O. Sajjad Hussain and mashie Abdul Rashid, who is an independent witness. All these clothes, according to the report of the Chemical Examiner (Exh. 34) were found stained with human blood. The appellant himself, in his statement in the Sessions Court, has admitted that his clothes were blood-stained, but has explained that the blood thereon was his own from the injuries which he had sustained during the incident. It is not possible to believe, looking to the nature of the injuries found on his person, that all his clothes, including his bunyan, could have been stained with his own blood. The presence of blood on all the clothes of the appellant thus lends further support to the ocular evidence.
11. S. H. O. Sajjad Hussain has also deposed that the appellant had taken him and mashies Ibrahim and Zakir Khan to the first floor of his house and taken out a blood-stained knife from the pocket of a coat hanging on the wall. The knife was sent to the Chemical Examiner whose report indicates that it is stained with human blood. Mashir Muhammad Ibrahim, in his evidence in the Sessions Court, did not support the prosecution case regarding recovery of the knife at the instance of the appellant and stated that he found the knife lying on a table at the police station. He was accordingly declared hostile and confronted with his lower Court's statement, wherein he had stated that he had gone to Daryaabad along with the present two accused. Unfortunately, the deposition of the witness in the lower Court was not brought on the record of Sessions Court under section 288, Cr. P. C., as it should have been, and therefore, that deposition cannot be used as a piece of evidence against the appellant. Mashir Muhammad Ibrahim has however, admitted that he is literate and had signed the mashirnama. It is highly improbable that he would have signed the mashirnama, which indicates that the appellant had taken the police and mashirnama to his house and produced a knife from the pocket of a, coat, unless all this actually occurred in his presence. There was no season for the S. H. O. To foist the knife on the appellant. It appears to us that the witness was won over and has given obliging evidence in favour of the appellant, This inference gains support from the fact that he has even gone to the extent of saying that he had witnessed the incident himself and that he had seen the com--plainant and the deceased going towards the house of the accused and attacking them. We have already examined this version and found it to be devoid of any substance.
12. On a careful perusal of the entire evidence led in the case, we are fully satisfied that the appellant had caused knife injuries to the deceased, as a result of which the latter died, and that he did so because of the dispute which had occurred earlier during the day between his family members and the family members of the deceased. It is clear that his intention in causing knife injuries to the deceased on vital parts of his body, including chest and the abdomen, was to kill the deceased. We would accordingly maintain his conviction and sentence and dismiss his appeal.