' Appellant Sher Muhammad alias Shera and co-accused Abdul Khalil alias Jaidi were tried by Mrs. Qaisar Iqbal, IInd Additional Sessions Judge (West) Karachi for the offence under section 302/34, P.P.C., who found the appellant guilty for the offence under section 302, P.P.C. And vide judgment, dated 15th July, 1991 sentenced him to imprisonment for life and to pay a fme of Rs,5,000 (Rupees five thousand) or in default to suffer R.I. For one year. The fme, if recovered was ordered to be paid to legal heirs of deceased Qadir Bux. The benefit of section 382-B, Cr.P.C. Was also extended to appellant while computing his sentence. However, by the same judgment co-accused Abdul Khalil alias Jaidi was found not guilty and was consequently acquitted under section 265-H, Cr.P.C. By this appeal filed under section 410, Cr.P.C. The appellant has challenged his conviction and sentence.
2. The facts of the case which have occasioned this appeal lie within a narrow orbit and may be briefly indicated. The parties who are Pathans resided in the same locality. Appellant Sher Muhammad alias Shera is a man of objectionable character and it is alleged that he alongwith his friends used to smoke Charas near the house of deceased Qadir Bux, which was objected by him.
On 15-2-1987 there was general strike of transporters in City of Karachi, which compelled all the persons travelling through public transport to stay in their houses. It is the case of the prosecution that on 15-2-1987 in the morning time appellant Sher Muhammad alias Shera and his friends were smoking Charas near the house of deceased Qadir Bux when there was a quarrel between them and their sympathisers. The persons of the locality intervened and separated them. On the same day at about 2 p.m. Or 2-30 p.m. Deceased Qadir Bux was ftpairing the lights of the taxi car when the present appellant and co-accused Abdul Khalil alias Jaidi (since acquitted) emerged there.
Co-accused Abdul Khalil alias Jaidi caught hold of deceased Qadir Bux, while the appellant stabbed him by means of a dagger within the sight of Khan Bahadur son of deceased Qadir Bux and other persons who were present there. The culprits, however, escaped although they were chased by the persons of Mohalla who had gathered there. Qadir Bux whose condition was precarious was taken to police station and then to Abbasi Shaheed Hospital, Karachi, but he succumbed to his injury which had cut his left kidney in two pieces. Khan Bahadur lodged F.I.R. At Orangi Town Police Station which was recorded by Javed Iqbal H.C. Muhammad Iqbal, Additional S.H.O. Took up the investigation and after completing it submitted charge-sheet against both the accused persons. The appellant who was absconding at that time was sent up in absentia. On 5- 12-1987 the appellant was arrested and a supplementary charge-sheet was submitted against him.
3. At the trial the prosecution examined Khan Bahadur (P.W.1), Muhammad Younus (P.W.2), Muhammad Haroon (P.W.3), Muhammad Yousuf (P.W.4), Muhammad Miskeen (P.W.5), Ghulam Muhammad (P.W.6), Lajbar Khan (P.W.7), Syed Shah Hussain (P.W.8), Jan Wall Khan (P.W.9), Dr. Nasim Ismail (P.W.10), Javed Iqbal H.C. (P.W.11), Muhammad Usman (P.W.12), Muhammad Iqbal, Additional. S.H.O. (P.W.13) and Dr. Ghulam Muhammad (P.W.14).
4. The appellant met the charge with a denial. According to him deceased Qadir Bux objected to his visit in the street where his house was situated, whereupon there was an altercation between them. His defence in main is that on the day of incident there was a clash between two ethnic groups, viz. Pathans and Mohajirs in which deceased Qadir Bux had sustained injury and because of strained relations he was involved falsely in this case. The appellant examined himself on oath (D.W.1), but adduced no other evidence in his defence.
5. On the assessm ent of evidence available on record the learned Additional Sessions Judge found the appellant guilty and convicted him accordingly. It is in these circumstances that the present appeal has been filed.
6. I have heard Mr. Aman Khattak, learned counsel for the appellant and Mr. Azizur Rehman Shaikh, learned counsel for the State. The latter has supported the conviction of the appellant but has stated that the offence will fall under section 304, P.P.C. And not under section 302, P.P.C.
7. The fact that deceased Qadir Bux died after sustaining Chhuri or dagger blow is proved from the record. Besides the evidence of eye-witnesses which 1 will discuss at the proper time, there is evidence of Dr. Nasim Ismail (P.W.19), and Dr. Ghulam Muhammad (P.W.14), to this effect. Out of these witnesses Dr. Ghulam Muhammad (P.W.14) had conducted the autopsy on the dead body of Qadir Bux and he found his left kidney cut into two pieces. The factum of unnatural death of deceased Qadir Bux is not even denied by the appellant who has, however, pleaded that he sustained injury in ethnic violence. From the evidence of the expert I am satisfied that whoever had caused this injury to deceased Qadir Bux had no other intention, but to kill him.
8. The evidence against the appellant was three-fold. Firstly, there were the statements of eye- witnesses, namely, Khan Bahadur (P.W.1), Muhammad Haroon (P.W.3), Muhammad Miskecn (P.W.5), Ghulam Muhammad (P.W.6) and Lajbar Khan (P.W.7). Secondly, there was evidence of motive about the earlier incident which has come on record through Muhammad Younus (P.W.2), Muhammad Haroon (P.W.3), Muhammad Yousuf (P.W.4), Muhammad Miskeen (P.W.5) and Ghulam Muhammad (P.W.6). Thirdly, there was evidence of absconsion of appellant for a period bf ten months, consisting of Muhammad Iqbal S.I.P. (C.W.1), and Rafique P.C. (C.W.2).
9. Admittedly deceased Qadir Bux did not like the visits of the appellant and his friends in the street where his house was situated. The appellant has himself admitted this position in his statement recorded under section 340(2), Cr.P.C. On oath (Exh.42) in the following words:-- "I know P.Ws. Muhammad Haroon, Younus Behrobar Khan, as well as deceased Qadir Bux, as they all were my neighbours. Prior to the murder of Qadir Bux our relations had become strained for the reasons that deceased had objected on my character as well as in roaming in streets, whenever passed through lane we met an altercation."
10. Bearing in mind the above-admitted position, let us now examine the evidence of Muhammad Younus (P.W.2), Muhammad Haroon (P.W.3), Muhammad Yousuf (P.W.4), Muhammad Miskeen (P.W.5) and Ghulam Muhammad (P.W.6), who have testified about the first quarrel which took place between the parties at the early hours on the day of incident. There is no inherent weakness in their evidence. As observed above, there was general strike of transporters in the city of Karachi on the day of incident and consequently the presence of these witnesses at the time of first incident was not by chance. No doubt the above witnesses are interested in deceased Qadir Bux, but this fact alone is not sufficient to brush aside their evidence in respect of first quarrel when this position is more or less admitted by the appellant, who has also admitted that he had no enmity with the above witnesses.
11. The evidence which has come on record makes it clear that the appellant felt offended because of the earlier incident and on the same day at about 2 p.m. Or 2-30 p.m. He came well-prepared to retaliate and this is how the second incident took place. Besides Muhammad Haroon (P.W.2), Muhammad Miskeen (P.W.5) and Ghulam Muhammad (P.W.6) who are witnesses of both the incidents, the prosecution has examined Khan Bahadur son of decased Qadir Bux (P.W.1) and Lajbar Khan (P.W.7) to prove that the appellant and none else was the author of this crime. Out of these witnesses Lajbar Khan (P.W.7) is completely an independent witness, who has testified to the following effect:- "The incident of this case had taken place on 15-2-1987 at 2 or 2-30 p.m. At that time I was standing outside in the Gali. At that time both Shera and Jaidi came there and after reaching near to Qadir Bux who was repairing taxi, accused Sher (Sher Muhammad) gave Chhuri blow on the person of Qadir Bux and ran away from the spot. I had gone near to Qadir Bux and caught hold him, other persons also came. Qadir Bux had fallen down on the ground and the blood was coming out from his body. Thereafter, Qadir Bux was taken to police station in taxi. I do not know the cause of dispute."
Nothing has been elicited in the cross-examination of this witness to shake his credence. His house is situated opposite to the house of deceased Qadir Bux and he being a natural witness had absolutely no reason to depose falsely against the appellant.
12. The evidence of above witnesses gets full support from the circumstantial evidence, viz., absconsion of the appellant for a period of ten months which remains unexplained. Muhammad Iqbal S.I.P. (C.W.1) and Rafique P.C. (C.W.2) have testified to this effect. The appellant was declared as a proclaimed offender and he has not uttered a word explaining his absence from Karachi during all this period. The fate of every criminal case depends upon its own facts and the intrinsic worth of the evidence, both direct as well as circumstantial, adduced in the case. Little assistance can, therefore, be derived from case-law on the credibility of a particular witness or corroborative value of a circumstance attending to a case. The learned counsel for the appellant has said everything that he can say on behalf of his client, but there is no escape from the conclusion that the appellant and none else was responsible for causing Chhuri blow to deceased Qadir Bux.
13. In the last a feeble attempt has been made to bring this case within the mischief of section 304, P.P.C. The circumstances whereunder the culpable homicide does not amount to murder arise out of:--
(i) Provocation.
(ii) Private defence.
(iii) Exercise of legal powers.
(iv) Absence of premeditation.
(v) Consent.
14. The learned counsel for the appellant has laid much emphasis upon suddenness of the quarrel and causing of single blow to deceased Qadir Bux. The circumstances attending to this case clearly make out a case of premeditated murder. In fact the appellant had come well-prepared to retaliate for the earlier quarrel which took place on the same morning. The blow was caused on vital part of the body cutting left kidney in two pieces. The cases of Muhammad Shall v. The State reported in 1984 SCMR 950, and Barket Khan and another v. The State reported in 1989 P Cr. L J 2321, which are cited on behalf of the appellant are clearly distinguishable.
15. On consideration of the entire evidence as discussed above, I am fully satisfied that the occurrence took place in the manner as alleged by the prosecution.
The appeal has got no merits and is dismissed. The appellant who is in custody be informed accordingly.